Ajit Kumar Sengupta, J.
1. This appeal by the State of West Bengal is directed against the order dated 11th June, 1985, of the court of the first instance on the writ petition filed by the respondent challenging the levy and collection on 'gudakhu' or 'gurakhu' under the Bengal Finance (Sales Tax) Act, 1941, the West Bengal Sales Tax Act, 1954 and the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972 (hereinafter referred to as 'the 1941 Act, the 1954 Act and the Entry Tax Act', respectively) and the Rules framed thereunder. The learned Judge following the judgment of a learned single Judge dated 21st September, 1984 in Gulabchand Harekchand v. State of West Bengal (since reported in [1985] 59 STC 224) held that tax cannot be levied on 'gudakhu' as this is covered by the expression 'tobacco' and further 'gudakhu' not being a tooth-paste or tooth-powder is not subject to levy of tax under the West Bengal Sales Tax Act, 1954 or under the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972.
2. The case of the respondent/writ petitioner is that he has been purchasing and importing from Orissa 'gudakhu' which is also spelt as 'gurakhu' for sale in West Bengal. The said 'gudakhu' or 'gurakhu' is used for the purpose of smoking as 'tobacco for hookah' and also used for. tooth-gums. The Commercial Tax Officer under the State Sales Tax Act as well as the Central Act issued registration certificates inserting 'tobacco for hookah' in the resale column on being satisfied that 'gurakhu' dealt in by the writ petitioner was 'tobacco for hookah'.
3. In the proceedings before him, he, however, held that containers up to 500 gms. containing 'gurakhu' are used as tooth-paste and are sold in pan and stationery shops in and around Calcutta, these are not at all used for tobacco for hookah ; and accordingly he held that the sales in containers up to 500 gms, as tooth-paste are taxable under the State Act. The sales in containers above 500 gins, were allowed exemption under Section 5(2)(a)(i) of the 1941 Act as tobacco for hookah.
4. The writ petitioner took up the matter before the appellate authority who directed the Commercial Tax Officer to adjudicate as to whether 'gurakhu' was essentially a commodity known as tobacco for hookah.
5. The grievance of the writ petitioner was that though under item No. 18 of the Schedule I of the 1941 Act, tobacco for hookah in any form and under Rule 3(28)(b) of the Bengal Sales Tax Rules, 1941, tobacco for that purpose having the same meaning as defined under the Central Excises and Salt Act, 1944, is exempted from tax in West Bengal, the Assistant Commissioner of Commercial Tax, Howrah Circle, and the officers subordinate to him did not allow 'gurakhu' purchased from Orissa to be transported to West Bengal through the check-post at the border of West Bengal unless a permit under the 1954 Act, was shown to the check-post authorities on the assumption that 'gurakhu' is tooth-paste/dentifrice and covered by Notification No. 3123-FT dated 15th July, 1975.
6. The writ petitioner had been compelled to make application for permit for transportation of 'gurakhu' which is alleged to be a notified commodity under the 1954 Act and the permits had been issued on payment of taxes allowing the writ petitioner to transport the goods detailed in the said permits.
7. By a letter dated 30th September, 1975, the writ petitioner objected to the insistence on permit to be obtained from the appropriate authority for the purpose of transportation of tobacco for hookah and/or tooth-gums, which includes 'gurakhu' across the West Bengal border check-posts maintained by the Directorate of Commercial Taxes under the 1954 Act.
8. The Commercial Tax Officer, Central Section, by an order treated 'gurakhu' as a tooth-paste and/or dentifrice. An extract of the said order is quoted below :
'I am of the opinion that the term 'tooth-paste' includes 'gurakhu'. 'Gurakhu' is a paste which is used for rubbing teeth in the same way as any other tooth-paste is used. Hence 'gurakhu' must be held to be a commodity coming under the fold of the West Bengal Sales Tax Act, 1954, and taxed accordingly.'
9. In the aforesaid facts and circumstances of the case, the writ petitioner challenged the levy, collection and attempt to levy and/or collect taxes on manufactured tobacco and/or tobacco for hookah and/or tooth-gums under the Bengal Finance (Sales Tax) Act, 1941, the West Bengal Sales Tax Act, 1954, the Central Sales Tax Act, 1956 and the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972.
10. As indicated, the learned Judge in making the rule absolute relied on the judgment in Gulabchand Harekchand [1985] 59 STC 224 (Cal) which has been affirmed by the Division Bench in F.M.A.T. No. 3451 of 1984 where the judgment was delivered on 25th July, 1990.
