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TMI Blog2005 (7) TMI 626X X X X Extracts X X X X X X X X Extracts X X X X ..... rt fee in exercise of power under sub-section (1) of section 76 of the CF Act. After the issuance of the aforesaid notification, the Chairman of the Sales Tax Appellate Tribunal issued a circular, which is also under challenge. 2. The petitioners are assessees under the Commercial Tax Laws, to wit, the Central Sales Tax Act, the Kerala General Sales Tax Act or the Value Added Tax Act. As against assessment orders and allied matters, they have statutory remedies by way of appeal to the appellate authorities or the Tribunals, as the case may be, as are constituted under the said enactments. 3. Section 76 of the CF Act reads as follows: "76. Legal benefit fund.- (1) Notwithstanding anything contained in this Act or any other law for the time being in force, it shall be competent for Government to levy an additional court fee, by notification in the Gazette, in respect of appeals or revisions to Tribunals or appellate authorities, other than civil and criminal courts, at a rate not exceeding one per cent of the amount involved in the dispute in cases where it is capable of valuation and in other cases at a rate not exceeding one hundred rupees for each appeal or revision. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his does not form part of the notification, but is intended to indicate its general purport.) As per sub-section (2) of section 76 of the Kerala Court Fees and Suits Valuation Act, 1959, the Government have constituted the legal benefit fund with effect from April 5, 2002 vide notification Kerala Legal Benefit Fund with effect from April 5, 2002 vide notification published as S.R.O. No. 225/2002 dated April 5, 2002. Subsection (1) of section 76 of the Act empowers the Government to levy additional court fee in respect of appeals or revisions to Tribunals and appellate authorities by notification in the Gazette. Government have decided that an additional court fee is to be levied at the rate of 0.5 per cent of the amount involved in the dispute in cases where it is capable of valuation and in other cases at the rate of rupees fifty in each case. The additional court fees so levied by Tribunals and appellate authorities on appeals or revisions as the case may be shall be credited to the Kerala Legal Benefit Fund. This notification is intended to achieve the above object." 6. The circular issued by the Chairman of the Sales Tax Appellate Tribunal, after the issuance of the afores ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2002 and the circular of the Chairman of the Appellate Tribunal are impugned in these writ petitions. 8. The arguments advanced on behalf of the petitioners can be noticed as follows: (a) Section 76 of the CF Act, to the extent it imposes levy of fee on proceedings before the Tribunals, goes beyond the legislative competence of the State. (b) Even assuming the existence of such power, the impugned provision is one imposing an additional court fee and hence, can be imposed only in cases where the levy of a court fee is provided for, by the Act itself. (c) The effect of section 2(2) of Act 10 of 1960 is that it takes away all levy, including that by section 76 and therefore, the chargeability of a fee under section 76 gets confined to those proceedings, which do not get excluded under section 2(2). By reason of section 2(2) of the CF Act, the provisions as to payment of fee, as are contained in the statutes providing the appeals/revisions govern such proceedings and hence, there can be no question of imposing any additional court fee. (d) The imposition by section 76 of the CF Act amounts to an unreasonable restriction on the right of appeal and it impairs such right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ircular issued by the Chairman of the Tribunal is only clarificatory and is, in fact, not in excess of the notification. 10. The issues that arise for determination are considered as follows: Legislative competence to make law as provided by section 76 of the CF Act: 11. The CF Act received the assent of the President on July 27, 1960 and was published in the Kerala Gazette dated July 30, 1960 and came into force on the appointed day, February 1, 1962, as notified by the Government in terms of section 1(3) of that Act. Entry 3 in List II (State List) of the Seventh Schedule of the Constitution, as it then stood, provided administration of justice as a distinct topic since entry 3, then, read as follows: "3. Administration of justice, constitution and organization of all courts except the Supreme Court and the High Court; officers and servants of the High Court; procedure in rent and Revenue Courts; fees taken in all courts except the Supreme Court". 12. None of the legislative heads, the items in the Lists, is to be read in a narrow or restricted sense and each general word should be held to extend to all ancillary and subsidiary matters which can fairly and reasonably be sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... within the competence of the State Legislature and it continues to be so even while the impugned notification was issued as per S.R.O. No. 226/2002 since even by that time, there was no law made by the Parliament for constitution of any legal benefit fund as provided by section 76 of the CF Act and therefore, no question of repugnancy arises, in spite of the absence of concurrence, since as of now, there is no such requirement. The impugned provision and the notification are not made referable to entry 54 or entry 66 of the State List and are sustainable, in so far as legislative competence is concerned, with reference to entry 11A in the Concurrent List. 16. Competence to make laws for levy, collection and enforcement of taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of the Union List rests with the State, by virtue of entry 54 of List II. The competency to make laws for levy, collection and enforcement of 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 rests with the Union, by virtue of entry 54 of List II. Entry 92 in List I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oad and general correlation between the amount so raised and the expenses involved in providing the services, the impost would partake the character of a 'fee' notwithstanding the circumstance that the identity of the amount so raised is not always kept distinguished but is merged in the general revenues of the State and notwithstanding the fact that such special services, for which the amount is raised, are, as they very often do, incidentally or indirectly benefit the general public also. The test is the primary object of the levy and the essential purpose it is intended to achieve." 19. As already noticed, the imposition is not as a fee for an appeal, but an imposition to satisfy the mandate of article 39A of the Constitution, for which the State has the competence to legislate, the source being entry 11A of List III as it now stands, when the notification is issued. Hence, in any view of the matter, the imposition is not void and inoperative. Rule of laying: 20. Section 85 of the Act provides only a rule of simple laying. The force of the statute from the date of its publication does not depend upon the laying. A simple laying requirement, providing no affirmative pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n for the purpose of the said levy has to be the value of the amount of the tax in dispute in the appeals/revisions which are filed under the Commercial Tax Laws, of which alone we are now concerned. 24. The adoption of the machinery under the KGST Act for the collection and enforcement of the tax payable under the Central Sales Tax Act, 1976 makes the provisions of the KGST Act applicable to such matters. Therefore, the Tribunal constituted under the KGST Act is authorised to hear the matters relating to the CST Act. The provisions of section 76(1) of the CF Act get attracted to such situations also. The levy of a fee, as already noticed, is a matter of fiscal policy and the lack of perfection in a legislative measure does not necessarily imply its unconstitutionality. As rightly pointed out on behalf of the State, one ought not to be heard to contend that no law that arrived after him shall bind him. 25. However, as laid down by the apex Court in State of Bombay v. Supreme General Films Exchange Ltd. AIR 1960 SC 980 and by the division Bench of this Court in Usha v. FCI 1997 (1) KLT 264, and in Procurator, R.C. Diocese, Calicut v. State of Kerala (2003) 1 KLT 618, though the pr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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