Skip to content


Thallam Bala Subrahmanyam and ors. Vs. the State of Andhra Pradesh and ors. - Court Judgment

LegalCrystal Citation
SubjectSales Tax
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petitions Nos. 1773, 1831, 2016, 3074 to 3077, 3091, 3201, 3202, 3254, 3255 to 3258 and 3353 of
Judge
Reported in[1973]31STC498(AP)
AppellantThallam Bala Subrahmanyam and ors.
RespondentThe State of Andhra Pradesh and ors.
Appellant AdvocateT. Anantha Babu, ;P. Rama Rao, ;S. Dasaraiharama Reddy, ;Anwarullah Pasha, ;G.S.R. Anjaneyulu and ;T. Venkatappa, Advs.
Respondent AdvocateD.V. Sastry, Government Pleader for sales tax matters
DispositionPetition dismissed
Excerpt:
- maximssections 2(xv) & 3(1) & (3): [v.v.s. rao, n.v. ramana & p.s. narayana, jj] ghee as a live stock product held, [per v.v.s. rao & n.v. ramana, jj - majority] since ages, milk is preserved by souring with aid of lactic cultures. the first of such resultant products developed is curd or yogurt (dahi) obtained by fermenting milk. dahi when subjected to churning yields butter (makkhan) and buttermilk as by product. the shelf life of dahi is two days whereas that of butter is a week. by simmering unsalted butter in a pot until all water is boiled, ghee is obtained which has shelf life of more than a year in controlled conditions. ghee at least as of now is most synthesized, ghee is a natural product derived ultimately from milk. so to say, milk is converted to dahi, then butter......gopal rao ekbote, j.1. the short but important question urged in these cases is whether sections 8 and 9 of the central sales tax act, 1956, are void and still-born. the argument is that in legislating these provisions the parliament has abdicated the power to legislate and without applying its mind to the future legislation in imposing sales tax on inter-state transactions and in fixing the rates of tax and effecting exemptions, adopted the state laws which the state legislature would in future in that behalf make. strong reliance was placed in support of that contention on shama rao v. union territory of pondicherry a.i.r. 1967 s.c. 1480.2. in order to appreciate the implications of this contention, it is necessary to carefully read sections 8 and 9 of the act in so far as they are.....
Judgment:

Gopal Rao Ekbote, J.

1. The short but important question urged in these cases is whether Sections 8 and 9 of the Central Sales Tax Act, 1956, are void and still-born. The argument is that in legislating these provisions the Parliament has abdicated the power to legislate and without applying its mind to the future legislation in imposing sales tax on inter-State transactions and in fixing the rates of tax and effecting exemptions, adopted the State laws which the State Legislature would in future in that behalf make. Strong reliance was placed in support of that contention on Shama Rao v. Union Territory of Pondicherry A.I.R. 1967 S.C. 1480.

2. In order to appreciate the implications of this contention, it is necessary to carefully read Sections 8 and 9 of the Act in so far as they are relevant:

8. (1) Every dealer, who in the course of inter-State trade or commerce-

(a) sells to the Government any goods ; or

(b) sells to a registered dealer other than the Government goods of the description referred to in Sub-section (3);

shall be liable to pay tax under this Act, which shall be three per cent. of his turnover.

(2) The tax payable by any dealer on his turnover in so far as the turnover or any part thereof relates to the sale of goods in the course of inter-State trade or commerce not falling within Sub-section (1)-

(a) in the case of declared goods, shall be calculated at the rate applicable to the sale or purchase of such goods inside the appropriate State; and

(b) in the case of goods other than declared goods, shall be calculated at the rate of ten per cent., or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher ; and for the purpose of making any such calculation any such dealer shall be deemed to be a dealer liable to pay tax under the sales tax law of the appropriate State, notwithstanding that he, in fact, may not be so liable under that law.

(2-A) Notwithstanding anything contained in Sub-section (1) or Sub-section (2), if under the sales tax law of the appropriate State the sale or purchase, as the case may be, of any goods by a dealer is exempt from tax generally or is subject to tax generally at a rate which is lower than three per cent. (whether called a tax or fee or by any other name), the tax payable under this Act on his turnover in so far as the turnover or any part thereof relates to the sale of such goods shall be nil or, as the case may be, shall be calculated at the lower rate.

