TaxTMI 
TaxTMI 
1999 (8) TMI 947
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....nd walnut kernels for a limited period from 1st May, 1982 to 19th August, 1982. In the alternative, it is urged that even if the levy of toll tax is held to be valid, even then, this additional toll tax is not payable by the petitioners. In support of this, is said to be a notification issued by the State Government under which exemption from payment of toll tax has been granted. The challenge to toll tax is broadly being made, inter alia, on the ground that these goods are carried on highways which are maintained by the Central Government under the National Highways Act of 1956. It is urged that the levy being in the nature of fee, therefore, there has to be an element of quid pro quo, i.e., there has to be a corresponding service to be provided by the State Government. As in the maintenance and up-keep of the national highways, the State Government is not spending any amount from the State funds, it is submitted that levy of toll tax by the State Government is not sustainable. 2.. The learned Advocate-General, who has put in appearance on behalf of the State, has sought to make a distinction between the term "toll" and "tolls". Relying upon Blacks Law Dictionary, pag....
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....uality material is supplied to the foreign markets. The process which is undertaken by the petitioners is detailed as under: The walnuts and bitter apricots in shell are first graded by a grading machine. This is done to ensure size segregation. After completing the process of grading, the dry fruits in shell are sorted out manually. This is done so that split nuts, damaged nuts and spoiled nuts as also the oily nuts are separated. After completing the process of sorting, the nuts are subjected to bleaching. They are treated with a chemical solution. This gives them a lustre and attractive appearance. It is this process of bleaching which completely transforms the original look of the nuts and renders the outer shell softer than the original one. After bleaching the nuts are put in another machine for drying process. This is done with a view to attain retention of 3 per cent of moisture content. After drying, the nuts are sorted manually. This eliminates unwanted nuts. On the completion of this process, the nuts are again inspected. This ensures quality control. As regards the walnut kernels and bitter apricots, the process and treatment is the same which is applicable to....
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....ne or two bullocks, etc., etc., have included in the Schedule and each item is levied toll tax at different rates. Again a perusal of the various notifications issued from time to time indicates that the empty trucks and loaded trucks are to be subjected to the payment of tolls at different rates. 7.. The further fact is that a notification came to be on August 20, 1982. This is SRO No. 348. It is by this notification, additional toll tax was levied at Re. 0.60 paise per kg. on dry fruits including almonds, walnuts and walnut kernels. The further case of the petitioners is that in the exercise of power conferred by section 5 of the Tolls Tax Act, exemption was granted from the payment of tolls. This exemption was towards the raw material brought into the State or goods manufactured out of such raw material by small-scale industrial units in the State of Jammu and Kashmir and registered with the Directorate of Industries and Commerce, Directorate of Handlooms/Directorate of Handicrafts. The conditions under which this exemption was to be available have been enumerated in this notification. As per the petitioners, a further notification came to be issued on May 25, 1984. This is S....
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....ayable in terms of SRO No. 115 dated March 31, 1982." "SRO No. 121: In exercise of the powers conferred by section 5 of the Levy of Tolls Act Samvat 1995 (VIII of 1995) the Government hereby direct that the raw material brought into the State or goods manufactured out of such raw materials by the SSI units in the Jammu and Kashmir State registered with the Directorate of Industries and Commerce/Directorate of Handlooms/Directorate of Handicrafts shall be exempt from payment of additional toll leviable at the toll posts, Lakhanpur, railway station Jammu (Tawi), railway station BariBrahmana and railway station Kathua (Govindsar) under the said Act except the goods specified in the list forming annexures 'A' and 'B' hereto: Provided that consignment of such raw materials or goods manufactured out of such raw materials are accompanied by a machine numbered certificate duly sealed and signed by the authorised representative of the unit concerned in three foils in the form as may be prescribed by the Excise Commissioner, which shall be produced before the toll officer in-charge of the toll post concerned: Provided further an officer authorised by the Director of Industries an....
