April 10 v. STATE OF UTTAR PRADESH

Held, (Subha Rao, J., dissenting) that for the reasons given in the majority judgment of this Court in Ujjam Bai v . .State of U. P., the writ petition must fail. Ujjam Bai v. State of U. P., W. P. No. 79 of 1959, applied. The exemption '!:lnder the notification, properly con· strued, was conditional and applied only to goods on which additional Central Excise Duty was leviable and had been paid. Since no such duty was leviable on hand-made biris an<l none was paid, the condition precedent to exemption was not satisfied. The Sales Tax Oftlcer had therefore cor rectly interpreted the notification and his order was correct. ORIGINAL JURISDICTION: Petition No. 195 of

1959. 196! Cleholobhai J ethabhai Patel & ro. v. Sl1r1 of Vttar Pradesh EapurJ. 992 SUPREME COURT REPORTS (1963] 4 Petition Under Art. 32 of the Constitution of India for enforcement of Fundamental Rights. WITH Civil Appeal No. 99 of 1961. Appeal by special leave from the Judgment and order dated May 14, 1959, of the Allahabad High Court in Civil Misc. Writ No. 1: 84 of 1959. G. G. Mathur, for the petitioners (in Petn. No. 195/59).

11. G. Setalvad, AUorney-General of India and G. G. Mathur for the app<"llants (in C. A. No. 99/61). S. N. Sanyal, Additional Solicitor General of India and 0.1'. Lal, for the respondents (in both the petition, and appeal). 1962, April 10. The following Judgments were delivered KAPUR, J.---Thisjudgment will dispose of two matters which arise out of the same proceedings under the U.P. Sales Tax Act (l) a petition under Art. 32 and (2) an appeal against the judgment and order of the High Couro of Allahabad passed in proceedings taken under Art. 226 of the Constitu tion. One of the questions that arises in these two matters is the same which arose and has been decid ed in W. P. No. 79 of 1959 in which the judgment has been delivered today. The facts giving rise to these two matters are these: The petitioner firm is a partnership litm carrying ou business of selling &iris and although ite principal office is at Nadiad (Bombay State) it has a branch office at Agra in U. P. where biris manu· factured uv it are brought and sold. The firm was registered as a dealer under s. 8 of the U.P. Salee '· 1961 Clrhotabli•i J 1t1111b/iai Paul th Co. •• S1ot1 of Uttar Pradesh l s.-C. B. SUPREME COURT REPORTS 993 Tak .Ai>t (Act Ui -0f 1948) hereinafter called the •Act'_ uuder which ·a not;ifice.tion giving exemption in regard to sales tax on cerlia.in articles was notified by a notiftcatiOn of Deoemb&r 14.1957, which has been set out at another place in this judgment. On February 271 1959, the Salee ·Tax Officer, Agra, passed a provision&I Order · of ·assessment of sales tax fbr the quarter fi"Odl April l, l968 to June 30, 1968. The tu sousesaed was Ra; .t>2,500. It is a~ tha.t no notice was given to ·the petitioner firm.- The notice or demand. was i:Jsued on the same date. An appeal was taken against this order of &88e88inent to the Judge .(Appeals) and an applies.· tion was made tCJ ·the Commissioner of -Sales Tb.x for a stay of the realisation of the tax asses~ed·. The - Commissioner on April 28, 1959, directed that if hart of the amo\mt assess.ad was deposited by the petitioner f>y April 30, 1959, the payment of the· remaining amount shall J;>e stayed pending· the fmal ·On April 30, 1959, the petitioneJ;' firm asseasment. deposited half the tax assessed i.e. lts. 31,250. the taxing authorities Qn April 28, 1959, the :petitioner ·firm moved the Wgh Court under Art. 226 of tire -Constitution for a writ olceniorari quaiJhing the assessment order allfi the eeoond notioe .0£ demand and for a writ of mancitumtB dire.oting forbear from reoov•ing the ta.x~ This petition was dismiaed. b_y the High Court by an order dated May 14. 1959. An a.pplica.tian for a certificate under Art. 133.(l.)