S. Nainar Sundaram, C.J.
1. In these Special Civil Applications the Constitutional vires of the Provisional Collection of Taxes Act, 16 of 1931; hereinafter referred to as 'The Act' is being put in issue. The reliefs asked for centre around this axiomatical contention. The submissions made by the learned Counsel for the applicants were elaborate indeed. Equally so the counter-submissions by the learned Counsel for Union of India were not less elaborate. But the pith and substance of the submissions centre around three points taken. The Act is a compact one and it has five Sections. It will be proper if the sections are extracted at the bottom of this judgment.
2. The first contention raised is that the Act has not gone through the legislative procedure contemplated under Articles 107 to 111 of the Constitution of India and hence it could not survive. The Act is a pre-constitutional piece of legislation. In that context, it would be insisting for something which could never heppen. The Act having had been enacted before the coming into force of the Constitution of India cannot be asked to go through the legislative procedure set out under Articles 107 to 111, and on account of not having gone through that process, the Act cannot loose its sanctity as the law. The Constitution of India is prospective and on the subject it is neither explicitly nor impliedly retrospective in operation. The first contention is in euhemeristic level and we eschew it as such.
3. Secondly it is contended by the learned Counsel for the applicants that the Act by itself could not be stated to be the law under which the levy is made; and the Act sets down only a specified procedure for the imposition or increase of duties of Customs or Excise and that procedure is found in Sections 3 and 4 thereof, and the mere going through of the procedure in those Sections would not amount to going through the legislative procedure under Articles 107 to 111 so as to enact the law of levy. There is a fallacy in this line of thinking. It is only by the force of the Act the imposition or increase of duties of Customs or Excise gets achieved. It is true, by working Sections 3 and 4 the Act the imposition or increase of duties of Customs or Excise is brought about. But it is not possible to dissociate the said provisions from the Act so as to say, some independent procedure de hors the Act is gone through under Sections 3 and 4 and that has not conformed to the legislative procedure under Articles 107 to 111. Sections 3 and 4 are found only in the Act. Section 3 speaks about the introduction of the Bill in Parliament on behalf of Government providing for the imposition or increase of the duty of Customs or Excise; and it further says that the Central Government may cause to be inserted in the Bill a declaration that it is expedient in the public interest that any provision of the Bill relating to such imposition or increase shall have immediate effect under this Act. Section 4(1) lays down that the declared provision shall have the force of law immediately on the expiry of the day on which the Bill containing it is introduced. The Act being a pre-constitutional legislation and there being no need and no occasion for the Act to go through the legislative procedure as per Articles 107 to 111, the Act had already become operative as a whole. Thereafter it is not possible to dissociate the working of the provisions of the Act from the Act and equate such working as legislative procedure requiring conformity with Articles 107 to 111. It is the Act that speaks about imposition or increase of duties of Customs or Excise and makes the imposition or increase provisional. The very Preamble to the Act says that it was enacted providing for the immediate effect for a limited period of provisions in Bills relating to the imposition or increase of duties of Customs or Excise. The Act through Sections 3 and 4 has only prescribed the means and methodology of making the levy. By working Sections 3 and 4, no law making process or legislative process is being gone through for making the levy. The law is already made and that is the Act, and the working of the provisions of the law alone takes place through Sections 3 and 4 within the framework of the Act. The second contention also stands eschewed as lacking in substance.
4. The third contention put forth by the learned Counsel for the applicants is in negative form as an off-shoot of the second contention. According to the learned Counsel for the applicants though under Article 372 of the Constitution of India all the laws in force in the territory of India immediately before the commencement of the Constitution shall continue in force, yet the Act could not be said to be valid piece of legislation to survive under Article 372. For this proposition learned Counsel for the applicants draws inspiration from the set of expressions occurring in Article 372 (1) saying 'subject to the other Provisions of this Constitution' and accordirg to the learned Counsel for the applicants the Act comes into conflict and is inconsistent with Articles 107 to 111. We have already dealt with the contentions built on Articles 107 to 111. The Act could not be said to be inconsistent with any provision of the Constitution of India, Here we could draw a picture of contract. We find Article 13(1) found in Part III, specifically lays down that all laws in force immediately before the commencement of the Constitution if inconsistent with the provisions of Part III shall become void to the extent of such inconsistency. No such declaration is found in Chapter 2 of Part V wherein Articles 107 to 111 are found, saying that the laws already made or in other words pre-constitutional laws, if they had not adhered to the legislative procedure as per Articles 107 to 111-which again is asking for the happening of an impossibility-cannot survive. There is no gainsaying that the Act being a pre-constitutional legislation could survive as per Article 372 and the theory of non-conformity as thought about by the learned Counsel for the applicant is palpably untenable. Once it is found the Act can survive as a pre-constitutional piece of legislation by virtue of Article 372 and the imposition or increase; of duties of Customs and Excise could be done within the framework of the Act by resorting to Sections 3 and 4, it would be totally unnecessary to travel beyond the Act and seek for any other process to be adhered to for such imposition or increase. Such a process will be a redundancy. We have already stated that by the working of Sections 3 and 4 the imposition or increase of duty of Customs or Excise takes place and it is not possible to equate the working of Sections 3 and 4 as legislative process requiring to be gone through as per Articles 107 to 111.
5. Lastly it was contended that the Finance Bill annually gets introduced well in advance to the lapse of the Finance Act of the previous year and if the provisions of die Act are to be worked out, it is likely to bring a conflict between the Finance Act of the previous year and the Bill for the current year on its introduction. This contention is on a hypothesis, with which we are not directly concerned in the present case. By pointing out any such specific conflict we are not being asked to set aright any flew. We are not supposed to decide the questions in the abstract.
6. Having found no substance in all the contentions, we are obliged to dismiss all the Special Civil Applications. We make no order as to costs.
The Provisional collection of taxes Act, 1931 (Act 16 of 1931)
1. Short title: This Act may be called The Provisional collection of taxes Act, 1931.
2. Definition: In this Act, a 'declared provision' means a provision in a Bill in respect of which a declaration has been made under Section 3.
3. Power to make declaration under this Act: Where a Bill to be introduced in Parliament on behalf of Government provides for the imposition or increase of a duty of Customs or excise, the Central Government may cause to be inserted in the Bill a declaration that it is expedient in the public interest that any provision of the Bill relating to such imposition or increase shall have immediate effect under this Act.
4. Effect of declarations under this Act, and duration thereof: (1) A declared provision shall have the force of law immediately on the expiry of the day on which the Bill containing it is introduced.
(2) A declared provision shall cease to have the force of law under the provisions of this Act.
(a) When it comes into operation as an enactment, with or without amendment, or
(b) When the Central Government in pursuance of a motion passed by Parliament, directs, by notification in the Official Gazette that it shall cease to have the force of law, or
(c) If it has not already ceased to have the force of law under Clause (a) or Clause (b), then on the expiry of (he seventy-fifth day after the day on which the Bill containing it was introduced.
5. Certain refunds to be made when declarations cease to have effect: (1) Where a declared provision conies into operation as an enactment in an amended form before the expiry of the seventy-fifth day after the day on which the Bill containing it was introduced, refunds shall be made of all duties collected which would not have been collected if the provision adopted in the enactment had been the declared provision:
Provided that the rate at which refunds of any duty may be made under this Sub-section shall not exceed the difference between the rate of such duty proposed in the declared provision and the rate of such duty in force when the Bill was introduced.
(2) Where a declared provision ceases to have the force of law under Clause (b) or clause (c) of Sub-section (2) of Section 4, refunds shall be made of all duties collected which would not have been collected if the declaration in respect of it had not been made.