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PETITIONER: BUXA DOOARS TEA COMPANY LTD. ETC.

       Vs.

RESPONDENT: STATE OF WEST BENGAL AND OTHERS

DATE OF JUDGMENT12/05/1989

BENCH: PATHAK, R.S. (CJ) BENCH: PATHAK, R.S. (CJ) KANIA, M.H.

CITATION:  1989 AIR 2015            1989 SCR  (3) 293  1989 SCC  (3) 211        JT 1989 (2)   571  1989 SCALE  (1)1321  CITATOR INFO :  D          1991 SC1676  (30)

ACT:     West  Bengal Rural Employment and Production Act,  1976: ss.  4(2)(aa)  &  4(4)--Rural employment  cess--Levy  of  in respect   of  tea  estates  on  despatches  of   tea   grown therein--Constitutional validity of--Whether beyond legisla- tive competence.     Constitution  of India: Articles 301, 304(b)  &  Seventh Schedule List II Entry 49--West Bengal Rural Employment  and Production Act, 1976--Whether constitutionally valid.     Statutory  Interpretation:  True nature  of  legislation imposing levy--Determination of.

HEADNOTE:     Section  4(1) of the West Bengal Rural  Employment.  and Production  Act, 1976 provided for levy of rural  employment cess  on  immovable properties. Clause (aa) of  s.  4(2)  as amended by s. 7(b) of the West Bengal Taxation Laws  (Amend- ment)  Act, 1981 provided for levy of rural employment  cess in  respect  of tea estates on the despatches of  tea  grown therein. The first proviso thereto provided for exclusion of despatches  of tea for sale made at recognised centres.  The second proviso thereto empowered the State Government 10 fix different  rates of cess on despatches of different  classes of  tea.  Sub-section (4) of the amended s. 4  provided  for exemption  of  certain  categories of  despatches  from  the liability to pay the whole or part of the cess or to  reduce the  rate of the cess payable thereon. The first proviso  to s.  4(2)(aa) was. however, omitted by the West Bengal  Taxa- tion  Laws  (Amendment)  Act, 1982. Article  304(b)  of  the Constitution  permits the legislature of a State  to  impose reasonable restrictions on the freedom of trade, commerce or intercourse  with or within that State provided the Bill  or amendment  for that purpose is introduced with the  previous sanction of the President.     It  was contended for the petitioners that the  levy  of the cess under s. 4(1) read with s. 4(2)(aa) of the Act,  as amended  in  1981  and 1982. was violative  of  the  freedom guaranteed by Article 301 of the Constitu- 294

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tion and also lay outside the legislative competence of  the State Government. Allowing the writ petitions.     HELD:  1.1 If the levy of a tax on goods has direct  and immediate effect of impeding the movement of goods  through- out the territory of India, there is a violation of  Article 301 of the Constitution. If, however, the impact of the levy is  indirect  or remote, no valid complaint can be  made  in relation  to  Article  301. There is also  no  violation  of Article  301 if the case fails under Article 304(b) and  its proviso. [299F, 300D-E]     1.2  Therefore, if the legislature of a State  enacts  a law which imposes such reasonable restrictions on the  free- dom  of trade, commerce or intercourse with or  within  that State as may be required in the public interest and  further that  the Bill or amendment for the purposes of  clause  (b) has  been introduced or moved in the Legislature of a  State with the previous sanction of the President, such  enactment will  not offend Article 301. The rural employment  cess  in the instant case was a tax. [300F, 299F]     Ariabari  Tea  Co., Ltd. v. The State of Assam  &  Ors.. [1961]  1 S.C.R. 809; The Automobile  Transport  (Rajasthan) Ltd. v. The State of Rajasthan & Ors., [1963] 1 S.C.R.  491; Firm  A.T.B. Mehtab Majid and Company v. State of  Madras  & Anr.,  [1963]  Suppl. 2 S.C.R. 435; Kalyani Stores  v.  TIre State of Orissa & Ors., [1966] 1 S.C.R. 865; State of Mysore v.  Ii.  Sanjeeviah, [1967] 2 S.C.R. 361 and  Andhra  Sugars Ltd. & Anr. etc. v. State of Andhra Pradesh & Ors., [1968] 1 S.C.R. 705, referred to.     2.1 To determine whether the levy was in respect of  tea estates,  and,  therefore, of land thus making  an  indirect impact  or was a levy on despatches of tea thereby  directly impeding movement of goods, the substance of the legislation must  be  ascertained from the relevant  provisions  of  the statute. [301B]      2.2  The subject of the levy, the nature of  which  de- fines the quality of the levy, however, must not be confused with  the measure of liability, that is to say, the  quantum of the tax. Furthermore, the standards laid down for measur- ing the liability under the levy must bear a relationship to the nature of levy. [301B-C, 302D-E] 295     Union of India & Ors. v. Bombay Tyre International  Ltd. JUDGMENT:     2.3  If  the levy is regarded as one in respect  of  tea estates and the measure of the liability is defined in terms of  the weight of tea despatched from the tea  estate  there must  be a nexus between the two indicating  a  relationship between  the  levy on the tea estate and  the  criteria  for determining  the measure of liability. If there is no  nexus at  all it can conceivably be inferred that the levy is  not what it purports to be. [301H, 302A]     2.4  In the instant case, the nexus with the tea  estate is lost altogether in the provisions for exemption or reduc- tion  of  the levy and throughout the nexus is  confined  to despatches  of  tea rather than related to the  tea  estate. There  is  nothing to suggest that a particular  tea  estate produces  only one class of tea, and when reference is  made to a certain class of tea the reference identifies a certain class of tea estates. [302E-F]     2.5  While  there  must always be a  nexus  between  the subject  of the levy and the measure of the levy that  nexus extends  into  different dimensions.  Variations  considered appropriate for the purpose of determining the measure  must correspond to variations in the subject of the levy. If  the

