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Judgment
The petitioner in this application under Articles 226 and 227 of the Constitution is aggrieved by the notice under letter no. 578, dated 24.2.1993, in so far it makes a demand for payment of cess @ 3% of the sale price of what has been described by the petitioner as ''finished cut timber'' purchased by it from Latchar Forest Depot and Kolhan State Trading Depot of the Bihar State Trading Division, Latechar and Chaibasa. A photo copy of the impugned notice is to be found at Annexure-2. The impugned demand for cess has been raised on the basis of a gazelle notification, dated 28.8.2991, issued by the order of the Governor in terms of Clause (d) of section of the Cess Act, 1880 (Bengal Act IX of 1880). The notification reads as follows : S.O. 406 In exercise of the powers conferred under clause (d) of section 0 of the Cess Act, 1880 (Bengal Act IX of 1880), the Governor of Bihar is pleased to fix the rate of cess at 3 percentum on the sale price of forest produce timber only.
It shall come into force with effect from 1st September, 1991.
A copy of the gazette notification is to be found at Annexure-1.
It is to be noted at this stage that though in the writ petition an objection was also raised against the gazette notification, in course of submission, the challenge was conlined only to the demand notice as contained in Annexure-2. The challenge to the demand for cess was based on the plea that cess on ''finished cut timber'' was not envisaged, under the gazelle notification (relating to forest produce limber) and any demand would be ultra vires the Cess Act. 2. The basic facts necessary to appreciate the petitioner''s challenge to the demand notice are very brief and can actually be summed up in a few sentences. The petitioner states that it purchased limber not when it was attached to the earth in the form of a tree or even in a standing position but the purchase was made by the petitioner only after the trees had been fell down by the authorities of the Forest Department and the timber had been transported from the forest to the Department''s depot. It was, accordingly, contended that at the time of purchase the goods (''finished cut timber'') were obviously movable properties to which the Cess Act had no application inasmuch as any realisation of cess in terms of the Cess Act was in respect of immovable properties.
Mr. Biren Poddar, Learned Counsel appearing on behalf of the petitioner grudigngly stated that had the purchase been made of standing trees attached to the earth then perhaps the petitioner might have been held to be liable for payment of cess but when the goods, were being purchased in the form of ''finished cut timber'' at the depot of the department then obviously the Cess Act, which concerned only immovable properties, would have no application. He further contended that even if it is held that cess was payable on those goods the liability in any event will be that of the Forest Department and not of the present petitioner who was only a purchaser of the goods from the Forest Department.
The controversy, thus, boils down to whether or not ''finished cut timber'' can be said to be immovable property within the meaning of the Cess Act.
Having heard Learned Counsel for the petitioner and the learned Government Advocate for the respondents, we are of the opinion that the controversy stands settled by a Division Bench decision of this Court in the case of Someshwur Prased Vs. State of Bihar & Ors., 1074 B.L.J.R. 348: 1974 PLJR 387 which was later re-affirmed by a Full Bench decision in the case of M/s The Western India Match Company Ltd Vs. The Collector, Cess, Bettiah & Ors. 1981 B.L.J. 603:1981 PLJR 440 (F.B.).
Before referring to these decisions, however, it would be useful to take a note of the detintion of immovable properly in the Cess Act. Section 4defines immovable property and runs as follows :
Immovable properly includes land and all benefits to arise out of land and things attached to the earth or permanently fastened to anything which is attached to the earth, but does not include crops of any kind, or houses, shops or other buildings.
(emphasis added)
Section 5which is the charging section is as follows :
All immovable property to be liable to a local cess. - From and after the commencement of this Act in any district or part of a district all immovable property situate therein except as otherwise in section 2provided, shall be liable to the payment of local cess.
Section 6is substituted by the Bihar Amendment and reads as under :
Cess how to be assessed. - The local cess shall be assessed on the annual value of lands and until provision to the contrary is made by the Parliament, on the royalty of mines and quarries sale value of the other immovable properties including forest produce and annual net profits from tramways and railways ascertained respectively as prescribed in this Act and the rate at which the local cess shall be levied for each year shall be-
(a) in the case of royally, the rate will be determined by the Government from time to time but it will not exceed the amount of royalty.
(b) in the case of such annual net profits, fifteen paise on each rupee of such profits.
(c) in the case of annual value of lands, twenty paise per rupee of the annual value; and
(d) in the case of sale value of immovable properties including forest produce, the rate will not exceed 10 per cent and the State Government may, by notification prescribe from time to time and commodities on the sale of which cess would be levied along with the rates at which it would levied.
(emphasis added)
From section 6(d), it is clear that Cess can also be levied on forest produce, provided of course, the goods satisfy the definition of immovable property within the meaning of the Cess Act. The gazette notification at Annexure 1 has been issued in terms of the afore-quoted section 6(d).
Learned Government Advocate in support of his contention that cess is lawfully payable on cut limber sought to press into service the definition of forest produce u/s 2(4) of the Indian Forest Act which includes ''timber'' whether or not found in or brought from a forest. He also cited Section 6of the Forest Act which defines timber to include trees when they have fallen and all wood whether cut up or fashioned or hallowed out for any purposes or not.
