ORDER
V. Ramaswami, J.
1. The petitioners in these cases are the manufacturers of Woodward's Gripe Water, Williams After Shave Lotion, Williams Electric Shave, Metalin Oral and allied products. They are carrying on business in the State of Tamil Nadu. For the Assessment years 1961-62 to 1967-68, they submitted their returns under the Tamil Nadu General Sales Tax Act, 1959 (hereinafter referred to as the Sales Tax Act). They had collected the tax payable on the taxable turnover. Their returns were accepted and assessment orders were made on various dates.
2. Prior to 1st June, 1961, the excise duty on medicinal and toilet preparations was levied under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 on only the alcoholic contents of the preparations. But, with effect from 1st June, 1961 by a Government Notification, the Excise Duty became payable ad valorem on the entire quantity of the goods and not merely on the alcoholic contents. On 12th July, 1968, on an appeal preferred by one Messrs. T.T. Krishnamachari & Company, who were dealers, among others, in Woodward's Gripe Water, the Appellate Assistant Commissioner, Madras, took the view, purporting to rely on an earlier order of the Tribunal, that by virtue of Section 8 of the General Clauses Act, 1897, any excise duty levied or leviable under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, should be equated to an excise duty levied or leviable under Section 18-A of the Madras Prohibition Act, 1937. In that view, he held that the turnover relating to the sale of Woodward's Gripe Water, in respect of which excise duty had been paid under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, were entitled for exemption under Section 8 read with item 3 of the III Schedule to the Sales Tax Act.
3. On 31st December, 1968, the petitioners filed two petitions before the Deputy Commercial Tax Officer, Tambaram, who was the Assessing Authority, for refund of the tax paid by them in respect of the Assessment Years 1961-62 to 1967-68. In these petitions, they claimed that the products sold by them contained alcohol and were exempt from tax. Under Section 8 read with item 3 of the III Schedule to the Sales Tax Act and they have been submitting their returns in respect of the sale of these goods and paying the sales tax as they were not aware, at that time, that the goods were exempt under the said provision. They also claimed that they came to know of the correct legal position only in January, 1968. It was further submitted by them that since the payments were made on a mistake of law, the Government cannot appropriate the amounts and that they were entitled for refund of the tax paid. They also relied on the decision of the Appellate Assistant Commissioner, in the case of Messrs. T.T. Krishnamachari & Company.
4. The Assessing Officer rejected these petitions. The appeals filed by the petitioners were also dismissed by the Appellate Assistant Commissioner, as filed out of time, on a mistaken impression that the appeals were against the original assessment orders themselves.
5. On a further appeal, since there is no provision in the Sales Tax Act, or the Rules framed thereunder, for refund of sales-tax assessed and collected, the Tribunal treated these petitions as filed under Section 55 of the Sales Tax Act for rectification of the Assessment Orders. The petitions relating to the Assessment Years 1961-62 to 1963-64 were dismissed by the Tribunal as filed beyond the period of limitation prescribed under Section 55, In respect of the petitions relating to the Assessment Years 1964-65 to 1966-67, the Tribunal held that there was no error or mistake of law apparent on the face of the record, which could have been rectified under Section 55 and in that view, dismissed those petitions as well.
6. These four Tax Revision Gases related to the rectification petitions for the Assessment Years 1964-65 to 1966-67, which were dismissed on the ground that there was no error or mistake of law apparent on the face of the records.
7. Under Section 8, read with item 3 of the III Schedule to the Sales Tax Act, a dealer who deals in 'any goods on which duty is levied or leviable under the Madras Prohibition Act, 1937 on the entire quantity of such goods and not merely on any ingredient which forms part of such goods' shall not be liable to pay any tax in respect of such goods. The Tribunal dealt with the question as if the goods were exempt under this provision and proceeded to consider whether the provisions of section are attracted and held, as already stated, that there was no error, or mistake of law on the face of the record, which could be rectified under that provision.
8. But, in these petitions, the learned Government Pleader contended that the goods were not at all exempt under Section 8 read with item 3 of the III Schedule and they were correctly assessed. It has, therefore, become necessary to deal with the question as to whether these goods were exempt at all.
