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PETITIONER: INDIA TOBACCO CO.  LTD.

       Vs.

RESPONDENT: THE COMMERCIAL TAX OFFICER, BHAVANIPORE & ORS.

DATE OF JUDGMENT05/11/1974

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH KHANNA, HANS RAJ GUPTA, A.C.

CITATION:  1975 AIR  155            1975 SCR  (2) 612  1975 SCC  (3) 512

ACT: Interpretation of statutes-Repeal, nature of-Bengal  Finance (Sales Tax Act, 1941, if repealed, with regard to cigarettes by  West  Bengal Sales Tax Act 1954-West  Bengal  Sales  Tax (Amendment) Act, 1958-Effect of.

HEADNOTE: Under  the  Bengal  Finance,  (Sales  Tax)  Act,  1941,  the definitions  of ’goods and ’dealer’ are  very  comprehensive and  general,  and they cover ’cigarettes’ and a  dealer  in cigarettes.   Under  s.  5  a dealer would  be  entitled  to purchase  free of tax goods required by him for use  in  the manufacture  of  cigarettes Section 23 of the  ,rest  Bengal Safes   Tax  Act,  1954,  excepts  everything  relating   to cigarettes from the operations of the 1941-Act, save to  the extent  indicated  in  the proviso to  that  section,  which retains the benefit under s. 5(2) (a) (ii) of the  1941-Act. As  a consequence of the Additional Duties of Excise  (Goods of  Special importance) Act, 1957 (Central Act 58 of  1957), the   West   Bengal  State  legislature  passed   the   West Bengal,,Sales Tax (Amendment) Act, 1958 This Act amended the 1954 Act, by. substituting the words ’certain notified  com- modities’ for the words ’cigarettes and other  commodities.’ The 1958-Act also substituted new ss. 23 and 25 in the 1954- Act.   Under  the,  new  s. 25, the  1954-Act  can  be  made applicable  by a notification only to a commodity ’which  is liable to taxation under the Bengal Finance (Sales Tax) Act, 1941’  and  further. the 1941-Act ’shall cease to  apply  to such  commodity’  and  the  1954Act  shall  apply  to   such commodity, only from the date of such notification. The appellant-company claimed that as a result of the  1958- Act, the 1941Act was applicable to cigarettes and as such it was  entitled to the benefit of s. 5(2)(a)(ii) of the  1941- Act and that the Sales Tax Authorities were not competent to amend  the registration certificate issued to it  under  the 1941-Act The Commercial Tax Officer rejected the  contention and asked the appellant for its registration certificate for amendment and deletion of exempt-ion.  The appellant filed a writ petition in the High Court, challenging the  threatened action and the writ petition was allowed by a Single Judge. In  L.P. Appeal, the Division Bench of the High  Court  held

