TaxTMI 
TaxTMI 
1991 (4) TMI 395
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.... and tuberculosis. The depot procures and supplies medicines and hospital appliances to Government hospitals and dispensaries in West Bengal and other States, and also supplies life-saving medicines at times of natural calamities like flood, earthquake, and drought. For such activities the depot also imports medicines, hospital appliances, etc., from outside West Bengal, which are notified commodities under section 8E of the 1954 Act. By reference to definitions of "dealer " and "sale price" in section 2(b) and 2(d) of the 1954 Act, the applicant's case is that the concepts of those terms are purely in a "commercial, trading, profit-motivated sense" which does not apply to the depot. The applicant further claims that he is a "reseller", according to the newly inserted section 2(ccc) of the 1954 Act and hence not a "dealer". Despite the fact that he is not a "dealer", the fourth respondent, i.e., the Commercial Tax Officer, allegedly forced the applicant to pay provisional taxes, whenever permit was granted to him for importing medicines, etc., from outside West Bengal. Allegedly, the applicant was compelled by respondents 1 to 4 to obtain certificate of registration, which is a nul....
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....82-83, the date of receipt of the notice being memo No. 2271 dated February 27, 1990, is March 5, 1990 and the amount of interest demanded is Rs. 15,81,148.35. In RN-109 of 1990 the assessment was for the year ending March 31, 1982 and the certificate case number is 197 ST (AL) of 1978-79. The date and number of the notice and date of receipt also being the same as in RN-108 of 1990, the variation is to the effect that the amount of interest was to be informed later. In RN-310 and 317 of 1990 the respective years of assessment are ending March 31, 1979 and March 31, 1980 and respective certificate case numbers are 229 and 230 ST (AL) of 1988-89. The date, number and date of receipt of the notices in both these cases are February 27, 1990, 2270 and March 5, 1990, respectively. The amounts demanded have not been specified in these notices. In RN-318 of 1990, the assessment year is March 31, 1983 but the notice is of the same number and date and similarly without stating any specified amount demanded, as in RN-316 and 317. 5.. The substance of the case of the respondents in all these cases may be stated thus. In annexure A to the application, the applicant has withheld the vital info....
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.... sum, according to a formula. By a supplementary affidavit in each case, the applicant filed a xerox copy of the inspection report of the depot for the year 1973-74, in which the following sentence occurs: ".......Today it is working as a public utility service department on no profit no loss basis...........". 7.. At the very outset, a preliminary point urged by Mr. D.C. Mukherjee, learned Advocate for the applicant, ought to be dealt with. Although this point was not taken earlier, he argued at the hearing that the dispute falls within the exclusive jurisdiction of the Supreme Court of India under article 131 of the Constitution. As soon as this point was urged, we had indicated to Mr. Mukherjee our readiness to consider any prayer for withdrawal of these applications for being presented to the Supreme Court under article 131. But, Mr. Mukherjee submitted all along that he had no instructions in this regard. Subsequent to the completion of arguments Mr. Mukherjee furnished a typed "gist of petitioner's submissions". At pages 3-4 (paragraph III) of that "gist" Mr. Mukherjee reiterated that he has no such instructions from the petitioner. An interesting facet of this submission i....
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...., a body like the Hindustan Steel Ltd. cannot be considered to be a 'State' for the purpose of article 131. (vi) Article 131 does not prescribe that a suit must be filed in the Supreme Court for the complete adjudication of the dispute envisaged therein or the passing of a decree capable of execution in the ordinary way as decrees of other courts are. The duty of the Supreme Court comes to an end as soon as the declaration of the right is made." 8.. When the above ratio is applied, it becomes clear that the present dispute is not one contemplated by article 131 in the light of items (i), (ii), and (iv) of the ratio. The dispute arises from notices issued by the Certificate Officer to the depot regarding recovery of assessed dues of certain periods and/or interest. Thus, the dispute does not arise in the context of the Constitution or the federalism set up thereby. In these cases, the Union of India and the State of West Bengal do not fare as parties qua the federating union and a constituent unit respectively. Here, a particular office of the Government of India (without any linkage with the federal structure) is the applicant. Similar is the case with the first respondent which ....
