{"id":228983,"date":"2004-08-20T00:00:00","date_gmt":"2004-08-19T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/punjab-dairy-development-board-vs-cepham-milk-specialities-ltd-on-20-august-2004"},"modified":"2016-04-01T03:00:51","modified_gmt":"2016-03-31T21:30:51","slug":"punjab-dairy-development-board-vs-cepham-milk-specialities-ltd-on-20-august-2004","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/punjab-dairy-development-board-vs-cepham-milk-specialities-ltd-on-20-august-2004","title":{"rendered":"Punjab Dairy Development Board & … vs Cepham Milk Specialities Ltd. & … on 20 August, 2004"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Punjab Dairy Development Board & … vs Cepham Milk Specialities Ltd. & … on 20 August, 2004<\/div>\n
Author: S N Variava<\/div>\n
Bench: S. N. Variava, Arijit Pasayat<\/div>\n
           CASE NO.:\nAppeal (civil)  1741-1753 of 2002\n\nPETITIONER:\nPunjab Dairy Development Board & Anr., etc.\n\nRESPONDENT:\nCepham Milk Specialities Ltd. & Ors., etc.\n\nDATE OF JUDGMENT: 20\/08\/2004\n\nBENCH:\nS. N. Variava & Arijit Pasayat\n\nJUDGMENT:\n<\/pre>\n
J U D G M E N T<\/p>\n
(WITH C. A. NOS.1728-1740\/2002
\nAND C. A. NO     OF 2004
\n[Arising out of S.L.P. (C) No.18237 of 2003])<\/p>\n
S. N. VARIAVA, J.\n<\/p>\n
\tLeave granted.\n<\/p>\n
\tThese Appeals are against the Judgment of the Punjab and
\nHaryana High Court dated 21st November, 2001.\n<\/p>\n
\tBriefly stated the facts are as follows.\n<\/p>\n
\tPrior to July 2000, Companies like the 1st Respondent-Company
\nwhich are engaged in the production of milk products, like Ghee,
\nSkimmed milk, Powder, Butter and Cream, were subjected to a
\npurchase tax at 4% and a surcharge at 10% of the purchase tax.  On
\n19th July 2000, the Governor of Punjab promulgated the Punjab Dairy
\nDevelopment Board Ordinance, 2000.  The Ordinance provided for
\ncreation of Punjab Dairy Development Board inter alia for co-ordination
\nbetween the organizations engaged in the dairy sector, to uplift
\nprofessional standard of the dairy industry in the State and to develop
\nmodern dairy farming technology system.  Under the Ordinance, cess
\nwas levied on milk plants by abolishing purchase tax on milk.\n<\/p>\n
\tOn 17th August, 2000, the Director, Dairy Development, Punjab,
\nissued a notice to certain milk companies directing them to pay cess at
\n10 paise per litre of their licenced capacity for the period 19th July,
\n2000 to 30th September, 2000.  Many dairy companies filed Writ
\nPetitions in the High Court.  While these Writ Petitions were pending,
\nAct No. 20 of 2000 was promulgated.  The Act was published in the
\nOfficial Gazette on 20th October, 2000.  All the Petitions were allowed
\nto be amended challenging the provisions of the Act.
