IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 14.07.2011 CORAM: THE HONOURABLE MRS.JUSTICE CHITRA VENKATARAMAN and THE HONOURABLE MR.JUSTICE M.JAICHANDREN W.P.No.18038 of 1999 W.A.No.77 of 2000 and W.P.No.2991 of 2001 M/s.H.A.Kader Pondicherry represented by its Partner C.M.Syed .. Petitioner in W.P.Nos.18038 of 1999 and 2991 of 2001 / appellant in W.A.No.77 of 2000 versus 1. The Union of India Union Territory of Pondicherry rep. by its Secretary to Government (Finance) Pondicherry. 2. The Commissioner Commercial Tax Pondicherry. 3. The Commercial Tax Officer (IW) Pondicherry. .. Respondents-1 to 3 in W.P.Nos.18038 of 1999, 2991 of 2001 and W.A.No. 77 of 2000 PRAYER: W.P.No.18038 of 1999 is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari calling for the records of the respondent leading to the issue of the Notification issued in G.O.Ms.No.21/99/F-2, dated 30.3.1999 of the first respondent and to quash the same as ultra vires, unconstitutional and void ab initio. W.P.NO.18498/99:- this Petition filed under Article 226 of the https://hcservices.ecourts.gov.in/hcservices/ Constitution of India to issue a writ of certiorari or any other order or direction in the nature of writ calling for the records of the respondent leading to the issue of the notice No.302338/98- 2000/CTO-IW dated 28.9.99 and the order No.302338/99-2000 / CTO-IW dated 5.10.99 and quash the same as ultra vires and unconstitutional and void abinitio. W.A.No.77 of 2000 is filed under Clause 15 of the Letters Patent against the order dated 18.11.1999 made in W.P.No.18498 of 1999. W.P.No.2991 of 2001 is filed under Article 226 of the Constitution of India for the issue of a Writ of Certiorari calling for the records of the respondent leading to the issue of the order No.302338/99-2000, dated 12.1.2001 and the notice and demand No.302338/99-2000 dated 12.1.2001 and to quash the same as ultra vires, unconstitutional and void ab initio. For Petitioner in W.P.Nos.18038 of 1999 and 2992 of 2001 / appellant in W.A.No.77 of 2000: Mr.Perumbulavil Radhakrishnan For Respondents-1 to 3 in W.P.Nos.18038 of 1999, 2992 of 2001 and W.A.No. 77 of 2000 : Mr.T.P.Manoharan Special Government Pleader (Puducherry) ----- ORDER (Order of the Court was made by CHITRA VENKATARAMAN,J.) In W.P.No.18038 of 1999 the petitioner seeks the issue of a Writ of Certiorari to call for the notification in G.O.Ms.No.21/99/F-2, dated 30.3.1999 made by the Union Territory of Pondicherry and to quash the same as ultra vires, unconstitutional and void ab initio. On notice, the respondents have filed a counter affidavit. 2. The case of the assessee herein is as follows: The petitioner is a firm who are stockists of cigarettes for I.T.C. The petitioner is an assessee under the provisions of the Pondicherry General Sales Tax Act. It is seen from the records placed before this Court that under G.O.Ms.No.51/96/F.2 dated 21st September, 1996, the Government of Pondicherry issued a notification under Section 19 of the Pondicherry General Sales Tax Act as regards the liability on turnover tax, payable under Section 4-A of the said https://hcservices.ecourts.gov.in/hcservices/ Act. The notification reads as follows: " GOVERNMENT OF PONDICHERRY FINANCE DEPARTMENT (G.O.Ms.No.51/96/F.2, dated 21st September 1996.) NOTIFICATION In exercise of the powers conferred by sub- sections (1) and (2) of section 19 of the Pondicherry General Sales Tax Act, 1967 (Act No.6 of 1967), and in supersession of the notifications issued under G.OMs.No.25/92/F.6, dated 22nd June 1992 and G.O.Ms.No.38/92/F.6, dated 29th September 1992 of the Finance Department, Pondicherry, save as respects things done or omitted to be done before such supersession, the Lieutenant-Governor, Pondicherry, having been satisfied that it is necessary so to do in the public interest, hereby with immediate effect -- (i) exempts from payment of turnover tax under the provisions of section 4-A of the said Act, all dealers except the dealers in alcoholic beverages excluding arrack pattai and toddy; (ii) exempts from payment of turnover tax under the provisions of section 4-A of the said Act, the dealers in alcoholic beverages excluding arrack pattai and toddy, whose turnover does not exceed rupees five crores per annum; and (iii) reduces the turnover tax from 3 per cent to 0.5 per cent, in respect of the dealers in alcoholic beverages excluding arrack pattai and toddy, whose turnover exceeds rupees five crores per annum. " 3. The sum and substance of the notification is that it seeks to exempt all dealers, other than those dealing in alcoholic beverages excluding arrack, pattai and toddy, from payment of turnover tax as provided for under Section 4-A of the Pondicherry General Sales Tax Act. However, as regards dealers in alcoholic beverages excluding arrack pattai and toddy, it fixed a turnover limit for the