Koluthara Exports Ltd. Vs. State of Kerala and Others
EmailAppeal: C.A. No. 12788 of 1996 with SLPs (C) Nos. 23932-23936 of 1996
Petitioner: Koluthara Exports Ltd.
Respondent: State of Kerala and Others
Apeal: C.A. No. 12788 of 1996 with SLPs (C) Nos. 23932-23936 of 1996
Judges: S.B. MAJMUDAR & V.N. KHARE, JJ.
Date of Judgment: Sep 24, 1997
Head Note:
CONSTITUTION
Article 366 (28) – “Tax” – Definition – Compulsory imposition by State Legislature under List III, Entry 32 – Whether a “Tax” or “Fee” – Decision in Gasket Radiation case holding it neither “Tax” nor “Fee” – Constitution Bench and another Three Judges Bench holding that it can be either by way of “Tax” or by “Fee”. Held that matter be placed before Bench of Three Judges after obtaining orders from Hon’ble CJI.
Article 366 (28) – “Tax” – Definition – Compulsory imposition by State Legislature under List III, Entry 32 – Whether a “Tax” or “Fee” – Decision in Gasket Radiation case holding it neither “Tax” nor “Fee” – Constitution Bench and another Three Judges Bench holding that it can be either by way of “Tax” or by “Fee”. Held that matter be placed before Bench of Three Judges after obtaining orders from Hon’ble CJI.
Cases Reffered:
1. Gasket Radiators (P) Ltd. v. ESI Corpn.((1985) 2 SCC 68: 1985 SCC (L&S) 400)
2. Corpn. of Calcutta v. Liberty Cinema ( (1983) 4 SCC 45: 1983 SCC (Tax) 248: AIR 1983 SC 1019) (AIR para 20 at p. 1116)
3. Hoechst Pharmaceuticals Ltd. v. State of Bihar (AIR para 76 at p. 1044 : SCC para 76 at p. 92)
JUDGEMENT:
ORDER
A Bench of three learned Judges of this Court in the case of Gasket Radiators (P) Ltd. v. ESI Corpn.((1985) 2 SCC 68: 1985 SCC (L&S) 400) has taken the view that any contribution imposed by the State Legislature enacted in exercise of its legislative power under Concurrent List Entry 23 would not amount to either tax or fee. The said judgment was strongly pressed into service by the learned Additional Solicitor General appearing for the respondent-State. On the other hand, learned counsel for the appellant, placing reliance on a decision of a Constitution Bench of this Court in the Corpn. of Calcutta v. Liberty Cinema ( (1983) 4 SCC 45: 1983 SCC (Tax) 248: AIR 1983 SC 1019) (AIR para 20 at p. 1116) and also a decision of three learned Judges of this Court in Hoechst Pharmaceuticals Ltd. v. State of Bihar (AIR para 76 at p. 1044 : SCC para 76 at p. 92) and on the definition of “tax” as found in Article 366(28) of the Constitution of India, submitted that a compulsory impost can be either by way of tax or fee and that these aspects were not considered in the decision of this Court in Gasket Radiators (Supra). In view of these submissions, we deem it fit to refer this matter to a Bench of three learned Judges for considering these rival contentions centering round the decision of the Bench of three learned Judges of this Court in Gasket Radiators (Supra). The office shall place these matters before an appropriate Bench of three learned Judges after obtaining orders from the Hon’ble Chief Justice of India.
A Bench of three learned Judges of this Court in the case of Gasket Radiators (P) Ltd. v. ESI Corpn.((1985) 2 SCC 68: 1985 SCC (L&S) 400) has taken the view that any contribution imposed by the State Legislature enacted in exercise of its legislative power under Concurrent List Entry 23 would not amount to either tax or fee. The said judgment was strongly pressed into service by the learned Additional Solicitor General appearing for the respondent-State. On the other hand, learned counsel for the appellant, placing reliance on a decision of a Constitution Bench of this Court in the Corpn. of Calcutta v. Liberty Cinema ( (1983) 4 SCC 45: 1983 SCC (Tax) 248: AIR 1983 SC 1019) (AIR para 20 at p. 1116) and also a decision of three learned Judges of this Court in Hoechst Pharmaceuticals Ltd. v. State of Bihar (AIR para 76 at p. 1044 : SCC para 76 at p. 92) and on the definition of “tax” as found in Article 366(28) of the Constitution of India, submitted that a compulsory impost can be either by way of tax or fee and that these aspects were not considered in the decision of this Court in Gasket Radiators (Supra). In view of these submissions, we deem it fit to refer this matter to a Bench of three learned Judges for considering these rival contentions centering round the decision of the Bench of three learned Judges of this Court in Gasket Radiators (Supra). The office shall place these matters before an appropriate Bench of three learned Judges after obtaining orders from the Hon’ble Chief Justice of India.