Explanation.-For the purposes of this Sub-section a sale or purchase of goods shall not be deemed to be exempt from tax generally under the sales tax law of the appropriate State if under that law it is exempt only in specified circumstances or under specified conditions or in relation to which the tax is levied at specified stages or otherwise than with reference to the turnover of the goods.

9. Levy and collection of tax and penalties.-(1) The tax payable by any dealer under this Act on sales of goods effected by him in the course of inter-State trade or commerce, whether such sales fall within Clause (a) or Clause (b) of Section 3, shall be levied and collected by the Government of India in the manner provided in Sub-section (3) in the State from which the movement of the goods commenced :

Provided that, in the case of a sale of goods during their movement from one State to another, being a sale subsequent to the first sale in respect of the same goods, the tax shall, where such sale does not fall within Sub-section (2) of Section 6, be levied and collected in the State from which the registered dealer effecting the subsequent sale obtained the form prescribed for the purposes of Clause (a) of Sub-section (4) of Section 8 in connection with the purchase of such goods.(2) The penalty imposed upon any dealer under Section 10-A shall be collected by the Government of India in the manner provided in Sub-section (3),-

(a) in the case of an offence falling under Clause (b) or Clause (d) of Section 10, in the State in which the person purchasing the goods obtained the form prescribed for the purposes of Clause (a) of Sub-section (4) of Section 8 in connection with the purchase of such goods,

(b) in the case of an offence falling under Clause (c) of Section 10, in the State in which the person purchasing the goods should have registered himself if the offence had not been committed.

(3) The authorities for the time being empowered to assess, collect and enforce payment of any tax under the general sales tax law of the appropriate State shall, on behalf of the Government of India and subject to any rules made under this Act, assess, collect and enforce payment of any tax, including any penalty, payable by a dealer under this Act in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the State is assessed, paid and collected ; and for this purpose they may exercise all or any of the powers they have under the general sales tax law of the State; and the provisions of such law, including provisions relating to returns, appeals, reviews, revisions, references, penalties and compounding of offences, shall apply accordingly :

Provided that if in any State or part thereof there is no general sales tax law in force, the Central Government may, by rules made in this behalf, make necessary provision for all or any of the matters specified in this Sub-section and such rules may provide that a breach of any rule shall be punishable with fine which may extend to five hundred rupees ; and where the offence is a continuing offence, with a daily fine which may extend to fifty rupees for every day during which the offence continues.(4) The proceeds in any financial year of any tax, including any penalty, levied and collected under this Act in any State (other than a Union territory) on behalf of the Government of India shall be assigned to that State and shall be retained by it; and the proceeds attributable to Union territories shall form part of the Consolidated Fund of India.

3. A close and analytical reading of these sections would indicate that Sub-section (1) of Section 8 declares that every dealer who in the course of inter-State trade or commerce sells to the Government or to a registered dealer goods referred to in Sub-section (3) shall be liable to pay at a certain percentage tax on his turnover. It will not be correct to argue, as was done before us, that this Sub-section is the charging provision. It merely declares the rate at which and the goods which and the dealer who could be taxed. The charging section in reality is Section 6 of the Act. That section declares that every dealer shall be liable to pay tax on all sales effected by him in the course of inter-State trade or commerce. Section 8(1), therefore, selects the persons, the transactions and fixes the rate at which such transactions are to be.taxed. Section 8(1) read with Section 6 of the Act, therefore, clearly indicates that the proper Legislature has exercised its judgment regarding the imposition of Central sales tax on dealers and their transactions referred to therein. We do not find any ground for the argument which was advanced before us that these provisions even delegate the power of imposing the tax to the State Legislatures. The Legislature has applied its mind and laid down an enforceable common rule of conduct when it selected the dealers, the transactions which could be taxed and the rate at which such transactions can be so taxed.

4. Sub-section (2) of Section 8 then proceeds to deal with the turnover relating to inter-State transactions which do not fall within the purview of Sub-section (1). Clause (a) of that Sub-section relates to the declared goods and Clause (b) concerns itself with the goods other than those declared goods. In the former case Clause (a) directs that the tax shall be calculated at the rate applicable to the sale or purchase of such goods inside the appropriate State and Clause (b) directs that the tax to be calculated at the rate of 10 per cent. or at the rate applicable to the sale or purchase of such goods inside the appropriate State, whichever is higher. It then creates a legal fiction by which such a dealer is considered as a dealer liable to be taxed under the law of the appropriate State.

