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Judgment
S.N. Phukan, J.—By this common judgment and order I propose to dispose of a batch of writ petitions as indicated in the cause title of the judgment. The grievances of the writ Petitioners is common and points involved are also same.
the Writ Petitioners are manufacturers of veneer and their factories are located within the State of Nagaland. The Petitioners send veneer outside the State of Nagaland for the purpose of manufacturing plywood. Payment of excise duty is also made for the veneer manufactured before it is sent to other States.
The State of Nagaland issued a notification on 23rd of August, 1985 by which "exit duty" (surcharge) was levied on veneer sent out of State of Nagaland. The rate was fixed at 20 paise per square metre. The said notification is available at Annexure-A to the writ petition registered as Civil Rule No. 2914/91/14(K)/93. From the notification, it appears that exit duty was imposed by the Govt. by exercising powers u/s 33(2)(H) of Nagaland Forest Act, 1968 (in short "Act"). The Petitioners sent representation against imposition of such exit duty without any result. Again, by notification dated 5th of February, 1990 the exit duty, of 20 paise per square metre on veneer was enhanced to 40 paise per square metre. The said notification is available at Annexure-F to the above writ petition. From the notification it appears that in order to discourage deforestation and to enhance royalty collection on the movement of forest produce, the State Govt. enhanced the exit duty by exercising powers u/s 32(2)(c) of the Act. Hence the present petition.
No counter affidavit has been filed on behalf of the State Govt. Dr. Sarma, learned Advocate General has submitted that all the petitions can be disposed of without any affidavit as only legal points are involved. Heard counsel for the writ Petitioners.
In the . Seventh Schedule to the Constitution, powers of the State Legislature for imposing tax has been specifically laid down. Before the Constitution (42nd Amendment) Act, 1976 "Forest" was in the State List of the Seventh Schedule but by the above amendment it was transferred to Concurrent List of the said Schedule and was included as Item 17A. Even prior to above amending Act the State Legislature was not empowered to impose any tax on forest. In the Concurrent list the state Legislature has not been empowered to impose any tax on forest.
This matter came up before the apex court in Kunnathat Thathunni Moopil Nair Vs. The State of Kerala and Another, wherein it was held that the State Legislature cannot impose any tax on Forest though taxes on land on which forest stands is permissible and legal under Entry No. 49 of the State List in the Seventh Schedule to the Constitution. It was also held that Entry No. 19 which includes "FOREST" in the Stats List before the above amending Act was different from Entry No. 49 and these two entries dealt with entirely different objects. Therefore, in the cases in hand, State Legislature is not empowered to impose any tax on forest. So the limited question to the decided in these cases is whether any exit duty or fee can be imposed by the State Govt. under the Act or Rules framed there under on veneer.
The question whether veneer is a forest produce or not came up before this Court in Civil Rule Nos. 1552/89, 1154, 1363 and 1488 of 1993 and the Single Bench by judgment dated 2.7.93 held that the veneer is not a forest produce. I have perused the judgment and I do not find any reason to take a different view. I may only add here the ratio laid down by Gujarat High Court which I respectfully agree.
In Fatesang Gimba Vasava and Others Vs. State of Gujarat and Others, it was held that bamboo being a tree would certainly fall within the definition of ''forest-produce'' but topples, supdas and palas made out of bamboo chips would not fall within the definition of forest-produce. It was also held that bamboo as a whole may be a forest-produce but any product made out of bamboo by using human labour and if such product is a totally different commodity having a distinct character and is also commercially known as a new product it ceases to be a forest-produce. The judgment was delivered by Hon''ble Mr. Justice A.M. Ahmadi (as His Lordship then was).
Dr. Sarma has drawn attention of this Court to the definition of "timber" in Sub-clause (2) of Clause (6) of Section 2 of the Act. According to Dr. Sarma timber includes trees when they have fallen or have been felled, and all wood, whether cut up or fashioned or hollowed out for any purpose or not. Relying on the above definition, according to Dr. Sarma as logs are taken to the mill and cut into different sizes after removing the bark and thereafter the out log pieces are fitted in the milling machine for making thin layers of the above logs and thereafter these layers are cut into different sizes and these cut pieces are called veneers, therefore, veneer is obtained only by fashioning timber and therefore, veneer is also a timber.