grant of exemption that those dealers whose turnover does not exceed rupees five crores per annum alone are exempted from payment of tax. As regards dealers dealing in alcoholic beverages excluding arrack, pattai and toddy having turnover above rupees five crores, they would have to pay a reduced rate of tax at 0.5% as against 3% rate of turnover tax under Section 4A of the Act. The said notification underwent an amendment under G.O.Ms.No.21/99/F.2 dated 30th March 1999 whereby, under Clause (i), while retaining exemption to all dealers from payment of tax, it excluded apart from dealers in alcoholic beverage excluding arrack, pattai and toddy; also brought in dealers in cigarettes and timber under the exclusion clause. After Clause https://hcservices.ecourts.gov.in/hcservices/ (iii) in the original notification, it inserted a further clause as Clause (iv), exempting from payment of turnover tax under Section 4- A, dealers in cigarettes and timber whose total turnover does not exceed Rs.50 lakhs per annum. In respect of dealers in cigarettes and timber whose total turnover is more than Rs.50 lakhs, a reduction in rate of tax from 3% to 1% was granted under Clause (v). Thus, by reason of this amendment made by G.O.Ms.No.21/99/F.2 dated 30th March 1999, while dealers dealing in cigarettes and timber are excluded from getting absolute unconditional exemption claim, dealers dealing in cigarettes and timber are granted conditional exemption restricted to the dealers having a total turnover upto Rs.50 lakhs and those dealers dealing in cigarettes and timber having a total turnover exceeding Rs.50 lakhs would have to pay turnover tax at the concessional rate of 1%. 4. The petitioner herein challenges the said notification on the ground that cigarettes are declared as goods of special importance, as per Section 14 of the General Sales Tax Act. Cigarettes are liable to additional duty of excise under the Second Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957. Since the same is levied by the Central Government, the States are thus estopped from the levy of sales tax on cigarettes and that the Union Territory of Pondicherry has no legislative competence to impose additional sales tax to the tune of 1% under Section 4-A. The petitioner further contends that Section 9 of the Pondicherry General Sales Tax Act provides statutory exemption from payment of tax in respect of the scheduled goods. That being the case, the exemption under Section 9 has to be read into the levy under Section 4A(2). Consequently, the question of the State withdrawing the exemption, in exercise of the powers conferred under Section 19, does not arise. 5. The assessee further contends that given the fact that the Additional Duties of Excise (Goods of Special Importance) Act, 1957 replaces the sales tax levied, the levy of turnover tax cannot occupy the field of the Additional Duties of Excise Act. Consequently, the entire exercise is contrary to the provisions of the Constitution. 6. Countering the said claim, the respondent, in their counter affidavit, contended that given the definition of "total turnover" under the provisions of the Act and that the levy of turnover tax under Section 4-A is on the total turnover of the dealer, even the exempted turnover would also fall for consideration under the concept of total turnover. Apart from that, the additional duties of excise under the Additional Duties of Excise (Goods of Special Importance) Act, 1957, by itself, does not tie the hands of the State Government from levying the turnover tax. Considering the fact that Section 4-A is a code by itself, the liability to pay turnover tax arises https://hcservices.ecourts.gov.in/hcservices/ irrespective of whether the assessee is liable to pay any sales tax or not and that includes the goods suffering duties of additional excise. Thus all that the Central Act states is that, wherever the State collects tax under the local enactment, the benefit of additional excise levied would not enure to the benefit of the said State. The counter further states that the Government had issued the notification in exercise of its powers under Section 19 of the Act. Given the fact that the State Legislature has the competence to grant exemption/reduction in the rate of tax in public interest subject to such restrictions and conditions, there is nothing illegal in the said Government Order giving exemption and concessional rate of tax on the total turnover limit, subject to the conditions specified therein. 7. Quite apart, the additional excise duty is levied by the Central Government. The Pondicherry Government administration is not getting any revenue so collected under the additional excise duty enactment. Thus there is no repugnancy between Section 4-A of the Pondicherry General Sales Tax Act and Section 14(iv) and Section 15 of the Central Sales Tax Act. So too as regards the levy of additional duty and excise under the Additional Duties of Excise (Goods of Special Importance) Act, 1957. In the light of the above, there are no merits in the writ petition. 