Patna High Court
The Titaghur Paper Mills Company Ltd. ... vs The State Of Bihar And Ors. on 15 March, 1979
Equivalent citations: [1980]45STC130(PAT)
JUDGMENT Sarwar Ali, Ag. C.J. 1. An agreement has been entered into between the Governor of Bihar and the petitioner. A copy of this agreement (date whereof is not mentioned) is annexure P/1. The agreement is styled as "agreement for long term bamboos lease on royalty payable on bamboo yield". The root questions involved in this application are (a) whether the agreement is a lease or licence; (b) whether the sales tax and cess tax are payable on the amount of "royalty on bamboo yield basis"; and (c) whether the notification of the State Government dated 26th December, 1974 (annexures P/17 and P/18), is legal and valid? 2. In order to appreciate the contentions raised in this application it may be necessary to give some more facts leading to the filing of the writ application. 3. The Divisional Forest Officer wrote a letter (annexure P/l) to the petitioner on 16th December, 1975, stating that sales tax was payable at 81/2 per cent on the first, second and third instalments of the royalty. The petitioners were therefore asked to pay the amount due within fifteen days of the letter. Another communication dated 31st May, 1976 (annexure P/3), was addressed to the petitioner requiring it to pay the arrears of royalty plus sales tax at 81/2 per cent on certain amount and 9 per cent on some other amount. It also informed the petitioner that the petitioner was liable to pay cess tax on sales of bamboo at 3 per cent. The petitioner received another letter dated 12th July, 1976, stating that the amount of Rs. 50,000 paid by the petitioner under a bank draft dated 25th June, 1976, was being adjusted towards part-payment of royalty, payment of sales tax at 9 per cent and part-payment of cess tax. It also informed the petitioner that if the petition submitted by the petitioner in respect of sales tax and cess tax is decided by the higher authorities in its favour, the amount would be adjusted towards the balance due in respect of the "old lease". A representation (annexure 5) was filed by the petitioner to the Commissioner of Commercial Taxes (Finance), Government of Bihar, contending, inter alia, that the sales tax and cess tax were not payable. There has been communication between the parties on the subject which need not be referred to. Thus, the position is that the stand of the State is that the aforesaid taxes are payable, whereas the petitioner says that they are not. It may, however, be stated that the petitioner has paid a sum of Rs. 56,051 under protest. 4. Having failed to persuade the authorities to its point of view, the petitioner filed a writ application in this Court being C.W.J.C. No. 321 of 1977. At the stage of admission dated 10th March, 1977, a Bench of this Court presided by the Honourable the Chief Justice passed the following order: Heard learned counsel appearing for the petitioner and learned counsel for the respondents. It appears that the petitioner has already moved the Chief Conservator of Forests for necessary relief in the matter. That may be treated as a reference under Clause 19 of the agreement,(annexure A). The learned Government Pleader No. 4 states that the Chief Conservator of Forests will expeditiously dispose of the representation of the petitioner. This petition is permitted to be withdrawn, as prayed for, with the observation that the Chief Conservator of Forests will expeditiously dispose of the representation of the petitioner. 5. The petitioner filed another representation dated 31st March, 1977, before the Chief Conservator of Forest (respondent No. 4). This was followed up by another representation. By a letter dated 2nd July, 1977, respondent No. 4 wrote to the following effect: But I feel that this is beyond the ambit of Clause 19 of the agreement, executed by the Bihar Government and Messrs. Titaghur Paper Mills, as it is a case of levy of taxes. 6. After some further representation and demand the petitioner has filed this writ application on 20th March, 1978. In this writ application, the petitioner prays for a direction to, or mandamus on, the respondents requiring them to forbear from taking any steps towards realisation of sales tax or cess tax from the petitioner. It also claims that the amount of Rs. 56,051 already paid be refunded. It may be stated that the notification dated 26th December, 1974 (annexure P/18), whereby bamboo was included as an item on which sales tax was payable at 7 per cent with effect from 1st January, 1975, is also under challenge. 