# RAM KRISHNA RAMNATH AGARWAL OF KAMPTEE v. SECRETARY, MUNICIPAL COMMITTEE, KAMP TEE. UNION OF INDIA AND GOVERNMENT OF

- **Citation:** [1950] 1 S.C.R. 15
- **Court:** Supreme Court of India
- **Decided:** 1948-04-09
- **Bench:** Shri Harilal Kania C.J, Saiyid Fazl Ali, Patanjali Sastri, Mehr Chand Mahajan, MuKHERJEA, S.R. Das
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ram-krishna-ramnath-agarwal-of-kamptee-v-secretary-municipal-committee-kamp-tee-127
- **Pages:** 11

## Headnote

Govl!rnment of India Act, 1985, ss. 100, 148, 292; Sch. VII
List I, Entry 45; List II, Entry 49-0entral Exciieli and Salt Act
(I of 1944), SS. 2, a-Central Provinces Municipalities Act (II of
1922), s. 66 (1) (e)-I mport of tobacco within municipality for manu·
faoturing bidis-Tobaoco liable to Central excise duty-Levy of
ootroi duty by municipality-Legality.
Section 66 (1) (e) of the Central Provinces Municipalities Act,
1922, empowered municipalities within the Province to levy an
octroi duty on goods brought within their .limits· for sale, con·
su.mption or use within those limits. Section 3 ·of the Centr&l
Excises and S&lt Act, 1944, an Act of the Central Legislature,. provided that there shall be levied and. collected duties of excise on
all excisable goods other than salt which were produced or manu·
factured in British India, and included tbbacco in the list
of excisable goods. The question being whether a municipality
situated in the Central Pro·•inces could levy octroi duty on
tobacco brought within its limits for the purpose of manufactur·
ing bidis, in view of the exclusive power of the Central Govern·
ment to levy excise duty under Entry 45 of List I of the Seventh
Schedule to the Government of India Act, 1935, and the provisions
of s. 3 of the Central Excises and Salt Act:
Held, that excise .duty and octroi were taxes essentially diff·
erent in their nature and tho power of the Province to levy octroi
was not inconsistent with the power of the Centre to levy excise
duty on the same goods, and a municipality could therefore validly
levy an octroi duty on such tobacco under s. 66(1)(e) of the
Central Provinces Municipalities Act of 1922.
Held further, that there was nothing in the Central Excises
and Salt Act or its provisions contrary to the provisions of
s. 66(1) (e) of the Central Provinces .Municipalities Act or to the
levy of octroi duty under the same and s. 143 of the Government
of India Act, therefore, preserved the right of the municipality to
levy octroi duty under the Act of 1922.
Province of Madras v. Boddu Paidanna and Sons (1942) Ji'.C.R.
90; Governor-General in Council v. Province of Madras (1942] F.C.R
129, In re the Central Provinces and Berar Act No. XIV of 1938,
8
1950
March 14
•
16
SUPREME COURT REPORTS
[1950]
..
1950
Ram Krisltna
[1939] F.C.R. 80, Mi,. Kishori Shetty v. The King [1949) F.C.R.
650 referred to.
Administrator, Laho1'e Municipality v. Daulat Ram [1942]
Ramnatl•
F.0.R. 31 distinguished.
Agarwal of
Kamptce
Judgment of the High Court of Nagpur affirmed.
v.
APPEAL from the High Court of Judicature at NagSrmtary, Mun;. pur: Case No. III of 1948.
cipal Comn1ittee,
Kampt«
This was an appeal from a judgment and order of
Kanf4 C.J.
the High Court of Nagpur (Mis .. Civil No.158 of 1946)
dated 9th April, 1948, made on a reference under
s. 83 (2) of the Central Provinces Municipalities Act
(II of 1922) by the Extra Assistant Commissioner,
Nagpur. The facts of the case and the, arguments of
counsel appear in the judgment.
T.J. Kedar and B. B. Tawakley (Sri Narain AndJey
with them) for the appellant.
Lobo, for the respondent.
M.
0.
Setalvad,
Attorney-General
of
India,
(8. M. Sikri with him) for the Union of India.
