Judgment

MATHEW, J.:- These two appeals, by Special leave, are from the judgment dated November 16, 1966 of the Mysore High Court in S.T.R.P. No.52 of 1965 and Writ Petition No. 2349 of 1965.

2. The appellant was a dealer, among other things, in textiles, with its head office at Mercara and a branch at Bangalore. It was assessed to sales tax on April 29, 1965 under the Mysore General Sales Tax, 1957, on its turnover for the period from October 1, 1957 to March 31, 1958. The question in dispute was whether the turnover of Rs.3,87,200 estimated to be the value of the stock of mill cloth held by the Appellant on December 14, 1957 was exigible to tax. The contention of the Appellant before the assessing authority was that the turnover related to mill cloth on which the additional excise duty was not payable and therefore not paid and so the turnover was exempt from sales tax. The contention was rejected. The Appellant appealed to the Deputy Commissioner of Commercial Taxes. The appeal was dismissed. Its further appeal to the Sales Tax Appellate Tribunal also proved unsuccessful.

3. The Appellant took the matter in revision to the Mysore High Court and it also filed a writ petition. Its contention in the writ petition was that sub-section (5A) introduced in Section 5 of the Mysore General Sales Tax Act, 1957 by Act No.9 of 1964 under which the levy was made was ultra vires the powers of Mysore Legislature and therefore void.

4. A Division Bench of the High Court by a common judgment dismissed the petitions.

5. The Mysore Sales Tax Act, 1957 hereinafter referred to as "the Act", came into force on October 1, 1957. Section 5 of the Act is the principal charging section. Under the Act, as it stood originally promulgated, cloth of various categories specified in items Nos. 1 to 7 in the Second Schedule to the Act was subjected to a single point levy in accordance with the provisions of Section 5 (3) of the Act.

6. Pursuant to a proposal for imposition of additional duties of excise in respect of certain articles including cloth, in lieu of the sales tax leviable by the several States in India, Parliament passed the Additional Duties of Excise (Goods of Special Importance) Act, 1957, (58 of 1957), which came into force on December 24, 1957. The Mysore Sales Tax (Amendment) Ordinance 1957, (Mysore Ordinance 9 of 1957) came into force on December 14, 1957. The Ordinance was replaced by the Mysore Sales Tax (Amendment) Act, 1958 (Mysore Act No.9 of 1958) which was given retrospective effect as from December 14, 1957.

7. Sub-section (5A) inserted in Section 5 by the Amending Act No.9 of 1958 read as follows:-

"(5A) Notwithstanding anything contained in sub-sections (3) and (5), and subject to the provisions of sub-section (1) of Section 8, in respect of-

(a)(i) the sales of goods mentioned in Items 1, 2, 3, 4, 5, 6, 7, 27, 28, 29, 30, 31, 32 and 42 of the Second Schedule, and

(ii) the purchase of the goods mentioned in Item 3 of the Third Schedule;

on which excise duty or additional excise duty levied by the Central Government with effect from the fourteenth day of December, 1957, has not been paid;

(b) the sale of goods mentioned in Items 33 and 42 of the Second Schedule held in stock by the dealer on the fourteenth day of December, 1957, on which the said excise duty is not payable:

the tax payable under this Act shall be levied at the rates and at the points specified in the said Second or Third Schedule, as the case may be, on the dealer in such goods whatever his total turnover during the year relating to such goods may be".

8-9. The existing Section 8 of the Act was renumbered as sub-section (1) thereof and continued to read as follows:-

"No tax shall be payable under this Act on the sale of goods specified in the Fifth Schedule subject to the conditions, and exceptions, if any, set out therein.

10. The following sub-section (2) was added by Amending Act No.9 of 1958 to Section 8:-

"(2) Subject to the provisions of sub-section (1) in respect of the sa