{"id":203633,"date":"1962-02-27T00:00:00","date_gmt":"1962-02-26T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/r-c-jall-vs-union-of-india-on-27-february-1962"},"modified":"2017-05-18T13:53:31","modified_gmt":"2017-05-18T08:23:31","slug":"r-c-jall-vs-union-of-india-on-27-february-1962","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/r-c-jall-vs-union-of-india-on-27-february-1962","title":{"rendered":"R. C. Jall vs Union Of India on 27 February, 1962"},"content":{"rendered":"
Supreme Court of India<\/div>\n
R. C. Jall vs Union Of India on 27 February, 1962<\/div>\n
Equivalent citations: 1962 AIR 1281, \t\t 1962 SCR Supl. (3) 436<\/div>\n
Author: K Subbarao<\/div>\n
Bench: Sinha, Bhuvneshwar P.(Cj), Subbarao, K., Ayyangar, N. Rajagopala, Mudholkar, J.R., Aiyyar, T.L. Venkatarama<\/div>\n
           PETITIONER:\nR. C. JALL\n\n\tVs.\n\nRESPONDENT:\nUNION OF INDIA\n\nDATE OF JUDGMENT:\n27\/02\/1962\n\nBENCH:\nSUBBARAO, K.\nBENCH:\nSUBBARAO, K.\nAIYYAR, T.L. VENKATARAMA\nSINHA, BHUVNESHWAR P.(CJ)\nAYYANGAR, N. RAJAGOPALA\nMUDHOLKAR, J.R.\n\nCITATION:\n 1962 AIR 1281\t\t  1962 SCR  Supl. (3) 436\n CITATOR INFO :\n RF\t    1963 SC1742\t (54)\n RF\t    1963 SC1760\t (24)\n R\t    1964 SC 925\t (23)\n R\t    1967 SC1512\t (19,48,66)\n R\t    1970 SC1589\t (5)\n RF\t    1971 SC 152\t (8)\n R\t    1977 SC1459\t (6)\n RF\t    1984 SC 420\t (13)\n RF\t    1986 SC 649\t (25,28)\n RF\t    1990 SC 781\t (67)\n RF\t    1990 SC1927\t (70)\n\n\nACT:\nRailway--Suit\t for\trecovery    of\t  cess--Limitation--\nMaintainability--Consignee,  if\t liable--Indian\t  Limitation\nAct,  1908(IX  of 1908), Arts.\t149,120.50--Constitution  of\nIndia, Arts 265, 372--Ordinance No. 39 of 1944--Ordinance  6\nof  1947,  s.3--Coal Production Fund Rules, 1944,  rr.6,  3,\n3(a), 3(b)--Supreme Court Rules,1950, as amended, O.  XVIII,\nr.2.\n437\n\n\n\nHEADNOTE:\nThe  appellant, Amalgamated Coalfields, despatched  by\trail\nthree  consignments  of coal to appellant R.  C.  Jall\tfrom\nJunner-Deo  to Indore.\tThe appellant R. C. Jall took  deli-\nvery  of the coal after paying the freight, but by,  mistake\nthe cess payable as surcharge was not 'recovered from him at\nthe time of delivery of goods.\tOn April 15, 1953, the Union\nof India representing the Central and Western Railways filed\na  suit before the Civil judge Chhindwara, for the  recovery\nof   the   mid\t cess.\t  Since\t  important   questions\t  of\ninterpretation of the Government of India Act, 1935 and\t the\nConstitution were involved, the High Court withdrew the case\nto  its\t own  file for trial.  The  appellants\tinter  alia,\npleaded then the levy was illegal and the suit was barred by\nlimitation.   The High Court decreed the suit and held\tthat\nit was within time and the appellants were liable to pay the\ncess  against which the present appeals were preferred.\t  It\nwas urged by the appellants (1)\t   that\t art.  149  of\t the\nIndian Limitation Act did not apply and the\tsuit\t was\ngoverned by art. 120 of the Limitation Act; (2)\t  that\t the\ntax   could  not  be  sustained\t under\tArt.  265   of\t the\nConstitution;  (3) that the excise duty could not be  levied\non the consignee; (4) that the purpose of the Ordinance\t had\nexhausted  and the Central Government could no\tlonger\tlevy\nthe  tax;  (5)\tthat  under the\t statutory  rules  only\t the\nconsignee was liable to pay.\nHeld that art. 149 of the Indian Limitation Act read with\nart. 120 of the said Act applied to the present case and the\nsuit was within time.\nKirpa Sanker v. Janki Prasad A.I.R. 1942 Pat. 87, Secretary\nof  State for India v. Guru Proshad Dhur, (1893) 1. L.R.  20\nCal  51;Inderchand v. Secretary of State for India (1941)  9\nI.T.R.\t673  and Government of India v.\t Taylor,  (1955)  27\nI.T.R. 356, held inapplicable.\nThe  repealing\tOrdinance, being a  temporary  one,  expired\nafter  it  fulfilled its purpose.  As it had  continued\t the\nlife of the original Ordinance which was a permanent one, in\nrespect\t of past transaction, the expiry of its\t life  could\nnot  have any effect on that law to the extent\tsaved.\t The\nrepealed  to  ordinance, to the extent saved,  continued  to\nhave  force under Art. 372 of the Constitution and it  could\nnot be said that the coal cess was levied without  authority\nof law within the meaning of Art. 265 of the Constitution.\nHansraj\t Moolji v. The State of Bombay,<\/a> (1957)\tS.C.R.\t634,\nrelied on.\nThe  Excise  duty is primarily a duty on the  production  or\nmanufacture of goods produced or manufactured within\n438\nthe  country.  Subject always to the legislative  competence\nof  the\t taxing authority the said tax can be  levied  at  a\nconvenient stage so long as the character of the impost,  is\nnot  lost.   