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....kg. This notification is also reproduced below: "SRO No. 342: In exercise of the powers conferred by section 5 of the Jammu and Kashmir General Sales Tax Act, 1962 (20 of 1962), the Government hereby direct that the entry appearing against serial No. 7 of Schedule 'A'-IV to notification SRO No. 80 dated March 12, 1982 shall and shall always be deemed to have been omitted with effect from May 1, 1982 provided that the dealers, who purchased or sold the goods specified in the said entry and which were exported to any place outside the State during the period commencing from May 1, 1982 up to the date of issue of this notification shall within thirty days pay to the Government a sum at the rate of Re. 0.60 per kg." It is on the basis of the aforementioned notifications submitted: (i) that the additional toll tax cannot be levied; (ii) that in any case, the small-scale units which bring raw material in the State or when they obtain raw material locally and this raw material is used for manufacturing process, then they are exempt from the levy of additional toll tax; (iii) that the process undertaken by the petitioners with a view to make the dry fruits and kernels fit fo....
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....termining taxable turnover by weight, so far as sales tax law is concerned, is not known to law. 13.. Before dealing with the various propositions put across by the learned counsel for the petitioners and the learned AdvocateGeneral, appearing for the State, it would be apt to point out that all material issues and more particularly issues raised at Sl. Nos. (i), (ii) and (iii) have already been dealt with and stand concluded by an elaborate and well reasoned judgment of a Full Bench of this Court. This decision is reported as Girdharilal Anand Saraf v. State of Jammu and Kashmir AIR 1969 J &K 113. This aspect of the matter would be adverted to at appropriate place. 14.. Before going into the question as to whether the levy of toll is valid or not, it would be apt to notice the distinction between the "tax" and "fee". This is because the Full Bench in Girdharilal Saraf's case AIR 1969 J&K 113 has held the levy in question in the nature of "tax". If it is not a fee then the question of quid pro quo would not arise. The judicial pronouncements on the subject are noticed below: 15.. Commissioner, Hindu Religious Endowments, Madras v. Shri Lakshmindra Thirtha Swamiar....
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....regard to various forms of taxes, there was an entry at the end of each one of the three Lists as regards fee which could be levied in respect of any of the matters that was included in it. The implication seemed to be that fee had special reference to Governmental action undertaken in respect of any of those matters. 17.. There would be a third class of fee which is neither a tax nor fee but is a charge which the State charges for selling a privilege. One such example is excise fee charged from those who want to trade in intoxicants. This levy stands explained in Har Shankar v. Deputy Excise and Taxation Commissioner AIR 1975 SC 1121. 18.. In Sudhindra Thirtha Swamiar v. Commissioner for Hindu Religious and Charitable Endowments, Mysore AIR 1963 SC 966 the Supreme Court reiterated the principle that a levy in the nature of a fee did not cease to be of that character merely because there was an element of compulsion or coerciveness present in it and added: ".................nor is it a postulate of a fee that it must have direct relation to the actual services rendered by the authority to each individual who obtains the benefit of the service. If with a view to provide a s....
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....hasised the necessity as well as the sufficiency of a broad correlationship between the services rendered and the fees charged and discounted the attempts to go into minutiae to discover meticulously whether or not there was mathematical equality. He said: "For the purpose of finding whether there is a correlationship between the services rendered to the fee payers and the fees charged to them, it is necessary to know the cost incurred for organising and rendering the services. But matters involving consideration of such a correlationship are not required to be proved by a mathematical formula. What has to be seen is whether there is a fair correspondence between the fee charged and the cost of services rendered to the fee payers as a class...............we do not therefore think that any substantial prejudice has been caused to the appellants by reason of the non-supply of the information sought by them." 21.. In Southern Pharmaceutical and Chemicals, Trichur v. State of Kerala AIR 1981 SC 1863, A.P. Sen, J., speaking for the court noticed the broadening of the court's attitude and observed: "It is now increasingly realised that merely because the collections for the ....