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that the 1954 Act had the effect of completely repealing the 1941-Act,  in relation to cigarettes, that the 1958-Act  did not revive the operation of the 1941-Act and that since  the 1941-Act stood completely obliterated from the statute  book in relation to cigarettes, no sales tax would be payable  in regard thereto either under 1954-Act or under the  1941-Act, and  that therefore, the appellant was not entitled  to  any certificate of registration under the 1941-Act. Allowing the appeal to this Court. HELD  :  (1) The general rule of construction  is  that  the repeal of a repealing Act does not revive anything  repealed thereby.  But the operation of the rule is not absolute  and is  subject to the appearance of a ’different  intention  in the  repealing statute, which may be explicit  or  implicit. Repeal connotes abrogation or obliteration of one statute by another,  from the statute book, as completely as it if  had never been passed.  When an Act is repealed, it must be con- sidered (except as to transactions past and closed) as if it had never existed Repeal is not a matter of form but one  of substance, depending upon the intention of the  Legislature. If  the  intention was to abrogate or wipe  off  the  former enactment,  wholly  or in part, then it would be a  case  of total  or protan to repeal.  If the intention was merely  to modify  the former enactment by engrafting an  exception  or granting an exemption, or by super-adding conditions, or  by restricting, intercepting or suspending its operation,  such modification would not amount to a repeal. [617D-E, F-H] 613 Kay  v.  Goodwin, [1830] 6 Bing 576 at P.  582;  Surtees  v. Ellison, (1829) 9 B & C 750 at p. 752; State of Orissa v. M. A. Tulloch & Co., A.I.R. 1964 S.C. 1284 and Mount v.  Taylor referred to. (2)  The  High Court was wrong in holding that s. 23 of  the 1954-Act repeals the 1941-Act with regard to cigarettes  and that cl. (ii) of its proviso does not save the operation  of a.  5 of the 1941-Act but only makes it a part of the  1954- Act.   The words ’in calculating the taxable turnover  under s.  5 of the said Act’ in s. 23 of the 1954-Act show  beyond doubt  that  the calculation of the  taxable  turnover  from which  the deduction of the price of goods sold to a  dealer for use in manufacturing cigarettes is to be made, has still to  be done under s. 5 of the 1941-Act.  Assuming  that  cl. (ii)  of the Proviso incorporates by reference, s. 5 of  the 1941-Act  in a modified form, then also  such  incorporation would  not  per  se  amount to a repeal,  in  the  sense  of complete obliteration of S. 5 of the 1941-Act. [619F-620A] (3)(a)  A conjoint reading of the 1941, 1954  and  1958-Acts shows  that  the 1954-Act did not repeal or  obliterate  the 1941-Act. but only modified it by excepting cigarettes  from its   operation.   During  the  interregnums   between   the enactment of the 1954-Act and the 1958-Act, the operation of the  1941-Act  with regard to cigarettes was in a  state  of mere  interception,  and when as a result of  the  amendment made  by  the 1958-Act, that exception or  interception  was removed,  the  application  of the  1941-Act  to  cigarettes revived  proprio  vigore.  After  the  1958-Act,  cigarettes could be. notified under the amended s. 25 of the 1954  Act. It  necessarily  implies that the 1941-Act  would  cease  to apply to cigarettes only when the requisite notification  in respect  thereof under s. 25 of the 1954-Act is issued.   If such a notification were issued and later on rescinded, such rescission  would  revive the application of  the  1941-Act. The position would be the same, as in the present case, if a notification under s. 25 specifying cigarettes as a  taxable commodity was not at all issued. [621C-D, P-G]

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(b)  Further,  the 1941-Act was amended by Bengal Act 13  of 1959.  In obedience to, the mandate of s. 14 of the  Central Sales Tax Act of 1957, it reduced the rate of tax from 5 np. in the rupee to 2 % of such part of the taxable turnover  of a  dealer  under the 1941-Act as represents  sale  of  goods (including manufactured tobacco and cigarettes) referred  to in  s. 14 of the Central Act.  This amendment of  the  1941- Act,  effected in 1959, also indicates that after the  1958- Act,  the operation of the 194 1 Act revived in relation  to cigarettes. [621D-F]

JUDGMENT: CIVIL  APPELLATE  JURISDICTION : Civil Appeal  No.  1183  of 1970. From  the judgment and order dated the May 26, 1969  of  the Calcutta High Court in E.M.A. No. 135 of 1961. A.   K.  Sen,  M. C. Bhandari, D. Pal, P. Mridul and  D.  N. Gupta, for the appellant. B.   Sen, P. K. Chatterjee, Leila Seit and G. S.  Chatterjee for the respondent. The Judgment of the Court was delivered by SARKARIA,  J.  Whether  the sale  of  cigarettes  after  the enactment  of  West Bengal Sales Tax (Amendment)  Act,  1958 (for short, the 1958 Act) is governed by the Bengal  Finance (Sales Tax) Act 1941 (for short, the 1941 Act) and, as such, a  dealer  in the State of West Bengal is  entitled  to  the benefits  under s. 5 (2) (a) (ii) of the 1941 Act in  making purchases free of sales-tax of raw material and other  goods required  for  use in the manufacture of cigarettes  on  the strength  of  such  exemption entered  in  his  registration certificate,   is   the  only  question   that   falls   for determination  in this appeal by certificate granted by  the High Court of Calcutta under Article 133 (1) (a) and (b)  of the Constitution ? 614 The  appellant, India Tobacco Co. Ltd.  (hereinafter  called the  Company) was a ’dealer’ within the meaning of 1941  Act carrying  on  the  business  of  manufacture  and  sale   of cigarettes   and   smoking   tobacco.    It   obtained   the registration  certificate No. BH/67B under that Act, and  on its  basis, became entitled to exemption under s.  5(2)  (a) (ii) from payment of sales tax on goods purchased by it  for use in the manufacture of cigarettes. In  1954,  the Legislature of West Bengal enacted  the  West Bengal  Sales  Tax Act, 1954 (for short, the 1954  Act)  "to impose a tax on the sale of cigarettes and other commodities in  West  Bengal".  The 1954 Act took out cigarettes  and  a dealer in cigarettes from the purview of the 1941 Act. The Company got itself registered under the 1954 Act and its registration  certificate  which it had obtained  under  the 1941 Act was amended and cigarettes were excluded therefrom. By  virtue of the provisions of s. 23 of 1954 Act,  however, the Company continued to avail of the benefit under s. 5 (2) (a)  (ii) of the 1941 Act with regard to purchases of  goods required for use in the manufacture of cigarettes. In  1957, the Government of India in consultation  with  the State Governments, decided that an additional duty of excise should  be levied on mill-made textiles, sugar  and  tobacco including manufactured tobacco in replacement of the  sales- tax  then levied by the State Governments, the net  proceeds being  distributed  among  the States subject  to  the  then income  derived by each of the States being assured  to  it. Before  undertaking the necessary legislation for the  levy,

