TMI Blog2003 (9) TMI 713X X X X Extracts X X X X X X X X Extracts X X X X ..... . 2.. The petitioner is a company registered under the Companies Act. Earlier it was running a business in the name of M/s. Parle Products Ltd. It is registered under the Act as well as under the Central Sales Tax Act, 1956. It is engaged in manufacture of biscuits and to pack the manufactured biscuits for sale and supply to the customers it requires all kinds of packing materials including packing paper, carton and corrugated boxes. Earlier packing materials were exempted from payment of sales tax as the sale price was not included in the taxable turnover under section 21(1) of the Act. Section 21(1)(c) was amended with effect from August 1, 1985 and the provision with regard to non-inclusion of sale price on account of sale of packing materials in the taxable turnover was deleted. However, amendment was made under section 13(1) of the Act by adding clause (e) providing concessional rate of tax with regard to sales and purchases by a registered dealer of goods specified in the registration certificate issued under section 14 of the Act as required by him in or for packing of goods which he sells. The petitioner applied for inclusion of all kinds of packing materials including pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax under the Act. 6.. Section 13 of the Act provides special rate of tax on certain sales or purchases. According to the said provision, concessional rate of sales tax has been provided with regard to sales or purchases. Originally the section was applicable with regard to sales or purchases under four categories, namely, 13(1)(a)(b), (c) and (d) provided a certificate is granted by the prescribed authority in the prescribed manner as mentioned in the aforesaid section. Proviso to sub-section (1) empowered the State Government to issue a notification from time to time to exclude any goods or class or description of goods from the operation of this section. In exercise of the said power, the State Government issued a notification on January 28, 1985 (annexure-6) excluding the paper (of all kinds) from the operation of the said section. The description of the goods as mentioned in the notification are as follows: "12. Paper (of all kinds) including paste Board, mill board, straw board, card board, blotting paper, cartridge paper, paper bags, packing paper, cartons, cards and blank registers, note books, exercise books, envelops, labels, letter pads, writing tablets and flat f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lified or repealed in view of insertion of clause (e) in sub-section (1) of section 13 of the Act. 13.. The learned counsel appearing for the State on the other hand submitted that insertion of clause (e) to sub-section (1) of section 13 of the Act will not take away the effect of the notification already issued excluding the paper materials from the operation of section 13 of the Act. Clause (e) to sub-section (1) of section 13 of the Act has to be read with the aforesaid notification. The benefit of concessional rate of sales tax will be available to all types of the packing materials minus packing materials made out of papers. He also submitted that though the notification issued in terms of the proviso to section 13(1) of the Act was earlier in point of time to the additional of clause (e) in sub-section (1) of section 13 by Bihar Act, 1985 but that notification will cover the said clause also. The notification is valid and not nullified and will also apply to section 13(1)(e) of the Act in view of the provisions contained under section 27 of the Bihar and Orissa General Clauses Act, 1917. 14.. On the basis of the rival contentions raised on behalf of the parties, the main ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e excluded from the operation of section 13 of the Act even if it is covered by clause (e) to sub-section (1) of section 13 of the Act by virtue of the power in the State Government by proviso to section 13(1) of the Act to exclude any goods from the operation of section 13 of the Act. Clause (e) to sub-section (1) of section 13 of the Act has to be read with the notification dated January 28, 1985 and the exception has to be carved out in terms of the notification with regard to packing materials mentioned under section 13(1)(e) of the Act. In other words clause (e) to sub-section (1) of section 13 provides for concessional rate with regard to all types of packing materials required by a registered dealer mentioned in registration certificate or for the packing of goods sold by him and the notification excluded the operation of the aforesaid provision with regard to papers of all kinds including packing materials made out of papers. It is also to be mentioned that the petitioner has not challenged the validity of the notification and have challenged only it's applicability. Once the notification is valid and is a part of the section then the same has to be given a full effect and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t is based largely on how the legislatures have developed and applied these terms in labeling their enactments. When a section is being added to an Act or a provision added to a section, the legislatures commonly entitled the Act as an amendment When a provision is withdrawn from a section, the legislatures call the Act an amendment, particularly when a provision is added to replace the one withdrawn. However, when an entire Act or section is abrogated and no new section is added to replace it, legislatures label the Act accomplishing this result a repeal. Thus as used by the legislatures, amendment and repeal may differ in kind-addition as opposed to withdrawal or only in degree-abrogation of part of a section as opposed to abrogation of a whole section or Act; or more commonly, in both kind and degree-addition of a provision to a section to replace a provision being abrogated as opposed by abrogation of a whole section of an Act. This arbitrary distinction has been followed by the courts, and they have developed separate rules of construction for each. However, they have recognised that frequently an Act purporting to be an amendment has the same qualitative effect as a repealt ..... X X X X Extracts X X X X X X X X Extracts X X X X
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