Peekay Re-Rolling Mills (P) Ltd Vs. The Assistant Commissioner & Anr  Insc
309 (20 March 2007)
ASHOK BHAN & DALVEER BHANDARI
With CIVIL APPEAL NOS. 2654 & 4406 of 2006 BHAN, J.
Civil Appeal Nos. 2653 and 2654 of 2006 are directed against the impugned
final judgment dated 7.4.2006 of Kerala High Court at Ernakulam in Writ Appeal
No. 434 of 2000 and Writ Appeal No. 433 of 2000 by which the Division Bench
dismissed the writ appeals thereby upholding the order of the Single Judge,
rejected the challenge to the two show cause notices issued to the appellant.
Civil Appeal No. 4406 is arising out of judgment dated 7.7.2006 of the Kerala
High Court in Sales Tax Revision No. 9 of 2006 by which the Division Bench
dismissed the Revision relying upon the judgment of the Division Bench in Writ
Appeal No. 434 of 2000 of the same High Court.
We propose to dispose of these appeals by a common order, as the point
involved in all these appeals is the same.
Facts are taken from Civil Appeal No. 2653 of 2006.
The appellant is a company registered under the Companies Act, having its
Registered Office at Kozhkkode. It is a registered dealer under the Kerala
General Sales Tax Act, 1963 (for short 'the State Act').
It carried on the business of steel re-rolling mills at Nallalam, Kozhikode.
The raw material used by the appellant in the production of bars and rods, is
steel ingots, which the appellanfont-size: 10pt manufactures or purchases from other
manufacturers from within or outside the State. Purchase of steel ingots
effected by the appellant within the State are from manufacturing units, which
are exempt from the payment of sales tax on the sale of such ingots by virtue
of an exemption notification issued under Section 10 of the State Act.
For the Assessment Year 1994-95, appellant submitted a return of turnover
and was assessed to tax declaring the taxable turnover at nil, by an order
dated 15.1.1998 by the assessing officer. In respect of the assessment year
1995-96 also, the appellant's assessment was completed determining the taxable
turnover at Rs. 21,85,550/- vide order dated 15.1.1998. While this was so, the
appellant received a show cause notice dated 11.1.2000 for the assessment year
1994-95 and another notice dated 12.1.2000 on the same date for the assessment
years 1996-97 to 1999-2000. In the first show cause notice relating to the
assessment year 1994-95, the assessing officer stated that the appellant had
purchased ingots from dealers within the State who were exempted from payment
of tax and consumed the same in the manufacture of bars and rods during the
year 1994-95. The notice further stated that the ingots purchased were goods
liable to tax under the State Act and since the supply of such ingots did not
suffer any tax at the time of sale due to the exemption notification under
Section 10(1) of the State Act, purchase turnover of the ingots during the year
and consumed in the manufacture by the appellant attracted liability to tax
under Section 5A of the State Act. The notice alleged that the purchase
turnover of the ingots had escaped assessment under Section 5A of the State Act
and accordingly proposed to determine the turnover liable to tax and assess the
same at 4%.
It was stated that on the request of the appellant, a hearing would be given
to the appellant before completing the assessment as proposed.
Notice relating to 1996-97 to 1999-2000 was worded differently. The said
notice stated that the appellant had purchased ingots, scraps, mosrolls, etc.
from units within the State claiming tax exemption and consumed the same in
the manufacture of bars and rods during this period. It was further stated that
since the goods had not suffered tax under Section 5A of the State Act, they
were liable to pay purchase tax under Section 5A and called upon the appellant
to remit tax with interest under Section 22 (3) within 10 days of the receipt
of notice failing which an action would be taken to recover the tax.
The appellant being aggrieved filed the two separate writ petitions
challenging the two show cause notices issued to him. Learned Single Judge
dismissed the writ petitions in limine by observing that the case involved
disputed questions of fact which could not be decided in a writ petition under
Article 226 of the Constitution and relegated the petitioner to avail of the
remedies provided under the State Act. It was held that the writ petition was
not the appropriate remedy and the appellant was accordingly directed to avail
of the remedies provided under the State Act. Learned Single Judge directed the
appellant to file objections to the notices before the assessing officer who
shall consider the same while framing the assessment.
