WINE SPIRIT AND BEER ASSOCIATION OF INDIA CALCUTTA V STATE OF WEST BENGAL AND CAREW AND COMPANY LTD Vs. STATE OF WEST BENGAL

JUDGEMENT

(1.) IN this rule the petitioners pray for a declaration that the West Bengal Taxation Laws (Amendment) Act, 1972, in so far as and to the extent to which the same seeks to withdraw the exemptions in entry 25 of Schedule I to the Bengal Finance (Sales Tax) Act, 1941, is ultra vires and should be struck down.

(2.) PETITIONER No. 1 is an existing company and petitioner No. 2 is the shareholder and Senior Executive Officer of petitioner No. 1. It is the case of the petitioners that under the provisions contained in rules 4 and 5 of the West Bengal Excise Foreign Liquor (Licence Fee) Rules, 1942, an annual fee is payable in advance on all sales of potable liquor including India-made foreign liquor and beer. In addition, an additional licence fee, popularly known as literage fee, is imposed and collected on all sales of potable liquor including India-made foreign liquor and beer. Such impositions are essentially in the nature of sales tax as the same are related to and/or based on the sales of liquor as aforesaid.

(3.) IT is contended by the petitioners that the said omission is bad, illegal and ultra vires. By reason of the provisions of sections 20, 43 and 44A of the Bengal Excise Act, 1909, there is no element of permanency and/or continuity in the trade carried on by the petitioners. The licensing issued by the excise department in regard to the trade carried on by the petitioners is renewed for a specified period and he appropriate licensing authority has the option either to renew the licence or to cancel the same and, as such, the petitioners cannot be treated as dealers within the meaning of the Bengal Finance (Sales Tax) Act, 1941, or the West Bengal Taxation Laws (Amendment) Act, 1972. According to the petitioners, the expression "dealer" under the said West Bengal Act of 1972 imputes and/or connotes an element of permanency and/or continuance and the Act used the expression "carries on" deliberately. It is also stated by the petitioners that Schedule II of the said Act of 1972 lays down the description of goods on which such purported sales tax are imposed. Item 37 of the said Schedule II of the said Act of 1972 provides as follows :