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Judgment
Ramaprasada Rao, J.—It is agreed that the facts in W. P. No. 74 of 1.970 may be noticed. The petitioner is a partnership-firm carrying on
business in matches. For the assessment years 1964-65 and 1965-66 (the former the subject-matter of W. P. No. 71 of 1970 and the latter the
subject-matter of W. P. No. 76 of 1970), the petitioner paid the sums of Rs. 1,91,400 and Rs. 8,64,637.50 as and by way of excise duty to the
Central Government. The petitioner claimed in its returns under the Central Sales Tax Act a deduction of the aforesaid amounts in the taxable
turnover on the basis of the Supreme Court judgment in Yaddalam''s case [1965] 16 S.T.C. 231. The petitioner here relied upon another decision
of the Supreme Court commonly known as Pothan Joseph''s case [1970] 25 S.T.C. 147 that if excise duty was deductible under the local sales
tax law for the purpose of ascertaining the taxable turnover, then such duty was deductible for arriving at the taxable turnover under the Central
sales tax law also. The petitioner contended that as during the relevant years excise duty was deductible under the provisions of the Madras
General Sales Tax Act, such a deduction has to be necessarily made even under the Central Sales Tax Act on the basis of the law and the
decisions then in force. This contention was not accepted on the ground that Section 9(3) of the Central Sales Tax Act, as it stood originally, did
not touch upon the question of exemption, but only prescribed a procedure in the matter of making assessments under that Act. The petitioner took
up the matter before the Sales Tax Appellate Tribunal, Madras. It is no doubt common ground that under Rule 6(f) of the Madras General Sales
Tax Rules, 1959, until it was deleted, a deduction could lawfully be made from the taxable turnover of the State Act of the amounts paid by way of
excise duty. But by Madras Ordinance No. 5 of 1968, promulgated on 31st December, 1968, this rule was deleted with retrospective effect and
in any event it was made clear that the rule should be deemed to have been deleted from 1st April, 1959, to 31st March, 1966, both days
inclusive. Madras Ordinance No. 5 of 1968 was substituted by the Madras General Sales Tax (Second Amendment) Act, 1969 (Madras Act 3 of
1969). The Central Sales Tax Act also was amended soon thereafter by Central Ordinance No. 4 of 1969 which was promulgated on 9th June,
1969. I shall refer to its relevant provisions later. The main purport of the amendments are to the following effects: (a) Even though excise duty is
deductible under the local law of the State no such deduction would be permissible in computing the turnover under the Central Sales Tax Act; (b)
in certain cases an exemption from liability to pay such tax was made which is to the following effect:
(i) If the dealer effecting a sale during the relevant period under the Central Sales Tax Act has not collected any tax under the principal Act, on the
ground that it is not recoverable; and
(ii) no such tax could have been levied or collected if the amendments made in the principal Act by this Ordinance had not been made.
Thus, to gain an exemption the above two conditions must be satisfied. The result is that if there was a State law which enables the inclusion of
the turnover in question in the taxable turnover, then notwithstanding the fact that the dealer had not collected such tax under the Central Sales Tax
Act he can be made liable. In the instant case, the petitioner contends that he did not collect sales tax on that part of the turnover relating to excise
duty on the ground that the same was not liable to sales tax under the quondam provisions of the Madras General Sales Tax Act. I have already
referred to Madras Ordinance No. 5 of 1968, which merged into Madras Act 3 of 1969, whereunder the State law withdrew the exemption
available to dealers who paid excise duty and which was made retrospective and in particular made retrospective during 1st April, 1959, to 31st
March, 1966. The taxable years in question in these writ petitions fall within the above period. The result is, if the retrospectivity of Madras Act 3
of 1969 is accepted, then the petitioner should suffer Central sales tax for the assessment years in question over the excise duty paid by it and
which has not been included by it in the taxable turnover. The Tribunal under its challenged orders held that under the provisions of Madras Act 3
of 1969 excise duty paid by dealers in the course of their inter-State trade was not deductible from the taxable turnover as it was not deductible
during the relevant period even under the Madras General Sales Tax Act as amended by Madras Act 3 of 1969. The Appellate Tribunal also held
that as the petitioner satisfied only one of the conditions which would entitle him for exemption under the Central Sales Tax Act--which conditions
have already been noticed by me in brief--the appeals preferred by the petitioners were dismissed. I may at once state that the Central Sales Tax
Ordinance (No. 4 of 1969) has subsequently been replaced by the Central Sales Tax (Amendment) Act, 1969 (Central Act No. 28 of 1969).
