LexTHE STATE OF WEST BENGAL AND ORS. versus KESORAM INDUSTRIES LTD. AND ORS.
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A THE STATE OF WEST BENGAL AND ORS. V. ~ KESORAM INDUSTRIES LTD. AND ORS. JANUARY 15, 2004 B [V.N. KHARE, CJ., R.C. LAHOTI, B.N. AGRAWAL, S.8. SINHA AND DR. AR. LAKSHMANAN, JJ.] ~ ' Constitution of India, 1950: c Articles 245, 246, 248,253 and 265-Seventh Schedule, List II. Entries 49 and 50, List/, Entries 52 and 54-West Bengal Taxation Laws (Amendment) Act, 1992 amending West Bengal Primary Education Act and West Bengal Rural Employment and Production Act-Levy of education cess and rural employment cess under the two Acts and the Cess Act, 1880 on coal bearing D land and other mineral bearing lands-Levy of cesses challenged as regards coal bearing land and brick-earth bearing land-Held, Per majority (Sinha, J. dissenting), levy of cesses is intra vires the Constitution-The cesses on coal bearing land and brick-earth bearing land, being tax on land, are covered by Entry 49 in List /I-Tax andfee not a subject dealt with by Mines and Minerals E (Development and Regulation) Act,1957 and power to levy tax and fee is available to States so long as they do not interfere with Centre's power of regulation and control of mines and minerals-Doctrine of occupied field- Doctrine of pith and substance-Doctrine of public trust-West Bengal Taxation Laws (Amendment) Act, 1992-West Bengal Primary Education Act, 1973, s. 78- West Bengal Rural Employment and Production Act, 1976, s.4-Cess Act, 1880, F ss. 5 and 6-Mines and Minerals (Development and Regulation) Act,1957. Seventh Schedule,List II, Entries 5,23,49,50 and 66, List/, Entries 52 and 54-Uttar Pradesh Special Area Development Authorities Act,1986 and Shakti Nagar Special Area Development Authority (Cess on Mineral Rights) Rules, 1997 levying cess on mineral rights-Levy of cess challenged by stone G crushers-Held, Per majority (Sinha,J. dissenting), High Court rightly upheld levy of the cess as a tax covered by Entry 5 in list II-Besides, levy of the cess as a tax can also be upheld by reference to Entries 49 and 50 in list II- Although it is termed as "cess on mineral right", impact falls on the land "' delivering the mineral and thus levy of the cess falls within the scope of Entry f-, H 49 in List II-Levy of the cess can equally be upheld as a fee, by reference 564 ST ATE v. KESORAM INDUSTRIES LTD. 565 to Entry 66 in list II, for rendering such services as would improve A infrastructure and general development of the area, benefits whereof would be availed by stone crushers also-Uttar Pradesh Special Area Development Authorities Act, 1986-s. 35-Shakti Nagar Special Area Development Authority (Cess on Mineral Rights) Rules, 1997-rr. 2 and 3. Articles 245, 246, 248 and 253-Seventh Schedule, list II, Entry 49, B and list I Entries 52 and 54 -West Bengal Taxation Laws (Second Amendment) Act, 1989 amending West Bengal Education Act and West Bengal Rural Employment and Production Act and levying cesses on tea estates-Held.- Per majority (Sinha,J. dissenting), the cess levied is on tea-bearing land, a well defined classification and as such is covered by Entry 49 in List II- C Declaration under s.2 of Tea Act in term~ of Ent1y 52, list I with regard to the Union taking control of the tea induslly does not amount to vesting the power to tax or levy fee in the Central Government by reference to tea or tea estates-Goodricke Group Ltd upheld-West Bengal Taxation Laws (Second Amendment) Act,1989-Tea Act, 1953. Article I 4-Classification of lands for the purpose of tax-Held, different pieces of land identically situated but being subjected to different uses, or ~ having different potential can be classified s~parately. Taxation: D E Measure of tax-Levy of cess on coal bearing land, other mineral bearing lands and tea estates-Assessment of cess by reference to produce dispatched from land-Held, Per majority (Sinha,J dissenting)-QuantifYing the tax by reference to annual value of the land on the basis of what it produces or is capable of producing is a well known mode-Merely because quantum of produce dispatched from the land is the factor taken into consideration for F determining the value of the land, ii does not become a tax on the produce. Royalty-Nature of-Held, royalty is not a tax-It is paid to owner of land who may be a private person and may not necessari(v be a State-Lessor receives royalty as his income and for lessee royalty paid is an expenditure G incurred-It is clarified that in India Cement it was
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