{"id":208336,"date":"1975-02-20T00:00:00","date_gmt":"1975-02-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/m-k-paplah-sons-vs-the-excise-commissioner-anr-on-20-february-1975"},"modified":"2015-02-14T07:55:42","modified_gmt":"2015-02-14T02:25:42","slug":"m-k-paplah-sons-vs-the-excise-commissioner-anr-on-20-february-1975","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/m-k-paplah-sons-vs-the-excise-commissioner-anr-on-20-february-1975","title":{"rendered":"M. K. Paplah & Sons vs The Excise Commissioner & Anr on 20 February, 1975"},"content":{"rendered":"
Supreme Court of India<\/div>\n
M. K. Paplah & Sons vs The Excise Commissioner & Anr on 20 February, 1975<\/div>\n
Equivalent citations: 1975 AIR 1007, \t\t 1975 SCR (3) 607<\/div>\n
Author: K K Mathew<\/div>\n
Bench: Mathew, Kuttyil Kurien<\/div>\n
           PETITIONER:\nM.   K. PAPLAH & SONS\n\n\tVs.\n\nRESPONDENT:\nTHE EXCISE COMMISSIONER & ANR.\n\nDATE OF JUDGMENT20\/02\/1975\n\nBENCH:\nMATHEW, KUTTYIL KURIEN\nBENCH:\nMATHEW, KUTTYIL KURIEN\nKRISHNAIYER, V.R.\nGOSWAMI, P.K.\n\nCITATION:\n 1975 AIR 1007\t\t  1975 SCR  (3) 607\n 1975 SCC  (1) 492\n\n\nACT:\nMysre  Excise Act, 1965.  Sections 16, 22 and 23  read\twith\nMysore\tExcise\t(Distillery and Warehouse) Rules,  1967\t and\nwith Mysore Excise (Excise Duties) Rules, 1968-Excise  duty.\nlevy  of Removal of arrack from Government warehouses  after\nthe  purchase  of  the same, if attracts  liability  to\t pay\nexcise duty.\nMysore\tExcise\tAct, 1965, Secs. 22 and\t 71-  Delegation  of\npower  to fix rates of excise duty to Government  by  making\nrules-Legislature,   if\t  has\tabdicated   its\t   essential\nlegislative function-Rule-making power, whether provides the\nnecessary check.\nKarnataka  Sales  Tax Act. 1957. Secs. 2, 5 and\t 19-Levy  of\nsales  tax  upon  sale\tof  arrack  made  by  Government  to\nlicensees-Imposition  of liability to rates tax, if  covered\nby Entry 54, List II, Schedule VII of the Constitution.\n\n\n\nHEADNOTE:\nThe appellant. an excise contractor secured the privilege of\nvending\t arrack in retail in certain taluks in the State  of\nKarnataka  for a period of 18 months beginning\tfrom  28-12-\n1967  and ending on 30-6-69.  He purchased attack  from\t the\nGovernment  at\ta  price  of 17\t paise\tper  litre  and\t the\nGovernment  collected  besides\tthe sale  price\t of  arrack.\nexcise\t duty.\thealth\tcess  and  education   cess.\t'rho\nGovernment  also  collected sales tax on the sale  price  of\nattacks on excise duty. on health cess and on education cess\nfor the period from 28-12-1967 to 31-1-1968 and made similar\ndemands for the month of February. 1968 also.  The appellant\nand  other  excise contractors filed writ petitions  in\t the\nHigh Court at Karnataka challenging the validity of the levy\nand  collection of excise duty, education cess. health\tcess\nand  sales  tax.   The\tHigh  Court  accepted  some  of\t the\ncontentions  of the appellant, granted him reliefs  on\tthat\nbasis  but  rejected the other prayers.\t The  appellant\t has\nfiled these appeals on the basis of certificates granted  by\nthe High Court against the order.\nIt  was contended for the appellant (i) that no excise\tduty\ncan  be levied on a licensee in respect of the\tquantity  of\narrack\tpurchased by him from Government depots,  (ii)\tthat\nthe.  power to fix the rate of excise duty  conferred  under\ns..  22 of the Mysore Excise Act of 1965 on  the  Government\nwas  bad  for the reason that it was an\t abdication  by\t the\nstate legislature of its essential legislative function\t and\n(iii)  that  no sales tax could be levied on the  price\t for\nsale of arrack since S. 19 of the Mysore Sales Tax Act, 1957\nunder  which the tax was levied was beyond  the\t legislative\ncompetence of the state legislature.