(1.) THIS judgment will also dispose of Letters Patent Appeal Nos. 644 to 653 of 1984, 450 of 1988 and Civil Writ Petition No. 1388 of 1984, as the common questions of law are involved in these cases. The facts of the case are being taken from L.P.A. No. 644 of 11984.
(2.) THE Respondent -firm is a registered dealer under the Punjab General Sales Tax Act, 1948 (hereinafter referred to as the 'Act') for the sale of Dhoop and Aggarbatti. In the quarterly return filed by the Respondent for the assessment year 1973 -74, the Respondent firm claimed that the sale of Dhoop and Aggarbatti be assessed to tax at the rate of 6 per cent. The assessing authority did not agree and levied sales tax at the rate of 10 per cent. The appeal filed by the Respondent firm against the order of assessment was allowed and the Assessing Authority was directed to calculate the sales -tax on the sales of Dhoop and Aggarbatti at the rate of 6 per cent instead of 10 per cent. The Joint Excise and Taxation Commissioner initiated suo moto revisional proceedings to examine the legality and propriety of the aforesaid order, and, -vide order dated 22nd May, 1979, he set aside the same and restored that of the Assessing Authority, thereby holding that Dhoop and Aggarbatti were liable to be assessed to sales -tax at the rate of 10 per cent. The revision petition filed by the Respondent -firm against the order of the Joint Excise and Taxation Commissioner dated 22nd May, 1979, was also admissed. The claims of the dealer before the learned Single Judge was that it was liable to be assessed sales -tax at the rate of 6 per cent and not at 10) per cent. This claim of the dealer was upheld. The state of Punjab has now come up in appeal against the order of the learned Single Judge. The relevant portion of Section 5(1) of the Act as it exists today on the statute, is reproduced below:
(3.) MR . O.P. Goyal, Learned Addl. Advocate -General, appearing for the Appellant State has contended that the judgment in Amir Chand's case (supra) proceeded on a basis that no longer exists. In the aforesaid judgment, it was held that before charging the enhanced tax, two requirements were necessary as laid down in the proviso to Sub -section (1) of Section 5 of the Act; (1) that the item should be a Luxury good; (2) that it should be mentioned in the Schedule. The inference that was drawn by the Division Bench was that the Government was presumed to have entered only such goods in Schedule -A as were qualified to be called Luxury Items and as Dhoop and Aggarbatties were required for religious pujas or worship and were to be used by all whether rich or poor, they did not in any way qualify as Luxury Items. The judgment in Amir Chand's case (supra) was, therefore, based on the word 'luxury' which occured in the proviso to Sub -section (1) of Section 5 of the Act. As already stated above, the word 'luxury' was deleted from the proviso to Sub -section (1) of Section 5 with retrospective effect and, as such, the judgment of the Division Bench is no longer applicable to the facts of the case. As a matter of fact the first of the two qualifications which were required to be fulfilled (as mentioned by the Division Bench) having become redundant, the only requirement subsisting now is that the item should be mentioned in the Schedule. As mentioned above, Entry No. 16 -A specifically mentions 'perfumery' as including Dhoop and Aggarbatties. Having held as above that the judgment of the learned Division Bench in Amir Chand's case is distinguishable and no longer applicable.