Gwalior Trade Fair Authority vs Union of India

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2011 Supreme(MP) 709

2011 (3) JLJ 431
S.K. Gangele and Sheel Nagu, JJ.
Gwalior Trade Fair Authority
v.
Union of India and others
Writ Petition No. 1533 of 2011 (Gwalior);
Decided on : 13.9.2011.

Advocates Appeared:
Arvind Dudawat for petitioner;
K.L. Gupta for respondents.

Headnote:(1) Finance Act, 1994 -- Ss.65 (19a), 76 and 77 -- Gwalior Vyapar Mela Pradhikaran Adhiniyam, 1996 -- Ss. 2,3, 6 and 8 -- petitioner is an Authority constituted under the provisions of the Adhiniyam, 1996 -- an annual Mela is organised in the City of Gwalior -- object of constitution of ‘Gwalior Trade Fair Authority‘ is to manage and control the trade fair -- Government departments used to exhibit activities of the concerned departments -- Central Government and the State Government providing incentives -- Authority issues licences to exhibit or sale the products in the trade fair to various companies and individuals -- petitioner/Authority is not organizing it as a commercial venture -- therefore, petitioner is not liable to pay service tax under the provisions of the Finance Act, 1994.
       Held: The service tax has been imposed on the basis of the fact that the service has also been become a part of commercial activities. But, the State has other foreign functions apart from commercial activities although in some affairs the State is also involved in commercial activities and it is getting profit from those activities. However, the present case is not the case in which it has to be held that the petitioner-Authority has been providing service. In this view of the matter, in our opinion, the petitioner is not liable to pay service tax under the provisions of the Finance Act, 1994 and subsequent amendments made therein. (2007)7 SCC 527 referred to. [Para 25]
       (2) Constitution of India -- Art. 265 -- taxation law -- should clearly contain the subject of tax -- who is liable to pay -- at which rate is to be paid -- if any of the ingredients is missing there is not tax in law. 2001(1) BLJ 254 (SC) followed, [Para 22]
       (3) Constitution of India -- Art.226 --for issuance of writ of certiorari -- alternative remedy is not a bar. [Para 26]
        ¼1½ foRr vf/kfu;e] 1994 && /kkjk 65 ¼19d½] 76 rFkk 77 && Xokfy;j O;kikj esyk izkf/kdj.k vf/kfu;e] 1996 && /kkjk 2] 3] 6 rFkk 8 && ;kph vf/kfu;e 1996 ds v/khu xfBr izkf/kdj.k gS && Xokfy;j uxj esa okf"kZd esyk vk;ksftr fd;k tkrk gS && ^Xokfy;j O;kikj esyk izkf/kdj.k^ xfBr djus dk mn~ns‘; O;kikj esys dk izca/k vkSj fu;a=.k djuk gS && ljdkjh foHkkx lacaf/kr foHkkxksa ds dk;Zdykiksa dk izn‘kZu fd;k djrs gSa && dsUnzh; ljdkj vkSj jkT; ljdkj izksRlkgu iznku djrh gS && izkf/kdj.k fofHkUu daifu;ksa rFkk O;fDr;ksa dks mRikn iznf‘kZr djus rFkk fodz; djus ds fy, vuqKfIr;k¡ tkjh djrk gS && ;kph!izkf/kdj.k bls okf.kfT;d m|e ds :i esa vk;ksftr ugha djrk && vr%] foRr vf/kfu;e] 1994 ds mica/kksa ds v/khu lsok dj lank; djus ds fy, nk;h ugha gSA
       vfHkfu/kkZfjr % lsok dj bl rF; ds vk/kkj ij vf/kjksfir fd;k x;k gS fd lsok Hkh okf.kfT;d fdz;kdykiksa dk Hkkx gSA ijarq] jkT; ds ikl okf.kfT;d fdz;kdykiksa ds vykok vU; fotkrh; dk;Z gS ;|fi dqN ekeyksa esa jkT; okf.kfT;d fdz;kdykiksa esa Hkh varoZfyr gS rFkk mu fdzz;kdykiksa ls ykHk izkIr dj jgk gSA rFkkfi] izLrqr ekeyk ,slk ekeyk ugha gS ftlesa ;g vfHkfu/kkZfjr fd;k tkuk gS fd ;kph&izkf/kdj.k lsok iznku dj jgk gSA ekeys ds bl voyksdu esaa] gekjh jk; esa] ;kph foRr vf/kfu;e] 1994 rFkk i‘pkr~orhZ mlesa fd, x, la‘kks/kuksa ds mica/kksa ds v/khu lsok dj lank; djus ds fy, nk;h ugha gSA ¼2007½7 ,l lh lh 527 fufnZ"VA
       ¼iSjk 25½
       ¼2½ Hkkjr dk lafo/kku && vuq- 265 && djk/kku fof/k esa && dj dk fo"k; vko‘;d :i ls lekfo"V gksuk pkfg, && lank; dk dkSu nk;h gS && fdl nj ls mldk lank; fd;k tkuk gS && ;fn buesa ls fdlh /kVd dk vHkko gS] fof/k esa dksbZ dj ugha gSA 2001¼1½ ch ,y ts 254 ¼mPpre U;k-½ vuqlfjrA
       ¼iSjk 22½
       ¼3½ Hkkjr dk lafo/kku && vuq- 226 && mRizs"k.k fjV tkjh djus ds fy, && vkuqdfYir mipkj otZu ughaaAa
       ¼iSjk 26½