\nRejecting the contentions and dismissing the appeals,\nHELD : (i) It is clear from the return filed before the High\nCourt\tthat  the  Government  purchases  arrack  from\t the\ndistillers  and\t keeps it in the warehouses  established  or\nlicensed  under s. 16 and that any removal of  arrack  after\nthe  purchase of the same will attract the liability to\t pay\nexcise duty.  Section 23 provides that excise duty shall  be\nlevied\ton  the excisable article issued  from\ta  warehouse\nalso.\tIt  cannot be said that a warehouse  established  or\nlicensed under S. 16(e) is not warehouse within the  meaning\nof that expression in s. 23. [609G-610A]\n(ii) The High Court held that the preamble of the Act  would\nserve  as  a guidance to fix the rates of excise  duty.\t  It\ncannot\tbe said with certainty that the preamble of the\t Act\ngives any guidance for fixing the rate of excise duty.\t But\nthat does not mean that the legislature here has no  control\nover  the  delegate.  In this case, a. 71 of the  Act  which\nprovides  for  the rule-making power imposes  the  necessary\ncheck  upon) the wide power given to the Government  to\t fix\nthe  rate.   The  laying of  rules  before  the\t legislature\nprovides  control  over delegated  legislation.\t  Again\t the\nlegislature may also retain its control over its delegate by\nexercising its power of repeal the power to fix the rate  of\nexcise duty conferred on the Government by s. 22 is valid. [\n6140E-F; 614 E-F]\n608\nCorporation of Calcutta & Anr. v. Liberty Cinema,<\/a> [1965]  2.\nS.C-R  477, Batwrsi Das v. State of Madhya  Pradesh,  [1959]\nS.C.R.\t427,  Municipal Board, Hapur v.\t Raghuvendra  Kripal<\/a>\n[1966]\t1 S.C.R. 1950, Devi Dass Gopal Krishan v.  State  of\nPunjab, [1967] 3 S.C.R- 557, Municipal Corporation of  Delhi\nv. Birla Cotton Spinding and Weaving Mills,<\/a> [1968] 3  S.C.R.\n251,  Sita Ram Bisliambhar Dayal v. State of U.P.<\/a>  [1972]  2\nS.C.R. 141, Minister of Health v. The King, [1931] A.C. 524,\nInstitute of Patent Agents v.  Joseph Lockwood, [1894]\tA.C.\n347  and  Cobb\t& Co. v. Kropp, [1967] 1  A.C.\t141  (P.C.),\nreferred to.\n(iii)\t  Section  19 of the Karnataka Sales Tax Act.  1957.\nmakes  it clear that notwithstanding anything  contained  in\nthis  Act  of 1957, the Government shall in respect  of\t any\nsale  of goods effected by it be entitled to collect by\t way\nof  tax any amount which a registered dealer effecting\tsuch\nsale would have been entitled to collect by way of tax under\nthe  Act.   The section is clear that the  Government  could\ncollect\t the  tax  on the sale made by it as if\t it  were  a\nregistered dealer, notwithstanding anything contained in  s.\n2 or & 5. The section itself creates a right in the State to\nrecover and an obligation on the purchaser from the State to\npay  the amount.  Any imposition of liability or  obligation\nin  respect of sale or purchase of goods will be covered  by\nEntry  54  of  List  II\t of  the  Seventh  Schedule  of\t the\nConstitution.  Section 19 is therefore, not ultra vires\t the\npowers of the legislature. [615A-C]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeals Nos. 1883 to
