Moidu vs Sales Tax Officer, Special Circle, Cannanore and Another

P. Govindan Nair, J.—The petitioner was assessed to Sales Tax for the year 1962-63 by Ex. P.1 order dated 12.3.1964. The turnover determined included the turnover pertaining to ghee in sealed containers to the extent of Rs. 1,65,000/-. This was taxed by Ex. P.1 order at two per cent. Later a notice was issued seeking to revise the assessment by taxing the turnover at five percent. This was opposed. But overruling the objection an order Ex. P.4 was passed imposing tax at five percent. Item 39 in Schedule I of the General Sales Tax Act, 1125, as it stood at the relevant time when the assessment order was made applied to this case and it is in these terms:

Food stuffs sold in scaled containers-Five Paise

and I have ruled in the decision in Janardhanan v Sales Tax Officer, Calicut reported in 1966 KLT 175 that ghee sold in sealed containers will fair under item 39. So the turnover of Rs. 1,65,000/- is taxable under item 39.

Counsel for the petitioner has contended that the re-assess merit has been made on the basis of Rule 33 and that though the Rule permits a recompilation of the tax by applying the higher grade, such Rule is not warranted by the Section under which it has been made. The Section is Section 24. Counsel relied on clauses (f) and (g) of sub-section (2) of Section 24. Sub-section (2) of Section 24 enunciated the particular powers without prejudice to the generality of the ''forgoing power'' envisaged by sub-section (I) of Section 24. Section 24 (1) authorizes the framing of Rules for carrying out the purposes of the Act. One of the purposes of the Act is to impose tax in accordance with the provisions of the statute. This means according to the rates prescribed in the Schedule. 1 do not think that Rule 33 is ultra vires of the rule-making power.

The only other question is the one contained in the additional ground sought to be raised. I allowed the application for raising the additional ground. The ground is that there is discrimination in that certain foodstuffs are charged at two percent, such as Confectionery (tinned, packed or otherwise) in item 52 of the First Schedule and Biscuits and cakes packed, tinned or otherwise) in item 53 of the First Schedule.

The Rule of discrimination can be applied only if articles which are similar if not identical in nature are treated differently. Assuming that the theory is applicable in the matter of imposing taxes I doubt whether it will apply to the facts of the case. It is not possible to say that ghee on the one hand and confectionery and biscuits on the other though they fall perhaps under the broad category of foodstuffs are similar or identical goods. If the State Legislature have chosen to impose different rates of taxes on ghee on the one hand and confectionery and biscuits on the other there cannot be any question of discrimination. I dismiss this writ application but without any order as to costs.