Gajendragadkar, J. - (1.)This is a petition filed under Art. 32 of the Constitution challenging the validity of the excise tariff imposed by Cl. (6) in entry 4 (1) in the First Schedule to the Central Excises and Salt Act, 1944, (1 of 1944). Petitioners Nos. 1 to 17 are tobacco cultivators and they carry on the trade and business of growing tobacco and of selling it in Kaimganj Tahsil in the District of Farrukhabad in Uttar Pradesh. Petitioners 18 to 30 are partners or proprietors or agents of firms which are private bonded warehouse licensees and they carry on trade and business of purchasing tobacco from the cultivators and of selling the same to dealers or to other private warehouse licensees. By their petition the petitioners have asked for a writ, direction or order in the nature of mandamus to be issued to the respondent the Union of India, restraining it from levying excise duty on hooka and chewing tobacco under the impugned item and any other writ, direction or order which may be found suitable to protect the fundamental rights of the petitioners to carry on their trade and business of dealing in hooka and chewing tobacco. The attack against the validity of the impugned tariff item is based substantially on two grounds. It is urged that the rates imposed by the impugned item are excessive and they virtually destroy the petitioners' trade and it is argued that the impugned item is based on unconstitutional, discrimination. Mr. Mathur, for the petitioners, fairly conceded that he would not be able to substantiate the first ground of challenge, and indeed it is obvious that a challenge to tax law on the mere ground that the tariff imposed by the tax law is heavy cannot be entertained. That leaves the question of discrimination alone to be considered in the present petition. For the purpose of this petition we will assume that if discrimination in respect of commodities taxed is proved it ultimately amounts to a discrimination against the person taxed and therefore Art. 14 can be invoked in such a case. Mr. Mathur contends that that is the effect of the decision of this Court in K. Thathunni Moopil Nair, vs. State of Kerala, Petitions Nos. 13 to 24, 42 and 46 to 54 of 1958 decided by the Constitution Bench on 9-12-1960 and as we have just observed we will assume that such a challenge can be made against the validity of a taxing statute with provisions such as we have before us and deal with the petition on that basis.
(2.)The tariff entry in dispute as it now obtains under the taxing statute is entry 4 in the First Schedule. It deals with tobacco. Under this entry "tobacco" means any form of tobacco, whether cured or uncured and whether manufactured or not, and includes the leaf, stalks and stems of the tobacco plant but does not include any part of a tobacco plant while still attached to the earth. Clause I in entry 4 deals with unmanufactured tobacco and prescribes tariff per kilogram in respect of the several items specified in it. Item (1) under this clause deals with five categories of tobacco which are flue cured and are used in the manufacture of cigarettes as indicated in the said five sub-clauses. Item (2) deals with tobacco which is flue cured and used for the manufacture of smoking mixtures for pipes and cigarettes. Item (3) provides for flue cured tobacco which is not otherwise specified; and item (4) is concerned with tobacco other than flue cured and used for the manufacture of (a) cigarettes or (b) smoking mixtures for pipes and cigarettes. The tariff varies from Rs. 16-15 nP per kilogram to Rs. 1-65nP per kilogram. That takes us to item (5). This item deals with tobacco other than flue cured and not actually used for the manufacture of (a) cigarettes or (b) smoking mixtures for pipes and cigarettes or (c) biris. The fourth clause under this item is tobacco cured in whole leaf form and packed or tied in bundles, hanks or bunches or in the form of twists or coils. For tobacco falling under the clauses under item (5) the tariff is Rs. 1-10 nP per kilogram. Clause (6) in this item with which we are concerned in the present petition deals with tobacco other than flue cured and not otherwise specified. For this residuary clause the tariff prescribed is Rs. 2-20nP per kilogram. This tariff is double the tariff prescribed for the classes in the preceding item. Mr. Mathur's grievance is that the tobacco with which the petitioners deal cannot be distinguished on any rational basis from the tobacco covered by item (5), Cl. (4) and so the imposition of a double tariff on the tobacco in which the petitioners deal is invalid inasmuch as it is based on unconstitutional discrimination. The argument proceeds on the assumption that the tariff is prescribed by reference to the use to which tobacco is put and it is urged that the tobacco with which the petitioners are concerned is not actually used either for cigarettes or smoking mixtures or biris and the fact that it is broken and not whole leaf does not afford any rational basis for classification.
(3.)In dealing with this argument it would be relevant very briefly to refer to the report of the Tobacco Expert Committee whose recommendations have furnished the main basis for the present revised tariff in respect of tobacco. In substance this report shows that the present tariff cannot be said to have been prescribed either wholly or even primarily by reference actually to the use of tobacco. Tobacco, as the Committee's report points out, is a rich man's solace and a poor man's comfort. Since it is used by all classes of people in various forms it is necessary to frame the tariff in such a way that the incidence of tax shall fall equitably on all classes of people using it. The report then points out that the Intention Tariff based on the principle of intention was found to be ineffective because the assessee's declaration of intended use left large room for evasion of tax. That is why the Intention Tariff was substituted by a flat rate of duty. By experience it was found that even this method was not very effective or equitable and then was adopted the capability tariff. Under this test the criterion of assessment was to be whether or not a particular specimen of tobacco was capable of use in biri manufacturing. If so capable it was assessable on a higher rate, if not so capable then at a lower rate. The report has examined the advantages of the capability tariff and has quoted the opinion of the Taxation Enquiry Committee which made its report in 1953. The report considered the volume of evidence adduced before it and took into account all the suggestions made. "In view of the practical difficulties brought before us", says the report, "we consider that, within the present tariff, the only workable and satisfactory method of classifying tobacco will be to prescribe standards readily identifiable either visually or by other simple tests and manipulations with a view to determine empirically what is capable and what is incapable of use in biris. The position is complicated because the same tobacco is used for different purposes in different parts of the country according to the prevalent consumption habits of different types of tobacco"; and the Committee realised that any system of classification on a uniform basis for the whole of the Indian Union is bound to involve greater imposts on consumers of those areas where the prevalent custom is to consume a variety for chewing snuff, hooka, cigar purposes while the same varieties are used in other areas for biris. The conclusion of the Committee, therefore, was that the only criterion which is safe to adopt is the one relating to the physical form of tobacco as affecting its suitability for biri making. The Committee realised that it was very difficult to classify specified varieties as solely chewing tobacco because many of these varieties are also used for making snuff and for hooka purposes. Normally, however, most chewing varieties are in whole leaf form and or cured by addition of moisture. Tobacco cured in whole leaf form cannot be converted into flakes as readily as tobacco cured by dry curing methods, and in the opinion of the Committee, although it is possible to prepare flakes out of tobacco cured in whole leaf form the process of conversion into flakes causes much higher proportions to crumble into dust, rawa and other unsaleable forms The Committee was conscious that the whole leaf varieties after suitable manipulation can be utilised for biri manufacturing purposes but it thought that this could be done only after converting them into graded flakes, and even thereafter "only by admixture with other tobacco on a small localised scale. In regard to the broken leaf grades which the Committee recommended should be liable to assessment at the higher rate relief was recommended by permitting any owner to convert his broken leaf tobacco into fine rawa or dust in which form it will become physically unusable for biris. According to the Committee, after such manipulation of physical form, the resultant, if it fulfils the specifications for rawa and dust, may be allowed assessment at the lower rate.