KAMARU ZUMAN KHAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THESE are references under section 24(1) of the Orissa Sales Tax Act. The Additional Sales Tax Tribunal has stated these cases and has referred the following question for opinion of this Court :

(2.) SECTION 5 of the Orissa Sales Tax Act contains the scheme under which there is a uniform prescribed rate for imposition of tax on the taxable turnover. The proviso appearing under sub-section (1) authorises the State Government from time to time by notification and subject to such conditions as may be imposed to fix a higher rate of tax not exceeding thirteen per cent or a lower rate of tax on the sale transactions. The assessee in the instant case is a dealer in agarbattis. The relevant periods of assessment are 1971-72 and 1972-73. Petitioner paid tax at rate of seven per cent for three quarters of the first year and at eight per cent for the rest of the period in question. Initially the returns has been accepted but the Sales Tax Officer found that there had already been a change in the entry in the schedule and the assessments were, therefore, reopened on the plea that there was under-assessment. The entry at the beginning of 1971-72 read thus :

(3.) THOUGH agarbatti has not been specifically included in the notification, perfumery has been included as luxury goods and is tagged to entry 36 in the schedule of luxury goods. The material question for determination, therefore, is whether agarbatti is perfumery. The Supreme Court decision ([1970] 25 S.T.C. 151 (S.C.).) directly dealt with this question. Whether "perfume" in its ordinary sense would cover dhoop and dhoop-batti was the question for consideration and the learned Judges held that dhoop and dhoop-batti fell within the category of "perfume". There can be no argument that "perfume" and "perfumery" are different classifications. If agarbatti is "perfume", it would be covered under the classification of "perfumery" included in the Orissa Act as item of taxable luxury goods and the Supreme Court decision ([1970] 25 S.T.C. 151 (S.C.)) concludes this question.