# INDIAN MICA & MICANITE INDUSTRIES LID v. STATE OF BIBAR & ORS - **Citation:** [1971] Supp. 1 S.C.R. 319 - **Court:** Supreme Court of India - **Decided:** 1971-04-02 - **Case number:** Civil Appeal No. 770 of 1967 - **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/indian-mica-micanite-industries-lid-v-state-of-bibar-ors-5248 - **Pages:** 10 ## Headnote ... 319 INDIAN MICA & MICANITE INDUSTRIES LID. A v. STATE OF BIBAR & ORS. April 2, 1971 IS. M. Snoo, c. J., G. K. MITTER, K. s. HEGDE, A. N. GROVER B AND P. JAGANMOHAN REDDY, JJ.] Bi/Jar and Orissa ExCise Act, 1915, s. 90 and rules made thereunder, r. 111-Levy of licence fee for possession of liquor-Whtther fee commen· 5urace 14:fth .service rendered by State-Immunity from prosecution on payment of licence fee-If quid pro quo. The appellant was using denatured spirit in the manufacture of micaC nite. It challenged. the vires of r. 111 of the Rules framed under s. 90 of the Bibar and OriSsa Excise Act, 1915, by which a fee for· a licence to possess denatured spirit was' imposed. The High Court upheld the levy as a fee for se.rvices rendered by the Government In appeal .to !his Court, HELD: (1) Denatured spirit being intoxicating liquor (though unfit D for human consumption), the State Legislature ·has power lo levy a fee. But, before the levy can be upheld as a fee it must be shown that the levy was a quid pro quo for services rendered by the GovemmenL An arithmetic exactitude is not expected but correlationship of a general character must be established. [321D·f1 In the present case, the only services rendered were that the Excise Department wr.s maintaining an elaborate staff for the purpose of ensurE ma that denahlring was done properly by the manufacturer and for the purpose of seeing that the subsequent possession of the denatured spirit was not misuaed . by converting· the denatured spirit into alcohol fit for human consumption. [326H; 327 A-BJ (a) So far as the manufacturing process is concerned the appellant had nothing to do with it. It was only a purchaser of the denatured spirit and hence the cost of supotvisiq the. manufacturing process or any asF sistance rendered to the man~ could not be recovered from consumers like the appellant. Further, under, r. 9 the.actual cost of sq~ision of the manufacturing process was required ~ be l!IJme by ·the tllllllulactunor and there could not be a double levy in that Cljlard [327B.C) (b) Assuming that the possession of the denatured spirit in the hands of various persons required close and effective supervision because of the risk of its being converted jnto potable liquor, in provi,din& against inisuse G the Stab! Was not renderlDi any service to the consumer. ' [327D) (c) Tbe appellant had alleged that the State was collecting the "!llOUnt without. rendering ipy . •vice in return. The correlationship · between the services rendered and the fee levied Is essentially a question of act. Prima fad• in the· present cue, ·the IC19Y was excessive, even 'if the State could be said to be rendering some oervice to the licensees. The State was in jlOS&tSSion of material from 'llhich the . correlationship between the levy 'H and the services rendered coukl be .Oltabliahed at least in a general way. but the State had not placed any i:natetial before the Court. Therefore, the levy under the impucned rule could DOI be justified. (327B-G) 320 SUPREME COURT IlEPORTS [1971] SUPP. s.c.R. A B c D E G H Commissioner, Hindu Religious Endowmtnts, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shir11r Mull, [1954] S.C.R. 1005, Mal1"nt Sri Jagannath Ramanuj Das & Anr. v. State of Orissa & Anr., [1954] S.C.R. 1046, Ratilal Panachand Gandhi v. State of Bombay & Ors., [1954] S.C.R. 1055, Hingir Rampur Coal Co. Ltd. v. State of Orissa & Ors., [1961] 2 S.CR. 537. H. H. Sudhuntlra Thirtha Swamiar v. Commissioner of Hindi, Religious and Charitable Endowments .. Mysore, [1963] Supp, 2 S.C.R. 302 Corporation oj Calcutta &: Anr. v. Liberty Cinema, [1965) 2 S.C.R. 477 ttnd Delhi Cloth &: General Mills Co. Ltd. v. Chi~! Commissioner, Delhi, [1970] 2 S.C.R. 348, followed. (2) The Hiah Court erred in observina that when the manufacturtr1 wanted to keep in their possession a larae quantity of denatured spirit for manufacturing purposes. they wanted a privilege and immunity from prosecution. that the payment of the ## Text ... 