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measure of levy is to vary with the despatches of  different classes of tea, there must be something in the class of  tea concerned which points to a reason located in the particular tea  estate  or classes of tea estates which  are  made  the subject of the levy. So also, if the measure varies with the centre of sale of tea, the variation must relate to a reason to  be  found  in the nature of the  tea  estate  concerned. Ultimately, the benefit of exemption or reduced levy must be related  to the need for exempting the tea estate from  that levy  or relieving it from part of the normal  levy.  [302F, 303A]     2.6  In the instant case the relevant  statutory  provi- sions,  including s. 4(2)(aa) and s. 4(4), indicate no  such relationship or nexus between the tea estate and the  varied treatment  accorded in respect of the despatch of  different kinds of tea. The levy of rural employment cess was,  there- fore,  a  levy in respect of despatches of tea  and  not  in respect  of tea estates. It must, thus, be regarded as  con- stituting a direct and immediate restriction on the flow  of trade and commerce in tea throughout the territory of India. [303B-C] 2.7  Such  a  levy could avoid the  injunction  declared  in Article 301 296 only  if it satisfied the provisions of Article  304(b)  and the proviso thereto. The amendments made to the West  Bengal Act  in 1981 and 1982 had not been moved in the  Legislature of  the State with the previous sanction of  the  President. The  provisions brought into the Act by the said  amendments were, therefore, unconstitutional and void and could not  be given effect to. [303C-D, F, G]     3.  Under the Tea Act, 1953 Parliament had assumed  con- trol of the tea industry including the tea trade and control of  tea prices. Under s. 25 of that Act a cess on  tea  pro- duced in India had also been imposed. The State  legislation imposing  a cess on despatches of tea was,  therefore,  also void for want of legislative competence as it pertained to a covered field. [304B] 4.  The petitioners are entitled to the refund of cess  paid by them. [304D]

&     CIVIL  ORIGINAL JURISDICTION: Writ Petitions Nos.  2687, 5822 of 1983 etc. (Under Article 32 of the Constitution of India).     Dr.  Shankar Ghosh, T.S.K. Iyer, M.L. Lahoty, P.S.  Jha, D.D. Gupta, S.K. Jain, D.P. Mukherjee, S.R. Srivastava, P.N. Tewari and Parijat Sinha for the petitioners.     Tapas  Ray,  Anil B. Dewan, T.C. Roy,  G.S.  Chatterjee, Dalip Sinha and H.K. Puri for the respondents. The judgment of the Court was delivered by     PATHAK,  CJ.  By these writ  petitions  and  transferred cases the petitioners challenge the validity of the levy  of cess  in respect of tea estates under the West Bengal  Rural Employment and Production Act, 1976.     The  West  Bengal Rural Employment and  Production  Act, 1976,  (shortly  referred to as the "West  Bengal  Act")  is intended to provide the additional resources for the  promo- tion of employment in rural areas and for implementing rural production  programmes. The additional resources are  sought to  be raised from two sources, a surcharge on land  revenue under s. 3 of the Act and a rural employment cess under s. 4 of the Act. We are concerned here with the levy of the rural

