(Delivered by Veeraswami, J.).

The petitioners are carrying on business in jaggery, groundnut and other articles at Vellore and Tirupattur in North Arcot Dt. This district has been declared under S. 4(1) of the Madras Commerical Crops Act 1933 to be a notified area in respect of groundnut and certain other commodities. The petitioners state that on their purchases of groudnuts in the notified area in the year 1962-63, a cess of Rs. 5298-05 by way of salestax has been levied and collected under S. 18(1) of the Madras Agricultural Produce Markets Act 1959 read with the relative by-law framed by the committee under S. 30(1), but they were, however, served by the Commercial tax officer, North Arcot, with a notice dated 21-1-1963, provisionally proposing to levy under the Madras General Sales tax Act 1959 tax on a total turnover of Rs. 32,05,977-50. The notice mentioned that the petitioners had effected purchases of groundnut for the period from 1-4-1962 to 27-12-1962 to an extent of Rs. 25,64,502 which were liable to tax at 1 per cent. Another notice dated 19-3-1964 followed, in which it was said that the petitioners had effected purchases of groundnuts to a tune of Rs. 24,55,925-13 from agriculturists, and of Rs. 16752-38 through market committees, and that they were proposed to be taxed on first purchases in the notified area. The petitioners contend that the proposed assessment will be violative of Art. 286(3) of the Constitution and S. 15 of the Central Salestax Act 1956. According to them, tax having already been collected once on the turnovers under S. 18 of the Madras Agricultural Produce Markets Act 1959, a second levy on identical transactions under the Madras General Salestax Act will be illegal. They pray, therefore, that the proposed assessment should be forbidden. The respondents take the stand that the cess under S. 18 of the Madras Agricultural Produce markets Act is not a tax on sale of goods, but a fee, and, therefore, no question of the proposed final assessment offending Art. 286(3) or S. 15 could arise.

On the view we are inclined to take, it seems to us to be unnecessary to decide the question whether what is levied under S. 18 of Madras Act 23 of 1959 is a tax or fee. There are two Bench decisions of this court, Kutti Keya v. State of Madras(1) and Kannappa Mudaliar v. State of Madras(2) and connected petitions, which have expressed different views. The former decision took the view that the levy under S. 18 was in the nature of salestax though it went into a separate fund called the Market Committee Fund under S. 20 and was to be appropriated to certain purposes specified by the enactment as it stood then. The section has since been amended in 1955, and, as amended, it expressly provides that the market committee shall levy a cess by way of salestax on any notified agricultural produce bought or sold in the notified market area at a rate not exceeding fifty naya paisa for every hundred rupees of the aggregate amount for which the notified agricultural produce is bought or sold whether for cash or for deferred payment or other valuable consideration. The section as it stands now also says that the cess levied under the Section shall be subject to the provisions of Art. 286 of the Constitution. S. 20 provides for a separate market committee fund into which the cess levied under S. 18 is to go and S. 21 directs that the market committee fund shall be expended for only the purposes specified in that section. With reference to these provisions, in the latter decision, this Court was of the view that imposts under S. 18 was in the nature of a fee. Kumaram & Co. v. Secretary, Malabar Committee and Seshagiri Pai & Co. v. Dy. Commissioner of S. Kanara the first on the provisions of the Madras Act itself and the second on a similar enactment in the Mysore State, proceeded upon the view that the impost was in the nature of a tax.

The dividing line between a “tax” and a “fee” has become very much thinned as a result of judicial pronouncements over recent years. Broadly speaking, a tax is an exaction for general purposes of Government and therefore no element of quid pro quo is to be looked for in it. A “fee” is raised for a defined purpose and is to make good the expenses incurred in rendering service to a specified class of people. A “fee” is therefore, a return for services and is paid, normally speaking, by the recipients of the service, actually or in a notional sense. A “tax” is not identified with any purpose and is unrelated to any specified service to any defined class of persons. Though generically there may be no difference between “tax” and “fee”, the different indicia just mentioned may assist to distinguish one from the other. The test which was once applied, namely, whether the particlar impost when collected goes into the consolidated fund, does not appear to be a decisive test, because there are imposts in the nature of taxes which do not go into the consolidated fund. In recent cases the test has been applied to what exactly is the object of the levy of its essential purpose or whether there is any service done to the payer of the levy: Hinger Rampur Coal Co. v. State of Orissa(3) and Corporation of Calcutta v. Liberty Cinema(4). The first of these cases was concerned with the Orissa Mining Areas Development fund Act. The Act was passed for the purpose of the development of mining areas in the State. S. 4 of the Act provides for imposition and collection of cess which shall not, under S. 5, exceed five per cent of the valuation of the minerals in the pit's mouth. A fund called the “Orissa Mining Areas development Fund” was constituted under S. 5 which vested in the State Government and had to be administered by such officer or officers as may be appointed by the State Government in that behalf. The cess so levied was not to become a part of the consolidated fund of the State and was not subject to appropriation in that behalf. The Supreme Court held that as the fund was a special fund earmarked for carrying out the purposes of the Act and there was a co-relation between the cess levied under the Act and the purposes for which it was levied, the levy was in the nature of a fee and not a tax. In coming to that conclusion, the test applied by the Supreme Court was:

