PARLE BISCUITS P LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner, a company registered under the Indian Companies Act, 1956, has filed the present writ application for a direction to the respondents-authorities not to enforce Notification S.O, No. 154 dated 28-1-1985 issued under proviso to Section 13(1) of the Bihar Finance Act (hereinafter referred to as the Act) in relation to sale and purchase of packing materials by it which is covered by Section 13(1) (e) inserted in the Act by Bihar Finance Amendment Act, 1985 with effect from 1-8-1985. Prayer has also been made for quashing the order of Deputy Commissioner of Commercial Taxes, Pafna City, Patna, respondent No. 3, dated 7-4-2003 whereby prayer made on behalf of the petitioner to include in column 13 of the registration certificate the packing materials made out of papers, have been rejected. A copy of the aforesaid Notification and a copy of the order dated 7-4-2003 have been annexed as Annexures-6 and 5 respectively to the writ application.

(2.) The petitioner is a company registered under the Companies Act. Earlier it was running a business in the name of M/s. Parle Products Ltd. It is registered under the Act as well as the under Central Sales Tax Act. It is engaged in manufacture of biscuits and to pack the manufactured biscuits for sale and supply to the customers. it requires all kinds of packing materials including packing paper, Cartoon and Corrugated Boxes. Earlier packing materials were exempted from payment of sales tax as the sale price was not included in the taxable turn over under Section 21 (1) of the Act. Section 21 (1 )(c) was amended with effect from 1-8-1985 and the provision with regard to non-inclusion of sale price on account of sale of packing materials in the taxable turn over was deleted. However, amendment was made under Section 13(1) of the Act by adding Clause (e) providing concessional rate o(tax with regard to sales and purchases by a registered dealer of goods specified in the registration certificate issued under Section 14 of the Act as required by him in or for packing of goods which he sells. The petitioner applied for inclusion of all kinds of packing materials including packing materials made out of paper in the Registration certificate against column 13. The Deputy Commissioner of Commercial Tax, Patna City (E) Circle, respondent No. 3, by order dated 31-3-2002 added the packing materials, such as plastics and polybags, gunny bags, gum tapes, adhesives, complaint slips, tin containers & pouches etc. but rejected the prayer for including the packing materials made out of papers, such as cartoons, corrugated boxes etc. The petitioner thereafter filed a petition for inclusion of the said items which was rejected by order dated 7-4-2003 (Annexure-5) by respondent No. 3 on the ground that in view of the Notification dated 28-1-1985 (Annexure-6) papers of all kinds is excluded from the operation of Section 13 of the Act.

(3.) The stand of the State is that Section 13 of the Act provides for concessional rate of tax. However, the same is subject to the conditions mentioned in the said Section under the Act. According to the proviso to Section 13(1) of the Act the State Government may exclude any goods or class or description of goods from the operation of the said Section and the State Government accordingly issued a Notification dated 28-1-1985 amending the earlier notification dated 26-12-1977 and excluded the paper and packing materials made out of paper from the operation of Section 13 of the Act. The other packing materials will enjoy the benefit of concessional rates as provided under Section 13(1) (e) of the Act. Insertion of Clause (e) in Sub-section (1) of Section 13 of the Act with effect from 1-8-1985 Will not supersede the earlier notification, on the other hand, the said clause will apply to all the packing materials except papers and packing materials made out of papers.