(c) of -the Constitution was dis missed by the High Court·onOetober 23, 1959, and .agair.lst the· order· -of dismissal of the petition under Art. 226, speei.J.l le&ve w.as granted by this Court en Deoember l'-8, 1:908. A petition under Art. 32 of the- Oonatitutim was also filed by the petitioner firm on December 16, 1959, and rule was -issued -th$'00n and that ia· how t8e appeal against the High Court or-Oer made in proceedings under Art.226 ~ I I I 196) Chho1r:1bluii J1tf.abhrii l'atei ti:: Co. '· S111t. of Ull•f' J>,ad,s/t. Kapur J. • 994 SUPREME COURT REPORTS [1963] and the petition under Art. 32 of the Constitution have been brought to this Court. On September 29, 1959, the Sales Tax Officer issued another notice calling upon the petitioner returns for the period from to submit December 13, 1957, to March 31, 11J58. On October 1959, a further notice was issued under s. 15(i)(a.) to show ca.use why a penalty should not be imposed. This matter was not bi.fore the High Court as the petition in tha~ Court was filed earlier but it has also been challenged in the petition under Art. 32 of the Constitution. For reasons given in W.P. No. 79 or 1959 this petition under A rt. 32 is dismissed. The appeal which the petitioner firm had filed before the Judge (Appeals) was dismissed and a revision taken against that order was also dismissed but these orders have not been challenged in any proceedings so far. The appellant firm's contention in the appeal was that the order of the Sa.Jes Tax Officer limiting the excess Central Excise Duty had been paid wa.s It will be opposite at this stage to erroneous. trace the history of the exemption which is claimed by the appellant firm. Because of the difficulty experienced in regard to inter-Sta.Le sales on a. large sea.le of certain articles the Central Government with the concurrence of the State Governments impo1ed an enhanced Central Ext.iee Duty on the sales tax levied upon them, and the sum so collect- ed by the imposition of the enhanced Central Excise Duty on those articles was to be distributed by the Central Government the State Governments concerned and they (the State Governments) agreed to exempt those articles from sales tax. As a. result of this arrangement. The Additional Duties of Excise (Goods of Special Importance) Aot (Act 58 ' ' 1962 Ch'iottJbh11i Jethnbhbi Patel &: Co. "· Shte of Uttor Prad11h Ka,111 J, l S.C.R. SUPREME COURT REPORTS 995 of 1957) was passed by Parlh.ment. In this judg ment it will be called 'Central Act 58 of 1957'. By this Act additional Central Excise duty was levied on tobacco but no such duty was levied on biris. Even under the Central Excise and Salt Act (Act 1 of 1944), herdnafter ca.Bed 'Central Act I of 1944', no Central Excise Duty was imposed on handmade mris although excise duty was levied on maohine made biris but the object of imposing: that duty was to protect the handmadebiris industry. In pursuance of the abovementioned arrangement for the exemp tion from sales tax of certain articles the U. P. issued notification. No. ST-4485/X Government dated December 14, 1957, under s. 4(l)(b) of the Act which will be quoted at another place in this judgment. Liability to sales tax arises under s. 3 (I) of the Act which provides:- S. 3( I) "Subject to the provisions of this Act, every dealer shall, for each assessment year, pay a tax at the rate of (two naya paise per rupee) on his turnover of stJch year, which shall be determined in such mannt}r as may be prescribed''. and provision for exemption for sales tax is made in s. 4(l)(a) and (b) which provides:- S. 4(1) "No tax shall be pay~ble on- (a) the sale of water, milk, salt, news papers and motor spirit as defined in the U.P. Sales of Motor Spirit (Taxation) Aot, 1939, and of any other goods which the State Govern ment may be notification in the official gazette exempt: (b) the sale of any goods by the All IndirJ. Spinners' Association or Gandhi Ashram Meerut, and their branches or s~cb