As I have held that this point has already been decided by this Court, therefore, submission of Dr. Sharma has no force. That apart, though veneer is produced from logs, but for such production human labour is used and through machine a different product is produced which is commercially known is veneer having a new add distinct identity different from timber. Therefore, it cannot be said that veneer is also timber or forest produce. I may also refer to the decision of the apex court Ganesh Trading Co., Karnal Vs. State of Haryana and Another, wherein it was held that rice is not known as paddy and it is a misnomer to call rice as paddy and they are two different things in ordinary parlance. Rice is produced after the paddy is dehusked and there is a change of identity of goods. Similarly, timber logs are processed by human labour through machines and veneer is produced and therefore, there is a change in the identity of the goods. Therefore, by no stress of imagination it can be said that veneer is timber or forest-produce under the Act. On this ground alone the impugned order is liable to be quashed.
By the first notification exit duty was imposed u/s 33(2)(H) of the Act. But by the second notification such exit duty was enhanced by exercising powers u/s 32(2)(c) of the Act.
According to Section 32 no person shall fell, cut, girdle, mark, lap tap, or injure by fire or otherwise any reserved trees, except in accordance with rules made by the State Government in this behalf. There is no Sub-clause (2) in the Section 32 and it is very clear that under this section the legislature has not delegated any power to the subordinate authority to impose exit duty. Therefore, the impugned notification enhancing the exit duty ought not to have been issued by exercising powers under this Section 32.
Clause (c) of Sub-section (2) of Section 33 empowers the State Govt. to make rules to regulate or prohibit the felling, cutting, girdling, marking, looping, tapping, or injuring by fire or otherwise of any tree, the sawing conversion, and removal of timber, and the collection and removal of other forest produce. This regulatory provision also does not invest powers by the State Legislature on the sub-ordinate authority to impose the exit duty. Dr. Sarma has urged that the expression "Sawing conversion" will definitely include conversion of logs into veneer. Even if the contention or Dr. Sarma is accepted it cannot be held that it empowers the State Govt. to impose any duty on veneer if it is taken out from the State of Nagaland.
According to Dr. Sarma mentioning of the wrong section in the notification is not important but if there is any source of power either under the Act or under any Rules framed there under to impose such exit duty the impugned notification cannot be quashed only on the ground that wrong sections were mentioned in the said notification. Contention of Dr. Sarma has force. Now, let me consider whether there is any provision either in the Act or Rules framed there under regarding imposition of exit duty.
Dr. Sarma has drawn attention of the court to Clause (c) and (d) of Sub-section (2) of Section 40 of the Act and also Sub-section (1) of the sold Section. According to Sub-section (1) control of all rivers and their banks as regards the floating of timber, as well as the control of all forest produce in transit by land or water, is vested in the State Government, and the Government may make rules to regulate the transit of any forest produce. Reading Clause (c) and (d) it appears that powers have been entrusted with the State Government to make rules for issue, production and return of "such passes" and fix or authorise any Forest Officer, Subject to the control of the State Government to fix fees payable for such passes. From reading Section 40, I hold that powers of the State Government regarding transit pass is a regulatory measure and before issuing such passes fees may be levied. It is settled law that for the purpose of fees there has to be some elements of ''quid pro quo''. In other words, the Government has to justify fixing rate of such fees for the service rendered. But, in the case in hand, there is nothing on the record to show that the exit duty / fees was imposed for issuing transit passes and the amount fixed has relation for the expenditure incurred by the Govt.
Mr. Choudhury has urged that transit passes are necessary only for removing logs and it cannot take into form of exit pass for taking out veneer outside the State of Nagaland. In this connection learned Counsel has submitted that after payment of royalty on the logs instead of removing these logs from the State of Nagaland by taking exit pass these logs are processed in the machine and veneer is produced. According to Mr. Choudhury and also Mr. Maheswari no transit pass is required for taking out veneer from the State of Nagaland. They have also submitted that veneer is taken out after payment of excise duty, sales tax and therefore, question of transit pass does not arise. I find considerable force in the submission of the learned Counsel for the writ Petitioners. Attention of his court has also been drawn that in view of imposition of restriction by the forest. officials in the State of Assam, State of Nagaland by letter dated 22nd November, 1986 informed all the owners of veneer mills that transit pass for transportation of veneer to a particular district has to be obtained. But, subsequently by letter dated 23rd November, 1993 issued by the Sub-ordinate forest officials of Assam informed that no transit pass is required for transportation of veneer as it is a finished product. Copies of these two letters have been annexed as Annexures I & IV to civil rule Nos. 540 and 541 of 1988 which were filed before this Court.
The Dictionary meaning of the timber, veneer, sawing have been placed before this Court. But, in my opinion, I need not consider these definitions in view of what has been stated above regarding veneer vis a-vis forest produce.