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the  President  of  India made a  reference  to  the  Second Finance Commission requesting it to make recommendations  as to  the principles which should govern the  distribution  of the  net proceeds of this additional duty among the  States. Broadly,  the recommendation of the Finance  Commission  was that the States levying a tax under their State Laws on  the sale  or  purchase of sugar, tobacco and  mill-made  textile after April 1, 1958 would not be entitled to participate  in the  distribution  of the net proceeds  of  this  additional duty.  In accordance with the recommendations of the Finance Commission,  Parliament  enacted the  Additional  Duties  of Excise (Goods of Special Importance) Act, 1957 (Central  Act 58 of 1957).  This Act came into force on December 24, 1957. It  declared the aforesaid three classes of goods "to be  of special  importance  in  inter-state  trade  or   commerce". Further,  the  proviso  to Para 1 (b) (iii)  of  the  Second Schedule  appended  to  the said Act,  gave  effect  to  the recommendation of the Finance Commission with regard to  the distribution   of  additional  duties  among   the   States. Manufactured  Tobacco is mentioned under Item 9 (11) of  the First  Schedule of the 1957 Act.  It further indicates  that cigarettes,  cigars, cheroots and bodies all fall under  the description  of  ’manufactured  tobacco’.   They  have  been subjected  to  this additional duty of excise  at  different rates.    Part   1  of  the  Second  Schedule   relates   to distribution of these additional duties.                             615 In view of the Central Act 58 of 1957, the State Legislature passed  the  1958  Act.   It  received  the  assent  of  the President  and  was  thereafter published  in  the  Calcutta Government  Gazette on March 30, 1958.  It amended the  1954 Act.   The 1958 Act, substituted for the  words  "cigarettes and other commodities" occurring in the preamble of the 1954 Act,  the words "certain notified commodities".  It  further replaced the word "cigarettes", wherever. it occurred in the 1954 Act, by the words "notified commodities".  The 1958 Act substituted a new Section 23 for the original Section 23  of the 1954 Act.  The new Section provided that nothing in  the 1941 Act shall apply to notified commodity from the date  on which  the said commodity is or was notified under s. 25  of the 1954 Act as amended by the 1958 Act.  Clause (ii) of the Proviso in this new Section 23 provided that :               "the  price of goods sold to a dealer for  use               by  such  dealer  for  manufacturing,  making’               processing  or  packing  notified  commodities               shall  be deducted in calculating the  taxable               turnover under section 5 of the Bengal Finance               (Sales Tax) Act, 1941." The  notifications issued by the State Government from  time to time under s. 25 in respect of "notified commodities"  do not include cigarettes. Having  regard  to the enactment of 1958  Act,  the  Company wrote to the Commissioner of Commercial Taxes, West  Bengal, Respondent  ,No.  3,  on April 11, 1958,  stating  that  the registration certificate granted to it under the, 1954  Act, bearing No. BH/1/54B, was liable to be cancelled because the Company  ceased to be a dealer as defined in ’,hat Act.   It was further contended that the Company as a manufacturer  of cigarettes and smoking tobacco was entitled to have its  re- gistration  certificate under the 1941 Act suitably  amended in order to enable it to purchase free of tax goods required for  use  in  the  manufacture  of  cigarettes  and  smoking mixtures in accordance with the proviso to s. 5 (2) (a) (ii) of  the  1941 Act.  Then, the Sales-tax authorities  of  the State on July 1, 1958, amended the registration  certificate

