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TMI Blog1970 (11) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... if hereafter the education cess is sought to be levied under the authority of the amended Schedule. Appeal dismissed. - Civil Appeals Nos. 179 to 235 of 1969 and 130 to 133 of 1970 - - - Dated:- 18-11-1970 - SHAH, J.C., MITTER, G.K., HEGDE, K.S., GROVER, A.N. AND RAY, A.N., JJ. JUDGMENT For the Appellant: M. C. Chagla, R. Gopalakrishnan and S. P. Nayar For the Respondent: M. C. Setalvad, B. Datta, P. N. Tiwari, M. K. Nambyar, K. N.. Bhatt, S. Shivaswamy and K. L. Hathi, K. L. Hathi, R. V. Pillai and, P. Kesava Pillai, Shyamala Pappu, J, Ramamurthy and Vineet Kumar, M. Veerappa Shah, J. Under the Mysore Excise Act, 1901, the Government of the State was authorised to grant exclusive privilege of selling by retail Indian ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vol. I, at p. 334 read as follows :- "Formerly, the local cess was being levied on the following items (i) (ii) Toddy-both date and bagani. (iii) But in the marginal note dated G.O. (F.I. 924354 S.R. 145-06-1 dt. 16th June, 1907), the following directions have been given:- (a) The separate levy of local cess on tree tax is abolished and the cess at present levied merged- in the main item, the rates of tree-tax, on the various kinds of trees being as follows :- (b) Levy of a local cess on toddy shop rental is also abolished; (c) The cess on tree-rent is merged in the main item itself. N.B. :-1/17th of the tree-tax, the shop rental and tree-rent collected should be credited to Local Funds, in lieu of the one-anna cess ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dies in Mysore and at such rates as are specified in the Schedule to this Act." After the Mysore Elementary Education (Amendment) Act, 1955, the relevant provisions of the Schedule read as follows Items on which cess Maximum rate may be levied. of levy. All items of land revenue, forest revenue, and excise revenue on which education cess is now being levied. 9 pies in the rupee. The Government of Mysore levied the "education cess" from excise contractors in the old Mysore Area of the New State of Mysore. From time to time large amounts were collected by the Government of Mysore. A large number of excise contractors moved petitions under Art. 226 of the Constitution before the High Court of Mysore challenging the, levy of "education ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... merely knowledge of, but also anxiety to comply with Art. 265 of the Constitution, and that was clear from the fact that neither the original Education Act nor the Amending Act of 1955 contained any provisions for validating any levy or collection made without the authority of law., Accordingly the High Court held that the State was incompetent to levy the education cess because it did not fall within the charging provision. After expressing that opinion the High Court proceeded to interpret the Schedule and held that the Education Act does not impose the charge of education cess on Arrack shop-rent, toddy "shop-rent" and beer "shop-rent" "tree-tax" and "treerent" and that "shop-rent" is not a duty of excise and hence education cess cannot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ailing at the same or lower rates on similar goods manufactured or produced elsewhere in India:-- (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics; but The taxing power in respect of alcoholic liquors for human consumption is therefore circumscribed,: it may only be levied as excise duty, that is a duty levied on the manufacture and production of alcoholic liquors,: R. C. Jall v. Union of India([1962] Supp. 3 S.C.R. 436). Mr. Chagla for the State urged that the High Court was in error in holding that "shop-rent" was not excise revenue. But this quest-Ion is concluded by a judgment of this Court. In M/s. Guruswamy Company v. State of Mysore Ors. ([1967] S.C.R. 548) this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gment. "Shop-rent" is accordingly not excise revenue within the meaning of the Schedule to the Mysore Elementary Education Act, 1941 and no education cess could be, levied on "shop-rent". Mr. Chagla however contended that in any event the State is entitled to levy "tree-tax," and "tree-rent" at the rates prescribed. It is unnecessary for the purpose of this case to determine whether "tree-tax and "tree-rent are excise revenue, within the meaning of the Schedule to the Mysore Elementary Education Act. ranting that "tree-tax" and "tree-rent are excise revenues, those imposts ceased to be levied separately after the year 1907 : they merged in "shop-rent" and a fixed percentage was regarded as local cess and diverted to the Local Bodies. I ..... X X X X Extracts X X X X X X X X Extracts X X X X
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