TaxTMI 
TaxTMI 
2018 (9) TMI 2141
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....mber 2000. The Act was published in the Official Gazette of Government of Goa on 16 October 2000. 4. The State of Goa, in the exercise of powers under Sections 4, 5 and 8 of the Goa Cess Act, framed the Goa Rural Improvement and Welfare Cess Rules, 2006, the Goa Cess Rules. The Goa Cess Rules were notified on 23 January 2006 and published in the Official Gazette on 24 January 2006. A Corrigendum was published in the Official Gazette on 27 January 2006. In exercise of powers under Section 1(3) and 3(1) of the said Act, the State Government issued a Notification on 8 October 2010 and Rule 3(1) was substituted. Under the exercise of powers under Section 3(2) of the Goa Cess Act, the State Government revised the extent of the rate of cess on certain materials which were specified in Schedule I appended to the Goa Cess Act. 5. A notice dated 31 August 2010 was served on the Petitioner, calling upon the Petitioner to deposit an amount of Rs. 1088000/- as cess under the provisions the Goa Cess Act for the period from April 2010 to June 2010. The Petitioner, by this Petition, has challenged the action initiated by the State of Goa under the Goa Cess Act and the Rules. The Petitioner has ....
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....h the challenge on the ground of constitutional validity of the Act and the Rules. In the second part, we deal with the arguments on the retrospective operation. There was a considerable overlap in the arguments advanced by the Counsel for the Petitioner, and we have taken the arguments together for consideration. 10. On the legislative competence of the State, the challenge in brief is as follows: Article 265 mandates that no tax shall be levied or collected, except by the authority of law. Articles 246 and 248 of the Constitution of India gives primacy to the Parliament to enact laws. The power of the State Legislature under List II is made subject to the power of legislation in respect of List I and List III of the Seventh Schedule. Entry 54 of List I, relates to regulation of mines and mineral development to the extent to which Parliament declares such regulation and development under the control of the Union by law. This has to be read with the power of the State legislature in Entry 23 of List II, which is subject to the power of the Parliament. Once the Parliament has legislated under Entry 54, the legislative power of the State to enact laws stands denuded. The Parliament ....
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....including taxation, is occupied by the MMDR Act. The decisions are, The Hingir-Rampur Coal Co. Ltd. & ors. vs. The State of Orissa & ors., AIR 1961 SC 459; State of Orissa & Anr. vs. M/s. M.A. Tulloch & Co. & Anr. AIR 1964 SC 1284; Baijnath Kadio vs. State of Bihar & ors. 1969 (3) SCC 838; India Cement Ltd. vs. State of Tamil Nadu & Ors. 1990 (1) SCC 12; Synthetics and Chemicals Ltd. & Ors. vs. State of U.P. & Ors. 1990 (1) SCC 109; and The Quarry Owners Association vs. State of Bihar & Ors. AIR 2000 SC 2870. The decision of the Constitution Bench of five judges in State of W.B. vs. Kesoram Industries Ltd. & Ors., (2004) 10 SCC 201 is contrary to the decisions to the above decisions and of the benches of the seven learned judges in India Cement Ltd., and Ors., vs. State of Tamil Nadu and Ors. AIR 1990 SC 85 and State of U.P. and Anr., vs. Synthetics and Chemicals Ltd., and Anr., (1991) 4 SCC 139. Since the decision in Kesoram Industries does not interpret or clarify the decisions in India Cement or Synthetics and Chemicals, the High Court is bound to follow the opinion of the larger bench of the Supreme Court. Even assuming the decision in Kesoram Industries is followed, the State ....
