Judgment

HEGDE, J.: Two questions of law viz. (1) whether the levies impugned in the suit from which this appeal arises, are invalid and (2) whether the civil courts have jurisdiction to entertain that suit, arise for decision in this appeal by a certificate.

2. The respondent company is the owner of Ramnagar colliery. It is also the owner of iron and steel factories and workshops at Hirapur and Kulti. Ramnagar colliery is a "coal mine". The coal raised from the Ramnagar colliery is by and large used in the manufacturing processes carried on in the iron and steel factories and workshops at Hirapur and Kulti. Some coal was also sold by the respondent company to outsiders. In the years 1946-47, 1947-48 and 1948-49, the respondent company lodged a return before the Collector of Burdwan under Section 72 of the Bengal Cess Act of 1880 (to be hereinafter referred to as the Act). Therein the company valued the coal supplied by the colliery to the factories mentioned earlier at Rs. 6/11/5 per ton, a sum less than the actual cost of raising the coal and computed the profits of the colliery on that basis. The company adopted the same basis for the purpose of paying education cess under Section 31 of the Bengal Primary Education Act, 1930. The provisions of the said Act in the matter of levy of education cess are similar to that of the Act. The Cess Deputy Collector who was the assessing authority under the Act as well as the Collector of Burdwan, the assessing authority under the Bengal Primary Education Act, rejected the returns submitted by the respondent company and computed the profits of the colliery, valuing the coal supplied by it to factories mentioned at Rs. 12/8/- per ton which was the control rate at the relevant time. On that basis the Cess Deputy Collector called upon the respondent company to pay Rs. 39,852/5/- as road cess and public works cess for the years 1946-47, 1947-48 and 1948-49. The Collector of Burdwan computed the education cess payable by the company for the years 1946-47 and 1947-48 at Rs. 21,661/90 P. and called upon the company to pay the same. The respondent company paid the said amounts under protest. Thereafter it instituted the present suit for refund of Rs. 44,428/4/3, which according to it was the excess amount collected from it. It also prayed for a declaration that it earned no profits from the Ramnagar colliery during the years 1946-47, 1947-48 and 1948-49, from the coal consumed in its own workshops and factories and as such no road or public works cess or education cess in respect of the same could have been assessed and levied on it and that the impugned levies were ultra vires.

3. The trial court decreed the suit as prayed for. The appellant took up the matter in appeal to the High Court of Calcutta. The High Court dismissed the appeal by its judgment dated April 17, 1962.

4. In order to decide the points in controversy, it is necessary to read the relevant provisions of the Act. It is not necessary to refer to the provisions of the Bengal Primary Education Act separately as the provisions therein, relevant to the topics under discussion being similar to those in the Act. The preamble to the Act says that it is a law relating to rating for the construction, charges and maintenance of District communications and other works of pubic utility and of Provincial Public Works within the territories administered by the Lt. Governor of Bengal and to the levy of a road cess and a public works cess on immovable property situate therein and to the construction of local committees for the management of the proceeds of the said road cess and also to provide for the construction and maintenance of other works of public utility out of the proceeds of the said road cess. It was not disputed that the validity of education cess depends on our findings as regards the validity of public works cess and road cess. Section 5 of the Act which is the charging section read at the relevant time:-

"From and after the commencem