1950. March, 14. The Judgment of the Court was
delivered by
KANIA C. J.-This is an appeal from the judgment
and order of the High Court at Nagpur, made on a
reference under Section 83 (2) of the Central Provinces
Municipalities Act II of 1922, by the Extra Assistant
Commissioner, Nagpur. The appellant is a trader in
Kamptee who manufactures bidis. On the 30th of
November, 1945, he brought to Kamptee from outside
tobacco to make bidis. A declaration form signed on
his behalf stated that the 254 bags of tobacco liable to
octroi duty, which had that day arrived at octroi post
No. 3, had been brought for use and consumption
within the limits of the Municipality. He however
put on record his protest against the recovery o'f the
duty which was fixed at Rs. 1,128-2-0. Against the
order claimi

## Text

S.C.R.
SUPREME COURT REPORTS
RAM KRISHNA RAMNATH AGARWAL
OF KAMPTEE
v.
SECRETARY, MUNICIPAL COMMITTEE,
KAMP TEE.
UNION OF INDIA AND GOVERNMENT OF
15
~.
MAD HY A PRADESH : INTERVENERS.
,
[SHRI HARILAL KANIA C.J., SAIYID FAZL ALI,
PATANJALI SASTRI, MEHR CHAND MAHAJAN,
MuKHERJEA, and S.R. DAS JJ.]
Govl!rnment of India Act, 1985, ss. 100, 148, 292; Sch. VII
List I, Entry 45; List II, Entry 49-0entral Exciieli and Salt Act
(I of 1944), SS. 2, a-Central Provinces Municipalities Act (II of
1922), s. 66 (1) (e)-I mport of tobacco within municipality for manu·
faoturing bidis-Tobaoco liable to Central excise duty-Levy of
ootroi duty by municipality-Legality.
Section 66 (1) (e) of the Central Provinces Municipalities Act,
1922, empowered municipalities within the Province to levy an
octroi duty on goods brought within their .limits· for sale, con·
su.mption or use within those limits. Section 3 ·of the Centr&l
Excises and S&lt Act, 1944, an Act of the Central Legislature,. provided that there shall be levied and. collected duties of excise on
all excisable goods other than salt which were produced or manu·
factured in British India, and included tbbacco in the list
of excisable goods. The question being whether a municipality
situated in the Central Pro·•inces could levy octroi duty on
tobacco brought within its limits for the purpose of manufactur·
ing bidis, in view of the exclusive power of the Central Govern·
ment to levy excise duty under Entry 45 of List I of the Seventh
Schedule to the Government of India Act, 1935, and the provisions
of s. 3 of the Central Excises and Salt Act:
Held, that excise .duty and octroi were taxes essentially diff·
erent in their nature and tho power of the Province to levy octroi
was not inconsistent with the power of the Centre to levy excise
duty on the same goods, and a municipality could therefore validly
levy an octroi duty on such tobacco under s. 66(1)(e) of the
Central Provinces Municipalities Act of 1922.
Held further, that there was nothing in the Central Excises
and Salt Act or its provisions contrary to the provisions of
s. 66(1) (e) of the Central Provinces .Municipalities Act or to the
levy of octroi duty under the same and s. 143 of the Government
of India Act, therefore, preserved the right of the municipality to
levy octroi duty under the Act of 1922.
Province of Madras v. Boddu Paidanna and Sons (1942) Ji'.C.R.
90; Governor-General in Council v. Province of Madras (1942] F.C.R
129, In re the Central Provinces and Berar Act No. XIV of 1938,
8
1950
March 14
•
16
SUPREME COURT REPORTS
[1950]
..
1950
Ram Krisltna
[1939] F.C.R. 80, Mi,. Kishori Shetty v. The King [1949) F.C.R.
650 referred to.
Administrator, Laho1'e Municipality v. Daulat Ram [1942]
Ramnatl•
F.0.R. 31 distinguished.
Agarwal of
Kamptce
Judgment of the High Court of Nagpur affirmed.
v.
