TMI Blog1950 (3) TMI 23X X X X Extracts X X X X X X X X Extracts X X X X ..... ever put on record his protest against the recovery of the duty which was fixed at ₹ 1,128-2-0. Against the order claiming the amount, the appellant filed an appeal to the Extra Assistant Commission- er with revenue appellate powers, Nagpur. He contended that the municipality claimed to levy the duty under Section 66 (1) (e) of the Municipal Act, but they had no right to do so as under Section 3 of the Central Excises and Salt Act, 1944, that excise duty was levied on tobacco by the Central Government and the levy of the octroi duty on the tobacco in question was covered by the excise duty and therefore not permissible. The Appellate Assistant Commissioner in making the reference to the Nagpur High Court expressed his opinion that the appellant's contention that as the bidis were not sold within the municipal limits, duty was not leviable, was unsound. He however thought that because under Section of the Excise Act, excise duty was levied by the Central Government the levy of the octroi duty was 'not in consonance with Section 100 of the Government of India Act, 1935, and was ultra vires the Provincial Government. The High Court rejected the appellant's contention ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant that the. provisions of the Excise Act were contrary to the right to levy octroi duty and as that Act was passed in 1944 the right to levy octroi duty saved by Section 148 of the Constitution Act had lapsed. It was argued that although there was no express provision in the Excise Act to that effect, the definition of excisable goods and manufacture read with Entry 9 in Schedule I and the charging Section 3 in the Act led to that conclusion. It is clear that both parts of this argument are thus based on the plea that the impost of any duty at any stage before bidis are manufactured is excise duty and therefore the levy of octroi duty is illegal. Section 66 (1) (e) of the Central Provinces Municipali- ties Act, 1922, runs as follows :-- an octroi on animals, or goods brought within the limits of the municipality for sale, consumption or use within those limits; The words excisable goods and. manufacture '' are defined in Section 2 of the Central Excises and Salt Act, 1944. as follows --.' 2. (d) excisable goods means goods specified in the First Schedule as being subject to a duty of excise and includes salt; 2. (f) manufacture include ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... other competent authority. Section 143 can be considered in two ways. If the Government of India Act did not bring the particular impost of tax by the Provincial Government within the legislative powers of the Centre, by reason of the inclusion of such tax in List I of the Seventh Schedule, the pre-existing right of the Provincial Government to levy such tax remained unaffected. If so, Section 143 of the Government of India Act did not affect such legislation and the same continued to be valid and operative under Section 202 of the Constitution Act. If however the levy of such tax by the Provincial Government was a subject which was within the exclusive legislative power of the Centre by reason of such tax being included in List I of the Seventh Schedule, the levy of such tax under the Provincial legislation continued to be valid until the Central Legislature passed an Act the provisions whereof were contrary to the provisions of the Provincial legislature or to the levy of a tax under the Provincial Act. Examining next the contentions of the appellant it seems clear that octroi duty as levied by the respondent comes within the exact wording of Entry 49 of List 11 of the Seven ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he power to impose duties of excise, to the other taxes on the sale of goods. It is natural enough, when considering the ambit of an express power in relation to an unspecified residuary power, to give a broad interpretation to the former at the expense of the latter. The case however is different where as in the Constitution Act there are two complementary powers, each expressed in precise and definite terms. There can be no reason in such a case for giving a broader interpretation to one power rather than to the other; and there is certainly no reason for extending the meaning of the expression duties of excise at the expense of the Provincial power to levy taxes on the sale of goods. In The Governor-General in Council v. The Province of Madras [1942] F.C.R. 129, the Judicial Committee approved of the distinction drawn in this case between the excise duty and a tax on sale. There the question arose in respect of tax on the sale of excisable goods. Their Lordships observed as follows:- An exhaustive discussion of this subject (namely, the meaning of the term duty of excise from which their Lordships have obtained valuable assistance is to be found in the judgment of the Fede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Excise Act. Even before it is converted into bidis or any other article mentioned in the entry it has become excisable goods and liable to pay excise duty. The levy of such duty is therefore not in conflict with the levy of an impost on the entry of the goods within a certain area. It was argued that under the rules framed by the Government under the Central Excises and Salt Act, 1944, Government retained control over the movement of the goods from the beginning till the end. This argument is not of assistance in determining the nature of the octroi tax. As Government has to collect excise duty and the rate of duty varies in respect of different shapes in which the excisable goods are ultimately converted, there is nothing unnatural in the Government keeping a control and note of the articles till the manufactured article becomes a commodity, and is mixed up with the commodities used by the people at large. The argument that Entry 49 in List 11 being in conflict with Entry 45 in List I of Schedule Seven to the Constitution Act, Entry 49 should be read as for consumption or use, except for manufacture of goods , in our opinion, is unsound. In the first place, the approach ..... X X X X Extracts X X X X X X X X Extracts X X X X
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