'The method of collection does not\t affect\t the\nessence\t of  the duty but only relates to the  machinery  of\ncollection  for\t administrative convenience,  whether  in  a\nparticular  case the tax ceases to be in essence  an  excise\nduty  and the rational conncction between the duty  and\t the\nperson\ton  whom  it is imposed ceased to  exist  is  to  be\ndecided\t on  a\tfair construction of  the  provisions  of  a\nparticular act.\nIn re the Central Proviaces and Berar Act.  No. XIV of 1938,\n(1939)\tF.C.R. 18, The Province of Madras v. Boddu  Paidanna\nand  Sons, (1942) F.C.R. 90 and Governor General in  Council\nv. Province of Madras, (1945) L.R. 72 1. A. 91 applied.\nIn  view of s. 3 of the repealing Ordinance it could not  be\nsaid that the purpose of the Ordinance had been exhausted\nIn  the\t present case r. 3(a) of the  Coal  Production\tFund\nRules 1944, had no application and the only rules applicable\nwas  r.\t 3 (b).\t Rule 6 does not say that if  the  consignee\ndoes not pay the consignor is liable to pay and it does\t not\npurport to enlarge the statutory liability of the  consignor\nor the consignee, as the case may be.\nHeld,  further, that a point of law not taken in the  state-\nment of case cannot ordinarily be allowed to be urged at the\ntime of hearing of the appeal.\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL  APPELLATE JURISDIICTION: Civil Appeals Nos. 183,\t 184
\nof 1959.\n<\/p>\n
Appeals\t from  the judgment and decree\tdated  September  5,
\n1954, of the Madhya Pradesh High Court in    M.C.  case\t No.
\n214 of 1954.\n<\/p>\n
A.   V. Vinwnatha Sastri and J. B. Dadachanji for the  appellant
\n(in  C. A. No. 183 of 1959) and respondent No. 2 (in  C.  A.
\nNo. 184 of 1959).\n<\/p>\n
B.   Sen and I-N.  Shroff for the appellant in O.A. No.\t 184
\nof 1959) and Respondent No. (In C. A No. 183 of 1959).
\nC.   K. Daphthary, Solicitor-General of Y.   Kumar and P. D.
\nMenon for respondent No. 1. (in both-the appeals).\n<\/p>\n
 439<\/span><\/p>\n
1962.  February 27.  The Judgment of the Court was delivered
\nby
\nSUBBA  RAO, J.-These two appeals by certificates  are  filed
\nagainst the judgment and decree of the High Court of  Madhya
\nPradesh, Jabalpur, by the two defendants in Civil Suit No. 1
\nof  1957,  a  suit filed by the Union of  India,  owing\t and
\nrepresenting  the  Central  and\t Western  Railways  Adminis-
\ntrations,  Now\tDelhi; against the said defendants  for\t the
\nrecovery of coal cess amounting to Rs. 81-4-0 and costs.
\nThe  material facts may be briefly stated.  Under  Ordinance
\nNo.  39\t of 1944, the Central Government was  authorised  to
\nlevy  and collect as a cess on all coal and coke  despatched
\nfrom  collieries in British India a duty of excise  at\tsuch
\nrate,  not exceeding Rs. 1-4-0 per ton.\t In exercise of\t the
\npower conferred on the Central Government under s. 5 of\t the
\nOrdinance,  the\t said  Government  made rules  ;  and  r.  3
\nthereof,  the duty of excise imposed under the Ordinance  on
\ncoal  and coke shall, when such coal and coke is  despatched
\nby rail from collieries or coke plants, be collected by\t the
\nRailway\t Administration by means of a surcharge on  freight,
\nand  such duty of excise shall be recovered either from\t the
\nconsignor or the consignee, as the case may be.\t On  January
\n1,  1947,  February  1, 1947 and  February  7\/9,  1947,\t the
\nsecond\tdefendant,  namely  the\t Amalgamated  Coal   fields,
\ndespatched by rail to the first defendant three consignments
\nof  coal  from Junner-Deo to Indore.  The  freight  for\t the
\nthree consignments was payable at the destination station i.
\ne.  Indore.  The first defendant duly paid the\tfreight\t and
\ntook  delivery\tof  the coal but by some  mistake  the\tcess
\npayable\t as  surcharge\ton the three  consignments  was\t not
\nrecovered  from the first defendant at the time of  delivery
\nof the goods.  Under
\n440<\/span>
\ns.   55(5)   of\t  the  Indian  Railways\t Act   the   Railway
\nAdministration\tcan   recover  the freight  or\tany  balance
\nthereof left unrecovered by way of suit.  On April 15, 1953,
\nthe  Union of India,, representing the Central\tand  Western
\nRailways I Administrations, filed Civil Suit No. 126 of 1953
\nin  the Court of the Civil Judge, II Class,  at\t Chhindwara,
\nfor the recovery of the said cess.  The High Court  withdrew
\nthe case and took it on its own file for trial on the ground
\nthat important questions of interpretation of the Government
\nof India Act, 1935, and the Constitution were involved,\t and
\nit was numbered as Civil Brit No. 1 on 1957.  The defendants
\ninter  alia pleaded that the levy was illegal and  the\tsuit
\nwas barred by limitation.  The High Court held that the suit
\nwas  within  time under Art. 149 of the Limitation  Act\t and
\nthat the defendants were liable to pay the cess and  decreed
\nthe suit.  The first defendant filed Civil Appeal No. 183 of
\n1959 and the second defendant filed Civil Appeal No. 184  of
\n1959 against the said decree.\n<\/p>\n
At  the outset we may take up two of the points, which\twere
\nnot  mentioned\tin  the statement of  case,  raised  by\t Mr.
