JUDGMENT M.U. Isaac, J. 1. The petitioner is an incorporated company which is engaged in the manufacture and sale of soaps, toilets, pakav and other goods. It was assessed to salestax for the year 1964-65 under the Kerala General Sales tax Act, 1963 (hereinafter referred to as the Act) by the first respondent, the Salestax Officer, Special Circle, Ernakulam, by his order, Ext. P-1, dated 7th January 1966. This order was revised by him by rectifying certain errors by a subsequent order, Ext. P-2, dated 23rd February 1966. The petitioner claimed exemption in respect of a few transactions, and also deduction of certain amounts from its total turnover the petitioner's accounts were accepted; and all the above claims were allowed by the first respondent in making the assessment. The salestax and surcharge payable by the petitioner as per Ext. P-2 are Rs. 5,37,631.69 p. and Rs. 21,939.80 p. respectively; and there is no dispute about this assessment. The petitioner's accounts disclosed that it had collected from the persons to whom it sold goods a sum of Rs. 30,591.71 p. as salestax in excess of the tax which the petitioner was liable to pay under the Act. This was because in determining the taxable turnover under the Act, a dealer is entitled under rule 9 (1) of the Kerala General sales Tax Rules, 1963 (hereinafter referred to as the Rules) to deduct from the total turnover the excise duty, if any paid, by him to the Central Government in respect of the goods sold by him. Accordingly, sum of Rs. 6.62,958. paid by the petitioner as excise duty was deducted from its total turnover in determines the taxable turnover and assessing the tax payable by the petitioner. But the petitioner, when it sold the goods, collected salestax from the purchasers on the invoice price without deducting there from the excise duty paid in respect of the said goods. This resulted in the collection of a larger amount of sales tax than what the petitioner was liable to pay under the Act. The first respondent held as per Exts. P-1 and P-2 that the petitioner was liable to pay the aforesaid amount of Rs. 30,591.71 also to the Government under section 22 (3) of the Act. The petitioner had paid almost the whole tax payable under the Act, even before the assessment was made. The first respondent held as per Exts. P-1 and P-2 that the petitioner was liable to pay the aforesaid amount of Rs. 30,591.71 also to the Government under section 22 (3) of the Act. The petitioner had paid almost the whole tax payable under the Act, even before the assessment was made. The first respondent, therefore, issued a notice of demand Ext. P-3, dated 23-2-1966 to the petitioner, requiring the petitioner to pay a sum of Rs, 30,592.39 which consisted of the above sum of Rs. 30,591.71 and a small balance of the tax assessed under the Act. 2. The petitioner contended before the first respondent that section 22 (3) of file Act is unconstitutional and that the Government have no right to collect from the petitioner anything more than what it was liable to pay as tax under the Act. It relied on the decision of this court in O.P. Nos. 485, 486 and 487 of 1965, wherein a similar claim of the petitioner was upheld. Reliance was also placed on the decision of the Supreme Court in Abdul Quader & Co. v. Sales Tax Officer, Second Circle, Hyderabad (1964) 15 S.T.C. 403 in support of his contention, that the Government have no right to collect such an amount from a dealer. But the first respondent rejected the petitioner's contention. He observed regarding the decision of this Court in O.P. Nos. 485, 486 and 487 of 1965 that it happened to be in favour of the petitioner as the real and full facts of the case were not placed before the Court. He also observed that the above decision of the Supreme Court did not apply to this case, as that decision was concerned with the collection of tax made otherwise than in accordance with the provisions of the Act. The petitioner has, therefore, filed this Original Petition for a declaration that section 22 of the Act, in so far as it imposes a liability on a dealer to pay over to the Government any amount collected by him as salestax, even when such amount is not payable by him as tax under the Act, is unconstitutional, and to quash by a writ of certiorari the orders Exts. P-1 and P-2 as well as the notice of demand, Ext. P-3. 3. The petitioner's learned counsel has advanced the same contention as was raised before the first respondent. P-1 and P-2 as well as the notice of demand, Ext. P-3. 3. The petitioner's learned counsel has advanced the same contention as was raised before the first respondent. The decision of this Court in O. P. Nos. 485, 486 and 487 of 1965 was passed on a concession made on behalf of the first respondent that the decision of the Supreme Court in Abdul Quader & Co. v. Sales Tax Officer, Second Circle, Hyderabad (1964) 15 S.T.C.403 applied to those cases, and that the demands made therein could not be sustained. The position now taken up by the first respondent is that it was a wrong concession, and that the decision of the Supreme Court does not apply to the case. The above decision of this Court is therefore, no authority to support the petitioner's contention, nor does it preclude the first respondent from requiring the petitioner to pay the disputed amount under section 22 (3) of the Act, which relates to a different assessment year. It is necessary to refer to the relevant provisions of the Act and the Rules, for the purpose of examining the respective contentions of the parties. Section 5 of the Act is the charging section; and it provides that every dealer coming within its ambit shall be taxed on his total turnover for the year. Section 2 (xxv) of the Act defines the taxable turnover; and according to this definition, taxable turnover means turnover on which a dealer shall be liable to pay tax as determined after making such deductions from his total turnover and in such manner as may be prescribed. Rule 9 of the Rules deals with the determination of the taxable turnover; and according to clause (i) of this rule, excise duty, if any, paid by a dealer to the Central Government in respect of the goods sold by him, is a deduction to be made from the total turnover in determining the taxable turnover. Section 22 of the Act reads as follows: "22. Collection of tax by dealers.