Mr. V. K. Thiruvenkatachari, the learned Counsel who argued for the petitioners, contended that Section 10 of Central Act 28 of 1969 should
not be construed in the light of the retrospective amendment of the Madras Act. In any event, he said that in the circumstances the Central Act
should be deemed to prevail over the Madras Act. Incidentally, the petitioners challenge the vires of Madras Act 3 of 1969 in the sense that it
cannot be understood to be a legislation which is within the competence of the legislature.
The ultra vires nature of Madras Act 3 of 1969, which replaced the earlier Ordinance, is based on the fact that there were no circumstances
which required immediate action within the meaning of Article 213 of the Constitution and that the reason given for promulgation in the preamble to
the Ordinance which was substituted by Madras Act 3 of 1969, as if the decision in Pothan Joseph''s case [1970] 25 S.T.C. 147 is the cause,
cannot be the cause at all. It was stated that the impugned Madras law is one which is within the exclusive power of Parliament under Article 246
read with Schedule VII, List I, entry 92-A and, therefore, beyond the law-making power of the Madras State. Shortly, it was stated that as the
Madras law virtually alters the legal position under a Central law, it had no such authority to amend. Then it was said that the Ordinance as well as
the Act go beyond the power of retrospective legislation. Reference was made to Section 4 of the amending Act 3 of 1969, the language and
content of which, according to the learned Counsel, is otiose and has no meaning. Lastly, it was said that as the original assessments have been
completed on the basis of the valid old law, though incorrectly applied by the assessing authorities, the later amending law cannot set at naught
closed matters and, in this view, Madras Act 3 of 1969, in so far as the assessments are concerned, cannot govern the situations posed therein.
Further, it was contended that the Tribunal was wrong in negativing the request for exemption on the only ground that one of the conditions for
granting exemption was absent and, therefore, the petitioner was not entitled to relief.
In the counter-affidavit the legal questions are answered. It is stated that while interpreting Section 10 of Central Act 28 of 1969, it is just and
necessary and quite legal also to have regard to the provisions of Madras Act 3 of 1969. As the foundation for exemption springs from the
conjoint application of both the Central and the local Acts, every situation has to be adjudged on its merits and on the law in force on the date of
final assessment. Viewed in that light, it is stated that the Tribunal''s order was right. It. is contended that Madras Act 3 of 1969 is well within the
power of the State Legislature and is also a law made under the appropriate entry in the correct schedule to the Constitution. By making a law
which well within its power it cannot be said that the local legislature is attempting to encroach upon the powers of the Parliament. As the
legislature is competent to make the law with retrospective effect, no question of its validity or its untenability arises.
I shall now briefly refer to the law in force before and after the decision in Yaddalam''s case [1965] 16 S.T.C. 231.
The issue relating to the right of a dealer to deduct the excise duty paid by him to the Central Government from the taxable turnover under the
provisions of the Central Saks Tax Act was raised for the first time in the case reported in Mariappa Nadar''s case [1962] 13 S.T.C. 371.
Previously, excise duty was always included in the taxable turnover of an assessee on his inter-State sales under the Central Sales Tax Act. It may
be noted here that so far as the payment of excise duty on goods manufactured and sold locally, i.e., within the State, is concerned, such amount
was excluded from the taxable turnover because of the express provision, namely, Rule 5(1)(i) of the Madras General Sales Tax (Turnover and
Assessment.) Rules, 1939, and Rule 6(f) of the Madras General Sales Tax Rules, 1959, which directed that while computing the taxable turnover,
excise duty paid to the Central Government should be deducted from the total turnover of an assessee. No such express exemption either in the
Act or under the Rules is provided under the provisions of the Central Sales Tax Act, 1956.