\nViswanatha  Sastri.  learned counsel for  the  appellant  in
\nCivil  Appeal  No. 183 of 1959.\t The said points are  :\t (1)
\nCoal  cess is a fee and not a tax or duty and (2) the  first
\ndefendant  i.e.,  the  consignee, was  a  non-resident\tand,
\ntherefore,   the  Ordinance  not  having   extra-territorial
\noperation could not reach him.\tThese two contentions do not
\nfind  place in the statement of case as they should.   Under
\nOrder  XVIII  r. 2 of the Supreme Court\t Rules,\t each  party
\nshall  lodge  his case within the time\tprescribed  therein,
\nand, under r. 3 thereof, the said case shall consist of\t two
\nparts,\tand  Part II, which is relevant now,  says  that  it
\nshall set out the propositions of law to be urged in
\n441<\/span>
\nsupport\t of the contentions of the party lodging  the  case.
\nThe object of the statement of case is not only to enlighten
\nthe  Court on the questions that would be raised before\t it,
\nbut  also Co enable the opposite party to know\tbefore\thand
\nthe arguments he would have to meet and to prepare his\tcase
\nthat  the statement of case should be complete and  full  is
\nalso  emphasized  by the fact that, under  the\tSchedule  of
\nFees,  a decent fee is prescribed to the junior\t and  senior
\nadvocates for preparing the same.  But we regret to  observe
\nthat  sufficient care is not being taken in the\t preparation
\nof the statement of case as contemplated by the said  Rules.
\nIf  the\t rules should serve the purpose they  were  intended
\nfor,  it  is necessary that counsel should, at the  time  of
\npreparing the case, read their brief thoroughly, decide\t for
\nthemselves  the\t questions that will be raised\tand  express
\nthem clearly therein.  Any dereliction of this obvious\tduty
\ncannot\t easily\t be  overlooked.   This\t Court,\t  therefore,
\nordinarily will not allow counsel at the time of hearing  an
\nappeal to raise questions not disclosed in the statement  of
\ncase.\tThere axe no exceptional circumstances in this\tcase
\nfor  us\t to  depart from that  salutary\t practice,  and\t we,
\ntherefore.,  cannot allow the appellant to raise  these\t two
\nquestions before us.\n<\/p>\n
The  first  question  is  whether  the\tsuit  is  barred  by
\nlimitation.  The coal cess should have been collected at the
\ntime  of  the delivery of the  three  consignments,  namely,
\nJanuary\t 9, 1947, February 8, 1947., and February 18,  1947,
\nrespectively.\tThe suit was filed on April 24.\t 1953,\tthat
\nis, more than six years from the date of amount was payable.
\nIt is contended that the suit was, therefore, barred  ,under
\nArt,  120  of the Limitation Act.  The High Court  held\t the
\nsuit was within time under Art. 149,
\n442<\/span>
\nread with Art. 50, of the Limitation Act.  The said
\nArticles read\n<\/p>\n
———————————————————–
\n Description of suit
\n\t\t\t      Period\t Time from  which
\n\t\t\t      of limi-\t period begins to
\n\t\t\t      tation.\t run.\n<\/p>\n
===========================================================\n<\/p>\n
149.Anysuitby or on\t      Sixty\t When the period
\nbehalf of the Central\t      years\t of limitation
\nGovernment or any\t\t\t would begin to
\nState Government\t\t\t run under this
\nexcept a suit before\t\t\t Act against a
\nthe Supreme Court\t\t\t like suit by a
\nin the exercise of its\t\t\t private person.\n<\/p>\n
original Jurisdic–\n<\/p>\n
tion.\n<\/p>\n
50. For the hire of ani- Three\t    When the hire
\nmals, vehicles, boats\t      years\t becomes payable.
\nor house-hold furni-\n<\/p>\n
ture.\n<\/p>\n
120. Suit for which no\t      Six\t When the right
\nperiod of limitation\t      years\t to sue accrues.
\nis provided  else-\n<\/p>\n
where in this sche-\n<\/p>\n
dule.\n<\/p>\n
———————————————————–
\nThe High Court held that the suit was of the character of  a
\nsuit  contemplated  by\tArt. 50 and  therefore\tthe  Central
\nGovernment could file the suit within 60 years from the date
\nthe  freight  became payable.  Mr. Sastri  contends  that  a
\nprivate person cannot file a suit like the suit filed by the
\nCentral\t  Government  to  recover  a  statutory\t cess\tand,
\ntherefore,  Art. 149 does not avail the Government and\tthat
\nin  the circumstances the suit is governed only by Art.\t 120
\nof  the\t Limitation Act, which prescribes a  period  of\t six
\nyears from the date the right to sue accrues.