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of the Company under the 1941 Act specifying cigarettes  and smoking  mixtures as the goods for the manufacture of  which it was entitled to purchase free of tax raw material,  plant and machinery.  This certificate was further amended by  the authorities  on July 25, 1958 to include  certain  materials under  the  heading  ’consumable  stores’  which  it   could purchase tax-free. On  July  30,  1958, the Company  wrote  to  the  Additional Commissioner of Commercial Tax (Res.  No. 2) requesting  him to  confirm  that it was not liable to pay tax  or  to  file returns either under the 1954 Act or under the 1941 Act.  As a  consequence, the Additional Commissioner  and  Commercial Tax  Officer, Bhavanipore wrote letters dated  September  8, 1958 and September 22, 1958, respectively.  The substance of these letters was that from December’ 24, 1957, a dealer  or a  manufacturer  in  cigarettes was not liable  to  pay  any sales-tax  under the 1941 Act or under the 1954 Act and  was not  entitled to benefits of registration certificate  under either of the said Acts and that, in the 616 circumstances, it was proposed to delete the amendment which was  made  in the registration certificate  of  the  Company under  the  1941  Act  on  July  1,  1958  by  inclusion  of cigarettes and smoking mixtures in the manufacturers’ column of such certificate.  The Company wrote back, on October 31, 1958  contending  that  the  1941  Act  was  applicable   to cigarettes,  and as such, it was entitled to the benefit  of s.  5  (2)  (a)  (ii) of the  1941  Act  add  the  Sales-tax Authorities  were  not competent to amend  the  registration certificate  issued under the 1941 Act.   These  contentions were  rejected  by  the Commercial Tax Officer  who  by  his letter of February 2, 1 959 asked the Company again to  send its  registration certificate for amendment and deletion  of exemption entry therefrom. To  challenge  this  action  threatened  by  the   Sales-tax Authorities in their letters of September 8, 1958, September 22,  1958  and February 2, 1959, the Company  filed  a  writ petition  in March 1959 in the High Court of Calcutta  under Article 226 of the Constitution. On  behalf  of the Sales-tax Authorities, it  was  contended before  the  learned  Single  Judge,  who  tried  the   writ petition,  that after the enactment of Central Act  of  1957 and 1958 Act, cigarettes no longer formed the subject matter of  tax either under the 1941 Act or the 1954 Act, with  the result  that  the  registration certificate  in  respect  of cigarettes  under  those  Acts  became  a  nullity  and  the exemption  granted  in  respect of  the  purchase  of  goods required  for  the  manufacture  of  cigarettes’  under  the registration  certificate  issued  under the  1941  Act  was incompetent.   The  learned  Single  Judge  negatived   this contention thus               "In my opinion, this is based on an  incorrect               reading  of the law.  As will appear from  the               delineation  of the law above  mentioned,  the               provisions contained in section 5 (2) (a) (ii)               of  the Act, affected a dealer who sold  goods               to a registered dealer, as being intended  for               use  by him in the manufacture. of  goods  for               sale,  and there was a  corresponding  benefit               conferred  upon  the purchaser,  who  being  a               registered dealer acquired the benefit of  not               having  to  pay sales tax, when  he  purchased               goods  from-another dealer for such  purposes.               The  second thing to be borne in mind is  that               this exemption is not in respect of cigarettes

