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State of Orissa Vs. SamsuddIn Akbar Khan and Co. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtOrissa High Court
Decided On
Case Number S.J.C. No. 45 of 1973
Judge
Reported in[1975]35STC179(Orissa)
AppellantState of Orissa
RespondentSamsuddIn Akbar Khan and Co.
Appellant Advocate The Standing Counsel (Sales Tax)
Respondent Advocate N. N. Bhattacharya, Adv.
Cases ReferredIn B. Dar Laboratories v. State of Gujarat
Excerpt:
.....1996 (2) glt 246, are not good law]. - 14. on the aforesaid reasoning, we are clearly of opinion that during the relevant period gudakhu comes within the definition of manufactured tobacco and as such was tax-free......orissa but sales in the course of inter-state trade. it did not pay tax both under the act and the central sales tax act, 1956 (hereinafter to be referred to as the 1956 act) on the sale of gudakhu for three quarters ending 30th september, 1967, to 31st march, 1968. the sales tax officer held that during the relevant period gudakhu was exigible to sales tax. an appeal at the instance of the opposite party was allowed by the assistant commissioner of sales tax, cuttack range, who held that tobacco was not exigible to sales tax. the assessments were accordingly annulled. a second appeal filed by the petitioner before the tribunal was dismissed. the reference has been made at the instance of the petitioner.3. gudakhu is manufactured out of tobacco. the other constituents of gudakhu are.....
Judgment:

G.K. Misra, C.J.

1. The question referred to by the Tribunal under Section 24(1) of the Orissa Sales Tax Act, 1947 (hereinafter to be referred to as the Act), runs thus :

Whether gudakhu is covered by the expression 'tobacco' as denned in Section 2(c) of the Additional Duties of. Excise (Goods of Special Importance) Act, 1957, which was substituted with effect from 1st July, 1967, by Notification No. 21278-F. dated 6th June, 1967, and is exempted from tax under the Orissa Sales Tax Act, 1947 ?

2. Facts relevant to the aforesaid question may be stated in short. Opposite party is a registered dealer doing business in the manufacture and sale of gudakhu both inside and outside the State of Orissa. That means it effected not only internal sales in Orissa but sales in the course of inter-State trade. It did not pay tax both under the Act and the Central Sales Tax Act, 1956 (hereinafter to be referred to as the 1956 Act) on the sale of gudakhu for three quarters ending 30th September, 1967, to 31st March, 1968. The Sales Tax Officer held that during the relevant period gudakhu was exigible to sales tax. An appeal at the instance of the opposite party was allowed by the Assistant Commissioner of Sales Tax, Cuttack Range, who held that tobacco was not exigible to sales tax. The assessments were accordingly annulled. A second appeal filed by the petitioner before the Tribunal was dismissed. The reference has been made at the instance of the petitioner.

3. Gudakhu is manufactured out of tobacco. The other constituents of gudakhu are lime, molasses, gerumati and some essence to give it flavour. Tobacco used in gudakhu is less than 50 per cent while the percentage of molasses used is higher.

4. If sale of gudakhu is not liable to be taxed under the Act, no tax is leviable under the 1956 Act as prescribed in Section 8(2A) of the latter Act. The question for consideration is if gudukhu was taxable under the Act during the relevant period.

5. In G. Azeez Basha & Co. v. Sales Tax Officer [1972] 29 S.T.C. 352, a Bench of this Court historically analysed several notifications whereunder gudakhu was either tax-free or taxed (see paragraphs 3 to 8). In this reference we are concerned with Notification No. 21278 C. T. A. 38/67-F. dated the 6th June, 1967, which remained in force for these three quarters. It runs thus :

In exercise of the powers conferred by Section 6 of the Orissa Sales Tax Act, 1947 (Orissa Act 14 of 1947), the State Government do hereby direct that the following further amendment shall be made in the notification of the Government of Orissa in Finance Department No. 33925 C. T. A. 130/67-F. dated the 30th December, 1957, namely :-

AMENDMENT-1. For the existing entry in column (2) against SI. No. 35 of the Schedule to the said notification the following shall be substituted :-

Tobacco as denned in Section 2(c) of the Additional Duties of Excise (Goods of Special Importance) Act, 1957.'

This amendment shall take effect from the 1st July, 1967.