11. The contention of the writ petitioner is that the judgment of the learned single Judge in Gulabchand Harekchand [1985] 59 STC 224 (Cal) has been approved by the Supreme Court, in State of Orissa v. Radheshyam Gudakhu Factory reported in [1988] 68 STC 92. There the Supreme Court observed as follows :
'We have heard learned counsel for the parties and we are satisfied that the High Court is right. It appears that 'gudakhu' is a product of tobacco and that although a major part of molasses and other constituents are added to the tobacco the essential and effective ingredient remains tobacco, and therefore, 'gudakhu' is known as a product of tobacco in common parlance. The High Court has referred to 'gudakhu' as a form of smoking tobacco and has observed that even though it is also used as a paste for cleansing the gums of the teeth, it would still be regarded as a product of tobacco. We may point out that the Calcutta High Court in Gulabchand Harekchand v. State of West Bengal [1985] 59 STC 224 ; 23 ELT 306 has also held that 'gudakhu' is manufactured out of tobacco and that its essential character is that of a tobacco product even though molasses and other constituents are added to the tobacco and that it is commonly used for cleansing the teeth. We are satisfied that 'gudakhu' is a product which falls within the exemption covered by serial No. 35 of the Schedule to the Orissa Sales Tax Act and that the High Court is right in holding that the assessees in these appeals are entitled to that exemption.'
12. It is, therefore, contended that this question is now concluded by the aforesaid decision of the Supreme Court and the appeal should be dismissed, as no new point of law is involved in this appeal.
13. On the other hand, it has been contended by the learned advocate for the appellant that the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972, and the Bengal Finance (Sales Tax) Act, 1941, are two different Acts having different purposes and objects and the concession or remission given under the Bengal Finance (Sales Tax) Act, 1941, has got no bearing whatsoever upon the imposition of taxes on entry of goods under the Entry Tax Act and the Rules framed thereunder. 'Gurakhu' is specifically mentioned in the Schedule to the Entry Tax Act as a specified item. The trial court had no occasion to consider as to whether 'gurakhu' comes under the heading of tooth-paste and tooth-powder at all.
14. The main contention is whether 'gurakhu' is a tobacco product. If it is a tobacco product, it will be exempt under the 1941 Act, Under Section 6 of the 1941 Act, no tax is payable on the sale of goods referred to in Schedule I. Item No. 18 of Schedule I of the 1941 Act provides as follows :
'Tobacco for hookah that is to say, tobacco paste ready for use in hookah.'
15. Further Rule 3(28)(b) of the Bengal Sales Tax Rules, 1941, provides that a dealer is entitled to deduct from his gross turnover sales of tobacco. In the explanation of Rule 3(28)(b), tobacco was defined as having the same meaning as attributed to it in the First Schedule to the Central Excises and Salt Act, 1944.
16. It may be mentioned that Rule 3(28) has since been omitted and a new item has been added in Schedule I to the 1941 Act being item No. 57 which exempts tobacco as referred to in the First Schedule to the Central Excises and Salt Act, 1944, other than cigarette. In other words, under the provision of Section 6 of the 1941 Act read with Schedule I thereto as they stood at the material tune, no tax is payable on the sale of tobacco.
17. The learned counsel for the State, however, contended that 'gurakhu' is not essentially a tobacco product. He has submitted that unless the product is found to be essentially a tobacco product, the same cannot get any exemption as tobacco under the 1941 Act or the Rules framed thereunder. According to the learned counsel, item No. 18 of Schedule I to the 1941 Act makes it abundantly clear that any product containing tobacco as one of its ingredients will not be entitled to any exemption. It is the contention of the learned counsel that in the absence of any indication that technical meaning is to be adhered to a substance if known in common parlance as a different thing, then the said thing will not be treated in the technical sense. According to him, 'gurakhu' has never been treated as tobacco in the common parlance but it has been accepted as a dentifrice and amongst various ingredients there may be some element of tobacco. He has also contended that even assuming dentifrice is essentially a tobacco product and is understood as tobacco in common parlance and exemption is allowed under the Sales Tax Acts, such benefit cannot be given under the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972. According to him, products which have been included for the purpose of levy of tax on entry of goods are liable to be taxed and it is not necessary to look into the composition of such goods. He has submitted that the same word has to be interpreted in the context of the Act in which it appears. Merely because 'gurakhu' has been treated as exempt under the 1941 Act, it does not necessarily mean that it will also be a tobacco product under the Entry Tax Act.
18. In our view, the contentions raised by the learned counsel for the Revenue cannot be accepted. Admittedly 'gurakhu' is cut tobacco mixed with molasses. It is essentially a tobacco product. The Supreme Court in State of Orissa v. Radheshyam Gudakhu Factory [1988] 68 STC 92 held that 'gurakhu' was a tobacco product and as such was not liable to be taxed under the Orissa Sales Tax Act. The Central excise tax authorities have analysed 'gurakhu' to find out whether any excise duty is leviable on it. According to the excise authorities 'gurakhu' contains tobacco dust, molasses, lime powder, etc., in various proportions and after such analysis they have held 'gurakhu' to be a tobacco product and issued a circular to that effect. In other words, 'gurakhu' being a tobacco product, no excise duty is liable to be levied on the said item.
