Ramananda Joy Kissen vs Commissioner of Taxes (Sales)

Thadani, C.J.—This is an application under the provisions of Section 82(6) Assam Sales Tax Act, 1947 XVII [17] of 1947 for an order upon the Commissioner of Taxes (Sales), Assam, to refer the matter in dispute to this Court as it involves questions of law.

The facts material to the application are these: The petitioner was assessed by the Superintendent of Taxes, Nowgong, Assam, to a sales-tax in the sum of Rs. 735-2-0 on the sales of tobacco for the period February-March 1948, a part of the taxable period of 1947-48 The petitioner preferred an appeal to the Assistant. Commissioner of Taxes, Assam, in which he contended (i) that tobacco being an item assessed to tax by the Central Excise, the Superintendent of Taxes, Assam, erred in law in assessing the appellant again on the sale of the same item, (ii) that the Assam Sales Tax Act, 1947, has nowhere defined the item ''tobacco''; that in any case, the type of tobacco in which the petitioner traded is not included in Schedule I, item 8 ''Tobacco", mentioned in Section 3, Central Excise and Salt Act, 1944.

The Assistant Commissioner of Taxes, Assam, however, dismissed the applicant''s appeal observing:

As regards the lat point, the learned pleader for the appellant argued that ''Hooka tobacco is exempt from sales-tax and, as such, ''Tobacco leaf should also be exempted. In support of his contention, he cites instances of Permit issued by the Central Excise Department wherein ''Tobacco leaf was mentioned as ''Hooka tobacco''. In my opinion, ''Tobacco leaf Is a distinct article and as it has not been specifically included for exemption in Schedule 3, to the Assam Act, it is taxable.

The applicant then presented an application u/s 32(s), Assam Sales Tax Act of 1947 to the Commissioner of Taxes (Sales), Assam, to refer the matter to this Court on the following 2 points : (i) Whether the Provincial Government or State Government is empowered under the provisions of the Government of India Act, 1935, or the Constitution of India, 1950, to levy sales tax on tobacco, which is an article already subjected to excise duty by the Central Government, (ii) Whether ''tobacco leaf seed as ''hooka tobacco'' is included in Serial No. 17 of Schedule 3, attached to the Sales Tax Act, 1947 (Assam Act XVII [17] of 1947), and, as such, exempt from taxation under the said Act.

The Commissioner of Taxes (Sales), Assam, rejected the application by his order, dated 16-8-50, observing that the first point was not raised before the Assistant Commissioner or before him; it was a new point of law raised a point which did not arise out of the order against which a reference was sought. As regards the second point, it did not appear to him that any question of law was involved ''Hooka tobacco'' is exempt under the Assam Sales Tax Act and not ''Tobacco leaf. The latter was capable of being used as a disinfectant, for making biris and cigars. In the learned Commissioner''s view ''Hooka tobacco'' means some form of manufactured or processed tobacco, and in this view he declined to make a reference, holding that manufacture or processing of tobacco was a question of fact, and not one of law.

We think the learned Commissioner was right in refusing to make a reference, as the matter does not involve any question of law. Clause (f), Section 2, Central Excise and Salt Act, 1944, defines the term ''manufacture'' as including any process incidental or ancillary to the completion of a manufactured product; and in relation to tobacco, includes the preparation of cigarettes, cigars, cheroots, biris, cigarette or pipe or hokah tobacco, being tobacco or snuff. In other words, ''hooka tobacco'' is a kind of manufactured or processed tobacco. It was not necessary to define what tobacco leaf is; all tobacco is made of tobacco leaf. It was, therefore, only necessary to describe what manufactured tobacco is, and that is precisely what has been done by Clause (f), Section 2, Central Excise and Salt Act. 1944. It follows then that whether tobacco leafs is manufactured or not, is a question of fact, and as ''Hooka tobacco'' is included in the category of manufactured tobacco, it is manifestly not a question of law.

The first point upon which a reference is sought under the provisions of Section 32(2) , Assam Sales Tax Act, 1947, is, we think, entirely misconceived. Apart from the fact that this was not the point taken before the Assistant Commissioner, or the Commissioner, Excise duty on tobacco is something quite different from sales tax on tobacco. Excise duty is livable on production, and not on sale. Neither the Government of India Act, 1935, nor the Constitution of India, 1950, prevents a State Government from levying sales-tax on tobacco, notwithstanding the fact that the Central Government has levied Excise duty on tobacco.

The second point upon which we are asked to call upon the Commissioner to make a reference, is formulated in these terms:

Whether ''Tobacco leaf Used as ''Hooka tobacco'' is included in Serial No. 17 of Schedule 3 attached to the Sales Tax Act 1947 Assam Act XVII [17] of 1947 and, as such, exempt from taxation under the said Act.

The question so framed is misleading. The Superintendent of Sales Tax has not taxed the sales of ''hooka tobacco'', but he has taxed the sale of ''tobacco leaf. Whether the tobacco leaf imported by the petitioner was to be used as ''hooka tobacco'' under his permit, is immaterial so long as it was sold as ''tobacco leaf It is-admitted by the learned Advocate for the petitioner that the petitioner sold ''tobacco leaf, and not ''hooka tobacco'', but his contention is that tobacco leaf sold was to be used as ''hooka tobacco'' by the purchaser. That may be. What is subject to levy of sales-tax is the transaction of sale by the vendor, and not the use to which the vendee may put to it. Accordingly, we answer the two questions in these terms: (i) The State Government is empowered to levy sales-tax on tobacco notwithstanding the fact that Excise duty upon tobacco has been levied by the Central Government. Neither the provisions of the Government of India Act 1935, nor the Constitution of India, 1950, is a bar to a levy of sales tax on tobacco by the Government of the State of Assam (ii) Tobacco, when sold as tobacco leaf, is subject to a Sales-tax. What is exempted, under item No. 17 of Schedule 3 attached to the Assam Sales Tax Act, 1947, is ''hooka tobacco'', and tot tobacco, all tobacco being tobacco leaf.

The result is that we decline to call upon the learned Commissioner of Taxes (Sales), Assam, under the Assam Sales Tax Act, 1947, to make a reference, as prayed for. The petition is dismissed with costs.

Ram Labhaya, J.

I agree.