\nThe challenge to the Act was on the ground: (a) that the
\nsubstance of the levy was a tax on the licenced capacity of an Industry
\nand that the State Legislature was not competent to levy tax under
\nany Entry in List II of Schedule VII to the Constitution of India; and\n<\/p>\n
(b) that the impost on the licenced capacity was arbitrary and
\ndiscriminatory.\n<\/p>\n
\tThe High Court has held that this levy was in effect a tax.  The
\nHigh Court so held following the principles laid down by this Court in
\nthe case of M\/s Kishan Lal Lakhmi Chand & Ors. Vs. State of
\nHaryana & Ors. [(1993) Supp. (4) SCC 461].  The High Court held
\nthat there was no special service being provided to the milk plants in
\nthe milk-shed areas and that there was no evidence to show that the
\nlevy would be used for the benefit of the milk plants.  The High Court
\nnotes that the principles laid down in M\/s Kishan Lal Lakhmi Chand’
\ncase (supra) have been diluted in subsequent decisions but still prefers
\nto follow the ratio laid down in that case.  The High Court also holds
\nthe levy to be illegal and invalid as the State Legislature has impinged
\nupon a field that was already occupied by a Central Legislation,
\nnamely, the Industries (Development and Regulation) Act, 1951.  The
\nHigh Court holds that both the Legislations are aimed at improvement
\nin production and marketing by employing suitable equipments and
\nmaterials.  The High Court holds that both the Legislations are aimed
\nat training personnel for running the facilities.  The High Court holds
\nthat the functions of the Board are not, in pith and substance, any way
\ndifferent from those assigned to the Development Councils.  The High
\nCourt also holds that as far as the milk plants are concerned, there is
\nno direct benefit to them and that, therefore, the levy on only those
\nmilk plants having a capacity of more than 10,000 litres is arbitrary
\nand discriminatory.  The High Court thus quashed the Act.\n<\/p>\n
\tIt must be mentioned that by the Punjab Dairy Development
\nBoard (Amendment) Act, 2004, with effect from 11th September, 2002
\nSection 12 of the Act has been deleted.  We are told that after the
\ndeletion of the cess, purchase tax has again been levied on milk.\n<\/p>\n
\tThe relevant provisions of the Act need to be set out at this
\nstage.  They read as follows:-\n<\/p>\n
“To provide for the creation of Punjab Dairy
\nDevelopment Board for coordination between the
\norganizations engaged in dairy sector to uplift
\nprofessional standard of the dairy industry in the
\nState and to develop modern diary farming
\ntechnology system and to levy cess on the milk
\nplants by abolishing purchase tax on milk.\n<\/p>\n
1.\t(1) This Act may be called the Punjab
\nDairy Development Board Act, 2000.\n<\/p>\n
        (2) It shall come into force at once.\n<\/p>\n
2.\tIn this Act, unless the context otherwise
\nrequires,–\n<\/p>\n
(a)<\/p>\n
(b)<\/p>\n
(c)<\/p>\n
(d) `milk plant’ means a milk handling,
\nprocessing or manufacturing unit registered under
\nthe Milk and Milk Products Order, 1992 of the
\nGovernment of India; and <\/p>\n
(e<\/p>\n
9.\tThe Board shall be a nodal agency for
\ncoordinating, planning and organizing
\nprogrammes of dairy development in consultation
\nwith the State Government so as to promote dairy
\nsector on modern, scientific and commercially
\nviable lines.\n<\/p>\n
10.\t Subject to the provisions of this Act and
\nthe rules made thereunder, the Board shall
\nexercise the following powers and perform the
\nfollowing functions, namely :–\n<\/p>\n
(i)\tto effect coordination between all
\norganizations engaged in dairy sector viz.,
\nthe Directorate of Dairy Development, the
\nDirectorate of Animal Husbandry, the
\nPunjab Milkfed and other agencies, such
\nas milk plants in the joint sector as well as
\nin the private sector;\n<\/p>\n
(ii)\tto uplift professional standards of the
\ndairy industry in all its aspects through the
\nDirectorate of Dairy Development, Punjab,
\nthe Directorate of Animal Husbandry, the
\nPunjab Milkfed and milk plants in the joint
\nsector as well as in the private sector;\n<\/p>\n
(iii)\tto coordinate formulation of policies in
\nregard to production of milk and milk
\nproducts;\n<\/p>\n
(iv)\tto develop modern dairy farming