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             or  smoking tobacco, but in respect  of  goods               intended  for use in the manufacture of  ciga-               rettes  and  smoking  tobaccos,  which  is   a               different thing altogether." The learned Judge further held that cigarettes which  became the’ subject of the Central Act 58 of 1957, did not find any place  in the 1958 Act which took away cigarettes  from  the scope  of 1954 Act and there was nothing in the 1958 Act  to take away the right of the Company conferred by the 1941 Act to  claim  exemption  from  sale-tax  in  respect  of  goods purchased for use in the manufacture of cigarettes.  In  the result, the learned judge made the Rule absolute and quashed the impugned notices.  He also issued a mandamus- 617 directing  the  Sales-tax Authorities to  forbear  from  the cancellation   of  the  endorsement  to   the   registration certificate  of  the Company in relation to  cigarettes  and smoking mixtures, as made on the 1st July, 1958, Against  the  judgment  of the  learned  single  Judge,  the Revenue  carried an appeal to a Division Bench of  the  High Court  which  accepted  the appeal and  dismissed  the  writ petition. The  ratio of the two separate but concurrent  judgments  of the appellate Bench of the High Court-is, that 1954 Act  had the effect of completely repealing the 1941 Act in  relation to  cigarettes,  and the repeal of 1954 Act in  relation  to cigarettes by the 1958 Act, did not revive the operation  of 1941 Act in regard to cigarettes on the principle "that  the repeal of a repealing Act does not revive the repealed Act". Since 1941 Act stood completely obliterated from the statute book  in  relation  to cigarettes, no  sales  tax  would  be payable in regard thereto either under the 1954 Act or under the  1941  Act.  Upon these premises it was  held  that  the Company  as a dealer in cigarettes and smoking  mixtures  is not  entitled to any certificate of registration  under  the Act of 1941 as it is neither a dealer within the meaning  of that Act, nor liable to pay sales tax under that Act. The  general rule, of construction is that the repeal  of  a repealing  Act  does not revive anything  repealed  thereby. But  the  operation  of this Court is not  absolute.  it  is subject to the appearance of a "different intention" in  the repealing statute.  Again, such intention may be explicit or implicit.    The  questions,  therefore,  that   arise   for determination  are : Whether in relation to cigarettes,  the 1941 Act was repealed by the 1954 Act and the latter by  the 1958 Act?  Whether the 1954 Act and 1958 Act were  repealing enactments?   Whether there is anything in the 1954 Act  and the  1958  Act  indicating  a revival of  the  1941  Act  in relation to cigarettes ? It is now well settled that "repeal" connotes abrogation  or obliteration  of  one statute by another, from  the  statute book  as completely " as if it had never been passed";  when an  Act  is repealed, "it must be considered (except  as  to transactions  past and closed) as if it had never  existed". (Per Tindal C.J. in Kay v. Goodwin(2) and Lord Tenterdon  in Surtees v. Ellison(2) cited with approval in State of Orissa v. M. A. Tulloch & Co) (3). Repeal  is not a matter of mere from but one  of  substance, depending  upon  the intention of the Legislature.   If  the intention,  indicated expressly or by necessary  implication in  the subsequent statute, was to abrogate or wipe off  the former enactment, wholly or in part, then it would be a case of  total or protan to repeal.  If the intention was  merely to modify the former enactment by engrafting an exception or granting an exemption, or by super-adding conditions, or  by

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restricting, intercepting or suspending its operation,  such modification (1) (1830) 6 Bing 576 at p. 582.     (2) (1829) 9 B & C  750 at p. 752;. (3) A.I.R. 1964 S.C. 1284. 618 would not amount to a repeal (see Craies on statute Law, 7th Edn.pp. 349, 353, 373, 374 and 375; Maxwell’s Interpretation of  Statutes,  11th  Edn.  p. 164, 390  based  on  Mount  v. Taylor(1);  Sutherland’s  Statutory  Construction  3rd  Edn. Vol. I, Paragraphs 2014 and 2022 ,pp. 468 and 490).  Broadly speaking,  the principal object of a Repealing and  Amending Act  is to ’excise dead matter, prune off superfluities  and reject clearly inconsistent enactments-see Mohinder Singh v. Mst.  Harbhajan Kaur(2). The  ground having been cleared, we now proceed  to  examine the effect of the 1954 Act and the 1958 Act on the 1941  Act in the light of the above principles. We  will  start with the 1941 Act.  The  preamble  indicates that  its purpose is to impose a general tax on the sale  of goods in Bengal.  ’Goods’ are defined in Clause (d) of s.  2 as  "as all kinds of movable property other than  actionable claims,  stocks,  shares  or securities,  and  includes  all materials and commodities".  "Dealer" means "any person  who carries on the business of selling goods in West Bengal  and includes the Government". [s. 2(c)]. The charging provision is in s.4, according to which,  every dealer  whose  gross  turnover  during  the  preceding  year exceeds the taxable quantum shall be liable to pay tax under this  Act  on all sales effected by him after  the  notified date.   Sub-section (5) of s. 4 defines  "taxable  ,quantum" to, mean "in relation to any dealer who imports for sale any goods into West Bengal or manufactures or produces any goods for  sale,  10,000  rupees "and" in relation  to  any  other dealer, 50,000 rupees." Section 5 of the 1941 Act prescribes the  rate  of tax.  Its original sub-section  (2)  (a)  (ii) reads as under               "(ii) sales to a registered dealer-               of goods of the class or classes specified  in               the   certificate  of  registration  of   such               dealer, as being intended for resale by him or               for use by him in the manufacture of goods for               sale or for use by him in the execution of any               contract; and of containers or other materials               for  the  packing of goods ,of  the  class  or               classes so specified :               Provided  that  in the case of  such  sales  a               declaration  duly filled up and signed by  the               registered  dealer to whom the goods are  sold               and  containing  prescribed particulars  on  a               prescribed form obtainable from the prescribed               authority  is  furnished  in  the   prescribed               manner by the dealer who sells the goods’ It will be seen that the definitions of "goods" and "dealer" in  1941 Act are very comprehensive and general.  It is  not disputed that the wide definitions would cover  ’cigarettes’ and a dealer in cigarettes.  Considered alone, the 1941  Act would take in its sweep cigarettes, (1) (1868) L.R. 3 C.P. 645; (2) (1955) Cr.  L.J. 990. 619 also, and under its s. 5 (a) (ii) a dealer would be entitled to  purchase free of tax goods required by him, for  use  in the manufacture of cigarettes. The  (original) 1954 Act, as stated in its preamble, was  an