\n1886 of 1969.\n<\/p>\n
From  the judgment & Order dated the 12th July, 1968 of\t the
\nMysore\tHigh  Court in W.P. Nos. 949, 955, 956\tand  958  of
\n1968.\n<\/p>\n
K.   Srinivasan and Vineet Kumar, for the appellants.
\nH.   B. Datar (In C.A. No. 1883\/69) and M. Veerappa, for the
\nrespondents.\n<\/p>\n
The Judgment of the Court was delivered by
\nMATHEW,\t J.   The appellant was an  excise  contractor.\t  He
\nsecured the privilege of vending arrack in retail in certain
\ntaluks\tin the State of Karnataka for a period of 18  months
\nbeginning  from\t 28-12-1967  and ending\t on  30-6-1969.\t  He
\npurchased arrack from the Government at a price of 17  paise
\nper  litre  and the Government collected  besides  the\tsale
\nprice  of  arrack, excise duty, health\tcess  and  education
\ncess.\tThe Government also collected sales tax on the\tsale
\nprice  of  arrack,  on excise duty, on health  cess  and  on
\neducation  cess for the period from 28-12-1967 to  31-1-1968
\nand  made  similar demands for the month of  February,\t1968
\nalso.  The appellant and other excise contractors filed writ
\npetitions  in  the High Court of Karnataka  challenging\t the
\nvalidity  of  the  levy\t and  collection  of  excise   duty,
\neducation  cess, health cess and sales tax.  The High  Court
\naccepted  some of the contentions of the appellant,  granted
\nhim  reliefs on that basis but rejected the  other  prayers.
\nThe  appellant\thas  filed these appeals  on  the  basis  of
\ncertificates granted by the High Court against the order.
\nThe  contentions raised by counsel for the appellant  before
\nthis  Court  were : that no excise duty can be levied  on  a
\nlicensee  in respect of the quantity of arrack purchased  by
\nhim  from Government depots, that the power to fix the\trate
\nof  excise duty conferred under s. 22 of the  Mysore  Excise
\nAct of 1965 on the Government was bad for the
\n609<\/span>
\nreason that it was an abdication by the state legislature of
\nits  essential\tlegislative function and that no  sales\t tax
\ncould be levied on the price for sale of arrack since S.  19
\nof  the Mysore Sales Tax Act, 1957 under which the  tax\t was
\nlevied\twas beyond the legislative competence of  the  state
\nlegislature.\n<\/p>\n
Section\t 22  of\t the Mysore Excise  Act,  1965\t(hereinafter
\nreferred  to as ‘the Act’) provides for levy of excise\tduty
\nat  such  rate or rates as the government may  prescribe  on
\nexcisable  articles  manufactured or produced in  the  State
\nunder any licence or permit granted under the Act.   Section
\n23  of\tthe  Act deals with the\t method\t of  levying  excise
\nduties.\n<\/p>\n
The  first contention of the appelant was that sections\t 16,
\n22  and\t 23 of the Act read with Mysore\t Excise\t (Distillery
\nand  Warehouse) Rules, 1967 and with Mysore  Excise  (Excise
\nDuties)\t Rules, 1968, enables levy of excise duty only\twhen
\narrack\tis  issued from a distillery or warehouse  or  other
\nplace  of storage established or licensed under the Act\t and
\nsince  the government depot from which he  purchased  arrack
\ndoes  not come under the above category, no excise duty\t can
\nbe levied.\n<\/p>\n
The  High Court found that though sections 22 and 23 of\t the
\nAct  and Rule 2 of the Mysore Excise (Excise Duties)  Rules,
\n1968, do not expressly state that excise duty levied at\t the
\nstage of issue of liquor from the government depot should be
\ncollected  from the issuer or from the person to whom it  is
\nissued,\t it is obvious that excise duty cannot be  collected
\nfrom  the  State  Government which issues  liquor  from\t its
\ndepots\tand  that  the\tonly person  from  whom\t it  can  be
\ncollected  is  the licensee, to whom  the  State  Government
\nissues liquor from its depots.\n<\/p>\n
The  material portion of s. 16 of the Act provides that\t the
\nExcise\tCommissioner may, with the previous sanction of\t the
\nState  Government, establish or license a warehouse  wherein
\nintoxicants  may  be deposited and kept without\t payment  of
\nduty  and that without the sanction of the State  Government
\nno intoxicant shall be removed from any distillery, brewery,
\nwarehouse or other place of storage established or  licensed
\nunder the Act unless the duty, if any imposed under the\t Act
\nhas  been paid or a bond has been executed for\tthe  payment
\nthereof.\n<\/p>\n
It is clear from the return filed before the High Court that
\nthe Government purchase arrack from the distillers and keeps
\nit in the warehouse established or licensed under s. 16\t and
\nthat  any removal of arrack after the purchase of  the\tsame
\nwill  attract  the  liability to pay excise  duty  shall  be
\nlevied\ton the excisable article issued from  a\t ware-Excise
\nCommissioner  who  is competent to establish  or  license  a
\nwarehouse  wherein  intoxicants may be\tdeposited  and\tkept
\nunder  clause  (e)  of\ts. 16 and  therefore  it  is  not  a
\nwarehouse established or licensed by the State Government.