“In such a case it is necessary to enquire what is the primary object of the levy and the essential purpose which it is intended to achieve. Its primary object and the essential purpose must be distinguished from its ultimate or incidental results or consequences. That is the true test in determining the character of the levy”.

But this test was also invoked in Corporation of Calcutta v. Liberty Cinema which was concerned with Calcutta Municipal Act. In that case a licence fee on a cinema house fixed in 1948 at Rs. 400 per year was increased to Rs. 6000 in 1958. This was done by changing the basis of assessment and fixing it at Rs. 5 per show. The majority view was that though the increase was large, it was authorised by S. 548 of the Act and that it was a tax and not a fee in return for services to be rendered by the Corporation. The majority of learned judges observed—

“……the Act does not provide for any services of special kind being rendered resulting in benefits to the person on whom it is imposed. The work of inspection done by the Corporation which is only to see that the terms of the licence are observed by the licencee is not a service to him”.

In Mohamed Hussain v. State of Bombay(5) the Supreme Court had to consider the character of the levy under the provisions of the Bombay Agricultural Produce Markets Act, which were more or less in pari materia with the provisions of the Madras Act as it was considered in Kuttikeya v. State of Madras(6). On an examination of the entire provisions of the Act, the Supreme Court observed that the market committee which was authorised to levy fee provided by S. 11 of the Bombay Act rendered services to the licencees, particularly when the market was established and that under the circumstances it could not be said that the fee charged for services rendered by the Market committee in connection with the enforcement of the various provisions of the Act and the provisions for various facilities in the various markets established under the Act was in the nature of salestax. In Kuttikeya v. State of Madras this Court thought that the impost under S. 11 of the Madras Act as it stood then was in the nature of a tax. In taking that view it purported to follow the principle of Attorney General for British Columbia v. Esquimalt and Nanaina Ry, Co.. The Judicial Committee in that case considered the question whether a charge made under the Forest Act on the owners of timber land was a tax or a service charge imposed for protecting forests from fire and the like, and expressed the following opinion:

“It is suggested, however, that there are two circumstances, which are sufficient to turn the levy into what is called a ‘service charge’. They are, first, that the levy is on a defined class of interested individuals and secondly, that the fund raised does not fall into the general mass of the proceeds of taxation but is applicable for a special and limited purpose. Neither of these considerations appears to their Lordships to have the weight which it is desired to attach to them……The fact that in the circumstances the persons particularly interested are singled out and charged with a special contribution appears to their Lordships to be a natural arrangement. Nor is the fact that the levy is applicable for a special purpose of any real significance. Imposts of that character are common methods of taxation-taxation for the road fund in this country was a well known example”.

This Court accordingly held that the amounts to be collected under S. 11 of the Madras Act as it stood then were taxes notwithstanding that they were not brought into the consolidated fund of the State under Art. 266(1) but went into a separate fund constituted for the purpose and that the levy itself was only on a section of the public. In Shanmugha Oil Mills v. Coimbator Market Committee, Ramachandra Iyer J. as he then was, took a similar view. Srinivasan, J., in Malaipettai v. State of Madras, also thought that the levy U.S 18 of the Madras Agricultural Produce Markets Act 1959 is a salestax and not a fee.