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.... meaning not the entire field of mines and mineral development. The Union has taken it under its control, only to the extent what is provided under the MMDR Act and not the entire field of regulation of mines and mineral development. The MMDR Act is not a complete Code. Various aspects which are incorporated in the Goa Cess Act are not covered in the MMDR Act. The preamble of the Goa Cess Act shows that it is to provide additional revenue for infrastructure and to promote the welfare of the people in the rural areas. There is no conflict or overlapping between the MMDR Act and the Goa Cess Act. The measures employed in assessing the tax is distinct than the nature of the tax. There is a distinction between the subject matter of tax and the standard by which the amount of tax is measured. There is a distinction between the general subjects of legislation and the field of taxation. Merely because the methodology or mechanism adopted for assessment and quantification is similar, the two taxes cannot be said to be overlapping. Denial to the State is only to the extent of the declaration made by the Parliament and power to tax the mineral is with the State. So long as a tax or fee on mi....
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....n of the material under the Schedule, affecting the health of people in the rural areas. In pith and substance, the Goa Cess Act falls under Entry in respect of transportation and public health and assuming that there is an encroachment in respect of the minerals, it is incidental. The collection from the Goa Cess Act is used in respect of the areas affected by plastics, spillage of material, by providing medicines to the Health Centers and other development works. Even assuming the impost is a tax on mineral it is within the legislative competence of the State under Entry 50 of List II of VIIth Schedule as held in Kesoram's case. The State referred to and relied on the following decisions. R.K. Garg and ors. vs. Union of India (UOI) and ors. (1981) 4 SCC 675; Sainik Motors, Jodhpur & ors. vs. The State of Rajasthan AIR 1961 SC 1480; Saurashtra Cement and Chemical Industries and anr. vs. Union of India and ors. (2001) 1 SCC 91; M.P.V. Sundararamier & Co. vs. The State of Andhra Pradesh and Anr. AIR 1958 SC 468; State of Orissa and Another vs. M/s. M.A. Tulloch and Co., AIR 1964 SC 1284; State of U.P. and anr. vs. Synthetics and Chemicals Ltd. and anr. (1991) 4 SCC 139; Baijnath....
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....islature may arise only in cases when both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List, and a direct conflict arises. If there is a repugnancy due to overlapping, the State law will be ultra vires and shall have to give way to the Union law. Taxation is a distinct matter for purposes of legislative competence. There is a distinction made between general subjects of legislation and taxation. The power to tax cannot be deduced from a general legislative entry as an ancillary power. The entries in the List must receive a liberal construction and not in a narrow pedantic sense. A power to legislate as to the principal matter specifically mentioned in the entry shall also include the legislation touching incidental and ancillary matters. Where three Lists are containing a large number of entries, there is bound to be some overlap. In such a situation the doctrine of pith and substance has to be applied to determine as to which entry does a given piece of legislation relates. Once it is so determined, any incidental trenching on the field reserved to the other Legislature is of no consequence. The Court has to look at the su....
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.... in the context of legislative powers has arisen for consideration in the Supreme Court right from the year 1961. There have been decisions of the five learned Judges and seven learned Judges of the Supreme Court on the topic. The debate before us is primarily focused on the decisions of the constitution benches in Hingir Rampur Coal Co. Ltd., and Ors. vs. The State of Orissa and Ors. AIR 1961 SC 459; State of Orissa vs. M.A. Tulloch and Co., AIR 1964 SC 1284, India Cement Ltd. and Ors., V/s State of Tamil Nadu and Ors., AIR 1990 SC 85 and the State of West Bengal vs. Kesoram Industries Ltd. and Ors. 2004) 10 SCC 201 For the sake of brevity, we will refer to the decisions of the Constitution Benches as Hingir Rampur, Tulloch, India Cement, and Kesoram respectively. An extensive review of the entire law on the subject is taken in Kesoram. Almost all the decisions on the subject till then, also the ones the petitioners have relied upon, are discussed in Kesoram. As many as one hundred and fifty five decisions were cited and discussed in Kesoram. 16. The decision in the case of Kesoram was rendered by the Constitution Bench of five learned Judges. The majority decision was rendered b....