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....y, (i) the prayer for quashing a notice demanding excise duty does not raise a dispute of the nature contemplated in article 131 (in the instant cases too, the prayer is to quash a notice demanding arrears of sales tax and/or interest), and (ii) the Central excise authorities and even the Central Government as the statutory revisional authority are not synonymous with the Union of India for the purpose of article 131 (in the present cases also, the Deputy Assistant Director-General of the Government Medical Stores and those of the respondents who are State Government officials are not synonymous with the Union of India and the State, respectively). The facts in the cases of State of Rajasthan v. Union of India AIR 1977 SC 1361 and State of Karnataka v. Union of India AIR 1978 SC 68 were of an entirely different nature. Although particularly in the first case, the decision of the five-Judge Bench in AIR 1970 SC 1446 (State of Bihar v. Union of India) was subjected to some amount of critical scrutiny, it does not appear to us that those two decisions either dissented from or overruled the relevant ratio of AIR 1970 SC 1446 (State of Bihar v. Union of India) or of AIR 1977 SC 127 (Uni....
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....ations. Mr. Mukherjee appearing for the applicant contended that applicant is a "reseller" within the meaning of section 2(ccc) which runs as follows: "'reseller" means any person who sells notified commodities specified under section 8E but is not a dealer under clause (b);" So, had clause (ccc) been otherwise applicable to the case of the applicant, two conditions were to be satisfied, namely, (i) the sales should be of notified commodities specified under section 8E and (ii) the person making such sales must not be a dealer under section 2(b). If these two conditions are or any one of them is not satisfied, section 2(ccc) cannot apply even to a case which involves assessment for a period commencing on or after April 1, 1984. 10.. During the relevant years, the definition of "dealer" in section 2(b) of the 1954 Act run as follows: "'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; Explanation.-Where notified commodities are brought into West Bengal from any place outside it, the per....
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....e for the applicant, contended that the reference to "trade practice" in respect of cash discount in the above definition indicates that a dealer must be engaged in a trade. It is to be noted that this concept is significantly absent from the definition of "dealer". It is clear that "trade practice" is mentioned simply with reference to cash discount. In other words, "cash discount" is to be understood in the meaning in which it is known in trade practice. It has no further applicability either to the definition of "dealer" or that of "sale price". We are, therefore, unable to agree with Mr. Mukherjee. 12.. Mr. Mukherjee also contended that there being no definition of "business" in the 1954 Act, that term is to be understood in the common man's sense which includes profit-motive. It is true, the 1954 Act does not define "business". It is equally true that the Act does not also use the term "business" in the definition of "dealer", in contrast, see the definition of "dealer" in the Bengal Finance (Sales Tax) Act, 1941, which uses the term "business". Therefore, a dealer under the 1954 Act may or may not carry on a business, which is wholly irrelevant to the definition of "dealer".....
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....55. The 1955 amendment of the definition of "dealer" in the Punjab Act had rendered profit-motive irrelevant. In the relevant definition of "dealer" under the West Bengal Sales Tax Act, 1954, the concepts of trade, business, and profit-motive are unknown and irrelevant. Its requirements are simple and clear. To be a dealer, one must sell a notified commodity (notified under section 25 of the Act so that the Act applies to it) either manufactured, made or processed by him in West Bengal or brought by him into West Bengal from outside the State for the purpose of sale in West Bengal. There is no scope for importing a further condition into the definition that the sale should also be in the course of a trade or business or with a profit-motive. Therefore [1977] 39 STC 114 (P&H) (Government Medical Store Depot v. State of Haryana) is clearly applicable to these cases, as we are in agreement with its ratio. On behalf of the applicant, Mr. Mukherjee relied on Hindustan Steel Ltd. v. State of Orissa [1970] 25 STC 211 (SC) and contended that there is no "sale" and the applicant is not a "dealer", for the reason that the supplies of medicines and hospital appliances (said to be commodities ....