-(1) No person who is not a registered dealer shall collect any amount by way of tax under this Act; nor shall a registered dealer make any such collection except in accordance with such conditions and restrictions, if any, as may be prescribed. Section 22 of the Act reads as follows: "22. Collection of tax by dealers.-(1) No person who is not a registered dealer shall collect any amount by way of tax under this Act; nor shall a registered dealer make any such collection except in accordance with such conditions and restrictions, if any, as may be prescribed. Provided that nothing contained in this sub-section shall apply to the Central Government, a State Government or a local authority. (2) If any dealer or person who is not liable to tax under this Act collects any amount purporting to be by way of tax, such dealer or person shall, unless it is established to the satisfaction of the assessing authority that the amount so collected has been refunded to the person who had originally paid the amount, pay over to the Government within such time and in such manner as may be prescribed all amounts so collected. (3) If any dealer or person collects tax on transactions not liable to tax under this Act or in excess of the tax leviable under this Act, such dealer or person shall, unless it is established to the satisfaction of the assessing authority that the tax so collected has been refunded to the person who had originally paid the tax, pay over to the Government, in addition to the tax payable, the tax amount so collected, within such time and in such manner as may be prescribed. (4) A local authority which collects any amount by way of tax under this Act shall pay over to the Government the amount so collected, and, if any such amount is not so paid the Collector of the district concerned shall, on requisition by the assessing authority make an order directing the person haying the custody of the funds of the local authority to pay it in priority to any other charge against such fund except charges for the service of authorised loans; and such person shall be bound to comply with such order ". The legislative power of the State to levy salestax is contained in entry 54 of List II in the Seventh Schedule of the Constitution and it reads as follows: "54. Taxes on the sale or purchase of goods other than newspapers subject to the provisions of entry 92 (a) of List I ". 4. The legislative power of the State to levy salestax is contained in entry 54 of List II in the Seventh Schedule of the Constitution and it reads as follows: "54. Taxes on the sale or purchase of goods other than newspapers subject to the provisions of entry 92 (a) of List I ". 4. The petitioner's learned counsel contended that sub-sections (2) and (3) of section 22 of the Act are not provisions relating to levy, assessment and collection of salestax; but they contain a device to collect an amount, which the State has no right to collect under the Act. He submitted that what the State can charge and collect as salestax is contained in the various provisions of the Act, and what is sought to be recovered by sub-sections (2) and (3) of section 22 are amounts, which a dealer is not liable to pay under the Act as tax. The learned Government Pleader controverted this contention, and submitted that what the Government purport to collect under the above sub-sections is only salestax, which a dealer has wrongly or unnecessarily collected as a salestax, and that the impugned provisions are absolutely constitutional. Section 22 of the Act requires a careful examination in the light of the above contentions. Ordinarily, a dealer, who is liable to pay salestax, is entitled to collect salestax from the other party to the transaction. But sub-section (1) of section 22 prohibits an unregistered dealer from collecting any salestax, and it also provides that a registered dealer shall not collect salestax, except in accordance with the provisions of the Act Sub-sections (2) and (3) deal with cases where a dealer collects salestax in contravention of sub-section (1). sub-section (4) deals with collection of salestax by a local authority, and the recovery of the same by the Government. This sub-section is not relevant to the controversy, and can be left out of consideration. Sub-section (2) relates to a dealer not liable to pay tax under the Act; and sub-section (3) relates to transactions not liable to tax and also to transactions in respect of which a dealer collects salestax in excess of what he is liable to pay under the Act. A dealer may not be liable to tax under the Act due to any one of the following reasons. A dealer may not be liable to tax under the Act due to any one of the following reasons. First, he may be a seller, and the tax