Ranjan Gogoi, J.
1. This writ appeal is projected against the judgment and order dated 4.6.1999 passed by the learned Single Judge in Civil Rule No. 2841 of 1993.
2. The appellant/writ petitioner is the sole proprietor of M/s. Manika Enterprise having its place of business at T.R Phukan Road, Fancy Bazar, Guwahati. The appellant/petitioner, it is stated, is engaged in the business in the Misri (Sugar Candy) and Makhana (whole-gram coated with sugar). The appellant/petitioner's grievance, in a nutshell, is that while sugar is an exempted item contained in Schedule 1 of the Assam General Sales Tax Act, 1993, sugar candy in which the appellant/petitioner is carrying on business, has not been conferred the benefit of exemption though sugar candy is nothing but sugar, the only difference between the two being in the process of manufacture. The learned Single Judge has negated the claim of the petitioner on the ground that it is within the power and competence of the State Legislature to confer and deny the benefit of exemption from payment of sales tax and the question of conferment and denial of exemption from payment of tax lies in the realm of policy. Theappellant/writ petitioner, it has been held by the learned Single Judge, has failed to make out any case of infringement of any of the Fundamental Rights of the petitioner/appellant and/or any constitutional right. On the basis of the said conclusion, the learned Single Judge was pleased to dismiss the writ petition by the impugned judgment and order dated 4.6,1999. Hence, the present appeal.
3. Mr. N.N. Saikia, learned senior counsel for the appellant/writ petitioner has formulated three principal grounds of challenge as against the impugned judgment and order dated 4.6.1999. Mr. Saikia contends that sugar and sugar candy are one and the same and when the benefit of exemption has been conferred on sugar, the item in question namely, sugar candy cannot be excluded from such benefit. Mt. Saikia further contends that sugar is one of the 'declared goods' under Section 14 read with Section 2(c) of the Central Sales Tax Act, 1956 and, therefore, it is beyond the competence of the State Legislature, by virtue of Section 15 of the Central Sales Tax Act, 1956, to impose any tax on the sale or purchase of sugar at a rate exceeding 4%. Mr., Saikia contends that in the instant case, sugar candy is being taxed at the rate of 8% and, therefore, the levy is contrary to the provisions of the Central Act. Mr. Saikia further contends that Section 2(11) of the Assam General Sales Tax Act, 1993 defines 'declared goods' in the same terms as defined in Section 14 read with Section 2(c) of the Central Act. The last contention of Mr. Saikia is that sugar is an item to which the provisions of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 are applicable and by virtue of the provisions of the said Act, the levy under the Assam General Sales Tax Act, 1993 on sugar candy is void and unauthorised calling for interference by this Court.
4. Before dealing with the contentions raised by Mr. Saikia, learned counsel for the appellant, it may be apposite to look into the provisions of the Assam Act of 1993. Section 9 of the said Act provides that in respect of sale of goods mentioned in Schedule I, there shall be an exemption from payment of tax under the Act. The State Government has been conferred with power to amend and/or modify the said Schedule. Item No. 36 of Schedule I confers the benefit of exemption on sugar but excludes sugar candy, confectionery and other like items.
5. Mr. Saikia, learned senior counsel for the appellant, in support of the first contention has argued that sugar candy is nothing but hardened sugar and in the process of manufacture of sugar candy, the basic item namely sugar does not change its form, substance and taste. Mr. Saikia, therefore, contends that sugar candy is nothing but sugar and the benefit of exemption having beenconferred on sugar, the said benefit cannot be denied in respect of sugar candy. Mr. Saikia places reliance on a decision of the Apex Court in the State of Gujarat v. Sakarwala Brothers reported in 19 STC 24. The question for determination in the above case was quite different from one before us in the instant matter. In the case of the State of Gujarat v. Sakarwala Brothers (supra), the question was whether Patasa, Harda and Alchidana fall within the definition of sugar as contained in Entry No. 47 of Schedule 'A' to the Bombay Sales Tax Act, 1959. The question assumed significance in view of the exemption granted' to sugar under the said Bombay Act. Sugar in Entry No. 47 of Schedule 'A' is defined in the same terms as in item No. 8 of the 1st Schedule to the Central Excise Act, 1944. The Apex Court after considering the definition of sugar as appearing in Item No. 8 of the 1st Schedule under the Central Excise Act, 1944 came to the conclusion that as the said definition includes all forms of sugar items containing more than 90% sucrose, the items in question i.e. Patasa, Harda and Alchidana do come within the meaning of sugar and are entitled to the benefit of exemption under the Bombay Act, However, in the instant case, the Legislature has very consciously excluded sugar candy, confectionery and other like items from the meaning of sugar in Entry No. 36 of Schedule I of the Assam Act of 1993. The power and competence of the State Legislature to restrict the meaning of any particular item of sale and purchase for the purpose of granting exemption is not in dispute. It that view of the matter, the first submission of Mr, Saikia has to fail.
6. The second contention advanced on behalf of the appellant is that under the Assam Act of 1993, the imposition of tax on sugar candy at the rate of 8% is wholly unanuthorised. As sugar is one of the 'declared goods' within the meaning of section 14 read with Section 2(c) of the Central Sales Tax Act, 1956, restriction on levy of tax on sale and purchase of the said item as imposed by Section 15 of the Central Act comes into play. Mr. Saikia contends that the rate of levy on sugar cannot exceed 4%. Entry No. 1 of Schedule-III of the Assam Act of 1993 makes it clear that the rate of tax on 'declared goods' is 4%. Mr. Saikia has also not drawn our attention to any record of the assessment proceedings under the Assam Act to show that tax on sugar candy has been levied at the rate of 8%. In any case, the rate at which tax is to be levied is a matter to be agitated in the course of assessment proceedings under the Act and cannot be a ground to invalidate the levy imposed.
