MEHTA FOOD PVT LTD Vs. STATE OF JAMMU AND KASHMIR
HIGH COURT OF JAMMU AND KASHMIR
MEHTA FOOD PVT LTD
STATE OF JAMMU AND KASHMIR
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TEJINDER SINGH DOABIA,J. -
(1.) THE levy of additional toll tax Re. 0. 60 paise per kilogram on dry fruits including almonds, walnuts and walnut kernels, to be exported out of the State of Jammu and Kashmir through the barriers located at Lakhanpur, Jammu Railway Station, Manwal and other toll posts, as may be notified by the State Government, from time to time, is the subject -matter of challenge in a group of writ petitions listed before this Bench. A challenge is also being made to another notification issued by the State Government under section 5 of the Jammu and Kashmir General Sales Tax Act of 1962. By this notification, the sales tax is sought to be levied on a turnover to be determined by weight, i. e. , Rs. 0. 60 per kg. on dry fruits including almonds, walnuts and walnut kernels for a limited period from 1st May, 1982 to 19th August, 1982. In the alternative, it is urged that even if the levy of toll tax is held to be valid, even then, this additional toll tax is not payable by the petitioners. In support of this, is said to be a notification issued by the State Government under which exemption from payment of toll tax has been granted.
(2.) THE challenge to toll tax is broadly being made, inter alia, on the ground that these goods are carried on highways which are maintained by the Central Government under the National Highways Act of 1956. It is urged that the levy being in the nature of fee, therefore, there has to be an element of quid pro quo, i. e. , there has to be a corresponding service to be provided by the State Government. As in the maintenance and up -keep of the national highways, the State Government is not spending any amount from the State funds, it is submitted that levy of toll tax by the State Government is not sustainable.
The learned Advocate -General, who has put in appearance on behalf of the State, has sought to make a distinction between the term "toll" and "tolls". Relying upon Blacks Law Dictionary, page 1488, he submits that the words "tolls" and "toll" have different content and scope. It is submitted that the word "toll" may represent the concept of grant of privilege of travel over a particular highway with a corresponding duty to maintain it, thus involving an element of quid pro quo. It is urged that in the case of toll, it is compatible with the principle that he who receives the toll has to do something equivalent to, to him who pays it. But "tolls" as per the learned Advocate -General represent an entirely different concept. This as per him does not involve the concept of quid pro quo. This according to him is a tax like any other tax. What is sought to be urged is that when levy is imposed by an Act of Legislature, the concept of quid pro quo is alien, and therefore, the challenge made to the various notifications referred to in the writ petitions is without any basis. It is otherwise urged that the question stands concluded by a Full Bench decision of this Court reported as Girdharilal Anand Saraf v. State of Jammu and Kashmir AIR 1969 Jandk 113. It is accordingly urged that the challenge made to the levy of toll tax is without any basis. The learned Advocate -General also urged that the petitioners are not entitled to any exemption as the activity undertaken by them is not covered by the term "manufacture".
(3.) WITH a view to examine the above basic contentions and some other ancillary arguments put across by the learned counsel for the parties, the facts in brief be noticed :;
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