TaxTMI 
TaxTMI 
2018 (9) TMI 2141
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....ich the Governor of Goa gave assent on 28 September 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....
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....s. 9. In the first part of the judgment, we will deal with 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 po....
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....s been consistently held that the field of mines and mineral, 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 assum....
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....egulation and development are declared by Parliament by law' 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 ....
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...., dirt, and plastics are common problems caused by transportation 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. S....
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....y between the 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 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 oth....
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....control of the Union. 15. The position of law concerning the minerals 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 Const....
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....rtainty in the law. The decision in Kesoram is far from being in ignorance of 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....
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....impugned cess. Identical challenge raised before us. In Kesoram, the concerned State had argued 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 p....
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....d held that the decision has to be read in its entirety. Kesoram held that if the decision in Tulloch 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 incorrec....
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....ss on royalty a demand of land revenue or additional royalty? The Court found that the royalty was payable by 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. (a....
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....sought to be imposed by the State too. In fact, the licence fee was a step trenching upon the field of regulation and therefore 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....
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....ept up in India Cement should not be a cause for any further harm to the trend of jurisprudential thought. Kesoram specifically 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 prin....
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....sions and since the Parliament, in exercise of the powers conferred by Entries 54 and 55 enacted the MMDR Act and the State is denuded of 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 Consti....
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....the Union having enacted laws by reference to Entries 52, 53, 54 in List I. It has been further laid down that it is for the Parliament to legislate 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 devel....
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....tax was held to be an inadvertent error. Kesoram is a decision of the constitution bench formed specifically to answer and settle a question of law. 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 K....
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.... Fields of taxation covered by Entries 49 and 50 in List II continue to remain with State Legislatures despite Union having enacted laws by reference to 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 augme....
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....f the relevant Entries and the enactments. 37. The State has relied upon the Entries 6, 13, 23, 50, 56 and 66 of the List II of the Seventh Schedule of the 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 dispen....
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.... (2) It shall extend to the whole of the State of Goa. (3) It shall come into force on such date as the Government may, by notification in the Official Gazette, appoint. 2. Definitions.-- In this Act, unless the context otherwise requires,-- (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" mea....
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.... may be prescribed: Provided that the Advisory Committee shall include an equal number of members representing the Government, the owner of carrier and representatives of Zilla Panchayat. (3) The Government shall appoint the Chairman of the Advisory Committee. (4) The term of office of the members of the Advisory Committee, the allowances, if any payable to them, and the manner in which the 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 pl....
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....ge of, and was responsible to the company for the conduct of the business of the company, shall be deemed to be guilty of the offence and shall be liable to be proceeded against and punished accordingly: Provided that nothing contained in this subsection shall render any such person liable to any punishment, if he proves that the offence was committed without his knowledge or that he exercised all due diligence to prevent the commission of such offence. (2) Notwithstanding anything contained in subsection (1), where an offence under this 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 ....
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....defined which includes the other plastics such as P.V.C., polystyrene. Section 3 enables the State vide notification in the Official Gazette to levy and collect a cess from the owner on all the carriers transporting material as per the rates specified. Section 4 lays down the application of proceed of the cess and states that proceeds of cess levied under the Act reduced by the cost of collection together with the income from the investment shall be utilized to meet the expenses incurred in connection with the measures taken to promote the welfare of the people residing in the rural area affected by the movement 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 ....
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....rial in the Schedule of the impugned Act results in pollution to the natural water resource, dumping of garbage, spillage of materials, use of plastic. The transportation of materials under the Schedule affects the health of people. Massive dumps of garbage and pollution to rivers, water bodies, and wells, air pollution, spillage, dust, and plastic are some of the common problems. Law and order situations have arisen. 42. The Statement and object of the Goa Cess Act and the material placed on record show that the State was concerned with the ill-effects of transportation in the State. Because of the peculiar situation 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 rais....
