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TMI Blog1966 (4) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... He is also registered as a dealer in Ward No. 5, Delhi, under the Delhi Act. Both the petitioners are licence-holders under the Punjab Excise Act, 1914, as extended to Delhi (hereinafter described as the Excise Act), petitioner No. 1 paying a licence fee of Rs. 25 per annum and petitioner No. 2 Rs. 100 per annum. Petitioner No. 2 purchases in wholesale denatured spirit from distilleries in U.P. etc., and sells the same to dealers in denatured spirit in Delhi and elsewhere including petitioner No. 1. The wholesale purchase price of such spirit for distilleries is about Rs. 1-1-0 per imperial gallon. An excise permit fee at the rate of Rs. 3 per imperial gallon is, according to the averment in the writ petition, being charged under the authority of the Chief Commissioner, Delhi (respondent No. 1 in this Court) either under rule 5.25-A(2)(a) of Delhi Liquor Licence Rules or under rule 7(2)-D of Delhi Liquor Permit and Pass Rules. Petitioner No. 1 as purchaser of denatured spirit for sale in retail is charged Rs. 4-5-0 per imperial gallon by petitioner No. 2. Petitioner No. 1 submitted his quarterly return of his turnover of sales, inclusive of denatured spirit, to the Sales Tax Office ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er, filed in answer to the writ petition, it is pleaded by way of preliminary objection that the writ petition is not maintainable because the Chief Commissioner has already referred the subject-matter of the present petition to this Court under section 21 of the Delhi Act. It is denied that petitioner No. 2 deals exclusively in wholesale denatured spirit and it is averred that he sells denatured spirit direct to actual consumers as well. The charge of Rs. 3 per imperial gallon levied by the Chief Commissioner has been described to be a vend fee levied under section 34 of the Excise Act and not an excise duty as provided under Chapter V thereof. It is further pleaded that no excise duty is leviable on denatured spirit because the same is an alcohol unfit for human consumption and is, therefore, not covered by item No. 51 of List II of the Constitution. Charge of vend fee on denatured spirit, therefore, does not exempt it from the levy of sales tax under item No. 40 of the Second Schedule appended to section 6 of the Delhi Act. The challenge to the vires of the Delhi Liquor Licence Rules and Delhi Liquor Permit and Pass Rules has been controverted and it has been averred that no rea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 20; or (c) manufactured in any distillery established, or any distillery or brewery licensed under section 21 Provided as follows: (i) duty shall not be so imposed on any article which has been imported into India and was liable on importation to duty under the Indian Tariff Act, 1894, or the Sea Customs Act, 1878; Explanation.-Duty may be imposed under this section at different rates according to the places to which any excisable article is to be removed for consumption, or according to the varying strengths and quality of such article." Section 34 dealing with fees for terms, conditions, and form of, and duration of licences, permits and passes reads as under: "34. (1) Every licence, permit or pass granted under this Act shall be granted (a) on payment of such fees, if any, (b) subject to such restrictions and on such conditions, (c) in such form and containing such particulars, (d) for such period, as the Financial Commissioner may direct. (2) Any authority granting a licence under this Act may require the licensee to give such security for the observance of the terms of his licence, or to make such deposit in lieu of security, as such authority may thin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n form 1-17 for vend of denatured spirit will be granted on fixed fees in addition to the fees assessed according to the sale thereunder. The following are the rates of fixed fees: (i) Rs. 25 per annum for a licence for one year to possess a quantity of five hundred gallons at one time. (ii) Rs. 100 per annum. for a licence for one year to possess quantity exceeding five hundred gallons at one time. (2)(i) The assessment shall be based on the following scales: (a) three rupees per imperial gallon, or (b) six rupees per dozen quart bottles in possession of the licensee. The fixed fee is payable in advance and assessed fee shall be recovered at the time of issue of the permit in form L-32 as prescribed in Delhi Liquor Permit and Pass Rules. This shall take effect from 1st April, 1939. " It is most unfortunate that no official publication has been made available to us from which these rules can be read. Even the State counsel had no official copy with him because, according to his information, there was only one copy available with the Government. Parties have, however, agreed that the two rules as reproduced above, are correct. This Court will have to say something on t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .R. 947., but I am unable to see how the ratio of that judgment helps the petitioners in the present case. Reference has also been made to the Commissioner, Hindu Religious Endowments v. Shri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt[1954] 5 S.C.R. 1005., for the purpose of supporting the argument that the levy of Rs. 3 is not a fee. In this decision, distinction has been drawn between a tax and a fee. The former is stated to be a compulsory exaction of money by any public authority for public purposes enforceable by law which is not payment for services rendered, whereas the term "fee" has been generally defined as a charge for a special service rendered to individuals by some governmental agency. It has not been found possible in this decision to formulate a definition of fee that would apply to all cases because there are various kinds of fees. The amount of fee levied, however, is supposed to be based on the expenditure incurred by the Government in rendering the service, though in many cases such expenses are arbitrarily assessed. The distinction between a tax and a fee has also been stated in this decision to lie primarily in the fact that a tax is levied as part of a co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is Court will not assume that the impugned levy of Rs. 3 is such a duty. This conclusion seems to me to be indisputable and also inescapable. In the present proceedings, there is neither sufficient data nor have the petitioners laid any sound and clear foundation in the writ petition for enabling this Court to determine what other kind of levy Rs. 3 can be considered to be. The petitioner, if so advised, may raise the point of the legality or propriety of this levy in appropriate proceedings permissible under the law. This petition, however, cannot deserve to succeed. Before concluding, I would be failing in my duty if I do not point out to the authorities concerned that in this Republic, which is ruled by law, it is of the utmost importance that the provisions of law which the citizens are expected to obey and which affects and controls their daily life and activities, must be easily ascertainable and those provisions must not be kept hidden in a secluded corner of the secretariat. The professional lawyers, the Courts and the citizens concerned are entitled in our set-up to demand that books containing laws in force in this Republic are made easily available to those who may des ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llow the decision in the writ petition. Our answer, therefore, to the question is in the negative. There would be only one order as to costs both in this reference and the writ petition. There is one aspect to which I must also refer before finally closing the judgment. Both the writ petition and the reference are of the year 1958 and it has taken 8 years for this controversy to be disposed of by this Court. In taxation matters, it appears to me to be the utmost importance that the question of a citizen's liability and of the State's rights should be determined within a reasonable period of time, for, whether the citizen is made to pay a tax which may ultimately be found to be unauthorized or whether the State is deprived of its revenue which is ultimately found to be legitimate, in either event, it is better for both that such controversy is not kept pending for an unduly long time. It may in this connection be remembered that the first and paramount necessity for social order, personal liberty, private property and general national progress is the maintenance of efficient civil Government; and Government cannot exist without revenue. The taxpayer too has to adjust his affairs a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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