Judgment

SUBBA RAO, J. : These two appeals by certificates are filed against the judgment and decree of the High Court of Madhya Pradesh, Jabalpur, by the two defendants in Civil Suit No. 1 of 1957, a Suit filed by the Union of India, owning and representing the Central and Western Railways Administrations, New Delhi, against the said defendant, for the recovery of coal cess amounting to Rs. 81-4-0 and costs.

2. The material facts may be briefly stated. Under Ordinance No. 39 of 1944, the Central Government was authorized to levy and collect as a cess on all coal and coke despatched from collieries in British India a duty of excise at such rate, not exceeding Rs. 1-4-0 per ton. In exercise of the power conferred on the Central Government under S. 5 of the Ordinance, the said Government made rules; and under R. 3 thereof, the duty of excise imposed under the Ordinance on coal and coke shall, when such coal and coke is despatched by rail from collieries or coke plants, be collected by the Railway Administration by means of a surcharge on freight, and such duty of excise shall be recovered either from the consignor or the cosignee, as the case may be. On January 1, 1947, February 1, 1947, and February 7/9, 1947, the second defendant namely the Amalgamated Coalfields, despatched by rail to the first defendant three consignments of coal from Junnor-Deo to Indore. The freight for the three consignments was payable at the destination station i.e. Indore. The first defendant duly paid the freight and took the delivery of the coal. But by some mistake the cess payable as surcharge on the three consignments was not recovered from the first defendant at the time of delivery of the goods. Under S. 55(5) of the Indian Railways Act the Railway Administration can recover the freight or any balance thereof left unrecovered by way of suit. On April 15, 1953, the Union of India, representing the Central and Western Railways Administrations, flied Civil Suit No. 126 of 1953 in the Court of the Civil Judge, II Class, at Chhindwara, for the recovery of the said cess. The High Court withdrew the case and took it on its own file for trial on the ground that important questions of interpretation of the Government of India Act, 1935, and the Constitution were involved, and it was numbered as Civil Suit No. 1 of 1957. The defendants, inter alia pleaded that the levy was illegal and the suit was barred by limitation. The High Court held that the suit was within time under Art. 149 of the Limitation Act and that the defendants were liable to pay the cess and decreed the suit. The first defendant filed Civil Appeal No. 183 of 1959 and the second defendant filed Civil Appeal No. 184 of 1959 against the said decree.

3. At the outset we may take up two of the points, which were not mentioned in the statement of case, raised by Mr. Viswanatha Sastri, learned counsel for the appellant in Civil Appeal No. 183 of 1959. The said points are: (1) Coal cess is a fee and not a tax or duty, and (2) the first defendant i.e., the consignee, was a non-resident and, therefore, the Ordinance not having extra-territorial operation could not reach him. These two contentions do not find place in the statement of case as they should. Under Order XVIII R. 2 of the SC Rules, each party shall lodge is case within the time prescribed therein, and, under R. 3 thereof, the said case shall consist of two parts, and Part II, which is relevant now, says that it shall set out the propositions of law to be urged in support of the contentions of the party lodging the case. The object of the statement of the case is not only to enlighten the Court on the questions that would be raised before it, but also to enable the opposite party to know beforehand the arguments he would have to meet and to prepare his case. That the statement of case should be complete and full is also emphasized by the fact that, under the Schedule of Fees, a decent fee is prescribed to the junior and senior advocates fo