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.... goods, that will not ipso facto change the nature of the levy to be a tax on the mineral. The argument that the levy would increase the cost of mineral has been negatived in Kesoram. Also, the argument that cess is levied the moment mineral is extracted is academic, as it is a matter of common knowledge that the mineral extracted is to be sent for consumption elsewhere. The argument that Entry 56 is not relating to tax on goods carried on roads, or on inland waters, is equally of no substance. 44. The Goa Rural Improvement and Welfare Cess Rules, 2001 were notified for objections on 5 March 2001. Thereafter, under 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 ....
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....prospecting or mining operations. The rehabilitation to be done in the same area or in any other area selected by the Central Government, whether by way of reimbursement of the cost of rehabilitation. 46. It will be convenient, for ready reference, to reproduce the Section 13 of the MMDR Act which is as under: "13. Power of Central Government to make rules in respect of minerals.?(1) The Central Government may, by notification in the Official Gazette, make rules for regulating the grant of [reconnaissance permits, prospecting licences and mining leases] in respect of minerals and for purposes connected therewith. (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 wh....
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....ease; (n) the form of registers to be maintained under this Act; (p) the reports and statements to be submitted by holders of [reconnaissance permits or prospecting licences] or owners of mines and the authority to which such reports and statements shall be submitted; (q) the period within which applications for revision of any order passed by a State Government or other authority in exercise of any power conferred by or under this Act, may be made [the fees to be paid therefor and the documents which shall accompany such applications] and the manner in which such applications shall be disposed of; [(qq) the manner in which rehabilitation of flora and other vegetation, such as trees, shrubs and the like destroyed by reason 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 usag....
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.... (a) the person by whom and the manner in which, applications for quarry leases, mining leases or other mineral concessions 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 applications may be sent; (c) the matters which may be considered where applications in respect of the same land are received within the same day; (d) the terms on which, and the conditions subject to which and the authority by which quarry leases, mining leases or other mineral concessions may be granted or renewed; (e) the procedure for obtaining quarry leases, mining leases or other mineral concessions; (f) the facilities to be afforded by holders of quarry leases, mining leases or other mineral concessions to persons deputed by the Government for the purpose of undertaking research or training 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....
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....it is clear that the powers were conferred to prevent illegal transportation and storage of minerals. It is in furtherance of this object the Rules of 2013 are framed. These Rules define a Carrier means any mode of conveyance or facility by which the mineral is transported from one place to another including the barges. Mineral is as any mineral other than the minor mineral. Various other definitions have been laid down in Chapter I of the Rules of 2013. The Chapter II of the Rules of 2013 deals with the "Prevention of Illegal Mining". Rule 3 places restriction on carrying out the business of buying, storing, selling, supplying, transporting, distributing or delivering of minerals except under and in accordance with law and registration. Rule 4 deals with the commencement of the mining operation. Rule 6 deals with registration of the transport contractors. Rule 7 deals with the bar on contracts for sharing of mineral or long-term sale agreements. Chapter III 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 ....
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....fected areas are one were local population is adversely affected on account of economic, social and environmental consequences due to mining-related operations. Section 9B, therefore, operates in a different sphere and is in respect of the areas in proximity to the mining areas and directly affected by it. Even assuming there is some is overlap between the areas referred to under Section 9B of the MMDR Act and the Goa Cess Act and the Rules, it does not mean that the Goa Cess Act and the rules be held unconstitutional. The argument of the Petitioner that even after the Rules are not framed everything in respect of the minerals is covered in view of the declaration under Section 2 of the MMDR Act, is already dealt with and negatived in Kesoram. Kesoram lays down that MMDR Act is not like a magic touch that everything and anything stands obliterated from the legislative competence of the State. As pointed out in pith and substance, the Goa Cess Act is an enactment 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 mater....