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....Panachand Gandhi v. State of Bombay AIR 1954 SC 388 and in Sri Jagannath Ramanuj Das v. State of Orissa AIR 1954 SC 400 in which the position of law laid down by earlier judgment in Commissioner, Hindu Religious Endowments, Madras case AIR 1954 SC 282 was reiterated. 24. The Supreme Court in Sreenivasa General Traders v. State of Andhra Pradesh AIR 1983 SC 1246 observed: "The traditional view that there must be actual quid pro quo for a fee has undergone a sea change in the subsequent decisions. The distinction between a tax and a fee lies primarily in the fact that a tax is levied as part of a common burden, while a fee is for payment of a specific benefit or privilege although the special advantage is secondary to the primary motive of regulation in public interest. If the element of revenue for general purpose of the State predominates, the levy becomes a tax. In regard to fees there is, and must always be, correlation between the fee collected and the service intended to be rendered.......... There is no generic difference between a tax and a fee. Both are compulsory exactions of money by public authorities." 25.. In the light of above decision, the argument sou....
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....lls of a town. Later such franchises for the realisation of tolls began to be granted by Acts of Parliament also. 29.. The meaning attributed to the word "toll" in the Shorter Oxford English Dictionary is this: "1. Orig., A general term for (a) a definite payment exacted by a king, ruler, or lord, or by the State or the local authority, by virtue of sovereignty or lordship, or in return for protection (Obs. exc. Hist.); more especially, (b) for permission to pass somewhere, do some act, or perform some function; or (c) as a share of the money passing, or profit accruing, in a transaction; a tax, tribute, impost, custom duty. A charge for the right of passage along a road (at a turnpike or toll-gate; now abolished in Great Britain), along a river or channel, over a bridge or ferry. A charge for the right of landing or shipping goods at a port; formerly also, a customs duty. A charge made for transport of goods, esp. by railway or canal." 30.. In Webster New International Dictionary "toll" has been described as a tax or dues paid for some liberty or privilege particularly for the privilege of passing over a highway, as a road or bridge, for that of keeping a booth, vending g....
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....Rickards v. Bennett (1823) 107 ER 83 the lord of the manor claimed right to a toll upon all goods brought and delivered or brought elsewhere and brought into and delivered, in a town within the manor. Pointing out the distinction between the "toll thorough" and "toll traverse", Best, J, observed: "Toll thorough is in the highway, but toll traverse is for passing over another's ground. In latter case, the use of the soil is a sufficient consideration for the toll, and it is not necessary to state any other in support of a claim to it. But in the former, it is in a highway; that is, why the proprietor had a right of passage before the grant of toll; and, therefore, the claimant must show that something is done by him beneficial to the person against whom he makes the claim." 35.. In (1829) 1 Mood and M. 416, the right to realize the tolls had been granted by a charter of King John. The right was sought to be supported on the ground that the corporation repaired all the roads and streets in Cambridge. Lord Tenterden, C.J., in summing up to the jury observed that there were two sorts of toll recognised by law-toll traverse and toll thorough-and that if there was a burden o....
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....ture of tax which is imposed by the State and other authorities. The relevant observations are being noticed as under: "The particular tax was 'octroi' and there was no description of the tax. The word 'octroi' comes from the word 'octroyer' which means 'to grant' and it its original use meant 'an import' or 'a toll' or 'a town duty' on goods brought into a town. At first octrois were collected at ports but being highly productive, towns began to collect them by creating octroi limits. They came to be known as 'town duties'. These were collected not only on 'imports' but also on 'exports' see Beuhler: Public Finance (3rd Edn.) p. 426. Grice in his National and Local Finance, p. 303 says that they were known as 'ingate tolls' because they were collected at toll gates or barriers. Normally, they were levied on goods meant for consumption but in Seligman's Encyclopaedia of Social Sciences Volume IX, page 570, 'octrois' are described without any reference to consumption or use. This is how the editors describe octrois: 'As compared with the facilities of the National Government the possibilities of raising revenue by local bodies are quite limited. All forms of indirect taxati....