8. Learned counsel appearing for the assessee/petitioner pointed out that on the admitted position that cigarettes attract additional duty of excise under the Central enactment, the levy of turnover tax under Section 4-A is an unconstitutional levy. He further pointed out that considering the fact that Section 9 of the Pondicherry General Sales Tax Act exempts goods specified under the Third Schedule, the question of bringing any exempted turnover under Section 4-A does not arise. Thus the levy under Section 4A of the Pondicherry General Sales Tax Act is repugnant to the above-said provision as well as in violation of the Additional Duties of Excise (Goods of Special Importance) Act, 1957. In the circumstances, learned counsel seeks a Writ of Certiorari to quash the notification as unconstitutional and arbitrary. 9. Per contra, while supporting the notification, learned Special Government Pleader appearing for the Pondicherry Government, placed reliance on the definition of "total turnover" in Section 2(r) of the Pondicherry Sales Tax Act and Section 4-A, which is a code by itself, as regards the levy of turnover tax and submitted that going by the definition of "total turnover", irrespective of the exemption from the levy of the General Sales Tax provisions, the entire total turnover would go in for chargeability of turnover tax under Section 4-A. He further pointed out to the provisions of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, that as per https://hcservices.ecourts.gov.in/hcservices/ the said Act, the State would be debarred from levying tax under the State enactment, if it is in receipt of additional duties of excise levied by the Central Government. As far as Pondicherry Administration is concerned, it has not been in receipt of any collection of additional duties of excise on cigarettes. In the light of the above, the question of reading any unconstitutionality in the notification does not arise. 10. Given the fact that the State is competent to levy turnover tax under Section 4-A of the Pondicherry General Sales Tax Act and to grant exemption under Section 19 either absolutely or subject to terms and conditions and that Section 9 specifies goods included in the Third Schedule exempted from payment of any tax under the Act, no exception could be taken to the notification issued by the Government. He also placed reliance on the decisions reported in (1998) 7 SCC 237 (Sun Oil Company (P) Ltd. Vs. State of W.B.) and (2010) 11 SCC 1 (Union of India Vs. Madras Bar Association), that when the statute is clear in what it intends to levy, nothing can be read into the provisions of the Act. 11. Learned Special Government Pleader also placed before this Court, the decision of a learned single Judge of this Court in W.P.No.15808 of 1999, dated 08.10.1999 (M/s.Lakshmi Agencies, Yanam, by its Managing Partner Vs. Union Territory of Pondicherry and another), wherein this Court had an occasion to consider the notification in G.O.Ms.No.21/99/F2 Finance dated 30.3.1999. This Court rejected the plea on the ground that when the Act provides the levy of turnover tax and the exemption contemplated under Section 9 is subject to restrictions and conditions as may be prescribed and the Government prescribes the conditions in public interest, the same cannot be challenged. He submitted that the said decision of this Court has not been challenged so far. 12. Heard learned counsel appearing on both sides and perused the material on record. 13. As already noted, the notification originally introduced in the year 1996 and the subsequent notification of the year 1999 are made in exercise of the powers conferred on the State under sub sections (1), (2) and (3) of Section 19 of the Pondicherry General Sales Tax Act. Section 19 is a specific provision enabling the State to make notifications in public interest granting exemption or reduction in rate of tax in respect of any tax payable under the Pondicherry General Sales Tax Act. Sub Section (2)(b) of Section 19 states that exemption from tax or reduction in the rate of tax notified under sub section (1) may be subject to such restrictions and conditions as may be specified in the notification. Thus given the fact that the State has the competency to grant exemption or https://hcservices.ecourts.gov.in/hcservices/ reduction of rate of tax, either absolute or subject to conditions or with restrictions as may be specified in the notification, the challenge to the notification would arise only in such case where the State itself has no authority to levy tax or that the conditions imposed therein are contrary or repugnant to the provisions of the Act or the Constitution. 