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2011 DIGILAW 583 (CAL)

Debasree Bhattacharyee v. Excise Commissioner

2011-04-25

J.K.BISWAS

body2011
Judgment 1. THE petitioner in this Article 226 petition dated April 8, 2011 is questioning the validity of the ninth condition in a memo of the Joint Commissioner of Excise and Superintendent of Excise, Hooghly No. 1551(13)/ E dated December 6, 2010 and the vires of sub-section (2) of Section 25 of the Bengal Excise Act, 1909. 2. THE memo dated December 6, 2010 was issued imposing certain conditions, directives and regulations in connection with the special permission accorded by the Collector, Hooghly to the petitioner's bar -cum -restaurant under Rule 239 of the West Bengal Excise (Foreign Liquor) Rules, 1998 and the impugned condition is as follows :- "9. Only male singers shall be allowed to perform on the stage." Section 25 of the Bengal Excise Act, 1909 is quoted below : "S.25. Employment of children or women by licensed vendors.-(1) No person who is licensed to sell foreign liquor or country spirit for consumption on his premises shall, during the hours in which such premises are kept open for business, employ or permit to be employed either with or without remuneration, any person under the age of twenty-one years in any part of such premises in which such liquor or spirit is consumed by the public. (2) No person who is licensed to sell foreign liquor or country spirit for consumption on his premises shall, during the hours in which such premises are kept open for business, employ or permit to be employed, either with or without remuneration, any woman, in any part of such premises in which such liquor or spirit is consumed by the public." 3. RELYING on the Supreme Court decision in Ariuj Garg and Ors. v. Hotel Association of India and Ors., (2008)3 SCC 1 , Mr. Ghosh appearing for the petitioner has submitted that the impugned condition and sub-section (2) of Section 25 of the Bengal Excise Act, 1909 that prohibits employment either with or without remuneration of any woman, both are ultra vires the provisions of Articles 14 15 and 21. 4. APPEARING for the respondents Mr. Roy, Advocate-General, has submitted that as to merits he has little to say in the face of the Supreme Court decision in Anuj Garg. 4. APPEARING for the respondents Mr. Roy, Advocate-General, has submitted that as to merits he has little to say in the face of the Supreme Court decision in Anuj Garg. He has, however, said that in view of the provisions of the West Bengal Taxation Tribunal Act, 1987 it is his duty to point out that this Court has no jurisdiction to entertain this petition. In view of the above-noted situation, the first question that requires decision is whether this Court has jurisdiction to entertain the petition. 5. MR. Roy has submitted that since women singers are employed, admittedly, for boosting sale of foreign liquor and the increased sale ultimately increases the amount of duty, engagement of women singers for performance on the stage is a thing incidental to the matters of levy, assessment, collection and enforcement of tax-over all of which the Tribunal has exclusive jurisdiction. 6. HE has relied on the decisions in Royal Talkies and Ors. v. Employees State Insurance Corporation, (1978)4 SCC 204 and State of Tamil Nadu v. Binny Ltd., 1980 (Supp) SCC 686. Mr. Ghosh appearing for the petitioner has submitted that engagement of women singers to perform on the stage of the bar -cum -restaurant of the petitioner, essentially for boosting sale, cannot be said to be a thing incidental to the levy, assessment, collection and enforcement of any Tax under the Bengal Excise Act, 1909. 7. HE has relied on the preamble and the provisions of Section 6 of the West Bengal Taxation Tribunal Act, 1987, the provisions of Section 25 of the Bengal Excise Act, 1909 and the decision in the Delhi Cloth and General Mills Co, Ltd. v. The Workmen and Ors., AIR 1967 SC 469 and Hukumchand Jute Mills Ltd. and Anr. v. Labour Appellate Tribunal and Ors., AIR 1958 Cal 68 . 8. THE West Bengal Taxation Tribunal Act, 1987 has been enacted with a view to setting up of a Taxation Tribunal and for the adjudication and trial by such Tribunal of any disputes, complaints or offences with respect to the matters relating to levy, assessment, collection and enforcement of any tax under any specified State Act in pursuance of Article 323B of the Constitution of India and for mailers connected therewith or incidental thereto. Section 5 of the Act provides that the Act shall apply to every State Act specified in the Schedule to the Act; that subject to the other provisions of the Act, the Tribunal shall exercise jurisdiction, powers and authority in relation to all matters of adjudication or trial of any disputes, complaints or offences with respect to levy, assessment, collection and enforcement of any Tax under any specified Act and all matters connected therewith or incidental thereto. 9. SECTION 6 of the Act provides that all the jurisdiction, powers and authority exercisable previously by all Courts including the High Court, but excluding the Supreme Court of India, for adjudication or trial of disputes or complaints or offences with respect to all matters of levy, assessment, collection and enforcement of any Tax under any specified State Act and matters connected therewith or incidental thereto shall be exercised only by the Tribunal. 10. THE question is whether the impugned condition and the question concerning vires of Section 25 of the Bengal Excise Act, 1909 are incidental to matters of levy, assessment, collection and enforcement of any tax under the Bengal Excise Act, 1909. It is not disputed that the Bengal Excise Act, 1909 is one of the State Acts specified in the Schedule to the West Bengal Taxation Tribunal Act, 1987. 11. IN Delhi Cloth (supra) the purport of the expression "matters incidental thereto" used in sub-section (4) of Section 10 of the Industrial Disputes Act, 1947 was examined by the Supreme Court, and their Lordships said (in para 9) as follows : "9...............The word incidental means according to Webster's New World Dictionary "happening or likely to happen as a result of or in connection with something more important; being an incident; casual; hence, secondary or minor, but usually associated". "Something incidental to a dispute" must therefore mean something happening as a result of or in connection with the dispute or associated with the dispute. The dispute is the fundamental thing while something incidental thereto is an adjunct to it. Something incidental, therefore, cannot cut at the root of the main thing to which it is an adjunct." 