319 INDIAN MICA & MICANITE INDUSTRIES LID. A v. STATE OF BIBAR & ORS. April 2, 1971 IS. M. Snoo, c. J., G. K. MITTER, K. s. HEGDE, A. N. GROVER B AND P. JAGANMOHAN REDDY, JJ.] Bi/Jar and Orissa ExCise Act, 1915, s. 90 and rules made thereunder, r. 111-Levy of licence fee for possession of liquor-Whtther fee commen· 5urace 14:fth .service rendered by State-Immunity from prosecution on payment of licence fee-If quid pro quo. The appellant was using denatured spirit in the manufacture of micaC nite. It challenged. the vires of r. 111 of the Rules framed under s. 90 of the Bibar and OriSsa Excise Act, 1915, by which a fee for· a licence to possess denatured spirit was' imposed. The High Court upheld the levy as a fee for se.rvices rendered by the Government In appeal .to !his Court, HELD: (1) Denatured spirit being intoxicating liquor (though unfit D for human consumption), the State Legislature ·has power lo levy a fee. But, before the levy can be upheld as a fee it must be shown that the levy was a quid pro quo for services rendered by the GovemmenL An arithmetic exactitude is not expected but correlationship of a general character must be established. [321D·f1 In the present case, the only services rendered were that the Excise Department wr.s maintaining an elaborate staff for the purpose of ensurE ma that denahlring was done properly by the manufacturer and for the purpose of seeing that the subsequent possession of the denatured spirit was not misuaed . by converting· the denatured spirit into alcohol fit for human consumption. [326H; 327 A-BJ (a) So far as the manufacturing process is concerned the appellant had nothing to do with it. It was only a purchaser of the denatured spirit and hence the cost of supotvisiq the. manufacturing process or any asF sistance rendered to the man~ could not be recovered from consumers like the appellant. Further, under, r. 9 the.actual cost of sq~ision of the manufacturing process was required ~ be l!IJme by ·the tllllllulactunor and there could not be a double levy in that Cljlard [327B.C) (b) Assuming that the possession of the denatured spirit in the hands of various persons required close and effective supervision because of the risk of its being converted jnto potable liquor, in provi,din& against inisuse G the Stab! Was not renderlDi any service to the consumer. ' [327D) (c) Tbe appellant had alleged that the State was collecting the "!llOUnt without. rendering ipy . •vice in return. The correlationship · between the services rendered and the fee levied Is essentially a question of act. Prima fad• in the· present cue, ·the IC19Y was excessive, even 'if the State could be said to be rendering some oervice to the licensees. The State was in jlOS&tSSion of material from 'llhich the . correlationship between the levy 'H and the services rendered coukl be .Oltabliahed at least in a general way. but the State had not placed any i:natetial before the Court. Therefore, the levy under the impucned rule could DOI be justified. (327B-G) 320 SUPREME COURT IlEPORTS [1971] SUPP. s.c.R. A B c D E G H Commissioner, Hindu Religious Endowmtnts, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri Shir11r Mull, [1954] S.C.R. 1005, Mal1"nt Sri Jagannath Ramanuj Das & Anr. v. State of Orissa & Anr., [1954] S.C.R. 1046, Ratilal Panachand Gandhi v. State of Bombay & Ors., [1954] S.C.R. 1055, Hingir Rampur Coal Co. Ltd. v. State of Orissa & Ors., [1961] 2 S.CR. 537. H. H. Sudhuntlra Thirtha Swamiar v. Commissioner of Hindi, Religious and Charitable Endowments .. Mysore, [1963] Supp, 2 S.C.R. 302 Corporation oj Calcutta &: Anr. v. Liberty Cinema, [1965) 2 S.C.R. 477 ttnd Delhi Cloth &: General Mills Co. Ltd. v. Chi~! Commissioner, Delhi, [1970] 2 S.C.R. 348, followed. (2) The Hiah Court erred in observina that when the manufacturtr1 wanted to keep in their possession a larae quantity of denatured spirit for manufacturing purposes. they wanted a privilege and immunity from prosecution. that the payment of the requisite licence fee was for that purpose and that it operated as the quid pro quo. [325C-D] (a) The grantin& of a license generally does not .confer any privilege ur benefit on anyone, except in those cases where a permit or liceoce is &ranted to someone to exploit Government property. The requirement to take a licence is prescribed to safeguard public interest by regulating a trade. business or profession and not as a source of revenue. [325F-G] (b) What is made punishable is either a person's failure to Hlke a licen~c or a breach of the conditions of the licence, and the Government '-Ould not barter away its duty to prosecute an offender for consideration. Any fee levied could only be for services rendered. [325E-F] [Since the State may suffer considerable financial loss the matter was remanded to the High Court with further opportunity to the State to place the necessary material a11d show the corrclationship.] [328A] CIVIL APPELLATE JURISDICTION : Civil Appeal No. 770 of 1967. Appeal from the judgment and order dated September 14. 