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TMI Blog1974 (11) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... for use in the manufacture of cigarettes on the strength of such exemption entered in his registration certificate, is the only question that falls for determination in this appeal by certificate granted by the High Court of Calcutta under article 133(1)(a) and (b) of the Constitution. The appellant, India Tobacco Co. Ltd. (hereinafter called the company) was a "dealer" within the meaning of the 1941 Act carrying on the business of manufacture and sale of cigarettes and smoking tobacco. It obtained the Registration Certificate No. BH/67B under that Act, and on its basis became entitled to exemption under section 5(2)(a)(ii) from payment of sales tax on goods purchased by it for use in the manufacture of cigarettes. In 1954, the Legislature of West Bengal enacted the West Bengal Sales Tax Act, 1954 (for short, the 1954 Act) "to impose a tax on the sale of cigarettes and other commodities in West Bengal". The 1954 Act took out cigarettes and a dealer in cigarettes from the purview of the 1941 Act. The company got itself registered under the 1954 Act and its registration certificate which it had obtained under the 1941 Act was amended and cigarettes were excluded therefrom. By virt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he 1958 Act substituted for the words "cigarettes and other commodities" occurring in the preamble of the 1954 Act, the words "certain notified commodities". It further replaced the word "cigarettes", wherever it occurred in the 1954 Act, by the words "notified commodities". The 1958 Act substituted a new section 23 for the original section 23 of the 1954 Act. The new section provided that nothing in the 1941 Act shall apply to a notified commodity from the date on which the said commodity is or was notified under section 25 of the 1954 Act as amended by the 1958 Act. Clause (ii) of the proviso in this new section 23 provided that:"the price of goods sold to a dealer for use by such dealer for manufacturing, making, processing or packing notified commodities shall be deducted in calculating the taxable turnover under section 5 of the Bengal Finance (Sales Tax) Act, 1941." The notifications issued by the State Government from time to time under section 25 in respect of "notified commodities" do not include cigarettes. Having regard to the enactment of 1958 Act, the company wrote to the Commissioner of Commercial Taxes, West Bengal, respondent No. 3, on April 11, 1958, stating tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... registration certificate for amendment and deletion of exemption entry therefrom. To challenge this action threatened by the sales tax authorities in their letters of September 8, 1958, September 22, 1958, and February 2, 1959, the company filed a writ petition in March, 1959, in the High Court of Calcutta under article 226 of the Constitution. On behalf of the sales tax authorities, it was contended before the learned single Judge, who tried the writ petition, that after the enactment of the Central Act of 1957 and the 1958 Act, cigarettes no longer formed the subject-matter of tax either under the 1941 Act or the 1954 Act, with the result that the registration certificate in respect of cigarettes under those Acts became a nullity and the exemption granted in respect of the purchase of goods required for the manufacture of cigarettes under the registration certificate issued under the 1941 Act was incompetent. The learned single Judge negatived this contention thus: "In my opinion, this is based on an incorrect reading of the law, as will appear from the delineation of the law above-mentioned. The provisions contained in section 5(2)(a)(ii) of the Act affected a dealer who sold ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the repeal of a repealing Act does not revive anything repealed thereby. But the operation of this rule is not absolute. It is subject to the appearance of a "different intention" in the repealing statute. Again such intention may be explicit or implicit. The questions, therefore, that arise for determination are: Whether in relation to cigarettes, the 1941 Act was repealed by the 1954 Act and the latter by the 1958 Act? Whether the 1954 Act and the 1958 Act were repealing enactments. Whether there is anything in the 1954 Act and the 1958 Act indicating a revival of the 1941 Act in relation to cigarettes. It is now well-settled that "repeal" connotes abrogation or obliteration of one statute by another, from the statute book as completely "as if it had never been passed"; when an Act is repealed, "it must be consider- ed (except as to transactions past and closed) as if it had never existed": (Per Tindal, C.J., in Kay v. Goodwin [1830] 6 Bing. 576 at 582., and Lord Tenterden in Surtees v. Ellison [1829] 9 B. & C. 750 at 752., cited with approval in State of Orissa v. M.A. Tulloch & Co. A.I.R. 1964 S.C. 1284. Repeal is not a matter of mere form but one of substance, depending u ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or for use by him in the manufacture of goods for sale or for use by him in the execution of any contract; and of containers or other materials for the packing of goods of the class or classes so specified: Provided that in the case of such sales a declaration duly filled up and signed by the registered dealer to whom the goods are sold and containing prescribed particulars on a prescribed form obtainable from the prescribed authority is furnished in the prescribed manner by the dealer who sells the goods." It will be seen that the definitions of "goods" and "dealer" in the 1941 Act are very comprehensive and general. It is not disputed that these wide definitions would cover "cigarettes" and a dealer in cigarettes. Considered alone, the 1941 Act would take in its sweep cigarettes also, and under its section 5(2)(a)(ii) a dealer would be entitled to purchase free of tax goods required by him for use in the manufacture of cigarettes. The (original) 1954 Act, as stated in its preamble, was an Act "to impose a tax on the sale of cigarettes and other commodities" in West Bengal. As defined in its section 2(a), "cigarettes" include smoking mixtures ready for use in rolling cigarettes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 5 of the 1941 Act in a modified form, then also such incorporation would not per se amount to a repeal in the sense of complete obliteration of section 5 of the 1941 Act. We will now take up the 1958 Act. This Act amended the 1954 Act. In the preamble of the 1954 Act, for the words "cigarettes and other commodities", it substituted the words "certain notified commodities". Further, for the word "cigarettes", wherever occurring in the 1954 Act, it substituted the words "notified commodities". For the original section 23, it substituted this new section 23: "Nothing in the Bengal Finance (Sales Tax) Act, 1941, shall apply to a notified commodity from the date on which the said commodity is or was notified under section 25: Provided that- (i) the said Act shall apply in respect of a notified commodity sold before the issue of such notification and in respect of resales of such notified commodity subsequent to the issue of such notification; (ii) the price of goods sold to a dealer for use by such dealer for manufacturing, making, processing or packing notified commodities shall be deducted in calculating the taxable turnover under section 5 of the Bengal Finance (Sales Tax) A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the 1941 Act and prescribed different rates of tax. In obedience to the mandate of section 14 of the Central Sales Tax Act of 1956, it reduced the rate of tax from 5 naye paise in the rupee to 2 per centum of such part of the taxable turnover of a dealer under the 1941 Act as represents sales of goods (including manufactured tobacco, cigarettes) referred to in section 14 of the aforesaid Central Act. This amendment of the 1941 Act, effected in 1959, also indicates that after the 1959 Act, the operation of the 1941 Act revived in relation to cigarettes. After a conspectus and conjoint reading of the aforesaid enactments, it seems to us clear that the 1954 Act did not repeal or obliterate the 1941 Act, but only modified it by excepting cigarettes from its operation. During the interregnum between the enactment of the 1954 Act and the 1958 Act, the operation of the 1941 Act with regard to cigarettes was in a state of mere interception, and when, as a result of the amendment made by the 1958 Act, that exception or interception was removed, the application of the 1941 Act to cigarettes revived proprio vigore. In any case, definite indications of such revival are available in the la ..... X X X X Extracts X X X X X X X X Extracts X X X X
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