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employment cess. 297 Originally s. 4 of the West Bengal Act provided as follows:               "4.(1)  On and from the commencement  of  this               Act,  all immovable properties on  which  road               and public work cesses are assessed  according               to the provisions of the Cess Act, 1880, shall               be  liable to the payment of rural  employment               cess:                         Provided  that  no  raiyat  who   is               exempted from paying revenue in respect of his               holding under clause (a) of subsection (1)  of               section  23B of the West Bengal  Land  Reforms               Act,  1955, shall be liable to pay  rural  em-               ployment cess.                         (2) The rural employment cess  shall               be levied annually--                       (a)  in respect of lands, at the  rate               of  six  paise on each  rupee  of  development               value thereof;                       (b)  in respect of coal mines, at  the               rate  of fifty paise on each tonne of coal  on               the annual dispatches therefrom;                       (c)  in  respect of mines  other  than               coal  mines and quarries, at the rate  of  six               paise  on  each rupee of  annual  net  profits               thereof."     The  West  Bengal Taxation Laws  (Amendment)  Act,  1982 amended  the West Bengal Act and by s. 7(b)  thereof  amend- ments  were  made  in s. 4(2) of the West  Bengal  Act  with effect  from 1 April, 1981. As a result, as from that  date, s. 4(2) in so far as it is material read as follows:               4(2).  The  rural  employment  cess  shall  be               levied annually--                       (a) in respect of lands, other than  a               tea  estate, at the rate of six paise on  each               rupee of development value thereof;                       (aa)  in  respect of a tea  estate  at               such  rate, not exceeding rupees six  on  each               kilogram  of tea on the dispatches  from  such               tea estate of tea grown therein, as the  State               Government  may, by notification in the  Offi-               cial Gazette, fix in this behalf:               298                        Provided  that  in  calculating   the               dispatches  of tea for the purpose of levy  of               rural  employment  cess, such  dispatches  for               sale  made at such tea auction centres as  may               be  recognised  by  the  State  Government  by               notification in the Official Gazette shall  be               excluded.                         Provided  further  that  the   State               Government  may  fix different rates  on  des-               patches of different classes of tea.                         Explanation--For the purpose of this               section, "tea" means the plant Camellia Sinen-               sis (L) O. Kuntze as well as all varieties  of               the  product  known commercially as  tea  made               from the leaves of the plant Camellia Sinensis               (L)  O. Kuntze, including green tea and  green               tea leaves, processed or unprocessed;"                   Section 4 was also amended further by  the               insertion of sub-s. (4) which provided:               "(4) The State Government may, if it considers               necessary  so  to do, by notification  in  the