14. Section 2 of the Pondicherry General Sales Tax Act defines among other things, "turnover" - Section 2(s), "total turnover" - Section 2(r) and "taxable turnover" – Section 2(q). For the purpose of this case, it is enough if we refer to the definition of "taxable turnover" as defined under Section 2(q) and "total turnover" as defined under Section 2(r). The said definitions read as follows: " 2(q) 'taxable turnover' means the turnover on which a dealer shall be liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed, but shall not include the turnover of purchase or sale in the course of inter-State trade or commerce or in the course of export of the goods out of the territory of India or in the course of import of the goods into the territory of India. 2(r) "total turnover" means the aggregate turnover in all goods of a dealer at all places of business in the State, whether or not the whole or any portion of such turnover is liable to tax, including the turnover of purchase or sale in the course of inter-State trade or commerce or in the course of export of the goods out of the territory of India or in the course of import of the goods into the territory of India. " 15. Section 3 is the charging provision relating to payment of general sales tax under the Act. Section 4-A deals with levy of turnover tax. The notification with which we are concerned herein relates to exemption from payment of turnover tax. Section 4-A of the Pondicherry General Sales Tax Act reads as follows: "4A. Levy of turnover tax – (1) Notwithstanding anything contained in this Act or the Rules made thereunder, every dealer shall pay turnover tax at the rate of three per cent on the total turnover: Provided that no tax under this section shall be payable on that part of such turnover https://hcservices.ecourts.gov.in/hcservices/ which relates to, -- (a) sale or purchase of goods in the course of inter-State trade or commerce; (b) sale or purchase of goods in the course of export out of the territory of India or sale or purchase in the course of import into the territory of India; (c) all amounts falling under the head 'freight', when specified and charged for by the dealer separately without including such amounts in the price of the goods sold; (d) all amounts falling under the head 'charges for packing materials and cost of labour', when specified and charged for by the dealer separately without including such amounts in the price of the goods; (e) all amounts allowed as discount, provided that such discount is allowed in accordance with the regular practice of the dealer or is in accordance with the terms of a contract or agreement entered into in a particular case and provided also that the accounts show that the purchaser has paid only the sum originally charged less discount; (f) all amounts allowed to purchasers in respect of goods returned by them to the dealer when the goods are taxable on sales provided that the goods were returned within a period of three months from the date of delivery of the goods and the accounts show the date on which the goods were returned and the date on which and the amount for which refund was made; and (g) all amounts received from the sellers in respect of goods returned to them by the dealer, when the goods are taxable on the purchase value provided that the goods were returned within a period of three months from the date of delivery of the goods and the accounts show the date on which the goods were returned and the date on which and the amount for which refund was received. (2) The provisions of this Act and the Rules made thereunder shall, so far as may be, apply in relation to the assessment, collection or refund of the turnover tax, as they apply in relation to the assessment, collection or refund of tax under other provisions of this Act. (3) Notwithstanding anything contained in Section https://hcservices.ecourts.gov.in/hcservices/ 25, no dealer shall collect from his purchaser the turnover tax payable by him under this section. " 16. Section 4A starts with a non-obstante clause that notwithstanding anything contained in the Act or the Rules made thereunder, every dealer under the Act has to pay turnover tax at the rate of 3% on the total turnover. The Section contains a proviso to exclude inter-state sale, sale in the interest of the country of India or import into the territory of India, freight charges separately specified and turnover not includible in the total turnover. As already seen, "total turnover", as defined under Section 2(r), means the aggregate turnover of a dealer in all goods i.e., the amount for which goods are bought or sold, as given under the definition of "turnover" under Section 2(s). In contrast to Section 3, the charging Section, which levies general sales tax on the taxable turnover, levy of turnover tax is