Assessing Authority was directed to complete the assessment in accordance
with law after affording due opportunity to the appellant.
Aggrieved by the above order of the learned Single Judge, the appellant
preferred two separate writ appeals. The Division Bench dismissed the writ
appeals by a common order and held that the learned Single Judge was in error
in directing the appellant to avail the remedies provided under the State Act.
The Division Bench, however, rejected the main contention of the appellant that
in view of the provisions of Article 286(3) of the Constitution of India read
with Section 15 of the Central Sales Tax Act (for short 'the Central Act'), it
was impermissible to levy purchase tax under Section 5A of the State Act. In
support of this contention, it was submitted by the counsel for the appellant
that the iron ingots being declared goods could be subjected to tax under
Section 5 read with Second Schedule of the State Act in the hands of the seller
only; that the declared goods like the one involved in the present case could
be subjected to levy only at one point and that point had been specified by the
Statute as being 'first sale'. That goods could not be subjected to purchase
tax in the hands of the purchaser under Section 5A of the State Act. The
Division Bench of the High Court relying upon a judgment of this Court rejected
these contentions and held that the expression "levy" includes
collection of tax as well and not mere imposition. It was held that in the
absence of collection of tax, there is no levy and since, the goods were
exempted from payment of Sales Tax, the goods could be subjected to levy of
purchase tax under Section 5A of the State Act. That the levy did not mean
imposition only, the same included the collection of tax as well. Where there
is no collection, there is no levy and accordingly, the goods which are not
subjected to levy of tax at the point of sale could be subjected to levy of
purchase tax under Section 5A.
Learned counsel for the appellant has contented before us that goods being
declared goods, under Section 14 of the Central Act are subjected to limits
placed by Section 15 of the Central Act, namely:
(1) the tax payable on the sale or purchase of iron and steel under the law
of a State shall not exceed 4% and (2) such tax shall not be levied at more
than one stage.
It follows that if, iron and steel are subjected to a single point levy of
tax at the first point of sale, then there is no question of a second levy or
charge at any subsequent point of sale or purchase.
According to him, iron and steel which are the goods in question were made
liable to sales tax at the stage of first sale at 4% under Section 5(1) read
with Second Schedule of the State Act. That in view of Section 5(1) read with
Second Schedule of the State Act, the burden of tax could not be shifted to the
purchaser as the State Government had already notified that the tax would be at
the point of first sale and the rate of tax would be 4%. That the High Court
erred in assuming that the word "levied" in Section 15(a) of the
Central Act is used in the sense of imposed and collection. According to him,
the word levy could cover both imposition and non-collection of tax imposed
will not cease to be a levy of tax.
It was further contended that the High Court erred in distinguishing the
judgment of this Court in Shanmuga Traders & Ors. v. State of T.N. and
Ors., (1998) 5 SCC 349 and that of the Constitution Bench judgment in Bhawani
Cotton Mills Ltd. v. State of Punjab", (1967) 3 SCR 577. According to him,
the reliance placed by the High Court in Town Municipal Committee, Amravati v.
Ramchandra Vasudeo Chimote, (1964) 6 SCR 947 is unwarranted as in the said case
this Court was interpreting the expression "continued to be levied"
and "to be levied to the same purposes" in Article 277 of the
Constitution of India.
A strong reliance was placed by him on the decisions of this Court in
Assistant Collector of Central Excise, Calcutta Division v. National Tobacco
Co. of India Ltd.", (1972) 2 SCC 560, Somaiya Organics (India) Ltd. v.
State of U.P., (2001) 5 SCC 519, Pine Chemicals Ltd. v. Assessing Authority,
(1992) 2 SCC 683 and Associated Cement Companies Ltd. v. State of Bihar, (2004)
7 SCC 642.
As against this, learned counsel appearing for the respondent contended that
Section 5A was introduced in the State Act with effect from 1.4.1970 which is
an independent charging as well as a remedial section.