\nThe   argument\tof  the-  learned  counsel  appears  to\t  be
\nplausible, but, in our view, has no merits.  It
\n443<\/span>
\nmixes  up the question of maintainability of the  suit\twith
\nthat  of limitation prescribed under the Act.  For  a.\tsuit
\ndescribed in Art. 149 a period of limitation of 60 years  is
\nprescribed  and\t the period would begin to run as  it  would
\n“against a like suit by a private person”.  The article does
\nnot posit that such a suit should have been maintainable  at
\nthe   instance\t of  a\tprivate\t party:\t  it   assumes\t its
\nmaintainability\t  and,\ton  that  basis,  refers’   to\t the
\nappropriate,  article of the Limitation Act for the  limited
\npurpose\t of ascertaining the starting point  of\t limitation.
\nThe  statute of limitation assumes the existence of a  cause
\nof action and does not define it or create one.\t To state it
\ndifferently,  if  a private party had filed a suit  for\t the
\nrecovery  of a statutory duty, what would be the article  of
\nthe  Limitation Act applicable to such a suit?\tArticle\t 50,
\nwhich  prescribes  the period of limitation for\t a  suit  to
\nrecover\t the hire of animals, vehicles, boats  or  household
\nfurniture, cannot obviously apply to a suit for the recovery
\nof  a  statutory  cess filed at the instance  of  a  private
\nparty.\tThere is no other specific article in the Limitation
\nAct  applicable to such a suit and,. therefore, it would  be
\ngoverned only by the residuary Article 120.  Under the\tsaid
\narticle,  time\truns  from the time when the  right  to\t sue
\naccrues.   It follows that when such a suit is filed by\t the
\nCentral\t Government,  the period of limitation of  60  years
\nshould be computed when the right to sue accrues.  The right
\nto  sue\t accrued  in the present case  when  the  defendants
\nrefused to pay the cess when demanded.\tThe decisions relied
\nupon  by the learned counsel in support of  his\t contention,
\nnamely, Kirpa Sanker v. Janki Prasad Secretary of State\t for
\nIndia Guru Prasad Dhur Inderchand v. Secretary of State\t for
\nIndia(3)  and  Government of India v. Taylor  (1)  have.  no
\nbearing on the question raised in the present case, as\tnone
\nof  those  cases related to a suit filed  by  Government  to
\nrecover amount due to it from defendants therein
\n(1)  A.I.R. 1942 Pat. 87.\n<\/p>\n
(3)  (1941) 9 I.T.R. 673.\n<\/p>\n
(2) (1893) I.L.R. 20 Cal. 51.\n<\/p>\n
(4) (1955) 27 I.T.R. 356.\n<\/p>\n
444<\/span><\/p>\n
We,  therefore, hold that the suit was clearly\twell  within
\ntime and was not barred by limitation.\n<\/p>\n
The  next contention raises the question of validity of\t the
\nlevy.  The argument of the learned counsel may be summarized
\nthus:  Ordinance 39 of 1944 was a temporary  Ordinance,\t and
\nthat it was repealed by Ordinance 6 of 1947; that the saving
\nclause in the latter Ordinance applying s. 6 of the  General
\nClauses\t Act to the repealed Ordinance fell with the  expiry
\nof  the\t repealing Ordinance on January 1,  1947,  with\t the
\nresult\tthat  there was no law when  the  Constitution\tcame
\n‘into  force so as to be continued ‘under Art.\t372  thereof
\nand, therefore, the duty, if any, payable under Ordinance 39
\nof  1944  could neither be levied nor  recovered  after\t the
\nConstitution  came  into force, as there was no\t longer\t any
\nauthority of law to sustain the said tax within the  meaning
\nof  Art.  265  of  the\tConstitution.\tTo  appreciate\t the
\ncontention it would be necessary to read the material  parts
\nof the relevant provisions.\n<\/p>\n
Ordinance 39 of 1944
\nSection\t 2. Imposition and Collection of excise and  Customs
\nduties.-\n<\/p>\n
\t      (1)   With  effect  from\tsuch  date  is\t the
\n\t      Central\t Government  may,  notification\t in-\n<\/p><\/blockquote>\n
\t      the Official    Gazette,\t appoint   in\tthis
\n\t      behalf, there shall be levied and collected as
\n\t      a cess for the purposes of this Ordinance,  on
\n\t      all  coal and coke despatched from  collieries
\n\t      in  British  India a duty of  excise  at\tsuch
\n\t      rate,  not exceeding one rupee and four  annas
\n\t      per ton, as may from time to time be fixed  by
\n\t      the Central Government by notification in\t the
\n\t      Official Gazette.\n<\/p><\/blockquote>\n
\t      The  Repealing  ordinance.   Ordinance   6  of
\n\t      1947.\n<\/p><\/blockquote>\n
\t       Section 2. The Coal Production Fund Ordinance
\n\t      shall be repealed, and for the
\n\t       445<\/span>
\n\t      avoidance of doubts it is hereby declared that
\n\t      the  provisions  of Section 6 of\tthe  General
\n\t      Clauses  Act, 1897 (X of 1897) shall apply  in
\n\t      respect of such repeal.\n<\/p><\/blockquote>\n
\t      General Clauses Act, 1897 (X of 1897).