\ntechnologies and systems for meeting the
\nlocal demand of high quality milk and for
\npromotion of the dairy industry for socio-
\neconomic uplift of milk producers;\n<\/p>\n
(v)\tto establish centres in rural areas for
\ndemonstration in the manner in which
\nprogrammes can be taken up;\n<\/p>\n
(vi)\tto plan and formulate policies for
\nquick genetic upgradation and
\ndevelopment of milk animals, where
\nnecessary, by arranging for transfer of
\ntechnology from abroad with Government
\nof India’s prior approval;\n<\/p>\n
(vii)\tto arrange and import new varieties
\nof fodder seeds to increase the yield and
\nnutrition of fodder crops and also
\nequipment or machinery for their
\nharvesting and conservation;\n<\/p>\n
(viii)\tto take requisite measures to
\nincrease consumption of drinking milk and
\nmilk products through proper
\nadvertisement and other related channels
\nof media;\n<\/p>\n
(ix)\tto provide assistance of any kind to
\nenhance the scope of export of dairy
\nproducts;\n<\/p>\n
(x)\tto plan and execute programmes of
\nhigh level education, research and training
\nin dairy technology and husbandry;\n<\/p>\n
(xi)\tto secure funds from the State
\nGovernment and the other agencies; and<\/p>\n
(xii)\tto exercise the necessary authority
\nin respect of all matters which are
\nincidental and ancillary to the aforesaid for
\nattaining the objectives of the Board.\n<\/p>\n
11.\t(1) The Board may, with the prior
\napproval of the State Government, create such
\nposts and appoint such officers and other
\nemployees thereon, as it may consider necessary
\nfor the efficient discharge of its functions.\n<\/p>\n
        (2) The conditions of service of the officers
\nand other employees referred to in sub-section
\n(1), and their functions and duties shall be such,
\nas may be determined by the regulations made by
\nthe Board under this Act.\n<\/p>\n
12.\t(1) Subject to the rules made under this
\nAct, there shall be levied for the purpose of this
\nAct, a cess at the rate of ten paise per litre of the
\nlicenced capacity of a milk plant by abolishing the
\npurchase tax being charged on milk.\n<\/p>\n
           (2) The cess levied under sub-section (1),
\nshall be paid by the owner of the milk plant in
\nsuch manner and to such person or officer as may
\nbe prescribed.\n<\/p>\n
           (3) The arrears of the cess levied under
\nsub-section (I), shall be recoverable as arrears of
\nland revenue.\n<\/p>\n
13.\t(1) There shall be constituted a Fund to be
\ncalled the `Punjab Dairy Development Fund’,
\nwhich shall vest in the Board.\n<\/p>\n
          (2) The Fund constituted under sub-section
\n(I), shall be administered by the Member-\n<\/p>\n
Secretary of the Board.\n<\/p>\n
         (3) The amount of cess paid to the person
\nor officer prescribed under sub-section (2) of
\nSection 12, shall be credited to the Fund within
\nsuch period as may be prescribed and grants from
\nthis State Government and local authorities shall
\nalso be credited to this Fund.\n<\/p>\n
         (4) The accounts of the Fund shall be
\naudited annually by the Examiner, Local Fund
\nAccounts,Punjab.”\n<\/p>\n
\tBefore us lengthy arguments have been made on whether the
\nlevy was a tax or a fee.  Large numbers of authorities were cited by
\nboth sides in support of their respective contentions.  On behalf of the
\nAppellants, it was submitted that the levy was a fee, which had been
\nimposed under Entries 15 and 27 of List II of the Constitution of India
\nand was imposed in order to preserve, protect and improve stock and
\nprevent animal diseases and give veterinary training and practice and
\nfor improving production, supply and distribution of goods.  It was
\nsubmitted that Section 10, which laid down the powers of the Board,
\nclearly indicated that the cess was being levied under the above
\nmentioned Entries.  It was submitted that Entry 66 of List II permitted
\nfees to be levied in respect of such items.  It was further submitted
\nthat the ratio set out in M\/s Kishan Lal Lakhmi Chand’s case (supra)
\nhas been held by this Court to be obiter and that the High Court was
\nwrong in relying upon the ratio laid down in that case.  In support of
\nthis, reliance was placed upon a case of Krishi Upaj Mandi Samiti &
\nOrs. Vs. Orient Paper & Industries Ltd. [(1995) 1 SCC 655].
