Mehrotra, J.
1. The petitioner firm is a dealer registered under the Assam Sales Tax Act. 1947. For the return period ending on 30-9-1956, the petitioner was assessed to sales tax of Rs. 1.266 and odd by the Superintendent of Taxes, Gauhati. An appeal was filed on 7-2-57 against his order dated 4-1-57 under Section 30 of the Assam Sales Tax Act, 1947, hereinafter called the Act to the Assistant Commissioner of Taxes, Assam. The petitioner under protest affixed a Court-fee stamp of Rs. 10/- to the Memorandum of appeal, as required by the Assam Court Fees (Amendment) Act, 1950: but paid no fee as required under Rule 74 of the Assam Sales Tax Rules, 1947.
It is contended by the assessee that Rule 74 of the Assam Sales Tax Rules was ultra vires and consequently no fee could be demanded from it under the said rule. The Assistant Commissioner of Taxes rejected the appeal for non-compliance with Rule 30 of the Assam Sales Tax Rules, hereinafter called the rules, by his order dated 3-6-57. A petition was filed by the assessee before the Board of Sales! Tax, Assam, for reference, which was rejected. An application was thereafter made to this Court under Section 32(5) of the Act, and the Board was directed to state the case and refer questions of law arising out of the order of the Assistant Commissioner of Taxes, to this Court. The following questions of law have been referred to this Court :
(i) If, in the circumstances of the case, the Assistant Commissioner of Taxes was right in rejecting the appeal on the ground that it was not in compliance with Rule 30 of the rules framed under the Act?
(ii) If in view of the amendment of the Court Fees Act, the provisions of Rule 74 are ultra vires?
(iii) If the Assistant Commissioner of Taxes was competent to entertain the appeal? The Board has suggested that the answers to questions 1 and 3 should be in the affirmative and that to question 2 should be in the negative.
2. Rule 29 of the Assam Sales Tax Rules provides that the memorandum of appeal shall be in Form No. 13, and Rule 30 provides that it shall be accompanied by a certified copy of the order appealed against and by the fee prescribed in Rule 74. Rule 31 lays clown that the memorandum of appeal shall be signed, verified and endorsed by the appellant or, his agent to the following effect:
(a) that the tax not in dispute has been paid, and
(b) that to the best of his knowledge and belief, the facts set out in the memorandum are true. Rule 32 then provides that where an appellant does not comply with any of the requirements of Rules 29, 30 or 31 in presenting the appeal, it may be summarily rejected. Rule 74 runs as follows :
'Fees. The following fees shall be payable :
(a) upon a memorandum of appeal against or upon a petition for revision of, an order of assessment ...... five per cent of the amount of tax in dispute, subject to a minimum of one rupee to a maximum of one hundred rupees;
(b) upon a memorandum of appeal against, or upon a petition for revision of an order of penalty ..... Rupees two;
(c) upon a petition for reference .... Rupees five
(d) upon a petition for revision of any other order or upon any other miscellaneous petition .... Rupee one;
(e) for a duplicate copy of a certificate of registration ....... Rupees two.'
It is not disputed that the fee prescribed by Rule 74 was not paid along with the memorandum of appeal. There was therefore, non-compliance with the provisions of Rule 30 and under Rule 32, the appeal was thus rightly dismissed. The contention of the petitioner, however, is that Rule 74 is ultra vires and consequently there was no violation of Rule 30 in not depositing the fee required under Rule 74.
The validity of Rule 74 is challenged inter alia on the grounds, firstly, that Section 52(1) of the Act, in so far as it authorises the State Government to frame rules providing for levy of fee on appeals, references and revisions, is ultra vires as an excessive delegation; and secondly, that Section 52(1) of the Act only authorises the State Government to make rules for payment of fees on appeals, references; and revisions, but Rule 74 of the rules goes beyond the section inasmuch as it provides for levy of fees which has no relation to the services rendered and is consequently a tax, and not a fee. Thirdly, it is contended that the Assam Legislature amended the Court Fees Act in the year 1950, by which the following clause in the second column of Article 11 of the second schedule has been inserted :
'(c) to a High Court in miscellaneous revenue matters except (d) below or to an appellate authority prescribed under the Motor Vehicles Act, 1939, or to an appellate authority prescribed under the Assam Sales Tax Act, 1947; Ten rupees.'