We are of the opinion that it will not be prudent to gather the meaning of ''forest produce'' used in section 6(d) of the Cess Act on the basis of the definition of the phrase as contained in the Forest Act inasmuch as this would leave quite unresolved the basic controversy in this case as to whether or not ''finished cut timber'' can be said to be immovable property within the meaning of the Cess Act
However, as noted above, the controversy stands settled by two decisions (one by a division bench and another by a full bench) of this Court.
It is to be noted that in Someshwar Prasad''s case (supra) a Bench of this Court held that the petitioner (in that case) who had entered into agreement with Forest Department of the State of Bihar in respect of forest coupes as also in respect of bamboos for purpose of felling, conversion, collection, extraction, removal and transport of the forest produce subject to the terms and conditions contained in the articles of agreement was not merely a licensee, but was also grantee of benefit arising out of land and was occupier within the meaning expressed in Section 72(1) of the Cess Act and as such was liable to make periodical payments for the purposes of Section 81of the Act.
When a similar question again arose in the case of M/s Western India Match Company Ltd., the validity of this Court''s decision in Someshwar Prasad''s case was doubted in view of a decision of the Supreme Court, that had come in the meanwhile, in the case of State of Mndhya Pradesh and others vs. Orient Papers Mills Ltd., AIR 1077 S.C., 687. Accordingly, the case of M/s Western India Match Company Ltd, was referred to a Full Bench which in its decision found that the Supreme Court decision in the case of Orient Paper Mills was in the context of the Sales Tax Act and did not in any manner affect the validity of law as pronounced by this Court in Someshwar Prasad''s case. The Full Bench decision in M/s The Western India Match Company Ltd. (supra) observed as follows :
The Cess Act is a sell contained Act. We have to confine ourselves to the provisions of this Act keeping in view the scheme, object and purpose of the Act. The definition of immovable property which includes lands and all benefits to arise out of land and things attached to the earth (underlined by me) leaves no manner of doubt that standing tree or trees which are cut after they are marked by the Forest Department by petitioner company come within the definition of immovable property. It is not at all necessary to take the aid of different Acts where immovable property has been defined for different purposes and has been given different meaning. Thus, in my opinion, reading the provisions of the Act there is no room for doubt that cess has to be levied on the petitioner company under the terms and conditions of the agreement.
K.B.N. Singh, C.J., as His Lordship then was, in his separate and brief but concurring judgment also observed as follows :
In the instant case the question is not whether it is a lease or a licence but whether it is immovable property for the purpose of the Cess Act. The expression "immovable properly" for the purpose of Cess Act must take its true colour from the Cess Act itself by confining the focus to the statutory provisions in the Cess Act. The definition of immovable properly as given in Section 4quoted by my learned brother, is comprehensive enough to include standing limber. It excludes only standing crop form its purview and Simul thee is not a standing crop. It is fully covered under charging section 5already quoted by my learned brother.
The Supreme Court decision in the case of Orient Paper Mills was distinguished on the ground that it was rendered in the context of Sales Tax Act.
Now Mr. Poddar, Learned Counsel appearing for the petitioner has again placed reliance on a Supreme Court decision in State of Orissa and Others Vs. Titaghur Paper Mills Company Limited and Another, . This decision examined the validity of a notification issued by the State of Orissa levying purchase lax on the purchase of bamboos agreed to be severed and standing trees agreed to be severed and found that the notification was not ultra vires either Entry 54 in List II in Seventh Schedule to the Constitution of India or the Orissa Sales Tax Act, 1947 but was constitutional and valid. In order in distinguish it I can do no better then to take recourse to the Full Bench decision of this Court in M/s. The Western India Match Company Ltd. wherein the Supreme Court''s decision in the case of Orient Paper Mills was distinguished in the following words :
Mr. Mishra has relied on this decision also hut, in my opinion, the reasons given in Someshwer Prased''s case fully applies to the instant case and is not affected in any manner by the decision of the Supreme Court in the Orient Paper Mill''s case and case of Orient Paper Mills and, as I have stated earlier regulating to the interpretation of the Act regarding the levy of sale tax. That decision was given in a different content altogether and cannot be authority for the instant case which is under a different Act and different terms of lease.
K.B.N. Singh, C.J. also observed as follows while distinguishing the Supreme Court decision in the Orient peper Mill''s case :
The decision in the Orient Paper Mills (supra) proceeded on the construction of the deed that there was sale of bamboo and Salai wood under the contract and in the contemplation of the parties they were to be cut and severed pursuant to the contract itself. Such a contract was held to be licence and not a lease in respect of Immovable Property so as to take it out from the ambit of the Sale Tax Act. In the instant case the question is not whether it is a lease or a licence but whether it is immovable property for the purpose of the Cess Act.
The position is exactly the same before us. The Supreme Court''s decision in the case of Titagarh paper Mills is of no help to the petitioner in these cases as it was rendered in the context of Sales Tax Act.
All this stage we may elucidate the point giving an illustration. A mineral such as Coal, after it has been extracted from earth may run qualify as immovable properly as defined under the General Clauses Act, and the Registration Act read with the definition of the expression "attached to the earth" given in the Transfer of Property Act. But it would be quite futile to suggest that coal would not come within the purview of the Cess Act for the simple reason that the Cess Act has its own meaning of immovable property markedly different from those under the other Acts.
The second question regarding the petitioner''s liability to pay Cess is also answered by the earlier decision of this Court. We accordingly find no merit in these applications and the same are dismissed.