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State of Orissa v. Steel Authority of India

Supreme Court of India · 10 August 1998

Court
Supreme Court of India
Decided
10 August 1998
Case no.
C.A. No. 3693 of 1998
Bench
Cji, K. Venkataswami
Length
4 pages
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PETITIONER:
STATE OF ORISSA & ORS.
Vs.
RESPONDENT:
M/S STEEL AUTHORITY OF INDIA LTD.
DATE OF JUDGMENT: 10/08/1998
BENCH:
CJI, K. VENKATASWAMI

ACT

HEADNOTE

JUDGMENT

JUDGMENTK. Venkataswami, J.

Special leave granted.

These appeals raise a common question of law and the parties are same in both the appeals. As a matter of fact, in Civil Appeal arising out of S.L.P. (C) No. 16665/92 the High Court has simply followed its earlier judgment against which the Civil Appeal arising out of S.L.P. (C) No. 16718/91 has been filed. In the circumstances, both the appeals are disposed of by this common judgement.

The respondent, a manufacturer of iron, steel and allied products, entered into an agreement of lease in respect of land measuring 569.6 acres with the State Government in order to meet its own requirements of raw materials, namely, limestone and dolomite. Under the agreement, it was agreed that the respondent was liable to pay royalty on the minerals extracted. However, the dispute that arises for consideration out of the two judgments of the High Court is whether the respondent is liable to pay royalty on the quantity of mineral extracted as it is or on the quantity arrived at after the said mineral had undergone a processing to remove waste and foreign matters. It was the case of the appellants that the respondent was liable to pay royalty on the mineral extracted while the case of the respondent was that the liability was on the quantity of mineral obtained after it had undergone the process.

The process adopted by the respondent is given in the SLP paper book at page 11, which reads as follows :-

"In the Mechanised Section of the

respondent’s quarry, after

blasting, the blasted materials

containing Limestone and other

foreign materials are loaded by

mechanical shovels and are brought

to the crushing Plant by dumpers.

These are called "Rum of Mines",

for short R.O.M. The R.O.M. are fed

into the crusher, and when

necessary stockpile is made, the

same is fed into the primary

crusher whereafter it goes to the

secondary crusher mechanically.

In between he secondary crusher and

the screening Plant is affixed the

Weighto-meter. From the secondary

crusher the Limestone is moved into

the screening Plant and from the

screening Plant to the stockpile.

The stockpile is then transported

and loaded into the Railway wagons.

The Weighto-meter recording

mentioned hereinabove, is done as

the workmen are paid their

incentives on the basis of

production. This figure recorded by

the Weighto-meter is duly recorded

in the books kept by the

respondent-company in the regular

course of business as "production".

The Senior Mining Officer is duly

intimated of the weight recorded in

the manner as aforesaid."

The High Curt, after referring to Section 9(1) f the Mines and Minerals (Regulation and Development) Act, 1957 (hereinafter called "the Act") and also clause 3 of Par V of the Lease Deed, held as follows :-

"A distinction has to be made

between removal from the mine and

removal from the leased area. If

after the mineral is extracted from

the mine, it undergoes some

processing and during processing a

part of the mineral is wasted and

the wasted remains on the leased

area and is not removed therefrom,

the lessee cannot be asked too pay

royalty on that portion f the

wastage."

On that view of the matter, the High Court quashed the demands, which were levied on the quantity of ‘unprocessed’ minerals.

Aggrieved by the order of the High Court, the present appeals are filed by special leave.

The learned counsel appearing for the appellants submitted that the High Court was not right in making the distinction and concluding that the quantity of minerals which had undergone certain process alone was liable to levy of royalty. According to the learned counsel, this view runs counter to the view already taken by another Division Bench of the same High Court in O.J.C. No. 909/74. The further case of the learned counsel was that the judgment on O.J.C. 909/74 was taken on appeal to this Curt by the aggrieved assessee in Civil Appeal N. 807/76 [National Cal Development Corporation Ltd. Vs. State of Orissa & Ors.] and this Court approved the view taken by the High Court and dismissed the said Civil Appeal on 5.12.91. Learned counsel, in support of his argument, placed reliance on the judgments of this Court, namely, India Cement Ltd. & Ors. Vs. State of Tamil Nadu & Ors. [(1990) 1 SCC 12] and Saurashtra Cement and Chemical Industries Ltd. Vs. Union of India & Anr. [(1994)1 SCC 226]. Learned counsel appearing for the respondentassessee supported the judgments under appeal on the basis of the distinction made by the High Court.

We have considered the arguments and the reasonings contained in the judgments under appeal.

Section 9(1) of the Act reads as

follows :-

"The holder of a mining lease

granted before the commencement of

this Act shall, notwithstanding

anything contained in the

instruments of lease or in any law

in force at such commencement, pay

royalty in respect of any mineral

removed or consumed by him or sub-

lessee from the leased area after

such commencement, at the rate for

the time being specified in the

Second Schedule in respect of that

mineral.

(Emphasis supplied)

It is to be noted that the levy of royalty is in respect of minerals removed or consumed by the contractor from the leased ares. We have seen earlier the process that the mineral said to undergo before the same was removed form leased area. Section 9(1) of the Act also contemplates the levy of royalty on the mineral consumed by the holder of a mining lease in the leased area. If that be so, the case of the appellants that such processing amounts to consumption and, therefore, the entire mineral is exigible to levy of royalty has t be accepted. We are unable to agree with the distinction made by the High Court and the conclusion that the royalty can be levied only on the quantity of mineral obtained after processing.

Another Division Bench of the Orissa High Court in National Coal Development Corporation case (supra), while considering the question whether the coal extracted by the workmen for their own domestic consumption is exigible to levy of royalty, accepting the contention of t he Revenue, held "that removal from the seam in the mine and extracting the same through the pits’s mouth to the surface satisfy the requirement of Section 9 in order to give rise to liability for royalty". This view of the High Court found approval by this Court in Civil Appeal No. 807/76 and this Court held that the lessee in that case was liable to pay royalty for the coal supplied to its workmen for consumption.

In India Cement’s case (supra), a Constitution Bench, while considering the constitutionality of levy of case on the royalty, held as follows :-

"In the Western India Theaters Ltd.

Vs. Cantonment Board, Poona

Cantonment it was held that an

entertainment tax is dependent upon

whether there would or would not be

a show in the cinema house. If

there is no show, there is no tax.

It cannot be a tax on professions

or calling. Professional tax does

not depend on the exercise of one’s

profession but only concerns itself

with the right to practice. It

appears that in the instant case

also on tax can be levied or is

leviable under the impugned Act if

on mining activities are carried

on. Hence, it is manifest that it

is not related to land as a unit

which is the only method of

valuation of land under Entry 49 of

List II, but is relatable to

minerals extracted. Royalty is

payable on a proportion of the

minerals extracted........

...................................

.........................

For the reasons stated above, we hold that the High Court was not right in quashing the demands, which were rightly calculated and levied. The impugned judgments of the High Court are set aside and the O.J.Cs. filed by the respondent stand dismissed.

The appeals are allowed accordingly with no order as to costs.

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