TMI Blog1945 (1) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... were Respondents, and the validity of the same provisions of the same Act was in issue. This case will be referred to as the Boddu Paidanna case. 2. The legislative powers of the Federal and Provincial legislatures respectively are defined in the Government of India Act, 1935, sometimes called The Constitution act, and it will be convenient to refer to them before examining the provisions of the impugned Madras Act. [His Lordship read the provisions of Section 100, Sub-Sections 1, 2, 3 and 4 of the Government of India Act, 1935, and entry No. 45 of the Federal Legislative List, and No. 48 of the Provincial Legislative List, and continued:] It is on these two entries respectively that the parties rely, the Respondent contending that entry No. 48 of the Provincial legislative List authorizes and justifies the impugned provisions of the Madras Act, the Appellant contending that so far as those provisions purport to impose a tax on first sales they in effect impose a duty of excise and are therefore an encroachment on the power given exclusively to the Federal Legislature by entry No. 45 of the Federal Legislative List. Before further considering the provisions of the Constitut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ealer in respect of the goods sold at the time of or before the delivery thereof; (ii) any cash or other discount on the price allowed in respect of any sale and any amount refunded in respect of articles returned by customers shall not be included in the turnover, and (iii) where for accommodating a particular customer, a dealer obtains goods from another dealer and immediately disposes of the same to the said customer, the sale in respect of such goods shall be included in the turnover of the latter dealer but not in that of the former. 4. Section 3, the taxing section, provides as follows: 3(1) Subject to the provisions of this Act, every dealer shall pay in each year a tax in accordance with the sale specified below:-(a) if his turnover does not exceed 20,000 rupees, 5 rupees per month. (b) If his turnover exceeds 20,000 rupees, one half of one per cent, of such turnover. Provided that any dealer whose turnover in any year is less than 10,000 rupees shall not be liable to pay the tax under this Sub-section for that year: Provided further (1) that in respect of the same transaction of sale, the buyer and the seller shall not both be taxed, but only one of them, as shall be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds. No other succinct description could be given of it except that it is a tax on the sale of goods . It is, in fact, a tax which according to the ordinary canons of interpretation appeals to fall precisely within entry No. 48 of the Provincial Legislative List. It is necessary, then, to consider the contention, which in the Boddu Paidanna case [1941] Fed. L. J. 352. found favour with the High Court of Madras, that the Madras Act, so far as it imposes a tax on first sales of goods manufactured or produced in India is ultra vires the Provincial legislature. This contention is thus clearly stated in the Appellant's formal reasons on the present appeal: (1) a tax on the manufacturer or producer of goods on the first sale thereof is a duty of excise, (2) under the provisions of the Constitution Act the Appellant has, and the Respondent has not, power to impose a duty of excise, (3) the provisions of entry No. 48 in the Provincial Legislative List must be construed subject to the provisions of entry No. 45 in the Federal Legislative List. The third reason thus stated rests on the opening words of Section 100, Sub-Section 1, of the Constitution Act. Notwithstanding anything i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... icial interpretation. Here there is no question of direct and indirect taxation, nor of the definition of specific and residuary powers. The Indian constitution is unlike any that have been called to their Lordships' notice in that it contains what purports to be an exhaustive enumeration and division of legislative powers between the Federal and Provincial legislatures. Where there is such an enumeration, the language of the one list may be coloured or qualified by that of the other. The problem is different when on the one hand there are specific, and on the other, residuary, powers. The Appellant's fundamental contention is that the power to impose a duty of excise, which is given to the Federal legislature alone by entry No. 45 of the Federal List, entitles that legislature and no other to impose a tax on first sales of goods manufactured or produced in India. No other meaning, it is contended, can fairly be given to the words duty of excise than one which includes a tax on the first sales of such goods. If such a construction involves that violence must be done to the plain meaning of entry No. 48 of the Provincial List, that, it is said, is contemplated and safegu ..... X X X X Extracts X X X X X X X X Extracts X X X X
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