The main object of Section 5A of the State Act is to plug leakage and
prevent evasion of tax. According to him, it created a liability against the
dealer on his purchase turnover, with regard to goods, the sale or purchase of
which though generally liable to tax under the State Act has not due to
circumstances of particular sales, suffer tax and which after the purchase,
have been dealt by him in any of the modes indicated in clauses (a) (b) and
(c). It was conceded that in the case of declared goods, the conditions imposed
by Section 15 of the Central Act have to be complied with and the levy could
not be at more than one stage but Section 5A of the State Act operates by its
own force in cases where taxable goods did not suffer tax under Section 5 and
purchaser does not use the goods in any of the three modes specified in clauses
'a to c'. That the purchase tax in the State of Kerala is capable of being
levied only where no sales tax is levied on the taxable goods, thus only a single
point levy or one stage levy takes place, i.e., either sales tax or purchase
tax and not both. According to him, in view of the provisions of the State Act,
the expression levy would include collection or payment as well and not mere
authorization of levy.
Counsels for the parties have been heard at length.
Section 5 and Second Schedule of Section 5 of the State Act, as it stood at
the relevant time, read as under:
"S.5-Levy of tax on sale or purchase of goods (1) Every dealer (other
than a casual trader or agent of a non-resident dealer) whose total turnover
for a year is not less than (two lakh rupees) and every casual trader or agent
of a non-resident dealer, whatever be his total turnover for the year, shall
pay tax on his taxable turnover for that year,- (i) in the case of goods
specified in the First or Second Schedule, at the rates and only at the points
specified against such goods in the said Schedules;
(ii) XXXXXXXXXXXXX (iii) XXXXXXXXXXXXX (iv) XXXXXXXXXXXXX"
Second Schedule of Section 5 of the State Act, as it stood at the relevant
time, reads as under:
"Second Schedule Declared goods in respect of which a single point tax
only is leviable under sub-section (1) or sub- section (2) of Section 5 SL.
Description of Goods Point of levy Rate of Tax No. per cent (1) (2) (3) (4)
1. Oil seeds as defined in At the point of Sec.14 of the Central first sale
in the Sales Tax Act, 1956 State by a dealer (Central Act 74 of who is liable
to 1956), other than tax under groundnut, coconut Section 5 4 and copra
2. (i) Coal including coke in all its forms but excluding charcoal -do- 4
(ii)Iron and steel that is to say -do- 4 xx xxxx xx xx Section 5A of the State
Act, as it stood at the relevant time, reads as under: - "5A. Levy of
(1) Every dealer who, in the course of his business, purchases from a
registered dealer or from any other person any goods, the sale or purchase of
which is liable to tax under this Act, in circumstances in which no tax is
payable under Sub-sections (1), (3), (4) or (5) of Section 5 and either, (a)
consumes such goods in the manufacture of other goods for sale or otherwise; or
(b) uses or disposes of such goods in any manner other than by way of sale in
or (c) despatches them to any place outside the State except as a direct
result of sale or purchase in the course of inter- State trade or commerce;
shall, whatever be the quantum of the turnover relating to such purchase for a
year, pay tax on the taxable turnover relating to such purchase for the year at
the rates mentioned in Section 5."