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Act  "to  impose a tax on the sale of cigarettes  and  other commodities"  in,  West Bengal.  As defined in  its  s.2(a), "cigarettes"  include  smoking. mixtures ready  for  use  in rolling  cigarettes or for use in tobacco pipes, but do  not include bidis. Under Clause (b) of the. same section, "dealer" means  "-any person who sells cigarettes manufactured, made or  processed by  him in West Bengal, or brought by him into  West  Bengal from  any place outside West Bengal for the purpose of  sale in West Bengal." Clause  2(e)  defines "turnover." Section  4  provides  that every dealer shall pay a tax at the date of three per centum of  his turnover.  Section 5 requires dealers under the  Act to obtain registration certificate. Section 23 of the 1954 Act runs thus "Nothing in the Bengal Finance (Sales Tax) Act, shall  apply to cigarettes : Provided that-               (i)   the said Act shall continue to apply  in               respect   of   cigarettes  sold   before   the               commencement  of  this Act and in  respect  of               sales  of  such cigarettes subsequent  to  the               commencement of this Act;               (ii)  the  price of goods sold to a dealer  as               defined in this Act for use by such dealer  in               manufacturing, making or processing cigarettes               shall  be deducted in calculating the  taxable               turnover under s. 5 of the said Act." The  Division  Bench of the High Court has  held  that  this section repeals the 1941 Act with regard to cigarettes,  and that  clause  (ii) of the above Proviso does  not  save  the operation  of  s.  5 of the 1941 Act  but  only  makes  that provision a part of the 1941 Act. In  our opinion, the issues that arise in this case,  cannot be correctly and completely answered by construing s. 23  of the 1954 Act in this. manner.  We would therefore, defer the final  answers  to  the questions posed  till  the  conjoint survey of 1954 Act, 1958 Act and other relevant  enactments, is complete.  Suffice it to say, now, on an analysis, of  s. 23  of the 1954 Act, that it excepts everything relating  to cigarettes  from  the  operation of 1941 Act,  save  to  the extent indicated in the Proviso.  We are not persuaded  that clause (ii) of the Proviso does not save anything in section 5  of the 1941 Act.  The words "in calculating  the  taxable turnover  under s. 5 of the said Act" in this clause  are  a clincher.   They  show beyond all manner of doubt  that  the calculation of the taxable turnover from which the deduction of  the  price,  of  goods  sold to  a  dealer  for  use  in manufacturing cigarettes is to be, 620 made,  has  still to be, done under s. 5 of  the  1941  Act. Assuming  that clause (ii) of the Proviso  incorporates,  by reference,  section  5 of the 1941 Act in a  modified  form, then  also such incorporation would not per se amount  to  a repeal,  in the sense of complete obliteration of section  5 of the 1941 Act. We  will now take up 1958.  This Act amended the  1954  Act. In  the preamble of the 1954 Act, for the words  "cigarettes and  other commodities", it substituted the  words  "certain notified commodities".  Further, for the word  "cigarettes", wherever occurring in the 1954 Act, it substituted the words "notified  commodities".   For the original section  23,  it substituted this new Section 23.               "Nothing  in  the Bengal Finance  (Sales  Tax)               Act, 1941 shall apply to a notified  commodity