APPEAL from the High Court of Judicature at NagSrmtary, Mun;. pur: Case No. III of 1948.
cipal Comn1ittee,
Kampt«
This was an appeal from a judgment and order of
Kanf4 C.J.
the High Court of Nagpur (Mis .. Civil No.158 of 1946)
dated 9th April, 1948, made on a reference under
s. 83 (2) of the Central Provinces Municipalities Act
(II of 1922) by the Extra Assistant Commissioner,
Nagpur. The facts of the case and the, arguments of
counsel appear in the judgment.
T.J. Kedar and B. B. Tawakley (Sri Narain AndJey
with them) for the appellant.
Lobo, for the respondent.
M.
0.
Setalvad,
Attorney-General
of
India,
(8. M. Sikri with him) for the Union of India.
1950. March, 14. The Judgment of the Court was
delivered by
KANIA C. J.-This is an appeal from the judgment
and order of the High Court at Nagpur, made on a
reference under Section 83 (2) of the Central Provinces
Municipalities Act II of 1922, by the Extra Assistant
Commissioner, Nagpur. The appellant is a trader in
Kamptee who manufactures bidis. On the 30th of
November, 1945, he brought to Kamptee from outside
tobacco to make bidis. A declaration form signed on
his behalf stated that the 254 bags of tobacco liable to
octroi duty, which had that day arrived at octroi post
No. 3, had been brought for use and consumption
within the limits of the Municipality. He however
put on record his protest against the recovery o'f the
duty which was fixed at Rs. 1,128-2-0. Against the
order claiming the amount, the appellant filed an
appeal to the Extra Assistant Commissioner with ,
revenue appellate powers, Nagpu[. He contended that
the municipality claimed to levy the duty under
Section 66 (1) (e) of the Municipal Act, but they had
'
'
;
•
S.C.R.
SUPREME COURT REPORTS
17
no right to do so as under Section 3 of the Central
I9l50
Excises and Salt Act, 1944, that excise duty was
Ram Krishna
levied on tobacco by the Central Government and the
Ramnath
levy of the octroi duty on the tobacco in question was
Agarwal of
covered by the excise duty and therefore not.permissiKamptee
ble. The Appellate Assistant Commissioner in making
v.
.
the reference to the Nagpur High Court expressed his s~cretary, M~··
· ·
h
h
11
>
•
h
h
ciPal Committee
op1mon t at t e appe ant s content10n t at as t e
Kamptee
'
bidis were not sold within the municipal limits, duty
was not leviable, was unsound. He however thought
I<aniaC.J.
that because under Section 3 of the Excise Act, e:lcise
duty was levied by the Central Government the levy
of the octroi duty was not in consonance with Section 100 of the Government of India Act, 1935, and
was ultra vires the Provincial Government. The High
Court rejected the appellant's contention and disagreed with the view of the Appellate Commissioner.
The High Court however granted a certificate under
Section 205(1) of the Constitution Act and the appellant har. come in appeal to this Court.
The Central Provinces Municipalities Act was passed
in 1922 and the relevant notifications fixing the rates
of octroi duty were issued in 1928.
No question
about the validity of the Act when passed, or of the
notifications issued in pursuance thereof has been
raised before us.
The argument on behalf of the
- appellant is that as under the Central Excises and
Salt .Act, I of 1944, tobacco became excisable goods
under Item 9 in Schedule I to that Act and continued
to be so till it got converted into bidis, the Central
Government alone was entitled to levy excise duty on
it till then.
According to the definition of 'm·anufacture' in the Excise .Act that duty could be levied
at any stage in the manufacture of bidis and therefore
any tax imposed, while tobacco was being converted
·into bidis, was excise duty. Legislation in connection
with excise duty is within the exclusive province of
the Central Legislature as shown by Entry 45 of List I
in Schedule VII of the Constitution Act. The impost of
octroi duty in pursuance of the Municipal Act, before
tobacco was made into bidis, is it wq,s argued in conflict with the legislative powers of the Centre. In this
18
SUPREME COURT REPORTS
[1950]
1950
connection our attention was drawn to AdminiBtrator,
Lahore Municipality v. Daulat Ram Kapur('), in
Ram Krishna
Ramnatli
which it was held that the levy of octroi duty on salt
Agarwal of
was not within the powers of the Provincial legislature.
