STATE OF WEST BENGAL Vs. ANIL KRISHAL PAUL

JUDGEMENT

(1.) This appeal by the State of West Bengal is directed against the order dated 11th June, 1985, of the court of the first instance on the writ petition filed by the respondent challenging the levy and collection on "gudakhu" or "gurakhu" under the Bengal Finance (Sales Tax) Act, 1941, the West Bengal Sales Tax Act, 1954 and the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 (hereinafter referred to as "the 1941 Act, the 1954 Act and the Entry Tax Act", respectively) and the Rules framed thereunder. The learned Judge following the judgment of a learned single Judge dated 21st September, 1984 in Gulabchand Harekchand v. State of West Bengal (since reported in [1985] 59 STC 224) held that tax cannot be levied on "gudakhu" as this is covered by the expression "tobacco" and further "gudakhu" not being a tooth-paste or tooth-powder is not subject to levy of tax under the West Bengal Sales Tax Act, 1954 or under the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972.

(2.) The case of the respondent/writ petitioner is that he has been purchasing and importing from Orissa "gudakhu" which is also spelt as "gurakhu" for sale in West Bengal. The said "gudakhu" or "gurakhu" is used for the purpose of smoking as "tobacco for hookah" and also used for. tooth-gums. The Commercial Tax Officer under the State Sales Tax Act as well as the Central Act issued registration certificates inserting "tobacco for hookah" in the resale column on being satisfied that "gurakhu" dealt in by the writ petitioner was "tobacco for hookah".

(3.) In the proceedings before him, he, however, held that containers up to 500 gms. containing "gurakhu" are used as tooth-paste and are sold in pan and stationery shops in and around Calcutta, these are not at all used for tobacco for hookah ; and accordingly he held that the sales in containers up to 500 gms, as tooth-paste are taxable under the State Act. The sales in containers above 500 gins, were allowed exemption under Section 5(2)(a)(i) of the 1941 Act as tobacco for hookah.