\nWe  see\t no force in this contention.  Section\t23  provides
\nthat  excise duty shall be levied on the  excisable  article
\nissued from a ware-\n<\/p>\n
610<\/span><\/p>\n
house  also.   We see no reason to think  that\ta  warehouse
\nestablished  or\t licensed under s. 16(e)  is  not  warehouse
\nwithin the meaning of that expression in S. 23.
\nThe second contention raised by the appellant was that S. 22
\nof  the Act provides for delegation of the power to fix\t the
\nrates  of excise duty to the Government by making rules\t and
\nsince  no guidance has been furnished to the  government  by
\nthe  Act  for  fixing  the  rate  there\t was  abdication  of
\nessential legislative function by the legislature and there-
\nfore the section is bad.\n<\/p>\n
The  High Court after referring to the preamble of  the\t Act
\nsaid that it was the policy of the Act both to raise revenue
\nand to discourage consumption of liquor by making the  price
\nof liquor sufficiently high, and that- that ‘would serve  as
\na  guidance to fix the rates of excise duty, that the  rates
\nfixed  will be such as would keep the balance between  these
\nsomewhat  conflicting objects so as to serve the purpose  of
\neach.\tThe  Court further said that if the rate  of  excise
\nduty  is  too  low, not only will the  revenue\tfrom  excise
\nduties\tsuffer\tbut  also  there will  be  increase  in\t the
\nconsumption  of\t liquor; but if the rate of excise  duty  on
\nliquor\tis too high, it is Rely to encourage the  production
\nand  consumption  of  illicit liquor  and  consequently\t the
\ncontrol and regulation of liquor as well as the revenue from
\nexcise duty may be adversely.  The Court therefore held that
\nthe  need  to arrive at such rates of excise  duty  as\twill
\nserve  the  twin objects of the policy\tunderlying  the\t Act
\noperates  as  guidance\tfor determination of  the  rates  of
\nexcise duty.\n<\/p>\n
We are not certain whether the preamble of the Act gives any
\nguidance for fixing the rate of excise duty.  But that\tdoes
\nnot  mean that the legislature here has no control over\t the
\ndelegate.    The   legislative\t control   over\t   delegated
\nlegislation may take many forms.\n<\/p>\n
In Corporation of Calcutta & Anr. v. Liberty Cinema<\/a>(1),\t the
\nvalidity  of S. 548(2) of the Calcutta Municipal Act,  1951,
\nwhich empowered the Corporation to levy fees “at such  rates
\nas  may from time to time be fixed by the  Corporation”\t was
\nchallenged  on\tthe  ground of excessive  delegation  as  it
\nprovided  no guidance for the fixation of the  amount.\t The
\nmajority  upheld  the provision relying on the\tdecision  in
\nBanarsi Das v. State of Madhya Pradesh<\/a> (2 ) holding that the
\nfixation of rates of tax not being an essential\t legislative
\nfunction,  could be validly delegated to  a  non-legislative
\nbody. but observed that when it was left to such a body, the
\nlegislature  must provide guidance for such  fixation.\t The
\nCourt  found  the  guidance in the  monetary  needs  of\t the
\nCorporation  for carrying out the functions entrusted to  it
\nunder the Act.\n<\/p>\n
In  Municipal  Board,  Hapur v.\t Raghuvendra  Kripal(2)\t the
\nvalidity 1916, was involved.  Ile Act had to fix the rate of
\ntax  and  after\t having\t of  the  U.P.\tMunicipalities\tAct,
\nempowered  the municipalities enumerated the kinds of  taxes
\nto be levied, prescribed an elaborate
\n(1) [1965] 2,S.C.R.477.\t   (2) [1959] S.C.R. 427.