1966 of the Patna High Court in Civil Writ Jurisdiction Case No. 887 of 1965. Sarjoo Prasad, K. K. Sinha and B. 8. Sinha, for the appellant. S. C. Agarwa/a, R. K. Garg, V. /. Francis, Narayana Netter and S. P. Singh, for the respondents. The Judgment of the Court was delivered by Degele, J.-In this appeal by certificate the vires of Rule 111 of the Rules framed under Section 90 of the Bihar and Orissa Excise Act, 1915 is in issue. The appellant, Indian Mica & Micanite Industries contends that the said Rule is ultra vires die Constitution. The High Court of Patna rejected that contention. In the High Court variou~ contentions came up for considera· tion. The High Court has come to the conclusion that the levy made under the impugned rule is a fee. That finding was not MICA INDUSTRIES LTD. v. BIHAR (Hegde, J.) challenged before us by any of the parties. Therefore all that we have to see is whether the fee levied is within the permissible limit. In other words whether there is sufficient quid pro quo for the levy in question. The appellant is a ronsumer of denatured spirit. It purchases denatured spirit from the wholesalers or the manufacturers for the purpose of manufcaturing micanite. The Bihar and Orissa Excise Act, 1·915 (Bihar & Orissa Act 2 of 1915) came into force on January 19, 1916. In pursuance of the provisions of that Act the impugned Rule was framed by the Board of Revenue for levying licence fee. The fee for the licence to possess denatured spirit in 1919 was only Rs. 2 per annum irrespective of the quantity in the possession of a person. This rate continued to be in force till 1937. At this stage it may be remembered that under sub-section (2) of Section 143 of the Government of India Act, 1935, the Provinces were authorised to continue to levy tax, duties, cesses or fees which were being lawfully levied prior to the commencement of that Act. Under the 1935 Act as under our present Constitution, the power to levy duties on alcoholic liquor fit for human consumption was allocated to the Provincial Legislature whereas the power to levy duty on alcoholic liquor not fit for human consumption was allocated to the Central Legislature. Denatured spirit though an alcoholic liquor is not fit for human consumption ... The power to levy duty on the same was and is given to the Central Legislature. But the same being intoxicating liquor, the Provincial Legislature under the 1935 Act and at present the State Legislature has power to levy fee. The power of any Legislature to levy fee is conditioned by the fact that it must be by and large a quid pro quo for the services rendered. If a levy purporting to be a fee is found to be an exaction without doing any service or if it is found that the levy is wholly disproportionate to the services rendered then the levy becomes. invalid. The distinction between .. fee and levy came up for the first time for consideration by this Court in The Commissioner, Hindu Re/iginus Endowmmts, Madrm v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt('). Therein this Court speaking through Mukherjea, 1. (as he then was) quoted with approval the detinition of 'tax' given by Latham C. J. of the High Court of Australia in Matthews v. Chicory Marketing Board.(') In that case the learned Chief Justice observed : • ""A tax" is a compulsory exaction of money by public authority for public purposes enforceable by law and is not payment .for services rendered." (I} [19S4] S.C.R. IOOS. 21-1 S. G. lndia/'11 (2) 60 C.L.R. 263. 