PARLE BISCUITS P LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) Appellant (hereinafter referred to as dealer) calls in question legality of the judgment rendered by Division Bench of the Patna High Court holding that notification S.O. 154, dated 28.1.1985 issued under proviso to Section 13(1) of the Bihar Finance Act, 1981 (in short the Act) in relation to sale and purchase of packing materials, is applicable to the appellant, and Section 13(1)(e) of the Act inserted by Bihar Finance Amendment Act, 1985 (in short Amendment Act) w.e.f. 1.8.1985 did not render it inapplicable.

(2.) The background facts necessary for disposal of the appeal essentially are as follows:

(3.) It is a manufacturer of biscuits and started its manufacturing operation in the State of Bihar w.e.f. 1.4.2002. According to it, Parle Products Limited was its predecessor who was given benefit of concessional rate of sale tax of 4% on purchase of C.B. Boxes (also known as cardboard box or corrugated box) used for packing. The benefit of the concessional rate was given under Section 13(1) of the Act. However, it has been denied the benefit and has been asked to pay sales tax @ 10% on purchase of C.B. Boxes used for packing. The appellant had also applied to the Deputy Commissioner, Commercial Tax, Patna city, Patna praying for inclusion of packing materials made out of paper in column 13 of the Registration Certificate. The same was denied by the Deputy Commissioner by order dated 7.4.2003. Earlier packing material were exempted from sales tax as its sale price was not included in the "taxable turnover" as defined under Section 21(1)(c) of the Act. The said provision was amended w.e.f. 1.8.1985 and the provision with regard to non-inclusion of sale price on account of sale of packing materials in the taxable turnover was deleted. Section 13(1) of the Act was amended by adding Clause (e) which provided for concessional rate of tax with regard to sale and purchase by registered dealer of goods specified in the registration certificate issued under Section 14 of the Act, as required by him in or for packing of goods which he sells. As noted above, appellant applied for inclusion of all kinds of packing materials including packing materials made out of paper in the registration certificate against column no.13. The Deputy Commissioner by order dated 31.3.2002 accepted the prayer so far as it relates to packing materials such as plastics and polybags, gunny bags, gum tapes and adhesives, complaint slips, tin containers and pouches but rejected the prayer for including packing materials made out of paper, such as cartons, corrugated boxes etc. Appellant thereafter filed application for inclusion of said items which was rejected, as noted above, by order dated 7.4.2003. It was indicated in the order that in view of the notification dated 28.1.1985 paper of all kinds is excluded from the operation of Section 13 of the Act. Appellant filed writ petition before the Patna High Court highlighting that its predecessor was granted concession. The notification dated 28.1.1985 cannot have any operation to rule out operation of Section 13(1)(e) of the Act. In any event, what the appellant wanted to include was "card board box" and what is excluded is "card board". Reference was made to an earlier decision of the High Court in Card Board Products v. State of Bihar (1989 (73) STC 438) where it was held that "card board boxes" are different from "card board". It was also submitted that the expression carton used in the notification also would not include the "card board boxes" as was held in the said case. Both the notification and Section 13(1) have to be read harmoniously and, therefore, the authorities were not correct in their view. Stand of the learned counsel for the respondents was that Section 13 of the Act provides for concessional rate of tax. Proviso to Section 13(1) indicates that the State Government may exclude any goods or class or description of goods from the operation of the Section. Accordingly, notification dated 28.1.1985 amending earlier notification dated 26.12.1977 was issued. By the said notification paper and other materials made out of paper were excluded from the operation of Section 13 of the Act. While other packing materials continued to enjoy the benefit of concessional rates as provided under Section 13(1)(e) of the Act, the same is not the case with those articles which are covered by the notification. Even if clause (e) in sub-section (1) of Section 13 is inserted subsequently i.e. on 1.8.1985, it will not supersede or affect the earlier notification. Reference was made to Section 21 of the Act which deals with taxable turnover and though sale of packing material for packing of goods used by the dealer prior to 1.8.1985 was exempted from payment of sales tax, the position was altered after 1.8.1985.