7. The difference between lease and licence is well-settled. As was pointed out by Jaswant Singh, J., in Board of Revenue v. A.M. Ansari A.I.R. 1976 S.C. 1813: ...it is the creation of an interest in immovable property or right to possess it that distinguishes a lease from a licence. A licence does not create an interest in the property to which it relates while a lease does. There is, in other words, transfer of a right to enjoy the property in case of a lease. As to whether a particular transaction creates a lease or a licence is always a question of intention of the parties which is to be inferred from the circumstances of each case. For the purpose of deciding whether a particular grant amounts to a lease or a licence, it is essential, therefore, to look to the substance and essence of the agreement and not to its form.... 8. It was further held in this case: (1) To ascertain whether a document creates a licence or lease, the substance of the document must be preferred to the form; (2) the real test is the intention of the parties -- whether they intended to create a lease or a licence; (3) if the document creates an interest in the property, it is a lease; but, if it only permits another to make use of the property, of which the legal possession continues with the owner, it -is a licence; and (4) if under the document a party gets exclusive possession of the property, prima facie, he is considered to be a tenant; but circumstances may be established which negative the intention to create a lease. 9. Thus, on the basis of these well-settled principles, I now proceed to examine the agreement itself. Instead of giving the various clauses of the agreement it would be sufficient, in my view, to state here what are the main features of this agreement which have been relied upon by the respective parties. I first take up the aspects emphasised on behalf of the petitioner. They are: (a) In the main heading and throughout the document, the document has been described as a lease and the petitioner as a lessee; (b) The expression used is royalty and not price of the bamboos; (c) At various places the expression that has been used is "right to exploit bamboos"; (d) The lessee has a right, of course, subject to previous permission of Chief Conservator of Forests, "to sub-let or resell his coupe or transfer or convey or assign or in any manner whatsoever part with the interest or any portion of his interest" under the agreement; (e) The lessee has to maintain an account on all bamboos exploited. This was necessary to know how much was extracted and thus this constitutes a lease of land on which the bamboos stand; (f) The lessee has to develop communication in leased area by construction of roads, causeway and culverts; (g) Local demand has been made first charge on the bamboo extracted from the leased area; (h) There is minimum royalty provided in the agreement based on extraction; and (i) The lease is for a long term. 10. As against this, the learned counsel for the State, Sri K.N. Jain, argued that neither the nomenclature as lease was important nor the use of expression "royalty". The use of the word "exploit" had to be understood in the context of other terms. None of the features relied upon by the petitioners lead to the conclusion that an interest in the land was being created. The learned counsel relied upon the following features to substantiate the case of grant of licence: (i) Possession of land is not given under the lease. What is given is "liberty and licence" to enter upon lands for the purpose of cutting and taking away the bamboos; (ii) The payment is to be made at the rate of Rs. 35 per tonne for the bamboos actually extracted in excess of 5,000 tonnes, with a minimum royalty of Rs. 1,75,000 for 5,000 tonnes; (iii) The lessee has to cut and remove the bamboos within the period allowed for such operation, the failure to do so makes him liable to pay the cost of felling, etc. This shows that the right conferred is of cutting and removal of bamboos and not an interest in the land; (iv) The petitioner had to pay rent for any land used in recognised bamboo depot but is not required to pay rent for the land inside the coupe permitted by the Divisional Forest Officer for temporary storage of bamboos; (v) Schedule D to the agreement uses the expression payment of purchase price; (vi) The lessee is not entitled to cut and remove any other produce of the coupe nor he is permitted in cutting or extracting as bamboos to damage any plant or any other bamboos which are to be left out. If the cutting is not according to the Bamboo Felling Rules or there is failure to cut and clear clumps, the work is to be done departmentally and the petitioner has to pay costs and penalty. 11. Strong reliance was placed by Sri Jain on the decision in State of Madhya Pradesh v. Orient Paper Mills A.I.R. 1977 S.C. 687. On the other hand, reliance was placed by Sri Banerjee for the petitioner on the decision in the Ansari's case A.I.R. 1976 S.C. 1813. It was contended that the Ansari's case A.I.R. 1976 S.C. 1813, which was by a Bench of five (sic) Judges was not noticed in the Orient Paper Mills' case A.I.R. 1977 S.C. 687. The latter decision was, therefore, per incuriam. Before proceeding to finally express my opinion on the true nature of the present agreement, it would be proper to deal with the two cases relied upon by the parties. 