321 A B c D E F G H 322 B c D E p G H SUPl.EMB COIJllT 1.llP01TS [1971] SUPP. s.c.a. Dealing with the distinction between "tax" and "fee" Muldlerjca J. observed thus in the abovo-mentioned case. "It is said that the ~nee of taxation is compulsi11n, that is to say. it is imposed under statutory power without the tax-payer's consent and the payment is enforced by law. The second characteristic of tax is that it is an imposition made for public purpose without reference to any special benefit to be conferred on the payer of the tax. This is expressed by saying that the levy of tax is for the purposes of general revenue, which when collected forms part of the public revenues of the State. As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said no element of quid pro quo between the tax payer and the public authority. Another feature of taxation is that as it is a part of the common bwden, the quantum of imposition upon the tax payer depends generally upon his capacity to pay. Coming now to fees. a "fee" is generally defined to be a charge for a special service rendered to individuals by some govemmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the government in rendering the service, though in many cases the costs are arbitrarily assessed. Ordinarily, the fees are uniform and no account is taken of the varying abilities of different recipients to pay. These are undoubtedly some of the general characteristics, but as there may be various kinds of fees, it is not possible to formulate a definition that would be applicable to all cases. If, as we hold. a fee is regarded as a sort of return or consideration for services rendered, it is absolutely necessary that the levy of fees should on the face of the legislative provision, be correlated to the expenses incurred by government in rendering the services." , Th: same view was reiterated by this Court in Mahant Sri /agannath Ramanuj Das and anr. v. The State of Orissa MUI anr.(') and in Ratilal Panchand Gandhi v. The State of Bombay •nd ors.('). The nature of "a fee" again came up for consideration before this Court in The Hingir Rampur Coal Co. Ltd. and drs. v. The State of On"ssa aJtd ors.(') Therein this Court observed that co [t9S4l s.c.R. 1046. c2> [1954] s.c.R. toss. (3) [1961] 2 s.C.R. 537. MICA INDUSTRIES LTD. F. BIHAll (Htgdt, /.) although there can be no generic difference between a tax and a fee since both are comf>ulsory exactions of money by public autho· rities, there is this distinction between them that whereas a tax is imposed for public purposes and requires no consideration to support it, a fee is levied essentially for services rendered and there mnst be an element of quid pro quo between the person who pays it and the public autho1ity that imposes it. While a tax invariably goes into the consolidated fund, a fee is earmarked for the specified services in a fund created for the purpose. Whether a cess is one or the other would naturally depend on the facts of each case. If in the guise of a fee, the Legislature imposes a tax, it is for the Court on a scrutiny of the scheme of the levy, to determine its real character. The distinction is recognised by the Constitution which while empowering 1the appropriate Legislatures to levy taxes under the Entries in the three lists refers to their power to levy fees in respect of any such matters, except the fees taken in court, and tests have been laid down by this Court for determining the character of an impugned levy. In determining whether a levy is a fee the true test must be whether its primary and essential purpose is to render specific services to a specified area or class, it being of no consequence that the State may ultimately and indirectly be benefited by it. In H. H. Sudhundra Thirtha Swamlar v. Commissioner for Hindu Religious and Charitable Endowments, Mysore,(') this Court was called upon to consider whether the levy impugned in !hat case could be justified as a fee. It upheld . the levy which wa.~ an annual contribution levied under the amended Section 76(1) of the Madras Religions Endowments Act, 1951 on the ground that those contributions when collected went into a sepa· rate fund and not to the consolidated fund of the State and were earmarked for defraying the expenses for the services rendered. Further they were not even payable to the government but pay· able to the Commissioner and were levied not as a tax but only as a fee. Therein this Court further observed that a fee does nof cease to be of that character merely because there is an element of compulsion in it, nor is it a postulate of a fee that it must have direct relation to the actual service rendered. Absence of unifor· mity is not a criterion on which alone it can be said that the levy is of the nature of a tax. In Corporation of Calcutta and anr. v. Liberty Cinema (') the validity of the levy: made under Section 548 (2) of the Calcutta Municipal Act 1951 came up for consideration. Therein this Court held that the levy in question is not a "fee and return for 8ervices" as the Act does not provide for any services of a special en [t963J Supp. 2 s.c.a. 102. c2> [196512s.c.a.477. 