The Judgment of the Court was as follows:

2. This is an application under Article 226 of the Constitution by the petitioner, Messrs. Mahaluxmi Rice Mill, against the four opposite parties, the Additional Commissioner, Commercial Taxes, West Bengal, the Assistant Commissioner, Commercial Taxes, Asansol Circle, Asansol, Burdwan, the Commercial-tax Officer, Midnapore, and the Board of Revenue, Government of West Bengal.

3. The main objection of the petitioner is that the orders of assessment on the sale of husk and imposition of fine for non-registration are illegal and not in accordance with law. It raises the question whether the sale in this case comes within the exemption of item 1 of the schedule of the Bengal Finance (Sales Tax) Act, 1941 containing the entry— ‘(1) All cereals and pulses (including all forms of rice, raw or cooked). Except when sold in sealed containers’. The petitioner's contention is that what he sold was cereals within the exemption. The taxing authorities contend that what the petitioner sold was not cereal but husk. The question primarily is one of fact; that creates the major difficulty on the way of the petitioner. But there are other difficulties too.

4. There is one authority of this Court in Lakshmi Narayan Rice Mills v. Assistant Commissioner of Commercial Taxes, 66 C.W.N 1, which holds that husk of paddy is neither cereal nor bran. Paddy and husked paddy i.e, rice both fall within the category of cereals. But the husk when separated from rice does not independently fall within the category of cereals. The reason given there in that Judgment is that husk as husk is neither grain nor seed and is not human food. In that case also the same learned counsel appeared for the petitioner as in the present case-before me in this petition. The decision prima facie covers the point that Mr. Gharai, the learned counsel for the petitioner argued in this case. In order to get out of this difficulty Mr. Gharai for the petitioner tried to draw a distinction between that case and this one. It is said at page 4 in Lakshmi Narayan's case reported in 66 C.W.N 1, that—

‘Husk of paddy is the outer coating which is the chaff of the grain, its refuse or waste that is not included within the expression. bran’ appearing in item 2, of schedule to the Act. What he said to be husk is known in West Bengal as ‘toosh’ and what is said to be ‘rice bran’ is known as ‘Kurha’ and it is the latter one which is exempted from sales tax under the Schedule’.

5. Taking a cue from this portion of the Judgment Mr. Gharai now argues that the petitioner's case is that he has been taxed for what is known as ‘Kurha’ and therefore, he is exempted.

6. In his application dated 29th August, 1956 the petitioner admits that he manufactures (1) rice, (2) broken rice and (3) paddy husk. He himself describes or rather translates ‘Kurha’ as husk. Mr. Gharai has tried to contend that it was really the commercial Tax Officer who translated kurha ‘as husk’. But it is not the translation of the officer but his client's own admission in the petition that he has to face. The said petition dated the 29th August, 1956 may be kept in the records of this court to show that the petitioner himself described the article in question as ‘paddy husks’. It is true that in Bengali returns he described these three articles as (1) ‘Chaul’ (2) ‘khud’ and (3) ‘kurha’. This is where his difficulty arises. He has separately shown the sales under these three heads. That means that the petitioner had separated the chaul, the khud and the kurha and sold each one of these three articles separately.

7. In order to draw a distinction from the ease of Lakshmi Narayan Rice Mills reported in 66 C.W.N 1. Mr. Gharai tries first to argue that ‘kurha’ is a cereal within the meaning of item (1) of the schdeule of the Act and therefore exempted from the sales tax. He relies on the words ‘all cereals’ and also on the words ‘all forms of rice’ in item (1) in the schedule. What is a cereal has been variously described in different dictionaries, the essence of such meaning being that cereal means grain or any grass yielding farinaceous seeds suitable for food as wheat, maize, rice etc. Some of these dictionary meanings, such as in the Oxford Concise Dictionary, Webster's New International Dictionary and the Chamber's Twentieth Century Dictionary, have been noticed in Lukshmi Narayan's case in 66 C.W.N 1. But the matter is not only lexicographical or etymological or philological. It is one of construction in the context of the Act. It is a question of interpretation.