As the Court Fees Act now provides for fee on memoranda of appeals, this Act should prevail over the provisions of Rule 74 in so far as the rule prescribed fees on memoranda of appeals. The Court Fees Act being a subsequent enactment on the same subject, should prevail over the earlier rules; and to that extent the rules stand impliedly repealed. In this connection, it is further argued that the legislative enactment should prevail over the rules framed by the administrative authorities.
There are two earlier decisions of this Court in which it has been held that Rule 74 is intra vires and is not hit by the rule of excessive delegation. In the case of 'Banwarilal Mour v. State of Assam AIR 1955 Assam 195, it was held that the Assam Sales Tax Act under Section 52, does not leave any power to determine liability to levy tax to the Provincial Government. It has merely authorised the fixation of fees, if any, for petitions, with a view to carry out the purposes of the Act.
The main purpose of the Act is taxation on sales of goods. In the Act, there is provision for appeals, revisions and references, and to carry out the purposes of the Act in this behalf, power has been given to the Government to charge fee on appeals and revisions. This power to determine the fees is only ancillary to the main purposes of the Act, In the case of Bharat Automobiles v. State of Assam (S) AIR 1957 Assam 1, the view in the earlier case was affirmed. It was held in the latter case that in Section 52(1), the legislature has determined the forum of assessment, appeal and revision and has delegated to the administrative authorities only the power to fix fees payable on petitions, certificates and other matters.
This delegation is neither unregulated nor a delegation of essential legislative function. In view of these two decisions, it is not necessary to examine in detail the contentions raised by Mr. Sharma; but it has been argued by him that certain aspects of the question were not examined by this Court in the earlier decisions, and if they are examined now, a different view may reasonably be taken. It is also contended that the earlier cases' were not correctly decided and should be re-considered. Even if we had to differ from the view taken in the earlier cases, the proper course would have been to refer it to a larger Bench; but as we do not find any sufficient reason to take a different view, it is not necessary to adopt that course.
Mr. Sharma argues that the power to levy fee is contained in a separate and distinct item in the legislative list and consequently any delegation to exercise such a power is a delegation of essential legislative function. In the Government of India Act, 1935, item No. 48 in List II was in the following terms :
'Taxes on the sale of goods and on advertisements.' and item No. 54 of list II was as follows :
'Fees in respect of any of the matters in this list, but not including fees taken in any Court.'
Items 54 and 66 of list II of the seventh schedule to the Constitution correspond respectively to items 48 and 54 of the Government of India Act, 1935. In our opinion, the mere fact that the imposition of fee forms a distinct head of the legislative list, is no bar to the legislature delegating the power to fix fees to the administrative authorities as ancillary to the main purposes of the Act and with a view to carry out the purposes of the Act. This aspect was considered by the Bench in the case of Banwarilal Mour AIR 1955 Assam 195 referred to above.
The question of excessive delegation was examined by the Federal Court and the Supreme Court in a number of cases. In the case of Jatindra Nath Gupta v. Province of Bihar AIR 1949 F.C. 175, it was for the first time authoritatively laid down that in the Indian Constitution, there was a prohibition against delegation of legislative powers by the legislature. In the case of In re : Article 153 Constitution of India and Delhi Laws Act (1912) etc. AIR 1951 SC 332, which went to the Supreme Court on a reference under Article 143 of the Constitution, the law has been exhaustively dealt with. In the case of Hari Shankar Bagla v. State of Madhya Pradesh AIR 1954 SC 465, it was observed that 'it was settled by the majority judgment in the Delhi Laws case that the essential powers of legislation cannot be delegated'.