\n\t      Section  6.  Where this Act,  or\tany  Central
\n\t      Actor  Regulation made after the\tcommencement
\n\t      of  this Act, repeals any enactment  hitherto,
\n\t      made  or hereafter to be made, then  unless  a
\n\t      different intention appears, the repeal  shall
\n\t      not :\n<\/p><\/blockquote>\n
\t      (c)   affect  any right privilege,  obligation
\n\t      or  liability  acquired, accrued\tor  incurred
\n\t      under any enactment so repealed.\n<\/p><\/blockquote>\n
\t      (e)   affect  any legal proceedings or  remedy
\n\t      in  respect  of  any  such  right,  privilege,
\n\t      obligation, liability, penalty, forfeiture  or
\n\t      punishment  and any such legal proceedings  or
\n\t      remedy   may  be\tinstituted,   continued\t  or
\n\t      enforced as if the Regulating Repealing Act or
\n\t      Regulation had not been passed.<\/p><\/blockquote>\n
\t      Section  30.   In\t this  Act,  the  expression
\n\t      Central  Act,  wherever  it  occurs  shall  be
\n\t      deemed  to  include  an  Ordinance  made\t and
\n\t      promulgated by the Governor-General
\n\t      Constitution of India
\n\t      Article 372. (i) Notwithstanding the repeal by
\n\t      this  Constitution of the enactments  referred
\n\t      to  in  article 395 but subject to  the  other
\n\t      provisions of this Constitution, all the\tlaws
\n\t\t\t    in force in the territory of India\timmediatel
\ny
\n\t      before the commencement of this
\n\t      446<\/span>
\n\t      Constitution  shall continue in force  therein
\n\t      Until  altered  or repealed or  amended  by  a
\n\t      competent\t  Legislature  or  other   competent
\n\t      authority.\n<\/p>\n
On  August  26,\t 1944, the  Governor-General  of  India,  in
\nexercise  of  the powers vested in him under a.\t 72  of\t the
\nNinth  Schedule to the Government of India Act,\t 1935,\tread
\n‘with  India  &\t Burma\t(Emergency  Provisions)\t Act,\t1940
\npromulgated  the Coal Production Fund Ordinance 1944 (39  of
\n1944). to constitute a fund for the financing of  activities
\nfor  the improvement of production, marketing and  distribu-
\ntion of coal and coke.\tThis Court in Hansrdi Moolji v. The,
\nState of Bombay<\/a>(1) held that the deletion of the words\t“for
\nthe space of not more than six months from its promulgation”
\nfrom  s. 72 of the 9th Schedule of the Government  of  India
\nAct,  1935,  by\t s.1(3) of The India  and  Burma  (Emergency
\nProvisions) Act, 1940, had the effect of equating Ordinances
\nwhich  were promulgated between June 27, 1940, and April  1,
\n1946, with Acts passed by the Indian Legislature without any
\nlimitation of time as regards their duration, and  therefore
\ncontinuing  in force until they were repealed.\t It  follows
\nfrom this decision that the Ordinance promulgated on  August
\n26,  1944. was a permanent one and would continue to  be  in
\nfore  till it was repealed.  The second Ordinance,  that  is
\nrepealing, Ordinance, was promulgated on April 26, 1947, and
\nthe  repeal  took effect from May 1, 1947.  But\t in  express
\nterm it declared that the provisions of s.. 6 of the General
\nClauses Act, 1897 (X of 1897) shall apply in respect of\t the
\nrepeal.\t Without the said express provision, s.6, read\twith
\ns.30,  of the General Clauses Act, might have  achieved\t the
\nsaid  result,  but  ex abundanti cautela and  to  place\t the
\nmatter\tbeyond any controversy. s.6 of the  General  Clauses
\nAct was expressly made applicable to the repeal.  Under s.6
\n(1)  [1957].S.C.R.,634
\n447<\/span>
\nof General Clauses Act, so far it is material to the present
\ncase, the repeal did not affect the right of the railway  to
\nrecover\t the freight or the liability of the  defendants  to
\npay  the same, and the remedy in respect of the\t said  right
\nand liability.\tThe result was that Ordinance 39 of 1944 and
\nthe rules made thereunder must be held to continue to be  in
\nrespect of the said right and liability, accrued or incurred
\nbefore\tthe  said Ordinance was repealed  and  the  remedies
\navailable  thereunder.\t But  the  life\t of  the   repealing
\nOrdinance  had\texpired on November 1, 1917.  What  was\t the
\neffect of the expiry of the repealing Ordinance on the\tsaid
\nliability   continued  after  repeal  in  respect  of\tpast
\ntransactions?\tThe repealing Ordinance, being\ta  temporary
\none,  expired  after it fulfilled its purpose.\t As  it\t had
\ncontinued  the lift, of the original Ordinance, which was  a
\npermanent  one, in respect of past transactions, the  expiry
\nof  its\t life could not have any effect on that law  to\t the
\nextent\tsaved.\t The decisions relating to the repeal  of  a
\ntemporary Ordinance with a saving clause have no bearing  in
\nthe   present  Context,\t for  in  that\tcase  the   repealed
\nOrdinance, in so far as it was kept alive, could not have  a
\nlarger\tlease of’ life than the repealed and  the  repealing
\nOrdinances  possessed.\tIf so, it follows that the  repealed
\nOrdinance,  to\tthe extent saved, continued  to\t have  force
\nunder the Art. 372 of the Constitution until it was altered,
\nrepealed  or amended by competent Legislature.\t It  cannot,
\ntherefore,  be\tsaid  that  the\t coal  cess  was  levied  or
\ncollected without the authority of’, law.
