R P RAMUDU IYER AND SONS Vs. STATE

JUDGEMENT

(1.) THE petitioners in this case have preferred this revision against the order of the learned Additional First Class Magistrate, Madurai, to Summary Trial Case No. 93 of 1955. The respondent herein had instituted a prosecution under Rule 32 of the Madras General Sales-tax Rules assents the petitioners, who are dealers in cotton yarn in Madurai Town. For the year 1954-55 ( the petitioners had taken out a cotton yarn-licence No. 1073. Their turnover for that year was in the sum of Rs. 53,369-8-0 as could be seen from Ex. B. 1. Under Rule 5 of the Madras General Sales-tax Rules the petitioners should have applied for and taken out a licence for the year 1955-56 for enabling them to trade in cotton yarn. They did not do so. Under the then rules they should have filed the application before the 30th September 1955. But actually the petitioners submitted the application on the 22nd November, 1955 after they had been called upon to do so by the General Sales-tax department by notice dated 24th October 1955 under Ex p, 2. Ex. F, 3 is the application submitted by' the petitioners for the licence. Having submitted the application for the licence so late, they did not also pay the licence fee, which should have been paid along with the application for the licence. Both the application/ arid the licence fee should have been made and paid before the 30th September 1955 as required" by Rule 5 (1) of the Madras General Sales-tax Rules as amended by G. O. No. 1898 dated 17tlr June 1955. Having failed to do so, the petitioners, were prosecuted on two counts (1) for failure to apply for the licence and (2) for failure to pay the licence fee, an offence punishable under Section 15 (b) of the Madras General Sales-tax Act, as also under rule 32 of the General Sales-tax Rules.

(2.) THE petitioners' defence was that, they, being subsequent dealers or second dealers, were not liable to pay the tax and therefore not liable to apply for the licence and pay the fee prescribed. The second line of defence was that the petitioners were liable to apply for the licence only is the turnover was Rs, 7,500 and above, and since they did not have' so much turnover for the year concerned, they were not bound to apply for a licence. The petitioners also questioned the validity of the rule requiring a licence fee in the sura of Rs. 150 which according to them was more in the nature of a tax than a fee. The learned Magistrate after considering the defence put forth by the petitioners found that the petitioners had omitted to submit their application for a licence in time under Rule 5 (1) of the Madras General Sales-tax Rules and to pay a licence fee along with the application as required under Rule 6 (4) (a) of the Madras General Sales-tax Rules, and that the offence being punishable under Section 15 (b) of the said Act, the petitioners were guilty under the two provisions. While convicting them he sentenced the petitioners to pay fine of Rs, 10 each on the first count and Rs. 20 each on the second count, in default to undergo simple imprisonment for ten days and twerfty days respectively. The learned Magistrate also directed the Petitioners to pay the licence fee of Rs. 150 which was to be recovered from them jointly and severally, as if it were a fine.

(3.) THE same points as have been urged before the learned Magistrate are now urged before us by the learned Counsel Mr. Vittal Souli for the petitioners. The point raised as to whether the fee prescribed and levied is in the nature of a tax or a fee for a licence has already been decided in W. p. No. 85 of 1956 etc. by a Bench of this Court on the 8th May 1957 (A ). The decision is unreported, but there is no controversy about the points dealt with in this decision. In that decision it was held that it was not , an unreasonable restristion to levy a licence fee for dealing in skins and hides (which stood on the same footing as cotton yarn and; that there was no infringement of Article 19 (1) (g) of the Constitution and that further the fee was not in the nature of a tax and also was not in excess Of the value of the services rendered. The legal point raised by the learned Counsel for the petitioners now need not therefore be gone into over again by us in view of this decision, with which we are in agreement.