Drawing attention of this Court to the notification dated 23rd August, 1985, Dr. Sarma has urged that exit duty was actually a surcharge as stated in the said notification though the words "surcharge" has been omitted in the subsequent notification dated 12th February, 1990, According to Dr. Sarma the surcharge has been imposed on the royalty collected by the State Govt. for timber used for manufacturing veneer. In this connection, the rules framed u/s 33(2)(H) of the Act and notified on 8th May, 1975 prescribing the schedule of rates of royalty on all classes of forest produce removing from any forest in Nagaland have been referred to. Under heading E clause rates have been specified for all other species of logs but not mentioned any other clauses in the said rule and under this clause E rates of logs in cubic metre have been laid down.
Dealing with the question of surcharge the apex court in Commissioner of Income Tax, Kerala Vs. K. Srinivasan, it was held that surcharge is a charge in addition to an extra charge. Their Lordships considered the definition of surcharge in Webster''s New International Dictionary according to which the word ''''surcharge" includes among others "to charge (one) too much or in addition ...." also ''"additional tax".
The Rajasthan High Court also considered this word "surcharge" in Aditya Mills Ltd., Madanganj-Kishengarh and Others Vs. Rajasthan State Electricity Board, Jaipur and Others, and held that surcharge may be levied by way of additional burden in respect of tax, fee, cess or duty. It was also held that whether surcharge is an additional tax or additional fee or not it would certainly depend upon the original charge. I am in respectful agreement with the above views expressed by the Rajasthan High Court.
According to Dr. Sarma in view of the word used namely, "surcharge" in the notification what was levied in form of exit duty was only surcharge on the original royalty realised by the Govt. I am unable to accept the contention of Dr. Sarma in as much as royalty means a payment reserved by the grantor or patent, lease of a mine or similar right and payable for the use of such right by the grantee. Therefore, the royalty cannot be imposed on any timber or forest produce which do not belong to the Govt. But by the two notifications exit duty on veneer has been imposed irrespective of the fact whether veneer is produced from logs obtained from private forest or Govt. forest. Though Dr. Sarma has urged that the question of obtaining logs from private forest vis-a-vis Govt. forest for manufacturing veneer has not been taken in the writ petitions and as such, this point cannot be taken. I am unable to accept the contention of Dr. Sarma inasmuch as this is a legal point and can be raised at any time. I may also refer to the decision of the apex court in the District Council of the Jowai Autonomous District, District Council of the Jowai Autonomous Distt., Jowai and Others Vs. Dwet Singh Rymbai etc., regarding realisation of royalty from private forest.
Mr. Choudhury has submitted that exit duty cannot be imposed as the powers of State Legislature is limited in view of item No. 52 of List II of Seventh Schedule to the Constitution which empowers the Legislature to impose tax on entry of goods and there is no such entry for imposing tax on exit of goods. I have already held that tax on forest produce cannot be imposed if veneer is not taken as a forest produce. I accept the submission of the learned Counsel for the writ Petitioners that no amount can be realised in form of taxes for exit of veneer from the State of Nagaland.
According to Dr. Sarma even if by the impugned notifications it is held that surcharge cannot be levied in the form of additional royalty at least for the licences issued for taking out veneer from the State of Nagaland the Govt. may charge a fee for granting the privilege to the mill owners for taking out veneer from the State. In this connection, Dr. Sarma has placed reliance in two decisions of apex court namely, Govt. of Government of Andhra Pradesh Vs. Anabeshahi Wine and Distilleries Pvt. Ltd., and Southern Pharmaceuticals and Chemicals, Trichur and Others Vs. State of Kerala and Others, These two decisions are regarding grant of licenses for manufacturing and selling intoxicants. Law is well settled that alcoholic liquor and other intoxicants stands on a different footing and the above ratio laid down to the above two decisions can not be made applicable to the cases in hand.
A point has been urged on behalf of the writ Petitioners that exit duty is in fact taxes on forest produce/veneer.
The law is well settled regarding tax and fee/duty. Tax is a compulsory exaction of money by a public authority for public purpose, the payment of which is enforced by law and is collected to meet the general expenditure of the State without reference to any special benefit to be conferred upon the payers of the tax. On the other hand, fees/duties are payments primarily in the public interest but for some special service rendered or some work done for the benefit of those from whom payments are demanded. In other words, in fee / duty there is always an element of ''quid pro quo'' which is absent in a tax, (see Mahant Sri Jagannath Ramanuj Das and Another Vs. The State of Orissa and Another,
In the cases in hand, there is nothing to show that the exit duty was imposed for any special service rendered by the State Govt. In other words, there is no element of ''quid pro quo''. That apart the exit duty has been imposed at a flat rate namely, percentage basis. Therefore, I find considerable force in the submission of the learned Counsel for the writ Petitioners that the present exit duty has been imposed not as a payment for service rendered by the Govt. Therefore, it is in the form of a tax which the State Govt. has no authority to impose on veneer or even on forest produce.