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....the earlier decisions. It is therefore not permissible for us to simply keep aside the decision in Kesoram as the petitioners want us to do. We will, therefore, proceed to analyse Kesoram in detail and then come back to this aspect of the matter. 19. Kesoram arose out of a reference made to the Constitution Bench by the Bench of three learned judges on 12 October 1999 as a question arose on the constitutional significance centering around Entry 54 of List I. The bench passed the following order: 25. ..."Great emphasis has been placed by learned counsel for the State of West Bengal upon the judgment of a Bench of three learned Judges in Goodricke Group Ltd. v. State of W.B.5 Quite apart from the fact that there are pending proceedings in this Court seeking to reconcile the judgment in Goodricke with that in State of Orissa v. Mahanadi Coalfields Ltd.6 we find some difficulty in accepting as correct the view taken by Goodricke particularly having regard to the earlier decision (of a Bench of two learned Judges) in Buxa Dooars Tea Co. Ltd. v. State of W.B.4 We think, therefore, that these matters should be heard by a Constitution Bench. The papers and proceedings may, accordingly, ....
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....ed that the cess sought to be levied for rendering different services to the society and public benefits and its securing welfare to the people. In Minor Mineral matters, the challenge was to the decision of the Allahabad High Court, upholding the constitutional validity of a cess on mineral rights levied under Section 35 of the U.P. Special Area Development Authorities Act, 1986. The decision of the Allahabad High Court was challenged and the argument before the Constitution Bench in Kesoram was that the MMDR Act having been enacted containing a declaration under Section 2 as contemplated by Entry 54 of List I, the State was denuded of its power to enact the impugned law and levy the impugned cess. Again this is Similar to the challenge raised before us. 22. Kesoram referred to and restated the law regarding ambit of Article 245 of the Constitution. After an elaborate discussion on this aspect, which we have already referred to. To repeat, Kesoram stressed that since there are various entries in the three Lists, there is bound to be some overlap and in such a situation the doctrine of pith and substance has to be applied. It held that the Court should ascertain the real character....
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....loch is read out of context, it may give an impression that the power to levy fee has been appropriated by the MMDR Act to the Central Government and the cess levied by the State would stand obliterated. Kesoram categorically held that this is not the ratio in essence in Hingir Rampur and in fact Hingir Rampur had held to the contrary and Tulloch had followed the decision in Hingir Rampur. Kesoram then analysed the effect of Section 2 of the MMDR Act and noted the preamble to the Act. Then Kesoram extensively discussed the distinguishing features of Tulloch. It noted firstly that the provisions of MMDR Act did not directly come up for scrutiny in Tulloch was only adjudicating upon the issue whether the liability to pay cess under the provisions of the Act would be enforced under the MMDR Act. Secondly, the question whether the Central Act excluded the power to legislate by the States was not a question dealt with in-depth as it was done in Hingir Rampur. Thirdly, it held that Tulloch needs to be read in its entirety, otherwise extracting sentences from here and there conveys an incorrect impression 24. Kesoram specifically dealt with Section 13, 18 and 25 MMDR Act and held that po....
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....y the appellant as prescribed under the lease deed. The rates of the royalty were fixed under the Mines and Minerals (Development and Regulation) Act, 1957, which is a Central Act, passed under Entry 54 in List I, by which the control of mines and minerals has been taken over by the Central Government. The State Legislature sought to justify and sustain the levy by reference to Entry 49, 50 or 45 in List II, Cess is a tax and is generally used when the levy is for some special administrative expense, suggested by the name of the cess, such as health cess, education cess, road cess etc. This is a well-settled position of law. The levy was sought to be justified under Entry 45 in List II by including it within the meaning of land revenue, and in the alternative under Entry 49 in List II as tax on lands. The challenge to the constitutional validity of the levy was upheld. We would briefly state the reasoning which prevailed with the learned Judges. 53. G.L. Oza, J. delivered a separate concurring opinion. The majority opinion expressed through Sabyasachi Mukharji, J. (as his Lordship then was), first clarified the distinction between 'royalty' and 'land revenue'. ....