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.... noticed the definition of "dealer" in section 2(b) of the 1954 Act. Nothing has been shown to us to conclude that the said definition should not apply to the applicant. The term "sale" having not been defined in the 1954 Act, it must be understood in the meaning given to it by the Sale of Goods Act, 1930, (see [1963] 14 STC 316 (SC); AIR 1963 SC 1207 (New India Sugar Mills Ltd. v. Commissioner of Sales Tax), [1970] 26 STC 241 (SC); AIR 1970 SC 1212 at 1216 (Joint Commercial Tax Officer v. Young Men's Indian Association) and [1958] 9 STC 353 (SC); [1959] SCR 379 [State of Madras v. Gannon Dunkerley & Co. (Madras) Ltd.]. In our considered view, the applicant is certainly a "dealer" within the meaning of section 2(b) of the 1954 Act, as he sells notified commodities brought by him from outside West Bengal for the purpose of sale in West Bengal. This, of course, is true about the third category of the applicant's activity already discussed. 14.. Mr. D. Majumdar pointed out that the assessments to tax for the years ending March, 1974, 1975, 1981 and 1982 have not been challenged by the applicant. Mr. Mukherjee, for the applicant, contended that the grant of registration certificate as....
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...., the other contention of Mr. Mukherjee that on that ground the assessment orders, demand notices and certificate proceedings are ab initio void, cannot be entertained. 15.. In the course of reply Mr. Mukherjee, for the applicant, for the first time argued that the applicant is entitled to exemption and/or concession under section 4AA of the 1954 Act. Mr. D. Majumdar, appearing for the respondents, rightly objected to the raising of this question at that stage. This should not detain us, also because we cannot decide this question which was not agitated before the assessing officer and/or by way of other statutory remedies, as this involves ascertainment of certain facts and fulfilment of certain conditions. 16.. It was urged on behalf of the applicant that charging of interest under section 8A is bad, as that section seeking to levy interest at a rate of 2 per cent per month, i.e., at a much higher rate than that permissible under the Interest Act, 1978, is ultra vires article 254 of the Constitution and ultra vires the Interest Act itself. The provisions of the Interest Act, 1978, which is a Central Act, lay down the general law of interest which becomes applicable in the absen....
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....a [1990] 79 STC 437 (SC). In that case, sales of food preparations effected by the railway catering were held to be immune from sales tax levied by the State under article 285(1) on the ground that the railway catering and the food articles sold were properties of the Union of India. Mr. Majumdar relied on In re: Sea Customs Act, 1878, Section 20(2) reported in AIR 1963 SC 1760 and In re: The Special Courts Bill, 1978, reported in AIR 1979 SC 478. Mr. Mukherjee, for the applicant, sought to distinguish these decisions on the grounds (i) that the decisions were not rendered in course of adjudication of any dispute but were advisory opinion and (ii) the West Bengal Sales Tax Act, 1954, and the Bengal Public Demands Recovery Act, 1913, did not come up for consideration. In spite of the fact that both these contentions of Mr. Mukherjee are true, we are of the opinion that the ratio of AIR 1963 SC 1760 [In re: Sea Customs Act, 1878, section 20(2)] is applicable to these cases, because of AIR 1979 SC 478 (The Special Courts Bill, 1978, In re:) in which the court laid down that though it is always open to the Supreme Court to re-examine the question already decided by it and to overrule, ....
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....tive. 18.. That being the position, the question of refund does not arise. So also, the question of quashing the certificate proceedings does not arise. Mr. Mukherjee, learned Advocate for the applicant, argued that his attempts to obtain fresh certified copies (previous copies being untraceable) of assessment orders and/or demand notices having proved futile, the applicant is unable to adopt statutory remedies like appeal. He submitted that if the applicant succeeds in preferring appeal, assessments may be subjected to scrutiny and exemptions/concessions, if any, under section 4AA may be availed of, provided not already allowed. As regards limitation for appeal, Mr. Mukherjee wanted to rely on [1987] 66 STC 228 (SC); AIR 1987 SC 1353 (Collector, Land Acquisition v. Mst. Katiji). We feel that if certified copies have been already applied for or are applied for afresh, the respondents should issue the same subject to compliance of relevant rules/provisions. If the applicant chooses to adopt any statutory remedy, it will be subject to the relevant law of limitation and other relevant statutory provisions/rules. But the question of condonation of delay, if any, cannot be decided by....