Kamptee
It was argued therefore that under Section 100 of the
v.
. Government of India Act, octroi duty levied on
Secretary, Muni- tobacco under the legislative powers of the Provincial
cipal Committee, G
t
-
I'd
Th
J
t
'J
Kamptee.
overnmen was mva I
.
e on y way o reconc1 e
the two Entries, namely, Entry 45 in List I and Entry
Ka,,ia C.J.
49 in List II of the Seventh Schedule, was to read the
wo~ds "for consumption or use" in Entry 49 as meaning "for consumption or use except for manufacture
of exciBable article8". So read, the levy of octroi duty
on the facts of this case was invalid. In reply to the
argument that Section 292 of the Government of India
Act kept alive the old Provincial legislation, namely,
the Central Provinces Municipalities Act, and the
right to levy octroi duty was saved under Section 143
of the Constitution Act, it was urged on behalf of the
appellant that the provisions of the Excise Act were
contrary to the right to levy octroi duty and as that
Act was passed in 1944 the right to levy octroi duty
saved by Section 143 of the Constitution Act had
lapsed. It was argued that although there was no
express provision in the Excise Act to that effect, the
definition of "excisable goods" and "manufacture"
rea.d with Entry 9 in Schedule I and the charging
Section 3 in the Act led to that conclusion. It is clear
that both parts of this argument are thus based on the
plea that the impost of any duty at any stage before
bidis are manufactured is excise duty and therefore
the levy of octroi duty is illegal.
Section 66 (1) (e) of the Central Provinces Municipalities Act, 1922, runs as follows:-
"an octroi on animals, or goods bronght within the
limits of the municipality for sale, consumption or use
within those limits;"
The words "excisable goods" and "manufacture"
are defined in Section 2 of the Central Excises and
Salt Act, 1944, as follows:-
(11 [1942] l!'.O.R. 31.
'
'
S.C.R.
SUPREME COURT REPORTS
19
2. ( d) "excisable goods" means goods specified in
l950
the First Schedule as being subject to a duty of excise
Ram Krishna
and includes salt;'~
Ramnath
2. (f) "manufacture" includes any process incidenAgarwal of
tal or ancillary to the completion of a manuKamptee
factored product; and
s
t v. M
.
ecre ary.,
uni-
( i) in relation to tobacco includes the prepar- cipal Committee,
ation of cigarettes, cigars, cherots, bidis,
Kamptee.
cigarette or pipe or hokkah tobacco, chewing
tobacco or snuff; and
Kania C.J.
(1.1") .................
Section 3 of the Excise Act runs as follows:-
"There shall be levied and collected in such
manner as may be prescribed duties of excise on all
excisable goods ?ther than salt which are produced or
manufactured in British India, and a duty on salt
manufactured in, or imported by land into any part
of British India as, and at the rates, set forth in the
First Schedule ............ "
Entry 9 to the First Schedule of the Excise Act is
'
in these terms:-
"9. TOBACCO, CURElJ-
'Tobacco' means any form of tobacco, whether
cured or uncured, and whether manufactured or not,
and includes the leaf, stalks and stem of the tobacco
plant but does not include any part of a tobacco plant
while still attached to the earth;"
(Then follows a list of various articles into which
~
tobacco can be converted, like bidis, cigarettes, snuff,
etc. with different rates of duty mentioned against
each article.)
Sections 143 and 292 of the Government of India
Act, 1935, run as follows:-
"143.
(1) Nothing in the foregoing provisions of
this Chapter affects any duties or taxes levied in any
Federated State otherwise than by virtue of an Act of
~
the Federal Legislature applying in the State.
(2) Any taxes, duties, ceases or fees which, immediately before the commencement of Part III of this Act
20
SUPREME OOURT REPORTS
[1950)
19!50
were being lawfully levied by any Provincial Government, municipality or other local authority or body for
Ram Krishna
he
Ramnath
t
purposes of the Province, municipality, district or
~garwal of
ot-her local area under a law in force on-the first day
.Kamptee
of January, nineteen hundred and thirty-five, may,
· v.
. notwithstanding that those taxes, duties, ceases or
Secretary, Muni- fees are mentioned in the Federal Legislative List
cipal Committee
•
b 1 · d
d
b
I' d
h
'
K mptee.