12. In the Ansari's case A.I.R. 1976 S.C. 1813, the forest department of the State of Andhra Pradesh held auction in 1967 in respect of various items of forest produce. The respondent was the highest bidder in respect of some items of the forest produce. They were called upon to pay sales tax on the bid amount. They were also called upon to pay stamp-duty on the agreements to be executed by them as if they were lease of immovable property. They were further called upon to pay stamp-duty on the deposits made by them by way of security as mortgages. The first question that was considered was whether the agreement was a lease or licence. Interpreting the agreement it was held that the agreement did not create any estate or interest in land. It did not grant exclusive possession and control of the land. On the other hand, it gave right to pluck, cut, carry away and appropriate the forest produce. The right to go on the land was only ancillary to the real purpose of the contract. In view of these and the fact that the agreement was for a short duration of nine to ten months, it was held that the agreement was not a lease but only a licence. The other question, relevant for the present purpose, which was decided, was whether the respondents could be validly called upon to pay sales tax. Section 2(n) of the Act defined sale to mean "every transfer of the property in goods by one person to another in the course of trade or business...." It was held, on the facts of the case, that the important element of frequency being lacking it cannot be held that the Government was carrying on the business of sale of the forest produce. It was in that context that the observation in Orient Paper Mills Ltd. v. State of Madhya Pradesh [1971] 28 S.T.C. 532 was referred to. Definition of "sale" in the relevant Act was similar to the Andhra Pradesh Act in consideration before the Supreme Court and, that is why, reference was made to the decision of the Madhya Pradesh High Court in the case of Orient Paper Mills Ltd. [1971] 28 S.T.C. 532 The Supreme Court in the peculiar circumstances of the case held that holding of auction of the forest produce did not constitute carrying on business in the sale of that class of goods. 13. The Orient Paper Mills' case A.I.R. 1977 S.C. 687 in the Supreme Court was an appeal against the decision of the Madhya Pradesh High Court in Orient Paper Mills Ltd. v. State of Madhya Pradesh [1971] 28 S.T.C. 532. The learned State counsel contended before the Supreme Court that the agreement was a lease. He relied on the fact that the annual payment therein envisaged was of royalty and not price. The expressions used in the deed were "demise", "lease" and "leased areas". The period of lease was 20 years, later on substituted by 30 years. Minimum royalty was also fixed. There was also a renewal clause. These factors were strongly relied upon on behalf of the State. As against these the main thrust of the argument on behalf of the company was that possession of the land was not given. What was authorised under the agreement was exclusive liberty to enter upon the leased area to fell, cut or extract bamboos and salai wood and utilise the same for meeting the requirement of the paper mill. Clause 2(g) of the deed brought out the price fixed for the goods sold on the basis of rate fixed per tonne for the extracted bamboos and salai wood. That the agreement contemplated price for the goods sold got supportive strength from the fact that Clause 2(h) envisaged the examination of the accounts in respect of bamboos and salai wood cut and removed. The lease prohibited interference with the surface land except in so far as was necessary for the purpose of the licence. The company could not interfere with the working of the forest areas within the leased area or the rights, liberties, privileges of other contractors of the said forest lands. The analysis of the counsel for the company prevailed before the Supreme Court and it was held that the document in question did not create lease but granted only a licence. Neither the use of the expression "royalty" nor the nomenclature was attached any importance. 14. In relation to the argument that since the forest department was not doing business (which was the requirement under the definition of the expression "sale"), the Supreme Court observed that this aspect ceased to have relevancy on account of the amendment to the Madhya Pradesh General Sales Tax Act by the Amending and Validating Act 13 of 1971. It was pointed out that in view of the amending Act aforesaid, the forest department of the State shall be deemed to be a dealer. If it is a dealer, the levy of sales tax from it is legal and, to use the language of the Supreme Court, "the controversy on this score is silenced". 15. In my view, the contention of the learned counsel for the State, that the agreement created a licence and not a lease is correct and should prevail. The heading of the agreement, which was relied upon by the petitioner, in my view, does not help it. The fact that the payment under the agreement is to be on "yield basis" is contrary to the creation of a lease. Clause 2(a) of the agreement envisages a minimum payment of Rs. 1,75,000 for extraction up to 5,000 tonnes of bamboo, and thereafter payment at the rate of Rs. 35 per tonne. This indicates that the agreement fixes a price for the goods sold. Like the Orient Paper Mills A.I.R. 1977 S.C. 687, here also, supportive strength is available from Clause 6(d), where the petitioner was required to keep account of the bamboos that were cut and the materials into which they were converted. The use of the expressions "lease" and "royalty" cannot be determinative in this case. As already pointed out it is the cumulative effect of the various terms that has to be examined. Schedule D, which forms the integral part of the agreement, specifically uses the expression "payment of purchase price". The heading of the schedule is "special conditions regulating and restricting felling, conversion, collection, extraction, transport of bamboos, payment of purchase price and other matters". The use of the expression "payment of purchase price" is a strong factor supporting the case of the State. 