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TMI Blog1955 (7) TMI 24X X X X Extracts X X X X X X X X Extracts X X X X ..... ner claims exemption from the operation of the Sales Tax Act, 1947, and seeks a writ or writs to restrain the respondents from charging sales tax on the sale of betel leaves. In the alternative, it urges that Act XVI of 1949 by which the exemption is withdrawn is ultra vires and illegal. 2.. To understand the contention it is necessary to give a short history of the legislation on the subject. In Act XXI of 1947 exemption from the tax is granted by section 6 of the Act. This section reads as follows: "(1) No tax shall be payable under this Act on the sale of goods specified in the second column of Schedule II, subject to the conditions and exceptions, if any, set out in the corresponding entry in the third column thereof. (2) The State Gov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egetable dealers, and Act XVI of 1949 cannot be enforced after the inauguration of the Constitution. 3.. On behalf of the respondents a preliminary objection is taken that an indeterminate body like the Pan Dealers Association cannot seek a writ under Article 226 of the Constitution. It is contended that either all the persons affected thereby must join in this petition or all of them must file separate petitions. An application has now been filed by the secretary of the association to limit the petition to L.B. Borgaonkar who is himself a pan dealer, in case the objection is upheld. 4.. We heard the preliminary objection as well as the petition, and in view of our decision that there is no room for interference, there is no need to decide ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een held in them that peanuts, cashew-nuts, valnuts etc., though vegetables in the botanical sense, are not vegetables in the common acceptance of the term. (See Planters Nut and Chocolate Co., Ltd. v. The King(1) and the cases collected in Words and Phrases, First Series, Volume 8, page 7284, and in Words and Phrases, Second Series, page 1145). There is also the decision of the Patna High Court in Kokil Ram v. Province of Bihar(2), where it has been ruled that pans for the purposes of sales tax are not included in the term "vegetables". Pans are not ordinarily used as vegetables but as a masticatory. They are not used as food. 7.. We are accordingly quite clear that the exemption which was granted by Item No. 36 was withdrawn by its delet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radict what the Bench stated earlier on the subject. With all due respect to the learned Judges, we do not agree. The power to levy taxes on the sale of goods (Entry No. 48 of List II, Seventh Schedule to the Government of India Act, 1935) was, no doubt, plenary. But the power to make room for new legislation in an occupied field by enacting rules contrary to existing law made by the Centre did not go with the entry. That power could only be exercised by taking the sanction of the Governor-General to the proposed enactment. The plenary power to tax cannot be confused with the power to make room in the occupied field for the new law in abrogation of the existing law. The Sale of Goods Act had determined the conditions before a contract for t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... abdas v. Board of Revenue(3) the Bench was concerned only with Explanation II to section 2 (g) and that was held to be defectively enacted because the Governor-General had not assented to that Explanation. That did not mean that the Bench regarded the whole of the Act as ultra vires. Nor is it true to say that the entire Act needed the assent of the Governor- General. Under the Government of India Act, 1035, the Provincial Legislature could enact valid laws within the ambit of its powers, (1) [1953] 4 S.T.C. 133; A.I.R. 1953 S.C. 252. (2) [1954] 5 S.T.C. 115; A.I.R. 1954 S.C. 403. (3) [1952] 3 S.T.C. 343; A.I.R. 1952 Nag. 378. provided the Governor assented to the measures so enacted. Act XVI of 1949 in such of its parts as bear upon this m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... chedule, for which certain conditions precedent have been laid down. That delegation does not rob the Legislature of its plenary power to amend the Act as and when occasion arises. It is not necessary that the delegation should be withdrawn be- fore the Legislature itself can amend the Act. Further, the conditions created for the exercise of the power by the delegate do not bind the Legislature. The Legislature could, and can, at any time amend the whole Act including the Schedule. 11. The scheme of taxation in all countries shows that only certain commodities are selected for the imposition of sales tax. It has not been contended before this that any discrimination results from the taxation of one article as against another. If the argum ..... X X X X Extracts X X X X X X X X Extracts X X X X
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