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....d at the gates of a town or toll barriers. Even octrois have disappeared in Europe and England but they have continued to persist in India. 40.. Thus, tolls are of many kinds and can be levied for various purposes. Besides tolls relating to passage over land the other recognised tolls are market toll, fair toll, stallage toll, canal toll, etc. It is tolls relating to passage which are usually classified in two kinds-toll thorough and toll traverse. A toll thorough has no connection with the ownership of the land and is usually granted to someone who undertakes to do something for the benefit of the person who uses the passage, i.e., makes the road or a bridge or keeps it in repairs. A toll traverse is on the other hand connected with the ownership of the soil and is allowed to be charged for the use of the land by the person liable for the toll. This classification is not applicable to tolls of other kinds which have no connection with passage. 41.. The contention that some sort of consideration is necessary to support the levy of tolls is not always correct. The right to levy a toll is based either on a grant or has been acquired by prescription. If the right had been ....
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....ays. Their factories are not located on the national highways but are located in the interior of the State, and therefore, they have necessarily to use the State highways. The dry fruit is collected from the interior of the State. This is brought on the State highways and ultimately the national highways are also used. Therefore, to say that the State is levying the tax without giving any corresponding service to the petitioners is incorrect. This is being levied in consideration of all the conveniences, advantages and amenities which the petitioners enjoy on account of having their business premises within the State of Jammu and Kashmir. This aspect of the matter has been considered with elaboration by the Full Bench in Girdharilal Anand Saraf's case AIR 1969 J&K 113. What was said in paragraph 10 is being reproduced below: "The word 'toll' has been described in the Webster's New International Dictionary as 'a tax or dues paid for some liberty or privilege particularly for the privilege of passing over a highway, as a road or bridge, for that of keeping a booth, vending goods, etc., in a fair, market or other limited space as a manor, for importing or exporting goods'. In Byrin....
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....hat: (i) the toll tax of the nature which is being levied by the State under the Act is a toll for which there has to be no corresponding element of quid pro quo; (ii) the petitioners are not merely using the national highway but they are making use of State highways and other roads which are being maintained out of State funds; (iii) the State authorities are providing other facilities, therefore, element of quid pro quo is there. Therefore, the argument that the toll tax cannot be levied is found to be without merit and is rejected; (iv) that the aforementioned questions have been considered in depth by the Full Bench in Girdharilal Anand Saraf's case AIR 1969 J&K 113 and the nature of levy has been held to be a tax; (v) that we have not been able to persuade ourselves to take a different view in this regard. 45.. The other argument that the additional toll tax creates a special category for dry fruits like almonds, walnuts and walnut kernels, be also examined. 46.. It be seen that in the matter of levy of tax the concept of reasonableness is normally not there. The petitioners were supposed to show that the tax is excessive. Beyond making a bare assertion, n....
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.... Srinagar, Baramula and Uri is a national highway. It figures at Sl. No. 1-A of the Schedule. So far as other highways in the State are concerned, these are not included in the Schedule appended to the aforementioned Act. As the petitioners have based their arguments on the provisions contained in sections 4, 7, 8 and 10 of the Act, these provisions are being noticed as under: "Section 4: National highways to vest in the Union.-All national highways shall vest in the Union, and for the purposes of this Act 'highways' include- (i) all lands appurtenant thereto, whether demarcated or not; (ii) all bridges, culverts, tunnels, causeways, carriage ways and other structures constructed on or across such highways; and (iii) all fences, trees, posts and boundary, furlong and mile stones of such highways or any land appurtenant to such highways. Section 7: Fees for services of benefits rendered on national highways.-(1) The Central Government may, by notification in the official Gazette, levy fees at such rates as may be laid down by rules made in this behalf for services or benefits rendered in relation to the use of ferries (permanent bridges the cost of construction of each of w....
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....and the period of such agreement. (3) A person referred to in sub-section (1) shall have powers to regulate and control the traffic in accordance with the provisions contained in chapter VIII of the Motor Vehicles Act, 1988 on the national highway forming subject-matter of such agreement for proper management thereof. Section 10: Laying of notifications, rules, etc., before Parliament.-All notifications or agreements issued or entered into under this Act shall be laid before both Houses of Parliament as soon as may be after they are issued or entered into. 50.. On the basis of the aforementioned provisions, the following arguments have been raised: (i) that as the barrier located at Lakhanpur is located on the national highway and as this highway vests in the Union of India, therefore, the State Government has no power to levy any tax. (ii) that even if it be presumed that there is some arrangement between the State Government and the Union of India for collection of taxes then that arrangement has to be in the shape of a notification. If it is not so, then it cannot be taken note of. 51.. The stand of the respondent-State is that vesting of the highway in the Uni....
