Muli Bash Hasta Silpa Samabaya Society Ltd. and Another vs The State of Assam and Others

U.L. Bhat, C.J.—The first Petitioner is Muli Bash Hasta Silpa Samabaya Society Ltd. representated by its General Secretary, the second Petitioner, who is also a member thereof. They have filed this writ petition seeking a writ of certiorari quashing the impugned notices directing the Petitioners to submit returns and pay taxes under Central Sales Tax Act, 1956 and a writ of mandamus compelling the Respondent not to give due effect to the direction insisting on production of Sales Tax Clearance certificates by the Petitioners and other members of the first Petitioner Association, No counter affidavit has been filed on behalf of the Respondents though Sri Chaliha, learned Govt. Advocate opposes the writ petition.

First Petitioner is an Association of actual craftsmen of certain locality in Karimganj Sub-division, who produces varieties of bamboo and cane products. It is said that the undertaking is recognized as village industry covered by the provisions of Assam Khadi and Village Industries Board Act, 1955 and the Khadi and Village Industries Commissions Act, 1956. It is further averred in the writ petition that the members of the association hold individual certificates issued by the Zonal Officer of the Assam Khadi and Village Industries Board, Silcher Zone certifying that they are producers of materials which fall under the cane and bamboo industries scheme of the Board and they have combined to form the association for facilitating marketing of their products. Annexure-II is the copy of the certificate issued in favour of the second Petitioner. The member of the Association it is said are registered dealers under the Assam Sales Tax Act, 1947. They were paying sales tax till 1976 when they claimed exemption u/s 7 read with Entry 52 of Scheduled III of the Assam Sales TAX Act, 1947. If is said that thereafter no demand has been made on the Petitioners or the members of the first Petitioner Association under the Assam Sales Tax Act, 1947 The Petitioners stand is that since the articles produced by the Members of the first Petitioner association are exempt under Item 52 of Schedule III of the Assam Sales Tax Act, 1947, they are entitled to exemption u/s 8(2A) of the Central Sales Tax Act, 1956.

The grievance projected in the writ petition is that the Superintendent of Taxes, Karimganj is insisting on the members of the Petitioner association for submitting returns and paying Central tax inspite of exemption available to them. Similarly, certain types of obstructions are put forward by the forest authorities against the conveyance of these products.

Section 7 of Assam Sales Act, 1947 deals with exemptions, Sub-section (1) states that subject to the conditions and exceptions, if, any, set out in Schedule III attached to this Act, the sales of goods specified therein shall be exempt from taxation under this Act.

Entry 52 in Schedule III reads as follows:

Sl. No. Conditions and exceptions subject to which exemption has been allowed.

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Khadi/and or products of Village Industries as defined in the Khadi and Village Industries Commission''s Act, 1956. When sold by a producer and/or organization certified for the purpose by the Khadi and Village Industries Commission constituted under the Khadi and Village Industries Commission Act, 1956 or the statutory State Khadi and Village Industries Board constituted under the Act of the State.

There is no controversy that the bamboo and cane articles produced by the members of the first Petitioner Association are product of village industries, as defined in Khadi and Village Industries Commission''s Act, 1956. We notice the argument advanced by Shri Chaliha learned Govt. Advocate that the members of the first Petitioner Association on some occasion employ workers for producing the articles. However, in the absence of counter affidavit containing such an averment, we do not think we should give any weight on this submission. There is a definite claim put forward in the writ petition that the members of the first Petitioner Association are producing these articles and this stands unrebutted.

It has been asserted in the writ petition that the member of the first Petitioner Association are producing the articles in question and also marketing the same, though with the aid of the first Petitioner Association, which has been formed by these artisans and producers. There is a further averment in the writ petition that the members of the first Petitioner Association possess certificates issued by the competent officer (para 3 of the writ petition). This averment also stands unrebutted. In other words there is no controversy regarding the assertion of the writ Petitioners that members of the first Petitioner Association produce these articles and sell these articles, and that these producers who sell the articles possess certificates issued by the competent officer of the Board. That being so, sales effected by these persons squarely attract Entry 52 of Schedule III of the Assam Sales Tax Act, 1947.

