D. Basu, J.
1. The petitioner in the two cases Nos. C.R. 617 and 618(W) of 1962 carries on business of importing snuff for sale in West Bengal which is maunfactured by manufacturers outside this State who have to pay duties of excise under the Additional Duties of Excise (Goods of Special Importance) Act, 1957. Notwithstanding this the petitioner has been assessed with sales tax in the two cases respectively under the Bengal Finance (Sales Tax) Act, 1941, and the Central Sales Tax Act, 1956, on her sale of snuff during the four quarters ending Chaitra, 1356 B.S. The petitioner's case is that no sales tax is payable on the sale of snuff under either of these two Acts inasmuch as snuff comes within the definition of tobacco as denned in item 9 of the First Schedule to the Central Excises and Salt Act, 1944.
2. Though the enactments under which the assessment has been made in the two cases are different, the question for determination is ultimately the same, namely, whether snuff is included in the definition of tobacco as given in item 9 of the First Schedule to the Central Excises and Salt Act, 1944.
3. I. So far as the Bengal Act is concerned, we are primarily concerned with the text of Rule 3(28) of the Bengal Sales Tax Rules, 1941, which have been framed in exercise of the power conferred by Section 26 of the Bengal Finance (Sales Tax) Act, 1941. The charging section in the Act of 1941 is Section 5. Sub-section (1) of this section says that every dealer shall pay tax on his ' taxable turnover' at a specified rate. 'Taxable turnover' is a technical concept which is arrived at by allowing certain deductions from the gross turnover of a dealer during the assessment period. Gross turnover is the aggregate sale price of the dealer received during the period as denned in Section 2(i). From this gross turnover the dealer is allowed to deduct several items, e.g.,-
(a) the sale of goods which are declared tax-free under Section 6 ;
(b) such other sales as may be prescribed.
4. It is with this second item of deduction, mentioned in Sub-section 2(a)(vi), with which we are concerned. Since 'prescribed' means as prescribed by the rules, we are brought to Rule 3 which gives a list of items which the dealer is allowed to deduct from his gross turnover for the purpose of making his return on the basis of which the tax is assessable.
5. Rule 3(28)(a) is the relevant item with which we are concerned. This item, as it was inserted by Notification No. ET 504 of 3rd March, 1958, was as follows :-
Sales of...tobacco other than cigarettes, on which duty has been paid under the Additional Duties of Excise (Goods of Special Importance) Act, 1957.
6. The legislative history as to why goods on which additional duty of excise were payable under the Additional Duties of Excise (Goods of Special Importance) Act of 1957 (hereinafter referred to as ' the Act of 1957 ') were exempted from sales tax has been explained by me in the cases of Dilip Mukherjee v. Commercial Tax Officer C.R. 344 (W) of 1961 and Mahendra Protap v. Commercial Tax Officer (1964) C. R. 427 (W) of 1962 (unreported) and need not, therefore, be reiterated. We are concerned with a narrow question in the instant case, namely, whether 'snuff', which has been assessed by the impugned order, comes within the meaning of tobacco as given in Rule 3(28)(a), quoted above. ' Tobacco ' is not denned in the rules but for its meaning we are referred to the Act of 1957 by an explanation to Rule 3(28) which is as follows :-
Explanation-In this clause, the expressions 'cotton fabrics'... and ' tobacco ' have the same meaning as in the Additional Duties of Excise (Goods of Special Importance) Act, 1957.
7. Section 2(c) of the Act of 1957 again refers us to the First Schedule of the Central Excises and Salt Act, 1944 (hereinafter referred to as ' the Act of 1944 ') to discover the meaning of the word tobacco, by these words :-
(c) the words and expressions 'sugar', 'tobacco', 'cotton fabrics', 'rayon or artificial silk fabrics' and 'woollen fabrics' shall have the meanings respectively assigned to them in items Nos. 8, 9, 12, 12A and 12B of the First Schedule to the Central Excises and Salt Act, 1944.
8. The relevant item of the First Schedule of the Act of 1944 which dealt with tobacco was No. 9 at the time of enactment of the Act of 1957. This item is-
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.
I. Unmanufactured tobacco
II. Manufactured tobacco(I) Cigars and cheroots of whichthe valuePer hundred(i) exceeds Rs. 30 a hundred... Twelverupees.
9. It may be noticed that item No. 9 above. contains two parts- (a) the first part gives the meaning of the word ' tobacco ' and (b) the second part gives the rates of duty payable on certain species of ' manufactured ' and ' unmanufactured ' tobacco.
