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2014 (12) TMI 1303 - SUPREME COURTScope of Cigarettes Act and the Rules - Hookah smoking - smoking area dimensions - whether the impugned circular dated 4th July, 2011 travels outside the Cigarettes Act and the Rules or merely seeks to implement the said Act and the Rules as they stand? - Held that: - Section 6 of the Cigarettes Act permits the sale of cigarettes and any other tobacco products, except to persons under 18 years of age and in an area within a radius of 100 yards of any educational institution. It is clear that any condition which prohibits the sale of cigarettes or any other tobacco products in premises licenced by the Municipal Corporation would amount to adding another exception which would be impermissible in law. Scope of the word 'sale' and 'service' - case of Revenue is that the sale of tobacco or tobacco related products would amount to a service that cannot be so allowed - Held that: - the definition of tax on the sale or purchase of goods has been artificially expanded more particularly by sub-clause (f), with which we are concerned, where the distinction between "sale" and "service" has been done away with. In the present case, the well established distinction between "sale" and "service" would continue to apply in view of the definition of "sale" contained in Section 3(m). It will be noticed that the definition is a "means" and "includes" one. It is well settled that such definition is an exhaustive definition. There is thus, no scope to include "service' in such a definition - even if we were to accept Mr. Bhatt's contention, Rule 4(3) would become ultra vires Section 6 of the Act inasmuch as it would prohibit the sale of cigarettes and other tobacco products in a smoking area in hotels, restaurants and airports, thus, adding one more exception to the two exceptions already contained in Section 6. It is, thus, clear that this condition would be ultra vires the Cigarettes Act and the Rules properly so read. Rule 3(1)(c) and Rule 4(3) have to be harmoniously construed - What is expressly allowed by Rule 4(3) cannot be said to be taken away by Rule 3(1)(c). Appeal allowed - decided in favor of appellant.
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