12. THE same expression that was considered by the Supreme Court in Delhi Cloth (supra) had been considered by a Single Bench of this Court in Hukumchand, and his Lordship (Sinha, J. as he then was) said (in para 7) as follows : . THE same expression that was considered by the Supreme Court in Delhi Cloth (supra) had been considered by a Single Bench of this Court in Hukumchand, and his Lordship (Sinha, J. as he then was) said (in para 7) as follows : . "7. THE question is as to what is meant by "matters incidental thereto". A tribunal formed under the Industrial Disputes Act is a Tribunal of limited jurisdiction and is severely limited by the order of reference. According to Stroud's Judicial dictionary, a thing is said to be incidental to another when it appertains to the principal thing. According to the ordinary dictionary meaning, it lies a subordinate action." In Royal Talkies the Supreme Court was examining the purport of the expression "employee" defined in Section 2(9) of the Employees' State Insurance Act, 1948 and in that context their Lordships held that persons employed in the canteens and cycle stands which were meant primarily for the convenience and comfort of persons visiting the theatres were actually working for purpose that was incidental to the purpose of the theatre. 13. REFERRING to Royal Talkies the decision in Binny (supra) was given while deciding the question whether sales of provisions effected by the assesses in a workmen's Store maintained by it were assessable to Tax under the Tamil Nadu General Sales Tax Act, 1959 and in that context the definition of the word "business" in Section 2(d) of the Act employing the expressions "any transaction in connection with, or incidental or ancillary to, such trade, commerce, manufacture, adventure or concern" was examined. 14. IN my opinion, for deciding the question that has arisen in this case while the decisions in Royal Talkies and Binny (supra) are of no assistance, the decisions in Delhi Cloth and Hukumchand (supra)are of some assistance. The expression incidental to something means happening in connection with something else, but not as important as it is, or not intended; and in technical sense the expression means happening as a natural result of something. 15. IN Delhi Cloth (supra) it was held that something incidental to an industrial dispute must mean something happening as a result of or in connection with the dispute or associated with the dispute; and that something incidental, therefore, could not cut at the root of the main thing to which it is an adjunct. 15. IN Delhi Cloth (supra) it was held that something incidental to an industrial dispute must mean something happening as a result of or in connection with the dispute or associated with the dispute; and that something incidental, therefore, could not cut at the root of the main thing to which it is an adjunct. IN Hukumchand (supra) it was noticed that a thing is said to be incidental to another when it appertains to the principal thing. 16. HENCE the question is whether engagement of women singers by a person licensed under the Bengal Excise Act, 1909 to sell foreign liquor or country spirit for consumption on his premises is incidental to his liability, if any, to pay duty under any provision of the Bengal Excise Act, 1909. The only provision of the Bengal Excise Act, 1909 that empowers the State Government to levy duty of various kinds is Section 27 and that provides that duty can be imposed on import, export, transport and manufacture. 17. NOTHING in the Bengal Excise Act, 1909 provides for payment any Duty or Tax by any person who is licensed to sell foreign liquor or country spirit for consumption on his premises and bound to comply with the terms and conditions of Section 25 of the Act. 18. HENCE I am unable to see how engagement of women singers by him for performance on the stage of his bar -cum -restaurant, obviously for increasing the volume of business, can be said to be a thing incidental to the levy, assessment, collection and enforcement of any Tax payable by him under the Bengal Excise Act, 1909. Even otherwise, I am unable to accept the argument that engagement of a woman singer for performance on the stage of the bar -cum -restaurant is a thing incidental to the levy, assessment, collection and enforcement of any tax or duty payable by anyone under the Bengal Excise Act, 1909. The engagement has nothing to do with all these things. 19. HENCE there is no reason to say that this Court does not have jurisdiction to entertain this petition. On the contrary, the position is that the Tribunal will have no jurisdiction to entertain a case involving the two issues involved in this case. 20. I, therefore, hold that this Court has jurisdiction to entertain this petition, and that the petition is maintainable. On the contrary, the position is that the Tribunal will have no jurisdiction to entertain a case involving the two issues involved in this case. 20. I, therefore, hold that this Court has jurisdiction to entertain this petition, and that the petition is maintainable. As to the question of merit, I have already noted that in view of the Supreme Court decision in Anuj Garg (supra), Mr. Roy has found little to say in support of the impugned condition and the provisions. In view of the law laid down in Anuj Garg (supra), I have absolutely no doubt that both the impugned condition and sub-section (2) of Section 25 of the Bengal Excise Act, 1909 that prohibits employment either with or without remuneration of any woman by a person who is licensed under the Bengal Excise Act, 1909 to sell foreign liquor or country spirit for consumption on his premises, are ultra vires Articles 14, 15 and 21. 21. FOR these reasons, I allow the petition and strike down the ninth condition in the memo dated December 6, 2010 and sub-section (2) of Section 25 of the Bengal Excise Act, 1909. No costs.