ORDER
H.L. Dattu, J.
1. Petitioner is carrying on business as wholesale kirana merchants and registered under the provisions of the Karnataka Sales Tax Act, 1957 ('the Act', for short). Petitioner is also a dealer in 'sugar-candy'. Petitioner is assessed to tax at 4 per cent single point under item No. 18A of Part S of the Second Schedule to the Act, for the assessment year 1992-93, on their sale of sugar-candy. Petitioner did not challenge this order by filing statutory appeal as provided under section 20 of the Act, though that is the normal remedy available to them in law. On the other hand, he has filed this petition challenging the correctness or otherwise of the levy of tax on 'sugar-candy' as unconstitutional. But I must admit that while hearing the matter, I did not find any trace of any constitutional question any where in this case; justifying petitioner approaching this Court under article 226 of the Constitution, instead of following the alternate, effective, efficacious remedy provided under the Act. Since the matter was argued at length, out of sheer deference to the learned counsel, I shall deal with the matter on the merits of the case; on which again, I do not find anything substantial in this case.
2. The ground urged is that 'sugar' includes 'sugar-candy' and 3since sugar is exempt from payment of sales tax, under section 8 read with entry 31-B in the Fifth Schedule, 'sugar-candy' also is exempt from the payment of sales tax and therefore, Sales Tax Officer was incorrect when he framed assessments by levying tax at 4 per cent single point on the sales turnover of sugar-candy.
3. To appreciate the contention urged, it would be useful to refer to the relevant facts. The assessee is a dealer in 'sugar-candy'. It claimed exemption from the sales tax on the turnover relating to sales of sugar-candy. The assessing authority has rejected the claim and has framed assessment being of the view that sugar-candy is taxable at 4 per cent single point with effect from April 1, 1992 under item No. 18A of Part S of the Second Schedule.
4. The sole question that requires to be considered and decided is whether the turnover of sales of sugar-candy is exigible to tax under item No. 18A of the Second Schedule
5. To answer this precise question, it will be useful to begin the discussion by referring to such provisions of Sales Tax Act.
6. Section 5 of the Act is the charging section. Section 5(3) of the Act specifies a single point of levy in respect of certain specified goods by the first or earliest of successive dealers in the State. The intention of this provision is to impose a single point levy on the first stage of sale of goods specified in the Second Schedule.
7. Item No. 18A of Part S of the Second Schedule to the Act speaks of levy of single point tax at 4 per cent on sugar and sugar preparation excluding such sugar and sugar preparations as are covered, described or specified elsewhere in any of the Schedules. The said entry was inserted by Act 4 of 1992 with effect from April 1, 1992.
8. 'Sugar' also finds a place in Fifth Schedule to the Act. Goods specified in the Fifth Schedule are exempt from payment of sales tax under section 8 of the Act. By Act 4 of 1992, entry 31-B was substituted with effect from April 1, 1992. The entry reads as under :
'31-B. Sugar as described from time to time in column 3 of the First Schedule to the Additional Duties of Excise (Goods of Special Importance) Act, 1957, but excluding confectionery and the like.'
9. In view of this substituted entry, problem has creped in, otherwise earlier to this entry 'sugar-candy' had been excluded from the purview of sugar for the periods April 1, 1985 to March 31, 1986 and was included for the period April 1, 1986 to March 31, 1992.
10. The scope of exemption under this entry will vary depending upon the scope of item relating to sugar in Additional Duties of Excise Act. The Karnataka Sales Tax Act has brought in the definition of Additional Duties of Excise Act by way of reference and not by way of incorporation. Therefore, the question of exemption has to be judged with reference to the provisions of the Additional Duties of Excise Act.
11. In Annapurna Biscuit Manufacturing Co. v. Commissioner of Sales Tax : [1982]1SCR149 the Supreme Court has observed as follows, while dealing with the question as to how an entry given in a Schedule to the sales tax Legislation, has to be understood. It reads as under :
'It is well-settled rule of construction that the works used in a law imposing a tax should be construed in the same way in which they are understood in ordinary parlance in the area in which the law is in force. If an expression is capable of a wide meaning as well as narrower meaning the question whether the wider or the narrower meaning should be given depends on the context and the background of the case.'
12. 'Sugar-candy' is not defined under the Act. It is also not defined under the Central Excises and Salt Act, 1944. Necessarily resort must be to the dictionary meaning of the word 'sugar-candy'. In Webster's its meaning is assigned as 'A more or less solid preparation made by boiling sugar or molasses to the desired consistency and then crystallising, moulding or working into required shape'. It is usually flavoured or coloured and often contains fruit nuts. In Oxford Dictionary 'sugar-candy' is described as crystallised sugar made by repeated boiling and slow evaporation.
13. In Una Subba Rao v. State of Orissa [1986] 61 STC 49, a Bench of the Orissa High Court was pleased to observe that, 'it is common knowledge that though 'sugar-candy' is made out of sugar, it is the result of a different process other than the one involved in the manufacture of sugar'.
14. Even according to the petitioner 'sugar-candy' is prepared by boiling sugar in a pan and thereafter kept aside for five or six days in a galvanised tray after which the granules are crystallised and the same are then hammered into small blocks and those small blocks are called 'sugar-candy'.
15. In view of the process of preparing 'sugar-candy', it can safely be said that the preparation of 'sugar-candy' involves a different process and it is the result of a different process other than the one involved in the manufacture of sugar. It can also be said 'sugar-candy' is nothing but sugar preparation.