on the total turnover of the dealer as computed in accordance with the definition of "total turnover" under the Act. Thus going by the said definition, irrespective of the liability to pay general sales tax, the chargeability under the provisions of Section 4-A arises on the entire total turnover irrespective of whether the turnover is liable to tax at all or not, under the General Sales Tax levy, i.e., every turnover which is comprised in the total turnover other than those specifically excluded falls for consideration under Section 4-A of the Pondicherry General Sales Tax Act. 17. Section 9 is a specific provision which deals with the goods specified under the Third Schedule on which an exemption is granted. Thus in substance, the Third Schedule merely catalogues the goods which are exempted. Section 9, by itself, does not impose any condition or restriction for granting the exemption. There are no Rules which prescribe restrictions or conditions. However, the said Section states that the exemption shall be subject to such restrictions and conditions as may be prescribed and the dealer who deals in the goods specified under the Third Schedule shall not be liable to pay any tax under the Act in respect of such goods. Given the fact that the State is conferred the delegated legislative authority to issue notification in public interest granting exemption/reduced rate of tax either absolutely as regards the dealers or goods or both or subject to such restrictions and conditions, goods falling under the Third Schedule may also come for consideration under Section 19 for granting exemption/ reduced rate of tax, subject to conditions and restrictions. 18. Entry 25 of the Third Schedule deals with tobacco and all its products. Cigarettes being products of tobacco, fall under the Second Entry. Even though learned counsel appearing for the petitioner submits that by reason of Section 9, cigarettes, being a https://hcservices.ecourts.gov.in/hcservices/ product of tobacco, would qualify for exemption, given the fact that Section 9 merely lists out in the Third Schedule, goods as exempted goods from payment of any tax and that the same are subject to conditions and restrictions as may be prescribed, the condition prescribed through the notification under Section 19(1) and (2), hence, has to read into the same that the exemption is not an unqualified one, but subject to the conditions stated in the notification. Thus while Section 9 has to be read as referable to exemption from payment of any tax under the Act as regards the goods mentioned in the Third Schedule subject to conditions and restrictions, the same has to be read with reference to the conditions and restrictions imposed under Section 19. In so holding, we are in entire agreement with the view expressed by the learned single Judge in the order dated 08.10.1999 in W.P.No.15808 of 1999 (M/s.Lakshmi Agencies, Yanam, by its Managing Partner Vs. Union Territory of Pondicherry and another). 19. As regards the contention based on the Additional Duties of Excise (Goods of Special Importance) Act, 1957, we do not find any repugnancy between the notification and the Additional Duties of Excise (Goods of Special Importance) Act, 1957. The assessee contends that the State has no competence to bring cigarettes within the ambit of turnover tax. The said argument rests on the premise that cigarettes attract the provisions of the Additional Duties of Excise (Goods of Special Importance) Act, 1957, that when once there is an additional duty of excise leviable on the assessee, there cannot be a levy of turnover tax. We do not find any justification to accept the said contention. The proviso under the Second Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957, reads as follows: "2. Tobacco – During the financial years commencing on the 1st day of April, 1984, there shall be paid to each of the states specified in column 1 of the Table below such percentage of the net proceeds of additional duties levied and collected during that financial year in respect of tobacco, after deducting therefrom a sum equal to 2.192 per cent of the said proceeds as being attributable to Union territories, as is set out against it in column 2: Provided that if during that financial year there is levied and collected in any State a tax on the sale or purchase of tobacco by or under any law of that State, no sums shall be payable to that State under this paragraph in respect of that financial year, unless the Central Government by special order otherwise directs. TABLE https://hcservices.ecourts.gov.in/hcservices/ ---------------------------------------------- State Percentage ---------------------------------------------- 1 2 ---------------------------------------------- Andhra Pradesh 8.011 Assam 2.297 Bihar 7.219 Gujarat 6.013 Haryana 2.785 Himachal Pradesh 0.734 Jammu and