\n(3)  [1966] 1 S.C.R. 950
\n611<\/span>
\nprocedure for such a levy and also provided for the sanction
\nof  the\t Government., Section 135 (3) of the  Act  raised  a
\nconclusive  prerumption\t that the procedure  prescribed\t had
\nbeen gone through on a certain notification being issued  by
\nthe  Government\t in  that regard.  This\t provision,  it\t was
\ncontended,  was ultra vires because there was an  abdication
\nof  essential legislative functions by the legislature\twith
\nrespect\t to  the  imposition of tax inasmuch  as  the  State
\nGovernment  was given the power to condone the\tbreaches  of
\nthe  Act and to set at naught the Act itself.  This, it\t was
\ncontended,  was an indirect exempting or  dispensing  power.
\nHidayatullah, J. speaking for the majority, said that regard
\nbeing  had  to the democratic set up of\t the  municipalities
\nwhich  need  the  proceeds  of these  taxes  for  their\t own
\nadministration,\t  it   is   proper   to\t  leave\t  to   these
\nmunicipalities the power to impose and collert these, taxes.
\nHe further said that apart from the fact that the Board\t was
\nrepresentative body of the local population on whom the\t tax
\nwas levied, there were other safeguards by way of checks and
\ncontrols  by Government which could veto the action  of\t the
\nBoard  in  case\t it did not carry out  the  mandate  of\t the
\nlegislature.\n<\/p>\n
In  Devi  Dass\tGopal Krishnan v.  State  of  Punjab(1)\t the
\nquestion  was whether s. 5 of the East Punjab General  Sales
\nTax  Act, 1948, which empowered the State Government to\t fix
\nsales,\ttax at such raters as it thought fit was  bad.\t The
\nCourt  struck  down  the  section on  the  ground  that\t the
\nlegislature  did not lay down any policy or guidance to\t the
\nexecutive  in the matter of fixation of rates.\t Subba\tRao,
\nC.J., speaking for the Court, pointed out that the needs  of
\nthe  State  and the purposes of the Act\t would\tnot  provide
\nsufficient  guidance for the fixation of rates of  tax.\t  He
\npointed out the danger inherent in theprocess of  delegation
\n:\n<\/p>\n
\t      “An overburdened Legislature or one controlled
\n\t      by  a powerful executive may  unduly  overstep
\n\t      the limits of delegation.\t It may not lay down
\n\t      any  policy at all; it may declare its  policy
\n\t      in  vague\t and general terms; it may  not\t set
\n\t      down  any\t standard for the  guidance  of\t the
\n\t      executive; it may confer an arbitrary power on
\n\t      the  executive to change or modify the  policy
\n\t      laid  down by it without reserving for  itself
\n\t      any  control  over  subordinate\tlegislation.
\n\t      This  self-effacement of legislative power  in
\n\t      favour of awther agency either in whole or  in
\n\t      part  is\tbeyond\tthe  permissible  limits  of
\n\t      delegation.”\n<\/p><\/blockquote>\n
In  Municipal Corporation of Delhi v. Birla  Cotton  Spining
\nand<\/a>,  Weaving  Mills(1),  the main question  was  about\t the
\nconstitutionality   of\tdelegation  of\ttaxing\t powers\t  to
\nmunicipal corporations.\t The Delhi Municipal Corporation Act
\n(66  of 1957) by s. 113(2) had empowered the Corporation  to
\nlevy certain optional taxes.  Under s. 150, power was  given
\nto  the Corporation to define the maximum rate of tax to  be
\nlevied,\t the  classes  of persons  and\tthe  description  of
\narticler,   and\t property  to  be  taxed,  the\tsystems\t  of
\nassessment to be adopted
\n(1) [1967]3, S.C.R. 557.\n<\/p>\n
(2) [1968] 3, S.C.R. 251 .\n<\/p>\n
612<\/span><\/p>\n
and the exemptions, if any, to be granted.  The majority  of
\nthe  court held the delegation to be valid.   Wanchoo,\tC.J.