6. Section 2(c) of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (hereinafter to be referred to as the 1957 Act) runs thus :

2. Definitions.--In this Act,-

(c) the words and expressions 'sugar', 'tobacco', 'cotton fabrics', 'woollen fabrics' and 'rayon or artificial silk fabrics' shall have the meaning respectively assigned to them in items Nos. 1, 4, 19, 21 and 22 of the First Schedule to the Central Excises and Salt Act, 1944.

7. 'Tobacco' as defined in item No. 4 of the First Schedule in the Central Excises and Salt Act, 1944 (Central Act 1 of 1944) (hereinafter to be referred to as the 1944 Central Act), so far as relevant, runs thus :

4. Tobacco.-'Tobacco' means any form of tobacco, whether cured or uncured and whether manufactured or not, and includes the leaf, stalks and stems of the tobacco plant, but does not include any part of a tobacco plant while still attached to the earth.

This definition is very wide and comprehensive. It includes any form of tobacco whether cured or uncured and whether manufactured or not.

8. Section 2(f) of the 1944 Central Act defines 'manufacture'. It runs thus:

2. Definitions.-In this Act, unless there is anything repugnant in the subject or context,-

(f) 'manufacture' includes any process incidental or ancillary to the completion of a manufactured product; and

(i) in relation to tobacco, includes the preparation of cigarettes, cigars, cheroots, biris, cigarette or pipe or hookah tobacco, chewing tobacco or snuff.

9. Thus, the definition of 'tobacco' in item 4 of the First Schedule of the 1944 Central Act is to be read with the definition of 'manufacture' in Section 2(f)(i).

10. It is to be noted that 'manufacture' includes any process incidental or ancillary to the completion of a manufactured product. In relation to tobacco, 'manufacture' specifically includes the preparation of certain things, as already enumerated, which do not refer to gudakhu. The question for consideration is whether 'gudakhu' would not come within the ambit of 'manufactured tobacco' because of its specific non-mention in the list enumerated.

11. It would be pertinent to remember that 'hookah tobacco' as referred to in Section 2(f)(i) of the 1944 Central Act is gudakhu. It is placed on the hookah and is used- for smoking. The constituents of hookah gudakhu are not very much different from the gudakhu used for cleansing teeth. Gudakhu used for smoking by hookah comes within the meaning of 'manufactured tobacco'. There is no reason why gudakhu used for teeth would not be construed as tobacco.

12. It is to be noticed that the definition of 'manufacture' in relation to tobacco is an inclusive one. Words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. It would be inappropriate to put a restrictive interpretation upon terms of wider denotation (see para 10 in Slate of Bombay v. Hospital Mazdoor Sabha A.I.R. I960 S.C. 610).

13. In Dilip Kumar v. Commercial Tax Officer A.I.R. 1966 Cal 498, the question for consideration was whether xarda comes within the definition of 'tobacco' as defined in item 4 of the First Schedule in the 1944 Central Act. His Lordship considered the identical provisions and held that it comes within the definition of 'manufactured tobacco'. He held that the definition of 'manufacture' is inclusive and the enumeration of cigarettes, etc., does not exhaust the definition. In zarda the main ingredient is tobacco and inclusion of some additional ingredients does not take it out from the definition of 'tobacco' as even for the preparation of cigarettes, cheroots, hookah tobacco or snuff, which are specifically mentioned in the definition of 'manufacture', other ingredients are added. We are in agreement with the reasoning given by the learned Judge. The identical principle applies to the case of gudakhu.

In B. Dar Laboratories v. State of Gujarat [1968] 22 S.T.C. 160, a Division Bench of the Gujarat High Court held that 'Ipco Dental Creamy Snuff' which contained 55 per cent of snuff came within the definition of 'tobacco' as defined in item 4 of the First Schedule of the 1944 Central Act.

14. On the aforesaid reasoning, we are clearly of opinion that during the relevant period gudakhu comes within the definition of manufactured tobacco and as such was tax-free. The Assistant Commissioner of Sales Tax and the Tribunal reached the correct conclusion. It is net necessary to refer to the large many authorities cited on either side which do not throw any light on the question in issue.

15. We would accordingly answer the question referred in the affirmative by saying that gudakhu is covered by the expression 'tobacco' as defined in Section 2(c) of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, and is exempted from tax under the Act and the 1956 Act.

16. In the result, the reference is discharged with costs. Hearing fee of Rs. 200.

B.K. Ray, J.

17. I agree.


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