5. This provision applied the rates of taxation to the declared goods which rates are applicable to the sale or purchase of declared goods inside the appropriate States. And in regard to non-declared goods, it fixes 10 per cent. as the tax leviable but states further that if the State rates are higher than the said 10 per cent., higher rates shall apply. In so far as the prevailing rates at the time when the provision was enacted were concerned, it is conceded that the Parliament could determine the rates by reference to a State law. What was, however, argued was that as the rate determined by the State Legislatures for the transactions inside the State are liable to be legislatively changed and, in fact, they are so changed in many States, the Parliament could not have adopted such a future law of the State without applying its own mind. It is in that respect that it was contended that the Parliament virtually abdicated its essential legislative function in making such a provision.

6. Then appears Sub-section (2-A). According to that provision, if any sale or purchase of any goods by a dealer is exempt from tax generally or is subject to tax at a rate lower than 3 per cent., then the tax under the Act in the former case shall be nil and in the latter case it shall be calculated at the lower rate.

7. In regard to this provision also, similar contention was raised, that is to say, that future exemptions given by the State Legislatures or, where the rates are lowered, such a future law of the State cannot blindly be adopted by the Parliament except by renouncing its legislative function.

8. There was no argument in regard to the remaining provisions of Section 8.

9. The next attack on the same ground was made against Section 9 of the Act. According to that section, although the tax on inter-State trade or commerce shall be levied by the Government of India, it is the State Government which shall collect the said tax with the aid of the same machinery and after applying the same procedure applicable to the assessment and collection of the State tax. This provision, it was submitted, virtually leaves imposition, assessment and collection of Central sales tax to the State machinery evolved under the State law for the purposes of State tax. This is characterised as excessive delegation amounting to abdication of Parliament's legislative power.

10. In this connection, it is well to remember the history of the Central sales tax on the transactions relating to inter-State trade and commerce. It is unnecessary to state in detail what the history is. It is enough to refer to State of Madras v. N. K. Nataraja Mudaliar [1968] 22 S.T.C. 376 (S.C.) where Shah, J., gave a brief review of the developments in the law relating to imposition of tax on transactions of sale and its inter-relation with the constitutional provisions leading to the enactment of the Central Sales Tax Act, 1956. It is enough to state that according to entry 92-A of List I, Schedule VII, taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce, it is the Parliament which can enact law for the levy of the said taxes. The corresponding entry 54 in List II of Schedule VII makes taxes on the sale or purchase of goods other than newspapers subject to the provisions of the said entry 92-A. It is also relevant to note that according to Article 269 of the Constitution, taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter-State trade or commerce shall be levied and collected by the Government of India, but shall be assigned to the State in the manner provided in Sub-article (2) of Article 269.

11. It is in this background that we have to read the provisions of Section 9. That section declares the levy of Central sales tax by the Government of India and it empowers the State machinery to collect the same on behalf of the Government of India. Sub-section (4) directs that the proceeds thus levied and collected on behalf of the Government of India by the State shall be assigned to the concerned State.

12. Let us then examine the correctness of the arguments advanced before us and as referred to above.

13. In Shama Rao v. Union Territory of Pondicherry A.I.R. 1967 S.C. 1480, the petitioner challenged the validity of Section 2(1) of the Pondicherry General Sales Tax Act, 1965. The said provisions had authorised the State Government to apply the Madras General Sales Tax Act, 1959, to Pondicherry by a notification. Accordingly, a notification was issued bringing the Madras Act into force in Pondicherry from 1st April, 1966. Before the notification was issued, the Madras Act had been amended. The notification applied the Madras Act as amended to Pondicherry. During the pendency of the petition before the Supreme Court the Pondicherry General Sales Tax (Amendment) Act, 1966, was passed retrospectively applying the Madras Act, as amended, to Pondicherry from 1st April, 1966. Shelat, J., who spoke for the majority held that there was a total surrender in the matter of sales tax legislation by the Pondicherry Assembly in favour of the Madras Legislature and, therefore, the Pondicherry General Sales Tax Act, 1965, was void and still-born. It was further held :

It may be that a mere refusal may not amount to abdication if the Legislature instead of going through the full formality of legislation applies its mind to an existing statute enacted by another Legislature for another jurisdiction, adopts such an Act and enacts to extend it to the territory under its jurisdiction. In doing so, it may perhaps be said that it has laid down a policy to extend such an Act and directs the executive to apply and implement such an Act. But when it not only adopts such an Act but also provides that the Act applicable to its territory shall be the Act amended in future by the other Legislature, there is nothing for it to predicate what the amended Act would be. Such a case would be clearly one of non application of mind and one of refusal to discharge the function entrusted to it by the instrument constituting it. It is difficult to see how such a case is not one of abdication or effacement in favour of another Legislature at least in regard to that particular matter.