\nobserved  that\tthere were sufficient guidance,\t checks\t and
\nsafeguards in the Act which prevented excessive\t delegation.
\nThe  learned  Chief  Justice  observed\tthat  statements  in
\ncertain cases to the effect that the power to fix ,rates  of
\ntaxes  is  not an essential legislative\t function  were\t too
\nbroad  and that “the nature of the body to which  delegation
\nis  made is also a factor to be taken into consideration  in
\ndetermining  whether  there is sufficient  guidance  in\t the
\nmatter\tof  delegation”.   According to\t the  learned  Chief
\nJustice,  the  fact that delegation was made to\t an  clected
\nbody  responsible  to the people including  those  who\tpaid
\ntaxes  provided\t a great check on  the\telected\t councillors
\nimposing unreason.able rates of tax.  He then said :\n<\/p>\n
\t      “The guidance may take the, form of  providing
\n\t      maximum rates of tax up to which a local\tbody
\n\t      may  be  given  the  discretion  to  make\t its
\n\t      choice,  or it may take the form of  providing
\n\t      for consultation with the people of the  local
\n\t      area  and\t then fixing the  rates\t after\tsuch
\n\t      consultation.   It may also take the  form  of
\n\t      subjecting  the rate to be fixed by the  local
\n\t      body to the approval of Government which\tacts
\n\t      as a watchdog on the actions of the local body
\n\t      in  this matter on behalf of the\tlegislature.
\n\t      There may be other ways in which guidance\t may
\n\t      be provided.”\n<\/p><\/blockquote>\n
In Sita Ram Bisharnbhar Dayal v. State of U.P.<\/a>(1) s.  3-D(1)
\nof  the U.P. Sales Tax Act, 1948, bad provided\tfor  levying
\ntaxes  at  such\t rates as may be  prescribed  by  the  State
\nGovernment  not\t exceeding the maximum\tprescribed  therein.
\nHegde, J., in speaking for the Court, observed :\n<\/p>\n
\t      “However\tmuch  one  might  deplore  the\t‘New
\n\t      Despotism’   of  the  executive,\t the   ‘very
\n\t      complexity  of  the  modern  society  and\t the
\n\t      demand it makes on its Government have set  in
\n\t      motion  forces which have made  it  absolutely
\n\t      necessary for the Legislatures to entrust more
\n\t      and  more powers to The executive.  Text\tbook
\n\t      doctrines\t evolved  in the 19th  century\thave
\n\t      become out of date.”\n<\/p><\/blockquote>\n
In this case, we think that s. 71 of the Act which  provides
\nfor  the rule-making power imposes the necessary check\tupon
\nthe  wide  power given to the government to  fix  the  rate.
\nSub-section (4) of that section provides :
\n“Every rule made under this section shall be laid as soon as
\nmay  be\t after it is made, before each House  of  the  State
\nLegislature  while  it is in session for a total  period  of
\nthirty days which may be comprised in one session or in\t two
\nor more successive sessions and if before the expiry of\t the
\nsession\t in which it is so laid or the\tsession\t immediately
\nfollowing,  both Houses agree in making any modification  in
\nthe  rule (it ?) shall thereafter have effect only  in\tsuch
\nmodified form or      be of no effect, as the case may
\n(1)  [1972] 2, S.C.R. 141.\n<\/p>\n
613<\/span><\/p>\n
\t      be;  so however that any such modification  or
\n\t      annulment\t shall be without prejudice  to\t the
\n\t      validity\tof  anything previously\t done  under
\n\t      that rule.”\n<\/p>\n
The  appellant\tsubmitted that s. 71(4) does not  provide  a
\nguarantee    for   legislative\t control   over\t   delegated
\nlegislation.   The  argument was that the rules\t would\tcome
\ninto force as soon as they are framed and that the power  of
\nthe  legislature to annul the rules subsequently  cannot  be
\nregarded as sufficient control over delegated legislation.
\nThat laying of rules before the legislature is control\tover
\ndelegated  legislation\tis  implied in the  speech  of\tLord
\nThankerton  in the House of Lords in Minister of  Health  v.