For the first time in Mariappa Nadar''s case [1962] 13 S.T.C. 371, it was contended that a reading of sections 8(1), 8(2) and 8(2A) of the
Central Sales Tax Act together will show that the law relating to the sale of goods inside the appropriate State should apply to the sales and, if that
is so, since the Madras General Sales Tax Act provides for the exclusion from the turnover under that Act of the amount paid by way of excise
duty to the Central Government, the same result should follow. Another contention based on Section 9 of the Central Sales Tax Act was also
pressed into service. Great reliance was placed on the following sentence occurring in Section 9(3) of the Central Sales Tax Act as it stood then
prior to amendment by Act 28 of 1969, ""in the same manner as the tax on the sale or purchase of goods under the general sales tax law of the
State is assessed, paid and collected"". The court rejected both the contentions and held that the amount of excise duty cannot be deducted from
the taxable turnover under the Central Sales Tax Act. and that the authorities below were right in including the same in the taxable turnover. It may
be mentioned here that the Kerala High Court in Parvathi Mills case [1962] 13 S.T.C. 927, and the Mysore High Court in State of Mysore v.
Mysore Paper Mills [1964] 15 S.T.C. 176, have relied on and followed the Madras High Court''s decision in Mariappa Nadar''s case [1962] 13
S.T.C. 371.
After the judgment of the Supreme Court in Yaddalam''s case [1965] 16 S.T.C. 231, once again an attempt was made by the counsel for the
assessees to argue that the benefit conferred under Rule 6(f) of the Madras General Sales Tax Rules, 1959, enures to the transactions under the
Central Sales Tax Act also and, therefore, the excise duty paid must be excluded from the taxable turnover under the Central Sales Tax Act. In
Khader and Co. v. State of Madras [1966] 17 S.T.C. 396, the above contention was negatived. This Court held that the judgment, of the
Supreme Court related to a period prior to 1st October, 1958, when sections 8, 9 and 15 of the Act were amended and the judgment of the
Supreme Court must be understood in that context. It held further expressly and clearly in the following manner:
''Turnover'' is defined (under the Central Sales Tax Act) by Clause (j) of Section 2 as the aggregate of the sale prices in respect of sales of any
goods of inter-State trade or commerce and as determined in the prescribed manner. Section 13 confers rule-making power on the Central as well
as the State Governments on specified matters. Power to make rules relating to deductions to be made in the process of determination of turnover
has been conferred on the Central Government by Clause (1)(b) of that section. In exercise of this power, the Central Government has framed the
Central Sales Tax (Registration and Turnover) Rules, 1957. This Rule, both before and after its amendment in 1962, provides for certain
deductions which do not include excise duty. Section 6 which is the charging section in the Central Act makes it clear that the charge will be on the
turnover and that means turnover as defined in that Act. No rule framed under the Central Act provides for deduction of excise duty. We are of
the view, therefore, that it is not possible to uphold the contention for the assessees that in determining the aggregate turnover of inter-State sales,
they are entitled to deduction of excise duty.
This judgment in Khader and Co, v. State of Madras [1966] 17 S.T.C. 396, was followed in Tirukoilur Oil Mills Ltd. v. State of Madras
[1987] 20 S.T.C. 388. this Court held:
This Court in Khader & Co. v. State of Madras [1966] 17 S.T.C. 396, held that there was no provision in the Central Sales Tax Act or the Rules
made thereunder for deduction of excise duty from chargeable turnover
In Larsen and Toubro Ltd. v. Joint Commercial Tax Officer [1967] 20 S.T.C. 150, this Court referred to Khader & Co. v. State of Madras
[1966] 17 S.T.C. 396, followed the same and held that excise duty is includable in the chargeable turnover under the Central Sales Tax Act.
Again in M. A. Khader and Co. v. Deputy Commercial Tax Officer [1970] 25 S.T.C. 104, State, of Mysore v. Yaddalam
Lakshminarasimhiah Setty and Sons [1965] 16 S.T.C 231 was considered and the relevance of Section 15 as amended on 1st October, 1958,
was particularly noticed. The history of Section 15 of the Central Sales Tax Act has been traced. To this Division Bench judgment I was a party.
Thereafter, the Supreme Court in State of Kerala v. Pothan foseph & Sons [1970] 25 S.T.C. 147, finally held disapproving Mariappa Nadar v.