payable under the Act may be at the point of purchase. Secondly, he may be a purchaser, and the tax payable may be at the point of sale. Thirdly, he may belong to a class of persons, who is exempted from the liability under the Act. A transaction may not be liable to tax under the Act for the following reasons. First, it may not be a transaction which the State has got the legislative power to levy tax, such as a sale in the course of inter-State trade, or an import sale, or an export sale. Secondly, the transaction may relate to goods, whose sale is exempt from tax under the Act at all points, or is liable to tax only at a specified point in a series of sales in the State, and the transaction concerned is not one at that specified point. Collection in excess of the tax leviable under the Act, as contemplated in sub-section (3), may arise either because a dealer collects tax at a higher rate than what is provided under the Act, or he collects a larger amount than what is payable under the Act or collects tax on the wholesale price, without deducting there from the amounts which a dealer is entitled to deduct from the turnover. But I do not think that a transaction, which the State Legislature has no power to deal with, such as inter-State sale, export sale or import sale, falls within the class of transactions dealt with in section 22(3). The State Legislature has no power to deal with such a transaction; and if any dealer collects tax on such a transaction, it is an illegal collection, and the State cannot claim to get it under any circumstance or under any pretext. In my view, sub-sections (2) and (3) deal only with sales in respect of which the State Legislature has power to levy tax. Sub-section (2) provides that, if a dealer who is not liable to pay tax on such a transaction collects any amount by way of tax, he shall pay the same to the Government, unless he establishes that he has refunded it to the persons from whom he collected it. Sub-section (2) provides that, if a dealer who is not liable to pay tax on such a transaction collects any amount by way of tax, he shall pay the same to the Government, unless he establishes that he has refunded it to the persons from whom he collected it. Similarly sub-section (3) provides that, if a dealer collects tax in respect of a transaction not liable to tax under this Act, or if he collects tax in excess of the tax leviable there under, he shall pay over the same to the Government, unless he establishes that he has refunded it to the person from whom he collected it. In all these cases, what a dealer collects is salestax, and the collection is made under the Act, even though he need not have collected it because of the exemptions available under the Act, or what he collects is in excess of what was needed to be collected under the Act. All what subsections (2) and (3) provide is that salestax thus collected by a dealer should be paid over to the Government. The learned Government Pleader submitted that the Act generally provides for levy of salestax, that it exempts certain class of persons and transactions from salestax, and it also provides that, if a dealer collects salestax, in spite of the exemption, the tax so collected shall be payable to the Government. In other words, if a dealer collects tax without availing of the exemption, it must go to the State; and what is contained in sub-sections (2) and (3) is only a provision to this effect. It was submitted that the said provision, therefore, falls squarely under entry 54 of List II in Schedule VII of the Constitution. 5. The above contention, though attractive as it appears, cannot be accepted in the face of the decision of the Supreme Court in Abdul Quader & Co. v. Sales Tax Officer, Second Circle, Hyderabad (1964) 15 S.T.C.403. The question raised in this case related to the Constitutional validity of sub-section (2) of section 11 of the Hyderabad General Sales Tax Act (XIV of 1950) (hereinafter referred to as the Hyderabad Act. v. Sales Tax Officer, Second Circle, Hyderabad (1964) 15 S.T.C.403. The question raised in this case related to the Constitutional validity of sub-section (2) of section 11 of the Hyderabad General Sales Tax Act (XIV of 1950) (hereinafter referred to as the Hyderabad Act. Section 11 reads as follows: "11 (1) No person who is not registered as a dealer shall collect any amount by way of tax under this Act nor shall a registered dealer make any such collection before the 1st day of May, 1960, except in accordance with such conditions and restrictions, if any, as may be prescribed: Provided that Government may exempt persons who are not registered dealers from the provisions of this sub-section until such date, not being later than the 1st day of June, 1950, as Government may direct. (2) Notwithstanding anything to the contrary contained in any order of an officer or tribunal or the judgment, decree or order of a Court, every person who has collected or collects on or after 1st May 1950, any amount by way of tax otherwise than in accordance with the provisions of this Act shall pay over to the Government, within such time and in such manner as may be prescribed the amount so collected by him, and in default of such payment the said amount shall be recovered from him as if it were arrears of land revenue." The controversial portion contained in section 11 (2) is in substance similar to what is contained in sub-sections (2) and (3) of section 22 of the Act. The appellant, who was a dealer under the Hyderabad Act, collected tax from his purchasers in respect