TaxTMI 
TaxTMI 
1984 (9) TMI 63
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....ning of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Sales Tax Act). The petitioners have been dealing in tobacco brought from outside the State of West Bengal, that is to say, tobacco leaf and tobacco paste popularly known as "gudaku" or "guraku" for use in teeth and also for hookah. 3. According to the petitioners, under Item 18 of Schedule I to the Sales Tax Act, tobacco for hookah in any form and under Rule 3) of the Bengal Sales Tax Rules, 1941 (hereinafter referred as the "Rules") the sale of tobacco as defined under the Central Excises and Salt Act, 1944 are deductible from gross turnover in calculating taxable turnover. Therefore, such gudaku being a tobacco product cannot be subject to tax, either under the Sales Tax Act as also under the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 (hereinafter referred to as the Entry Tax Act). 4. Mr. Gopal Chakraborty, the learned Senior Advocate appearing for the petitioners, contends that "gudaku" manufactured out of tabacco and having as its constituents lime, molasses, gerumati and some essence to give it flavour is covered by the expression "tobacco". He further arg....
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....ithin the meaning of manufactured tobacco. Therefore, he submits, there is no reason why gudaku used for teeth would not be construed as tobacco. 9. Mr. Chakraborty further submits that under the West Bengal Sales Tax Act, 1954 tobacco for hookah or teeth gums are not taxable under the said Act. He, however, points out that under Notification No. 3123-FT dated 15th July, 1975 the tooth-paste/dentifrice has been brought, to tax. But according to Mr. Chakraborty, the tobacco for hookah or teeth gums could never be brought within the meaning of tooth-paste and dentifrice. It is his submission that gudaku which may be used for cleansing teeth cannot be toothpaste or dentifrice within the meaning of the said West Bengal Sales Tax Act. 10. It is the case of the petitioners that the ingredients which constitute a tooth-paste are absent in gudaku. The petitioners state that according to the specification for tooth-paste as prescribed by the Indian Standards Institution the materials used in the manufacture of tooth-paste fall into the following categories-(a) polishing agents, (b) soap or detergent, (c) humectant, i.e. glycerol or sorbitol, (d) binding agent, (e) astrigen....
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....e Central Excises and Salt Act, 1944 from the levy of sales tax. 17. The Gujarat High Court observed that the expression "any form of tobacco, whether cured or not and whether manufactured or not" as given in the definition of "tobacco" in the Central Excises and Salt Act, 1944 should be given a liberal interpretation. Giving such interpretation the Gujarat High Court held in that case that the said "Ipco-dental creamy snuff" was tobacco and was therefore exempt from sales tax. 18. Regarding taxability of gudaku under the said Entry Act, Mr. Chakraborty's contention is that "gudaku" has been placed in Item 41(c) of the Schedule to the said Entry Tax Act which reads : "Tooth-paste or powder, guraku". The contention of Mr. Chakraborty is that tobacco is not specified article in the said Schedule and is not liable to tax and gudaku being a tobacco product should be exempted from the levy of tax. He also submits that gudaku not being a tooth-paste nor a tooth-powder as understood in the trade cannot be placed in the category of tooth-paste or tooth-powder under Item 41(c) of the said Schedule. 19. Mr. S.N. Dutta, the learned Advocate appearing for the respond....
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....ers in the writ petition that it is the statutory obligation of the respondents to suo motu revise the assessment or dispose of the application for revision. Mr. Dutta submits that the petitioners in fact have made application for suo motu revision to the relevant authorities being Annexure D to the petition at pages 45 and 58. In that view of the matter, he submits that this writ petition is not maintainable. 24. Mr. Dutta cites a decision of the Supreme Court in the case of Titaghur Paper Mills Co. Ltd. v. State of Orissa reported in A.T.R. 1983 S.C. 603. The Supreme Court observes in this case that it is now well recognised that where a right or liability is created by a statute which gives a special remedy for enforcing it, the remedy provided by that statute should be availed of. To this submission of Mr. Dutta, Mr. Chakraborty argues in reply that in the present case it is a question which concerns the construction of Item 19 of the First Schedule to the Central Excises and Salt Act, 1944 and also Rule 3(28) of the Bengal Sales Tax Rules, and other relevant provisions of the statutes. It is also his submission that no further investigation as to any fact need be made....
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....ng by hookah and also may be used for cleansing teeth. It cannot be said that gudaku if used for cleansing teeth will lose its character as tobacco. Taking into account the ingredients of gudaku, it cannot be said that the people familiar with tooth-paste or tooth-powder will take it as tooth-paste or tooth-powder. It must be construed in the sense in which they are understood in the trade by the dealer and the consumer. I cannot imagine that gudaku is understood in that trade by the dealer or the consumer as tooth-paste and nothing but tooth-paste. There are no materials placed before me in consideration of which I can come to a conclusion that gudaku can be taken as toothpaste or tooth-powder. Mr. Chakraborty submits, and in my view rightly, that occasional use of gudaku for cleansing teeth cannot make it a tooth-paste or dentifrice. In this particular case the test is whether gudaku is covered by the expression of "tobacco" as defined in Rule 3(28)(b) read with explanation of the Bengal Sales Tax Rules or not. If it is found that it comes within the definition of "tobacco", then this item is entitled to exemption from the levy of tax. 31. The Orissa High Court in the ca....