OM PRAKASH GUPTA Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) In this appeal under clause 15 of the Letters Patent, the question that falls for determination is as to whether the appellant who makes camphor cubes locally out of camphor granules and sells such cubes in the local market can be said to be a dealer within the meaning of Section 2(b) of the West Bengal Sales Tax Act, 1954 (hereinafter referred to as the Act of 1954). The appellant, as the proprietor of the firm M/s. S.D. Gupta & Co., carries on business in camphor cubes. He purchases camphor in granules and makes camphor cubes out of such granules with the help of a power operated machine and sells such camphor cubes in the market with distinctive brand names of "Elephant, Moon and Arati". Originally, he had himself registered as a dealer under Section 7 of the Bengal Finance (Sales Tax) Act, 1941 (hereinafter referred to as the Act of 1941). On his business turnover for the period November, 1955, to 30th June, 1958, the appellant was assessed to sales tax under Section 11(2) of the Act of 1941. Such assessment was made on 9th February, 1959. The appellant, however, objected to such assessment on the plea that he deals exclusively in camphor, which is a drug as defined by the Indian Drugs Act and, as such, the Act of 1941 would have no application. Obviously, the appellant took shelter under the provisions of Section 23 of the Act of 1954, in view of the fact that drug as defined by the Indian Drugs Act was a notified commodity being notified as such under the provisions of Section 25 of the Act of 1954. This objection on behalf of the appellant to the assessment under the Act of 1941 prevailed with the Appellate Tribunal, and the Assistant Commissioner, Commercial Taxes, by an order dated 21st April, 1960, held that the petitioner had no liability to pay any tax under the Act of 1941 so long as his business is restricted to dealings in camphor tablets or camphor, which is a medicine and, as such, is liable to be taxed under the Act of 1954. The Assistant Commissioner further directed cancellation of the appellant's registration under the Act of 1941.

(2.) Shortly thereafter, on 2nd May, 1960, the Commercial Tax Officer, Jorasanko Charge, issued a notice calling upon the appellant to show cause why he should not be assessed under Section 9(3) of the Act of 1954. The appellant this time raised an objection that he was not a dealer within the meaning of Section 2(b) of the Act of 1954 and, as such, is not liable to any tax under the provisions thereof. The objection so raised was overruled by the Commercial Tax Officer, who assessed the appellant under Section 9(3)(iii) of the Act of 1954 for the period 1st August, 1956, to 2nd May, 1960, and further imposed a penalty of Rs. 100 for the appellant's failure to get himself registered. The appellant preferred an appeal under Section 12 of the Act of 1954 and the Assistant Commissioner, Commercial Taxes, overruled the appellant's plea that he was not a dealer within the meaning of Section 2(b) of the Act of 1954 and, as such, had no liability to pay any tax under the provisions thereof. But the Assistant Commissioner allowed the appeal on another point and directed reassessment. In overruling the appellant's claim that he was not a dealer, the Appellate Commissioner held : Although I agree that the petitioner did not manufacture a new thing, but they can be regarded as a processor ; the petitioner processed camphor granules into camphor cubes and sold the ultimate products under their distinct brand. Under the West Bengal Sales Tax Act, if a person sells any notified commodity processed by him in West Bengal, he becomes a dealer and, in this aspect, the petitioner can be rightly considered as a dealer for the purpose of the West Bengal Sales Tax Act, 1954.

(3.) Against the aforesaid order dated 26th July, 1961, of the Assistant Commissioner, the appellant preferred a second appeal, which came to be disposed of by the Additional Commissioner, Commercial Taxes. The Additional Commissioner affirmed the view taken by the Assistant Commissioner in holding the appellant to be a dealer within the meaning of Section 2(b) of the Act of 1954 and, as such, by his order dated 26th June, 1962, dismissed the appeal and confirmed the order of the Assistant Commissioner.