\nIt  is when  contended that the excise\tduty not legally  be
\nlevied\ton  the consignee  , who had nothing to do with\t the
\nmanufacture or production of coal.  The argument confuses of
\nthe  incidence of taxation with the machinery  provided\t for
\nthe collection thereof.\t The or an excise duty has been
\n448<\/span>
\nconsidered  by the Federal Court and the Privy Council.\t  In
\nre  the Central Provinces and Berar Act No. XIV of  1938(1),
\nwhich was a special reference by the Governor-General to the
\nFederal Court under is. 213 of the Government of India\tAct,
\n1935.  Gwyer, O.J., described “excise duty” thus:\n<\/p>\n
\t      But  its\tprimary and fundamental\t meaning  in
\n\t      English  is  still that of a tax\ton  articles
\n\t      produced or manufactured in the taxing country
\n\t      and intended for home consumption.”\n<\/p><\/blockquote>\n
In  dealing  with the contention advanced on behalf  of\t the
\nGovernment of India that an excise duty was a duty which may
\nbe  imposed  on\t home-produced\tgoods  at  any\tstage\tfrom
\nproduction   to\t consumption,  the  learned  Chief   Justice
\nobserved:\n<\/p>\n
\t      “This  is to confuse two things the nature  of
\n\t      excise  duties and the extent of\tthe  federal
\n\t      legislative power to impose them.”\n<\/p><\/blockquote>\n
After  referring to Blackstone and  Stephen’s  Commentaries,
\nthe learned Chief Justice proceeded to state:\n<\/p>\n
\t      “……….  a  brief  examination  of   those
\n\t      duties shows that in practically all cases  it
\n\t      is the producer or manufacturer from whom\t the
\n\t      duty is collected.  But there can be no reason
\n\t      in theory why an excise duty should not be im.
\n\t      posed  even on the retail sale of an  article,
\n\t      if the taxing Act so provides.  Subject always
\n\t      to  the legislative competence of\t the  taxing
\n\t      authority, a duty on home-produced goods\twill
\n\t      obviously\t be imposed at the stage  which\t the
\n\t      authority\t find to be the most convenient\t and
\n\t      the  most lucrative, wherever it may  be:\t but
\n\t      that   is\t a  matter  of\tthe   machinery\t  of
\n\t      collection, and does not affect the  essential
\n\t\t\t    nature of the tax.\tThe ultimate incidence\tof
\n\t      an excise duty, a typical indirect tax, must
\n\t      (1)   [1939] F.C.R. 18, 40, 41, 107.<\/p><\/blockquote>\n
\t      449<\/span><\/p>\n
\t      always  be  on the consumer, who\tpays  as  he
\n\t      consumes\tor expends : and it continues to  be
\n\t      excise duty, that is, a duty on  home-produced
\n\t      or home-manufactured goods, no matter at\twhat
\n\t      stage it is collected.”‘
\nJayakar, J., made the following pertinent remarks
\n\t      ,,And this, in my opinion, is as it should be,
\n\t      for  if the proper import of an “excise  duty”
\n\t      is  that it is a tax on consumption, there  is
\n\t      no  reason why the State should not  have\t the
\n\t      power  to\t levy and collect it  at  any  stage
\n\t      before consumption, namely, from the time\t the
\n\t      commodity\t is produced or manufactured  up  to
\n\t      the time it reaches the consumer.”\n<\/p>\n
The Federal Court again, in The Province of Madras v.  Boddu
\nPaidanna  and in the context of a question that arose  under
\nthe  Madras General Sales Tax Act, 1939, restated the  scope
\nof  an\texcise\tduty.  Therein\tthe  learned  Chief  Justice
\nobserved:\n<\/p>\n
\t      “There  is  in theory nothing to\tprevent\t the
\n\t      Central  Legislature from imposing a  duty  of
\n\t      excise on a commodity as soon as it comes into
\n\t      existence,  no  matter  what  happens  to\t  it
\n\t      afterwards, whether it be sold, consumed, des-
\n\t      troyed,  or  given away.\tA  taxing  authority
\n\t      will  not ordinarily impose such a  duty,\t be-
\n\t      cause  it is much more convenient\t administra-
\n\t      tively to collect the duty (as in the case  of
\n\t      most  of\tthe  Indian Excise  Acts)  when\t the
\n\t      commodity\t leaves\t the factory for  the  first
\n\t      time, and also because the duty is intended to
\n\t      be an indirect duty which the manufacturer  or
\n\t      producer\tis  to\tpass  on  to  the   ultimate
\n\t      consumer,\t which\the  could  not\tdo  if\t the
\n\t      commodity had, for example, been destroyed  in
\n\t      the  factory  itself.   It  is  the  fact\t  of
\n\t      manufacture which
\n\t      (1)   [1942] F.C.R. 90, 101.\n<\/p><\/blockquote>\n
\t      450<\/span><\/p>\n
\t      attracts\tthe  duty,, even though it  may,  be
\n\t\t\t    collected later………..\n<\/p><\/blockquote>\n
The  Judicial Committee, in Governor-General in\t Council  v.
