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1986 Supreme(Ori) 149
G.B. Pattanaik, Lingaraja Rath, JJ.
JANAJIVAN FOODS PRIVATE LIMITED
Versus
SALES TAX OFFICER, GANJAM-I CIRCLE, AND OTHERS
Original Jurisdiction Case No. 2251 of 1986
Decided On: Decided On : 21-10-1986
A. Pasayat, for the petitioner.
The Standing Counsel (C.T.), for the respondent.
Vermicelli is not covered under entry No. 1 or entry No. 13 of List-C, but under the residuary entry No. 101.
Headnote:
SALES TAX - Vermicelli - Whether covered under entry No. 1 or entry No. 13 of List-C for which the rate of tax is 4 per cent, or it is covered under the residuary item under entry No. 101 for which the rate of tax is 8 per cent - Held, vermicelli is not covered under entry No. 1 or entry No. 13, but under the residuary entry No. 101.
Fact of the Case:
The petitioner, a registered dealer, carries on business in vermicelli (semiya) on wholesale basis. The taxing authority issued a notice under section 12(4) of the Orissa Sales Tax Act and calculated the tax at the rate of 8 per cent, directing the petitioner to pay the balance sum of Rs. 19,543. The petitioner challenged the order, contending that vermicelli is covered under entry No. 1 or entry No. 13 of List-C for which the rate of tax is 4 per cent.
Finding of the Court:
The court held that vermicelli is not covered under entry No. 1 or entry No. 13 of List-C, but under the residuary entry No. 101. The court found that vermicelli is a commercially different article from atta, maida, and suji, and that a dealer of atta, maida, and suji may not be dealing with vermicelli at all.
Issues: Whether vermicelli is covered under entry No. 1 or entry No. 13 of List-C for which the rate of tax is 4 per cent, or it is covered under the residuary item under entry No. 101 for which the rate of tax is 8 per cent.
Ratio Decidendi: The court applied the common parlance test to construe the meaning of vermicelli. The court found that neither a dealer nor a consumer would understand vermicelli to be the same thing as atta, maida, or suji. The court also found that vermicelli is a commercially different article altogether, so much so that a dealer of atta, maida, and suji may not be dealing with vermicelli at all.
Final Decision: The court dismissed the writ petition, holding that the order of the assessing officer was justified and that vermicelli is taxable under the residuary entry No. 101 at the rate of 8 per cent.
JUDGMENT
G. B. PATNAIK, J. - The question raised in this writ petition is whether "vermicelli" commonly known as "semiya" is covered by entry No. 1 or entry No. 13 of List-C for which the rate of tax on the taxable turnover is 4 per cent, as contended by the petitioner, or it is covered under the residuary item under entry No. 101 for which the rate of tax is 8 per cent, as has been held by the taxing authority under the Orissa Sales Tax Act.
2. The petitioner is a registered dealer and carries on business in "vermicelli (semiya)" on wholesale basis on receiving the stock from Hyderabad. The taxing authority issued a notice under section 12(4) of the Orissa Sales Tax Act pursuant to which the petitioner produced the sale register, stock register, sale bills and stock transfer notes, et cetera, for examination of the assessing authority. The entire records produced by the petitioner were examined and the assessing officer found the gross turnover of the business at Rs. 5,08,129.33 and the taxable turnover at Rs. 4,88,585.90. The petitioner had paid sales tax on the taxable turnover at the rate of 4 per cent, but the assessing officer has calculated the tax at the rare of 8 per cent and, therefore, deducting the amount already paid, has directed the petitioner to pay the balance sum of Rs. 19,543. It is this order of the assessing authority, the petitioner has challenged in this writ petition.
3. Though the impugned order is appealable and no appeal has been filed, yet Mr. Pasayat for the petitioner contends that no disputed question of fact being involved and the petitioner having not challenged the gross turnover or taxable turnover found by the assessing authority but merely challenging the rate of tax at which on the taxable turnover sales tax has to be paid, the petitioner has directly approached this Court under article 226 of the Constitution. In view of the admitted position that no disputed question of fact is involved and the case involves a pure interpretation of law, we do not think it appropriate to close the doors of this Court on the ground of an available alternative remedy.
4. Section 5(1) of the Orissa Sales Tax Act, on the relevant date, was as follows :
"The tax payable by a dealer under this Act shall be levied on his taxable turnover at such rate, not exceeding sixteen per cent and subject to such conditions as the State Government may from time to time, by notification, specify."
Pursuant to this provision, a notification has been issued vide No. 12531, CTA, 62/82-F, dated 22nd March, 1982, effective from 1st April, 1982, enumerating 101 entries and defining the rate of tax to be paid on the same. All these goods have been compendiously included in a list called List-C. List-A contains a list of goods exempted from tax as provided for under section 6 of the Orissa Sales Tax Act and List-B contains a list of goods which are subject to purchase tax as provided for under section 3-B of the said Act. We are, however, concerned in this case with the list of goods subject to sales tax. In the said List, entry No. 1 is "atta, maida and suji" and the rate of tax as provided for is 4 per cent with effect from 1st April, 1982. Entry No. 13 is "cereals other than wheat, paddy, rice/broken rice, jowar, suan, gurji, kangu, ragi and maize" for which also the rate of tax provided for is 4 per cent. Mr. Pasayat, the learned counsel for the petitioner, contends that "vermicelli" or "semiya" is nothing but a preparation out of "maida" and, therefore, the same is covered either under entry No. 1 or under entry No. 13.
5. There is no dispute that vermicelli or "semiya" is prepared out of "maida" and "maida" is one of the products of wheat. The process which is undergone for preparation of "semiya" out of "maida" is that "maida" is mixed up with water in certain proportion and is made into a paste and then it is pushed through an apparatus as a result of which slender thread-like article comes out which on being dried is calle