16. The agreement nowhere envisages giving of the possession of land to the petitioner-company. On the other hand, as indicated in Clause 1 of the agreement, it is the liberty and licence "to enter upon the land" for the purpose of exploitation which is granted to the petitioner. Reading the other terms of the lease, it is clear that the exploitation here means the cutting and appropriation of the bamboos according to the various terms in the agreement. This is clear from Clause 7 of the agreement, which states "if the lessee fails to fell or remove any bamboo, felling of which is obligatory by the rules in Schedule D, within the period allowed for such operations within the section or to the coupe, he shall forfeit his right to cut or remove the said bamboos which shall then become the property of the Government". It is thus, in my view, clear that it is the right to cut and remove bamboos, which is in contemplation in this agreement. The use of the expression "exploit" at various places in the agreement has to be read in this context. 17. Clause 9 of the agreement, which requires payment of rent for any land used in recognised bamboo depots and the exemption of rent for land inside the coupe permitted by the Divisional Forest Officer for temporary storage of bamboos either during or after the expiry of the agreement clearly points that it was not the land which was being leased out to the petitioner. 18. Clause 8 of Schedule D, which prohibits the petitioner from cutting and/ or removing any other produce of the coupe and further prohibits him from damaging any plant or any other bamboos which are to be left out in so cutting and/or removing further trees strengthens the case of the State that it is not a demise of the land but a mere licence to cut and remove such bamboos, whose cutting and removal is permitted under the agreement. 19. Thus, the complete absence of any expression in the agreement which specifically or even by necessary implication contemplates demise of land, and the use of the expression "liberty and licence" for the purpose of exploitation of the bamboos permitted to be cut and removed are strong factors, along with those already indicated, which lead to the conclusion that the agreement in question was a licence and not a lease. Even though any one factor may not be conclusive, the totality is cumulative and, in my view, decisive in the result. 20. The various terms, as already discussed, far outweigh the presumption that was sought to be raised by the petitioner by the use of the expressions "lease" and "royalty". Royalty, as pointed out in the Orient Paper Mitts' case A.I.R. 1977 S.C. 687, is "feudalistic euphemism for the price of the timber". I have already dealt with the factors (c) and (e), as relied upon by the learned counsel for the petitioner, while dealing with the contention of the petitioner, and these, for the reasons already explained, support the case of the State and not those of the petitioner. The right of the petitioner to sub-let or resell his coupe or part of his interest therein under the agreement does not lead to the inference that lease has been created. The permission is in respect of whatever interest the petitioner has under the agreement. What that interest is has to be determined on the basis of other relevant factors. The right of the petitioner to develop a communication in the leased area is connected with such business as is permitted in the agreement. The making of legal demand as the first charge on the bamboos extracted is similarly not a factor of consequence. Neither the provision of minimum royalty nor the duration of the term of agreement can outweigh the other factors in favour of the State, as already noticed, and lead to the conclusion that the agreement was a lease. 21. I do not think that there is any conflict between the Ansari's case A.I.R. 1976 S.C. 1813 and the Orient Paper Mills' case A.I.R. 1977 S.C. 687. On the facts as present in both the cases, the agreements in question were held to be licences. I do not find any dictum or even observation in the Ansari's case A.I.R. 1976 S.C. 1813, which goes contrary to what has been held in the Orient Paper Mills' case A.I.R. 1977 S.C. 687. In both these cases, the question was whether, on the facts and in the circumstances of the respective cases, the agreement was a lease or licence. Both the decisions held that they were licences. In my view, therefore, the decision in the Ansari's case A.I.R. 1976 S.C. 1813 does not help the petitioner. 22. I now take up the second contention that has been raised on behalf of the petitioner. It is said that the agreement in question is not a contract for a sale of chattel qua chattel by a seller of chattel to a purchaser for a price within the meaning of Section 4 of the Sale of Goods Act, 1930. Section 3 of the Bihar Sales Tax Act, 1959 (hereinafter referred to as the "Act"), envisages tax by a dealer on sales made inside Bihar. "Sale" has been defined in Section 2(p) of the Act as follows: (p) 'Sale' means any transfer of property in goods for cash or deferred payment or other valuable consideration including such transfer of property in goods made by a society, club or association but does not include a mortgage or hypothecation of or a charge or pledge on goods; and all grammatical variations and cognate expressions shall be construed accordingly and 'purchase' means such acquisition of property in goods. 