' contmue to e evie an to e app 1e
to t e same
a
purposes until provision to the contrary is made by
Kania c.J.
the Federal Legislature" .
. "292. Notwithstanding the repeal by this Act of
the Government of India Act, but subject to the other
provisions of this Act, all the law in force in British
India immediately before the commencement of Part
III of this Act shall continue in force in British India
until altered or repealed or amended by a competent
legislature or other competent authority".
Section 143 can be considered in two ways. If the
Government of India Act did not bring the particular
impost of tax by the Provincial Government within
the legislative powers of the Centre, by reason of the
,
inclusion of such tax in List I of the Seventh Schedule,
the pre-existing right of the Provincial Government to
levy such tax remained unaffected. If so, Section 143
of the Government of India Act did not affect such
legislation and the same continued to be valid and
operative under Section 292 of the Constitution Act.
If however the levy of such tax by the Provincial
Government was a subject which was within the
exclusive legislative power of the Centre by reason of
•
such tax being included in List I of the Seventh
Schedule, the levy of such tax under the Provincial
legislation continued to be valid until the Central
Legislature passed an Act the provisions whereof
were contrary to the provisions of the Provincial legislature or to the levy of a tax under the Provincial Act.
Examining next the contentions of the appellant it
seems clear that octroi duty as levied by the respondent comes within the exact wording of Entry 49 of
List II of the Seventh Schedule to the Constitution
A<Jt.
Prima facie, therefore, there is no reason to
,
S.C.R.
SUPREME COURT REPORTS
21
consider the levy of the octroi duty under the Provin1950
cial legislation invalid. Such levy remained unaffectRam Krishna
ed by reason of Section 292 of the Constitution Act.
Ramnath
The argument of the appellant is that the levy of the
Agamal of
octroi duty being at a stage after the excisable article,
Kam:Ptee
viz., tobacco, came into existence and became liable to
v.
.
excise duty under the Excise Act, the levy of octroi se_~re
1
tacry, ~tutni·
d
b r
b ·d ·
d f
t b
. .
1.d c1_,,a
onmu ee,
uty elore
i is were ma e rom o acco, ls lnva 1 •
Kampteo.
In support of this argument the definition of 'excisable
·
goods', 'manufacture' and the Entry 9 in the Schedule
/{ania C.J.
to that Act were relied upon. The error underlying
the argument of the appellant is the assumption that
any impost of tax from the time tobacco came into
existence till the same was converted into bidis is
necessarily excise duty.
The Federal Court had to consider the distinction
between the duty of excise and a tax on sale in The
Province of Madras v. Boddu Paidanna and Sons(!). It
is there observed as follows:-"Plainly, a tax levied on
the first sale must, in the nature of things, be a tax on
the sale by the manufacturer or producer; but it is
levied upon him qua seller and not qua manufacturer
or producer. It may well be that a manufacturer or
producer is sometimes doubly hit ........ If the tax-payer
who pays a sales tax is also a manufacturer or producer
of commodities subject to a central duty of excise,
there may no doubt be overlapping in one sense, but
there is no overlapping in law. The two taxes which
he is called on to pay are economically two separate
and distinct imposts. There is, in theory, nothing to
prevent the Central Legislature from imposing a duty
of excise on a commodity as soon as it comes into
existence, no matter what happens to it afterwards,
whether it be sold, consumed, destroyed, or given
away ....... It is the fact of manufacture which attracts
the duty even though it may be collected latter. ·In
the case of a sales tax, the liability to tax arises on
the occasion of a sale and a sale has no necessary connection with manufacture or production". The Court
further observed that in the Constitution Act the whole
(1) (1942] F.O.R. 90.
22
SUPREME COURT REPORTS
[1950]
1950
of the taxing power in this particular sphere (power to
impose duties of excise) is expressly apportioned
Ram Krishna
Ramnath
between the Centre and the Provinces, to the one being
,1garwal of
assigned the power to impose duties of excise, to the
Kamptee
other taxes on the sale of goods. It is natural enough,
v..