While on the one hand, Mr. Rajah Aiyar for the petitioners pressed upon us that the levy under S. 18 is a salestax, learned Government Pleader for the respondents contended that it is but a fee. Each of them placed reliance upon one or the other decision of this Court which is in his support. That being the position, had it been necessary to decide the point, we should have referred the question to a Fuller Bench,

In our opinion, however, the petition is capable of disposal on a very narrow point. Art. 286(3) as it appears after the sixth amendment of the Constitution, places certain limitations on the taxing powers of a State. It says—

“Any law of a State shall, in so far as it imposes, or authorises the imposition of a tax on the sale or purchase of goods declared by Parliament by law to be of special importance in inter-State trade or commerce, be subject to such restrictions and conditions in regard to the system of levy, rates and other incidents of the tax as Parliament may by law specify”.

That means the Parliament may declare particular goods to be of special importance in inter-State trade or commerce. The Parliament may place such restrictions and conditions on a State law imposing tax on the sale or purchase of such goods. The restrictions and conditions to be prescribed by the Parliament by law should be related to the system of levy, rates and other incidents of the tax. In accordance with this provision, the Parliament has enacted Ss. 14 and 15 of the Central Salestax Act 1956. Sec. 14 specifies certain goods as declared goods which are of special importance in inter-State trade or commerce. Sec. 15 of the Act is in two parts, of which we are only concerned with the first. That is to the effect that every salestax law of a State, in so far as it relates to imposition of tax on the sale or purchase of declared goods, would be subject to the two limitations, namely, the tax payable under such law in respect of sale or purchase of such goods inside the State shall not exceed two per cent of the sale or purchase price thereof, and such tax shall not be levied at more than one stage. It follows, therefore, that no State law can impose more than two per cent on the sale or purchase of declared goods, and such levy should be at only one stage. In other words, the State law should be limited to (a) rate of two per cent and (b) to a single point levy. If a State law contains provisions contrary to the limitations and provides for a rate higher than two per cent and authorises multi-point tax, the effect of Art. 286(3) read with S. 15 of the Central Act Sales tax Act would be to automatically modify the State law in so far as it relates to declared goods and to bring such law in conformity with the said article and the section.

Sub-sec. (1) of S. 18 of the Madras Agricultural Produce Markets Act 1959, authorises the market committee to levy a cess by way of salestax on any notified agricultural produce bought or sold in the notified market area at a rate not exceeding 50 naya paise for every hundred rupees of the aggregate amount for which the notified agricultural produce is bought or sold. The first explanation to this provision embodies a rule of presumption, unless the contrary is proved, all notified agricultural produce taken out or proposed to be taken out of a notified market area shall be presumed to be bought or sold within such area. There is a second explanation which does not require to be noticed for the present purpose. Sub-S. (2) enacts that the ‘cess’ referred to in Sub-S. (1) shall be paid by the purchaser of a notified agricultural produce concerned. But if such a purchaser cannot be identified, the cess should be paid by the seller. Sub-S. (3) says that the cess levied under Sub-S. (1) shall be subject to the provisions of Art. 286 of the Constitution. It may be seen that the levy that is contemplated under S. 18 is not a single point levy and cess will have to be paid on every sale or purchase of goods within the notified area. The section also does not fix a particular rate at which the levy should be made. It only fixes the maximum and delegates to the market committee the authority to fix a rate subject to the maximum of fifty naye paise for every hundred rupees of the aggregate amount of sale or purchase of agricultural produce. Sec. 18 also applies to all kinds of goods, including declared goods. But in the case of sale or purchase of declared goods, in the notified area, by reason of Art. 288(3) of the Constitution and S. 15 of the Central Salestax Act, the levy under S. 18 is necessarily not to exceed two per cent and it is allowed only at a single point. In fact, as we mentioned earlier, Sub-S. (3) of S. 18 itself makes Sub-S. (1) subject to Art. 286.