\nThe King(1) where he said :\n<\/p>\n
\t      “In  this case, as in similar cases that\thave
\n\t      come   before  the  courts,   Parliament\t has
\n\t      delegated\t  its  legislative  function  to   a
\n\t      Minister\tof  the\t Crown,\t but  in  this\tcase
\n\t      Parliament  has retained no  specific  control
\n\t      over  the\t exercise  of the  function  by\t the
\n\t      Minister,\t such as a condition that the  order
\n\t      should be ‘aid before Parliament and might  be
\n\t      annulled\tby  a  resolution  of  either  House
\n\t      within a limited period.”\n<\/p><\/blockquote>\n
In  Institute of Patent Agents v. Joseph Lockwood  (2)\tLord
\nWatson said :\n<\/p>\n
\t      “The Legislature retained so far a check\tthat
\n\t      it  required that the regulations\t which\tthey
\n\t      framed  should be laid upon the table of\tboth
\n\t      Houses; and of course these regulations  could
\n\t      have   been   annulled  by   an\tunfavourable
\n\t      resolution  upon\ta  motion  made\t in   either
\n\t      House.”\n<\/p><\/blockquote>\n
In   Bernard  Schewartz’s  “An\tIntroduction   to   American
\nAdministrative Law” it is stated :\n<\/p>\n
\t      “In   Britain,  Parliamentary   control\tover
\n\t      delegated legislation is exercised through the
\n\t      various\tforms  of  ‘laying’  prescribed\t  in
\n\t      enabling Acts.  Through them, the\t legislature
\n\t      is  enabled at least in theory to\t exercise  a
\n\t      continuing  supervision  over   administrative
\n\t      rules and regulations.”\n<\/p><\/blockquote>\n
As  Dean  Landis  pointed out, the  English  techniques\t for
\nlaying\tthe  rules before the Houses have  several  virtues.
\n“For  one thing, they bring the legislative into  close\t and
\nconstant contact with the administrative.”(3).
\nThe  legislature  may  also  retain  its  control  over\t its
\ndelegate  by exercising its power of repeal.  This  was\t the
\nbasis  on which the Privy Council in Cobb & Co. v.  Kropp(4)
\nupheld the validity of delegation of the power to fix  rates
\nto the Commissioner of Transport in that case.\tThe question
\nthere\twas   whether  the   Queensland\t  Legislature,\t had
\nlegislative authority under the impugned Acts to invest\t the
\nCommissioner for Transport with power to impose and levy
\n(1) [1931] A.C. 524.\t    (2) [1894] A.C. 347.\n<\/p>\n
(3)  see Landis, “The Administrative Process”, 77 (1938).
\n(4)  [1967] 1, A.C. 141 (P.  C.).\n<\/p>\n
614<\/span><\/p>\n
licence\t and permit fees.  It was not disputed before  their
\nLordships   that  .fees\t imposed  are  to  be  regarded\t  as
\nconstituting  taxation.\t Accordingly, it was contended\tthat
\nthe legislature had abdicated its exclusive power of levying
\ntaxation.    The   Privy  Council   held   that\t  Queensland
\nLegislature was entitled to use any agent or machinery\tthat
\nit  considered appropriate for carrying out the\t object\t and
\nthe  purposes  of the Acts and to use the  Commissioner\t for
\nTransport  as its instrument to fix and recover the  licence
\nand  permit  fees, provided it preserved  its  own  capacity
\nintact\tand  retained perfect control over him; that  as  it
\ncould  at any time repeal the legislation and withdraw\tsuch
\nauthority and discretion as it had vested in him, it had not
\nassigned,  transferred or abrogated its sovereign  power  to
\nlevy   taxes,  nor  had\t it  renounced\tor   abdicated\t its
\nresponsibilities  in favour of a newly\tcreated\t legislative
\nauthority  and that, accordingly, the two Acts\twere  valid.
\nLord Morris of Borth-y-Gest said :\n<\/p>\n
\t      “What  they (the legislature) created by\tthe,
\n\t      passing  of  the\tTransport  Acts\t could\t not
\n\t      reasonably  be described as a new\t legislative
\n\t      power or separate legislative body armed\twith
\n\t      general  legislative  authority  (see  R.\t  v.