10. For the meaning of the word ' manufacture ', we are to turn to the definition of that word in Section 2(f) of the Act which says-
(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 of hookah tobacco, chewing tobacco or snuff.
11. If the first part of item 9 is now read with the definition of manufacture, it would be evident that the meaning of tobacco under item 9 is that it would include all manufactured varieties of tobacco, including snuff. Snuff is thus specifically included within the meaning of tobacco as given in item 9 of the Act of 1944, and, passing through the several links explained earlier, the result would be that snuff would come within the ambit of Rule 3(28), so as to allow the petitioner to deduct it from her gross turnover, and the sale of snuff cannot, therefore, be taxed under the Bengal Finance (Sales Tax) Act, 1941.
12. Mr. Dutt, appearing on behalf of the respondents has, however, taken a number of objections against the above conclusion.
13. Firstly, he contends that even though, for general purposes under the Act of 1941, tobacco may include 'snuff', according to the definition of 'manufacture', that would be of no use in interpreting item 9, inasmuch as under the second part of item 9, only a few specified items, namely, cigars, cheroots and cigarettes are included within the class of 'manufactured tobacco', and that, accordingly, reading the two parts of the item, we cannot come to a conclusion that 'tobacco', for the purposes of item 9, includes snuff.
14. This contention is not, however, acceptable, inasmuch as the first part of item 9 gives the meaning of tobacco and the second part lays down the rates of excise duty payable on specified varieties of manufactured and unmanufactured tobacco. What Rule 3(28) of the Bengal Sales Tax Rules (read with the Act 1957) imports is not the entire item or, whose purpose, as would appear from Section 3 of the Act of 1944, is to prescribe the rates at which excise duty is to be levied on certain articles under that Act, but only the 'meaning assigned' to the word 'tobacco' by item No. 9. If so, it is only the first part of item No. 9, which gives the meaning of the word 'tobacco' and not the second part, which is relevant for the interpretation of Rule 3(28) of the Bengal Rules, (read with the Act of 1957). The explanation to Rule 3(28) and Section 2(c) of the Act of 1957 are instances of legislation by reference or incorporation. Instead of itself giving the meaning of the word 'tobacco', these provisions refer us to the meaning as given to that word in item 9 of the Act of 1944. A Legislature, while legislating by incorporation, is not obliged to borrow the entirety of a section or clause of the incorporated Act, but is free to take any part of it, and the result of incorporation would be that that provision or part thereof which is incorporated would have to be read in the incorporating provision as if it had been bodily printed therein, by reproducing the incorporated words. Now, if Mr. Dutt's contention, namely, that the whole of the item No. 9 has been incorporated were sound, the result would be that even the rates as prescribed by the second part of item No, 9 would have to be taken as printed on the face of Rule 3(28), and this would lead us to an unmeaning jargon. There is, therefore, no escape from the conclusion that the Act of 1957, instead of denning the word 'tobacco', has borrowed the first part of item No. 9, which gives the meaning of the word 'tobacco' in another statute, namely, the Act of 1944, and the rule-making authority under the Bengal Finance (Sales Tax) Act has also followed that legislative practice.
15. Secondly, it has been argued by Mr. Dutt that item 18 of the Schedule to the Bengal Act itself excepts the sale of 'tobacco' and that item is-'tobacco for hookah, that is to say, tobacco-paste ready for use in hookah', and that, accordingly, if the rules made under the Act enlarges the meaning of the word 'tobacco' beyond what is contained in item 18 as aforesaid, the rules must, to that extent, be held to be ultra vires.
16. The fallacy involved in this argument is that the scope of Rule 3 and the Schedule to the Bengal Act are different. The Schedule gives the list of 'tax-free goods' as referred to in Section 6 of the Act, while Rule 3 gives a list of goods the sale of which may be deducted from the turnover under Section 5(2)(a)(vi). It may be recalled that both these different processes are mentioned in Sub-section (2)(a)(i) and (a) (vi). Even though the result may be the same for the purpose of avoiding sales tax, the Legislature provides different modes for arriving at that result. It cannot, therefore, be contended that because tobacco-paste is exempted under Section 6, snuff cannot be excluded from the computation of taxable turnover by rules framed under Section 5(a)(vi).
