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Om Prakash Gupta Vs. the Commercial Tax Officer and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtKolkata High Court
Decided On
Case NumberAppeal from Original Order No. 471 of 1966
Judge
Reported in[1976]38STC73(Cal)
AppellantOm Prakash Gupta
RespondentThe Commercial Tax Officer and ors.
Appellant AdvocateP. Burman and ;Priti Roy, Advs.
Respondent AdvocateSamarendra Nath Dutta, Adv.
DispositionAppeal dismissed
Cases ReferredNilgiri Ceylon Tea Supplying Co. v. State of Bombay
Excerpt:
- .....letters patent, the question that falls for determination is as to whether the appellant who makes camphor cubes locally out of camphor granules and sells such cubes in the local market can be said to be a dealer within the meaning of section 2(b) of the west bengal sales tax act, 1954 (hereinafter referred to as the act of 1954). the appellant, as the proprietor of the firm m/s. s.d. gupta & co., carries on business in camphor cubes. he purchases camphor in granules and makes camphor cubes out of such granules with the help of a power operated machine and sells such camphor cubes in the market with distinctive brand names of 'elephant, moon and arati'. originally, he had himself registered as a dealer under section 7 of the bengal finance (sales tax) act, 1941 (hereinafter referred to.....
Judgment:

Anil K. Sen, J.

1. In this appeal under clause 15 of the Letters Patent, the question that falls for determination is as to whether the appellant who makes camphor cubes locally out of camphor granules and sells such cubes in the local market can be said to be a dealer within the meaning of Section 2(b) of the West Bengal Sales Tax Act, 1954 (hereinafter referred to as the Act of 1954). The appellant, as the proprietor of the firm M/s. S.D. Gupta & Co., carries on business in camphor cubes. He purchases camphor in granules and makes camphor cubes out of such granules with the help of a power operated machine and sells such camphor cubes in the market with distinctive brand names of 'Elephant, Moon and Arati'. Originally, he had himself registered as a dealer under Section 7 of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act of 1941). On his business turnover for the period November, 1955, to 30th June, 1958, the appellant was assessed to sales tax under Section 11(2) of the Act of 1941. Such assessment was made on 9th February, 1959. The appellant, however, objected to such assessment on the plea that he deals exclusively in camphor, which is a drug as defined by the Indian Drugs Act and, as such, the Act of 1941 would have no application. Obviously, the appellant took shelter under the provisions of Section 23 of the Act of 1954, in view of the fact that drug as defined by the Indian Drugs Act was a notified commodity being notified as such under the provisions of Section 25 of the Act of 1954. This objection on behalf of the appellant to the assessment under the Act of 1941 prevailed with the Appellate Tribunal, and the Assistant Commissioner, Commercial Taxes, by an order dated 21st April, 1960, held that the petitioner had no liability to pay any tax under the Act of 1941 so long as his business is restricted to dealings in camphor tablets or camphor, which is a medicine and, as such, is liable to be taxed under the Act of 1954. The Assistant Commissioner further directed cancellation of the appellant's registration under the Act of 1941.

2. Shortly thereafter, on 2nd May, 1960, the Commercial Tax Officer, Jorasanko Charge, issued a notice calling upon the appellant to show cause why he should not be assessed under Section 9(3) of the Act of 1954. The appellant this time raised an objection that he was not a dealer within the meaning of Section 2(b) of the Act of 1954 and, as such, is not liable to any tax under the provisions thereof. The objection so raised was overruled by the Commercial Tax Officer, who assessed the appellant under Section 9(3)(iii) of the Act of 1954 for the period 1st August, 1956, to 2nd May, 1960, and further imposed a penalty of Rs. 100 for the appellant's failure to get himself registered. The appellant preferred an appeal under Section 12 of the Act of 1954 and the Assistant Commissioner, Commercial Taxes, overruled the appellant's plea that he was not a dealer within the meaning of Section 2(b) of the Act of 1954 and, as such, had no liability to pay any tax under the provisions thereof. But the Assistant Commissioner allowed the appeal on another point and directed reassessment. In overruling the appellant's claim that he was not a dealer, the Appellate Commissioner held :

Although I agree that the petitioner did not manufacture a new thing, but they can be regarded as a processor ; the petitioner processed camphor granules into camphor cubes and sold the ultimate products under their distinct brand. Under the West Bengal Sales Tax Act, if a person sells any notified commodity processed by him in West Bengal, he becomes a dealer and, in this aspect, the petitioner can be rightly considered as a dealer for the purpose of the West Bengal Sales Tax Act, 1954.