\nReliance was also placed upon in B.S.E. Brokers’ Forum, Bombay &
\nOrs. Vs. Securities and Exchange Board of India & Ors. [(2001) 3
\nSCC 482].  Reference was made to the cases of Sreenivasa General
\nTraders & Ors. Vs. State of Andhra Pradesh & Ors. [(1983) 4 SCC
\n353], City Corporation of Calicut Vs. Thachambalath Sadasivan
\n& Ors. [(1985) 2 SCC 112], and Sirsilk Ltd. Vs. Textiles Committee
\n& Ors. [(1989) Supp.(1) SCC 168].\n<\/p>\n
\tOn the other hand, on behalf of the 1st Respondent it was
\nsubmitted that the High Court has correctly held it to be a tax and not
\na fee.  Reliance was placed upon in The Commissioner, Hindu
\nReligious Endowments, Madras Vs. Sri Lakshmindra Thirtha
\nSwamiar of Sri Shirur Mutt [1954 SCR 1005], M.P.V.
\nSundararamier & Co. Vs. The State of Andhra Pradesh & Anr.
\n[1958 SCR 1422] and Municipal Corporation of Delhi & Ors. Vs.
\nMohd. Yasin [(1983) 3 SCC 229].  It was submitted that on the basis
\nof the principles laid down in these cases the High Court has correctly
\nheld that the levy was a tax.\n<\/p>\n
\tIn our view, the law is quite well settled.  As the High Court has
\nitself noticed the principles laid down in M\/s Kishan Lal Lakhmi Chand’s
\ncase (supra) have been diluted by subsequent decisions.  It has been
\nheld that the observations in the above case are obiter.  This being the
\nposition, the High Court was not correct in following the principles laid
\ndown in M\/s Kishan Lal Lakhmi Chand’s case (supra).
\n\tEven otherwise we find that the High Court was wrong in
\nconcluding that the field was already occupied by a Central Legislation,
\nnamely, the Industries (Development and Regulation Act, 1951.  As
\nlaid down in the case of Ch. Tika Ramji & Ors., etc. Vs. The State
\nof U.P. & Ors. reported in [1956 SCR 393] and Belsund Sugar Co.
\nLtd. Vs. State of Bihar & Ors. reported in [(1999) 9 SCC 620]
\nrepugnancy must exist as a fact and not as a mere possibility.  In the
\nabsence of any specific order or provision the question of repugnancy
\ncannot arise.  Admittedly, the Central Legislation levies no cess or fee.
\nThus, there can be no question of repugnancy if a fee were to be
\nlevied.\n<\/p>\n
\tWhile the High Court was wrong in these conclusions, the
\nquestion would still remains whether the levy was a tax or a fee.  In
\nthe view which we are taking, and which is set out hereinafter, it is not
\nnecessary for us to decide this question.   We leave the question open.
\n\tWe find that the High Court was, however, right in concluding
\nthat the levy, even if it be a fee, is arbitrary and discriminatory.  The
\nlevy is ostensibly for the purpose of co-ordination between
\norganizations engaged in dairy sector and to develop modern dairy
\nfarming technology. However, the levy is on milk plants at the rate of
\n10 paise per litre of the licenced capacity.  The term “milk plant” has
\nbeen defined under Section 2(d) to mean a milk handling, processing
\nor manufacturing unit registered under the Milk and Milk Products
\nOrder, 1992 of the Government of India.  This Order has been issued
\nunder the Essential Commodities Act.  Under this Order, only milk
\nplants having an installed capacity for handling milk in excess of
\n10,000 litres per day or milk products in excess of 500 tones per
\nannum require registration.  Thus, only such milk plants, i.e. milk
\nplants which have an installed capacity to handle 10,000 litres per day
\nor who produce milk products in excess of 500 tones per annum have
\nto pay cess.  Further, the levy is not on the basis of actual production
\nbut on the licenced capacity of their plants.  Thus if a milk plant had a
\nlicenced capacity of 40,000 litres, even though the actual consumption
\nwas only 10,000 litres, they would still have to pay cess at the rate of
\n10 paise per litre on 40,000 litre.  It could not be denied that milk
\nproduction and consumption vary from month to month and from
\nseason to season.  Irrespective of such variation and without any
\nregard to the actual production or consumption, the levy is on the
\ninstalled capacity only.  The levy was for the purposes of uplifting the
\nstandards of the Dairy Industry.  Yet there is no levy on the farmers or
\nco-operative societies, who produces the milk, nor on plants whose
\ninstalled capacity is less than 10,000 litres per day.  No rational
\nexplanation could be given as to why the levy was only on these
\nplants.  The only explanation given was that these plants could apply
\nfor reduction of the installed capacity in case they were not capable of
\nusing their entire capacity. It was stated that on such an application
\nbeing made they would be allowed to reduce their installed capacity.