8. Paddy includes rice as its essential components. The first covering of paddy is mostly brown and hard but the outermost covering is not so hard as and in fact is softer than the first cover. It is this outermost cover which is known as ‘kurha’ or toosh in West Bengal. Rice, of course, is expressly included in cereal in plain terms of item 1 to the schedule. So also ‘khud’ whch is broken pieces of rice. They are also cereals because they are parts of rice. But husk which is the outermost covering or the ‘kurha’ completely separated is not rice according to my interpretation of the words ‘all forms of rice’ or cereal within the meaning of the words ‘all cereals’ in item (1) to the schedule of the Act. If the whole paddy, namely, the rice with the outer covering is taken as a whole I would be prepared to take the view that the outermost covering is included within the word ‘cereal’. But where the outermost covering is completely separated from rice and its first brown cover, then it no longer remains either rice or cereal. The skin of a banana until peeled off may by way of interpretation be considered as part of banana itself. But when it is completely peeled off and separated then the separated skin itself can no longer pass as banana. Husk, ordinarily, is the outermost skin of rice. It is clear from the facts stated above that the petitioner was not selling the whole paddy as such but he was separating rice from the ‘khud’ (which is broken rice) and the husk |kurha) and selling them separately. Now each one of these separately is not cereal. It is only the first two which may be called cereals and forms of rice within the meaning of item (i) of the schedule to the Act but the third one is not. It is neither cereal nor any form of rice. It is ‘toosh’ or ‘kurha’. It is used only as fuel. In that sense it is a commercial commodity. If the petitioner wants to come within the exception or exemption according to item (1) of the schedule of the Act he has got to establish that this is a cereal or a form of rice. He has not done so in this case. I do not think he can do so.

9. Realising this difficulty Mr. Gharai altered his argument to say that the ‘kurha’ here is not really husk although his client in the petition has described it as husk. He contends or attempts to contend that ‘kurha’ in this sense is broken rice. I am unable to accept his contention first because ‘khud’ is broken rice and not kurah in West Bengal; secondly, because this claim by Mr. Gharai to include broken rice in ‘kurah’ is disputed by the learned Government Pleader appearing for the State. If it is a disputed question of fact then this attempted distinction by Mr. Gharai cannot succeed. I am not going to decide this disputed question of fact’ on this application when the petitioner can have such disputed fact more appropriately determined elsewhere under the Act.

10. This leads me to the technical objection taken by the learned Government Pleader for the State that this petition must fail because the petitioner has availed himself of the alternative remedy by filing a Revision before the Board of Revenue under section 20 of the Act and actually prosecuting that remedy. Now this is admitted in paragraph 12 of the petition where the petitioner states that on 20th February, 1960 he appealed to the Board of Revenue against the order dated 29.12.59 passed by the Additional Commissioner, Commercial Taxes. The reason why inspite of that appeal or Revision pending before the Board of Revenue he has come to this Court under Article 226 of the Constitution is stated by the petitioner to be that the Board of Revenue had already decided in another case of Punamchand Rekhab Ltd. v. State of West Bengal that husk was liable to taxation. Therefore, the petitioner thinks that though he has appealed to the Board of Revenue, yet he has little chance of success there. I am of the opinion, that it is not a proper course or a proper exercise of the discretion of this court to grant relief unde Article 226 of the Constitution by pre-judging a pending appeal or revision which the petitioner himself has chosen. No doubt an alternative remedy is not always a bar to exercise of discretion by this court under Article 226 of the Constitution. But then this is not a question of the existence of an alternative remedy. It is a case where the petitioner has actually availed of that remedy and that remedy is being pursued and prosecuted and is pending. A Constitutional Writ under Article 226 in such circumstances should not be used for that will encourage gambling in litigation because the petitioner in such cases would take the chance of asking for the writ from this court and winning it, and if he fails then trying his luck in the alternative remedy which he had already initiated before he has come to this court for constitutional relief. The Constitution should not be lent or used for such legal betting.