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....efore was liable to be struck down on this ground alone. Yet, another reasoning which prevailed with the High Court was that Section 143 of the State Act, which was not inconsistent with the Central Act, was relied on by the State Government as conferring power on it to levy the impugned licence fee. On that plea the High Court formed an opinion that on the framing of Section 143 of the State Act it did not in express terms authorize a levy of fee or tax. The High Court observed - "It (Section 143) cannot also be construed as conferring such a power on the respondents to levy a tax or fee on mining, in view of the well-settled and statutory construction that a Court construing a provision of law must presume that the intention of the authority in making it was not to exceed its power but to enact it validly". The ratio of the decision of the Mysore High Court is that provision for licenses and license fees, operating in the field of regulation of mines and minerals is not available to be made by State legislation - in view of the declaration in terms of Entry 54 in List I." Thereafter, after considering the issue whether the royalty is a tax Kesoram discussed the regulation and co....
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....held that the royalty is not a tax. Kesoram held that all that India Cement was called upon to consider whether royalty is income and whether the State Legislatures are competent to tax an income. Kesoram noted that on this ground alone, the levy of cess impugned in India Cement could have been struck down and nothing more was needed Kesoram expressly dissented from the decision in the State of M.P. vs. Mahalaxmi Fabric Mills Ltd., 1995 Supp. (1) SCC 642 wherein the Court had held that there was no typographical error in India Cement. 28. After having discussed and distinguished the decision of India Cement, the Kesoram proceeded to examine the decisions post India Cement. The decisions in the State of Orissa vs. Mahanadi Coalfield Ltd. 1995 Supp (2) 686 and Buxa Dooars Tea Co. Ltd. vs. State of West Bengal (1989) 3 SCC 211 were also distinguished. Kesoram, after distinguishing these two decisions and other decisions, did an analysis of Goodricke Group Ltd. Kesoram, thus after having made an independent review of several decisions and several legal principles, held that Goodricke Group Ltd.'s case was correctly decided and law laid down therein is correct, and the decision in ....
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....f this power to impose any cess and even if the cess considered as 'fee' or 'tax', no power vested in the State. The petitioners had relied upon the decision in the case of India Cement. On behalf of the State, it was contended that under Entry No. 50 of List II, the State was competent to levy environment and health cess on mineral rights and there is no repugnancy and for the environmental upgradation and restoration of ecology in mining areas the State has legislative competence to enact the law. The Division Bench took a review of the State legislation and its aim and objectives. It then referred to the various entries in different lists and Schedule VII. The Division Bench held that Kesoram could not be held to be per incuriam. The Division Bench held that the power under Entry 50 of List II of Seventh Schedule is not affected by Section 15 or Section 13 of the MMDR Act. The Division Bench held that the State of Rajasthan was competent to levy environment and health cess on mineral rights under Entry 50 of List II of the Constitution of India. The Division Bench relied upon the decision in Kesoram, more particularly the observations therein that the doctrine of....
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....slate and impose limitations on the State's otherwise plenary power to levy taxes on mineral rights or taxes on lands (including mineral bearing lands) by reference to Entries 50 and 49 in List II and lay down the limitations on the State's power, if it chooses to do so, and also to define the extent and sweep of such limitations. So long as a tax or fee on mineral rights remains in pith and substance a tax for augmenting the revenue resources of the State or a fee for rendering services by the State and it does not impinge upon regulation of mines and mineral development or upon control of industry by the Union, it is not unconstitutional. Thus, the regulation of mines and minerals vesting in the Union Govt. in MMDR Act, 1957 & the Act of 1952 and Rules of 1955 and Rules of 1988 relied upon by Mr. M.S. Singhvi, learned Senior Counsel, appearing on behalf of the petitioners, could not have come in the way of the State to enact the impugned provision in question, as it does not either impinge upon regulation of mines and mineral development or upon control of industry by the Union. The State is augmenting its revenue resources for the purpose of environment and health. The p....