7. Mr. Saikia's last contention is that sugar is one of the items covered by the Additional Duties of Excise (Goods of SpecialImportance) Act, 1957 (the Act No. 58 of 1957). The learned counsel contends that the duties imposed under the said Act No. 58 of 1957 are shared between the Union and the States in accordance with the proportion and ratio mentioned in Second Schedule to the said Act. Clause (1) of 2nd Schedule as amended which is relevant is extracted hereinbelow :
'1. Sugar. - During (the financial year commencing on the 1st day of April, 1984, there shall be paid (....) to each of the States specified in column 1 of the Table below such percentage of the net proceeds of additional duties levied and collected during that financial year in respect of sugar, after deducting therefrom a sum equal to 3.271 per cent of the said proceeds as being attributable to Union Territories, as is set out against it in column 2 :
Provided that if during that financial year there is levied and collected in any State a tax on the sale or purchase of sugar by or under any law of the State, no sums shall be payable to that State under this paragraph in respect of that financial year, unless the CentralGovernment by Special order otherwise directs.'
8. Mr. Saikia contends that sugar, under Act No. 58 of 1957 has the same meaning as contained in Item No. 8 of the 1st Schedule to the Central Excise Act, 1944 and sugar candy being an item containing more than 90% of sucrose is included within the definition of sugar for the purposes of Act No. 58 of 1957. Section 2(c) of Act 58 of 1957 which defines sugar has been deleted by the Amending Act 7 of 1986, consequent to the enactment of the Central Excise Tariff Act, 1985. However, the Tariff Act of 1985 also defines 'sugar* is more.or less identical term as defined in Item No. 8 of the erstwhile First Schedule to the Central Excise Act, 1944. On the said premises, Mr. Saikia contends that as the State of Assam is getting its proportionate share from the levy of Central Excise Duty under Act No. 58 of 1957 in so far as sugar is concerned, the imposition of sales tax under the Assam Act of 1993 on sugar candy is unauthorised and without jurisdiction. As the item, namely, sugar candy, has already been made subject to levy of Central Excise Duty under Act. No. 58 of 1957, the same cannot be subjected to further tax under the Assam Act of 1993, Mr. Saikia contends. In support thereof, Mr. Saikia places reliance on two decisions one of the Calcutta High Court in Mdanlal Khaitan v. Comml. Tax Officer, Silliguri reported in 29 STC 625 and the other is of this High Court in All Assam Zarda Merchants Association & Ors. v. State of Assam & Ors. reported in 115 STC 92.
9. The above argument or Mr. Saikia was not advanced before the learned Single judge. When confronted with this position, Mr. Saikiasubmits that the issue having raised a pure question of law can be agitated in the appellate Court though not raised earlier. In support thereof, Mr. Saikia relies on two decisions of the Apex Court in Vasantkumar Radhakisan Vora v. Board of Trustees of the Port of Bombay, reported in AIR 1991 SC 14 and Budha Swain & Ors. v. Gopinath Deb & Ors., reported in (1999) 4 SCC 396. We have given our anxious consideration to the arguments advanced by Mr. Saikia. The said question raised by him in the instant appeal is not a pure question of law but appears to be mixed question of law and fact. In the absence of any pleading to substantiate the contention raised, the counter-affidavit filed by the State does not contain any averment as to whether the State of Assam is receiving any part of the levy collected on sugar under Act No. 58 of 1957. Even in the absence of any pleading and counter-pleading on the point in issue, we find no difficulty in rejecting Mr. Saikia's contention. The proviso to Clause (1) of the 2nd Schedule to Act No. 58 of 1957 makes it clear that if any tax is levied and collected in any State on the sale or purchase of sugar by and/or under any law of the State, no amount which is due to the State under the provisions of Act No. 58 of 1957 will be payable to the concerned State unless the Central Government by special order or otherwise directs. Even assuming that the State of Assam of getting its share of Central Excise Duty levied and collected under Act No. 58 of 1957 in respect of sugar candy, the levy and realisation of sales tax under the Act of 1993 on sugar candy does not become non est in law. In such a situation, the only consequence as contemplated under Act No. 58 of 1957 is that the amount due to the State concerned under the said Act will not become payable. Mr. Saikia's contention regarding invalidity of the levy and collection of sales tax under the Assam Act of 1993 on sugar candy therefore, is without any substance. For the reasons discussed above, with great respect, we are unable to agree with the views of the Calcutta High Court expressed in Madanlal Khaitan v. Commercial Tax Officer in 29 STC 625 to the effect that the levy and collection of the Central Excise Duty under Act No. 58 of 1957 on any particular item and receipt by a State of its share of Central Excise Duty under the said Act would have the effect of invalidating the levy and collection of tax on sale or purchase of the same goods under any State Act. For the same reason, the decision rendered by the learned Single Judge of this Court in All Assam Zarda Merchants Association & Ors. v. State of Assam & Ors., reported in 115 STC 92 does not appear to be correct.
10. The writ appeal is, therefore, dismissed. However, considering the entire facts and circumstances of the case, there will be no order as to costs.