State of Madras [1962] 13 S.T.C. 371, that the general sales tax law of the State which would include the Rules framed thereunder governed the
levy and assessment of the tax in the matter of inter-State sales. Hence the exemption granted under the Rules framed under the local laws would
automatically apply to the transactions under the Central Sales Tax Act too. This decision was rendered on 29th August, 1968.
Then a batch of writ petitions (W. P. No. 3224 of 1968, etc.1) were filed in the High Court claiming refund of tax paid on the excise duty
turnover of the transactions under the Central Sales Tax Act. When these petitions were pending hearing before the High Court, the Madras
Ordinance, namely, the Madras General Sales Tax (Fifth Amendment) Ordinance, 1968 (Madras Ordinance 5 of 1968), was promulgated. By the
provisions of this Ordinance, the exemption granted under Rule 5(1)(i) of the 1939 Act and Rule 6(f) of the 1959 Act excluding excise duty from
the taxable turnover was withdrawn retrospectively, that is, from 5th January, 1957 (date of coming into force of the Central Sales Tax Act) to
31st March, 1959 (end of the operation of the old Act) and from 1st April, 1959, to 31st March, 1966. It may be noted here that by G. 0. Ms.
No. 1041, Revenue, dated 29th March, 1966, Rule 6(f) was deleted with effect from 1st April, 1966. Hence the Ordinance was limited to the
period up to 31st March, 1966. The effect and consequence of the Ordinance will be that it must be deemed that at no point of time from 5th
January, 1957, to 31st March, 1966, and thereafter too there was any exemption excluding excise duty from the taxable turnover under the State
law. The result will be that the dealers cannot claim exemption under the Central Sales Tax Act on the turnover relating to excise duty. This
Ordinance was subsequently replaced by Madras Act 3 of 1969 and the provisions of this Act are similar to the Ordinance.
In the meanwhile, in view of the consequences that may follow (i.e., refund of large amounts of taxes) as a result of the Supreme Court
judgment in State of Kerala v. Pothan Joseph & Sons [1970] 25 S.T.C. 147, which confirmed State of Mysore v. Yaddalam Lakshminarasimhiah
Setty and Sons [1965] 16 S.T.C. 231, the Central Government at the instance of the State Governments intervened and Central Ordinance 4 of
1969 dated 9th June, 1969, was promulgated giving retrospective effect. This Central Ordinance was subsequently replaced by Central Act 28 of
1969 so as to get over the judgment of the Supreme Court in State of Mysore v. Yaddalam Lakshminarasimhiah Setty and Sons [1965] 16 S.T.C.
As a matter of fact, the Supreme Court in State of Kerala v. P. P. Joseph and Co. and Joseph Elias [1970] 25 S.T.C. 483 has held that the
effect of the Central Sales Tax (Amendment) Ordinance, 1969, is to supersede the judgment of the Supreme Court in State of Mysore v.
Yaddalam Lakshminarasimhiah Setty and Sons [1965] 16 S.T.C. 231.
It may now be recalled that the assessees'' writ petitions for refund, referred to earlier, came up for final hearing and in the course of hearing
arguments, the validity of Madras Act 3 of 1969 (now impugned in the present writ petitions) was incidentally raised. This Court in Mohamed
Salam v. Commissioner of Commercial Taxes [1970] 26 S.T.C. 163 considered all the aspects of Central Act 28 of 1969 and Madras Act 3 of
1969 and rejected the contentions and dismissed the writ petitions.
In the present cases the petitioners challenged the validity of Madras Act 3 of 1969. Central Act 28 of 1969, while giving retrospective effect,
gave certain concessions u/s 10 of that Act. To claim or to qualify to claim that concession, the section prescribes three conditions, namely: (1) the
dealer should not have collected tax; (2) that such non-collection must be on the belief that no such tax could have been levied or collected in
respect of such sale or any portion of the turnover relating to such sale; and (3) and no such tax could have been levied or collected if the
amendments made in the principal Act by Central Act 28 of 1969 had not been made. The period mentioned in this section, namely, 10th
November, 1964, to 9th June, 1969, is from the date of the judgment in State of Mysore v. Yaddalam Lakshminarasimhiah Setty and Sons [1965]
16 S.T.C. 231 to the date of the Ordinance.
Now the question is whether the assessees in the present cases can be said to have complied with the above three conditions. On the first
condition the Tribunal has left that question open without giving any finding in W. P. Nos. 74 and 76 of 1970. In W. P. No. 873 of 1970, which is
directly against the order of the assessing authority, the assessing officer has given a finding that the assessee has complied with the first condition.
