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Ram Lal Manohar Lal and ors. Vs. Union of India and ors. - Court Judgment

LegalCrystal Citation
SubjectOther Taxes
CourtDelhi High Court
Decided On
Case NumberCivil Writ Appeal No. 521 of 1972
Judge
Reported in9(1973)DLT529
ActsDelhi Municipal Corporation Act, 1957 - Sections 178; Constitution of India - Article 265
AppellantRam Lal Manohar Lal and ors.
RespondentUnion of India and ors.
Advocates: S.S. Chadha,; P.N. Sethi and; T.C.P. Lal, Advs
Cases ReferredMuharaja Shri Umaid Mills Ltd. v. State of Rajasthan
Excerpt:
.....corporation for issuance of the transit pass, would amount to tax - it was ruled that the service charges levied by the municipal corporation for issuance of transit pass did not amount to tax - accordingly, the levy of transit fee by the municipal corporation of delhi, was upheld - - apparently, the municipal commissioner must have, thereforee, satisfied himself about the truth of the affirmation i, thereforee, conclude that the service charge is a fee and not a tax and that only 1/4th of the expenditure incurred by the corporation for the beneifit of the importers like the petitioners is being recovered by the corporation from the importers by way of service charge. that main difference between a statute made by a legislature and that rules framed there under is well..........would make it appear that the goods are on way to re-export but would actually consume them in delhi. rules 17 and 27 are, thereforee, absolutely essential for the pre- vention of the evasion of this tax. (8) power to make rules is generally given to effectuate the objects of the statute under which the rules are framed. whatever is necessary to give effect to the statute would there, he implied in the rule-making power. in kangra valley sta'e co. ltd. v slale of punjab, even a rule which destroyed the right of a party altogether to apply for a mining lease on the expiry of a period of six mohths was held to bs wv.hin the rule-making power of the govsrnmani. for, without same such limitation of time the object of the statute namely, the development of mineral resources could not be.....
Judgment:

V.S. Deshpaade, J.

(1) It appears that the power to levy the terminal tax is conferred on the State legislature by Entry 52 of List II-Stale List of She Seventh Schedule of the Constitution. Entry 32 it as follows:-

'TAXESon the entry of goods into alocal area for consumption, use or sale therein.'

It would follow, thereforee, that the terminal tax cannot be levied unless , are brought into the Union territory of Delhi 'for consumption, use or sale therein.' Provision had to be made, thereforee, in the rules framed under section 183 to see that poods which are brought into Delhi for re-export are not made liable to the terminal tax. There are four possible modes by which goods coming into Delhi are re exported :- (1) Goods coming in by train and going out bytrain ; (2) Goods coming in by road and going out byroad ; (3) Goods coming in by train and going out by road ; and (4) Goods coming in by road and going out by train. Goods transported by the first mode remain in the costody of the Railway which is a Government undertaking and which can see to it that they are re-exported out of Delhi and are. not consumed here. The Municipal Corporation thus does not have to supervise this mode of transport of goods. Naturally no termial tax is levied on them. The goods carried,by the second mode remain in the custody of the persons- in-charge of the motor vehicles carrying them. As no transhipment is involved, the work of the Corporation officials is restricted io Seeing that the goods are not unloaded and consumed in Delhi but are carried through to places outside Delhi. This is ensured by the system of issuing a transit pass for Which a transit fee of Rs. 2.00 per vehicle is charged by the Corporation under rule 17(1) (e) (1) for rail born goods and under rule 2.7 (1) (b) for goods carried by road. When, however, the third or the fourth modes are adopted for the transport of goods into and out of Delhi, transhipment and custody of the goods is involved. The Corporation, threfore.. charges the terminal tax on these goods on their arrival into Delhi but refunds the sams to the tax-payers when the goods are re-exported out of Delhi. In addition to the transit fee, thereforee, the Corporation charges a service charge of Rs.5.00per vehicle-load of goods. The service charge is charged because the Carporation has to refund the tax which has been once collected

(2) The leglity of this service charge is challenged in this writ petition on the following groan is, namely :- (1) It is really a lax and not a fee as no service is rendered in refunding the tax; (2) Its levy is not authorised by section 178 ; (3) Section 183 also does not authorise making of rules for the levy of such a service charge and the rules 17 and 27 are ultra virus to that etent.