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..... A decision of the Constitution Bench stands on a different footing. 33. A group of matters was placed before the Bench of three learned Judges of the Supreme Court in the case of Mineral Area Development Authority and others vs. Steel Authority of India and others (2011) 4 SCC 450 wherein the issue arose in respect of the decisions in Kesoram and India Cement. The Court directed that the matters be placed on the administrative side for reference to a larger Bench. One of the questions of law framed was whether the majority decision in Kesoram could be read as departing from the law laid down in India Cement. Thus, the decisions of both Kesoram and India Cement were before the Bench of three learned Judges of the Apex Court. As the order shows, the matter was heard for a considerable length of time and thereafter the reference was made. Petitioner sought to make capital of the fact that the Bench prima facie observed that there might be a conflict. The Bench, in Mineral area Development Authority, did not straightaway conclude that Kesoram was per incuriam and that India Cement being of the Larger Bench it will have to be followed. Thus the legal position is far from obvious as t....
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....o Entries 52, 53, 54 in List I. It is for the Union to legislate and impose limitations on the otherwise plenary power of the State to levy taxes on mineral rights. The Entries in the Lists must be so construed as to avoid any conflict. In case any conflict is apparent, an attempt must be made to reconcile the conflict, also an inquiry must be carried out as to which Entry the impugned legislation falls, by finding out the pith and substance of the legislation. An incidental trenching upon another field of legislation is to be ignored. The primary object and the essential purpose of legislation must be distinguished from its ultimate or incidental results or consequences, for determining the character of the levy. A levy essentially in the nature of a tax and within the power of State Legislature cannot be annulled as unconstitutional merely because it may affect the price of the commodity. 35. Kesoram further goes on to hold as follows. A State legislation, which makes provisions for levying a cess, whether by way of tax to augment the revenue resources of the State or by way of fee to render services as quid pro quo but without any intention of regulating and controlling the sub....
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....e Constitution. These Entries, for the sake of convenience, are reproduced hereinbelow. 6. Public health and sanitation; hospitals and dispensaries. 13. Communications, that is to say, roads, bridges, ferries, and other means of communication not specified in List I; municipal tramways; ropeways; inland waterways and traffic thereon subject to the provisions of List I and List III with regard to such waterways; vehicles other than mechanically propelled vehicles. 23. Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union. 50. Taxes on mineral rights subject to any limitations imposed by Parliament by law relating to mineral development. 56. Taxes on goods and passengers carried by road or on inland waterways. 66. Fees in respect of any of the matters in this List, but not including fees taken in any court. Entry 6 relates to Public health and sanitation; hospitals and dispensaries, Entry 13 relates to communications, that is, roads, bridges, ferries, and other means of communication not specified in List I, municipal tramways; ropeways; inland waterways and traffic thereo....
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....-- (a) "carrier" means any mode or conveyance of facility by which material is transported from one place to another by mechanical device; (b) "Government" means the Government of Goa; (c) "inspecting authority" means an officer appointed by the Government under section 6 of this Act; (d) "material" means the material specified in Schedule I; (e) "owner" means any person who is the immediate proprietor of items enlisted in Schedule I; (f) "Plastic" means compounds of hydrocarbons that are non-biodegradable and includes Polypropylene, Polyvinylchloride , Polyethylene, Nylon and other plastic goods, such as, P.V.C., Polystyrene which are not capable of being destroyed by action of living beings; (g) "prescribed" means prescribed by rules made under this Act; (h) "Schedule I" means Schedule I appended to this Act; (i) "Welfare Administrator" means an officer appointed by the Government under section 6 of this Act. 3. Levy and collection of cess.-- (1) With effect from such date as the Government may, by notification in the Official Gazette, appoint, there shall be levied and collected from the owner a cess on all carrier transporting material and at such rates as s....
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....e Advisory Committee shall conduct its business shall be such as may be prescribed. (5) The Government shall publish in the Official Gazette the names of all members of the Advisory Committee. 6. Appointment of Inspecting Authority, Welfare Administrator and their powers.-- (1) The Government may appoint Inspecting Authority, Welfare Administrator and such other officers and staff as it thinks necessary for the purposes of this Act. (2) Every person so appointed shall be deemed to be a public servant, within the meaning of section 21 of the Indian Penal Code, 1860 (Act 45 of 1860). (3) Any Inspecting Authority or Welfare Administrator may-- (a) with such assistance, if any, as it thinks fit enter at any reasonable time, any place which he considers it necessary for carrying out the purposes of this Act; and (b) do within such place anything necessary for the proper discharge of his duties. 7. Publication of annual report of activities financed under the Act.-- The Government shall, as soon as may be, after the end of each financial year, cause to be published in the Official Gazette a report giving an account of the activities financed under this Act during the previo....
