Dhoop and agarbatti are not luxury goods under the Punjab General Sales Tax Act, 1948.

M.R.Sharma, J.

1. This judgment will dispose of Civil Writs Nos. 703 and 704 of 1972.

2. For facility of reference, the facts giving rise to C.W. No. 703 of 1972 may be briefly given. The petitioner is carrying on the business of manufacture and sale of dhoop and agarbatti and the firm is registered under the Punjab General Sales Tax Act, 1948 (hereinafter called the Act). For the year 1968-69, the petitioner was assessed on the turnover of Rs. 15,992.83, which related to the sale of dhoop and agarbatti at 6 per cent. in accordance with Section 5 of the Act. The petitioner was served with a notice under Section 11-A of the Act stating therein that the items relating to dhoop and agarbatti had been under-assessed and he was called upon to show cause why the tax at higher rate be not charged from him. The petitioner appeared before the Assessing Authority and submitted that dhoop and agarbatti were not attracted to enhanced liability of sales tax at the rate of 10 per cent., but his submissions did not find favour with the said authority. The petitioner has challenged this order, annexure A to the petition, dated 31st January, 1972, passed by respondent No. 1 in this petition.

3. The learned counsel for the respondents has raised a preliminary objection. According to him, the petitioner had remedies under the statute which he did not avail but He submits that I should decline to interfere under Article 226 of the Constitution in the circumstances of this case. I find no merit in this submission made by the learned counsel. If the action of the Assessing Authority is outside the provisions of the Act, then he cannot be forced to file appeals and revisions before the authorities under the statute. He can straightway come to this court and have the illegal demand quashed. The preliminary objection raised by the learned counsel for the respondents is, thus, overruled.

4. Section 5 of the Act provides that tax at the rate of six paise in a rupee may be imposed on the sale of ordinary goods. Regarding luxury goods, as specified in Schedule A appended to the Act, tax not exceeding ten paise in a rupee can be imposed. Entry 16 to Schedule A as amended by a notification issued by the Punjab Government on 6th September, 1968, runs as under :

(16) Cosmetics, perfumery and toilet goods excluding toothpaste, tooth-powder, kum-kum and soap.

5. The word "perfumery" has not been defined in the Act and according to the scheme of Section 5 and the language used in this entry, all items of perfumery, which correspond to the description of luxury goods, would fall within the ambit and scope of this entry. The learned counsel for the respondents has brought to my notice Commissioner of Sales Tax, U.P. V/s. Indian Herbs Research and Supply Co. [1970] 25 S.T.C. 151 (S.C.). In this case, the Supreme Court of India observed as under :

It is evident therefore that the word perfume originates from the word fumare which means to smoke or to emit vapour given off by some burning substance. In Encyclopaedia Britannica, Volume 17, 1965 Edition, at page 505, it is similarly pointed out that the literal meaning of the word incense is the same as perfume but perfume has later on acquired an extended meaning so as to include anything sweet from smoking incense to fragrance of flowers. We are, accordingly, of the opinion that the word perfume in item No. 37 of the Government notification should be construed in its ordinary sense, i.e., any substance natural or prepared which emits or is capable of emitting an agreeable odour either when burned or by the application of some foreign matter to induce any chemical reaction which results in fragrant odours being released from that substance. If we are right in taking this view, dhoop and dhoop-battis manufactured by the respondent fall within the category of perfume under item 37 of the Government notification and are liable to tax imposed therein. We should like to add that in Prahalad Das Gupta, Rajadarwaza,