SHRI BINAYENDRA LAL ROY Vs. STATE OF TRIPURA

JUDGEMENT

(1.) IN this proceeding under article 226 of the Constitution we are concerned with two questions : (1) whether the petitioners were liable to pay sales tax on the sale of "jhama"; and

(2.) SO far as jhama is concerned, it has been contended by Shri Majumder by referring to Modern Candle Works v. Commissioner of Taxes [1988] 71 STC 362 (Gauhati); (1988) 1 GLR 310 wherein large number of decisions were taken note of, that the basic material so far as jhama and bricks were concerned is clay - jhama being deshaped or over burnt bricks. Shri Majumder referred to Madanlal Khaitan v. Commercial Tax Officer [1972] 29 STC 625 which is a decision of the Calcutta High Court wherein sugar and sugar candy were held basically to be same. The learned Government Advocate also relied on State of Gujarat v. Sakarwala Brothers [1967] 19 STC 24 (SC), wherein it was held that sugar may manifest itself in the form of patasa, alchidana or harda as a result of certain simple process being carried out because of which it cannot be said that sugar has ceased to be sugar merely because it takes a particular shape or form which appeals to certain class of people on festive occasions. Learned counsel also referred to Alladi Venkateswarlu v. Government of Andhra Pradesh [1978] 41 STC 394 (SC) which dealt with taxability of "parched rice" and "puffed rice", and in which the Supreme Court was of the view that the term "rice" was wide enough to cover the aforesaid forms of rice also.

(3.) In this connection Shri Das brought to our notice a decision of the Sales Tax Tribunal rendered by its sole member on March 12, 1979 which held that jhama was not taxable under the head "bricks" before the Act was amended in 1978. In taking this view, the learned member observed that jhama metals which are mostly broken pieces coming out of the kiln are fit only for consolidation of roads but not for building. It was also pointed out that there is substantial price difference between the two as bricks were sold at Rs. 212 per thousand whereas jhama metal was supplied at Rs. 76 per thousand. Shri Majumder states in this connection that the aforesaid case was concerned with jhama metal which is different from jhama. A reference to the order, a copy of which has been produced before us, shows that the Tribunal was concerned with the taxability of jhama and as to this it was stated that jhama was specifically added in item 29 by the aforesaid amendment of the Act in 1978. A reference to the amendment shows that there is mention of jhama and metal separately, and no commodity has been described as jhama metal. A perusal of the order of the learned Tribunal leaves no doubt that it was concerned with the question whether jhama was included within the term "bricks" used in item No. 29 of the Schedule to the Act. It is admitted at the Bar that the department did not take up the matter further and accepted the Tribunal's order. This being the position, we have not thought it fit to examine the contention advanced by learned counsel of both the sides by applying our own mind to find out whether jhama can be said to have been included within the word "bricks" as it found place in the Act as first enacted. It may however be stated that both the sides produced two articles, different in size and shape, in the court to show what a jhama is like.