14. It can be seen that the Supreme Court while deciding this case has struck a different note and has undoubtedly made a departure from what was decided previously.

15. In R.V. Burah (1878) 3 App. Cas. 889 at 906, the Privy Council rejected the view taken by the majority of the High Court and upheld the validity of Sections 8 and 9 of the Garo Hills Act. Section 8 enacted that the Lt. Governor may from time to time by notification extend to the said territory any law, or any portion of any law, now in force in the other territories subject to his Government or which may hereafter be enacted by the Council of the Governor-General or of the said Lt. Governor for making laws and regulation. The Privy Council held that plenary powers of legislation carried with them the power to legislate absolutely or conditionally. The Privy Council rejected the view of the majority who had held that the Legislative Council ought to have decided at the time of passing the Act, whether the Khasi and Jaintia Hills were to be excluded from the jurisdiction of the courts and what laws were to be applied to those Hills. It laid down :

The proper Legislature has exercised its judgment as to place, persons, laws, powers ; and the result of that judgment has been to legislate conditionally as to all these things. The conditions having been fulfilled, the legislation is now absolute.

16. Thus in Burah's case (1878) 3 App. Cas. 889, Section 8 of the Garo Hills Act, 1869, which authorised the Lt. Governor to extend to the named territory any law or any portion of any law 'which may hereafter be enacted by the Council of the Governor-General or of the Lt. Governor for making laws and regulations' was upheld as valid by the Privy Council.

17. In Delhi Laws case A.I.R. 1951 S.C. 332, one of the situations which arose for consideration by the Supreme Court was whether an Act can permit the executive authority to select future Central laws and apply without modification the whole Act to a given territory. This proposition was upheld as valid by a majority of 5 as against 2 learned Judges who took a different view.

18. In Rajnarain Singh v. Chairman, P. A. Committee A.I.R. 1951 S.C. 569, the Delhi Laws case2 was elaborately considered. It was held that the impugned Section 3(1 )(f) was covered by the judgment in Burah's case1 and was valid subject of course to the qualification that restrictions and modifications did not involve any essential change in the Act or in the policy of the Act. Section 3(l)(f) in substance was more or less on the lines of Section 8 of the Central Sales Tax Act.

19. Bose, J., observed that in order to apply the Delhi Laws case A.I.R. 1951 S.C. 332 to a particular case, it has to be considered as to in what category the impugned law fell. The laws considered in the Delhi Laws case A.I.R. 1951 S.C. 332 fell into seven categories. Bose, J., observed :

In our opinion, the majority view was that an executive authority can be authorised to modify either existing or future laws but not in any essential feature.

20. Thus in the two cases above referred to, the Supreme Court accepted Burah's case (1878) 3 App. Cas. 889 as correctly laying down the law relating to delegated legislation.

21. In Municipal Corporation of Delhi v. Birla Cotton Spinning & Weaving Mills Limited A.I.R. 1968 S.C. 1232 the validity of Section 150(1) of the Delhi Municipal Corporation Act of 1957 was challenged. The section provided that the maximum rate of tax to be levied in the case of optional taxes was to be specified by a resolution of the Corporation which, if sanctioned by the Central Government, would come into force from the date specified in the order granting the permission. The principal question before the Supreme Court was whether Section 150(1) was void for impermissible delegation of legislative power. The matter was heard by the larger Bench of seven Judges with a view to resolve the apparent conflict between Devi Dass case A.I.R. 1967 S.C. 1895 and Liberty Cinema case A.I.R. 1965 S.C. 1107. The impugned provision was upheld by a majority of 5 to 2.