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....is Act has been committed with the consent or connivance or any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall be deemed to be guilty of that offence and shall be liable to be proceeded against and punished accordingly. Explanation:-- For the purposes of this section,-- (a) "company" means anybody corporate and includes a firm or other association of individuals; (b) "director" in relation to a firm means a partner in the firm. 12. Compounding of offences.-- (1) Any offence punishable under this Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under section 10 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government of such sum as that person may specify not exceeding rupees twenty thousand. (2) Where an offence is compounded under sub- section (1), no proceeding or further proceeding, as the case may be, shall be taken against the offender in respect of the offence so compounded. 13. Recovery of certain sums as arrears of land revenue.-- Any sum due to th....
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....nt of carriers transporting material on public roads or dumping of garbage or use of plastics. The cess is to be used to defray the cost of measures taken for the benefit of the villagers affected by the transportation of material on public roads as well as dumping of garbage, material, and plastics. It is also to be used for the improvement of the public health, the prevention of disease and the provision for improvement of medical facilities. The cess is also to be used for provision and improvement of water supply, improvement of public roads, erection of tree barriers for arresting the dust levels. The cess can also be used to meet the allowances, if any, of the members of the Advisory Committee. Section 5 constitutes an Advisory Committee to advise the State on the matters arising from the administration of the Act. The appointment of Inspecting Authority, Welfare Administrator and their powers is dealt with under Section 6 of the Act. Section 7 contemplates the publication of an annual report of activities and the powers to frame the rules is referred to under Section 8. Sections 9 to 12 deal with the penalties and offenses. The recovery of sums due to the Government under th....
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....tuation in the State of Goa, the State was of the opinion that there was significant impact of transportation on the people. It is placed on record that the State Government is in the process of constructing special by-pass roads for diverting the traffic and also increasing the width of the existing roads also to accommodate the mining traffic, and the estimated costs of the construction of the bye-pass and acquisition of land are very high. The scheme of Goa Cess Act indicates that the focus was primarily on the transportation and its ill-effects and need to augment raise additional resources for the improvement of infrastructures and health affected by the transportation. It is true that the majority of the items listed in the Schedule I are minerals. However, Schedule I does not contain only minerals but it also contains debris, garbage, and plastic waste. The Petitioner contends that the impugned Act is mineral centric and not transportation-centric and it targets the mineral and not the transportation. This contention is not correct. Schedule I lists various items, some of them are minerals. The Petitioner entirely ignores that plastic, garbage, debris are also included in th....
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.... the exercise of the powers under Sections 4, 5 and 8 of the Act of 2000, the Goa Rural Improvement and Welfare Rules, 2001 were enacted. Rules carry definitions identical to the Act. Rule 3 provides for assessment and conclusion of cess. The cess payable under the Act is to be assessed and collected at the entry point in the State or any other entry points as may be specified by the State in respect of scheduled items. The methodology for recovery and payment of cess is laid down in Rules 3, 4, and 5. Rest of the Rules deal with the composition and functioning of the Advisory Committee. The Schedule to the Rules contains receipts and forms specified. By the notification dated 13 May 2008, the charges levied on the scheduled items were revised. 45. Now turning to the Union legislation. The MMDR Act contains seven Chapters. The Act is to provide for the development and regulation of the mines and minerals under the control of the Union. First Chapter deals with the short title, declaration, and definition. Section 2 contains a declaration as to the expediency of Union control. Section 2 declares that it is expedient in the public interest that the Union should take its control of r....