ORDER

Per Gangele, J. -- 1. Petitioner has filed this petition against the order dated 30.4.2010, Annexure P-14, passed by the Assistant Commissioner, Central Excise Division, Gwalior, and the order dated 21st October 2010, Annexure P-15 passed by the Commissioner (Appeals), Customs, Indore.

2. The petitioner is an Authority, constituted under the provisions of the Gwalior Vyapar Mela Pradhikaran Adhiniyam, 1996, hereinafter referred to as the 'Act of 1996'. Since last more than a century, near about 105 years, an Annual Mela is being organized in the city of Gwalior. Initially, it was in the shape of 'cattle-fair', however, in the year 1930 the concept was changed and general fair was organized so the people buy various items of consumption and some entertain can also be provided to persons during their visit at Mela. Ex-Ruler of the Gwalior State earmarked certain land for the purpose of holding the Mela. Since its inception the land has been used exclusively for Mela (Fair) and the place is known as 'Mela-ground'. After merger of the erstwhile Gwalior State in the State of Madhya Pradesh, the State of Madhya Pradesh had been organizing the Mela. In order to make effective control in organizing the Mela the State Legislature enacted an enactment, named as the 'Gwalior Vyapar Mela Pradhikaran Adhiniyam, 1996', which received the assent of the Governor on the 28th December 1996. The object of enactment of the Act of 1996 was to provide better management and control over the 'Gwalior Trade Fair'. Section 2 of the aforesaid Act defines 'Authority' and 'Trade Fair', which is as under:

"2, Definitions. -- In this Act, unless the context other requires, --

(i) "Authority" means the Gwalior Trade Fair Authority constituted under section 3;

(ii) "Trade Fair" means trade, industrial, agricultural cattle fairs or any other fair as may be specified by the State Government from time to time held at Gwalior Trade Fair area."

3. Section 3 of 5the Act of 1996 prescribes 'Constitution of Gwalior Trade Fair Authority' and the object of constitution of Authority is to manage and control the trade fair. Section 6 thereof prescribes management and control of the Trade Fair; which is as under:

"6. Management and control of the Trade Fair. -- As soon as the Authority constituted by the State Government under section 3, the management and control of the Gwalior Mela and the assets and liabilities, if any, of the Gwalior Mela Committee managing the Gwalior Mela at the time of constitution of the Authority together with all funds, if any, shall pass on and be vested in the Authority."

4. Section 10 of the Act of 1996 prescribes 'Fund of the Authority' and section 7 prescribes 'Levy of Rent by the Authority'. As per this section the Authority is authorized to levy rent for the land comprised in the area. Section 8 of the Act prescribes 'Power to grant licence', which is as under:

"8. Power to grant licence. -- The Authority may prescribe fees on payment of which and conditions subject to which any person or class of person may be licensed to ply any profession, trade or calling in the trade fair during the period of trade fair."

From perusal of section 8, quoted above, it is clear that Authority can prescribe fees on account of grant of licence to ply any profession, trade in the trade fair during the period of trade fair.

5. After enactment of the Act of 1996, the petitioner, who is an ‘Authority’ constituted under section 3 of the Act of 1996, has been controlling the trade fair at Gwalior city. In the course of the aforesaid Act, it allots parcels of the land to various companies/individuals and Government departments, who puts their stalls in the Mela. The Government departments used to exhibit the activities of the concerned departments so the general public can get information about the activities of the departments. There is also a separate place where the entrepreneur of Small Scale Industries from various States of the country used to come and displ

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2011 Supreme(MP) 709

2011 (3) JLJ 431 S.K. Gangele and Sheel Nagu, JJ.Gwalior Trade Fair Authority v. Union of India and others Writ Petition No. 1533 of 2011 (Gwalior); Decided on : 13.9.2011.

2011 (3) JLJ 431
S.K. Gangele and Sheel Nagu, JJ.
Gwalior Trade Fair Authority
v.
Union of India and others
Writ Petition No. 1533 of 2011 (Gwalior);
Decided on : 13.9.2011.