Appeals Nos 240 and 241 of 1969
Appeals from the judgment and decree dated December 18 1968 of the Allahabad High Court in Civil Misc
Writ No 4697 of 1968
J P Goyal and Sobhag Mal Jain for the appellant in both the appeals
L M Singhvi and O P Rana for the respondents  in both the appeals
The Judgment of the Court was delivered by Hegde J
These are appeals by certificate
They are by the same appellant and they raise common question of law
Hence they are considered together
Two questions of law were urged on behalf of the appellant in support of the appeals
The first contention urged was that 147 Section 3 D1 of the UP Sales Tax Act 1948 to be hereinafter referred to as the Act is ultra vires the Constitution firstly because that under that section excessive legislative power had been delegated to the State Government and secondly on the ground that it discriminates between the registered dealers who made their purchases through licensed dealers and the registered 
dealers who made their purchases through dealers who are not licensed
The second contention taken was that notification No ST 7122X 9001664 dated October 1 1964 issued under section 3 D1 of the Act imposing purchase tax on oil seeds is invalidas it contravenes section 3AA of the Act
We have considered the first ground of attack in Civil Appeals Nos 362 and 1692 of 1969 Mls
Sita Ram Bishambhar Dayal etc
vs State of UP in which we have delivered judgment just now
For the reasons mentioned therein the contention that section 3 D1 is ultra vires the Constitution fails
The only surviving question is whether the notification re ferred to earlier is violative of section 3AA of the Act
Before examining that contention it is necessary to set out the relevant facts
The appellant is a partnership firm
It carries on business as dealers in roundnuts oil seeds and Arhar
For the assessment years 1965 66 1966 67 the Sales tax Officer Rampur assessed  the appellant to sales tax on the turnover of the groundnuts oil manufactured by the appellant and to purchase tax on the turnover of the oil seeds and foodgrains
The appellant unsuccessfully appealed against the assessment orders
Thereafter it took up the matter in revision before the revising authority
There again it substantially failed
Aggrieved by that decision he moved  the High Court of Allahabad for a writ of certiorari quashing the levy of purchase tax imposed on him in respect of his purchases of oil seeds
The High Court rejected those petitions
Hence these appeals
We shall now extract the impugned notification to the extent it is material for the purpose of this appeal
It reads thus Not
No ST 7122X 991664 dated October 1 1964
In exercise of the powers under sub section 1 of section 3 D of the Uttar Pradesh Sales Tax Act 1948 UP Act No XV of 1948 the Governor of Uttar Pradesh is pleased to notify that with effect from October 1 1964 the turnover of first purchases in respect 148 of goods mentioned below shall be liable to tax under Section 3 D of the said Act
Name of goods Rate of tax
Foodgrains including cereals and pulses1 5 paisa per rupee 2
Gur 3 paisa per rupee 3
Oilseeds 2 paisa per rupee As per this notification a purchase tax of 2 paise per rupee on the turnover of the first purchase of oil seeds is leviable
It is contended that this notification violates section 3AA of the Act
Section 3AA says Notwithstanding anything contained in section 3 or 3A the turnover in respect of the following goods shall not be liable to tax except at the point of sale by a dealer to the consumer and the rate of tax shall be such not exceeding the maximum rate for the time being specified in section 15 of the  as may be declared by the State Government by notification in the Official Gazette i  ii  iii  iv  v  vi oil seeds that is to say seeds yielding non volatile oils used for human consumption or in industry or in the manufacture of varnishes soap and the like or in lubrication and volatile oils used chiefly in medicines perfumes cosmetics and the like
Unless the dealer proves otherwise every sale by a dealer shall for the purposes of sub section 1 be presumed to be to a consumer
Explanation
A sale of any of the goods specified in sub section
1 to a registered dealer who does not purchase them for resale in the same condition in which he has purchased them or to an unregistered dealer shall for pur poses of this section be deemed to be a sale to the consumer
 149 This section was incorporated into the Act on April 1 1956
Under this section on the goods specified therein sales tax not exceeding the maximum rate for the time being specified in section 15 of the can be levied by the StateGovernment on the turnover in respect of sales by dealers to the consumers
From an analysis of this provision we get the following 1
that tax to be levied is a sales tax 2 levy in question is a single point levy 3
the point of levy is the sale by the dealer to the consumer and 4
the rate to be fixed by the State Government is not to exceed the maxi mum rate for the time being specified in section 15 of the 
If we hold that provisions contained in section 3AA continue to be in force in respect of dealing in oil seeds then the appellant section contention that the impugned levy is an invalid levy succeeds But the question is whether that contention is correct
This takes us to section 3 D
That section reads 1
Except as provided in sub section 2 there shall be levied and paid food each assessment year or part thereof a tax on the turnover to be determined in such manner as may be prescribed of first purchases made by a dealer or through a dealer acting as a pur chasing agent in respect of such goods or class of goods and at such rates not exceeding two paisa per rupee in the case of foodgrains including cereals and pulses and pulses and five paisa per rupee in the case of other goods and with effect from such date as may from time to time be notified by the State Government in this behalf
