Case: Kanshi Ram Jagan Nath And Others Vs. The State

Hidayatullah, J.1. The only question in this appeal with certificate under Art. 133 (1) (c) of the Constitution, against the judgment and decree of the High Court of Patiala and East Punjab States Union, is whether the levy of royalty at Rs. 50 per one lakh bricks under a Robkar issued by the Ijlas-i-Khas (Council of Regency), Patiala State on February 6, 1919 is valid.2. The appeal arises out of a suit filed by the present appellants in the Court of the Subordinate Judge, Faridkot, for declaration and injunction. The suit was dismissed by the trial Judge, but on appeal to the District Court, the decision was reversed. On Further appeal to the High Court, the decision of the Additional District Judge was set aside, and that of the trial Judge restored.3. In this appeal, the only point argued is whether the order of the Ijlas-i-Khas continues to be effective, after the enactment of the Indian Finance Act 1950. The suit was filed on May 13, 1952, for injunction against notices of demand issued to the appellants from the Tehsil Office, Faridkot on or about April 20, 1951. The learned Solicitor-General concedes that the appellants claim must be confined to the period after April 1, 1950, from which date the Indian Finance Act, 1950 began to operate. He states that prior to that date the law could not be considered to be invalid because of Art. 277, which saved taxes, duties, cesses or fees which were being levied in any State prior to the commencement of the Constitution. He also concedes that the Finance Act, 1950 could not operate before April 1, 1950, and the question, therefore, is, what is the effect of the Indian Finance Act, 1950 on the order impugned? It may also be pointed out that the authority of the Regency Council to issue the impugned order and the validity of that order, unless affected by any Indian Law, are not called in question.4. The Indian Finance Act, 1950 was passed to give effect to the financial proposals for the year commencing on April 1, 1950.Section 11 of that Act extended, amongst others, the Central Excises and Salt act, 1944, to the whole of India including Part B States, except the State of Jammu and Kashmir.By S. 13 (2), it was provided, inter alia, as follows:"If immediately before the 1st day of April 1950, there is in force in any State other than Jammu and Kashmir a law corresponding to, but other than an Act referred to in sub-s. (1) or (2) of S. 11, such law is hereby repealed with effect from the said date . . . ."It is contended that by the extension of the Central Excises and Salt Act, 1944 there was repeal of any law imposing excise duty on the manufacture of any class of goods.Attention is, therefore, drawn to the provisions of the Robkar, where the royalty is charged as follows:Mehsul (Royalty) at the rate of Rs. 50 per lac bricks be charged from all the kilnowner irrespective of the fact where they construct brick-kilns on the land belonging to Government or not. In case they construct brick-kilns on the land belonging to Government, cost (of the land) or damages thereof be charged (from them) in addition to the Mehsul (Royalty). . . . ."5.The provisions of S. 13 (2) of the Indian Finance Act, 1950 clearly show that only a law corresponding to the Central Excises and Salt Act, 1944, was intended to be repealed. If the law did not correspond to the Indian statute, it would be saved by virtue of Art. 277.We have thus to determine in this case whether the Robkar of the Ijlas-i-Khas, imposing a royalty on bricks can be said to be a law corresponding to the Central Excises and Salt Act, 1944, which was extended on April 1, 1950.6. The argument of Mr. Daphtary proceeds on the assumption that the royalty is in the nature of an excise duty, and the Robkar is thus a law corresponding to the Indian statute. That, however, does not determine the question, because the words of sub-s. (2) of S. 13 of the Finance Act, 1950 are that the law repealed must be a law corresponding to the Indian statute. The argument in support of the contention that this is such a law is that the Central Excises and Salt Act, 1944 is, as its long title and preamble show, a consolidating and amending law relating to Central duties of excises on goods manufactured or produced in certain parts of India and to salt. It is urged that the Act is in the nature of a code which not only provides for the levy of excise duty on the commodities specifically mentioned therein but by implication, exonerates other articles from the levy of excise duty, and that, therefore, the Indian statute is comprehensive enough to include not only such commodities as are mentioned in it but also other commodities on which there is no levy. It is conceded, however that there is no negative provision under which other goods manufactured in India are expressly saved from the operation of any other law.7. Section 3 (1) of the Central Excises and Salt Act, 1944 lays down the charge of excise duty, and provides:"There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in Indian . . . . . . at the rates, set forth in the First Schedule."Excisable goods" is defined by S. 2 (d), and means "goods specified in the First Schedule as being subject to a duty of excise and includes salt".These two provision read together limit the operation of the excise law to enumerated commodities and salt, and the ambit of the law is thus confined. The words "to consolidate and amend the law" have reference really to the Acts, which were repealed by S. 39. Prior to the enactment of this consolidating Act, there were no less than 17 Acts dealing with different commodities, and in 1944, all those laws were repealed, and a consolidated Act was passed to cover al those Acts and to include certain new commodities. The effect of consolidation was not to codify the law in such a way as to repeal other Acts, which were not specifically mentioned in the Schedule dealing with repeals. No negative provision to save other commodities from the operation of any existing local law was either expressly included or even contemplated in the Act. The result, therefore, is quite clear that the Robkar under which the royalty was imposed, cannot be said to be a law corresponding to the Central Excises and Salt Act, 1944, and is, therefore, not within the repeal created by S. 13 (2) of the Indian Finance Act, 1950.

Decision:
1[ds]7. Section 3 (1) ofthe Central Excises and Salt Act, 1944 lays down the charge of excise duty, andshall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in Indian . . . . . . at the rates, set forth in the First Schedule."Excisable goods" is defined by S. 2 (d), and means "goods specified in the First Schedule as being subject to a duty of excise and includes salt".These two provision read together limit the operation of the excise law to enumerated commodities and salt, and the ambit of the law is thus confined. The words "to consolidate and amend the law" have reference really to the Acts, which were repealed by S. 39. Prior to the enactment of this consolidating Act, there were no less than 17 Acts dealing with different commodities, and in 1944, all those laws were repealed, and a consolidated Act was passed to cover al those Acts and to include certain new commodities. The effect of consolidation was not to codify the law in such a way as to repeal other Acts, which were not specifically mentioned in the Schedule dealing with repeals. No negative provision to save other commodities from the operation of any existing local law was either expressly included or even contemplated in the Act. The result, therefore, is quite clear that the Robkar under which the royalty was imposed, cannot be said to be a law corresponding tothe Central Excises and Salt Act, 1944, and is, therefore, not within the repeal created by S. 13 (2) of the Indian Finance Act, 1950.