Section 15 of the Central Act, as it stood at the relevant time, reads as
under: - "15. Restrictions and conditions in regard to tax on sale or
purchase of declared goods within a State - Every sales tax law of a State
shall, in so far as it imposes or authorises the imposition of a tax on the
sale or purchase of declared goods, be subject to the following restrictions
and conditions namely:- (a) the tax payable under that law in respect of any
sale or purchase of such goods inside the State shall not exceed four per cent
of the sale or purchase price thereof;
(b) XXXXXXXXXXXXX (c) XXXXXXXXXXXXX (ca) XXXXXXXXXXXXX (d)
(These provisions have been modified later on or have been done away with as
of now.) DISCUSSION Article 286(3) of the Constitution of India places
restriction on the power of every State to impose or authorize the imposition
of tax on sale or purchase of declared goods. Article 286 and Section 14/15 of
the Central Act are solely concerned with the declared commodities. We are
concerned with the taxation of goods which under Section 14 of the Central Act
have been declared to be of special importance in inter-state trade or
commerce. In case turnover of such goods is subjected to tax under the sales
tax laws, Section 15 prescribes the maximum rate at which such tax shall be
levied and the same could not be levied at more than one stage. The two
conditions have been imposed in order to ensure that inter-state trade or
commerce in such goods is not subjected to heavy taxation within the State
occasioned by excessive rate of tax or by multipoint taxation. If either of the
two conditions are not satisfied, the imposition of sales tax will not be
Section 5 of the State Act provides that in the case of goods specified in
the First and Second Schedule, the tax could be at the rates and points
specified against such goods in the said Schedules which in the present case is
at the point of first sale in the State by a dealer. The liability to tax and
the rate of tax under Section 5 is prescribed at 4%. As far as this section is
concerned, the conditions specified under Section 15 of the Central Act are
prima facie complied with.
Further, under Section 10 of the State Act the State Government granted
certain exemptions by way of S.R.O.No.1729/93, within the purview of which the
goods in the present case fall.
The controversy in the instant case arises when a tax is sought to be levied
under section 5A of the State Act on the same goods that are taxable under
section 5, but exempted. The essential question that we are required to
adjudicate upon is whether the tax sought to be levied under section 5A on
these goods, would amount to tax at a second stage and therefore violate
Section 15 of the Central Act.
It is clear that by virtue of Section 15 of the Central Act, declared goods
once made liable to tax cannot be made to suffer an additional tax liability.
In the present case, the goods have already been made liable to tax under
Section 5 of the State Act and exempted by a notification under Section 10; and
the same goods are sought to be taxed under Section 5A in the hands of the
What we are required to examine is the impact of this exemption to ascertain
whether the second levy made under Section 5A of the State Act violates Section
15 of the Central Act. In other words, we need to find out whether not
collecting the tax amount pursuant to the exemption necessarily implies that
there was never any levy to begin with, as has been contended by the
respondent. For if this is indeed the position, then there would be no
infirmity with the levy of tax made under Section 5A of the State Act in
respect of the declared goods, since the exemption would negate the levy and
the consequent liability to pay tax. However, if the exemption does not affect
the liability to tax and operates subsequent to the levy, as the counsel for
the appellant has contended, then the tax under Section 5A of the Sate Act
would fall foul of the conditions of Section 15 of the Central Act.
It is an accepted position before us today that Section 5 and Section 5A of
the State Act are independent sections and this is acknowledged by both
parties, in the light of the observations made in State of Tamil Nadu v. M.K.
Kandaswami, (1975) 4 SCC 745. This case involved the interpretation and
validity of Section 7A of the Madras General Sales Tax Act, 1959 which is in
pari materia to Section 5A of the Kerala General Sales Tax Act, 1963 . Although
this case did not deal with declared goods under Section 14 of the Central Act
and the resulting applicability of the condition of single-stage levy under
Section 15 of the Central Act, it did make certain observations relevant to the
present discussion. The Court observed that:
"In our opinion, the Kerala High Court has correctly construed Section
5A of the Kerala Act which is in pari materia with the impugned Section 7A of
the Madras Act. "Goods the sales or purchase of which is liable to tax
under this Act in Section 7A(1)" means 'taxable goods', that is, the kind
of goods, the sale of which by a particular person or dealer may not be taxable
in the hands of seller but the purchase of the same by a dealer in the course
of his business may subsequently become taxable. We have pointed out and it
needs to be emphasised again that Section 7A itself is a charging section. It
creates a liability against a dealer on his purchase turnover with regard to
goods, the sale or purchase of which though generally liable to tax under the
Act, have not due to the circumstances of particular sales, suffered tax.