(3) As to whether the service charge is a tax or a fee, the question has to be decided on facts. Primarily the terminal tax is livable on goods which are brought into Delhi for consumption therein. The presumption is that when the goods come into Delhi, they are either meant to be consumed there or are capable of being consumed there if the importer is allowed to do so. The Corporation bias, 'therefore. two options in dealing with such goods, it may either collect the termipal lax and leave the importers to show later that the goods were not Consumed in Delhi and, thereforee, the levy of the tax was Illegal. Or the Corporation can devise a machinery by which it can be ascertained whether the goods have been consumed in Delhi or have been re-exported out of Delhi. The burden of proving re-export would ordinarily be on the importer. The Corporation has, however, helped the importer to show the reexport' conveniently by complying wiih rules 17 and 27. The importers are helped a great deal thereby Without rules 17 and 27 they would have been subjected' to the trouble of proving in every case that the goods were re-exported out of Delhi. The levy of transit fees on goods Which are the subject-matter of such Import and re-export is, thereforee. justified by the arrangftmerils made by the Corporatton in the interests of persons importing and re-experting the goods. The petitioners have not challenged the legality of the transit fee. They. hewever, dispute the legality of the service charge.

(4) Is there any essential difference between a transit fee and a service, charge'? The similarities in them are obvions. They are levied on ibe same goods for the same reason. The same set of Corporatiion officials: levy them. The only difference is that When the goods are brought in by road and moved out by the' same vehicles by road the services rendered by the' Corporation are confined to the issue of transit passes. only a transit fee is, thereforee, livied, But the work of the Corporation officials is increased when the goods are brought in by train and taken out by road or thay are brought in by road and taken out by train, The possibility of their being used in Delhi is increased due to the transhipment. The Corporation has, thereforee, thought it til to collect the terminal tax initially on such goods and to refund it subsequently if the goods are re-exported. Obviously, this is additional work for the Corporation Officials. Of course, the collection of tax is not for the benefit of the importers. But the refund of the tax is certainly for their benefit. The service charge is, thereforee, levied only for the trouble taken by the Corporation officials in refunding the tax. It is common knowledge that refund of money involves responsibility. Cheques have to be issued by responsible officials after ascertaining fully whether the refund would be in order. This work involves, thereforee, more expense to the Corporation than the work. of issuing transit passes. The service charge is, thereforee, higher than the transit fees.

(5) At page 31 of the paperbook, the petitioner Mohal Lal, on behalf of all the petitioners, has slated that about 900 transit passes are issued everyday and service charge is levied on some of the goods for which transit passes have been issued. The petitioner has also shows that the total expenditure incurred by the Corporation on the establishment which deals with the issue of the transit passes and the collection of service charges is Rs. 30,81.000.00 (pages 4546 of the paper book). As against this, the respondents have shown at page 71 of the paper-book that the charges incurred by the respondents in collecting service charges is about Rs. 1,23,406.00 while the charges incurred by them for issuing transit passes are about Rs. 8,63,301.00. The petitioner alleges that the respondents collect service charges of Rs. 13,68,000.00 per year but the respondents have affirmed at page 70 of the paper-book that the income from the service charges realised during the period from 1st April 1972 to 30th June 1972 was only Rs. 32,009.00. The amount of service charge made by the Corporation is, thereforee, only about 1/4th of the expenditure incurred by the Corporation in callecting the service charge. The petitioner complaints that the Corporation has not produced their accounts before the Court. But the Corporation is a public body and the affidavit in this respect is sworn by Shri BansiLal, Terminal Tax Officer, Delhi Municipal Corporation who is Respondent No. 4 and the principal officer concerned in defending the writ petition. The affidavit including this part of it has been, verified by him as being true to his knowledge He has sworn the affidavit on behalf of himself and the Municipal Commissioner, Delhi Municipal Corporation. Apparently, the Municipal Commissioner must have, thereforee, satisfied himself about the truth of the affirmation I, thereforee, conclude that the service charge is a fee and not a tax and that only 1/4th of the expenditure incurred by the Corporation for the beneifit of the Importers like the petitioners is being recovered by the Corporation from the importers by way of service charge. In Delhi Cloth and General Mills Co. Ltd. v. The Chief Commissioner Delhi paragraph 9. only 60 per cent of the amount of the license fees which were being realised was actually spent on services rendered to the factory owners. ' The rest of the realizations were appropriated by the Government. In the present caie the service charge does not cover more than about l/4th of tbe expenditure incurred by the Corporation and3/4tbs of the axpenditure is borne by the Corporation. The present case is, thereforee, tax that the Corporation officials have to beemployed to do the work of refund of tax. The system of refund is entirely for the benefit of tax payers. The Government derives no benefit from it. There is no reason, thereforee, why the Government should render a service to the tax payers free of cost. The recovery of about 1/4th of the expenditure incurred on refund can be said to be incidental to the measures taken to prevent evasion of the terminal tax. It is thereforee, comprised in the rule-making power of the Central Government under section 183. much stronger and the collection of The service charge as a fee is, thereforee, much more justified than in the case decided by the Supreme Court.