3. Against the aforesaid order dated 26th July, 1961, of the Assistant Commissioner, the appellant preferred a second appeal, which came to be disposed of by the Additional Commissioner, Commercial Taxes. The Additional Commissioner affirmed the view taken by the Assistant Commissioner in holding the appellant to be a dealer within the meaning of Section 2(b) of the Act of 1954 and, as such, by his order dated 26th June, 1962, dismissed the appeal and confirmed the order of the Assistant Commissioner.

4. Feeling aggrieved by the aforesaid orders dated 6th January, 1961, 26th July, 1961, and 26th June, 1962, passed respectively by the Commercial Tax Officer, the Assistant Commissioner and the Additional Commissioner, the appellant moved this court under Article 226 of the Constitution and obtained the rule being Civil Rule No. 749(W) of 1962 out of which the above appeal arises. In this rule, the appellant raised several points in support of his claim that he has no liability to pay any tax under the provisions of the Act of 1954, including the plea, which had been overruled concurrently by the Tribunals below to the effect that he is not a dealer within the meaning of Section 2(b) of the Act of 1954. The appellant's claims so raised were overruled by the learned Judge in the trial court, who, for reasons given, affirmed the view taken by the Tribunals below that the appellant was a dealer within the meaning of Section 2(b) of the Act of 1954 and, as such, had been rightly held to be liable to taxation under the provisions of the said Act. Aggrieved by the said decision of the learned Judge in the trial court, the appellant has preferred the present appeal.

5. The appeal is being contested by the respondents.

6. Mr. Burman, appearing in support of this appeal, has strongly contended that the appellant does not answer the description of a dealer as defined in Section 2(b) of the Act of 1954, and that the learned Judge in the trial court misconstrued the said definition clause in holding that the appellant is a dealer. Mr. Burman has not disputed the nature of the business carried on by the appellant, as indicated hereinbefore. According to him, however, the appellant carrying on such a business does not constitute himself a dealer within the meaning of Section 2(b) of the Act of 1954. Section 2(b) is in the following terms :

'Dealer' means any person who sells notified commodities manufactured, made or processed by him in West Bengal, or brought by him into West Bengal from any place outside West Bengal for the purpose of sale in West Bengal, and includes Government.

7. The appellant, upon his own admission, purchases camphor granules and makes camphor cubes out of them for selling them under distinct brand names of his own. This conversion is made in West Bengal and is made obviously through a mechanical process and we find no reason why we should not accept the view taken by the learned Judge in the trial court that the appellant thereby processes the commodity, viz., camphor in West Bengal for the purpose of selling it locally and, as such, Section 2(b) is attracted. Mr. Burman's first contention that such conversion notwithstanding, when the camphor remains the camphor and is sold as such, it cannot be said to have been processed by the appellant, is difficult to accept. Admittedly, the commodity undergoes a change when the granules are made into cubes of a specific size, weight and type for being sold with a distinctive brand name and when it is so done with the help of a machine, there is no reason why it should not be held that the appellant had processed the thing before putting it to sale. It is not necessary that, in order to be processed, the thing must change its intrinsic character. The term 'process' means, according to the Shorter Oxford English Dictionary, 'a continuous and regular action or succession of actions, taking place or carried on in a definite manner ; a continuous (natural or artificial) operation or series of operations'. Beyond doubt the appellant undertakes such an action in making the camphor cubes out of camphor granules and, as such, must be said to have been processing the thing for the purpose of putting them up for sale. In our view, the learned Judge in the trial court was perfectly right in his conclusion that the activity contemplated by the word 'process' is of a general character requiring only continuous or regular action or succession of actions leading to the accomplishment of some results but it is not one of the requisites that the activity should involve some operation on some material in order to convert the same to some other stuff. Such being the position we are unable to accept the first contention raised by Mr. Burman. Mr. Burman has secondly contended that the term 'processed' in Section 2(b) must be read in its context to mean processed for manufacturing a new and distinctive commodity and not merely changing granules into cubes or cubes into granules or cubes into powder. So construed, according to Mr. Burman, when the appellant was not manufacturing any new or distinct commodity through the process undertaken by him, it cannot be said that thereby he becomes a dealer within the meaning of Section 2(b) of the Act of 1954. Strong reliance has been placed by Mr. Burman on the concurrent findings of the Tribunals below to the effect that the appellant in his establishment was not manufacturing any new thing. Relying on such findings, Mr. Burman contends that the camphor purchased in granules remains the camphor after the process undertaken by the appellant; they are made into cubes which when crushed will again become either powder or granule, the thing remaining the same, viz., the camphor. It would, however, be difficult to accept such a construction of Section 2(b) of the Act of 1954. Such construction would entail giving a restrictive meaning to the term 'process' to mean process for manufacturing ; such a restricted meaning does not flow from the language used by the legislature. Such a construction of the term 'process' as used in Section 2(b) would not be in consonance with the context either. Anything processed for manufacture would naturally mean 'manufacture', earlier used in the clause itself, and to accept the construction contended for by Mr. Burman would render the term wholly superfluous. Therefore, it cannot be said that the context in which the term 'process' has been used calls for any restrictive interpretation suggested by Mr. Burman. On the other hand, the definition clause is in wide terms and it speaks of manufacture, making or processing in the alternative and not one as ancillary to the other. This being the position, we are in agreement with the learned Judge in the trial court that the term 'process' in Section 2(b) should be interpreted in its ordinary and general sense. Acceptance of a construction contended for by Mr. Burman would be an act of misconstruction, which neither follows from the language nor from the context. In this view, the second contention raised by Mr. Burman is overruled.