\nProvince of Madras (1), approved the views expressed by\t the
\nFederal\t Court\tin regard to excise duties.  In\t that  case,
\nLord Simonds, speaking for the Board, observed:\n<\/p>\n
\t      “An  exhaustive  discussion of  this  subject,
\n\t      from  which  their  Lordships  have   obtained
\n\t      valuable\tassistance,  is to be found  in\t the
\n\t      judgment\tof  the Federal Court in In  re\t the
\n\t      Central  Provinces Berar Act No. XIV  of\t1935
\n\t      (2).   Consistently with this  decision  their
\n\t      Lordships are of opinion that a duty of excise
\n\t      is  primarily a duty levied on a\tmanufacturer
\n\t      or  producer  in\trespect\t of  the   commodity
\n\t      manufactured  or\tproduced.  It is  a  tax  on
\n\t      goods not on sales or the proceeds of sale  of
\n\t      goods.   Here,  again,  their  Lordships\tfind
\n\t      themselves   in  complete\t accord\t  with\t the
\n\t      reasoning and conclusions of the Federal Court
\n\t      in the Boddu Paidanna case(3).”\n<\/p><\/blockquote>\n
Adverting  to the decision of Boddu Paidanna with  approval,
\nLord Simonds made the following observations in pointing out
\nthe difference between excise tax and sales tax:\n<\/p>\n
\t      “The   two   taxes,  the\tone  levied   on   a
\n\t      manufacturer  in\trespect of  his\t goods,\t the
\n\t      other  on\t a vendor in respect of\t his  sales,
\n\t      may,  as\tis there pointed out, in  one  sense
\n\t      overlap.\t But in law there is no\t overlapping
\n\t      The  taxes are separate and distinct  imposts.
\n\t      If  in fact they overlap, that may be  because
\n\t      the  taxing  authority,  imposing\t a  duty  of
\n\t      excise finds it convenient to impose that duty
\n\t      at  the  moment when  the\t exciseable  article
\n\t      leaves the
\n\t      (1) (1945) L.R. 72 I.A. 91, 103.\t101
\n\t      (3) [ 1942] F.C.R. 90.\t101  [1939]   F.C.R.
\n\t      18,
\n\t\t\t\t   451<\/span>
\n\t      factory or workshop for the first time on\t the
\n\t      occasion\tof  its sale.  But  that  method  of
\n\t      collecting   the\ttax  it;  an   accident\t  of
\n\t      administration;  it is not of the\t essence  of
\n\t      the duty of, excise, which is attracted by the
\n\t      manufacture itself.\n<\/p><\/blockquote>\n
With  great respect, we accept the principles laid  down  by
\nthe said three decisions in the matter of levy of an  excise
\nduty and the machinery for collection thereof.\tExcise\tduty
\nis  primarily  a duty on the production\t or  manufacture  of
\ngoods  produced or manufactured within the country.  It\t in’
\nan  indirect duty which the manufacturer or producer  passes
\non to the ultimate consumer, that is, its ultimate incidence
\nwill  always be on the consumer.  Therefore, subject  always
\nto  the legislative competence of the taxing authority,\t the
\nsaid tax can be levied at a convenient stage so long as\t the
\ncharacter  of  the  impost, that is, it is  a  duty  on\t the
\nmanufacture  or\t production, is not lost.   The,  method  of
\ncollection does not affect the essence of the duty, but only
\nrelates\t to the machinery of collection\t for  administrative
\nconvenience.   Whether in a particular case the. tax  ceases
\nto be in essence an excise duty, and the rational connection
\nbetween the duty and the person on whom it is imposed ceased
\nto  exist,  is to be decided on a fair construction  of\t the
\nprovisions of a particular Act.\n<\/p>\n
In  this case, a perusal of the provisions of the  Ordinance
\nclearly, demonstrates that the duty imposed is in essence an
\nexcise\tduty and there is a rational connection between\t the
\nsaid tax and the person on whom it-is imposed.\tSection 2 of
\nOrdinance 39 of 1944 clearly shows that the tax is an excise
\nduty  on  the manufacture or production, of  coal  or  coke.
\nSection 5(2) thereof confers in express terms a power on the
\nCentral Government to make rules, Inter alia, to provide for
\nthe  manner  in which the duties imposed  by  the  Ordinance
\nshall  be collected and the persons who shall be. liable  to
\npay
\n452<\/span>
\nthe  duty.   Rule  3  of  the  Rules  made  by\tthe  Central
\nGovernment  provides for the recovery of excise duty on\t the
\ncoal produced; under the said rule it would be collected  by
\nthe  Railway  Administration  by means\tof  a  surcharge  on
\nfreight and such duty of excise shall be recovered from\t the
\nconsignor, if the freight charges are being prepaid, at\t the
\ntime  of consignment or from the consignee, if\tthe  freight
\ncharges are collected at the destination of the consignment.
\nThe machinery provided for the collection of the tax is,  in
\nour view, a reasonable one.  Having regard to the nature  of
\nthe tax, that is, the tax being an indirect one to be  borne
\nultimately by the consumer, it cannot be said that there  is
\nno  rational  connection between the tax  and  the  consign.
\nWhen the consignor pays., it cannot be denied that it is the
\nmost convenient stage for the collection of the tax, for  it
\nis  the\t first time the coal leaves the\t possession  of\t the
\nconsignor.   The fact that the consignee is made to pay,  in
\nthe  contingency contemplated by r.3(b) of the rules  cannot
\naffect the essence of the tax, for the consignor, if he\t had
\npaid  the freight, would have passed it on to the  consignee
\nand  instead  the  consignee himself pays  it.\tThe  Central
\nGovernment  was\t legally  competent  to\t evolve\t a  suitable
\nmachinery  for collection without disturbing the essence  of
\nthe tax or ignoring the rational connection between the\t tax
\nand  the  person on whom it is imposed.\t We  hold  that\t the
\nmachinery evolved under the Rules for collection of the duty
\nsatisfies the said conditions and therefore the\t exigibility
\nof  the\t tax at the destination point in the  hands  of\t the
\nconsignee cannot legitimately be questioned.
