TMI Blog1964 (9) TMI 83X X X X Extracts X X X X X X X X Extracts X X X X ..... axable turnover a registered dealer may deduct from his gross turnover his turnover an the following, namely-- (26) Sales of handloom-woven cotton cloth. 4. It has been rightly contended by the learned Government pleader that on the present point, the petitioner is barred from obtaining any relief in this proceeding under Article 226, because his claim for exemption was rejected by the Commercial Tax Officer on a finding of fact against which the petitioner should have moved the higher administrative authorities set up by the taxing statute. That finding is that the purchase vouchers' produced by the petitioner did not show that the goods were actually manufactured on handloom . From the impugned order, based upon this finding, the petitioner could have moved the Asstt. Commissioner and then the Commissioner, in appeal. Revision also lay to the latter, and then the Board of Revenue. Not having taken recourse to these remedies, the petitioner is precluded from challenging this finding of fact: Shri Ambica Mills Co. Ltd. v. S. B. Bhatt (1961)ILLJ1SC . It has not been shown that this finding is tainted with any error of law apparent on the record or vitiated by contrave ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Bengal Act was payable, on such goods on the Petitioner's own showing, because the exemption under Rule 3(28)(a) of the Rules made under that Act could be claimed only on showing that the additional excise duty had, in fact, been paid under the Central Act of 1957. 9. On behalf of the Petitioner, therefore, it has been contended that the restrictive words on which duty has been paid...... at the end of Rule 3(28)(a) of the Rules, which render the sale of cotton fabrics produced by less than 4 power-looms liable to the levy of sales tax even though the production of such goods was exempted from the additional excise duty payable under the Central Act of 1957, is ultra vires and unconstitutional. The validity of the imposition has been challenged also on several other grounds: (i) In Dilip Mukherjee v. C. T. O. C. R. No. 344(W) of 1961, (1964) 2 Rev and LR 28, I have discussed the question of ultra vires and unconstitutionality of a similar imposition with respect to another declared goods, with reference to Article 286(3) of the Constitution and the Central Sales Tax Act, 1956 and the Additional Duties of Excise (Goods of Special Importance) Act, 1957,--referred to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ales Tax Act (read with Article 286(3) of the Constitution), that the tax shall not exceed 2%, Section 5(1) of the Bengal Act, inasmuch as it imposed a tax in excess of that limit, became invalid, in toto, as soon as Section 15 of the Central Sales Tax Act was given effect to and until Section 5(1) was amended in October, 1959, to bring it into conformity with the restriction imposed by the Central Sales Tax Act. 4. It has been rightly contended on behalf of the Petitioner that the invalidity of Section 5(1) on the preceding ground will commence from an earlier date, namely, the 1st of April, 1958, which is specified in Section 7 of the Central 'Act of 1957. If the words 'as from the 1st day of April, 1958' were not there in Section 7, the result would have been that the restrictions imposed by Section 15 of the Central Sales Tax Act could not fetter the legislative power of the State Legislature until Section 15 itself had been brought into operation. But the words 'as from the first day of April, 1958. indicate that the intention of Parliament in exercising its power conferred by Article 286(3) of the Constitution was that any sales tax law of a State must no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of sales tax which offends against Article 286 of the Constitution or is otherwise ultra vires will also fail for contravention of Article 19(1)(g) of the Constitution. This petition should, therefore, succeed on this additional ground, in view of my finding in relation to Article 286(3), read with Section 7 of the Central Act of 1957, (iv) The ground taken in the petition, relating to Articles 301 and 304 of the Constitution have not been pressed at the hearing, (v) Another ground taken by the Petitioner is that the levy of sales tax on cotton fabrics produced by not more than 4 power-looms offended against Article 14 of the Constitution because as a result of the fact that goods produced by 4 powerlooms are exempted from the additional excise duty while they are subjected to heavy sales tax in West Bengal, but goods produced by more than 4 power-looms were subjected to the additional excise duty but exempted from the sales tax in West Bengal an arbitrary discrimination has been made against producers with not more than 4 power-looms as demonstrated in para. II of the Petition. This contention cannot be accepted inasmuch as the two imposts are levied by two Legislatu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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