323 A B c D E G H 324 A B c D E F G H SUPR!ME COIJAT REPORTS (1971) SUPP. S.C.Rkind being rendered, resuliliig in benefits to the person on whom it is imposed. Section 527 (43) permits by-laws to be framed for regulating the inspection, supervision and control, among others. of cinema houses ; but it is not obligatory to make such by-laws and therefore, there may be no services to render. Even the bylaw made provides only for inspection, and the work of inspection done by the appellant was only to see that the terms of the licence were observed by the licensee. It was not a service to him, and so, no question arises of correlating the amount of levy to the costs of any service. The levy therefore is not a fee and must be tax. In Delhi Cloth & General Mills Co. Ltd. v. Chief Commis- .sioner, Delhi and ors .• (') the validity of a levy" as a fee came up for consideration by this Court. Therein this Court speaking through Grover, J. (one of us) laid down that in each case when the question arises whether the levy is in the nature of a fee the entire scheme of the statutory provisions, the duties and obligations imposed on the inspecting staff and the nature of the work done by them will have to be examined for the purpose of determining the rendering of the services which would make the levy a fee. After examining the various provisions of the Factories Act, 1948 and the rules framed this Court came to the conclusion that a large number of provisions of the Act, particularly in the Chapters dealing with safety involve a good deal of technical knowledge and in the course of their discharge of duties and obli· gations the Inspectors are expected to give proper advice and guidance so that there may be due compliance with the provisions of the Act. On certain occasions the factory owners are bound to receive a good deal of benefit by being saved from the consequences of the working of dangerous machines or employment of such processes as involve danger to human life by bemg warned at the proper time as to the defective nature of the machinery or of the taking of precautions which are enjoined under the Act. Similarly if a building or a machinery or plant is in such a condition that it is dangerous to human life or safety the Inspector by serving a timely notice on the manager saves the factory owner from all the consequences of proper repairs not being done in time to the building or machiLery. In that case the High Court found that 60% of the amount of licence fees which were being realised was actually spent on services rendered to the factory owners. That finding was accepted by this Court and on the basis of that finding this Court upheld the validity of the levy. From the above discussion it is clear that before any levy can be upheld as a fee, it must be shown that the levy has reasonable correlationship with the services rendered by the Government. In (1) [1970) 2 S.C.R. 348. MICA INDUSTRIES LTD. v. BIHAR (Hegde, J.) other words the levy must be proved to be a quid pro quo for the services rendered. But in these matters it will be impossible to have an exact correlationship. The correlationship expected is one of a general character and not as of arithmetical exactitude. Let us now proceed to consider whether the levy under the impugned rule can be justified as a fee on the basis of the law as enunciated by this Court. But before doing so, it is necessary to dispose of one of the ·grounds on which the High Court upheld the levy. In paragraph 8 of the High Court's judgment, it is observed : " ...... when a manufacturer wants to keep in his possession large quantity of denatured spirit for manufacuring purposes, he wants a special privilege or concession of immunity from prosecution. For that purpose he has to obtain a licence or a pass on payment of requisite fees. There is thus a quid pro quo element and the immunity from prosecution is in the nature of a special benefit or privilege." The implication of this observation is somewhat astounding. These observations imply that the government can barter away its duty to prosecute an offender for consideration. The requirement to take a licence is prescribed to safeguard public interest and not as a source to gather revenue. What is made punishable is either a person's failure to take the required licence