HOTEL ALANKAR Vs. STATE OF MAHARASHTRA

JUDGEMENT

(1.) THE following common question has been referred for recording answer at the instance of the assessee under section 61 (1) of the Bombay Sales Tax Act, 1959 ("the Act") in these two references :

(2.) THE assessee, M/s. Hotel Alankar, serves, inter alia, beer in the hotel. It applied for registration under the Act on 22nd May, 1973. It was found to be liable for levy of sales tax with effect from 1st April, 1972. It was assessed for the period 1st April, 1972 to 30th March, 1973 and 1st April, 1973 to 21st May, 1973 as an unregistered dealer. During these periods the beer sold by it was held to be covered by the scope of entry 1 (2) (b) of Schedule D, Part II of the Act, by the Sales Tax Officer, the Deputy Commissioner in first appeal and the Sales Tax Tribunal in the second appeal. According to the assessee, beer is mild liquor as defined under rule 3 (6) (2) (d)of the Bombay Foreign Liquor Rules, 1953 ("the Rules") and since "mild liquor" was not then included in entry 1 (2) (b) of Schedule D, Part II, it could be covered only by residuary entry 22 of schedule E.

(3.) THERE can be no manner of doubt that residuary entry is attracted only in case no other entry is attracted. Entry 1 (2) (b) of Schedule D, Part II, was changed from time to time : (i) From 1st April, 1972 to 18th December, 1972, it read as under :