23. "Dealer", so far as is relevant, is defined in Section 2(f) as follows: (f) 'Dealer' means any person who sells or purchases any goods whether for commission, remuneration or otherwise and includes any undivided Hindu family, firm, company or corporation, any department of Government and any society, club or association. 24. It may be stated that in the Bihar Sales Tax Act, 1947, "dealer" was defined as follows: 'Dealer' means any person who carries on the business of selling or supplying goods in Bihar, whether for commission, remuneration or otherwise and includes any firm or a Hindu joint family and any society, club or association which sells or supplies goods to its members. 25. It may be noticed that the expression "who carries on the business of sale...", which was in the previous Act, has now been deleted. "Goods" has been defined in Section 2(j) to mean goods of all kinds of movable property. The explanation states: "Materials, commodities and articles attached to or forming part of an immovable property which are agreed to be severed under the contract of sale shall be deemed to be goods within Section 2(j) of the Act." It is to be noticed that the definition of "goods" in the Madhya Pradesh General Sales Tax Act (as amended) included "all growing crops, grass, trees, plants and things attached to, or forming part of the land which are agreed to be severed before sale or under the contract of sale". Thus, for all material purposes, the definition in the Bihar Act and the Madhya Pradesh Act is similar. It was observed in the Orient Paper Mills' case A.I.R. 1977 S.C. 687: The key expressions which unlock the mystique of turnover-cum-sale of goods are the last inclusive limb of the clause 'also includes...trees which are agreed to be severed under the contract of sale'. The crunch issue thus is whether the self-styled lease deed is in substance a contract of sale of timber. 26. Similarly, here, if the lease deed can, in substance, be said to be a contract of sale of bamboos, in view of the definition of "goods", there can be no doubt that sales tax would be payable. I have already discussed the true nature of the agreement. In my view, the agreement is not a lease but a licence to enter upon the land for the purpose of cutting and removing bamboos. In the instant case also, the self-styled lease is, in substance, a contract of sale of bamboos. In view Of the definitions of "goods" and "dealer", as noted above, I am of the opinion that sales tax is payable by the forest department. The petitioner could, therefore, be legitimately asked to pay the sales tax to the department in view of Section 20A of the Bihar Sales Tax Act, 1959. 27. I have already given the definition of the expression "dealer" and have pointed out that there is a difference in the definition as in the 1947 Act and the present Act. The crucial expression "carries on the business" has now been deleted. The Ansari's case A.I.R. 1976 S.C. 1813 was considering the position where the definition was similar to the definition in the 1947 Act. It was in that context that it was held that the important element of frequency being lacking, it could not be held that the Government was carrying on the business of sale of forest produce. The position in the instant case is similar to the position in the Orient Paper Mills' case A.I.R. 1977 S.C. 687. When the said case was decided by the Madhya Pradesh High Court, the definition of "dealer" was similar to our Act of 1947. That is why it was held that the Government did not fulfil the definition of "dealer". By the time the case came to the Supreme Court, the Madhya Pradesh legislature amended the definition by Act 13 of 1971. That is why it was observed in the aforesaid case: The time is set true for stating the decisive statutory changes, which occurred after the High Court ruled against the State, calculated to undo the disability discovered by that pronouncement. This development deserves attention as the sole point on which the State lost in the High Court, viz., that the forest department is not doing business, ceases to have relevance today on account of the amendment to the Madhya Pradesh General Sales Tax Act by the M.P.G.S.T. (Amendment and Validation) Act .13 of 1971. The definition of 'dealer' and other related provisions were touched up and redefined in such manner that the finding on point No. (3) formulated by the High Court was effectively nullified. Indeed, the legislation is a sequel to the decision and has squarely undone the impediment in the way of the State collecting sales tax from the respondent. So long as that law holds good the State's claim cannot be bowled out.... To abbreviate the discussion, thanks to Act 13 of 1971, the forest department of the State shall be deemed to be dealer. If it is a dealer, the levy of sales tax from it is legal and the controversy on this score is silenced. 28. Reliance was placed by the learned counsel for the petitioner on the decision of the Orissa High Court in Straw Products Ltd. v. State of Orissa [1978] 42 S.T.C. 302. The definition of "dealer" in the Orissa Act was that dealer means any person who carries on business of purchasing or selling. Thus, it would be seen that business element was necessary under the Orissa Act. In view of the changed definition of the expression "dealer" in the Bihar Act, this case cannot help the petitioner. 