of goods, which were liable to tax only at the purchase point. He was called upon to pay the amount thus collected by him as salestax under section 11 (2). He objected to the demand on the ground that he was not liable to pay any salestax under the Hyderabad Act; and that section 11 (2) thereof, which empowered the Government to recover an amount, which was not chargeable under the said Act as salestax was beyond the legislative competence of the State. The appellant objection was overruled by the Sales Tax Department. He filed a writ petition in the High Court to quash the said demand; and this did not succeed. The appellant objection was overruled by the Sales Tax Department. He filed a writ petition in the High Court to quash the said demand; and this did not succeed. He then appealed to the Supreme Court, and advanced the same contention. Dealing with the content of section 11 (2), the Supreme Court said: "It is clear from the words 'otherwise than in accordance with the provisions of this Act' that, though the amount may have been collected by way of tax, it was not exigible as tax under the Act, Section 11 (2) thus provides that amounts collected by way of tax, though not exigible as tax under the Act, shall be paid over to Government and if not paid over they shall be recovered from such person as if they were arrears of land revenue. Clearly therefore section 11 (2) as it stand provides for recovery of an amount collected by way of tax as arrears of land revenue, though the amount was not due as tax under the Act. " Dealing with the constitutionality of section 11 (2) of the Hyderabad Act, the Court said: "Now it is clear that the sums so collected by way of tax are not in fact tax exigible under the Act. So it cannot be said that the State Legislature was legislating for the imposition of sales or purchase tax under Entry 54 of List II, when it made such a provision; for on the face of the provision, the amount, though collected by way of tax, was not exigible as tax under the law.t It was also contended in that case that, though it may not be open to the State Legislature to make provision for the recovery of an amount, which is not tax under Entry 54 of List II in a law made for that purpose, it would still be open to the Legislature to provide for paying over all the amounts collected by way of tax by a dealer, as part of the incidental and ancillary power to make provision for the levy and collection of such tax. This contention was repelled by the Supreme Court and it said: "The Legislature cannot under Entry 54 of List II make a provision to the effect that, even though a certain amount collected is not a tax on the sale or purchase of goods as laid down by the law, it will still be collected as if it was such a tax. This is what section 11(2) has provided. Such a provision cannot in our opinion be treated as coming within the incidental or ancillary power, which the Legislature has got under the relevant taxing entry to ensure that the tax is levied and collected and that its evasion becomes impossible. We are therefore of opinion that the provision contained in section 11(2) cannot be made under Entry 54 of List II, and cannot be justified even as an incidental or ancillary provision permitted under that entry." This was a case where a dealer collected tax on sale of goods; but the statute did not impose a liability on the dealer to pay tax on such sales, even though it was competent for the legislature to do so. According to the above decision, the fact that the State has legislative competence to levy the tax did not matter. If the statute does not provide for such a levy, any collection by way of tax is unauthorised; and a provision making the dealer liable to pay over such collection to the Government is unconstitutional. 6. The learned Government Pleader relied on the decision of the Supreme Court in Orient Paper Mills Ltd. v. State of Orissa (1961) 12 S.T.C. 357 . Section 14 (A), which was incorporated into the Orissa Sales Tax Act, 1947 by Amendment Act 28 of 1958, provided that, where any amount which is not payable by a dealer as salestax is paid by him to the Government, a refund of such amount can be claimed only by the person from whom such dealer has actually realised the amount, whether by way of salestax or otherwise, and that the application for such refund has to be made within a specified period. It was contended in the above case that this section is beyond the legislative power of the State. It was contended in the above case that this section is beyond the legislative power of the State. This contention was repelled by the Supreme Court; and it said:- "By item 54 of List II of Schedule VII to the Constitution, the State Legislature was indisputably competent to legislate with respect to taxes on sale or purchase of papers and paper-boards. The power to legislate with respect to a tax comprehends the power to impose the tax, to prescribe machinery for collecting the tax, to designate the officers by whom the liability may be enforced and to prescribe the authority, obligations and indemnity of those officers. The diverse heads of legislation in the Schedule to the Constitution demarcate the periphery of legislative competence and include all matters which are ancillary or subsidiary to the primary head. The Legislature of the Orissa State was therefore competent to exercise power in respect of the subsidiary or ancillary matter of granting refund of tax improperly or illegally collected, and the competence of the Legislature in this behalf