other per sons, or class of persons as the State Govern ment may from time to time exempt on such 996 SUPREME COURT REPORTS [1963] ( lDli Cilhdi.Tiltii J11h1'~ai Patel d: Co. v. Slat• of U ttar Pr""4slt ,..,...J. conditions and on payment of such fees, if any not exceeding (eight thousand rupees) annually as may be specified by notifica.tion in the Official Gazette". The U.P. Government on December 14, 1957, iBBued the following notification under s. 4(1)(b) of the Act:- "No. ST-4485/X dated Lucknow Dec. 14, 1957 (Published in U.P. Gazette Extraordinary, dated December 14, 1957). In partial modification- of notifications No. ST-1:105/X dated March 31, 1956 and ST- 418/X 902(9)-62 dated January 31, 1957 and exercise of the powers conferred by clause (b) of sub-section (I) of sec. 4 of the CJ.P. Sales Tax Act, 1948 (CJ.P. Act No. XV of 1948) as amended upto date, Governor ofUttar Pradesh i.i pleased to order that no tax shall be payable under the aforesaid Act with effect from December 14, 1957 by the dealers in respect of the following classes of goods pro vided that the Additional Central Excise Duties leviable thereon from the closing of business on December 13, 1957 have been paid on such goods and that the dealers thereof furnish proof to the satisfaction of the a88688- ing authority that such duties have been paid. (1 ) - - - - - - - - - - - - - (2 ) - - - - - - - - - - - - - - - - t (3) Cigars, cigarettes, biris and tobaooo, that is to say any form of tobacco, whether cured or uncured and whether manufactured or not and includes the leaf, stalk11 and stems of the tobacco plant but does not include any part of a tobacco plant while still attached to the earth". 1961 Cliltotoillai J1th1/Jhai Pai1l &: Co, ... Stat1 I/ Utlat ·Prad111' 1 1 s.o~B. SUPREME COURT REPORTS 997 This: ilJ the notification, which, it is submitted, by petitfoner, has been misconstrued and misapplied and has resulted infringement of the petitioner's right Art. 19( 1 )(g) of the Constitution. It was contended that under the Central Act J>S of 19b7 additional Central. Duty of Excise had been paid on tobacoo as defined in the Central In the 4th item in the 1st Schedule Act 1 of 1944. of Central Act 1 of 1944 tobacco is defined as follows:- u 'Tobaooo' means any form of tobacco, whether cured or uncured and whether manu factured or not; and includes the . leaf, stalks and stems of the- tobaooo plant, but dues not include any part of a tobacco plant while .still attached to the earth". The notification expressly states that it is made under s. 4{ l)(b) of the Act and therefore the exemp tion was oonditional and properly read it applies only to those goods on which additional Central Excise Duty was leviable and had been paid. No such duty was leviable on hand-made biris and it was not pa.id. The condition of the exemption therefore cannot be said to have fulfilled and the sales of the petitioners did not fall within the exemption cov.ered and given by the notification. In our opinion therefore the Sales Tax Of.tlcer correctly interpreted the notification and it has not been shown that hie determination . was in any way errODeous. On this . ground also th·e petition ipust fail • . The appeal against the order . of the High Oourt of Allahabad is therefore dismissed but the parties will bear their ow costs. · · SUB.BA.RAO, J.-It ie common case that the Mll•Ra.J • . appeal and the writ petition would be goverAed · by -our deoieiol) in the oonW10ted writ petition viz., 998 SUPREME COURT REPORTS [1963] ( 1961 Clrllol1bh•i Je'habh,j Potll "'c.. Y. St•ltaj Ullar · Pradesh Subbo R•oJ. Writ Petition No. 79 of 1959. For the reasons mentioned therein, the writ petition and the appeal a.re allowed with costs. BY CouRT:-In accordance with the judgment of the majority, Civil Appeal No. 99 of 1961 and Writ Petition No. 195 of 1959 are dismissed, but the parties are left to bear their own costs. ' {