Section 8 of the Central Sales) Tax Act, 1956 deals with the rates of tax on sales in the course of inter State trade or commence. Sub-section 2A with the explanation reads as follows:

(2A) Notwithstanding anything contained in Sub-section (1A) of Section 6 or Sub-section (1) or Clause (b) of Sub-section (2) of this section, the tax payable under this Act by a dealer on his turnover in so far as the turnover any part thereof relates to the sale of any goods, the sale or as the case may be, the purchase of which is, under the sales tax law of the appropriate State, exempt from tax generally or subject to tax generally at a rate which is lower than four per cent (whether called a tax or tee or by any other name), shall be nil or, as the case may be, shall be calculated at the lower rate.

Explanation.--For the purposes of his sub-section a sale or purchase of any goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law the sale or purchase of such goods is exempt only in specified circumstances or under specified conditions or the tax is levied on the sale or purchase of such goods at specified stages or otherwise than with reference to the turnover of the goods.

Sub-section (2A) of Section 8 deals with two matters, namely, exemption from tax and faxing at a lower rate. We are concerned in this case only with the former, namely, exemption. Purport of Sub-section (2A) is that where the sale of any goods is exempt from tax generally under the State Sales Tax Law, the tax payable under Central Sales Tax Act, that is Central Sales Tax shall be nil. In order that this provision may apply, the exemption under State Law must be of a general nature. The device of an explanation is used to indicate when it cannot be said that there is any exemption from tax generally under State Law. If under the State Law the sale of goods is exempt only in specified circumstances or under specified conditions, it is not a case of general exemption from tax. The explanation throws light on the meaning of the words "exempt from tax" used in the main provision. Where exemption is not limited only to specified circumstances or when exemption is not granted only under specified conditions, it is a case of general tax exemption.

Entry 52 of Schedule III of the Assam Sales Tax Act, 1947 exempts sale of produce of village industries when sold by a producer and or organization certified for the purpose of the Khadi & Industries Board. The members of the first Petitioner Association are producers, who possess such certificates. If they effect sale of produce of village industries such sales would squarely fall under Item 52 of Schedule III. The exemption granted under Item 52 is a general exemption as it is not an exemption limited to particular circumstances or under specified conditions.

All products of village industries when sold by a producer or organization certified as aforesaid are exempt from tax under the State Law. The exemption is of a general nature and not under particular circumstances or under specified conditions the exemption has to be treated as a general one within the meaning of Sub-section (2A) of Section 8 of the Central Sales Tax Act, 1956. The decisions in Commissioner of Sales Tax Vs. Kapoor Dori Niwar and Co., Hindustan Safety Glass Works (P.) Ltd. Vs. The State of Uttar Pradesh and Another, Murarilal Ahuja and Sons Vs. The Board of Revenue and Others, 61 S.T.C. 393 and the observations of the Supreme Court in Indian Aluminium Cables Ltd. Vs. State of Haryana, support our view.

We, therefore, hold that when the members of the first Petitioner Association effect sale of the goods mentioned in the writ petition, such sales are exempt "generally" under Item 52 of Schedule III of the Assam Sales Tax Act, 1947 for the purpose of State Sales Tax Act and they are also exempt from the payment of Central Sales Tax under the Central Sales Tax. Act, 1956 by virtue of Section (2A) of Section 8.

The writ petition is disposed of with such a declaration. We direct that sale of such goods of the members of the first Petitioner Association shall not be taxed under the Central Sales Tax Act, 1956 as long as they possess the certificates, as contemplated in the second column of Entry 52 of Schedule III of the Assam Sales Tax Act, 1947.