. when considering the ambit of an express power in
S~mtary, M_um- relation to an unspecified residuary power to give a
ciJutl Committee
,
.
h ,,
'
·
Kamptee
' broad mterpretat1on tot e iormer at the expense of the
·
latter. The case however is different where as in the
l{anJa C.J.
Constitution Act there are two complementary powers,
each expressed in precise and definite terms.
There
can be no reason in such a case for giving a broader
interpretation to one power rather than to the other; and
there is certainly no reason for extending the meaning of
the expression "duties of excise" at the expense of
the Provincial power to levy taxes on the sale of
goods.
In The Governor-General in Council v. The Province
of Madras('), the Judicial Committee approved of the
distinction drawn in this case between.the excise duty
and a tax on sale.
There the question arose in respect of tax on the sale of excisable goods.
Their
Lordships observed as follows:-"An exhaustive discussion of this subject (namely, the meaning of the
term 'duty of excise') from which their Lordships
have obtained valuable assistance is to be found in the
judgment of the Federal Court in Re The Central
Provinces arul Berar Act No. XIV of 1938(").
Consistently with this decision their Lordships are of opinion
that a duty of excise is primarily a duty levied on a
manufacturer or producer in respect of the commodity
manufactured or produced.
It is a tax on goods not
on sales or the proceeds of sale of goods. Here, ago.in,
their Lordships find themselves in complete accord
with the reasoning and conclusions of the Federil:l
Cora-tin Boddu Paidanna case("). The two taxes, the
one levied on a manufacturer in respect of his goods,
the other on a vendor in respect of his sales, may, as
is there pointed out, in one sense overlap. But in law
there is no overlapping.
The taxes are separate and
(!) [1942) F.C.R. 129.
(8) [19U) F.C.R. 90.
(2) [1939] F.0.R. BO.
I
•
•
S.C.R.
SUPREME COURT REPORTS
23
distinct imposts. If in fact they overlap, that may be
19!50
because the taxing authority, imposing a duty of exRam Krishna
cise, finds it convenient to impose that duty at the
Ramnalh
moment when the excisable article leaves the factory
Agarwal of
or workshop for the first time on the occasion of its
KamJ>lee
sale. But that method of collecting the tax is an acv.
.
cident of administration· it is not of the essence of the secretary, Munid t
f
·
h" h · ' tt
t d b th
f
t
cipal Commillee.
u yo exmse, w 1c is a rac e
y
e manu ac ure
KamJ>tee.
itself. That this is so is clearly exemplified in those
excepted cases in which the Provincial, not the
Kania C.J.
Federal, legislature has power to impose a duty of
excise. In such cases there appears to be no reason
why the Provincial legislature should not impose a
duty of excise in respect of the commodity manufactured and then a tax on first or other sales of the
same commodity. Whether or not such a course is
followed appeara to be merely a matter of administrative convenience. So, by parity of reasoning, may the
Federal Legislature impose a duty of excise on the
manufacture of excisable goods and the Provincial
legislature impose a tax on the sale of the same goods
when manufactured."
This discussion clearly shows that the relevant
question is what is the nature of the tax. Excise duty
is a tax on manufactured goods. Octroi duty is a tax
levied on the entry of goods within a particular area.
Under the Excise Act, tobacco becomes excisable goods
within the meaning of Item 9 in the Schedule. The
subsequent use of such manufactured goods in making
different articles only affects the rate of tax. Therefore, tobacco becomes subject to excise duty when it
reaches the stage of manufacture mentioned in Item 9
of the Schedule to the Excise Act. Even before it is
converted into bidis or any other article mentioned in
the entry it has become excisable goods and liable to
pay excise 1duty. The levy of such duty is therefore
not in conflict with the levy of an impost on the entry
of the goods within a certain area ..
It was argued that under the rules framed by the Goyernment under the Central Excises and Salt Act, 1944,
Government retained control over the movement of the
1960
Ram « rishna
Raninaf/1
Agarwal of
/{amptee
v.
Secretary, M11ni·
ciPal Comtnittee,
/{ aniptee
Kania C.J.
24
SUPR!!:ME COURT REPORTS
[ 19501
goods from the beginning till the end.