is not canvassed by counsel for the assessees. If competence to legislate for granting refund of salestax improperly collected be granted, is there any reason to exclude the power to declare that refund shall be claimable only by the person from whom the dealer has actually realised the amounts by way of salestax or otherwise? We see none. The question is one of legislative competence and there is no restriction either express or implied imposed upon the power of the Legislature in that behalf." The learned Government Pleader submitted that, according to the above decision, the only question was one of legislative competence, and that sub-sections (2) and (3) of section 22 of the Act deal only with levy, assessment and collection of salestax, and that these provisions are, therefore, valid. This decision was cited before the Supreme Court in Abdul Quader and Co. v. Salestax Officer, Second Circle, Hyderabad (1964) 15 S.T.C. 403 in support of a somewhat similar contention advanced in that case. But it was not accepted; and the Supreme Court distinguished this decision stating : " That matter dealt with a question of refund and it cannot be doubted that refund of the tax collected is always a matter covered by incidental and ancillary powers relating to the levy and collection of tax. But it was not accepted; and the Supreme Court distinguished this decision stating : " That matter dealt with a question of refund and it cannot be doubted that refund of the tax collected is always a matter covered by incidental and ancillary powers relating to the levy and collection of tax. We are not dealing with a case of refund in the present case. What section 11 (2) provides is that something collected by way of tax, though it is not really due as a tax under the law enacted under Entry 54 of List II, must be paid to the Government. This situation in our opinion is entirely different from the situation in the Oriental Paper Mills Limited's case ". This decision does not, therefore, help the learned Government Pleader. 7. It was next contended that, if a provision making a dealer to pay over to the Government an amount collected by way of tax, where it is not exigible as tax under the Act, is unconstitutional, it may follow that sub-sections (2) and (3) of section 22 of the Act, in so far as they require a dealer, who collects such tax, to pay over the same to the Government are unconstitutional, but the provision contained in sub-section (3) regarding the tax collected in excess of the tax leviable under the Act, would be valid. Excess collection of tax, as mentioned earlier, occurs in two circumstances. One is that a dealer collects tax at a higher rate than what is fixed in the Act, or he collects a larger amount than what is payable as tax under the Act. Secondly, he collects tax on the wholesale price without deducting there from an amount which he is entitled to deduct. The first is a case of collection of an amount, which is not exigible as tax under the Act, while the second is a case of collection of tax payable under the Act, though the dealer need not have collected it. A provision, which requires a dealer to pay over to the Government an amount falling under the second category is within the legislative power of the State under Entry 54 of List II in Schedule VII of the Constitution. A provision, which requires a dealer to pay over to the Government an amount falling under the second category is within the legislative power of the State under Entry 54 of List II in Schedule VII of the Constitution. I am, therefore, inclined to accept the contention of the learned Government Pleader to the limited extent, namely, sub-section (3) of section 22 of the Act, in so far as it is applicable to an amount collected by a dealer in excess of the tax leviable under the Act, for the reason that he collected tax on the wholesale price, without deducting there from the amount which he is entitled to deduct, is within the legislative power of the State and valid. We are concerned in this case with such an amount. The sales made by the petitioner were taxable at the sale point; and the petitioner was liable to pay tax under the Act in respect of the said sales, whether it collected tax from its purchasers or not. The petitioner was also entitled to collect tax from the purchasers on these sales. Under rule 9 (i) of the Rules, the petitioner, in determining its taxable turnover, was entitled to deduct from the total turnover the excise duty paid by it to the Central Government. Accordingly, it was at liberty, when collecting salestax from its purchasers, to deduct the excise duty from the invoice price, and charge salestax only on the balance amount. This is only a benefit which the petitioner could have availed of. It was open to it not to avail of this benefit, and collect salestax from its purchasers on the wholesale price including the excise duty paid in respect of the goods. All what the petitioner is required to pay over to the State in this case is the amount, which it collected as salestax, and which it was entitled to collect as salestax. This amount happened to be in excess of the tax payable by the petitioner under the Act, because it collected sales tax from its purchasers on the wholesale price without deducting the excise duty. In my opinion, the demand made by the first respondent is perfectly legal, and the objection taken by the petitioner cannot be sustained. 8. In the result this Original Petition fails; and it is accordingly dismissed. Parties will bear their respective costs.