SMITH KLINE BEECHAM CONSUMER HEALTHCARE LTD. AND ANR. Vs. DEPUTY COMMISSIONER OF COMMERCIAL TAXES, CORPORATE DIVISION AND ORS.

JUDGEMENT

(1.) THIS is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 in the nature of an application under Articles 226 and 227 of the Constitution of India.

(2.) THE application arises out of an order of assessment dated June 3, 1997 for the period of 12 months ending March 31, 1995 under the West Bengal Sales Tax Act, 1954 and the appellate order dated February 25, 1998 passed by respondent No. 1. The entire dispute is with regard to the question whether Horlicks manufactured and sold by the applicant -company falls within Notification No. 886 -F.T. dated May 1, 1955 issued under Section 25 of 1954 Act or under Notification No. 790 -F.T. dated April 2, 1957, substituted by Notification No. 763 -F.T. dated March 29, 1994 issued under Section 25 of the 1954 Act. If the product comes under Notification No. 886 -F.T, dated May 1, 1955 the rate of tax will be not exceeding 11 per cent at the relevant period. But if it comes under Notification No. 763 -F.T. dated March 29, 1994 or 790 -F.T. dated April 2, 1957, the rate of tax will be higher than 11 per cent, namely, 15 per cent. At the time of assessment, Horlicks has been assessed at the higher rate of tax, on a finding of the authorities that it comes under Notification No. 790 -F.T. dated April 2, 1957 and No. 763 -F.T. dated March 29, 1994.

(3.) BUT the applicants have not moved the West Bengal Commercial Taxes Appellate and Revisional Board in revision according to the statutory provisions in the 1954 Act. Dr. D. Pal, learned counsel appearing for the applicants, submits that the application may be entertained by us even though the revisional forum has not been exhausted. But Mr. K.K. Saha, learned advocate for the respondents, submits that it is a fit case where the applicants ought to exhaust the revisional remedy.