This.argument
is not of assistance in determining the nature of the
octroi tax. As Government has to collect excise duty
and the rate of duty varies in respect of different
shapes in which the excisable goods are ultimately converted, there is nothing unnatural in the Government
keeping a control and note of the articles till the
manufactured article becomes a commodity, and is
mixed up with the commodities used by the people at
large. 'l'he argument that Entry 49 in List II being in
conflict with l<Jntry 45 in List I of Schedule Seven to
the Constitution Act, Entry 49 should be read as "for
consumption or use, except for manufacture of goods",
in our opinion, is unsound. In the first place, the approach to the question itself is wrong. \Vhen a particular legislation falls within the exact words of an
Entry in the Provincial List, under section 100 it is
valid and no question of reconciliation arises.
A
similar argument advanced in regard to a supposed
conflict between Entry 19 of List I and Entry 31 of List
II was rejected by us in Caae No. 27 of 1949: Miss
Kishori Shetty v. The King(1).
In the present case,
if the question of the validity of the 'Provinciallegislation arises, on the interpretation of Entry 49 in List II,
it appears that the answer must be in favour of the
validity of the legislation. The decision in Administrator, Lahore Municipality v. Daulat Ram Kapur(1)
does not help the appellant because in that case Entry
47 in List I is only "salt". A comparison with Entry
45 in List I shows distinctly that Entry 45 is limited
to excise duty and is not wide enough to cover tobacco
or other goods generally for all purposes of legislation.
The observations in that case therefore are not helpful
to the appellant.
On the second part of the contention the appellant
can succeed only if he est.ablishes that the provisions of
the Excise Aet are contrary to the levy and recovery
of duty under the Provincial Act of J 922.
There is no
express provision in the Excise Act contrary to the
provisions of the Municipal Act. Unless, therefore, it
is neces8arily implied under the Excise Act, the levy of
(I) [19f9J F,C.R. 600,
1.2\ [1942] F.C.R, 31.
t
•
-
,;
,,
S.C.R.
SUPREME COUR1' REPORTS
25
the octroi duty under the Municipal Act continues to
be valid. On this point again the appellant's argument is that the levy of a duty at any stage of the
manufacture of bidis out of tobacco would be the levy
of the excise duty and therefore those provisions were
contrary to the provisions permitting the levy of the
octroi duty.
We have already discussed and rejected
in the first part of the judgment this contention. It is
wrong to think that two independent imposts arising
from two different sets of circumstances were not permitted in law. In our opinion, therefore, there is nothing
in the Excise Act to make its provisions contrary to
the provisions of Section 66 (1) (e) of the Central Provinces Municipalities Act or to the levy of octroi duty
under the same. The appeal therefore fails and is dismissed with costs.
Appeal dismissed.
Agent for the appellants: Rajinder Narain.
Agent for the respondent: S. P. Varma.
Agent for the Union of India: P. A. Mehta.
BHA W ANIPORE BANKING CORPORATION, LTD.
v.
GOURISHANKARSHARMA
[SHRI HARILAJ, KANIA C.J., SAIYID l!'AZL ALI,
PATANJALI SASTRI, MEHR CHAND MAHAJAN,
MuKHJmn;A and S. I~. DAS JJ.]
Limitation Act (IX of 1908j, Art. 152, els. 2 and 3-Exe·
1mtion of decree-Limitation-Starting point-" TVhe1·e
the1·e has
been a re,view", meaning of-Applicatit!n for 1·e·ope11in(I decree under
s. 30, Benr;al Money-lenders Act dismissed /01: default and appeal
from order of <lis11iissal-lVhether afre fresh startina for liinitntion
~ :(or execution ~f decree-Interpretation of Art. 182, els. 2 and a.
A preliminary decree on a mortgage was pa~~ed ex 1ia.rtn on
the 2l~t August, 1940.
The judgment debtor made an application
uurlet ij, 36 of tho Bengal Money·lenderR Act for re·opeuing the
Rani J(rishna
RamHath
AgaYWal of
KamJ>tee
v.
Secretary, Mt1ni ..
ciJ>al Committee,/
KamJ>tee
Kania C.J.
1950
l\Iaroh 1'.