In other words, the Legislature cannot delegate its function of laying down legislative policy in respect of a measure and its formulation as a rule of conduct. The Legislature must declare the policy of the law and the legal principles which are to control any given cases and must provide a standard to guide the officials or the body in power to execute the law. The essential legislative function consists in the determination or choice of the legislative policy and of formally enacting that policy into a binding rule of conduct.
In the case of Rajnarain Singh v. Chairman, Patna Administration Committee AIR 1954 EC 569, the specific powers delegated under the impugned Act in the reference case have been analysed, and the majority decision on each of those powers has been given. In the case of Edward Mills Co. Ltd., Beawar v. State of Aimer (S) AIR 1955 SC 25 the Supreme Court was invited to invalidate the delegation of power to vary the schedule forming part of the impugned Act.
Power was given to add industries in the schedule and it was argued that there was no legislative policy to govern officials charged with the power of adding to the list of industries. This contention was repelled and it was held that policy was fully set out in the Act. The Court further pointed out that it was necessary to allow flexibility for adaptation to local conditions. The principles deduced from these cases can be summarised thus :
(1) There is an element of delegation when the Legislature authorises another body to do something which it might do itself.
(2) The primary duty of law-making has to be discharged by the Legislature itself, but delegation may be resorted to as a subsidiary or an ancillary measure, or to put negatively, legislation cannot strip itself of its essential functions and vest the same on extraneous authorities.
(3) The essential legislative function consists in laying down the policy of law and making it a binding rule of conduct.
(4) The prohibition against delegation of essential Functions applies to all types of delegation.
(5) To repeal or abrogate an existing law is the exercise of essential legislative powers; but the conferment of power to make an order inconsistent with the pre-existing laws, does not amount to the delegation of power to repeat.
Applying the principles enunciated above we do not think that Section 52(1) is an excessive delegation in so far as it authorises the administrative authorities to frame rules to provide for payment of fee on memoranda of appeals. Rule 74 is thus not ultra vires on this ground.
3. It is then argued that the distinction between a tax and a fee has been laid down by the Supreme Court in a number of cases, and applying those tests to the present case, what has been levied by Rule 74 is a tax, and not a fee. Reliance has been placed on the following passage in the case of 'Ratilal Panachand v. State of Bombay AIR 1954, SC 388 :
'Fees are payments primarily in the public interest, but for some special service rendered or some special work done for the benefit of those from whom the payments are demanded. Thus in fees, there is always an element of 'quid pro quo' which is absent in a tax. It may not be possible to prove in every case that the fees that are collected by the Government approximate to the expenses that are incurred by it in rendering any particular kind of service or in performing any particular work for the benefit of certain individuals.
But in order that the collections; made by the Government can rank as fees, there must be correlation between the levy imposed and the expenses incurred by the State for the purpose of rendering such services. This can be proved by showing that on the face of the legislative provision itself, the collections are not merged in the general revenue but are set apart and appropriated for rendering these services.
Thus two elements are essential in order that a payment may be regarded as a fee. In the first place, it must be levied in consideration of certain services which the individuals accepted either willingly or unwillingly, and in the second place, the amount collected must be earmarked to meet the expenses of rendering these services and must not go to the general revenue of the State to be spent for general public purposes.'
Relying upon this passage it is argued that the fees realised under the Act and the rules are neither set apart to meet the expenses of any appellate authorities under Section 30 of the Act, nor the fees are correlated to the services rendered to the fee-payer. The scale of fee is a graduated one and is not fixed, and the amount is not earmarked for the purpose of services rendered. It is also urged that it does not appear on the face of the legislative provision that the collections are not merged in the general revenue but are set apart and appropriated for rendering these services.