8. Mr. Burman had relied on a number of decisions in the cases of Pachiappa Chettiar and Bros. v. State of Madras [1962] 13 S.T.C. 202, Deputy Commissioner (C.T.), Coimbatore Division v. Abdul Shukoor Sahib & Co. [1963] 14 S.T.C. 670, Madanlal Khaitan v. Commercial Tax Officer (1972) 76 C.W.N. 623., J.P. Tulshan v. Manjula Tulshan (1975) 79 C.W.N. 543. and Nilgiri Ceylon Tea Supplying Co. v. State of Bombay [1959] 10 S.T.C. 500. We have carefully considered the decisions so relied on by Mr. Burman. But, in our opinion, none of these cases help the appellant to sustain his claim in the present appeal. In our opinion, none of these cases barring the last one has got any real bearing on the point under consideration in this appeal and, so far as the last one is concerned, the same is distinguishable on facts. In Nilgiri Ceylon Tea Supplying Co. v. State of Bombay [1959] 10 S.T.C. 500., the point which arose for consideration was whether when the assessee sells tea after mixing teas of different varieties in appropriate proportion for the purpose of blending, it can be said that he was undertaking any processing within the meaning of the relevant statutory provisions then under consideration. The court held that the assessee was not undertaking any processing by merely mixing two varieties of tea while selling them. Such an act is widely different from the acts undertaken by the appellant now before us, who through a mechanical process makes camphor cubes out of camphor granules for selling such cubes with a distinctive brand name of its own. Here the thing undergoes a mechanical process before it acquires the distinctive form for being sold with a distinctive brand name of its own. In this view, the decision in Nilgiri Ceylon Tea Supplying Co. v. State of Bombay [1959] 10 S.T.C. 500. does not, in our opinion, help the appellant in any manner.

9. Lastly, Mr. Burman wanted to contend, though not without some hesitation, that the camphor not being a notified commodity the appellant could have no liability under the provisions of the Act of 1954. Though such a contention was sought to be raised before the learned Judge in the trial court, that was never the defence taken by the appellant before the Tribunals below. Obviously, such a defence could not be raised by him in view of his own objection raised in the proceeding for assessment under the provisions of the Act of 1941. We have pointed out hereinbefore that when the appellant was sought to be taxed under the provisions of the Act of 1941 he raised a specific defence that he deals in drug, a notified commodity and, as such, the Act of 1941 could have no application. Having had the said assessment proceeding quashed on such a specific defence before the Appellate Tribunal, it is no longer open, in our view, to the appellant now to contend that he is not dealing with a notified commodity. Moreover, it is not in dispute that 'drug' is a notified commodity, being so notified under Section 25 of the West Bengal Sales Tax Act, 1954, and camphor, in view of its use and action on the British Pharmacopoeia, cannot but be considered to be a drug. In this view, the last point raised by Mr. Burman fails and is overruled.

10. All the points raised in support of this appeal fails for reasons given. The appeal fails and is dismissed. There will be no order as to costs.

M.N. Roy, J.

11. I agree


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