\n\t      Burah,  (1878),  3 A. C. 889).   Nor  did\t the
\n\t      queensland Legislature ‘create and endow\twith
\n\t      its  own capacity a new legislative power\t not
\n\t      created  by the Act to which it owes  its\t own
\n\t      existence\t (see  in  re  the  Initiative\t and
\n\t      Referendum Act (1919) A.C. 945 at 945).”\n<\/p><\/blockquote>\n
The point to be emphasized-and this is rather crucial-is the
\nstatement of their Lordships that the legislature  preserved
\nits  capacity intact and retained perfect control  over\t the
\nCommissioner  for  T port inasmuch as it could at  any\ttime
\nrepeal\tthe  legislation  and with draw\t the  authority\t and
\ndiscretion  it\thad  vested  in\t him,  and,  therefore\t the
\nlegislature did not abdicate its functions.
\nWe,  therefore,\t think\tthat the power to fix  the  rate  of
\nexcise duty conferred on the government by s. 22 of the\t Act
\nis  valid.  The dilution of parliamentary  watch-dogging  of
\ndelegated   legislation\t may  be  deplored  but,,   in\t the
\ncompulsions  and  complexities\tof  modern  life  cannot  be
\nhelped.\t  The  last contention raised by the  appellant\t was
\nthat  s. 19 of the Karnataka Sales Tax Act, 1957 is  invalid
\nas  it\tpurports to levy sales tax upon the sale  of  arrack
\nmade   by  the\tGovernment  to\tlicensees.   The   appellant
\nsubmitted that the definition of ‘dealer in s. 2 of the\t Act
\nexcludes the Government of Mysore and that by virtue of\t the
\nprovisions in s. 5(3) of that Act, no tax could be levied on
\nthe  sale of arrack by government to the appellant.  We\t see
\nno merit in this contention.  Section 19 of the Act reads:\n<\/p>\n
\t      “19.  State Government entitled to collect tax
\n\t      as     registered\t    dealers.-Notwithstanding
\n\t      anything contained in this Act the  Government
\n\t      of  Mysore  shall, in respect of any  sale  of
\n\t      goods effected by them, be entitled to collect
\n\t      by  way of tax any amount which  a  registered
\n\t      dealer  effecting\t such sale would  have\tbeen
\n\t      entitled\tto collect by way of tax under\tthis
\n\t      Act.”\n<\/p><\/blockquote>\n
615<\/span><\/p>\n
This  section makes it clear that  notwithstanding  anything
\ncontained  in that Act, the Government shall in\t respect  of
\nany  sale of goods effected by it be entitled to collect  by
\nway of = any amount which a registered dealer effecting such
\nsale would have been entitled to collect by way of tax under
\nthe  Act.   The section is clear that the  Government  could
\ncollect\t the  tax on the sale made, by it as if\t it  were  a
\nregistered dealer, not withstanding anything contained in s.
\n2  or s. 5. The section itself creates a right in the  State
\nto recover and an obligation on the purchaser from the State
\nto   pay  the  amount.\t Any  imposition  of  liability\t  or
\nobligation  in respect of sale or purchase of goods will  be
\ncovered\t by Entry 54 of List If of the Seventh\tSchedule  of
\nthe Constitution.\n<\/p>\n
We do not think that s. 19 is ultra vires the powers of the,
\nlegislature.\n<\/p>\n
We  therefore  dismiss the appeals but make no order  as  to
\ncosts.\n<\/p>\n
V.M.K.\t\t     Appeals dismissed.\n616<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India M. K. Paplah & Sons vs The Excise Commissioner & Anr on 20 February, 1975 Equivalent citations: 1975 AIR 1007, 1975 SCR (3) 607 Author: K K Mathew Bench: Mathew, Kuttyil Kurien PETITIONER: M. K. PAPLAH & SONS Vs. RESPONDENT: THE EXCISE COMMISSIONER & ANR. DATE OF JUDGMENT20\/02\/1975 BENCH: MATHEW, KUTTYIL […]<\/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-208336","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nM. K. 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