\nAnother\t facet of the contention of Mr. Sastri is  that\t the
\npurpose\t of  the  Ordinance  had  worked  itself  out\tand,
\ntherefore,  the Central Government could no Ionizer levy  or
\ncollect\t the  tax.   The purpose of  the  Ordinance  was  to
\nconstituted a fund
\n 453<\/span>
\nfor  the  financing  of activities for\tthe  improvement  of
\nproduction,  marketing and distribution of coal.  Section  3
\nof  the\t repealing Ordinance provided  that  the  unexpended
\nbalance, if any, at, the credit of the Coal Production\tFund
\nconstituted  under the aforesaid Ordinance shall be  applied
\nto  such purposes connected with the coal industry,  as\t the
\nCentral\t Government  may  direct.   The\t validity  of\tthis
\nOrdinance  has not been questioned.  It, therefore,  follows
\nthat  the purpose of the Ordinance has not  been  exhausted,
\nfor  under  s.3\t of the\t repealing  Ordinance,\tthe  Central
\nGovernment  is authorized to apply the Coal Production\tFund
\nto  such purposes connected with the coal  industry.   There
\nis, therefore, no force in this argument.
\nThe  last  contention is raised by the\tappellant  in  Civil
\nAppeal No. 184 of 1959.\t The High Court held him also liable
\nfor  the payment of the cess on the ground that he  was\t the
\nperson\t who   entered\tinto  contract\twith   the   Railway
\nAdministration\tfor the carriage of the goods and  that\t the
\ncollection  of freight was in respect of his goods and\tthat
\nhe  was the main contracting party.  The was  given  against
\nhim on the basin that he was under a contractual  obligation
\nto  pay the amount.  Mr. Son, appearing for this  appellant,
\ncontends that the consignments were on F.O.R. basis and that
\nunder  the statutory rules only the consignee is liable\t and
\nthat  the High Court was wrong in giving, a  decree  against
\nhim As we have already pointed out earlier, under r.3 of the
\nCoal Production Fund Rules, 1914, the Railway Administration
\nis  empowered  only  to\t collect the  cess  by\tmeans  of  a
\nsurcharge on freight from, (a) the consignor, if the freight
\ncharges\t are being prepaid at the time of  consignment,\t and\n<\/p>\n
(b) from the consignee, if the freight charges are collected
\nat the destination of the consignment.\tIn the present case,
\nr.3(a) has no application, for the freight charges were\t not
\nprepaid at the time of
\n454<\/span>
\nconsignment,  and therefore the only rule  applicable  where
\nunder  the Railway Administration earn seek to\trecover\t the
\ncess is r.3(b) i.e., the consignee. has to pay it.  The rule
\ndoes  not empower the Railway Administration to recover\t the
\ntax,  in the circumstance of the cast,, from the  consignor.
\nLearned Solicitor General seeks to sustain the decree of the
\nHigh Court on the basis of r.6, which reads :\n<\/p>\n
\t       “Refunds\t and  Recoveries  :-(1)\t Where\t the
\n\t      amount  of excise duty due under\tthese  rules
\n\t      has  not\tbeen collected either wholly  or  in
\n\t      part  or\twhere  the amount  collected  is  in
\n\t      excess   of  the\tamount\tdue,   the   Railway
\n\t      Administration  shall  deal  with\t the   under
\n\t      charges or overcharges, as the case may be, on
\n\t      the  same principles as apply to\tundercharges
\n\t      and overcharges in  regard to Railway  freight
\n\t      charges.”\n<\/p><\/blockquote>\n
It is suggested\t    that, under this rule in the case of an
\nundercharge,  the  Railway Administration  can\tcollect\t the
\ndeficit\t either from the consignor on consignee.   The\trule
\ndoes  not  say\tthat  if the  consignee\t does  not  pay\t the
\nconsignor is,, liable to pay.  The rule does not purport  to
\nenlarge\t the  statutory liability of the  consignor  of\t the
\nconsignee,  as\tthe case may be and, therefore, it  must  be
\nunderstood to provide only for the recovery of\tundercharges
\nfrom  persons statutorily’ liable to pay in accordance\twith
\nthe principles governing the railway freight charges ca.
\nIn  the\t result, Civil Appeal No. 183 of 1959  is  dismissed
\nwith costs of the first respondent, and Civil Appeal No. 184
\nof  1959  is  allowed with costs to be\tpaid  by  the  first
\nrespondent.\n<\/p>\n
C.   A. 183 of 1959 dismissed.\n<\/p>\n
C.   A. 184 of 1.959 allowed.\n<\/p>\n
455<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India R. C. Jall vs Union Of India on 27 February, 1962 Equivalent citations: 1962 AIR 1281, 1962 SCR Supl. (3) 436 Author: K Subbarao Bench: Sinha, Bhuvneshwar P.(Cj), Subbarao, K., Ayyangar, N. Rajagopala, Mudholkar, J.R., Aiyyar, T.L. Venkatarama PETITIONER: R. C. JALL Vs. RESPONDENT: UNION OF INDIA DATE OF JUDGMENT: 27\/02\/1962 […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-203633","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nR. C. 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