TMI Blog2004 (11) TMI 539X X X X Extracts X X X X X X X X Extracts X X X X ..... The Lieutenant Governor may, by notification in the Official Gazette, add to, or omit from, or otherwise amend, the Third Schedule either retrospectively or prospectively, and thereupon the Third Schedule shall be deemed to be amended accordingly: Provided that no such amendment shall be made retrospectively affecting the interests of any dealer. 3.. Thus, it is clear that the items referred to in the First Schedule shall be subject to sales tax while those referred to in the Third Schedule will be tax-free. It is also clear that the Lieutenant Oral. Governor is authorised to change the entries, as indicated in section 7, that is to say, from tax-free goods to taxed goods and vice versa. 4.. The learned counsel for the petitioner submitted that tobacco is mentioned in the Third Schedule at serial No. 22 and the entry reads as under: Tobacco, as defined in the Central Excise Act, 1944. 5.. Thus, for ascertaining what is meant by tobacco , we will have to refer to the Central Excise Act, 1944 read with Chapter 24 of the Schedule to the Central Excise Tariff Act, 1985. Chapter note 3 thereof reads as under: In this chapter, 'tobacco' means any form ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Kothari Products Ltd.'s case [2000] 119 STC 553; (2000) 9 SCC 263. In that case the appellant manufactured and was dealing in gutka under the brand name Pan Parag and the introduction of entry 194 in the First Schedule to the A.P. General Sales Tax Act was in question. That entry sought to tax pan masala including gutka . . 10.. In that case the contention on behalf of the petitioner was that it is not open to the State of Andhra Pradesh to tax gutka. Section 8 of the State Sales Tax Act provides that a dealer who deals in the goods specified in the Fourth Schedule thereto shall be exempt from tax thereunder in respect of such goods. Entry 7 of the Fourth Schedule to the State Sales Tax Act refers to tobacco and the explanation in this behalf is that the goods mentioned in entry 7 shall be goods included in the relevant heads and sub-heads of the First Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957, but does not include goods where no additional duties of excise are levied under that Schedule. 11.. The said item refers to tobacco. In para 4, the court held as under: Clearly, therefore, gutka is a tobacco that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the statute that a notification of recall of exemption is a condition precedent to imposing tax at any prescribed rate by a valid notification under section 3-A, we see no force in the contention of the assessee which has been upheld by the High Court. In fact, the second notification can easily be treated as a combined notification both for withdrawal of exemption and also for providing higher tax. When power for both the operations vests in the State and the intention to levy the tax is clear we see no justification for not giving effect to the second notification. We would like to point out that the exemption was in regard to a class of goods and while the exemption continues, a specific item has now been notified under section 3A of the Act. 13.. The learned counsel for the Revenue relied on the decision of the apex Court in Sales Tax Officer v. Darling Dairy Products [1994] 94 STC 93. In that case the special leave petition was dismissed. However, it appears that the review petition was allowed following the ratio of the decision of the apex Court in Agra Belting Works' case [1987] 66 STC 1. At page 94, it was held as under: In Commissioner, Sales Tax v. Agra Belti ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he notification should be issued. The latter judgment of this Court, on similar facts, followed the earlier judgment. 15.. The learned counsel for the Revenue submitted that the Kerala High Court in Reliance Trading Company v. State of Kerala [2000] 119 STC 321 following the aforesaid decision in para 8 pointed out as under: If there are two entries, one general and the other specific, the ordinary rule of construction that a general entry must give way to a specific entry is to be followed. The authority is to see that if two entries are apparently in conflict with one another, an attempt must be made to construe them harmoniously and not to treat them repugnant each other. A commodity falling under the general entry as also a specific entry has to be taxed in terms of special entry as the same is to prevail over the general entry. That itself is sufficient to reject the stand of the assessee. 16. The learned counsel for the Revenue, in view of these decisions, submitted that when it is competent for the State to levy tax and by general entry exemption is granted, it is always open to levy the tax for a specific item by naming the same. It is not in dispute before the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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