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1996 Supreme(AP) 53
Andhra Pradesh High Court
Judges : C.V.N.SASTRY, S.PARVATHA RAO
Singareni Collieries Company - Appellant
Versus
Siripoor paper Limited, Hyderabad - Respondent
Decided On : 01-31-96
The State Legislature does not have the competence to levy cess on royalty.
Headnote:
CESS ON ROYALTY - ANDHRA PRADESH (TELANGANA AREA) DISTRICT BOARDS ACT, 1955 - SECTION 135(1) - VALIDITY OF CESS LEVY ON ROYALTY - INTERPRETATION OF EX. B-1 AND B-2 NOTIFICATIONS - REFUND OF CESS PAID UNDER PROTEST.
Fact of the Case:
Plaintiff, a coal purchaser, filed two suits against the defendant, a coal supplier, seeking a refund of cess on royalty paid under protest during two periods. The plaintiff contended that the cess was not legally leviable as per Section 135(1) of the Andhra Pradesh (Telangana Area) District Boards Act, 1955 (Telangana Act). The defendant argued that the cess was authorized by Ex. B-1 and B-2 notifications issued by the Government of India and that the plaintiff was contractually bound to pay all legal cesses.
Finding of the Court:
The court held that the State Legislature had no competence to levy cess on royalty and that the levy and collection of the cess in question were not legal. However, the court also noted that the defendant had paid the cess to the State Government and that the plaintiff had not challenged the constitutional validity of the levy or the State Legislature's competence to levy the cess on royalty.
Issues: 1. Whether the cess on royalty levied by the State Government was legally valid? 2. Whether the defendant was entitled to collect the cess on royalty from the plaintiff under Ex. B-1 and B-2 notifications? 3. Whether the plaintiff was liable to pay the cess on royalty under the contract between the parties?
Ratio Decidendi: 1. The court relied on the decisions of the Supreme Court and the Andhra Pradesh High Court to hold that the State Legislature did not have the competence to levy cess on royalty. 2. The court interpreted Ex. B-1 and B-2 notifications to hold that the defendant was entitled to collect the cess on royalty levied and collected by the State Government. 3. The court held that the plaintiff was bound to pay only legal cesses and that the cess on royalty was not legally leviable.
Final Decision: The court allowed the appeals, set aside the judgment and decrees of the lower court, and dismissed the suits. The court held that the plaintiff was not entitled to a refund of the cess paid under protest.
( 1 ) THE short and interesting question that arises in these two appeals is whether the Plaintiff i. e. , the respondent in the appeals, is entitled to refund of the cess on royalty paid to and collected by the defendant-appellant in these appeals - of rs. 5,48,580-40/-for the period 17-4-1976 to 31-1-1979 and Rs. 7,34,493-80/-for the period 28-2-1979 to 31-1-1982 as claimed respectively in O. S. No. 25 of 1979 and o. S. No. 99 of 1986 on the file of the learned subordinate Judge, Khammam. The latter suit was originally instituted as O. S. No. 8 of 1982 on the file of the learned Subordinate judge at Kothagudem and after it was transferred to the learned Subordinate Judge s court at Khammam, it was re-numbered as o. S. No. 99 of 1986.
( 2 ) THE facts in brief relevant for the disposal of these two appeals are as follows:
( 3 ) DURING the periods in question, the plaintiff purchased coal from the defendant. It is not in dispute that the pithead prices at which coal was sold by the defendant during the said periods were governed by Ex. B-1 notification published in the Gazette of india dated 1-8-1975 whereunder Government of India fixed the pithead prices on and from 1-8-1975 under Clause 4 of the Colliery control Order, 1945 as continued in force by section 16 of the Essential Commodities Act, 1955. The prices for the coal purchased by the plaintiff from the defendant were specified in part-II of Table-I of Ex. B-1 notification. Clause 3 of the said notification as amended by Ex. B-2 notification dated 4-10-1975 provided inter alia, that the pithead prices in table-I were exclusive of royalty and cesses, if any, levied by the Government, local authorities or other bodies, excise duty and sales tax and that "colliery owners shall be entitled to add an amount equal to such increase, in addition to excise duty and sales tax to the pithead price specified in the said Table". It is not in dispute further that during the periods in question the defendant charged in respect of the coal supplied to the plaintiff, cess on royalty in addition to the price as fixed under ex. B-1 and that the plaintiff paid the same to the defendant under protest. Having failed in pursuading the defendant to desist from charging and collecting the cess on royalty on the coal supplied to it, the plaintiff laid o. S. No. 25 of 1979 for a declaration that it was not liable to pay any cess under Section 135 (1) of the Andhra Pradesh (Telangana areas) District Boards Act, 1955 (the telangana Act for short) as applied under the andhra Pradesh Panchayat Samithis and Zilla parishads Act, 1959, and to restrain the defendant, their men etc. , from including the amount under the head mineral Cess or any other cess under the Telangana Act in the bills which would be raised in future with regard to supply of coal to the plaintiff by issuing perpetual injunction against the defendant, and to direct the defendant to supply coal as on 12-4-1979 without any break by issuing mandatory injunction against it, and to pass a decree for Rs. 5,48,580-40/- against the defendant and costs. Thereafter, the plaintiff laid O. S. No. 8 of 1982 for recovery of rs. 7,34,493-80/- being the amount paid by the plaintiff to the defendant from 28-2-1979 towards the cess on coal supplied by the defendant to the plaintiff with future interest at 12% per annum and costs. The two suits were tried together and by common judgment dated 27-2-1987, the learned Subordinate Judge decreed the suits without costs. The defendant preferred the present appeals questioning the same.
( 4 ) THE learned Subordinate Judge took the view that Section 135 of the Telangana Act did not authorise levy of cess on royalty because under that provision cess could be levied only on land revenue payable to Government and the expression land revenue did not include royalty in view of the definition of the expression revenue under Section 2 (17) of the Andhra pradesh (Telangana Area) Land Revenue
