Judgment:
1. This is an application under Section 8 of the West Bengal Taxation Tribunal Act, 1987 in the nature of an application under Articles 226 and 227 of the Constitution of India.
2. The application arises out of an order of assessment dated June 3, 1997 for the period of 12 months ending March 31, 1995 under the West Bengal Sales Tax Act, 1954 and the appellate order dated February 25, 1998 passed by respondent No. 1. The entire dispute is with regard to the question whether Horlicks manufactured and sold by the applicant-company falls within Notification No. 886-F.T. dated May 1, 1955 issued under Section 25 of 1954 Act or under Notification No.790-F.T. dated April 2, 1957, substituted by Notification No. 763-F.T.dated March 29, 1994 issued under Section 25 of the 1954 Act. If the product comes under Notification No. 886-F.T, dated May 1, 1955 the rate of tax will be not exceeding 11 per cent at the relevant period.
But if it comes under Notification No. 763-F.T. dated March 29, 1994 or 790-F.T. dated April 2, 1957, the rate of tax will be higher than 11 per cent, namely, 15 per cent. At the time of assessment, Horlicks has been assessed at the higher rate of tax, on a finding of the authorities that it comes under Notification No. 790-F.T. dated April 2, 1957 and No. 763-F.T. dated March 29, 1994.
3. But the applicants have not moved the West Bengal Commercial Taxes Appellate and Revisional Board in revision according to the statutory provisions in the 1954 Act. Dr. D. Pal, learned counsel appearing for the applicants, submits that the application may be entertained by us even though the revisional forum has not been exhausted. But Mr. K.K.Saha, learned advocate for the respondents, submits that it is a fit case where the applicants ought to exhaust the revisional remedy.
4. In a case like this, where the question is whether a particular product comes under one notification or item, or another, it is necessary that all the quasi-judicial authorities should be given an opportunity to decide the case before a forum like this Tribunal is approached under Articles 226 and 227 of the Constitution of India.
Moreover, the dispute in the present case involves finding of a question of fact according to the proviso to the entry under Notification No. 886-F.T. dated May 1, 1955. The proviso relates to the percentage of powdered or condensed milk in the product. Of course, the proviso should also be interpreted.
5. Accordingly, in our opinion, this is a fit case where the applicants ought to exhaust the revisional remedy before the West Bengal Commercial Taxes Appellate and Revisional Board. Dr. Pal, learned counsel for the applicant-company, has submitted that if the applicant-company is asked to exhaust the remedy of revision before the Board, there is likely to be delay which will increase the burden of interest which has already been determined in relation to the higher amount of tax assessed by the authorities below. He further submits that in that case, realisation of difference of tax and the amount of interest may be stayed till disposal of the revision which the applicant-company may prefer before the Board. Dr. Pal also submits that the applicant-company will be paying admitted tax on the basis that Horlicks is covered by Notification No. 886-F.T. dated May 1, 1955, which, according to him, has been followed since 1955 up to 1994.
6. But Mr. K.K. Saha, learned advocate for the respondents, submits that he has no objection if the realisation of amount of interest is stayed, but he submits that 50 per cent of the assessed tax which if found due, may be paid by the applicant-company which is opposed by Dr.
Pal.
7. After hearing both sides, the application is not entertained on the ground that the applicant-company has not exhausted remedy of revision according to the provisions of the West Bengal Sales Tax Act, 1954.
8. If the applicant-company is so advised, it may prefer a revision before the West Bengal Commercial Taxes Appellate and Revisional Board within the period of limitation and if so filed, the Board is directed to positively dispose of the revisional application on a priority basis within a period of eight weeks from the date of filing of the same.
9. We direct that the respondents shall not realise the amount of interest determined for the period of 12 months ending March 31, 1995 and also shall not realise the difference of amount of tax for the aforesaid period (difference between the admitted tax and the assessed tax) till final disposal of the aforesaid revision, if it is filed within the period of limitation. The period spent by the applicant-company in this Tribunal, namely, from August 10, 1998 when this application was filed up to this day, i.e., August 18, 1998 (9 days) should be added to the prescribed period of limitation.
10. With the above directions, the main application is disposed of without any order for costs. Let it be made clear that we have not gone into any question on merit agitated in the application.