17. Mr. Dutt next contended that even if it be conceded that 'snuff' is included within the meaning of 'tobacco' as given in the definition of 'manufacture', it is only pure snuff, that is to say, tobacco in its powdered form, without the addition of any extraneous ingredients, that might be held to be so included and that as soon as any other ingredient is added, it ceases to be 'tobacco'. In this argument he relies on decisions like the Midnapur Sugar Candy v. Commercial Tax Officer  1 R.L.R. 107 and India Ball Thread Co. v. Commercial Tax Officer  1 R.L.R. 168 where it has been held that where in the process of manufacture, the product is transformed into a different commercial commodity, it cannot claim the exemption that is granted by the law in respect of the original commodity. Thus, sugar candy cannot claim the exemption allowed to 'sugar' ; nor can sewing thread claim the exemption in respect of 'yarn'. This argument of Mr. Dutt is also bound to fail because in the cited cases, the exemption was granted to 'sugar' and 'yarn' ; any other commodity could not, accordingly, claim exemption until it was established that it was identical with the exempted item. In the case before me, however, the exempted article-once the definition of 'manufacture' can be-legitimately put upon the first part of item No. 9 of the Schedule of the Act of 1944-is 'snuff', and the Commercial Tax Officer, as would appear from his order in annexure C to the petition, purports to tax the petitioner on the sale of ' snuff.' The Tax Officer assumes that the commodity sold by the petitioner is ' snuff', but he disallows the claim of exemption on the ground that 'snuff is not exempted from tax under the Bengal Finance (Sales Tax) Act.' Even in the affidavit-in-opposition, it is not urged that the petitioner cannot claim exemption because the commodity sold by him has ceased to be 'snuff' because other ingredients have been added to tobacco in the process of manufacture. The Commercial Tax Officer has sought to tax the sale of the petitioner's commodity as snuff, but on the wrong assumption of law, namely, that snuff does not come within the purview of Rule 3(28) of the rules under the Bengal Act.
18. Since, in my view, the Commercial Tax Officer is wrong in his interpretation of the taxing statute and the rules made thereunder, which exempt 'snuff', his demand has become ultra vires and without jurisdiction and also unconstitutional in so far as it affects the petitioner's fundamental right under Article 19(1)(g) of the Constitution by a levy which is unwarranted by law.
19. Petition No. 617 must therefore succeed and the impugned notices should be quashed ; the opposite parties should be restrained from enforcing the impugned notices enclosed in annexures D and E to the petition.
II. The position is not materially different in the other peti tion No. 618. In this case, the opposite parties have sought to apply Section 9 of the Central Sales Tax Act, 1956, read with Section 11(2) of the Bengal Act.
20. Section 7 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, laid down :-
It is hereby declared that the following goods, namely, sugar, tobacco, cotton, fabrics, rayon or artificial silk fabrics and woollen fabrics are of special importance in inter-State trade or commerce and every sales tax law of a State shall, in so far as it imposes or authorises the imposition of a tax on the sale or purchase of the declared goods, be subject as from the 1st day of April, 1958, to the restrictions and conditions specified in Section 15 of the Central Sales Tax Act, 1956.
21. Now, the conditions according to which only sales tax could be levied on any of the commodities specified in the foregoing Section (of which 'tobacco' is one), are those laid down in Section 15 of the Central Sales Tax Act. The reasoning by which I have held in the other case that 'snuff' is included in the word 'tobacco' in the foregoing section need not be reiterated. The only point left for determination is whether levy of sales tax of 5%, as in Section 5(1) of the Bengal Act became ultra vires as soon as the Act of 1957 came into force, because such rate was in excess of the 2% limit specified in Section 15(a) of the Central Sales Tax Act. This question has been elaborately dealt with by me in the case, Mahendra Pratap v. Commercial Tax Officer C.R. 427 (W) of 1962, and no useful purpose would be served by repeating those reasons herein, particularly when Mr. Dutt has not challenged them. Mr. Dutt has, in the instant case, confined himself to the meaning of tobacco and the question whether 'snuff' could be held as included in 'tobacco'. In Mahendra Pratap's case C. R. 427 (W) of 1962 I have held that with effect from the 1st of April, 1958,-the date specified in Section 7 of the Act of 1957 Section 5(1) of the Bengal Act, which was in excess of the limit of 2% laid down by the Central Act, became ultra vires and invalid, and remained to be so until that provision was amended by the West Bengal Act XIII of 1959. In respect of the period relevant in the instant case, therefore, the respondents had no power to tax snuff at 5%, according to the Bengal Act, as has been done in the instant case.
22. The assessment and demand notices in annexures B-D to the petition must accordingly be quashed and the opposite parties should be restrained from enforcing them.
23. In the result, the Rules in both the cases 617 and 618(W) of 1962 should be made absolute. The impugned notices, referred to earlier be quashed and the opposite parties be restrained from enforcing them against the petitioner. The petitioner will get a cost of 5 gold mohurs in each case. Let the petitioner be allowed to withdraw the security deposited in terms of the order of 7th January, 1963.