TMI Blog1988 (4) TMI 403X X X X Extracts X X X X X X X X Extracts X X X X ..... the term "coal" as defined in section 14(ia) of the Central Sales Tax Act, 1956 (hereinafter to be referred to as "the Central Act") as amended by Act No. 16 of 1972, and as to what would be the cumulative effect of the provisions of section 14(ia) and section 15 read with section 12(2) of the Bihar Finance Act, 1981. The other ancillary question that will then fall for consideration is as to the effect of section 11 of the Bihar Finance Act, 1981 and rule 45 of the Bihar Sales Tax Rules, 1983. 3.. The first batch of cases has been filed by different registered dealers, both under the State Act and under the Central Act and in all these applications, the legality and validity of the notice, as contained in annexure-2, is under challenge. The notice as incorporated in annexure-2 in each of the cases has been issued by the Deputy Commissioner, Commercial Taxes, Hazaribagh Circle, drawing the attention of and intimating to all the dealers in hard coke within the Hazaribagh Circle that according to the decision of the State Government, coal and coke were two different and distinct goods for the purpose of taxation under the Sales Tax Act. All the sales of hard coke within the State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6/77-14537, dated the 26th December, 1977, as amended from time to time, lays down the stage of levy in these terms: "The point of levy of tax under this Act, in the case of following goods will be the point of- (a).............. (b).............. (c) First sale in the State in all other cases." And in the notification, the goods, which are subjected to tax, are mentioned in different items. Item No. 17 thereof speaks of "coal including coke in all its forms............." 5. This had to be so, presumably on account of the statutory provisions of section 14(ia) of the Central Act, which also speaks of "coal including coke in all its forms Learned counsel for the parties were at loggerheads and Mr. Gadodia, learned counsel appearing for the Revenue and the State in all the cases, has vehemently argued that "coal" and "coke" were two distinct subject-matters, which should be subjected to tax under different heads within the meaning of section 14 as well as the items enumerated in the State notification aforementioned. His whole argument was that "coke" in all its forms supposed to be included within the term "coal" is merely illustrative. On the contrary, learned counsel f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ollows coal, is to extend its meaning." That is exactly what the petitioners in these cases contend. A Bench of this Court in Bajrangbali Coke Briquetting Industries v. State of Bihar [1987] 66 STC 128; 1987 PLJR 926 also had to consider the provisions of section 14(ia) of the Central Act and held that the term "coal" in section 14 of the Central Act also included within its sweep "coke" and "briquettes" and once the briquettes prepared by the petitioners are held to be a form of coke, then they are entitled to the protection of section 15 of the Act. For this purpose, some case laws were referred to and relied upon. The decision of the Supreme Court in India Carbon Ltd. [1971] 28 STC 603; AIR 1972 SC 154 and that of a Bench of this Court in Bajrangbali Coke Briquetting Industries [1987] 66 STC 128; 1987 PLJR 926 support the contention of the learned counsel for the petitioners. 8.. Mr. Gadodia, learned counsel for the State and other respondents contended that the word "including" in section 14(ia) meant the same thing as the term "that is to say". He further contended that the goods known as "coal" was altogether distinct entity from "coke" under the statutory provision and f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ix) tool, alloy...and so on and so forth. So also, under the genus "oilseeds", the species mentioned are twenty, like groundnut or peanut; sesame or til, cotton seed, soyabean, etc., etc.; "pulses" covering seven species like gram or gulab gram, tur or arhar, moong or green gram, masur or lentil, etc., etc. In all these statutory provisions, the term that has been used by the legislature deliberately is "that is to say". One has to look into the intention of the legislature, while deliberately using two different phrases for the purpose of identifying different categories of genus as laid down in section 14 of the Central Act. It would be manifest that the term "that is to say" has been used in a sense quite distinct from the term "including" as mentioned in section 14(ia). In the context of these statutory provisions, we have no manner of doubt that while coal is said to include coke in all its forms, it cannot be understood in the same manner in which the other goods as mentioned in the other clauses of section 14 that the expression "that is to say" has to mean. As a matter of fact this distinction has been noticed by the Supreme Court in State of Tamil Nadu v. Pyare Lal Malhotr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinct from the other, which Mr. Gadodia wants us exactly to do in this case. It was further held that the use of the word "including" connotes that the other articles mentioned thereafter may not be "paper" in the dictionary sense or in the common parlance, or some of them may be so. But the use of the word "including" means that whether they are so or not, all articles enumerated after that word must be deemed to be "paper" for the purpose of notification, dated 27th August, 1959. That being so, it was further held that although the articles sold were not "paper" in the strict sense of the term, the assessee was not liable to pay any special sales tax on its own sales in regard to the various articles included in the word "paper" in column 2 of the Schedule appended to the notification. To say the least, it may even be deemed to be a legal fiction. 9.. Mr. Gadodia further invited our attention to a decision of the Supreme Court in A. Hajee Abdul Shukoor and Co. v. State of Madras [1964] 15 STC 719. That was a case where the subject-matter was "raw hides and skins". Certainly raw hides were distinct from skins, because one was not inclusive of the other. The ratio of that case is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eans that in the process, there has been a number of sales, but in order to avoid multi-point of taxation, the provision has been inserted in the statute for reimbursement (original refund) of the payment made previous to the subsequent stage of sales. 12.. Before, however, we conclude, we must, in all fairness to the learned counsel for the respondents, take a serious notice to the preliminary objection as to the maintainability of the writ application purported to have been taken by him. The submission was that the impugned notice as contained in annexure-2 was not actually a notice nor was it an order nor any interdepartmental correspondence (although he started with the argument that it was a piece of interdepartmental correspondence), but was merely a thought of the Deputy Superintendent, expressed loudly, having no legal sanctity to which the assessing authority may not pay any heed. In such circumstances, it was contended that no writ can issue. This argument has been taken notice of merely for rejecting the same. 13.. The decisions in the case of Filterco v. Commissioner of Sales Tax, M.P. [1986] 61 STC 318 (SC); AIR 1986 SC 626, Bajranbali Coke Briquetting Industries v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... structions. In the case of Fernandez AIR 1967 SC 1753, it was laid down by the Supreme Court that even if there has been breach of any executive instructions, that does not confer any right on a member of public to ask for a writ. But that was a case of a breach of executive instructions; whereas we are dealing with the case for contravention of the statutory provisions made in the Act by a competent legislature. Herein lies the difference. Where there is a breach of administrative instructions, it is certainly always open to challenge by inducing the writ court to exercise its jurisdiction. We have deliberately used the word "always", because even in the case of Pratap Singh v. State of Punjab AIR 1964 SC 72, the Supreme Court itself granted relief on the basis of an administrative instruction in favour of a retired officer who has since been absorbed by the Government under its employment. 14.. These applications (the first batch of cases), therefore, must be allowed, the impugned notices (whatever be the nomenclature, which the respondents ascribe to it) issued to the petitioners are, accordingly, quashed. Let a writ of mandamus issue restraining the respondents from giving ef ..... X X X X Extracts X X X X X X X X Extracts X X X X
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