9. The argument of the learned Counsel for the petitioners was that Woodward's Gripe Water, Williams After Shave Lotion Williams Electric Shave Metalin Oral and allied products manufactured by the petitioners were 'liquor' within the meaning of the Madras Prohibition Act, 1937. The excise duty on the manufacture of these goods was levied and leviable under Section 18-A of the Madras Prohibition Act, 1937. On and from 1st April, 1957, such duty is levied or leviable under the Medicinal and Toilet Preparations (Excise Duty) Act, 1955, which repealed Section 18-A and re-enacted that provision as a levy under a Central Act. Therefore, by virtue of Section 8 of the General Clauses Act, 1897, any reference made to the excise duty levied or leviable under the Madras Prohibition Act, 1937, in the Sales Tax Act, shall be construed as a reference to the correspoding provision re-enacted under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955. In other words, according to the learned Counsel, any excise duty levied, or leviable under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, shall be deemed to have been levied or leviable under the Madras Prohibition Act, 1937.
10. Per contra, the learned Government Pleader contended that the Sales Tax Act was enacted and came into force in 1959, long after the Medicinal and Toilet Preparations (Excise Duties) Act, 1955. But, there was no reference to this Central Act in item 3 of the III Schedule. On the other hand, the entry referred to only the duty levied or leviable under the Madras Prohibition Act, 1937. In the absence of any specific exemption of goods on which the duty is levied, or leviable under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, the: petitioners are not entitled to ask for exemption.
11. We are proceeding to consider these rival contentions on the assumption that the goods manufactured by the petitioners contained alcohol and, therefore, satisfied the definition of 'liquor' under the Madras Prohibition Act, 1937. But, we want to make it clear that the learned Government Pleader did not concede this point, though the Tribunal also proceeded on the basis that these goods satisfied the definition of 'liquor' under the Prohibition Act, 1937. If these preparations were 'liquor' within the meaning of that definition, the excise duty should have been levied under Section 18-A of the Madras Prohibition Act, 1937, in respect of the manufacture of these goods.
12. Item 40 of List II in the VII Schedule to the Government of India Act, 1935, conferred legislative power on the State Legislatures to levy duties of excise on medicinal and toilet preparations containing alcohol, manufactured or produced in the State. In exercise of this power, many State Legislatures had, prior to the Constitution, enacted laws imposing excise duty on these goods. Some States had enacted separate laws on Excise and some others had made these levies as part of their Prohibition Acts.
13. So far as the State of Tamil Nadu is concerned, Section 18-A was inserted by Madras Act XIX of 1948 in the Madras Prohibition Act, 1937 authorising levy of excise duty. The relevant portion of this section reads as follows:
An excise duty or countervailing duty of such amount as the State Government may, by notification in the Fort St. George Gazette, specify from time to time shall, if they so direct, be levied on all liquors and intoxicating drugs permitted to be imported, exported, transported, manufactured, issued from any manufactory or institution or sold, under the provisions of this Act or any rule, notification, licence or permit issued thereunder.
14. Under the Constitution, the duties of excise on medicinal and toilet preparations containing alcohol manufactured or produced in India had now been made a Central subject. But, Article 277 provided that any duties which immediately before the commencement of the Constitution were being lawfully levied by the Government of any State, notwithstanding that those duties are now mentioned in the Union List, may be continued, to be levied until provision to the contrary is made by Parliament by law. Thus, until Parliament made any law relating to the Medicinal and Toilet Preparations, the States were permitted to continue the levies of excise on such preparations which they were levying immediately before the commencement of the Constitution. In order to secure uniformity in the rates of excise duty and for uniform procedure for collection therefor, in exercise of its legislative power under the Constitution, the Parliament enacted the Medicinal and Toilet Preparations (Excise Duties) Act, 1955. Section 21 of this Act which repealed the corresponding provisions in the State Acts reads as follows:
21. Repeals and savings If, immediately before the commencement of this Act there is in force in any State any law corresponding to this Act, that law is hereby repealed:
Provided that all rules made, notification issued, licences or permits granted, powers conferred under any law hereby repealed shall, so far as they are not inconsistent with this Act, have the same force and effect as if they had been respectively made, issued, granted or conferred under this Act and by the authority empowered hereby in that behalf.
Thus, excise duties are now levied or leviable under this Act only on and from 1st April, 1957 when the Act came into force.
15. The duties of excise under Section 3(2) of the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 are leviable where the dutiable goods are manufactured in bond, in the State in which such goods are released from bonded warehouse for home consumption, whether such State is the State of manufacture or not, and in other cases the State in which such goods are manufactured.
