TMI Blog1961 (8) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... are stated to be interested in the result of these proceedings. In this order we will refer the petitioner No. 1 as "the petitioner". 2.. The petitioner carries on business of selling medicinal preparations, and a notice was issued against him to pay sales tax on the turnover in the assessment year. The sales included some medicinal preparations containing alcohol. It is the assessment of sales tax on these medicinal preparations which is challenged in this petition. The amount comes to about Rs. 900 only. 3.. The petitioner's case is that the State Government had power to levy excise duty on these preparations under the Central Provinces and Berar Excise Act, 1915 (Act No. 11 of 1915) (hereinafter referred to as the "Excise Act") and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uring the year under assessment no excise duty was paid. Exhibits P-2 and P-3, which have been filed along with the petition, relate to duties paid in 1947-48. There is nothing to substantiate the statement that excise duty was paid to any Government in the year of assessment. The statement to that effect in paragraph 4 of the petition is, to say the least, made carelessly. 6.. The first contention of Shri R.K. Pandey is that the State Government has no power to levy sales tax on the sale of medicinal and toilet preparations. He relies on Entry 84 in List 1 of the Seventh Schedule of the Constitution. That entry gives power to the Central Government to impose duties of excise on "medicinal and toilet preparations containing alcohol". The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... finitions together, medicinal and toilet preparations, which are liquids and which contain alcohol, would be liable to excise duty. 8.. Section 27-A was introduced in the Excise Act by the Adaptation Order, 1937. In sub-section (2) the following was added as clause (c) by the Adaptation Order, 1950, viz: "(c) any duty on medicinal or toilet preparations containing alcohol." The effect of adding this clause was that the power of the State Government to levy such duty was preserved, if it was being so levied under the existing law prior to the commencement of the Constitution. This adaptation was obviously made to give effect to Article 372 of the Constitution which continued in force the laws existing prior to the Constitution. Under thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution. Even apart from the specific provision in the Act of 1955, the repeal follows from the provisions of Article 372 itself which provides that the laws in force before the commencement of the Constitution "shall continue in force therein until altered or repealed or amended by a competent Legislature or other competent authority." The Parliament was the competent Legislature to impose excise duty on medicinal and toilet preparations and as it framed the necessary law in 1955, the State law could no longer continue in force. 11.. Shri R.K. Pandey contended that the repeal clause either had the effect of repealing the whole of the Excise Act or it repealed nothing. He points out that there is no specific enactment imposing e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ased to be leviable with excise duty under the Excise Act. Accordingly, entry 32 in Schedule II of the Sales Tax Act no longer applied to such preparations and the petitioner was liable to pay sales tax on the sale of these preparations. 14.. Shri. H.L. Khaskalam had also contended that the proper course to be followed by the petitioner was to file an appeal before the Commissioner of Sales Tax against the order of the respondent and as he has not done so, the petition should be rejected as premature. It is not necessary for us to examine this contention, as we find no substance in the petition on merits. 15.. The petition is dismissed with costs. Hearing fee is fixed at Rs. 100 only. The outstanding amount of the security deposit, afte ..... X X X X Extracts X X X X X X X X Extracts X X X X
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