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             Official  Gazette, exempt such  categories  of               despatches  or such percentage  of  despatches               from  the  liability to pay the whole  or  any               part  of the rural employment cess, or  reduce               the rate of the rural employment cess  payable               thereon, under clause (aa) of sub-section (2),               on such terms and conditions as may be  speci-               fied in the notification.                         Provided  that the State  Government               may,  at  any  time, add to,  amend,  vary  of               rescind any such notification." Thereafter  the West Bengal Taxation Laws  (Amendment)  Act, 1982  was enacted with effect from 1 October, 1982. S.  4(2) of  the  West Bengal Act was amended and under  clause  (aa) thereof the first proviso was omitted.     Pursuant  to  the amendments in the West Bengal  Act  in 1981  and  1982, various notifications were  issued  by  the State Government, which for our purpose broadly cover  these different periods:               (a) First Period: 1 April, 1981 to 30  Septem-               ber, 1982--               299               Rural  employment cess was levied at the  rate               of Rs.5 per Kg. on all despatches of tea,  but               in  respect of despatches to two  tea  auction               centres  within West Bengal the rate  of  duty               was  nil, and in respect of tea sold  in  West               Bengal  through registered  dealers  otherwise               than  through the two tea auction centres  the               rate of tax was Rs.2.50 per Kg.               (b)  Second  Period:  1 October,  1982  to  28               March, 1984--               Rural  employment cess was levied at the  rate               of  Rs. 1.50 per Kg. on all despatches of  tea               except that for despatches to the said two tea               auction centres the rate of levy was 30  paise               per Kg.               (c) Third Period: 29 March, 1984 onwards--                    Rural  employment cess was levied  at  the               rate of Rs.3 per Kg. on all despatches of  tea               except that for despatches to the said two tea               auction centres in West Bengal the rate of tax               was only 30 paise per Kg.     Learned  counsel  for the petitioners contend  that  the levy of the cess under s. 4(1) read with s. 4(2)(aa) of  the West  Bengal Act as amended in 1981 and 1982 is ultra  vires inasmuch as the statutory provisions violate Article 14  and Article  301  of the Constitution and also lie  outside  the legislative competence of the State Government. It seems  to us  that these cases can be disposed of on the short  ground based on Article 301 of the Constitution and want of  legis- lative competence. There can be no dispute that the rural employment cess is  a tax.  cannot also be disputed that if the levy of a  tax  on goods  has the direct and immediate effect of  impeding  the movement  of goods throughout the territory of India,  there is  a  violation  of Article 301 of  the  Constitution.  If, however,  the impact of the levy is indirect or  remote,  no valid  complaint can be made in relation to Article 301.  In Atiabari  Tea  Co., Ltd. v. The State of Assam  and  Others, [1961]  1  S.C.R. 809, Gajendragadkar, J (as  he  then  was) speaking  for the majority in that case held that  tax  laws would  effect trade and commerce and could be  violative  of the  freedom guaranteed by Article 30 1, provided  they  di- rectly  or immediately affect the freedom of trade and  com-

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merce and not indirectly or in a remote manner. This princi- ple  was affirmed by this Court in The Automobile  Transport (Rajasthan) 300 Ltd.  v. The State of Rajasthan and Others, [1963] 1  S.C.R. 491  and  again in Firm A.T.B. Mehtab Majid and  Company  v. State of Madras and Another, [1963] Suppl. 2 S.C.R. 435. But the  declaration  in Article 301 that  trade,  commerce  and intercourse throughout the territory of India shall be  free is subject to Article 304(b) which provides:               "304.  Restrictions  on  trade,  commerce  and               intercourse   among  States.   Notwithstanding               anything  in Article 301 or Article  303,  the               Legislature of a State may by law--               (               a               )               .               .               .               .             .....                       ....                     (b) impose such reasonable  restrictions               on  the freedom of trade, commerce  or  inter-               course  with  or within that State as  may  be               required in the public interest.                           Provided that no Bill or amendment               for the purposes of clause (b) shall be intro-               duced  or moved in the Legislature of a  State               without  the previous sanction of  the  Presi-               dent." Therefore, there is no violation of Article 30 1 if the case falls  under  Article  304(b) and its  proviso.  In  Kalyani Stores  v. The State of Orissa and Others, [1966]  1  S.C.R. 865  this  Court held that a restriction on the  freedom  of trade and commerce which is guaranteed by Article 301 cannot be justified unless the procedure provided in Article 304 is followed. That was also the view taken in State of Mysore v. H. Sanjeeviah, [1967] 2 S.C.R. 361 and Andhra Sugars Ltd.  & Anr. Etc. v. State of Andhra Pradesh & Ors., [1968] 1 S.C.R. 705. In other words, if the Legislature of a State enacts  a law which imposes such reasonable restrictions on the  free- dom  of trade, commerce or intercourse with or  within  that State as may be required in the public interest and  further that  the Bill or amendment for the purposes of  clause  (b) has  been introduced or moved in the Legislature of a  State with the previous sanction of the President, such  enactment will not offend the Article 301.     The  question then is whether the impugned levy  impedes the free flow of trade and commerce throughout the territory of India, and if it does, whether it fails within the excep- tion  carved  out in Article 304(b). If the levy  imposes  a cess  in  respect of tea estates, it may well De  said  that even though the free flow of tea is impeded in its  movement throughout the territory of India it is in consequence of an indirect or 301 remote  effect of the levy and that it cannot be  said  that Article 301 is contravened. The contention of the  petition- ers  is, however, that it is ostensibly only in  respect  of tea  estates but in fact it is a levy on despatches of  tea. If  that contention is sound, there can be no doubt that  it constitutes  a violation of Article 301 unless the  legisla- tion  is  brought  within the scope of  Article  304(b).  To determine  whether the levy is in respect of tea estates  or is a levy on despatches of tea, the substance of the  legis-