16. Now we go back to entry 18A of Part S of the Second Schedule. It speaks not only of sugar but sugar preparation but excluding such sugar and sugar preparations specified elsewhere in any of the Schedules. Then we have 'sugar' in Fifth Schedule also. The Legislature mandates that 'sugar' in the Fifth Schedule to be understood as described in column 3 of the First Schedule to Additional Duties of Excise (Goods of Special Importance) Act, 1957. Under the First Schedule different varieties of sugar is mentioned. They are khandasari sugar (sub-heading No. 1701-20), required by the Central Government to be sold under clause (f) of sub-section (3) of the Essential Commodities Act, 1955 (sub-heading No. 1701-31), others (sub-heading No. 1701-39) and palmyra sugar (sub-heading No. 1702-11). The Schedule also indicates that the rules of interpretation of the Schedule to the Central Excise Tariff Act, 1985, shall apply for interpretation of this Schedule also. Under the Central Excises and Salt Act, 1944, sugar is defined. It means any form of sugar in which the sucrose content, if expressed as a percentage of the material dried to constant weight at 105 Degree centigrade would be more than ninety. In view of this, it is strongly contended by learned counsel for the petitioner that 'sugar' also includes 'sugar-candy'. In entry 18A of the Second Schedule, Legislature intends to levy sales tax both on sugar and sugar preparation. Sugar envisaged in this entry is wholly different form or variety of sugar than the 'sugar' mentioned in the Fifth Schedule. That apart Legislature specifically provides for levy of sales tax on sugar preparation. I have already indicated that 'sugar-candy' is nothing but sugar preparation. This sugar preparation is not found in column 3 of the First Schedule to the Addition Duties of Excise (Goods of Special Importance) Act, 1957. This clearly gives an indication that the Legislature intends to treat sugar and sugar preparation as commercially different commodities and chooses to levy tax on sugar-candy which is nothing but sugar preparation. The competency of the Legislature to pick and choose and say sugar preparation is liable to tax but not sugar as defined in the Additional Duties of Excise Act, cannot be doubted.
17. 'Sugar' is different from 'sugar-candy' though 'sugar-candy is made out of sugar. Different manufacturing process is also involved in making sugar-candy. In Surana and Company v. State of A.P. [1977] 40 STC 192, the Andhra Pradesh Court was pleased to observe : '...........though the only component of 'sugar-candy' is 'sugar' in common parlance the expressions 'sugar' and 'sugar-candy' are used to denote substances identifiable as distinct substances and if the expressions 'sugar' and 'sugar-candy' are understood as they are understood in common parlance and as they were apparently meant to be understood by the Legislature, there would be no inconsistency whatever.'
18. Again, Orissa High Court in the case of Una Subba Rao v. State of Orissa [1986] 61 STC 49 was pleased to observe a as under :
'It is common knowledge that though 'sugar-candy' (misri in this part) is made out of sugar, it is the result of a different process other than the one involved in the manufacture of sugar. The Legislature can always pick and choose articles for taxation and say that it will tax sugar-candy, but will not tax sugar. So long as the competence of the Legislature to tax sugar-candy which is commercially a different product from sugar is accepted, it cannot be said that the sales tax authorities are wrong in treating sugar-candy as one different from sugar and bringing it within the net of taxation by amendment of List C and including the same within the list of taxable goods. As long as sugar-candy is sold in the market as a separate commodity apart from sugar, it cannot be taken as a separate commodity other than sugar for the purpose of levy of tax. It is the common knowledge that 'sugar-candy' (misri) is not normally treated as 'sugar' and a customer who comes to a shop and asks for sugar will not accept if he is supplied with sugar-candy. The fact that 'sugar' and 'sugar-candy' are separately mentioned in different Schedules of the Sales Tax Act indicates that the Legislature intended to treat them and treated them differently, subjecting one to tax and exempting the other from tax.'
19. In State of Orissa v. Laxmi Industries [1991] 81 STC 43, a Bench of the Orissa High Court was pleased to observe as follows :
'Sugar ordinarily would include sugar-candy. Sugar is the genus and sugar-candy the specie. When sugar-candy is not specifically dealt with as a separate commercial commodity, for the purpose of taxation it would come within the category of sugar. However, where sugar-candy is treated as a different commercial commodity from sugar for the purpose of taxation, a taxing authority cannot treat sugar-candy as sugar.'
20. 'Sugar' as defined in the Additional Duties of Excise Act is made tax-free under the Karnataka Sales Tax Act and it is not all forms or varieties of sugar or preparation of sugar is made tax-free. The Parliament levies additional duties of excise under the Additional Duties of Excise Act and distributes a part of the proceeds among the States provided the States do not levy taxes on sale or purchase of the scheduled commodities. If for any reason, State levies tax on sale or purchase of scheduled commodities, then the State will be deprived of its share in the proceeds of additional duties of excise for that financial year. Parliament has not prohibited any State from levying tax on sugar or sugar preparation which a State can levy in view of entries in List II.
21. For the reasons stated, I hold 'sugar-candy' which is nothing but sugar preparation is liable to payment of sales tax under the Act. Accordingly, I hold 'sugar-candy' is not exempt from payment of tax under entry No. 31-B of the Fifth Schedule to the Act and in view of this, I uphold the clarification of the Commissioner of Commercial Taxes, in No. CLR. CR. 80/93-94 dated September 1, 1993.
22. With the above observations, writ petition is disposed of.
23. Writ petition dismissed.