CENTRAL POTTERIES LIMITED NAGPUR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) The sole point for determination in this appeal which is directed against the Judgment of the High Court of Bombay, is whether the appellant is not liable to pay tax under the provisions of the Central Provinces and Berar Sales Tax Act, 1947 (Act 21 of 1947), on the ground alleged that it had not been validly registered as a dealer under S. 8 of the Act. The facts bearing on his contention are that the Central Provinces and Berar Sales Tax Act, hereinafter referred to as "the Act", received the assent of the Governor-General on May 23, 1947 and came into force on June 1, 1947. On May 27, 1947 a notification No. 601 was issued by the Provincial Government publishing draft rules which it "proposed to make, in exercise of the powers conferred by S. 28 of the Act" and on August 15, 1947, the rules as finally adopted were published. In the meantime two other notifications Nos. 597 and 599 had been issued on May 27, 1947, No. 597 under S. 8 of the Act fixing August 15, 1947 as "the date by or on which all dealers liable to pay tax under the said Act shall get themselves registered" and No. 599 under S. 3 of the Act appointing the District Excise Officers as the Sales Tax Officers for "receiving applications for registration and for issuing certificates under S. 8 of the Act."

(2.) The appellant is a Company carrying on business in the manufacture and sale of potteries and chinaware in Nagpur. On July 2, 1947 it presented, pursuant to the notifications aforesaid, an application to the Sales Tax Officer for registering itself as a dealer under the Act. On this application a certificate was issued on July 21, 1947 and actually delivered to the appellant on September 13, 1947. Thereafter, the appellant had been duly submitting returns as provided in the Act and assessments were made thereon and taxes paid from the period commencing from June 1, 1947 to June 30, 1951. Some time thereafter the idea dawned on the appellant that the proceedings taken by the respondents under the Act were unauthorised, that the assessment were illegal and that in consequence it was entitled to refund of the amounts paid as sales tax. And so, on December 18, 1951, it instituted the suit out of which the present appeal arises claiming a refund of Rs. 6,650-11-9 being the amount paid for sales tax during the period June 1, 1947 to June 30, 1951 and a sum of Rs. 2,000 as damages, in all Rs. 8,650-11-9. Though a number of grounds were put forward in support of the claim, it is necessary now to deal with only one of them, and that is that the Sales Tax Officer who issued the registration certificate to the appellant on July 21, 1947 was not authorised to do so under the Act and that in consequence all the assessments and recoveries of tax were illegal and void. The basis for this contention is that S. 3(1) of the Act confers authority on the State Government to appoint any person to be a Commissioner of Sales Tax, and "such other persons under any prescribed designations" to assist him as it thinks fit. By notification No. 595 dated May 27, 1947 the Government appointed in exercise of the powers conferred by S. 3(1) the Excise Commissioner, Central Provinces and Berar to be the Commissioner of Sales Tax, Central Provinces and Berar. The validity of this notification is not now in question. The attack is on the notification No. 599 dated May 27, 1947 whereby the Government acting under S. 3 of the Act directed that the District Excise Officers in charge of districts shall be the Sales Tax Officers for purpose of registration of certificates under S. 8 of the Act. It is said that S. 3(1) authorises the Government to appoint "other persons under any prescribed designations", that the word "prescribed" is defined in S. 2(e) as meaning "prescribed" by rules made under this Act" and that as the rules finally came into force only on August 15, 1947 the appointment of District Excise Officers as Sales Tax Officers for the purpose of S. 8 on May 27, 1947 was in contravention of S. 3(1) and that in consequence the issue of registration certificate on July 21, 1947 by an officer appointed under the notification was void.

(3.) The Civil Judge of Nagpur who tried the suit held that as the certificate of registration was delivered to the appellant on September 13, 1947 i.e. after the rules had been finally published on August 15, 1947, the irregularity, if any, in the issue of registration certificate on July 21, 1947 had been cured. He also further held that the liability of the appellant to pay sales tax was not affected by the invalidity of the registration under S. 8. In the result he dismissed the suit with costs.