[Emphasis supplied] The Court also analyzed the Section and indicated the
conditions necessary for the applicability of the Section and reaffirmed its
validity. It has been contended that since these conditions are fulfilled, the
levy under section 5A of the State Act is valid.
However, while these observations are relevant for the understanding of the
section and its validity, this case has no real bearing on the present one
since it never involved a question of tax on declared goods under Section 14 of
the Central Act and the conditions laid down in this regard, specifically that
of a single point levy. Satisfying the conditions laid down in Kandaswami's
case (supra) therefore does not validate the present levy, which is on declared
goods under Section 14 of the Central Act.
The impugned judgment of the Division Bench has distinguished the case of
Shanmuga Traders (supra).
The Shanmuga's case (supra) involved the sale of iron and steel by the Tamil
Nadu Electricity Board and later made exempt from tax under the State Act
pursuant to an exemption notification. These goods were declared goods under
Section 14 of the Central Act and therefore could only be subject to a
However, by a circular issued by the Commissioner of Commercial Taxes, the
person who purchased from the Board and sold the metal was made liable to tax,
on the ground that "he was effectively the first seller liable for
tax". The circular placed reliance on two Madras High Court judgments,
Vasu General Traders v. State of T.N. [(1987) 66 STC 358] in which the goods
involved were not declared goods. Vasu's case (supra) was followed by the
Madras High Court in the case of Royal Steel Traders, Madras [(1992) 1 MTCR
580] wherein the goods involved were declared goods under Section 14 of the
Central Act. The circular under challenged was issued in supersession of the
earlier circulars in view of the fact that the Madras High Court in Royal
Traders case (supra) had held that declared goods could also be subjected to
tax at a later stage because no tax had been paid on it. The High Court
accepted the submission of State and upheld the validity of the circular. This
Court, however, did not accept the reasoning of the Madras High Court and set
aside the Judgment. Overturning the judgment, it was held that the circular was
bad in law because if there was a condition of a single stage levy, and there
was an exemption, then, no subsequent sales could be taxed. The Court observed
Para 12 ".The goods with which we are concerned being declared goods,
they can only be taxed at a single point, that is, only one sale in the State
can be subjected to tax. It is for the State to determine whether the single
point should be the point of first sale in the State or the last sale in the
State or any intermediate sale in the State. If the single point is fixed by
the State at, say, the point of first sale and the State exempts the first sale
from payment of tax, either by a general provision or a specific provision
applicable to a class of seller, the particular seller or the goods sold may
not be subjected to tax afont-size: 10pt that point of first sale or any subsequent
sale in the State.
Para 13 The Second Schedule of the State Act specifies the single point; it
is "the point of first sale in the State". The first sale in the
State was the sale by the said Board to the appellants/petitioners. That sale
was exempt from tax by reason of the notification dated 1-12-1982 aforementioned. The iron and steel sold by the said Board to the appellants/petitioners was,
therefore, not liable to tax either at the point of first sale or any
subsequent sale in the State.
Para 14 There is no warrant for the emphasis that would appear to have been
"placed by the Madras High Court on the phrase "taxable sale".
The State Act does not fix the single point of the levy at the first taxable
sale; it fixes it at "the point of first sale". The impugned circular
cannot validly shift the point of levy from the first sale to a subsequent sale
and it is, therefore, bad in law.
[Emphasis supplied] The Division Bench however in the present impugned
judgment distinguished the Shanmuga's case (supra) by observing:
"We find that the observations made by the Supreme Court in Shanmugha
Trader's case supra, in paragraph 12, came to be made in the facts of the case.
The single point of levy was at the point of first sale and not at the point
of first taxable sale. The impugned Circular, the Court held, could not validly
shift the point of levy from the first sale to a subsequent sale."
We are of the opinion that the Division Bench erroneously distinguished the
Shanmuga's case (supra) from the present circumstances. We find that there is
no substantial difference between Shanmuga's case (supra) and the present one.