In the case of 'The Commissioner. Hindu Religious Endowments, Madras v. Sri Laksrimindra Thirtha Swamiar of Sri Shirur Mutt' AIR 1954 SC 282, it has been laid down that fees confer a special capacity although the special advantage, as for example in the case of registration fees for documents or marriage licences is secondary to the primary motive of regulation in the public interest vide Findlay Shirras on ''Science of Public Finance', Vol. I page 202. There is really no generic difference between the tax and fees, and as said by Seligman, the taxing power of a State may manifest itself in three different, forms known respectively as special assessments, fees and taxes.
Our Constitution has, for legislative purposes made a distinction between a tax and a fee, and while there are various entries in the legislative lists with regard to various forms of taxes, there is an entry at the end of each one of the three lists as regards fees which could be levied in respect of any of the matters that is included in it. The implication seems to be that lees have special reference to Governmental action undertaken in respect to any of these matters. It was observed in this case as follows :
'But the material fact which negatives the theory of fees in the present case is that the money raised by levy of the contribution, is not earmarked or specified for defraying the expenses that the Government has to incur in performing the services. All the collections go to the consolidated fund of the State and all the expenses have to be met not out of these collections but out of the general revenues by a proper method of appropriation as is done in case of other Government expenses. That in itself might not be conclusive, but in this case there is total absence of any correlation between the expenses incurred by the Government and the amount raised by contribution . ......'
An examination of these two cases will reveal that for the purpose of legislation a clear distinction has been made in the Constitution between a fee and a tax although there is no generic difference between the two. In those cases the constitutionality of certain provisions of an Act was involved and in these circumstances it was observed that it should appear on the face of legislative provision that the amount was set apart for the services rendered. In cases where the competency of the legislature to enact a particular law is not challenged but the validity of the rule is impugned on the ground that it goes beyond the Act inasmuch as it provides for a tax under the garb of a fee the facts will have to be examined to ascertain if the levy though purporting to be a fee is in fact a tax.
No facts were pointed out before the Sales Tax authorities to show that the law did not fulfil the requirement of a fee. The validity of Rule 74 was primarily challenged on the ground that it was an excessive delegation. Emphasis has been however laid before us on the fact that the income from the fee does not appear to have been earmarked for the purposes of meeting the expenses of appeals and is taken to the general revenue of the State.
Even in the case of AIR 1954 SC 282, it was observed by Supreme Court that the fact that all the collections go to the consolidated fund of the State is not by itself conclusive to show that the levy is not a fee. Reliance has been placed on the case of Chakko Bhai Ghelabhai v. State of Orissa 1956-7 S.T.C. 36 : (S) AIR 1956 Orissa 7 in support of this contention.
In this case the validity of the rules framed by the Sales Tax Authorities levying court fees on the petitions filed before them by way of revisions and appeals was challenged, and it was held that such a rule was ultra vires. The main ground on which such a rule was held ultra vires was that the rule was beyond the provisions of Section 29(2) (s). Section 29(2) (s) authorised the Government to prescribe rules of procedure for the disposal of an appeal and also to prescribe fees incidental to the disposal of such appeal. It was held that the expression 'incidental to the disposal of appeals and applications' does not contemplate a power to frame rules charging fee for filing an appeal.
It was no doubt held that the collection or levy of fees on a graded scale on appeals and applications for revision or review amounted in the circumstances of that case to imposition of tax which was unwarranted and was beyond the rule-making power of the State Government. But dealing with the question of the right of the Minorities to charge fee for issuing copies, it was observed that it might be open to the authorities to charge a fee for granting a copy as compensation for the services rendered, though the rules of natural justice would require that the assessee should be granted a copy of the assessment order free of charge.