(6) As the service charge is not a tax but only a fee, it was not necessary that its levy should have been authorised by section 178.

(7) The important question, however, is whether rules made uader section 183 could provide for the levy of a fee even though the Act itself is silent as to such a levy. that main difference between a statute made by a legislature and that rules framed there under is well expressed in the following words :-

'THEinitial differencs between subordinate legislation and statute law lies in the fact that a subordinate law-making body is bound by the terms of its delegated derived authority and that courts of law, as a genera! rule, will not give effect to the rules, etc., thus made, unless satisfied that all the conditions precedent 19 the validity of the rules have been fulfillled '

(Craies on Statute Law. 7th Edition, '97). Section 183 authorises the making of the rules 'in relation to the levy, assessmesment and collection of terminal tax'. The system of transit fee and service charge is integrally connected with '.he levy, assessment and collection of terminal tax The following specific mailers are to be dealt with by the rules, namely :- (a) the examination of goods liable to payment of terminal tax; (b) their inspection.. weighing, etc ; (e) their seizure if tax is not paid ; and (d) the measures to prevent evasion of terminal tax. If rules 17 and 27 were not to provide for transit passes and the system of collection and refund of tax, it would ha easy for importers to avade the payment of terminal tax. They would make it appear that the goods are on way to re-export but would actually consume them in Delhi. Rules 17 and 27 are, thereforee, absolutely essential for the pre- vention of the evasion of this tax.

(8) Power to make rules is generally given to effectuate the objects of the statute under which the rules are framed. Whatever is necessary to give effect to the statute would there, he implied in the rule-making power. In Kangra Valley Sta'e Co. Ltd. v Slale of Punjab, even a rule which destroyed the right of a party altogether to apply for a mining lease on the expiry of a period of six mohths was held to bs wv.hin the rule-making power of the Govsrnmani. For, without same such limitation of time the object of the statute namely, the development of mineral resources could not be efficiently carried out by 'the Government. In the present case, the rule only provides a machinery without which 'he evasion of the tax cannot bs terminated. This involve initial collection of the tax and subsequent refund of it. The expenses incurred on the refund are entirely for the benefit of the imponers. As they are an essential part of the machinery the rule could empower the Government to recover a part of the expenses incurred on refund.

