STATE OF WEST BENGAL Vs. SIREMULL JAIN

JUDGEMENT

(1.) The present appeal filed by the State of West Bengal had arisen in respect of a judgment and order passed by Mr. Justice T. K Basu (as he then was) on 20th Sept., 1988.

(2.) The writ petitioner in the petition challenged the vires of the amendment of 1979 of the Taxes on Entry of Goods in the Calcutta Metropolitan Area Act, 1972 and prayed for a declaration that the said amending Act be rescinded, recalled and/or withdrawn. The petitioner also challenged in the said writ petition the authority of the respondents to assess on the spices on the basis of ad-valorem value. The petitioner disputed that the responded authorities were not entitled to impose any entry tax on turmeric under the heading 'spices' inasmuch as the said turmeric although fall within the category of spices, the consumers do not use the same as spices alone. The learned Judge found in favour of the writ petitioner on the ground mail; items like turmeric entered the taxable territory under the Act there has to be a determination at the point on entry whether that quantity of turmeric was going to be used as an ingredient for the manufacture of vanishing cream or as flavouring agent for food. The learned Judge expressed his view the unless there was a specific item as turmeric under the Act it was not open to the State to impose entry tax on turmeric under the generic item spices.

(3.) However, Mr. Gopal Chakraborty's challenge as to the vires of the amending Act, the learned Judge did not grant any relief and refrained from dealing with the tame. Being aggrieved by the said judgment the State of West Bengal preferred an appeal. Although the other points urged regarding the vires of the Act and strongly relied upon by Mr. Gopal Chakraborty appearing on behalf of the writ petitioner was not granted, the writ petitioner did not prefer any appeal therefrom nor filed any cross-objection with regard thereto. Under the circumstances Mr. Chakraborty could not heard and be allowed to urge the said point at the time of hearing of the appeal preferred by the State of West Bengal. He cited a few cases an referred to Order 41 Rule 22. The provisions of the Code of Civil Procedure has no application to matters under Art. 226 of the Constitution. However, the rules framed by the High Court at Calcutta being old Rule 43 and the said rule being amended in 1986 being Rule 48 provide that such Original Side Rules also to apply to matters under Art. 226. Order 41 rule 22 provides as follows :