Attar Sweet Stores Residency Road vs Commissioner Excise and Taxation, J&K State and others

(1) This is a writ petition filed by M/s Attar Sweet Stores against the respondents seeking the issue of writ of mandamus directing the respondent

No. 2 not to charge sales tax on the sale by the petitioner of amul butter container in card box packet of 100 grams and in paper wrapped packet

of 500 grams during the assessment year 196566. It is averred in the petition that the petitioner filed his Sale Tax Return chargeable under the

Jammu and Kashmir General Sales Tax Act of 1962 The Petitioner did not charge any sale tax on JOO grams and 500 grams packet of amul

butter as the same were not chargeable as they were exempt from the sale tax. Only sale of sealed tins of 400 grams of amul butter were,

according to the petitioner, not exempt and these he duly entered in the return.

But the respondent No. 2 would not accept this position and said that the respondent No. 1 i. e. (The Commissioner Excise and Taxation J&K

State) had held that packets of 100 grams and 500 grams were also chargeable. The real position was that in S. R O. 157 dated 15th of May

1965, there is a direction that goods shown in Schedule II of the said S R. O. shall be exempt from payment of Sales Tax. According to item No.

18'Dehi, Khua and butter' (except sold in sealed container are exempt from payment of tax. It is further averred that only 400 grams of butter are

sold in sealed tins whereas in other cases arnul butter weighing 100 grams and 500 grams are sold in card board box packing and paper wrapper

packing respectively. Only butter contained in the sealed tins cannot be opened except by breaking and cutting the seal, whereas the other packing

can be opened easily without breaking any seal and butter can be sold. It is only the butter in sealed tin that is chargeable under the S. R. O and

not the 2nd or 3 packets. The respondents No. 1 and 2 have therefore no jurisdiction to make an assessment on the sales of these last mentioned

kind of butter and not to make the petitioner pay tax in respect of these. The petitioner never effected any recovery of tax on sale of the

aforementioned quantity of butter. The action of the respondent to subject these articles to taxes in respect of which there was clear exemption

under S. R O. 157 was clearly arbitrary and without jurisdiction and this would amount to deprivation of the petitioner of his property, under no

process of law. Alongwith the writ petition copy of the relevant S. R. O and the copies of the Schedules I and II have been filed.

(2) In his objection the respondent No. 2 has stated that the petition is not maintainable because the remedies of appeal and revision provided

under the Sales Tax have not been availed of by the petitioner. The matter of assessment of the sales tax was within the competence of the

authorities and this could not be questioned by any civil court ; that the respondent did not know whether the petitioner had charged the sales tax

of the sale of 100 grams and 500 grams packet of butter but these are exempt from the Sale Tax. The packet of amul butter sold by the petitioner

fall within the expression of sealed containers as they are closed and access to the contents is not possible without breaking the fastening and

without tearing of the covering. In these circumstances the petitioner had no right to maintain this action and no writ could be issued in his favour.

(3) I have heard the arguments in the case and have also gone through the record.

(4) The important point to be considered and determined in this writ petition is whether amul butter weighing JOO grams and 500 grams contained

in card board wax packing and in paper wrapper packing can be termed to be butter contained in the sealed container's as occurs in item No. 18

of Schedule II annexed with S R. O. 157 dated 15th of the May 1965. It is common ground in the case that according to item No. 18 of the said

schedule II butter except 'when sold in sealed container is exempt from payment of the sales tax. Thus every kind of butter sold which is not in

sealed containers is exempt from the payment of the Sales Tax. The important question therefore to be determined is as to what is meant by the

expression ""sealed container''. The word 'sealed' used with reference to a container has been defined in the Oxford Dictionary to mean ''a

container which is so closed that access to the contents is impossible without breaking the fastening.'' In fact this definition has been accepted by

the Supreme Court as well in case Commissioner of SALES TAX U. P. V/s G. G. Industries Agra reported in Sales of Tax Cases 1968 Vol XXI

page 61. At the time of arguments the learned counsel for the petitioner produced me the samples of disputed packets of amul butter and also the

sample of sealed tin containing amul butter for examination. It was not disputed before me that the samples of packets of amul butter in respect of

which the sales tax is charged by the respondent is not the same. On an examination of the packets containing 500 grams and 100 grams of butter

it was noticed that these packets were in card board boxes and in paper and did not bear any seal These packing could be opened without cutting

or breaking any fastening. Of course the butter contained in sealed tin can be said to be butter in a sealed container as access to it in the said tin

was impossible without breaking the fastening. Thus it is clear that these are the two categories and one can easily be distinguished from the other.

In the case of sealed tin containing butter it is to be cut and seal broken. In the case of card board packet and paper wrapper packet no such

process is to be done. We can have easy access to its contents. In my ^pinion therefore the sales tax authority have got no jurisdiction to charge

tax in respect of these items mentioned above.

(5) It was argued that the petitioner had alternate remedy available under the law that he could prefer an appeal or revision before the next high

authority and therefore the present petition is not maintainable. The same point arose for consideration before their Lordships of the Supreme

Court in AIR 1961 Supreme Court page 372. It was observed in the said authority that the existence of an alternate remedy is not, however,

always a sufficient reason for refusing the party quick relief by a writ or an order prohibiting an authority acting without jurisdiction from continuing

such actions, It was argued in that case before their Lordships of Supreme Court that the conditions precedent for the assumption of jurisdiction

were not satisfied under section 34 of the Income Tax Act and that the petitioner had other remedies open to him. But this contention was repelled

and their Lordship proceeded to observe that there was nothing in the conduct of the petitioner which would justify the refusal of proper relief.

Article 226 of the Constitution confers a power on the High Court to give such relief in fit cases irrespective of the tact that the petitioner had other

remedy available to him and the courts would be failing to perform their duty if relief is refused without adequate reasons. The same view has been

propounded in AIR 1961 M. P. 154 Full Bench.

I, therefore, do not agree with the view taken by the learned counsel for the respondent that unless the petitioner pursues the other legal remedy

available to him under the law this writ petition was not maintainable. In my opinion because the petitioner had been asked to do an act which the

Sales Tax authority had no authority in law to ask him to do, the act of the respondent would become without jurisdiction and would offended the

fundamental rights of the petitioner.

(7) I, therefore, accept this petition and issue the necessary writ against the respondents in the case. The petitioner will be entitled to the costs of

the petition.