11. This of course has been discouraged by the Supreme Court in K.S Rashid and Son v. Income Tax Investigation Commission, reported in A.I.R 1954 S.C 207 where at page 210 B.K Mukherjea, J. as he then was observed as follows:

‘For purposes of this case it is enough to state that the remedy provided for in Article 226 of the Constitution is a discretionary remedy and the High Court has always the discretion to refuse to grant any writ if it is satisfied that the aggrieved party can have an adequate or suitable relief elsewhere. So far as the present case is concerned, it has been brought to our notice that the appellants before us have already availed themselves of the remedy provided for in section 3(5) of the Investigation Commission Act and that a reference has been made to the High Court of Allahabad in terms of that provision which is awaiting decision. In these circumstances we think that it would not be proper to allow the appellants to invoke the discretionary jurisdiction under Article 226 of the Constitution at the present stage, and on this ground alone, we would refuse to interfere with the orders made by the High Court.’

12. Therefore, on this ground alone the petition in this case must fail independently of the grounds of merits.

13. The last point urged by Mr. Gharai for the petitioner is that the penalty imposed in this case was illegal. This penalty was imposed under section 11 (2) of the Act. The Additional Commissioner held the view that the penalty was neither unjust nor improper as was imposed in accordance with law and as the petitioner failed to obtain registration within the prescribed time and there has been no satisfactory explanation for such default. The Assistant Commissioner of Commercial taxes upheld that decision. The actual penalty imposed is only Rs. 70.20 nP.

14. Mr. Gharai contends that the penalty could not be imposed under section 11 (2) of the Act. That section provides that if upon information which is coming to his possession, the Commissioner is satisfied that any dealer, who has been liable to pay tax under this Act in respect of any period but has failed to get himself registered or obtain a special certificate as the case may be, the Commissioner shall proceed in such manner as may be prescribed to assess to the best of his Judgment the amount of tax due from the dealer in respect of such period and all subsequent periods and in making such assessment shall give the dealer a reasonable opportunity of being heard, and the commissioner may, if he is satisfied that the default was made without reasonable cause, direct that the dealer shall pay by way of penalty in addition to the amount of tax a sum not exceeding one and a half times that amount.

15. It is not Mr. Gharai's contention that the amount of the tax has exceeded the statutory limit. What he contends is that there is no ‘default’ by his client because his whole contention has been that the petitioner is not liable to pay tax under this Act. Here the contention is clearly unsound on the facts and on the law. The reasons may be briefly stated.

16. The petitioner is governed in the facts of this case by section 4(2) of the Act which lays down that every dealer to whom sub-section (1) does not apply shall, if his gross turn-over calculated from the commencement oi any year exceeds the taxable quantum at any time within such year, be liable to pay tax under this act, on the expiry of two months from the date on which such gross turn-over first exceeds the taxable quantum on all sales effected after such expiry.

17. That being the position the facts here show that the petitioner's taxable turn-over exceeded Rs. 1000 on the 17th December, 1954. On that date, therefore, he became liable to pay tax under this Act. Under the express provisions of section 4(2) of the Act he had time for two months as mentioned there. That time expired on the 17th February, 1955. But the petitioner did not make any application for registration of a certificate until the 23rd August, 1956. He was therefore clearly in default within the meaning of section 11 (2) of the Act. The facts found by the taxing authorities show that he had no satisfactory explanation for this default. Ignorance of law was pleaded but rightly enough it was held to be no excuse. It was only thereafter on the 27th September, 1956 that notice under section 11(1) of the Act was given to the petitioner.

18. For these reasons this application must fail. The Rule is discharged and the pettiion is dismissed. But nothing in this order shall prejudice the petitioner's case in the pending appeal and|or revision before the Board of Revenue that ‘kurah’ in the facts of this case actually include rice and not what is known usually in West Bengal as the outer-most husk or ‘toosh’ fit only to be used as a fuel.

19. There will be no order as to costs. Cr. 2208 of 1960.

20. Mr. Gharai, learned Counsel for the petitioner says that this matter raised the same question as in the Rule that I have just now disposed of except (1) that there is no pending appeal or revision before the Board of Revenue in this case and (2) there is no question of penalty because the petitioner has obtained relief by way of remission in this appeal before the Appellate authority.

21. This petition, therefore, must fail on the other ground of merit discussed in the Judgment which I have delivered in C.R 2207 of 1960.

22. The Rule is discharged. There will be no order as to costs.

C.R.D