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TMI Blog1950 (3) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... vy of the excise duty and therefore those provisions were contrary to the provisions permitting the levy of the octori duty. It is wrong to think two independent imposts arising from two different sets of circumstances were not permitted in law. In our opinion, therefore, there is nothing in the Excise Act to make its provisions contrary to the provisions of Section 66 (1) (e), Central Provinces Municipalities Act or the levy of octroi duty under the same. The appeal therefore fails and is dismissed. - 3/1948 - - - Dated:- 14-3-1950 - (CONSTITUTION BENCH) Kania, C.J.I., Fazl Ali, Patanjali Sastri, Mahajan, B.K. Mukherjea and S.R. Das, JJ. [Judgment per : Kania, C.J.]. - This is an appeal from the judgment and order of the Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, excise duty was levied by the Central Government the levy of the octroi duty was not in consonance with Section 100, Government of India Act, 1935, and was ultra vires the Provincial Government. The High Court rejected the appellant's contention and disagreed with the view of the Appellate Commissioner. The High Court however, granted a certificate under Section 205(1), Constitution Act, and the appellant has come in appeal to this Court. 2. The Central Provinces Municipalities Act was passed in 1922 and the relevant notifications fixing the rates of octroi duty were issued in 1928. No question about the validity of the Act when passed, or of the notifications issued in pursuance thereof has been raised before us. The argument o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cisable articles". So read the levy of octroi duty on the facts of this case was invalid. In reply to the argument that Section 292, Government of India Act, kept alive the old Provincial Municipalities Act, and the right to levy octroi duty was saved under Section 143, Constitution Act, it was urged on behalf of the appellant that the provisions of the Excise Act were contrary to the right to levy octroi duty and as that Act was passed in 1944 the right to levy octroi duty saved by Section 143, Constitution Act, had lapsed. It was argued that although there was no express provisions in the Excise Act to that effect, the definition of "excisable goods" and "manufacture" read with Entry 9 in Schedule. I and the charging Section 3 in the Act ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he exact wording of Entry 49 of List II of Schedule 7, Constitution Act. Prima facie, therefore, there is no reason to consider the levy of the octroi duty under the Provincial legislation invalid. Such levy remained unaffected by reason of Section 292, Constitution Act. The argument of the Appellant is that the levy of the octroi duty being at a stage after the excisable article, viz., tobacco, came into existence and became liable to excise duty under the Excise Act, the levy of octroi duty before bidis were made from tobacco, is invalid. In support of this argument the definition of `excisable goods', `manufacture' and the Entry 9 in the Schedule to that Act were relied upon. The error underlying the argument of the appellant is the assu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... or-General in Council v. The Province of Madras, 1945 F.C.R. 179 : [A.I.R. (32) 1945 P.C. 98], the Judicial Committee approved of the distinction drawn in this case between the excise duty and a tax on sale. There the question arose in respect of tax on the sale of excisable goods. Their Lordships observed as follows : * * * * * 11. This discussion clearly shows that the relevant question is what is the nature of the tax. Excise duty is a tax on manufactured goods. Octroi duty is a tax levied on the entry of goods within a particular area. Un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the first place, the approach to the question itself is wrong. When a particular legislation falls within the exact words of an entry in the Provincial List, under Section 100 it is valid and no question of reconciliation arise. A similar argument advanced in regard to a supposed conflict between Entry 19 of List I and Entry 31 of List II was rejected by us in case No. 27 of 1949. Miss Kishore Shetty v. The King, 1949 F.C.R. 650. In the present case, if the question of the validity of the Provincial legislation arises, on the interpretation of Entry 49 in List II it appears that the answer must be in favour of the validity of the legislation. The decision in Administrator, Lahore Municipality v. Daulat Ram, 1942 F.C.R. 31, does not help th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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