19. The averments made in the writ petition as regard to the nature and content of 'gurakhu' have not been disputed. It appears that 'gurakhu' is manufactured out of tobacco and other constituents like molasses, gerimati, water and flavour are added to the tobacco. It is, therefore, evident that essentially it is a tobacco product and the characteristics of tobacco is not lost. No evidence has been placed before this Court to hold that 'gurakhu' has a different composition and the element of tobacco is insignificant to make it a different product altogether. The Supreme Court in State of Orissa v. Radheshyam Gudakhu Factory [1988] 68 STC 92 held that 'gurakhu' is a tobacco product. It is true that 'gurakhu' is applied on teeth or gum but the same is never Understood in common parlance as a dentifrice. No evidence has been adduced to show that 'gurakhu' is understood as a dentifrice in common parlance. It is, in fact, used for the purpose of having the pleasure of tobacco and ordinary man will not use a tobacco product as dentifrice. It is one thing to say that a person uses a particular product as tobacco and the other uses as a dentifrice. If it is dentifrice then the mixture of tobacco will be of no consequence. If it is mainly a tobacco it would only be used for the purpose of having the effect of tobacco and not for the purpose of using it as tooth-paste or dentifrice.
20. Therefore, the contention that 'gurakhu' is not a tobacco product cannot be accepted. In other words, 'gurakhu' must be held to be a tobacco product and as such exempt.
21. The question is whether 'gurakhu' is exempt under the West Bengal Sales Tax Act, 1954 (referred to as 'the 1954 Act'). Under Section 25 of the 1954 Act, the State Government is empowered to include a commodity for taxation under the said Act, if such commodity is taxable under the provisions of the Bengal Finance (Sales Tax) Act, 1941. Section 25 of the West Bengal Sales Tax Act, 1954, reads as follows :
'If the State Government is at any time of opinion that it would be in the public interest that any commodity which is liable to taxation under the Bengal Finance (Sales Tax) Act, 1941, should be taxed under this Act, it may, by notification in the Official Gazette, specify such commodity and direct that with effect from such date as may be fixed in the notification, the Bengal Finance (Sales Tax) Act, 1941, shall cease to apply to such commodity and this Act shall apply to such commodity.'
22. Thus in order to make a commodity taxable under the 1954 Act it should be shown that the said commodity is liable to be taxed under the Bengal Finance (Sales Tax) Act, 1941. If 'gurakhu' is tobacco or manufactured tobacco within the meaning of item No. 18 or item No. 57 of the Schedule of exempt goods, then it is not taxable under the 1941 Act. Therefore, by issue of any notification under Section 25 of the West Bengal Sales Tax Act, 'gurakhu' cannot be brought under the mischief of 1954 Act.
23. But the respondents have attempted to bring this item within the ambit of 1954 Act by treating 'gurakhu' as 'dentifrice' from August 1, 1975, by virtue of the notification making tooth-paste, tooth-powder and other dentifrice liable to tax under the 1954 Act. Since then, 'gurakhu' has been sought to be taxed as tooth-paste or dentifrice under the 1954 Act. The question is whether 'gurakhu' is a tooth-paste or dentifrice. As indicated, the Excise Department has categorically held that it is a tobacco product and does not satisfy the description of what is commonly known and commercially understood as a tooth-paste. It would also be clear from the Indian Standards Institution brochure which refers to the specification for tooth-paste as prescribed by the Indian Standards Institution. According to Indian Standards Institution specification, 'gurakhu' does not contain the ingredients which constitute tooth-paste. That apart, the said specification has cautioned the tooth-paste manufacturers by indicating that it is essential to ensure that the tooth-paste does not contain any ingredient in sufficient concentration so as to make it toxic for being used in the mouth or otherwise harmful for normal use.
24. In A.T. Deb's Bengali Dictionary (revised 3rd edition) the word 'gurakhu' has been defined as smoking tobacco or hookah tobacco, tobacco mixed with molasses. In another Bengali Dictionary 'Chalantika' by Rajesekhar Bose (13th edition) 'gurakhu' is defined as tobacco mixed with molasses which is nothing but a mixture for hookahs.