Both cases involve the condition of a single stage tax fixed at the point of
first sale, which was exempted and the subsequent sale being taxed. The
distinction sought to be brought in by the impugned judgment is that Shanmuga's
case involved the "point of first sale" and not the "point of
first taxable sale". It is true that the Second Schedule of the state Act
fixes the point of tax at "the point of first sale in the state by a
dealer who is liable to tax under Section 5". However, the addition of the
words 'liable to tax under Section 5' does not make any difference because in
our opinion exemption does not negate the liability to tax, which as we shall
presently discuss, continues regardless. The only other difference is that in
Shanmuga's case (supra), it was a circular which clarified that the subsequent
sale would be taxed, whereas the present case does not involve any such
clarification by way of a circular, but a direct claim for tax under Section 5A
of the State Act. In our opinion, this difference is insignificant as well.
Shanmuga's case (supra) has made it clear that exemption at the point of
first sale does not affect the liability to tax and any subsequent levy on the
goods would fall foul of the conditions of the Central Act.
This position is equally true whether the subsequent levy is by way of a
circular or directly under Section 5A of the State Act since both are required
to comply with the conditions of the Central Act. With this view of the matter,
we find that the reasoning of this court in the Shanmuga's case (supra) is
equally applicable to the present facts.
It might be pertinent to mention here that the decision taken by the
Division Bench in the impugned judgment is in conformity with the minority
decision in the Bhawani Cotton Mills case (supra). In his dissenting judgment,
Sikri J. observed as follows:
".In my opinion the Punjab Act does in effect comply with the
requirements of s.15 of the Central Sales Tax Act because it is possible to find
out the stage at which purchase tax becomes leviable on goods mentioned in
Schedule C. This stage is the first purchase by a dealer, which is not exempted
from taxation or which is not deductible from the taxable turnover of a dealer
5(2) of the Punjab Act.."
However, the majority decision took a different, much stricter view of the
matter, which is the law of the land today. The majority in Bhawani Cotton
Mills (supra) was of the opinion that the Act in question did not identify the
specific stage for the levy on declared goods and that it was possible for the
goods to be taxed at more than one stage, which was contrary to the condition
in the Central Act. The Court observed as follows:
"Pausing here for a minute, it may be stated that the attack, regarding
the validity of some of the provisions of the Act, by the appellant, is rested
on s.l5(a) of the Central Act, on the ground that such a levy of purchase tax,
regarding cotton, is neither definite nor ascertainable in the Act and that, as
the provisions now stand, there is a possibility of the tax being levied at
more than one stage.The essence of a one- stage taxation consists of fixation
of a single point or stage, either by the State Act or the rules framed
thereunderUnder those circumstances, there is always a possibility, or even a
certainty, of more persons than one having paid tax or being made liable to pay
tax in, respect of the same goods at different stages.
XXXX XXXX XXXX XXXX If a person is not liable for payment of tax at all, at
any time, the collection of a tax from him, with a possible contingency of
refund at a later stage, will not make the original levy valid;
because, if particular sales or purchase are exempt from taxation
altogether, they can never be taken into account, at any stage, for the purpose
of calculating or arriving at the taxable turnover and for levying tax."
Thus, the Court finally concluded that the conditions of Section 15 of the
Central Act had not been complied with.
The view taken in Shanmuga's case (supra) as well as the majority decision
in Bhawani Cotton Mills (supra) is reiterated in a number of other cases, which
make it clear that exemption operates after the levy and does not negate the
liability to tax.
The arguments raised by the respondent before us have two aspects. They
contend that since the goods in question were exempt from tax at the first
sale, no liability to tax attached on the seller. Additionally, they also argue
that since there was no collection of tax, there could be no 'levy' of tax. In
both cases, the obvious implication that the respondent seeks to establish is
that at the point of first sale, the seller was not liable to tax and therefore
if a subsequent tax were to be levied on these goods, as Section 5A of the
State Act seeks to do, there is no violation of Section 15 of the Central Act.