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....ield of legislation wherein the impugned legislation falls by applying doctrine of pith and substance, can an incidental trenching upon another field of legislation be ignored? Once it is so determined that the impugned legislation substantially falls within the power expressly conferred upon the Legislature which enacted it, an incidental encroaching in the field assigned to another Legislature is to be ignored. While laying down so, the Apex Court has relied upon the decisions in Hoechst Pharmaceuticals Ltd. v. State of Bihar, (1983) 4 SCC 45, M.P.V. Sundararamier & Co. v. State of A.P. AIR 1958 SC 468, Governor General in Council v. Province of Madras, AIR 1945 PC 98, and Province of Madras v. Bodder Paidanna & Sons, AIR 1942 FC 33." 51. Thus the analysis of both, the Union and State enactments show that they operate in different fields and overlap if any is merely incidental. The MMDR Act is for development and regulation of mines and minerals to the extent provided. 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 ....
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....nd 54 in List I read with Act 65 of 1951 and Act 53 of 1948 respectively." Thus, considering substance and object of the Goa Cess Act and Rules vis-a-vis the MMDR Act and the Rules framed there under, we find that there is no irrevocable conflict between the concerned Union Legislation and the State Legislations. The Goa Cess Act and Rules are targeted for augmentation of revenue to provide infrastructures in the State without impinging on the mineral regulation. The Act is traceable to the entries relied upon by the State. 53. The next contention of the Petitioner is that the State cannot levy any fee under Entries 6, 13 and 50 as it is required to provide some special service to the Petitioner, and no such service, much less special service, is provided to the Petitioner. It is, therefore, contended that the entire endeavour is to raise revenue for building infrastructure. It is contended that the imposts can be by way of tax or fee, but not both. On the contention based on Entry 66, List II 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 S....
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....es in the Country, Goa is a small State of only two Districts. The small land mass of Goa makes the effect of transportation activity more acute, and the benefit of improved roads conditions cascade to the travelers and consequent to the mining leaseholders. It cannot be denied that the workforce employed by the entities such as the Petitioner may also be from the local area, and the health and welfare of its workforce will benefit even those who employ them. Those who use the improved road will be benefited from the reduced air pollution and ease and economics of better roads. 56. The State has placed on record the data of the expenditure from the Cess on the infrastructure in furtherance of the object of the Act. The State has also produced the data showing item-wise expenditure on a yearly basis in areas affected by use of plastic, dumping of garbage and spillage of materials. The data of expenditure on supply of medicines, equipment of health centers within the affected areas is also placed on record. 57. 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 necess....
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....Act permits the notification to be made retrospective. It is contended that no cess would have been levied from 23 January 2006 to 7 October 2010, as there was no notification authorizing the levy and collect the cess in terms of Section 3(1) of the Goa Cess Act Section 3(1) of the Goa Cess Act has been brought into force on 7 October 2010. The Petitioner has relied upon a decision in the case of Commissioner of Income Tax vs. Vatika Township Pvt. Ltd. (2015) 1 SCC 1 and Jayam and Co. vs. Asst. Commissioner & anr. (2016) 15 SCC 125. It is sought to be contended that under Section 3 of the impugned Act, the Government cannot fix a back date as an appointed date and can only fix a prospective date since the notification under Section 3(1) is a delegated legislation. It is contended that unless a contrary intention appears, a Legislation is presumed not to be intended to have a retrospective operation. It is contended that the law confers a benefit that the citizen should be treated as retrospective but when it imposes a liability, 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 levie....
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....gislation is presumed not to be intended to have a retrospective operation. However, in the facts of the present case, the Goa Cess Act was notified on 16 October 2000, and by virtue of Section 1(3) and Section 3(1), the Government had the power to notify and appoint any date for bringing the Act in force. From 16 October 2000 onwards itself, the State had such power to bring the Act in force and levy cess. There is therefore no retrospective effect given to the Act. The Act has already been published in the year 2000 which confers power on the Government to levy cess from any date thereafter. Had it been levied with effect from before 16 October 2000, it could be said that there is a retrospective effect. Once this power exists in the State, the argument that Notification dated 8 October 2010 being subordinate legislation, being retrospective, will not survive. In the case of Jayam and Co., an amendment to a section was given a retrospective effect, which is entirely different. 66. The argument of the Petitioner that even penalty is liable to be imposed retrospectively which may extend up to two years or fine or both, has no substance. The aspect of imposition of penalty is ent....