(9) The residuary clause (e) of section 183 enables the rules to deal with 'any other matter which is to be or may be prescribed for the levy, assessment or collection of the terminal tax. This gives large discretion to th- G'ntril Government in providing for incidental matters,. It is an incident of the system of collecting and refunding

(10) It is somewhat suprising that there are not many judicial decisions deciding the question whether the power to levy a fee can be derived from the rules made under a statute which is itself silent about the levy of fees. In Chandra Pal Singh v Municipal Board of Jahangira bad, the transit pass rules authorising the levy of toll or octroi were framed under section 396 of the U. P. Municipalities Act, 1961. Though the Act was silent as to the levy of these imposts the rules authorised the levy and the levy was held to be valid by a learned Single Judge of the Allahabad High Court. In Delhi Cloth and Gereral Mills Co. Ltd. v The Chief Commissioner, referred to above, the levy of license fees was Impugned. The Court proceeded on the basis that the rules authorising such a levy were framed under section 112 of the Factories Act, 1948, which itself is silent about such a levy. No reference is made in the judgment to section 6 if which authorises such a levy. is Muharaja Shri Umaid Mills Ltd. v. State of Rajasthan however, it was recognised that the power to make. such rules was derived under section 6 read with section 112 of the Factories Act (per Wanchoo C. J. and Modi.J.), Since, however, no reference to section 6 is made in the Supreme Court decision, it cap be taken to be an authority for the proposition that even though the statute and the section under which the rules were framed themselves did not authorise the levy of the fees such a levy could be authorised by the rules. The principle appears to he this. No tax ran be levied except by the authority of law as ensured by Article 265 of the Constitution. Tax is compulsory levy for the benefit of the State. It cannot, thereforee, he levied except by the authority of the Legislature itself A fee is distinguished from a tax. Though 9 fee may be levied compulsorily it is primarily a charge for services rendered to the person from whom it is collected. Suppose the Central Government in framing the rules under section 183 were to provide for two alternatives, namely :- (1) service of the Corporation staff would be provided for managing the transit pass system and the system of refund on payment of the trangsit fees and the service charges ; and (2) those who did not want to avail themselves of the above facilities would be free to make such arrangements themselves to the satisfaction of the Corporation authorities. It would be immediately realised that it would be impossible for private persons to manage to satisfy the Corporation authorities on their own. If they were to do so, they would be spending much more than the transit fee and the service charge levied by the rules. The second alternative would, thereforee, be a saperflous provision. This would show that the first alternative is Justified by the circumstances. It is easy to seem thereforee, that Parliamentary legislation is not necessary for the levy of fees an4 that such levy may be authorised by rules if the intention of the rates to authorise each levy is clear enough. I, thereforee, find that the service charge was justified as a fee (and the main contention inderlying the writ petition 18, thereforee, uasustainable.

(11) The petitioners then urged that item No. 16 of Class I of the Tenth Schedule of the Act was confined only to edible oil inasmuch as the title of Class I was 'Articles of food and drink'. Learned counsel for the petitioners say that the terminal tax levied on neem, rice bran, tobacco, Karangi and Acid oils there under was, tberafore, illegal inasmuch as these ware not edible oils. This contention is untenable for the following reasons. Firstly, the petitioners have not shown that they imported any of these oils into Delhi. They are not, therofore, aggrieved in any way by the levy of the terminal tax on them. They cannot ask this Court to decide a purely theoretical issue. A petitioner under Article 226 must show locus standi in himself by being personally aggrieved. The petitioners have failed to do so. Secondly. the respondents have denied the allegation that these oils are not edible oils. They say that they can be used in preparation of articles of food and drink. This is. thereforee, a disputed question of fact which cannot be gone in awrit petition. Lastly, the title of Class I do not control the express language of item No.16 thereof. 'Oil of all kinds except oils mentioned In Class Iii, V and IX' are covered by item No. 16 of Class 1. Even if, thereforee, such oils are not articles of food and drink, it is arguabla that they would be covered by item No 16 inasmuch as the title like the marginal heading cannot supersede the express language of the taxing provision. This contention, therfore. fails.

(12) The petitioners lastly urged that the notification amending the rate of terminal tax on item No. 16 of Class I of Tenth Schedule of the Act has not been placed before Parliament. But Section 479 of the Act requires only the rules to be placed before Parliament. It does not reqwire the notification amending the rates of terminal tax on the items contained in the Tenth Schedule to be so placed before the Parliament. This contention has, thererfore , no merit.

(13) The Writ Petition is, thereforee, dismissed without any order as to costs.


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