Now coming to the second condition that the dealer did not collect the tax on the ground that no such tax could have been levied or collected,
it must be remembered that the dealers in Madras cannot put forth such ground because right from Mariappa Nadar v. State of Madras [1962] 13
S.T.C. 371 decided on 13th December, 1961, down to M. A. Khader and Co. v. Deputy Commercial Tax Officer [1970].25 S.T.C. 104
decided on 7th February, 1969, our court has consistently been taking the view in spite of the case in State of Mysore v. Yaddalam
Lakshminarasimhiah Setty and Sons 1965] 16 S.T.C. 231 that the exemption under the local Act will not automatically apply to the transactions
under the Central Sales Tax Act. The periods in question in these writ petitions are 1964-65 and 1965-66. Hence the petitioners should be held
not to have complied with the second condition of Section 10 of Central Act 28 of 1969.
In view of Madras Act 3 of 1969 it is not open to the dealers to contend that no such tax (on excise duty portion) could have been levied or
collected if the amendments made in the principal Act by Central Act 28 of 1969 had not been made. The Tribunal''s order is correct.
But the further arguments are based on other legal contentions. The first limb of the contention is that the Madras Legislature was not
competent to pass Amending Act 3 of 1969, and secondly, it is said that even if it had the power it cannot give retrospective effect to such a
provision like the one under consideration as it would be unreasonable to do so.
To strike down an Act on the ground of legislative incompetency, strong evidence and forcible material are required. The legislature which
reflects the popular voice is always presumed to work for the people having applied its mind to a particular situation. When it thinks of amending a
law and that too retrospectively, the presumption is that it had in its mind the primary interest of the revenue of the State which if imbalanced is
likely to create grave consequences. Such other complex considerations are invariably noticed before a law is purposefully amended with
retrospective effect. Merely because certain hardships are noticeable, it does not ipso facto follow that the resultant law is unreasonable and
offends Article 14 or 19 of the Constitution. That the amending State law concerns a subject in the State List cannot be disputed. I am unable to
agree that the State Legislature has no power to withdraw certain concessions granted by it earlier in the matter of imposition of sales tax. At one
time excise duty was excludable from the assessable turnover. Later this privilege was withdrawn. But the subject-matter of the legislation is within
the competence of the legislature. So it follows that any concession or privilege granted under it is capable of being withdrawn due to myriad
circumstances facing the public exchequer and such other matters of public importance and that it is one of the essential prerogatives of the
legislature whose body consists of the elected representatives and whose wisdom to act in certain emergency cannot be lightly questioned. The
withdrawal is only to activise what was a dormant process due to the existence of concession. If in the instant case, the quondam exemption was
taken away due to necessitous circumstances, it does not lack reason and, therefore, not unreasonable but on the other hand meaningful. Our court
has held that the Central Sales Tax (Amendment) Act, 1969, does not violate Article 301 of the Constitution and the Madras General Sales Tax
(Second Amendment) Act, 1969, is not confiscatory and is not violative of Article 19(1)(f) of the Constitution--see Krishnamurthi and Company
v. State of Madras [1969] 23 S.T.C. 1 and Mohamed Salam v. Commissioner of Commercial Taxes [1970] 26 S.T.C. 163. I am unable to agree
that the State Legislature was incompetent to make the Madras Act and that the Parliament alone had such a power under Article 246 of the
Constitution.
