PLASTELLA AND CO Vs. STATE OF BOMBAY

JUDGEMENT

(1.) THESE are applications for reference to the High Court of a certain question said to arise out of our decision in Revision Applications Nos. 19 and 20 of 1957 dated the 17th September, 1957. The two cases related to two periods, viz., from 1st November, 1952, to 31st March, 1953, and 1st April, 1953, to 31st March, 1954. The assessments in these cases were governed by the Bombay Sales Tax (No. 2) Ordinance, 1952, in respect of the period 1st November, 1952, to 24th March, 1953, and by the Bombay Sales Tax Act, 1953 (unamended) in respect of the period from 25th March, 1953, to 31st March, 1954. The applicants were subjected to both the general tax as well as the special tax, and it was only the levy of the special tax that was disputed. The dispute was as regards the sale of combs made of plastic in which the applicants dealt; and the two items we were concerned with were items Nos. 30 and 33 in Schedule II to the Bombay Sales Tax (No. 2) Ordinance, 1952, and the corresponding items of Schedule II to the Bombay Sales Tax Act, 1953 (unamended). Item No. 30 read as follows :- ------------------------------------------------------------------------ "Description of goods Rate of Deduction under Special clause (ii) of tax. section 11. ------------------------------------------------------------------------ Perfumery (excluding Nine pies 3/67th Part". synthetic essential oils), in the cosmetic and toilet articles, rupee. except soaps and other articles as may be specified by the State Government by Notification in the Official Gazette. ------------------------------------------------------------------------ Along with this should be read a notification issued by the Government of Bombay on the 24th December, 1952, specifying certain articles for the purposes of entry 30; the notification was intended to have force with effect from 1st November, 1952. At item 4 of this notification we found : "Combs other than those intended for being worn in the hair", so that the kind of combs with which we were concerned, not being intended for being worn in the hair, would be excluded from entry 30 with effect from 1st November, 1952. The other item, No. 33 read :- "Plastic sheets, fabrics, and articles made of plastic". This was amended with effect from 1st January, 1953, as follows :- ----------------------------------------------------------------------- Rate of Deduction under "Description of goods Special clause (ii) of tax. section 11. ----------------------------------------------------------------------- 33. (i) Bangles, bottle caps Three pies 1/65th part. buttons made of in the plastics when sold at rupee. a rate not exceeding annas 2 each. (ii) Other articles made of do. do. plastic sold at a rate not exceeding annas 12 each or when sold by length at a rate not exceeding annas 12 per yard. (iii) All other articles made Nine pies 3/67th part. of plastic. in the rupee. (iv) Plastic sheets and do. do." fabrics and articles made of such sheets or fabrics not falling under items (i) and (ii). -------------------------------------------------------------------- The applicants had been assessed to special tax under entry 33 of Schedule II to the Bombay Sales Tax (No. 2) Ordinance, 1952, and the corresponding entry No. 34 of Schedule II to the Bombay Sales Tax Act, 1953 (unamended), the price of a comb being less than 12 annas. Mr. N. C. Mehta for the applicants contended that the fact that the notification referred to above specifically excluded combs other than those intended for being worn in the hair showed that the original intention had been to include such combs in entry 30 as toilet articles; that, therefore, they must have been excluded from entry 33; and that if they were originally intended to be excluded from entry 33 it must be held that they had remained excluded from the said entry throughout, so that the result of the notification would be that all the combs other than those intended for being worn in the hair being excluded from entry 30, they had ceased to have any place in Schedule II at all, i.e., the sale of such articles was not liable to the special tax.

(2.) WE did not think that this argument could be accepted. It looked as if the original intention in framing entry 30 was to include combs as toilet articles, but the notification itself said that it should have operation from 1st November, 1952, i.e., from the very date on which entry 30 came into operation. Therefore, we thought that it would be legitimate to hold that the intention was to exclude such combs from the very beginning from entry 30. WE, accordingly, held that the argument of Mr. Mehta was without substance, and that the inclusion of the combs in question under entry 33 was correct. The applications were, therefore, dismissed.