Explanation
In the case of a purchase made by a registered dealer through the agency of a licensed dealer the registered dealer shall be deemed to be the first purchaser and in every other case of a first purchase made through the agency of a dealer the dealer who is the agent shall be deemed to be the first purchaser
x x x x 3
x x x x 150 4
On the issue of a notification under this section no tax shall be levied under any other section in respect of the goods so notified
The provisions of the second and third proviso to Section 3 and of Section 18 shall mutatis mutandis apply in relation to the tax payable under this Section
x x x x 7
Unless the dealer proves otherwise to the satisfaction of the assessing authority every purchase by or through a dealer shall for the purposes of sub section 1 be presumed to be the first purchase by such dealer and every sale through a dealer shall for the purposes of sub section 2 be presumed to be sale to a first purchaser
 For our present purpose it is not necessary to refer to the second and third provisos to section 3 and section 18
It may be noted that section 3 D was incorporated into the Act on August 1 1958
The contention on behalf of the appellant was that section 3AA is a special provision regarding certain specified class of goods including oil seeds whereas section 3 D is a general provision
Hence dealings in respect of oil seeds must be held to be governed exclusively by section 3AA
In support of his contention the learned Counsel for the appellant called into aid the rule of construction that a special provision excludes the application of a general provision
On the other hand it was contended on behalf of the Revenue that power was conferred on the State Government to levy purchase tax in place of sales tax in respect of any goods  that may be notified under section 3 D1 subject only to the conditions mentioned therein
According to Dr Singhvi learned Counsel for the Revenue the legislature left the questions whether in respect of a class of goods the appropriate levy is sales tax or purchase tax as well as what is the appropriate point of levy to the State Government because a decision on that question has to be taken on an assessment of various factors some of which are not constant
According to him in view of the language employed in sub section
4 of section 3 D it is not possible to apply the rule of construction that special legislation in respect of any particular topic should exclude the application of general legislation
It may be noted that section 3 D was incorporated into the Act much later than section 3AA
As seen earlier section 3AA was incorpo rated into the Act on April 1 1956 whereas section 3 D was added 151 on August 1 1958
At the time the legislature incorporated into the Act section 3 D it must have been aware of the existence of section 3AA but yet in sub section
4 of section 3 D it declared that on the issue of a notification under that section no tax shall be levied under any other section in respect of the goods so notified
The ambit of this provision is very wide and it clearly takes in goods mentioned in section 3AA
Now turning to section 3AA it is important to note that it begins by saying notwithstanding anything contained in section 3 or 3 A
The non obstante clause does not take in section 3 D
If the legislature intended to exclude the operation of section 3 D in respect of matters covered by section 3AA nothing would have been easier than to say so
It could have said notwithstanding anything contained in section 3 3 A and section 3 D
But it did not choose to do that
Therefore there are no grounds to cut down the amplitude of the power conferred on the State Government under sub section
4 of section 3 D
The High Court of Allahabad has consistently taken the view that it is open to the State Government to levy purchase tax in exercise of its powers under section 3 D even in respect of goods covered by section 3AA
We are in agreement with that view
In the result these appeals fail and they are dismissed with costs
One set
KBN Appeals dismissed


Summary:
Under section 3AA of the Uttar Pradesh Sales Tax Act 1948 not withstanding anything contained in section 3 or 3A tax on the turnover of the goods specified therein was not leviable except at the point of sale by a dealer to the consumer
Section 3D incorporated into the Act later authorised the imposition of a tax on the turnover of first purchase and on the issue of a notification under the section no tax could be levied under any other section in respect of the goods so notified
On the question whether the notification dated October 1 1964 imposing a purchase tax on oil seeds was invalid for the reason that it contravened section 3AA of the Act HELD  It is open to the State Government to levy purchase tax in exercise of its powers under section 3D in respect of goods covered by section 3AA
At the time the legislature incorporated into the Act section 3D it must have been aware of the existence of section 3AA yet in sub section
4 of section 3D it declared that on the issue of a notification under the section no tax shall be levied under any other section in respect of the goods so notified
The ambit of this provision is very wide and it clearly takes in goods mentioned in section 3AA
Further the non obstante clause does not take in section 3D and if the legislature intended to exclude the operation of section 3D in respect of matters covered by section 3AA nothing would have been easier than to say so
Therefore there are no grounds to cut down the amplitude of the power conferred on the State Government under sub section
4 of section 3 D 150 H 151 D