\nWe are not impressed by this explanation.  One fails to understand
\nwhy a milk plant should apply for reducing its capacity.  It may
\nconsume, as per its capacity in seasons when that quantity of milk is
\navailable, but it may not be able to consume, as per its capacity in
\nseasons or at times when milk of that quantity is not available.
\nFurther, due to temporary closure of some machines for purposes of
\nrepairs or maintenance, they may be consuming less during a
\nparticular period.  Further, even if there is no production\/consumption
\nand even if the plant is shut down the cess would still have to be paid.
\nThis would be so even if the closure is for more than six months in any
\nparticular year.  Irrespective of what their consumption\/production is,
\nthese plants would have to continue to pay cess at the rate of 10 paise
\nper litre of their installed capacity.  We find that such a levy is
\narbitrary.\n<\/p>\n
We also find that the levy is discriminatory. There is no levy on
\nthe farmers and co-operative societies, who produce the milk and\/or
\nmilk plants whose capacity is less than 10,000 litres per day.  No
\nexplanation is given which justified this discrimination.  Faced with this
\nsituation, it was submitted that this Court could read down the Act. It
\nwas submitted that from the definition of the term “milk plant” in
\nSection 2(d) of the Act, the words “which was registered under the
\nMilk and Milk Products Order, 1992” be deleted.  It was submitted that
\nthe words “licenced capacity” in Section 12 be also deleted.  It was
\nsubmitted that it is settled law that wherever it is possible to uphold
\nlegislation by reading it down the Court must do so.
\nThere can be no dispute with the principle that if possible the
\nprovision of the Statute must be saved by, if necessary, reading them
\ndown.  However, in this case, we are unable to accept this submission.
\nAs stated above, the Act has been amended in 2004. This levy is
\nalready abolished.  At present, the purchase tax is again being levied.
\nFor the period during which the Act subsisted, it is not possible for us
\nto read it down inasmuch as it would now affect persons, who never
\nwent to Court because during the period it existed it did not apply to
\nthem.  Such parties are not before Court.  We thus see no reason to
\ndelete the words as suggested on behalf of the Appellants.
\n\tIt was next submitted that the ground that the Act is
\ndiscriminatory and violative and, therefore, liable to struck down, has
\nnot been taken in the Writ Petitions.  We are unable to accept this
\nsubmission.  In our view, the Writ Petitions contain the necessary
\naverments and these have also been met in the reply of the
\nRespondents.\n<\/p>\n
\tThus, even though the reasoning of the High Court may be
\nerroneous, the ultimate result is that the levy of cess requires to be
\nstruck down as being arbitrary and discriminatory.  In this view of the
\nmatter, we see no reason to interfere.\n<\/p>\n
 The Appeals shall stand dismissed with no order as to costs.<\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Punjab Dairy Development Board & … vs Cepham Milk Specialities Ltd. & … on 20 August, 2004 Author: S N Variava Bench: S. N. Variava, Arijit Pasayat CASE NO.: Appeal (civil) 1741-1753 of 2002 PETITIONER: Punjab Dairy Development Board & Anr., etc. RESPONDENT: Cepham Milk Specialities Ltd. & Ors., etc. DATE […]<\/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-228983","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nPunjab Dairy Development Board & ... vs Cepham Milk Specialities Ltd. & ... on 20 August, 2004 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/punjab-dairy-development-board-vs-cepham-milk-specialities-ltd-on-20-august-2004\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Punjab Dairy Development Board & ... vs Cepham Milk Specialities Ltd. & ... on 20 August, 2004 - 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