Sri Rajah Aiyar's contention is that as a part of the turnover in question has already been subjected to a levy under S. 18(1) at a rate of thirty naye paise for every hundred rupees of such turnover, a second levy under the provisions of the Madras General Salestax Act on the identical turnover is illegal. Realising that the tax levied under the provisions of the Central Salestax Act on sale of groundnuts at the point of first purchase is at only one per cent and that the tax under both the Acts put together will not exceed two per cent, he contends that whatever be the rate, whether it be two per cent or below, it should be applied only once and a multiple levy on the same transaction, though at an aggregate rate of or below two per cent, is not permissible under S. 18 of Madras Act XXIII of 1959 read with S. 15 of the Central Salestax Act. We are unable to accept this contention. Though the levy may be under two different enactments, both should be regarded as one for purposes of S. 18 of the Central Salestax Act. Subject only to the requirement that the levy should be at identical point at a fixed stage in the series of transactions, there is nothing in S. 15 of the Central Saletax Act which forbids multiple levy of rates amounting to two per cent or below in the aggregate on such identical point. If the Madras General Salestax Act authorises a levy of one per cent in the case of purchases of groundnuts at the stage of first purchase in our opinion, it is not objectionable to Madras Act XXIII of 1959 also levying at the point of first purchase a tax which, taken with the tax levied under the Madras General Salestax Act, does not exceed two per cent. The whole idea underlying S. 15 of the Central Salestax Act is that the declared goods should not in the aggregate suffer a tax at the rate of more than two per cent both in inter-State and inter-State trade.

The contention for the State, however, is that if the impost under S. 18 is regarded as a sales tax, it fixes no particular point at which the levy can be made in the light of Art. 286(3) of the Constitution and S. 15 of the Central Salestax Act. As we mentioned, the scheme of S. 18 is to provide for multipoint tax; but as a result of Art. 286(3) and S. 15 of the Central Salestax Act, S. 18 as in the case of sale or purchase of declared goods is limited to a rate of two per cent and to a single point levy. But S. 15 itself beyond saying that the levy can only be at one stage, does not prescribe any particular point in the series of sales or purchases. The fixation of the point in Conformity with S. 15 is left to the particular State Legislature. The automatic modification S. 18 brought about by Art. 286(3) and S. 15 does not extend, therefore, to defining the single point in the series of transactions at which the levy of cess is to be made under S. 18(1). Our attention has been invited to a by-law made by the market committee in this case, which prescribes thirty naye paise for every hundred rupees of the aggregate amount for which groundnut is brought or sold and proceeds to say:

“The cess referred to in sub-law (1) shall not be levied more than once on agricultural produce bought or sold in the notified market area. The cess due in accordance with the rates prescribed under sub-law (1) above shall, in the case of transactions occurring in the Regulated Markets, be collected from the buyer there. In all other cases the cess shall be payable by the last buyer before the agricultural produce is taken out of the notified market area or before it is taken for being consumed in a processing or manufacturing concern within the notified area”.

It is manifest from the by-law that the rate of levy is to be at 30 naya paise for every hundred rupees of the aggregate turnover, that the levy is to be at the stage of purchase in the regulated market and that if the transaction is outside the regulated market, the cess is payable by the last buyer before the agricultural produce is taken out of the notified market area or before it is taken for consumption in the manner mentioned in the by-law. The contention for the petitioner is that the by-law, therefore prescribes a stage different from the point at which tax may be levied under the provisions of the Madras General Sales-tax Act. In the latter the first purchase of groundnut attracts tax. But under S. 18 of the Madras Agricultural Produce markets Act, read with this by-law, the tax is payable by the last buyer if the purchase is outside the regulated market area. The by-law itself, in our view, appears to be without authority. In the absence of any authority to the committee to prescribe the point at which the levy could be made, we do not see how and under what authority the market committee can make a by-law or a rule fixing the single point in the series of sales at which the cess can be levied under S. 18. S. 18 itself is silent about the point at which the cess can be levied. In fact S. 18, as we said, contemplates a multi-point tax. But when the section is modified based on Art. 286(3) and S. 15, the necessity arises for the State Legislature to fix the point, namely, whether it is the first purchase or the last purchase or any intermediate purchase that will attract the cess or provides for authority to the market committee to fix the point at which the cess will be payable. Since, following the modification effected by Art. 286(3) and S. 15, no point of levy has been fixed by the State Legislature, and no authority has been given in the alternative to the market committee to fix the point the cess said to have been collected from the petitioners under S. 18 at the point of last purchase which by accident happens to be the first purchase by him is not one authorised by-law. On that view, we consider that the respondents are entitled to proceed under the provisions of Madras General Sales-tax Act in respect of the turnover in question. Before we part with this case we make it clear that we express no view as to whether any part or whole of the disputed turnover consisted of first purchase of groundnuts. This is a matter entirely for investigation by the assessing officer in the light of the particular facts present before it.

The petition is dismissed, but in the circumstances with no costs.

V.C.S