16. In these cases, it was not the case of the petitioners that the goods are manufactured in bonds. Therefore, it is the State of Tamil Nadu, in which the goods are manufactured, that is entitled to levy the duty. Thus, on and from 1st April, 1957, the excise duties are levied or leviable on these goods in this State, under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955. Section 8 of the General Clauses Act, 1897, which was relied on by the learned Counsel for the petitioners in support of his argument that any excise duty levied or leviable under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, should be equated or deemed to be an excise duty levied or leviable under the Madras Prohibition Act, 1937, reads as follows:
Where this Act, or any Central Act or Regulation made after the commencement of this Act, repeals and re-enacts, with or without modification, any provision of a former enactment, or in any instrument to the provision so repealed shall, unless a different intention appears, be construed as references to the provision so re-enacted.
17. The scope of this section came up for consideration before the Supreme Court in State of Punjab v. Sukh Dev Sarup Gupta : [1971]1SCR442 . It was held that the words 'former enactment' in Section 8 refers to both a Central Act or a provision thereunder, as also a State Act or a provision contained therein. It follows, therefore, that to the repeal of Section 18-A in so far as it imposed the duty on Medicinal and Toilet Preparations and the re-enactment of that levy in the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, the provision of Section 8 is applicable. But, the difficulty is in understanding the enactment which is referred to in the words 'references in any other enactment or in any instrument to the provisions so repealed' in that section. There -could be no doubt that this reference is to the enactment which came to be made between the 'former enactment', which was repealed and the Repealing and Re-enacting Central Act. The decision of the Supreme Court referred to above also related to such a case. But, in the instant case, Section 18-A in the Madras Prohibition Act, 1937, was repealed by the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, but the Tamil Nadu General Sales Tax Act, 1959, which referred to the duty levied or leviable under the Madras Prohibition Act, 1937, came into force subsequent to the repeal of Section 18-A.
18. The point for consideration is whether the reference to the Madras Prohibition Act, 1937, in the Sales Tax Act can be construed as a reference to the Prohibition Act as it was in force prior to the repeal of Section 18-A.
19. Thiru V.K.T. Chari, learned Counsel for the petitioners, while accepting that normally ' reference in any other enactments' referred to in Section 8, would comprehend within it an enactment which came between the enactment repealed and the Central Act which repealed and re-enacted, contended that there is an exception to this normal rule of interpretation. According to the learned Counsel for the petitioners, if the repeal is not of the whole Act, and was only of provision, then 'any reference to the former enactment' in any subsequent enactment, whether such subsequent enactment was made prior to or after the repealing and re-enacting Act, should be construed as a reference to the provisions so re-enacted.
20. We are unable to agree with this contention of the learned Counsel. When the Tamil Nadu General Sales Tax Act, 1959, referred to the Madras Prohibition Act, 1937, in the III Schedule, it can only be a reference to the Act as it was in force on the date when the Sales Tax Act came into force. There is no possibility of reading the provision as referring to the Madras Prohibition Act as in force in any other date. Thus, in item 3 of the III Schedule, reference to the Prohibition Act, could not be interpreted as the Madras Prohibition Act, 1937, as was in force prior to the Medicinal and Toilet Preparations (Excise Duties) Act, 1955. When an Act is repealed and re-enacted, nobody will refer to the repealed Act in any subsequent enactment. Nor, is it possible to read the provisions of the Medicinal and Toilet Preparations (Excise Duties) Act into the Madras Prohibition Act.
21. We have, therefore, no doubt that the reference to the Madras Prohibition Act in Item 3 of the III Schedule, is to the Madras Prohibition Act, as in force on the date when the Sales Tax Act came into force and not on any date earlier. On the date when the Sales Tax Act came into force, the excise duty leviable under Section 18-A had already been repealed and, therefore, if the Legislature wanted to exempt any goods that are subject to excise levy under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, the Legislature should have made a specific reference in item 3. In fact, in 1972, by a notification the Government have exempted those goods, which have been subjected to excise duty under the Medicinal and Toilet Preparations (Excise Duties) Act, 1955, from the levy of sales tax. But, that notification is not applicable to the assessment years in question.
22. We are, therefore, of opinion that the Medicinal and Toilet Preparations manufactured by the assessee were not entitled to the exemption under Section 8 of the Sales Tax Act.
23. Since we have come to the conclusion that the goods are not at all exempt from levy of sales tax, the further question whether there was any error or mistake of law on the face of the record, which could only be on the basis that the goods are exempt, does not arise.
24. For the foregoing reasons, we dismiss these cases with costs. Counsel fee Rs. 150 in each.