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lation  must be ascertained from the relevant provisions  of the  statute. It cannot be disputed that the subject of  the levy,  the nature of which defines the quality of the  levy, must not be confused with the measure of liability, that  is to say, the quantum of the tax. There is a plenitude of case law  supporting that principle, among the cases being  Union of  India and Others v. Bombay Tyre International  Ltd.  and Others, [1984] 1 S.C.R. 347.     But  what is the position here? The statute speaks of  a levy "in respect of a tea estate", and it says that the levy will  not  exceed Rs.6 on each Kilogram of tea on  the  des- patches  from  such  tea estate of tea  grown  therein.  The statute also provides that in calculating the despatches  of tea  for the purpose of levy of rural employment  cess,  the despatches for sale made at such tea auction centres as  may be recognised by the State Government shall be excluded. And there  is a proviso which empowers the State  Government  to fix  different rates on despatches of different  classes  of tea. There is also s. 4(4) which empowers the State  Govern- ment  to exempt such categories of despatches or  such  per- centage of despatches from the liability to pay the whole or any part of the rural employment cess, or to reduce the rate of  the rural employment cess payable thereon  under  clause (aa)  of sub-s. (2) on such terms and conditions as  it  may specify  by notification. As from 1 October, 1982 the  posi- tion  remained the same except that the first proviso to  s. 4(2)(aa)  excluding the despatches for sale made  at  recog- nised tea auction centres was deleted. The remaining  provi- sions  continued  as before. Now, for determining  the  true nature  of the legislation, whether it is a  legislation  in respect of tea estates. and therefore of land, or in respect of despatches of tea, we must, as we have said, take all the relevant  provisions  of the legislation  into  account  and ascertain the essential substance of it. It seems to us that although the impugned provisions speak of a levy of cess  in respect  of  tea estates, what is really contemplated  is  a levy  on despatches of tea instead. The entire structure  of the levy points to that conclusion. If the levy is  regarded as  one  in respect of tea estates and the  measure  of  the liability  is  defined in terms of the weight  of  tea  des- patched  from the tea estate there must be a  nexus  between the two indicating a 302 relationship  between  the levy on the tea  estate  and  the criteria for determining the measure of liability. If  there is  no nexus at all it can conceivably be inferred that  the levy iS not what it purports to be. The statutory provisions for  measuring the liability on account of the  levy  throws light on the general character of the tax as observed by the Privy  Council  in Re: A Reference under the  Government  of Ireland Act, 1920 and Section 3 of the Finance Act (Northern Ireland),  1934, [1936] 2 All E.R. 111. In R.R.  Engineering Co.  v. Zila Parishad, Bareilly & Anr., [1980] 3  S.C.R.  1, this  Court observed that the standard on which the  tax  is levied  was  a relevant consideration  for  determining  the nature  of  the tax, although it could not  be  regarded  as conclusive  in the matter. Again in The  Hingir-Rampur  Coal Co.  Ltd.  and Others. v. The State of  Orissa  and  Others, [1961] 2 S.C.R. 537, this Court observed that the method  of determining the rate of levy would be relevant in  consider- ing the character of the levy. All these cases were referred to  in Bombay Tyre International Ltd. (supra) where  in  the discussion on the point at page 367 this Court said:               "Any standard which maintains a nexus with the               essential character of the levy can be regard-