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....2) In particular, and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the following matters, namely:? (a) the person by whom, and the manner in which, applications for [reconnaissance permits, prospecting licences or mining leases] in respect of land in which the minerals vest in the Government may be made and the fees to be paid therefor; (b) the time within which, and the form in which, acknowledgment of the receipt of any such application may be sent; (c) the matters which may be considered where applications in respect of the same land are received on the same day; [(d) the terms and conditions of auction by competitive bidding, the details of mines and their location, the minimum size of such mines and such other conditions which may be necessary for the purpose of coal mining operations including mining for sale by a company under sub-section (1) and sub-section (2) of section 11A;] (e) the authority by which [reconnaissance permits, prospecting licences or mining leases] in respect of land in which the minerals vest in the Government may be granted; (f) the procedure for obtaining [a reconnaissance permit, a pr....
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....of any prospecting or mining operations shall be made in the same area or in any other area selected by the Central Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the prospecting licence or mining lease;] [(qqa) the amount of payment to be made to the District Mineral Foundation under sub-sections (5) and (6) of section 9B; (qqb) the manner of usage of funds accrued to the National Mineral Exploration Trust under sub-section (2) of section 9C; (qqc) the composition and functions of the National Mineral Exploration Trust under sub-section (3) of section 9C; (qqd) the manner of payment of amount to the National Mineral Exploration Trust under sub-section (4) of section 9C; (qqe) the terms and conditions subject to which mining leases shall be granted under sub-section (3) of section 10B; (qqf) the terms and conditions, and procedure, subject to which the auction shall be conducted including the bidding parameters for the selection under sub-section (5) of section 10B; (qqg) the time limits for various stages in processing applications for grant of mining lease or prospecting licence-cum-mining lease under se....
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....raining in matters relating to mining operations; (g) the fixing and collection of rent, royalty, fees, dead rent, fines or other charges and the time within which and the manner in which these shall be payable; (h) the manner in which rights of third parties may be protected (whether by way of payment of compensation or otherwise) in cases where any such party is prejudicially affected by reason of any prospecting or mining operations; (i) the manner in which rehabilitation of flora and other vegetation such as trees, shrubs and the like destroyed by reason of any quarrying or mining operations shall be made in the same area or in any other area selected by the State Government (whether by way of reimbursement of the cost of rehabilitation or otherwise) by the person holding the quarrying or mining lease; (j) the manner in which and the conditions subject to which, a quarry lease, mining lease or other mineral concession may be transferred; (k) the construction, maintenance and use of roads power transmission lines, tramways, railways, aerial ropeways, pipelines and the making of passage for water for mining purposes on any land comprised in a quarry or mining lease or o....
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....deals with sale, export, import and transit of ore. Rule 11 lays down specification in respect of sale/export of mineral. Rule 12 deals with import of mineral. Rule 13 deals with transit of mineral and states that transport of mineral or waste outside the leasehold area for any purpose other than for sale or export shall be regulated by issuance of transit permits. The transit of waste only be allowed in case of dump yard/stockyard is shown in the mining plan of the respective leaseholds after the payment of processing fee. Chapter IV deals with storage of mineral. Chapter V deals with the transportation and winning of mineral. Rule 17 deals with regulation of transport and extraction and mandates for carriers used for transportation of the minerals shall be registered. Registration fee is contemplated under Rule 20. The procedure for registration of carriers is specified under Rule 47. All carriers are mandated to install tracking devices. Chapter VI deals with establishment of check post, barrier and weighbridge and inspection of mineral in transit. The Scheme of Rules of 2013 indicates the purpose for which they were enacted. These Rules framed under Section 23C of the Act of 19....
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....t to provide additional resources for improvement of infrastructure and health with a view to promote the welfare of people residing in the rural areas affected by the use of plastics, dumping of garbage and spillage of materials. 50. In the case of Madhyabharat Phosphate, the Division Bench discussed the power of the State to augment the revenue, and the doctrine of pith and substance. It was held at paragraph 38 as under: "38. We find no repugnancy in the provisions of the Finance Act, 2008 and the rules framed thereunder with the aforesaid legislation, as the Apex Court has laid down that despite the fields of legislation having been demarcated, the question of repugnancy between law made by Parliament and a law made by the State Legislature may arise only in cases when both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and if a direct conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List III on the other, the State law will be ultra vires and shall have to give way to the Union law. Where there are three Lists containing a large number of entries, t....
