TMI Blog1975 (4) TMI 124X X X X Extracts X X X X X X X X Extracts X X X X ..... ts. On 12th July, 1968, on an appeal preferred by one Messrs. T.T. Krishnamachari Company, who were dealers, among others, in Woodward's Gripe Water, the Appellate Assistant Commissioner, Madras, took the view, purporting to rely on an earlier order of the Tribunal, that by virtue of section 8 of the General Clauses Act, 1897, any excise duty levied or leviable under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, should be equated to an excise duty levied or leviable under section 18-A of the Madras Prohibition Act, 1937. In that view, he held that the turnover relating to the sale of Woodward's Gripe Water in respect of which excise duty had been paid under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, were entitled for exemption under section 8 read with item 3 of the Third Schedule to the Sales Tax Act. On 31st December, 1968, the petitioners filed two petitions before the Deputy Commercial Tax Officer, Tambaram, who was the assessing authority for refund of the tax paid by them in respect of the assessment years 1961-62 to 1967-68. In these petitions, they claimed that the products sold by them contained alcohol and were exempt from tax un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rovision and proceeded to consider whether the provision of section 55 is attracted and held, as already stated, that there was no error or mistake of law on the face of the record, which could be rectified under that provision. But, in these petitions, the learned Government Pleader contended that the goods were not at all exempt under section 8 read with item 3 of the Third Schedule and they were correctly assessed. It has, therefore, become necessary to deal with the question as to whether these goods were exempt at all. The argument of the learned counsel for the petitioners was that Woodward's Gripe Water, Williams After Shave Lotion, Williams Lectic Shave, Metalin Oral and allied products manufactured by the petitioners were "liquor" within the meaning of the Madras Prohibition Act, 1937. The excise duty on the manufacture of these goods was levied and leviable under section 18-A of the Madras Prohibition Act, 1937. On and from 1st April, 1957, such duty is levied or leviable under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, which repealed section 18-A and re-enacted that provision as a levy under a Central Act. Therefore, by virtue of section 8 of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inserted by Madras Act 19 of 1948 in the Madras Prohibition Act, 1937, authorising levy of excise duty. The relevant portion of this section reads as follows: "An excise duty or countervailing duty of such amount as the State Government may, by notification in the Fort St. George Gazette, specify from time to time shall, if they so direct, be levied on all liquors and intoxicating drugs permitted to be imported, exported, transported, manufactured, issued from any manufactory or institution or sold, under the provisions of this Act or any rule, notification, licence or permit issued thereunder." Under the Constitution, the duties of excise on medicinal and toilet preparations containing alcohol manufactured or produced in India had now been made a Central subject. But, article 277 provided that any duties, which immediately before the commencement of the Constitution were being lawfully levied by the Government of any State, notwithstanding that those duties are now mentioned in the Union List, may be continued to be levied until provision to the contrary is made by Parliament by law. Thus, until Parliament made any law relating to the medicinal and toilet preparations, the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, then references in any other enactment or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted." The scope of this section came up for consideration before the Supreme Court in State of Punjab v. Sukh Dev Sarup Gupta[1970] 26 S.T.C. 303 (S.C.). It was held that the words "former enactment" in section 8 refers to both a Central Act or a provision thereunder, as also a State Act or a provision contained therein. It follows, therefore, that to the repeal of section 18-A in so far as it imposed the duty on medicinal and toilet preparations and the re-enactment of that levy in the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, the provision of section 8 is applicable. But, the difficulty is in understanding the enactment which is referred to in the words "references in any other enactment or in any instrument to the provision so repealed" in that section. There could be no doubt that this reference is to the enactment which came to be made between the "former enactment", wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ition Act in item 3 of the Third Schedule is to the Madras Prohibition Act, as in force on the date when the Sales Tax Act came into force and not on any date earlier. On the date when the Sales Tax Act came in to force, the excise duty leviable under section 18-A had already been repealed and, therefore, if the legislature wanted to exempt any goods that are subject to excise levy under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, the legislature should have made a specific reference in item 3. In fact, in 1972, by a notification the Government have exempted those goods, which have been subjected to excise duty under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, from the levy of sales tax. But, that notification is not applicable to the assessment years in question, We are, therefore, of the opinion that the medicinal and toilet preparations manufactured by the assessees were not entitled to the exemption under section 8 of the Sales Tax Act. Since we have come to the conclusion that the goods are not at all exempt from the levy of sales tax, the further question whether there was any error or mistake of law on the face of the record, which ..... X X X X Extracts X X X X X X X X Extracts X X X X
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