29. It was next contended that the decision of the authorities holding that sales tax was payable was in violation of the principles of natural justice. It was contended that the decision involved civil consequence and thus rules of natural justice were applicable. In my view, the argument is wholly misconceived. As pointed out in Radhakrishna Agarwal v. State of Bihar A.I.R. 1977 S.C. 1496 at 1503: Rules of natural justice are attached to the performance of certain functions regulated by statutes or rules made thereunder involving decisions affecting rights of parties. 30. Reliance in that case was placed on the following observations made in Additional District Magistrate, Jabalpur v. Shivkant Shukla A.I.R. 1976 S.C. 1207 at 1288. The principles of natural justice which are so implied must always hang, if one may so put it, on pegs of statutory provisions or necessarily follow from them. They can also be said sometimes to be implied as necessary parts of the protection of equality and equal protection of laws conferred by Article 14 of the Constitution where one of the pillars of Dicey's principles of the rule of law is found embodied. Sometimes, they may be implied and read into legislation dealing with rights protected by Article 19 of the Constitution. They could, at times, be so implied because restrictions on rights conferred by Article 19 of the Constitution have to be reasonable.... 31. There is no scope of application of rules of natural justice when a demand is made calling upon the petitioner to pay sales tax which, in view of the authorities, was payable by the petitioner. If the petitioner was aggrieved and it appears that it is aggrieved, it had ample opportunity to challenge this decision; and this is what the petitioner has done by filing the writ application. 32. It was contented that the notifications dated 26th December, 1974, which were issued by the State Government and which excluded timber from the list of exempted goods and included bamboo in the schedule to the notifications issued on 31st March, 1974, were beyond the powers of the State Government. I do not think this argument can be accepted. By Notification No. Bikrikar/Pra/4002/74-2991-F.T. dated 31st March, 1974, as amended from lime to time, certain goods were exempted from the levy of sales tax in exercise of power under Section 4(3) of the Act. By the impugned notification (annexure P/17), "timber" and some other items were deleted from the list of exempted goods. I do not see any difficulty in holding that the power of exemption includes within itself the power of withdrawal of exemption. A mere reading of Section 24 of the Bihar and Orissa General Clauses Act makes it abundantly clear that such a power exists. So far as annexure P/18 is concerned, it is said that the notification, in the words of the learned counsel, "smuggles new items of goods", and makes them taxable. Section 3, which is the charging section, makes every dealer liable to the payment of sales tax (subject to the conditions mentioned in the section). This is subject to the other provisions of the Act. In respect of goods not liable to exemption under Section 4 of the Act, the rate of tax payable is fixed under Section 6. Section 6(1) of the Act lays down that the general sales tax payable by a dealer shall be 1 per cent of the taxable turnover. Section 6(2) similarly states that the special sales tax payable by a dealer shall be at the rate of 5 per cent of the taxable turnover. Proviso to both these Sub-clauses empowers the State Government from time to time, by notification, to fix higher rate. Section 6(2) is as follows: (2) The special sales tax payable by a dealer under Section 3 shall be levied at the rate of five per centum of his taxable turnover: Provided that the State Government may, from time to time, by notification, and subject to such conditions and restrictions as it may impose, fix a higher rate not exceeding fifteen per centum, or any lower rate, not below two per centum, in respect of such class of dealers or such goods, class or description of goods or such sales, category or description of sales as may be specified in the notification. 33. It would thus appear that the State Government is empowered by issue of notification to fix a higher rate of tax in respect of specified items. This is what has been done by the notification. In respect of bamboo, sales tax has been fixed at 7 per cent. I do not see how it can be said to be beyond the power of the State Government. What has been done is clearly and explicitly authorised by Section 6(2) of the Act. It is not in dispute that if sales tax is leviable, cess tax is also leviable. 34. A number of other decisions were also cited at the Bar. I have not specifically dealt with them as they were decisions on propositions, which are not in dispute, or have no relevancy to the facts and circumstances of the case, in view of my decision on the contentions urged in the course of argument. 35. I am, therefore, of the view that this application has no merit and must, therefore, be dismissed with costs. Hearing fee Rs. 500. S.P. Sinha, J.
36. I agree.