No fixed criterion can be laid down to decide when a levy can be regarded to be a fee and when can it be said to be a tax. The circumstances of each case will have to be examined. The next case relied upon is the case of Nagpur Kshatriya Khatik Samaj Nagpur v. Corporation of the City of Nagpur, (S) AIR 1956 Nag. 152. That case is distinguishable on the facts. Various special circumstances have been pointed out in the judgment on consideration of which the learned Judges of the Nagpur High Court came to the conclusion that the levy in that case was in the nature of a tax and not a fee.
The last contention on this point is that the amendment made in the Court Fees Act will prevail over Rule 74. The Board on this point has observed that the fees levied under the Assam Court Fees Act fell under Item 3 of List II of the Seventh Schedule of the Constitution and that the fees levied under Rule 74 falls under Item 66 of List II, and therefore, both the fees could be simultaneously levied, Mr. Sharma who appears for the petitioners argues that the Sales Tax authorities are not Courts and thus the amendment of the Court-fees Act in so far it prescribes fees for appeals in Sales Tax case does not fall under Item 3 of List II.
He further contends that even if the Sales Tax Appellate Authorities can be regarded as Court, Rule 74 will not be covered by Item 66 of List II of the Seventh Schedule to the Constitution inasmuch as the said item excludes fees charged in Courts. Even if this contention is accepted, it will only invalidate the amendment to the Court-fees Act, but it will not affect the question referred to us. If the Assam Legislature was not competent under Item 3 of List II to amend the Court-fees Act so as to levy fees on appeals before the Sales Tax authorities the amendment itself might be invalid, but that will not render Rule 74 ultra vires. In fact Mr. Sharma's argument itself assumes that the two enactments--the Court-fees Act and Rule 74 read with Section 52 (1) are on the same subject and come within the same legislative list when ho contends that the latter law must prevail over the earlier one.
In dealing with the question of delegation, we have already held that the Assam Sales Tax Act has been enacted under Item 48 of List II of the Government of India Act and Section 52 (1) only authorises the Government to frame rules as a subsidiary legislation to carry out the purpose of the Act. Any rule, therefore, enacted in the exercise of validly delegated power under Section 52 of the Act cannot be said to be deriving its legislative competence from Items 3 or 66 of List II, and thus cannot be said to he on the same subject as the Court-fees Amendment Act. In my opinion, it can also not be said that by providing in the Court-fees Act for the levy of fees the provisions of Rule 74 stand impliedly repealed. The principle of implied repeal has been summarised in Craies' Statute Law, 5th Edition, page 337 as follows :
'Where two Acts are inconsistent or repugnant, the later will be read as having impliedly repealed the earlier (n). The Court leans against implying a repeal, 'unless two Acts are so plainly repugnant to each other that effect cannot be given to both at the same time, a repeal will not be implied Before coming to the conclusion that there is a repeal by implication the Court must be satisfied that the two enactments are so inconsistent or repugnant that they cannot stand together before they can, from the language of the later, imply the repeal of an express prior enactment.'
It has been further stated in Craies' Statute Law--at page 339 as follows :
'Where a new Act is couched in general affirmative language, and the previous law can well stand with it and if the language used in the later Act is all in the affirmative, there is nothing to say that the previous law shall be repealed, and therefore the old and the new laws may stand together.'
4. In the case of Rama Chandra Misra v. President, District Board, Ganjam, AIR 1951 Orissa 1 (SB), it was held that Section 166 of the Madras Local Board Act was concerned with safeguarding the public roads whereas the Transport Authorities in Section 42. Motor Vehicles Act are concerned with the regulation of traffic in the interests of public safety and convenience. Thus when the objects of Section 42 of the Central Act and Section 166 of the Madras Act are entirely different though there is overlapping of the functions of the two bodies to some extent, the question of the provision of a later statute repealing by implication the provision in an earlier statute does not arise.