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....egarry to have said: 'Where the Legislature delegates its law-making power to a subordinate authority and reserves the right to review the regulations made by such subordinate body, and if necessary to disallow them, and attaches conditions to secure that it shall have the opportunity to exercise its power of review as the supreme legislative authority, such conditions are mandatory.'" It was further observed: "Academic lawyers like Sir C.K. Allen, Barnard Schwartz, R.R. Megarry (now Justice Megarry) and Prof. Kersell have all been greatly agitated about the problem of 'non-laying' and very rightly too. One of the major problems of any liberal democracy, particularly a modern welfare State is that of controlling excessive executive action. The desire to attain the objective of securing 'social, economic and political justice' necessarily results in intense activity in the legislative and the executive fields. Unable to deal with matters of detail, the Legislature is too often content to lay down the guidelines and leave the details to be worked out by expert executives. It may perhaps be said that in recent years subordinate legislation has grown in geometrical prog....
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....ing under the national highways in the Union of India does not take away the ownership of the State Government. (v) That levy of toll under the Tolls Act is in the nature of a tax and not a fee and therefore, there has to be no relationship between the services rendered and the collection of the levy. The toll in question is being charged for the use of the State Highways, and therefore, merely because some part of the road falls on the national highways would be of no consequence. (vi) that the levy of toll tax does not in any way interfere with the inter-State trade and commerce. 55.. As to what is meant by the term vest is again a matter which has been deliberated upon by the Full Bench. The reasoning given by the Full Bench in Girdharilal Anand Saraf's case AIR 1969 J&K 113 that the State Government is not divested of ownership is an opinion to which no exception can be taken. The term vest was considered by the Supreme Court in the case reported as AIR 1957 SC 344 (Fruit & Vegetable Merchants Union v. Delhi Improvement Trust). What was said in paragraph 16 is being reproduced below: "In the case of Coverdale v. Charlton (1878) 4 QBD 104(C), the Court of Appeal on a....
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....entre of the earth below the surface; I cannot make up my mind to say that is the meaning of the word 'vest' in section 149......... What then is the meaning of the word 'vest' in this section? The Legislature might have used the expression 'transferred' or 'conveyed' but they have used the word 'vest'. The meaning I should like to put upon it is that the street vests in the local board qua street; not that any soil or any right to the soil or surface vests, but that it vests qua street......... The meaning I put upon the word 'vest' is, the space and the street itself, so far as it is ordinarily used in the way that streets are used shall vest in the local board....That would show that 'street' comprehends what we may call the surface, that is to say, not a surface bit of no reasonable thickness, but a surface of such a thickness as the local board may require for the purposes of doing to the street that which is necessary to it as a street and also of doing those things which commonly are done, in or under the streets; and to that extent they had a property in it." 57.. The Full Bench also took note of various other authorities in which same view was expressed. These are Rolls....
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....ome benefit; if it is not, then they would not be entitled to any benefit. This aspect of the matter is now being dealt with. 61.. The question as to whether the process which is being undertaken by the petitioners falls within the term "manufacture" may now be examined. 62.. The details of the process undertaken by the petitioners have been noticed above. This basically consists of washing, cleaning and drying. Some of these processes are mechanical, some are manual. Same process is resorted to when kernels are taken out of shells. The question arises as to whether this process would be covered by the term "manufacture". 63.. The word "manufacture" is derived from the Latin word "manu", which means by hand and "facture" from "facere" means to make. In Cassel's Compact English Dictionary, "manufacture" means as "to make or work up for use, produce for fashion by labour or machinery specially on a large scale". According to Shorter Oxford Dictionary, "manufacture" means the action or process of making by hand, the making of articles or materials (now on a large scale), by physical labour or mechanical power. 64.. In Union of India v. Delhi Cloth and General Mills Co. Ltd....