25. In our view, unless 'gurakhu' answers the description of tooth-paste or tooth-powder, it cannot be brought within the ambit of dentifrice. If an item does not answer the description of any article or thing meant for cleansing teeth, it cannot be treated as dentifrice which means a powder, a paste or liquid for cleaning the teeth for all and sundry. But as we have indicated earlier, 'gurakhu' is essentially a tobacco product which may be used by certain persons for cleaning the teeth. Even in such a case, the purpose of use is not merely to clean the teeth but also to have the toxic effect of tobacco contained in 'gurakhu'. As such, 'gurakhu' cannot be treated as tooth-paste or dentifrice for the purpose of bringing it within the mischief of 1954 Act.
26. The next question which arises for consideration is whether 'gurakhu' is taxable under the Taxes on the Entry of Goods into Calcutta Metropolitan Area Act, 1972 (referred to as 'the Entry Tax Act').
27. Section 6 of the Entry Tax Act is the charging section. In the Schedule referred to in Section 6 of the Entry Tax Act several items have been enumerated in respect of which entry tax is payable according to rate of tax specified in column 3 of the said Schedule. Item 41(c) reads as follows :
'Tooth-paste, tooth-powder, gurakhu.'
But nowhere in the said Schedule tobacco for hookah and/or tooth-gums has been specified and as such no tax has been prescribed under the Entry Tax Act to be payable for transportation of tobacco for hookah and/or tooth-gums in the Calcutta metropolitan area.
28. Before the amendment was made by the Notification dated 20th April, 1979, 'gurakhu' was not a prescribed item in the Schedule to the Entry Tax Act. Prior to amendment item 50(f) only contained 'tooth-paste, tooth-powder.' By the amendment, 'gurakhu' has been placed along with tooth-paste and tooth-powder in item 41(c). In our view, an item which is not a tooth-paste or tooth-powder cannot be brought within the net of taxation merely because such item has been placed along with tooth-paste and tooth-powder. If 'gurakhu' is not understood commercially or in common parlance as tooth-paste or tooth-powder, it cannot be taxed as dentifrice. Whatever is used on the gum is not necessarily tooth-paste or tooth-powder. If 'gurakhu' is a tooth-paste then same logic will make 'khaini' as a tooth-powder. But 'khaini' has never been treated as a tooth-powder. It is a substance used for having narcotic effect. Tooth-paste or tooth-powder can be used by any and every person ; infant and old, but 'gurakhu' can only be used by a few selected persons who use the same for cleansing the teeth with added pleasure of having the effect of tobacco. There are distinctive features which distinguish 'gurakhu' from tooth-paste and other dentifrice and bring it within the common variety of manufactured tobacco such as zarda, dokta, khaini and similar other manufactured tobacco products. Whether 'gurakhu' is a tooth-paste or tooth-powder depends largely upon how the people familiar with such product would accept 'gurakhu' as a tooth-paste or dentifrice. On the facts of the case, we are unable to hold that 'gurakhu' can be construed to mean tooth-paste or dentifrice as they are understood in the trade.
29. In our view, if 'gurakhu' has not been considered to be a tooth-paste or tooth-powder or dentifrice either under the 1941 Act or 1954 Act, the same cannot be treated as such under the Entry Tax Act merely because it is a specified item in the Schedule of the said Act. Tooth-paste or tooth-powder is solely meant for cleansing teeth whereas 'gurakhu' is not such a commodity. It has a variety of uses depending on the persons who use the same.
30. In our view, the 1941 Act, the 1954 Act and the Entry Tax Act are in pari materia. Accordingly in the absence of a statutory definition, it would be open to look for the meaning of the word 'gurakhu' by reference to the meaning assigned to such word under the 1941 Act or to adopt the meaning in common parlance. The same word in the context of the three taxing statutes which are inter-related cannot be duly interpreted differently. But the crux of the matter is that 'gurakhu' is one mode of intaking tobacco intoxication in the system of human body. It is used as one of the many forms of satisfying tobacco addiction infusing tobacco toxicity or nicotine in circulation system through saliva. Tooth paste or any dentifrice is used purely for dental and oral hygiene but the purpose of 'gurakhu' is one form of tobacco intake. The frequency in which it is generally used by a consumer in the course of a day is also a functional test that use of it is one form of tobacco addiction like the use of 'khaini' or powder of roasted tobacco leaves which is in vogue in rural population.
31. In the premises, we uphold the order of the learned single Judge and hold that the tax cannot be levied on 'gudakhu' or 'gurakhu' as the expression 'tobacco' covers it. The petitioner is entitled to exemption under the West Bengal Sales Tax Act and also under the Taxes on Entry of Goods into Calcutta Metropolitan Area Act, 1972. We also confirm the direction of the learned single Judge for return of the sum of Rs. 25,000 being the cash security furnished by the respondent.
There will be no order as to costs.
K.M. Yusuf, J.
32. I agree.