Amiya Kumar Mookerji, J.
1. In this rule the petitioners pray for a declaration that the West Bengal Taxation Laws (Amendment) Act, 1972, in so far as and to the extent to which the same seeks to withdraw the exemptions in entry 25 of Schedule I to the Bengal Finance (Sales Tax) Act, 1941, is ultra vires and should be struck down.
2. Petitioner No. 1 is an existing company and petitioner No. 2 is the shareholder and Senior Executive Officer of petitioner No. 1. It is the case of the petitioners that under the provisions contained in Rules 4 and 5 of the West Bengal Excise Foreign Liquor (Licence Fee) Rules, 1942, an annual fee is payable in advance on all sales of potable liquor including India-made foreign liquor and beer. In addition, an additional licence fee, popularly known as literage fee, is imposed and collected on all sales of potable liquor including India-made foreign liquor and beer. Such impositions are essentially in the nature of sales tax as the same are related to and/or based on the sales of liquor as aforesaid. The imposition of additional fee or literage fee thereunder is virtually an imposition of sales tax under the impugned Acts and amounts to double taxation on the sale of the same commodity. On or about the year 1972, the West Bengal Taxation Laws (Amendment) Act, 1972, was enacted. The same came into force on and from 7th August, 1972. Under the said Act, the provisions in regard to the exemption under entry 25 to the First Schedule of the said Act of 1941 was omitted and as such the exemption allowed to the petitioners for sale of spirits and liquors was no longer available to the petitioners. It is contended by the petitioners that the said omission is bad, illegal and ultra vires. By reason of the provisions of Sections 20, 43 and 44A of the Bengal Excise Act, 1909, there is no element of permanency and/or continuity in the trade carried on by the petitioners. The licence issued by the excise department in regard to the trade carried on by the petitioners is renewed for a specified period and the appropriate licensing authority has the option either to renew the licence or to cancel the same and, as such, the petitioners cannot be treated as dealers within the meaning of the Bengal Finance (Sales Tax) Act, 1941, or the West Bengal Taxation Laws (Amendment) Act, 1972. According to the petitioners, the expression 'dealer' under the said West Bengal Act of 1972 imputes and/or connotes an element of permanency and/or continuance and the Act used the expression 'carries on' deliberately. It is also stated by the petitioners that Schedule II of the said Act of 1972 lays down the description of goods on which such purported sales tax are imposed. Item 37 of the said Schedule II of the said Act of 1972 provides as follows :
Potable foreign liquor including medicated wine and brandy, whisky, gin, rum, liqueur, cordials and other similar potable alcoholic preparations containing India-made spirit and India-made rectified spirit intended for the manufacture of brandy, whisky, gin, rum, liqueur and cordials and other similar potable alcoholic preparations.
3. According to the petitioners, the statutory definition of the goods mentioned in Schedule II to the said impugned Act of 1972 does not include beer as would be evident from the statutory definition of beer and spirit in terms of Sections 2(1) and 2(19) of the Bengal Excise Act, 1909. The petitioners being aggrieved moved this court in an application under Article 226 of the Constitution and obtained the present rule.
4. Mr. Banerjee appearing on behalf of the petitioners contended that the authority in imposing sales tax by the impugned Act of 1972 failed to take into consideration that under Rules 4 and 5 of the West Bengal Excise Foreign Liquor (Licence Fee) Rules, 1942, the additional fee has been imposed by the excise authorities upon the sale of foreign liquor and, that being so, the impugned sales tax under the amending Act of 1972 amounts to double taxation on the sale of the same commodity.
5. Under Rule 5 of the Rules, the holder of a licence for the sale of foreign liquor under items (1), (8) and (10) to the table below Rule 4 shall pay, in addition to the annual lump fee mentioned opposite the said items, fee calculated on the assessable quantity at the rates specified in the table. In the table, kinds of liquor have been mentioned and rate per bulk gallon varies from Rs. 2-12M) to Rs. 42. In my view, the additional fee on the sale of foreign liquor cannot be equated with the sales tax under the West Bengal Taxation Laws (Amendment) Act, 1972.
6. It is next contended that there is no element of permanency with respect to the petitioners' trade as it depends upon the issuance of licence by respondent No. 3 in regard to the trade carried on by the petitioners and, as such, the petitioners cannot be treated as dealers.
7. This contention is also, in my view, without any substance. Under the Sales Tax Act a dealer has been denned as a person who carries on the business of selling goods in West Bengal. So, no element of permanency or continuance in the trade is of consideration to be a dealer within the meaning of the Act.
8. Lastly, it is contended that under item 37 of Schedule II of the 1972 Act 'beer' has not been included. Beer has been denned under Section 2(1), which is as follows:
(1) 'beer' includes ale, stout, porter and all other fermented liquor whether solidified or not made from malt and such other substances as the State Government may by notification specify in this behalf....
9. According to Mr. Banerjee, no sales tax can be imposed upon the sale of beer as it has not been specifically included in item 37 of the said schedule.
10. Item 37 includes liquor. Liquor has been defined in Section 2(14) of the Bengal Excise Act, 1909, which includes beer. That being so, in my view, sales tax can be imposed upon beer also.
11. As all the points raised by the petitioners fail,, this rule is discharged.
12. There will be no order for costs.
C.R. No. 4681(W) of 1974
13 As the identical points are involved in this rule, the above order shall govern this rule also.
14. Lastly, it is stated by Mr. Banerjee that there is an injunction granted against the petitioners in respect of another matter by which there has been injunction upon the petitioners not to charge and/or assess or demand sales tax on either of the purchase or sale of country spirit. I make it clear, that the injunction shall continue only with respect to country spirit, but with respect to other liquors as stated in item 37 of Schedule II of the Act of 1972, the petitioners shall be liable to pay sales tax and, as such, they would be competent to realise the said tax from the customers.