The next limb of the argument is whether such a law could be made with retrospective effect and as it is made so, is it not unreasonable. It is
now clear that the mere fact that a legislative provision has been made to operate retrospectively, it does not become unreasonable. I have already
said that the Madras Act does not offend Article 19. As every presumption has to be raised in favour of the constitutionality of a provision of a
statute, the factum of withdrawal of a concession which was in vogue for some time cannot be lightly ignored on the basis of unreasonableness as it
is popularly understood. The withdrawal was thought of to bring the matter in consonance with the Supreme Court judgments and the judgments of
our court. This was again in the public interest. So it is justified. I adopt with respect the following dicta of Veeraswami, C.J., in Sundaram
Industries (P.) Ltd., Madurai v. State of Tamil Nadu [1972] 29 S.T.C. 587:
So long as the legislature is within the limits of its power under the entry, neither its exercise in a particular manner, nor the policy which had
dictated it can successfully be questioned. Within the field of power earmarked for it under the Constitution, the State Legislature is supreme,
except to the extent of limitations envisaged under the Constitution. Having regard to the nature of the power, each entry should be read and
understood in its widest and most comprehensive sense. The power to legislate on any of the matters enumerated in the list, includes the power to
make provisions to cover ancillary or incidental matters.
A conscious affection of vested rights, even brought about by retrospective legislation, so long as it is not unreasonable, is effective.
The only surviving argument is whether the retrospective effect given to the Madras Act is sustainable.
Retrospective or retroactive legislation is generally not encouraged unless there are compelling legal circumstances persuading courts
interpreting such laws to be so implementable. Even to the extent of impairing vested rights, such retrospective legislation is possible, but the only
limitation on the exercise of legislative power being that it acts within the compass of its power and propriety and makes its intention to so legislate
manifest by express words or by available implicit words which are clear, distinct, strong and plain. The argument is that Madras Act 3 of 1969
should be understood as curative legislation. The concept of curative legislation is somewhat different. In the very nature of things it cures certain
defects. Such legislation does not prove that the law was otherwise. It is therefore essentially declaratory in scope and therefore by necessary
implication retrospective in operation. That is not. the case here. Whether the new provision in Madras Act 3 of 1969, which withdraws the
concession available to the assessees regarding non-inclusion of excise duty in the assessable turnover, is retroactive by reason of the language and
content of the amended Act, is the question. We are not confronted with an ambiguous situation as the language of the amending Act is clear.
There is, therefore, no occasion for this Court to lean in favour of the assessee because of any doubt in the normal understanding of the text of the
amending Act. The usual norm is that legislative wisdom does not produce unjust consequences, nor does it intend to do so; but it is now well-
established that if there are words in the enactment which either expressly state or necessarily imply that the statute is to be given retrospective
operation, then the Act should have retrospective operation even though the consequences may appear unjust and hard. The complaint is that
certain pre-existing rights are being taken away. But as pointed out by Lord Watson in Western Countries Railway Co. v. Windsor, etc., Co.
(1882) 7 App. Cas. 178:
It is not sufficient to show that the thing sanctioned by the Act, if done, will of sheer physical necessity put an end to the right; it must also be shown
that the legislature have authorised the thing to be done at all events, and irrespective of its possible interference with existing rights.
The language of the amended provision shows that the legislature did authorise the thing to be done at all events and irrespective of the
hardship apparent in it. As long as the legislature possesses the plenary power to legislate retrospectively and so long as the power is not
overstepped, it is enforceable. All the above principles apply equally to tax laws also provided the intention of the legislature is manifest to make a
provision retroactive.
The amending State law does satisfy all the principal tests noticed above. It has to be therefore interpreted as retrospective in operation. Due
to certain emergent circumstances the Madras Act was amended so as to be retrospectively active. The State Legislature did possess the
competence to so enact the law. There is no ambiguity in it. In those circumstances, the petitioners cannot, relying solely upon Section 4 of Madras
Act 3 of 1969, contend that the retroactivity is purposeless. Even if Section 4 has to be understood in that fashion, it does not affect the validity of
the other sections of Madras Act 3 of 1969.
Thus the other contentions of the counsel also fail.
In the result, the final order of the Appellate Tribunal challenged here is well within its jurisdiction and there being no other apparent error or
error of law in it, the rule nisi is discharged and the writ petitions are dismissed. Even so, the order of the Deputy Commercial Tax Officer, which is
the subject-matter of W. P. No. 873 of 1970, does not suffer from any apparent error. The rule therein also is discharged and the writ petition is
dismissed. There will be no order as to costs.