TMI Blog1992 (8) TMI 262X X X X Extracts X X X X X X X X Extracts X X X X ..... Calcutta Metropolitan Area Act, 1972. The case of the respondent/writ petitioner is that he has been purchasing and importing from Orissa "gudakhu" which is also spelt as "gurakhu" for sale in West Bengal. The said "gudakhu" or "gurakhu" is used for the purpose of smoking as "tobacco for hookah" and also used for toothgums. The Commercial Tax Officer under the State Sales Tax Act as well as the Central Act issued registration certificates inserting "tobacco for hookah" in the resale column on being satisfied that "gurakhu" dealt in by the writ petitioner was "tobacco for hookah". In the proceedings before him, he, however, held that containers up to 500 gms. containing "gurakhu" are used as tooth-paste and are sold in pan and stationery shops in and around Calcutta, these are not at all used for tobacco for hookah; and accordingly he held that the sales in containers up to 500 gms. as tooth-paste are taxable under the State Act. The sales in containers above 500 gms. were allowed exemption under section 5(2)(a)(i) of the 1941 Act as tobacco for hookah. The writ petitioner took up the matter before the appellate authority who directed the Commercial Tax Officer to adjudicate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Judge in making the rule absolute relied on the judgment in Gulabchand Harekchand [1985] 59 STC 224 (Cal) which has been affirmed by the Division Bench in F.M.A.T. No. 3451 of 1984 where the judgment was delivered on 25th July, 1990. The contention of the writ petitioner is that the judgment of the learned single Judge in Gulabchand Harekchand [1985] 59 STC 224 (Cal) has been approved by the Supreme Court, in State of Orissa v. Radheshyam Gudakhu Factory reported in [1988] 68 STC 92. There the Supreme Court observed as follows: "We have heard learned counsel for the parties and we are satisfied that the High Court is right. It appears that 'gudakhu' is a product of tobacco and that although a major part of molasses and other constituents are added to the tobacco the essential and effective ingredient remains tobacco, and therefore, 'gudakhu' is known as a product of tobacco in common parlance. The High Court has referred to 'gudakhu' as a form of smoking tobacco and has observed that even though it is also used as a paste for cleansing the gums of the teeth, it would still be regarded as a product of tobacco. We may point out that the Calcutta High Court in Gulabchand ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... alt Act, 1944, other than cigarette. In other words, under the provision of section 6 of the 1941 Act read with Schedule I thereto as they stood at the material time, no tax is payable on the sale of tobacco. The learned counsel for the State, however, contended that "gurakhu" is not essentially a tobacco product. He has submitted that unless the product is found to be essentially a tobacco product, the same cannot get any exemption as tobacco under the 1941 Act or the Rules framed thereunder. According to the learned counsel, item No. 18 of Schedule I to the 1941 Act makes it abundantly clear that any product containing tobacco as one of its ingredients will not be entitled to any exemption. It is the contention of the learned counsel that in the absence of any indication that technical meaning is to be adhered to a substance if known in common parlance as a different thing, then the said thing will not be treated in the technical sense. According to him, "gurakhu" has never been treated as tobacco in the common parlance but it has been accepted as a dentifrice and amongst various ingredients there may be some element of tobacco. He has also contended that even assuming dentif ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gurakhu" is understood as a dentifrice in common parlance. It is, in fact, used for the purpose of having the pleasure of tobacco and ordinary man will not use a tobacco product as dentifrice. It is one thing to say that a person uses a particular product as tobacco and the other uses as a dentifrice. If it is dentifrice then the mixture of tobacco will be of no consequence. If it is mainly a tobacco it would only be used for the purpose of having the effect of tobacco and not for the purpose of using it as tooth-paste or dentifrice. Therefore, the contention that "gurakhu" is not a tobacco product cannot be accepted. In other words, "gurakhu" must be held to be a tobacco product and as such exempt. The question is whether "gurakhu" is exempt under the West Bengal Sales Tax Act, 1954 (referred to as "the 1954 Act'). Under section 25 of the 1954 Act, the State Government is empowered to include a commodity for taxation under the said Act, if such commodity is taxable under the provisions of the Bengal Finance (Sales Tax) Act, 1941. Section 25 of the West Bengal Sales Tax Act, 1954, reads as follows: "If the State Government is at any time of opinion that it would be in the pub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cco mixed with molasses which is nothing but a mixture for hookahs. In our view, unless "gurakhu" answers the description of tooth-paste or tooth-powder, it cannot be brought within the ambit of dentifrice. If an item does not answer the description of any article or thing meant for cleansing teeth, it cannot be treated as dentifrice which means a powder, a paste or liquid for cleaning the teeth for all and sundry. But as we have indicated earlier, "gurakhu" is essentially a tobacco product which may be used by certain persons for cleaning the teeth. Even in such a case, the purpose of use is not merely to clean the teeth but also to have the toxic effect of tobacco contained in "gurakhu". As such, "gurakhu" cannot be treated as tooth-paste or dentifrice for the purpose of bringing it within the mischief of 1954 Act. The next question which arises for consideration is whether "gurakhu" is taxable under the Taxes on the Entry of Goods into Calcutta Metropolitan Area Act, 1972 (referred to as "the Entry Tax Act"). Section 6 of the Entry Tax Act is the charging section. In the Schedule referred to in section 6 of the Entry Tax Act several items have been enumerated in respect of w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -paste or tooth-powder is solely meant for cleansing teeth whereas "gurakhu" is not such a commodity. It has a variety of uses depending on the persons who use the same. In our view, the 1941 Act, the 1954 Act and the Entry Tax Act are in pari materia. Accordingly in the absence of a statutory definition, it would be open to look for the meaning of the word "gurakhu" by reference to the meaning assigned to such word under the 1941 Act or to adopt the meaning in common parlance. The same word in the context of the three taxing statutes which are inter-related cannot be duly interpreted differently. But the crux of the matter is that "gurakhu" is one mode of intaking tobacco intoxication in the system of human body. It is used as one of the many forms of satisfying tobacco addiction infusing tobacco toxicity or nicotine in circulation system through saliva. Tooth paste or any dentifrice is used purely for dental and oral hygiene but the purpose of "gurakhu" is one form of tobacco intake. The frequency in which it is generally used by a consumer in the course of a day is also a functional test that use of it is one form of tobacco addiction like the use of "khaini" or powder of roas ..... X X X X Extracts X X X X X X X X Extracts X X X X
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