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....e that is dressed. The ginned and baled cotton and the cotton seed, as well as the dressed chicken, have gone through a processing stage. But neither has been 'manufactured' in the normal sense of the word." 68.. In Nilgiri Ceylon Tea Supplying Co. v. State of Bombay [1959] 10 STC 500 (Bom), the question was whether blending of different brands of tea purchased in bulk from the market by a dealer according to a formula evolved without the application of mechanical or chemical process can be treated as "manufacture". It was held that although some skill was involved in the preparation of tea mixtures but that could not be regarded as processing. The commodity remained the same. There was no alteration in the nature and character of the goods in the preparation of tea mixtures as contemplated by the said Act. Blending and packing of tea was again held to be not a process covered by the term "manufacture" by the Karnataka High Court in the case reported as Lipton India Limited v. State of Karnataka [1994] 95 STC 225. 69.. Plain cashew nuts were purchased in tins. They were sold in plastic bags after frying and applying spices to make them tasty. This process was held to be no....
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....ir strings were purchased. These were sorted out, cleaned and knitted into patties for export. The process was held to be not covered by the term "manufacture"-Prabhat Patti Suppliers v. Commercial Taxes Officer, Jodhpur [1992] 84 STC 302 (Raj). 75.. The assessee, an authorised contractor was engaged in the purchase of firewood. He removed trees from the forest, brought the same to his business premises and chopped and sold the same as firewood. It was observed that this process does not involved any activity to be covered by the term "manufacture". See Pyare Lal Khushwant Rai v. State of Punjab [1974] 34 STC 341 (P&H). Again where a log either by manual labour or mechanical process is converted into a plank or a rafter, a new substance does not come into existence and this process is not covered by the term "manufacture". Such was the view expressed in Sidhu Ram Atam Parkash v. State of Haryana [1974] 34 STC 344 (P&H). Standing timber trees were felled. They were cut and converted into ballis. This process was held to be not covered by the term "manufacture" in Mohanlal Vishram v. Commissioner of Sales Tax, Madhya Pradesh, Indore [1969] 24 STC 101 (MP). Small pieces of wooden p....
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....aler, by employing the processes in question was able to sell the cleaned mixture of polyester and cotton fibre of different colours separately and at a higher price, it could not be said that the dealer was selling different goods having a distinct identity and distinct use. The processes in question did not amount to or result in manufacture of a new commercial commodity. This view was expressed in State of Gujarat v. Polythreads [1991] 82 STC 282 (Guj). The same view was expressed in regard to the coir products. These were subjected to sheaving, smoking and stencilling. This process was held to be outside the scope of the word "manufacture".-See K.G. Vijayan v. State of Kerala [1990] 79 STC 243 (Ker). 80.. Thus on a conspectus of all the aforesaid decisions, it can be said that the following ingredients are necessary to constitute "manufacture": (a) there must be change in substance; (b) a different article must emerge having a distinctive character and use from the raw material by the use of physical labour or by mechanical process; (c) the articles produced either by physical labour or by mechanical process will be on large scale and will pass as a commercia....
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....is on the sale. Therefore, the argument put across by the learned counsel for the petitioners in this regard cannot be accepted. 85.. In view of the above discussion, we are of the opinion: (i) that there is no generic difference between a tax and fee. Compulsion is not the hall-mark of distinction between the two. Again the money collected need not go into a separate fund. If it goes into a consolidated fund, the nature of collection is altered; (ii) that in this case, what is being collected, is a tax and not a fee. This is being collected in the exercise of sovereign power vested in the State. This levy was being charged before the Constitution came into force; (iii) that even if the toll in question is treated as a fee, even then there has to be no corresponding rendering of service. This is because the toll in question is in the nature of toll traverse and not toll thorough. In the case of 'toll traverse', mere use of the soil is sufficient consideration for the levy of the toll; (iv) that the petitioners are using not only the national highways but they are using State highways also. Therefore, even if the concept of quid pro quo is made applicable, even the....