IMPACT OF EXEMPTION ON THE LIABILITY TO TAX
The first aspect of the argument of the respondent is with respect to the
impact of exemption upon the liability to tax. In our opinion, exemption can
only operate when there has been a valid levy, for if there was no levy at all,
there would be nothing to exempt.
In this regard two cases decided by this Court are relevant. The first is
the Pine Chemicals case (supra), which involved questions of sales tax and
exemption under the Jammu and Kashmir General Sales Tax Act, 1962. While
examining certain exemption orders made by the government, the Court observed
"Under Section 4(1) of Jammu &
Kashmir General Sales Tax Act the goods are taxable only once, that is it
could be taxed only at one point of sale. We have already held that the
Government Orders 159 and 414 are exemption orders and exempt the sale by
appellants of their manufactured products. The exemption would not arise unless
the goods are taxable at the point of their sale. Thus the effect of exempting
their sale is that the said goods manufactured by them could not be taxed at
the second or subsequent sales also as that would offend Section 4(1) which
provides for single point levy. In cases where there are no exemption orders
and the state fixed the second or subsequent sale as point of taxation the
first or prior or subsequent sales are not exempted sales but are not taxable
[Emphasis supplied] Thus the Court was of the opinion that when certain
goods were subjected to the single-stage tax condition, and the stage
identified for the levy was exempted, subsequent sales could not be taxed by
the authorities despite the exemption.
This position has been reaffirmed in Associated Cement (supra). In
Associated Cement (supra) the Court was faced with an argument very similar to
the one made before us today. The case involved an exemption notification
issued by the State Government reduced the liability to tax under the Bihar
Finances Act, 1981 to the extent of tax paid under an earlier Ordinance in
respect of entry of goods. The appellant claimed that it was entitled to adjust
the entry tax paid under the Entry Tax Act while computing the tax payable
under the Bihar Finances Act. The respondent however argued that such
adjustment could not be made since the same was exempted, which meant that
there was no liability to tax. The Court rejected the argument of the
respondent, holding as follows:
"Crucial question, therefore, is whether the appellant had any
"liability" under the Act. The question of exemption arises only when
there is a liability.
Exigibility to tax is not the same as liability to pay tax. The former
depends on charge created by the Statute and latter on computation in
accordance with the provisions of the Statute and rules framed thereunder if
any. It is to be noted that liability to pay tax chargeable under Section 3 of
the Act is different from quantification of tax payable on assessment.
Liability to pay tax and actual payment of tax are conceptually different. But
for the exemption the dealer would be required to pay tax in terms of Section
3. In other words, exemption presupposes a liability.
Unless there is liability question of exemption does not arise. Liability
arises in term of Section 3 and tax becomes payable at the rate as provided in
Section 12. Section 11 deals with the point of levy and rate and concessional
[Emphasis supplied] A reading of the above judgments make it amply clear that
exemption does negate a levy of tax altogether. Despite an exemption, the
liability to tax remains unaffected, only the subsequent requirement of payment
of tax to fulfill the liability is done away with.
DISTINCTION BETWEEN LEVY AND COLLECTION The second aspect of the argument is
that an absence of collection means an absence of levy or liability. This
question has already been examined in certain earlier cases, and this Court has
consistently maintained a distinction between levy and collection.
In National Tobacco case (supra), this Court was faced with certain
questions relating to the refund of excise duty on the manufacture of
cigarettes. In this context, the Court examined the scope of the term 'levy'
and made the following observations:
"The term "levy" appears to us to be wider in its import than
the term "assessment". It may include both "imposition" of
a tax as well as assessment. The term "imposition" is generally used
for the levy of a tax or duty by legislative provision indicating the subject
matter of the tax and the rates at which it has to be taxed. The term
"assessment", on the other hand, is generally used in this country
for the actual procedure adopted in fixing the liability to pay a tax on
account of particular goods or property or whatever may be the object of the
tax in a particular case and determining its amount. The Division Bench
appeared to equate "levy" with an ''assessment" as well as with
the collection of a tax when it held that "when the payment of tax is
enforced, there is a levy". We think that, although the connotation of the
term "levy" seems wider than that of "assessment", which it
includes, yet, it does not seem to us to extend to "collection".