The next point urged on behalf of writ Petitioners is that the present exit duty is a restriction on inter-state trade and commerce and intercourse and as provision of Article 304 has not been complied with the impugned notifications are bad in law. On the other hand, Dr. Sarma has urged that the Act in question was asseuted to by the President and as such, provisions of Article 304 of the Constitution have been complied with.
The Act in question does not authorise directly to impose any exit duty for export of any forest produce outside the State. Only in Rule 3 of the Rules to Regulate the export of Forest Produce, 1969 framed u/s 40 and 68 of the Act it has been provided that exit duty on timber shall be levied at the rates specified in the Schedule. According to Dr. Sarma these rules are not under challenge, therefore, the State Govt. can impose exit duty. I am unable to accept the contention of Dr. Sarma inasmuch as exit duty imposed by the two notifications arc definitely a restriction on inter-state trade and commerce and before notifying these rules Article 304 of the Constitution was not complied with. According to Dr. Sarma the rules are to be placed before the State Legislature u/s 73 of the Act and as the Act was assented to by the President, there was proper compliance of Article 304 of the Constitution. This submission of Dr. Sarma is not acceptable inasmuch as the sub-ordinate authority without complying the provisions of the Article 304 of the Constitution cannot impose any such restriction on inter-state trade and commerce. In this connection, I may refer to the decisions of apex court in Atiabari Tea Co., Ltd. Vs. The State of Assam and Others, and Bishambhar Dayal Chandra Mohan and Others Vs. State of Uttar Pradesh and Others, Of course, in Bishamber Dayal Chandra Mohan v. State of UP (Supra) it was held that regulatory measures would not come within the purview of restriction contemplated by Article 301 of the Constitution but by the impugned notification by imposing the exit duty the Govt. imposed tax and not any regulatory measures.
Attention of this Court has also been drawn to the decision of the apex court in Lakshman and Others Vs. State of Madhya Pradesh, In that case the court held that there is no rational basis for distinction made between the owners of cattle belonging to the State of Madhya Pradesh and the owners of cattle belonging to other States and therefore, levy of prohibitive grazing fees on owners of cattle belonging to other States was struck down. In the case in hand also it has been urged that exit duty has been imposed on veneer only if it is exported from the State of Nagaland and as such, it is ultra vires of the Constitution. I find force in the submission.
Now the question that has to be considered is regarding refund of exit duty so far paid. There is no dispute that such exit duty paid by the mill owners were ultimately passed on to the consumers. Therefore, any refund of such exit duty would amount to unjust enrichment. Therefore, I am unable to accept the submission of the learned Counsel of the writ Petitioners for issuing direction for refund of the amount realised as exit duty from the mill owners,
On behalf of the writ Petitioners various decisions have been cited including the decision of the apex court in Salonah Tea Co. Ltd. and Others Vs. Superintendent of Taxes, Nowgong and Others, wherein it was held that assessment made and tax recovered was without jurisdiction and immediately after decision of the High Court that tax was illegal, writ petitions were filed and on this facts the apex court held that Assessee were entitled to refund of tax paid under mistake of law. In my opinion this ratio is not applicable to the present petitions inasmuch is the first notifications was issued imposing exit duty on 23rd August, 1985 and this was not challenged. Only when the second notification enhancing the exit duty was issued on 5th February, 1990, this Court was approached. It may be stated that by order dated 25.5.91 passed in civil rule no 2914/91/14(K)/92 this Court directed that Petitioners may take out veneer by paying 20 paise per square metre as exit duty as before. In other words, the Petitioners were allowed to take out veneer from the State of Nagaland at the rate fixed by the notification dated 23rd August, 1985.
Therefore, in addition to the fact of unjust enrichment, I am of the opinion that the Petitioners are not entitled to get refund as they did not approach this Court after the first notification was issued on 23rd August 1985 and when this Court was approached after the second notification was issued, the Petitioners were allowed to take out the veneer on payment of exit duty at the old rates. I, therefore, reject the prayer of the writ Petitioners for refund of the exit duty already paid.
In the result, all the writ portions are allowed and the impugned notifications dated 23rd August, 1985 and 5th February, 1990 by which exit duty was imposed by the Government on veneer are quashed. But the writ Petitioners shall not be entitled to get any refund of the exit duty already paid. Parties are to bear their own costs.