22. Sikri, J., referring to the case of In re Initiative and Referendum Act [1919] A.C. 935 said that it provides an instance of abdication of functions by a legislature. In that case, a different legislature which was other than the one created by the British North American Act, 1867, was set up. The Act was held invalid because the machinery which it provided for making laws was contrary to the machinery set up by the Constitution, since the Act rendered the Lt. Governor powerless to prevent a law submitted to the voters from becoming an actual law if approved by them. The learned Sikri, J., observed :

Apart from authority, in my view, Parliament has full power to delegate legislative authority to subordinate bodies. This power flows, in my judgment, from Article 246 of the Constitution. The word 'exclusive' means exclusive of any other legislature and not exclusive of any subordinate body. There is, however, one restriction in this respect and that is also contained in Article 246. Parliament must pass a law in respect of an item or items of the relevant list. Negatively this means that Parliament cannot abdicate its functions. It seems to me that this was the position under the various Government of India Acts and the Constitution has made no difference in this respect. I read Archibald v. The Queen (1883) 9 App. Cas. 117 and Powell v. Apollo Candle Co. Ltd. (1885) 10 App. Cas. 282, as laying down that legislatures like Indian Legislatures had full power to delegate legislative authority to subordinate bodies. In the judgments in these cases no such words as 'policy', 'standard' or 'guidance' is mentioned.

23. The view expressed by the learned Judge in interpreting the word 'exclusive' appearing in Article 246 seems to us to be in consonance with the view expressed by Lord Summer in Rex v. Nat Bell Liquors Ltd. [1922] 2 A.C. 128 at 134

24. Hidayatullah, J. (as he then was), held that the observations of Venkatarama Aiyar, J., in Banarsi Das Bhanot v. State of Madhya Pradesh [1959] S.C.R. 427 at 435 were supported by the authorities cited by him and those cases had always been understood in the sense in which Venkatarama Aiyar, J., understood them. It is pertinent in this connection to note the observation of Venkatarama Aiyar, J., in Banarsi Das case [1959] S.C.R. 427 at 435 :.the authorities are clear that it is not unconstitutional for the Legislature to leave it to the executive to determine details relating to the working of taxation laws, such as the selection of persons on whom the tax is to be laid, the rates at which it is to be charged in respect of different classes of goods and the like.

25. It would be seen from the above cases extracted that (1) the Supreme Court in the abovesaid two cases declared Burah's case (1878) 3 App. Cas. 889 as correctly decided and it is also noted that Burah's case (1878) 3 App. Cas. 889 approved the adoption of future laws by the delegated authority. (2) A distinction is drawn between a case of abdication of legislative function and a case of delegated legislation.

26. Abdication can only mean renunciation of legislative power. To abdicate would mean to discard, disclaim or refuse anything. Abdication thus is the renunciation or giving up an office or function. Thus if a legislature renounces its function or discards or disclaims it or gives it up either wholly or in part, then alone it can be said that a legislature has abdicated its function. We have already referred to an instance of abdication of legislative power. The case of delegated legislation within the permissible limits is altogether different. Mere delegation of power to an outside agency to legislate is not an abdication of legislative function in every case. In such a case, the legislature retains with itself the power to control the delegated legislation. It can always withdraw or determine the delegated authority or can even repeal or cancel the subordinate legislation made by the delegated authority. It cannot in such a case ba said to have effaced itself or abdicated its power to make laws merely because it has delegated the power to legislate to a subordinate authority.

27. The law on the limits of permissible delegation cannot be said to be in doubt now. The majority judgment in Birla Mills case A.I.R. 1968 S.C. 1232 clearly lays down that Banarsi Das case [1959] S.C.R. 427 was rightly decided. The observation of Venkatarama Aiyar, J., in that case has been approved. It has disagreed with the view taken in Devi Dass case A.I.R. 1967 S.C. 1895. It further lays down that it is not necessary in all cases to ascertain the policy, safeguards or guidelines with a view to find out whether a law is void for excessive delegation of legislative power.

28. Hidayatullah, J. (as he then was), observed that the real thing to find out was whether the legislature had expressed its own will in unequivocal terms so as to make the law a binding rule of conduct. Wanchoo, C. J., however, said that-

essential legislative function consists of the determination of the legislative policy and its formulation as a binding rule of conduct and cannot be delegated by the legislature. Nor is there any unlimited right of delegation inherent in the legislative power itself. This is not warranted by the provisions of the Constitution. The legislature must retain in its own hands the essential legislative functions and what can be delegated is the task of subordinate legislation necessary for implementing the purposes and objects of the Act. Where the legislative policy is enunciated with sufficient clearness or a standard is laid down, the courts should not interfere. What guidance should be given and to what extent and whether guidance has been given in a particular case at all depends on a consideration of the provisions of the particular Act with which the court has to deal including its preamble. Further it appears to us that the nature of the body to which delegation is made is also a factor to be taken into consideration in determining whether there is sufficient guidance in the matter of delegation.