Article 265 of the Constitution makes a distinction between "levy"
[Emphasis supplied] The Court made it very clear that levy and collection
are not synonymous and that collection of the tax is not a necessary facet of a
Referring to the above case, the Court made similar observations in the case
of Somaiya Organics (supra).
".The words used in Article 265 are "levy" and
"collect". In taxing statute the words "levy" and
"collect" are not synonymous terms, (refer to Assistant Collector of
Central Excise, Calcutta Division vs. National Tobacco Co. of India Ltd. at
page 572, while "levy" would mean the assessment or charging or
imposing tax, "collect" in Article 265 would mean the physical
realisation of the tax which is levied or imposed.
Collection of tax is normally a stage subsequent to the levy of the same."
The distinction between levy and collection has also been emphasized in
Collector of Central Excise, Hyderabad v. Vazir Sultan Tobacco Company Limted, Hyderabad
(1996) 3 SCC 434. The crux of this case involved the levy of a special excise
duty, the liability for which did not exist on the date of manufacture and only
on the date of removal of goods. The excise duty however was normally collected
on the date of removal, and it was contended that since the liability to pay the
special duty existed on the date of collection of duty, the same must be paid
as well. Rejecting this argument, the Court held that the stage of removal was
identified for collection of duty only for administrative convenience, and that
this did not affect the nature of the levy, which was on the manufacture of
goods. In this context, the Court distinguished levy and collection. It
".Once the levy is not there at the time when the goods are
manufactured or produced in India, it cannot be levied at the stage of removal
of the said goods.
The idea of collection at the stage of removal is devised for the sake of
convenience. It is not as if the levy is at the stage of removal; it is only
the collection that is done at the stage of removal. Admittedly, the special
excise duty is an independent duty of excise separate and distinct from the
duties of excise levied by the Central Excises
Act, 1944. This levy came into effect only on and from March 1, 1978 which means that the goods produced prior to that date were not subject to such levy. If
that is so, the levy cannot attach nor can it be realised because such goods
are removed on or after March 1, 1978. The provisions of the Central Excise Act
and the Rules, in our opinion, do not say otherwise.
XXXX XXXX XXXX XXXX .The levy is and remains upon the manufacture or
production alone. Only the collection part of it is shifted to the stage of
removal. Once this is so, the fact that the provisions of the Central Excise
Act are applied in the matter of levy and collection of special excise duty
cannot and does not mean that wherever the Central Excise duty is payable, the
special excise duty is also payable automatically. That is so as an ordinary
rule. But insofar as the goods manufactured or produced prior to March 1,1978 are concerned, the said rule cannot apply for the reason that there was no
levy of special excise duty on such goods at the stage and at the time of their
The removal of goods is not the taxable event. Taxable event is the
manufacture or production of goods."
[Emphasis supplied] In the light of the above two cases, it is evident that
collection and levy are distinct and that collection is not an essential facet
of levy. It is true that collection of a tax may some times be indicative of a
lawful levy of tax, but in our opinion it does not logically follow that absence
of collection means an absence of liability. We are also of the opinion that
the reliance on the Town Municipal Committee (supra) by the Division Bench
which involved an interpretation of "continued to be levied" and
"to be applied to the same purposes" in Article 277 of the
Constitution was misplaced. While that case did hold that in the circumstances
before them 'levy' was intended to include 'collection', in our opinion the
logic or ratio of that case cannot be extended so far as to say that every 'levy'
must include collection and without such collection no levy can be said to have
CONCLUSION Thus, after an examination of the relevant case law, we find that
the liability to tax or taxability under Section 5 of the State Act remains
unaffected by an exemption under Section 10 of the State Act.
Consequently, the respondent cannot validly shift the burden of tax to the
purchaser under Section 5A of the State Act for the same would violate the
condition of single-stage tax under Section 15 of the Central Act.
For the reasons stated above, these
appeals are allowed. There will be no orders as to costs.
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