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....d. The Goa Cess Act on the other hand is enacted to provide additional resources for promoting the welfare of the people residing in rural areas which are facing problems by use of plastics, dumping of garbage and spillage of materials. The cess under the Goa Cess Act and the Rules would be spent to meet the expenditure incurred in connection with the measures to promote the welfare of the people residing in the rural areas affected by the movements of carriers. The levy under the State Legislation is thus meant for the welfare of the villagers, and improving their health, as also water supply, and public roads. The State Legislation does not seek to regulate or control mines and mineral development. 52. This issue, dealing with the similar enactment, is dealt with in the following passage in Kesoram where it deals with Hingir Rampur, as under. "145. The following observations of the Constitution Bench in Hingir Rampur Coal Co. [AIR 1961 SC 459: (1961) 2 SCR 537] squarely apply to the SADA Act and the SADA Rules for upholding their constitutional validity: (AIR p. 473, paras 35-36) "[I]n pith and substance the impugned Act is concerned with the development of the mining areas ....
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....I of the Petitioner pertaining power to charge fee, the Petitioners have relied on the decision in Tulloch to contend that upon enactment of the MMDR Act, no matter would be left in the State List for the State Legislature to levy fees. 54. The decision in Tulloch has been directly considered in Kesoram, and it has been held that the State is not denuded of its power. Kesoram has observed thus: "146. As stated earlier also, the impugned cess can be justified as fee as well. The term cess is commonly employed to connote a tax with a purpose or a tax allocated to a particular thing. However, it also means an assessment or levy. Depending on the context and purpose of levy, cess may not be a tax; it may be a fee or fee as well. It is not necessary that the services rendered from out of the fee collected should be directly in proportion with the amount of fee collected. It is equally not necessary that the services rendered by the fee collected should remain confined to the persons from whom the fee has been collected. Availability of indirect benefit and a general nexus between the persons bearing the burden of levy of fee and the services rendered out of the fee collected is enoug....
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.... The State has demonstrated the co-relationship through its affidavits. The co-relationship is also discernible from the provisions of the Goa Cess Act itself. The necessary parameters are present. Even assuming that the services rendered benefits others and the State as a whole or indirectly benefits, would not make the levy unconstitutional. In the Schedule annexed to the Goa Cess Act, there is a varying degree of the imposition of cess. The varying degree also has a nexus to the different impositions. It is not that the levy is extracted compulsorily from all in the State to pay for the services rendered. 58. Sufficient evidence placed on record of spending the money, both on road infrastructure and welfare activities. It cannot be said that the Petitioners do not benefit at all from the services rendered and that there is not even a remote connection. The Goa Cess Act and the Rules are a device for the State to augment its resources. The services rendered by the collection of the levy benefits the Petitioner as well, and there exists a co-relationship. Therefore, the Goa Cess Act and the Rules, whether it imposes a tax or fee, cannot be said to be unconstitutional. Kesoram hol....
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....ity, the law expresses that it is presumed to be prospective. It is contended that since there is no notification during the above period, no tax could be levied and retrospective effect could not have been given. The State has justified the levy and has contended that there is no retrospective effect given to the Goa Cess Act. 63. The power of the State Legislature is traceable to Articles 245, 446 and 248 of the Constitution of India. There is no embargo in these Articles per se to bring in legislation with retrospective effect. In National Agricultural Coop. Marketing Federation of India Ltd. v. Union of India (2003) 5 SCC 23 the Supreme Court has held that there is no fixed formula for the expression of legislative intent to give retrospectively to an enactment. It observed that sometimes this is done by providing for jurisdiction where jurisdiction had not been appropriately invested before. Sometimes this is done by re-enacting a valid and legal taxing provision retrospectively and then by fiction making the tax already collected to stand under the re-enacted law. 64. Section 3 of the Goa Cess Act provides that with effect from such date as the Government may by notificatio....