5. The contention was that Section 166 of the Madras Act was in substance a statutory provision relating to taxation of motor vehicles although purported to deal with the levying of the fee and thus that Act became inoperative after the expiry of nine months from the commencement of the Central Act which dealt with taxation of motor vehicles. (It was remarked in this case, with which we are in complete agreement that
'repeal by implication should not be inferred unless there is no other way out. One of the tests to be applied in deciding whether an earlier statute is repealed by a later statute is whether both of them can stand together and their provisions obeyed to the full extent.'
6. Reliance was then placed on the case of R.M. Seshadri v. Province of Madras, AIR 1954 Mad 543 and Satyanarayanmurti v. Income-tax Appellate Tribunal, Madras Bench, (S) AIR 1957, Andh Pra 123 in support of the contention that the provisions of an Act will prevail over rules framed under the authority of an Act. In these cases it was held that the provisions of the Court-fees Act will prevail over the rules made by the High Court prescribing fee for matters before it. These decisions were based on the interpretation of Article 225 of the Constitution of India.
Article 225 of the Constitution which gives power to the High Court to frame rules, and in the exercise of the said power the impugned rules were framed by the High Court, is expressly subject to the law made in the exercise of the powers conferred on the legislature. In the referred cases the legislature having exercised power, the law so enacted was held to prevail over the rules framed in the exercise of the power under Article 225 of the Constitution, These cases, therefore, do not apply to the facts of the present case. We accordingly answer Question No. 1 in the affirmative and the question No. 2 in the negative.
On the last question referred to us the main contention of the learned counsel is that the Assistant Commissioner of Taxes was not competent to entertain the appeal. Mr. Sharma's argument is that Section 8 of the Assam Sales Tax Act 1947 empowers the Government to appoint a Commissioner of Taxes, and such other persons to assist him as it thinks fit. The Assistant Commissioner of Taxes, therefore, could only be appointed under Section 8 of the Act for the purposes of assisting the Commissioner. According to him the Assistant Commissioner could render assistance to the Commissioner only in matters which the Commissioner is expressly authorised to deal with under the Act except the power of reference under Sections 31 and 32,
Any power which the Commissioner can delegate can only be exercised by the authorities under elegation, but the Assistant Commissioner by virtue of his appointment as such cannot exercise those powers. The assistance for which he has been appointed relates to those powers only which have been expressly conferred on the Commissioner under the Act. Section 30 in out opinion clearly negatives the contention of the petitioner on this behalf. It provides that any dealer objecting to an order of assessment or penalty passed under this Act within thirty days from the date of the service of such order, may appeal to the prescribed authority against such assessment or penalty.
An appeal, therefore, under Section 30 of the Act lies to the prescribed authority. Rule 26 of the Assam Sales Tax Act prescribes that an appeal against an order of assessment of tax or penalty passed by the Superintendent of Sales Tax shall lie to the Assistant Commissioner of Taxes. The Assistant Commissioner of Taxes is therefore, a prescribed authority within the meaning of Section 30 and was competent to hear the appeal.
7. We accordingly answer the question No. 3 in the affirmative.
Sarjoo Prosad, C.J.
8. I agree, subject to the reservation that I have my doubts in connection with the answer proposed to the second question under reference. Speaking for myself, I am inclined to the view that the amendment of the Court-fees Act, providing for payment of a fixed fee on memoranda of appeals to an appellate authority prescribed under the Assam Sales Tax Act, by implication repealed the provision in Rule 74 of the relevant Rules to that extent. The question is not so much whether there was due legislative competence for the amendment of the Court-fees Act aforesaid, or for enactment of Rule 74 of the Rules, as about the obvious conflict between the two provisions, which admittedly relate to the self-same subject, namely, payment of fees for the above purpose.
The two provisions, in my opinion, could not stand together; and the later legislation under the Court-fees Act, which is an Act of the Legislature itself and not merely that of a delegate, should prevail. But. I find that the Court-fees Act has since been again amended and the above provision has been deleted. It is, therefore, unnecessary to pursue the matter any further and, for purposes of this case, I would be content to give my assent to the answers proposed by my learned brother.