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             from  the date on which the said commodity  is               or was notified under section 25               Provided that-               (i)   the said Act shall apply in respect of a               notified  commodity sold before the  issue  of               such notification and in respect of resales of               such  notified  commodity  subsequent  to  the               issue of such notification;               (ii)  the price of goods sold to a dealer  for               use by such dealer for manufacturing,  making,               processing  or  packing  notified  commodities               shall  be deducted in calculating the  taxable               turnover under section 5 of the Bengal Finance               (Sales Tax) Act 1941."               It also    inserted new s. 24A, to the  effect               :               "24A.   Notwithstanding anything contained  in               the  West  Bengal Sales Tax  (Amendment)  Act,               1958, this Act shall continue to apply to-               (i)   cigarettes sold before the  commencement               of that Act, and               (ii)  cigarettes   in  respect  of  which   no               additional  duties of excise have been  levied               under  the Additional Duties of Excise  (Goods               of  Special Importance), Act, 1957 as if  that               Act had not been passed."               Section  24-A  is not very material  for  this               discussion  because  the  petitioners  are   a               dealer  in  cigarettes  on  which   additional               duties are being levied under the Central  Act               of 1957.               The  1958  Act further  substituted  this  new               Section 25 for the original Section 25 in  the               1954 Act :               "If  the  State Government is at any  time  of               opinion  that  it  would  be  in  the   public               interest that any commodity which is liable to               taxation under the Bengal Finance (Sales  Tax)               Act, 1941, should be taxed under this Act,  it               may, by notification in ’the Official Gazette,               specify such commodity;                                    621               and on and from the date of such  notification               the  Bengal  Finance (Sales  Tax)  1941  shall               cease to apply to such commodity and this  Act               shall apply to such commodity." An analysis of this Section 25 would show that the 1954  Act (as  amended  by the 1958 Act) can be made applicable  by  a notification under this section, only to a commodity  "which is  liable to taxation under the Bengal Finance (Sales  Tax) Act, 1941," and further, that the 1941 Act "shall cease  to- apply  to such commodity", and 1954 Act shall apply to  such commodity, only from the date of such notification. It  is  not disputed that cigarettes can be  notified  as  a taxable  commodity under the amended section 25 of the  1954 Act.   It necessarily implies that the 1941 Act would  cease to apply to cigarettes, only when the requisite notification in  respect thereof under s. 25 of the 1954 Act  is  issued. There  can be little doubt that if such a notification  were to  be issued and later on rescinded, such  remission  would revive the application of the 1941 Act.  The position  would be  the  same, if, as in the present case,  no  notification under s. 25 specifying cigarettes as a taxable commodity was at all issued. It  may  further be noted that the 1941 Act was  amended  by

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Bengal Act 13 of 1953 which was published in the  Government Gazette on October 1959.  It inter alia amended s. 5 of  the 1941  Act  And  prescribed  different  rates  of  tax.    In obedience  to the mandate of s.14 of the Central  Sales  Tax Act  of 1957, it reduced the rate of tax from 5 N.P. in  the rupee  to 2 per centum of such part of the taxable  turnover of a dealer under the 1941 Act as represents sales of  goods (including manufactured tobacco, cigarettes) referred to  in s.  14 of the aforesaid Central Act.  This amendment of  the 1941  Act, effected in 1959, also indicates that  after  the 1958 Act, the operation of the 1941 Act revived in  relation to cigarettes. After  a conspirator and conjoint reading of  the  aforesaid enactments,  it seems to us clear that the 1954 Act did  not repeal  or obliterate the 1941 Act, but only modified it  by excepting   cigarettes  from  its  operation.   During   the interregnums  between the enactment of the 1954 Act and  the 1958  Act,  the  operation of the 1941 Act  with  regard  to cigarettes was in a state of mere interception, and when, as a  result  of  the  amendment made by  the  1958  Act,  that exception  or interception was removed, the  application  of the  1941 Act to cigarettes revived proprio vigore.  In  any case, definite indications of such revival are available  in the  language and scheme of the 1958 Act and the Bengal  Act 13 of 1959. For reasons aforesaid, we would allow this appeal, set aside the judgment of the Division Bench of the High Court, accept the  writ  petition and restore the decision of  the  single Judge  of  the  High Court.  There will be no  order  as  to costs. V.P.S. Appeal allowed. 622