29. What emerges from the abovesaid decisions is that if essential legislative functions are not surrendered or delegated, then the delegated power to legislate cannot be attacked on the ground that it is a case of excessive delegation. As long as the legislature expresses its unequivocal will to lay down a legislative policy and formulate it as a binding rule of conduct, the legislature can delegate subordinate legislative function to any outside agency. It is only in a case where the essential legislative functions are discarded, disclaimed or reuounced that it can be said to have abdicated its legislative function. It may be that in certain cases with a view to find out whether the legislature has expressed its will in clear terms we have to examine not only the preamble but the whole purview of the Act. It may also be that with a view to find out a rule of binding conduct, the standard, guidance or policy of the Act may have to be searched. The means to reach the conclusion may differ from case to case. But the essential thing in all such cases is to find out whether the legislature has abdicated its main function to legislate, in other words, has delegated even the essential functions of a legislature If the legislature retains control over the delegated legislation, it can hardly be contended that the legislature has abdicated its function. Whatever, therefore, may be the approach to such a question, the heart of it is to find out whether even essential functions of legislature, that is to say, laying down the policy and a rule of binding conduct has also been delegated to an agency not contemplated by the Constitution. It is only in a case where even such functions are delegated or parted with that the question of abdication of legislative function can arise and in no other case.

30. It is in the light of this discussion that we have to examine whether Sections 8 and 9 of the Act amount to abdication of legislative function or those provisions merely delegate the power to determine the rates of taxes or in according exemptions to the transactions to the State Legislatures.

31. If the history of the legislation relating to inter-State trade and commerce and the position which now stands because of the above referred to provisions of the Constitution are kept in view, then it becomes clear that although the taxing authority is the Parliament, the levy and collection of the tax is meant for the purpose of the States because such a tax has ultimately to be assigned to the State from which it is collected. If that is so, then if the Parliament enacts clearly a law which in unequivocal terms declares its will to impose a levy of Central sales tax on transactions connected with inter-State trade and commerce and empowers by delegation the State authorities to assess and collect the tax and applies the law prevailing in the State even to such an assessment and collection, we fail to see how it can be urged that the Parliament has abdicated its main function of legislation. It has laid down the policy of imposing Central sales tax on certain transactions. It has selected the persons who would be taxed. In certain cases, it also has selected the rate of tax and it is only in cases where the situation varies from State to State and transaction to transaction that it has necessarily to adopt a policy whereby the enforcement of law would be easy and possible. It is common knowledge that sales tax in the States on different transactions differs. The rates also differ. In details there may be some difference even in regard to assessment and collection of such taxes. It was, therefore, not possible for the Parliament to evolve altogether a new machinery and apply new procedure for the purpose of collection of Central sales tax alone. In any case, it is not impermissible for the Parliament to impose the tax and authorise the State machinery to assess and collect the same on behalf of the Government of India, particularly when such a tax is ultimately to be assigned to the States. We do not, therefore, find any valid ground for holding that merely because the State machinery is employed for the purpose of assessment and collection of taxes or the procedure applicable to the assessment and collection of State tax is also made applicable to the assessment and collection of the Central sales tax, the delegation has become objectionable.

32. Even in regard to the rates, wherever the Parliament itself has fixed the rates, no objection can be taken. The Parliament can, as has been seen above, delegate the power to fix the rates to any outside agency. In this case, it has chosen to delegate the power to fix the rates to the respective State Legislatures. The argument that the State Legislature is not subordinate to the Central Parliament, in our view, is besides the point. It is not necessary that the authority to whom the power to make subordinate law is delegated should in every respect be subordinate to the delegator. It is enough if the power delegated to legislate is kept under the control of the delegator. Whether it is entrusted to the Central Government or the State Government, the Parliament will always have control over such subordinate law. Instances are in abundance where the Central Legislature has entrusted the power to make rules to the State Government and no fault could be found on that. We fail to see then how an objection can be raised if the power to fix the rates which undoubtedly is a case of subordinate legislation is entrusted to the State Legislature, which is a more responsible body than the executive authorities to whom normally such functions are delegated. The Parliament has retained the power to fix the rates itself or lay down the procedure or give the exemption whenever it chooses to do so. It can cancel the delegation by amending Sections 8 and 9 suitably. It can also cancel the subordinate legislation made by any or all the States in that behalf. As long as the Parliament has laid down the policy of imposition of tax in the law itself and has kept control over subordinate legislation we do not think that it can be validly contended that the Parliament has abdicated its essential legislative function.

