1995 (2) TMI 431

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....ons of the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 (hereinafter referred to as "the Act") and under Taxes on Entry of Goods into Calcutta Metropolitan Area Rules, 1970 (hereinafter called "the Rules"), the applicant is liable to pay tax on the entry of goods into Calcutta Metropolitan Area on the basis of the value of such goods. The value is determined on the basis of cost price of such goods as is given in the bill or invoice or consignment note issued by the consignor or documents of like nature, shipping duties, insurance, excise duty and sales tax. No tax under the Act is payable on the freight paid for carriage of the goods. Till July 29, 1992, the applicant was regularly paying entry tax under the Act on entry of goods into Calcutta Metropolitan Area on the basis of the value determined by the respondent No. 1 and there was no dispute. On or about August 1, 1992, the applicant received a letter from the respondent No. 1 (annexure A) wherein it was alleged that more than 50 per cent of freight was not added to the invoice value in respect of "Nirma" powder and "Nirma" detergent cake consigned from Ahmedabad. It was further alleged in the said notice ....

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....rther for refund of the amount of tax paid on freight for carriage of the goods. 5.. The respondent No. 2 has filed an affidavit-in-opposition on behalf of the respondents and according to him, the scheme of the Act is such as to levy entry tax on the saleable value of the specified goods in the Calcutta Metropolitan Area and there is no dispute that rule 12 of the Rules has been prescribed for determination of such value. Rule 12 provides for the procedure of determination of value for the purpose of assessment which has to be done under section 14 of the Act read with rule 16 of the Rules. The said rule, inter alia, includes the cost price of the goods as given in the bill or invoice or consignment note. The "cost" here in common parlance means the "price" at which the article in question could be purchased. It does not contemplate any other cost, i.e., production cost, manufacturing cost, etc. Where a dealer in case of stock transfer fails to furnish the "cost", the valuation is required to be made under rule 12(2) of the approximate saleable value of such goods in the Calcutta Metropolitan Area to the best of judgment of the concerned assessing authority. Freight for transpor....

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....tion, to rule 12(1) of the Rules wherein it is indicated that every dealer shall declare the value in a declaration in form IV referred to in rule 16 and such value shall include (a) cost price of such goods as given in the bill or invoice or consignment note issued by the consignor or document of like nature, (b) shipping duty, (c) insurance, (d) excise duty and (e) sales tax. 8.. Mr. Chakraborty argued that the word "include" should be taken to be equivalent to "means and includes" and from this it would be seen that the list of items to be furnished in the declaration in form IV was exhaustive and not indicative. He referred, in this connection, to the judgment of the Supreme Court in the case of South Gujarat Roofing Tiles Manufacturers Association v. State of Gujarat AIR 1977 SC 90, wherein it has been held by the Supreme Court that "though 'include' is generally used in interpretation clauses as a word of enlargement, in some cases the context might suggest a different intention". Mr. Chakraborty was of the view that in the instant case, the word "include" has been used in the sense of "means" and it is not a word of extension but limitation and it is exhaustive of the items....

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...............checkpost, excise duty if not already paid at the time of removal of the goods from the factory.............., wholesaler's and retailer's profits and sales tax". In view of this definitive judgment of the Supreme Court, the application has no legs to stand on. Mr. Bose also referred to the judgment of the Calcutta High Court in the case of Hindustan Gas and Industries Limited v. Entry Tax Officer, Calcutta Jetty, where it was held that there can be little doubt that in the general sense of the term "value" will include freight charge and customs duty. If an importer sells the goods, it was held, he will not sell at a price exclusive of freight charge and customs duty. If he does so he will be selling at a loss. The market value is decided on the basis of hypothetical sale by a willing seller and a willing buyer and no seller will normally sell his goods at a loss. In ordinary course of business, therefore, value would include freight and customs duty. In view of these two judgments, Mr. Bose argued, the applicant does not have any case and the same should be rejected. 10.. Mr. Chakraborty argued that the decision in the Supreme Court case did not bar an examination of ....