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             ed as a valid basis for assessing the  measure               of the levy."     It is apparent that the standards laid down for  measur- ing the liability under the levy must bear a relationship to the  nature of the levy. In the case before us, however,  we find  that the nexus with the tea estate is lost  altogether in the provisions for exemption or reduction of the levy and that  throughout the nexus is confined to despatches of  tea rather  than related to the tea estate. There is nothing  to suggest that a particular tea estate produces only one class of tea, and when reference is made to a certain class of tea the reference identifies a certain class of tea estates.  We may presume that a tea estate produces different classes  of tea  and not one class of tea only. While there must  always be  a nexus between the subject of the levy and the  measure of  the levy that nexus extends into  different  dimensions. Variations considered appropriate for the purpose of  deter- mining  the  measure must correspond to  variations  in  the subject of the levy. If the measure of levy is to vary  with the  despatches  of different classes of tea there  must  be something  in the class of tea concerned which points  to  a reason  located in the particular tea estate or  classes  of tea estates which are made the subject of the levy. So  also if  the measure varies with the centre of sale of  tea,  the variation must relate to a reason to be found in the  nature of the tea estate or classes of tea estates. In other words, there must be a reason why one class of tea is treated 303 differently from another class of tea when deciding upon the rate  to  be applied to different classes of  tea  and  that reason  must be found in the nature of the tea  estate  con- cerned. Ultimately the benefit of exemption or reduced  levy must  be  related to the need for exempting the  tea  estate from that levy or relieving it from part of the normal levy. When the provisions before us are examined in their  totali- ty,  we find no such relationship or nexus between  the  tea estate  and  the  varied treatment accorded  in  respect  of despatches  of different kinds of tea. It seems to  us  that having regard to all the relevant provisions of the statute, including s. 4(2)(aa) and s. 4(4), in substance the impugned levy  is a levy in respect of despatches of tea and  not  in respect of tea estates.     Treating it as a levy on despatches of tea it is evident that the levy must be regarded as constituting a direct  and immediate  restriction on the flow of trade and commerce  in tea  throughout  the territory of India, and  the  levy  can avoid  the  injunction declared in Article 301  only  if  it satisfies  the provisions of Article 304(b) and the  proviso thereto.  For  bringing the legislation  within  the  saving provisions  of Article 304(b) it is necessary that the  Bill or  amendment  should have been introduced or moved  in  the Legislature  of the State with the previous sanction of  the President.  It  is not disputed that the amendments  to  the West Bengal Act made in 198 1 and 1982 did not satisfy  that requirement. Indeed, it appears that the West Bengal Govern- ment  had  sent an earlier Bill to the  President  with  the object  of  levying  a tax on the income from  tea  but  the Presidential assent was not granted. It appears further that the Finance Minister of WeSt Bengal made a statement in  the West Bengal Legislature on 27 February, 1981 stating that he would  introduce the rural employment cess on despatches  of tea.  He  referred to a Bill for amending  the  West  Bengal Marketing  (Regulation)  Act, 1972 having been sent  to  the President and the President not having signified his consent to the amendment.

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   In our opinion, the impugned provisions brought into the West Bengal Act by the amendments in 1981 and 1982 so far as they  purport to relate to tea estates are  unconstitutional and void and cannot be given effect to.     Another aspect of the matter may be considered, and that relates to legislative competence. If the impugned  legisla- tion  were  to be regarded as a levy in respect of  tea  es- tates,  it would be referable to Entry 49 in List II of  the Seventh Schedule of the Constitution which speaks of  "taxes on  lands and buildings". But if the legislation is in  sub- stance legislation in respect of despatches of tea, legisla- tive authority must be 304 found for it with reference to some other Entry. We have not been  shown any Entry in List II or in List III of the  Sev- enth Schedule which would be pertinent. It may be noted that Parliament  had made a declaration in s. 2 of the  Tea  Act, 1953  that it was expedient in the public interest that  the Union should take under its control the tea industry.  Under the  Tea  Act,  Parliament has assumed control  of  the  tea industry including the tea trade and control of tea  prices. Under s. 25 of the Act a  cess on tea produced in India  has also been imposed. It appears to us that the impugned legis- lation is also void for want of legislative competence as it pertains to a covered field.     We  do not consider it necessary to express our  opinion on the other points raised between the parties in this case. In  the result, the writ petitions filed in this  Court  and the  petitions  in the Transferred Cases  are  allowed,  the impugned  amendments effected in the West Bengal  Rural  Em- ployment  and Production Act, 1976 by the amending  Acts  of 1981  and 1982 so far as they purport to relate to  tea  es- tates  are declared void and the petitioners are held  enti- tled  to the refund of cess paid by them under the  impugned statutory provisions. The petitioners are entitled to  their costs. P.S.S.                                             Petitions allowed. 305