33. It is true that Section 8 does not in specific terms say that the authority to fix the rates was delegated to the State Legislatures. But the same result is obtained by saying that the rates fixed by the State Legislatures in respect of the transactions within the State would be the rates for transactions subject to Central tax. In either case, it is a case of delegated legislation and not a case of applying future laws to the Central transactions without applying the Parliament's mind. In this view of ours we feel it unnecessary to consider the effect of Pondicherry case A.I.R. 1967 S.C. 1480 striking a different note in regard to the application of future laws than the one expressed by earlier decisions referred to above and approved by the subsequent decision of the Supreme Court in Birla Mills case A.I.R. 1968 S.C. 1232 by the decisions in Banarsi Das case [1959] S.C.R. 427 the Liberty Cinema case A.I.R. 1965 S.C. 1107 and particularly the Municipal Corporation of Delhi v. Birla Cotton Spinning & Weaving Mills Limited A.I.R. 1968 S.C. 1232. Respectfully following these decisions, we have no hesitation in holding that in delegating the power to fix the rates to the State Legislatures and applying those rates to the transactions subject to tax under the Central Sales Tax Act, whether prevailing or future, it is a case of permissible piece of delegated legislation and, therefore, are quite valid. Sections 8 and 9, therefore, do not amount to abdication of legislative function by the Parliament.

34. Even if it is necessary to find out the standard or guidelines from the Act or its preamble, in our opinion, the purpose of the Act and the policy underlying it provide abundant guidance to the delegated authority. In this connection, the provisions of Section 15(l)(a) and (b) of the Act cannot be lost sight of. Whereas Section 15(l)(a) provides the maximum limit of the said tax which can be levied on declared goods, Clause (b) of that section permits refund of State tax if the same transaction is taxed under the Central Act. Thus apart from putting restrictions and having legislative control over the delegated authority, the Act as a whole provides sufficient standard or guidelines and in that view of the matter the provisions of Sections 8 and 9 cannot be said to be bad on the ground of excessive delegation.

35. It was then contended that levy of Central sales tax is violative of Articles 301 and 303(1) of the Constitution of India. This contention has already been rejected by the Supreme Court in the State of Madras v. N. K. Nataraja Mudaliar [1968] 22 S.T.C. 376 (S.C). In view of that judgment, the matter was not pursued, The other contention that the Act violates Article 14 of the Constitution is also not available in view of the High Court's decision in E. I. Sandal Oil Distilleries Limited v. State of A.P. [1962] 13 S.T.C. 79. In view of the amending Act 28 of 1969, the decision in State of Mysore v. Lakshminarasimhiah Setty and Sons [1965] 16 S.T.C. 231 (S.C.) no more holds the field and it is the amended provision which would be applicable because it has been given retrospective effect.

36. In W. P. No. 1638 of 1968, it was contended by the learned counsel for the petitioner that the petitioner has not collected tax from the buyers and although his case does not expressly fall within the amended provision of law, he desires to make a request to the appropriate authorities not to levy tax on him. It is open to him to do so, if he is so advised and we have no reason to suppose that the appropriate authority will not consider it on merits and deal with it in accordance with law.

37. In W. P. No. 2531 of 1968, a similar contention was advanced and it was contended that the petitioner had filed nil returns as he had not collected any tax. If he is entitled to get exemption on the transactions, he may make appropriate representation and we believe that the appropriate authority will consider the request on its merits and decide it in accordance with law. We make no observation in that behalf.

38. Since no other contention was raised in any of the cases, the writ petitions are dismissed with costs. Advocate's fee Rs. 50 in each case.


Save Judgments// Add Notes // Store Search Result sets // Organizer Client Files //