JUDGMENT : Surendra Mohan, J. The petitioner in W.P.(C) No. 30322 of 2010 is an Association of Sea Food Exporters in the State of Kerala and a Company registered under Section 25 of the Companies Act, 1956. All the members of the petitioner Association are seafood exporters. The petitioners in W.P.(C) No. 31974 of 2010 are also seafood exporters. They have filed these writ petitions challenging the constitutional validity of Section 3(1), 3(2) and 3(3) of the Kerala Fishermen's and Allied Workers Welfare Cess Act, 2007 According to them, the impugned provisions are beyond the legislative competence of the State and consequently, unconstitutional. They have also prayed for a declaration that exporters of sea food are not liable to pay the cess, interest and penalty under the said Act. 2. The grievances of the petitioners date back to the enactment of the Kerala Fishermen's Welfare Fund Act (hereinafter referred to as 'the Welfare Fund Act' for short) in the year 1985. The Act proposed to constitute a Welfare Fund for the fishermen with contributions from the persons engaged in seafood trade. The definition of 'dealer' on whom the liability to pay contributions was cast, included an exporter also. The provisions of the said Act were challenged as unconstitutional before this Court. However, the challenge was unsuccessful. The matter was carried in appeal to the Apex Court. A Constitution Bench of the Supreme Court held Section 4(2) of the Welfare Fund Act to be unconstitutional. According to the petitioners, attempts were made to get over the verdict of the Supreme Court, initially by promulgating the Kerala Fishermen's and Allied Workers' Welfare Cess Ordinance, 2006 and later on by enacting the present Act. The preamble of the Ordinance of 2006 declares that the levy of cess on the sale of fish and fish products was with a view to augment the resources of the Kerala Fishermen's Welfare Fund, for the welfare of the fishermen and allied workers. The Ordinance later on became the Kerala Fishermen's and Allied Workers Welfare Cess Act, 2007 (hereinafter referred to as 'the Cess Act' for short). 3. The Cess Act has been enacted in exercise of the legislative power under Entry 23, List III, Schedule VII of the Constitution. The Ordinance later on became the Kerala Fishermen's and Allied Workers Welfare Cess Act, 2007 (hereinafter referred to as 'the Cess Act' for short). 3. The Cess Act has been enacted in exercise of the legislative power under Entry 23, List III, Schedule VII of the Constitution. According to the petitioners, inasmuch as there is no employer-employee relationship between a fisherman or an allied worker and an exporter, who is the last purchaser of fish in the State, the State lacks legislative competence. Section 2(a) of the Cess Act defines 'an allied worker' to be a person who is engaged mainly in fishery related activities for his livelihood and who does not come under the term 'fisherman' in clause (e) of Section 2 of the Kerala Fishermen's Welfare Societies Act, 1980 and includes beach workers, fish distributors, fish curers, peeling workers and processing plant workers, who are not members or not eligible to get membership, in any other statutory welfare scheme. As per Section 2(c), 'Board' means the Kerala Fishermen's Welfare Fund Board constituted under Section 7 of the Kerala Fishermen's Welfare Fund Act, 1985. 4. Section 2(d) of the Cess Act defines 'dealer' to mean any person who engages in the business of buying and selling of fish or processing fish or bringing into the State or sending outside the State the fish (raw or processed) or fish products or allied objects or equipments and includes (i) a commission agent, a broker, auctioneer or any other mercantile agent; by whatever name called; and (ii) a non-resident dealer or an agent of a non-resident dealer or a branch of a firm or company or Association situated outside the State. The proviso to the definition makes it clear that fishermen and allied worker as defined in the 'Welfare Fund Act' shall not be included in this. 5. Section 2(h) of the Cess Act defines 'fund' to mean the Kerala Fishermen's Welfare Fund established under Section 3 of the Welfare Fund Act. 6. Section 2(k) of the Cess Act defines 'sale proceeds' to mean the sale value of all transactions carried out in the State including buying or selling, bringing in or sending outside the State, fish or fish products or allied objects or equipments for use or for processing otherwise. 7. Section 3 of the Cess Act is the charging section that deals with the levy and collection of fees. 7. Section 3 of the Cess Act is the charging section that deals with the levy and collection of fees. Sub section (1) provides that, there shall be levied and collected a cess for the purpose of the Kerala Fishermen's Welfare Fund Act, 1985 and the Scheme thereunder, at one percent of the total sale proceeds of a dealer in a financial year. Sub section (4) provides that the cess collected under the provision shall be credited initially to the consolidated fund of the State in the manner as may be prescribed. Sub Section (5) provides that the amount of cess collected shall be paid to the fund of the Board by the Government after deducting the cost of collection of such cess not exceeding one percent of the amount collected every year before 30th June in the manner as may be prescribed. 8. A comparison of the provisions of the Cess Act with the provisions of the Welfare Fund Act and the Ordinance of 2006 shows that exporters are not included within the definition of 'dealer' under the Cess Act. According to the petitioners, the legislature has consciously excluded exporters from the purview of the definition as is evident from the presence of the said words in the Ordinance and the absence thereof in the subsequent enactment. Despite the absence of any words or expressions bringing exporters within the scope of the Act, the officers administering the Act initiated proceedings against the members of the petitioner Association and have assessed them to huge amounts of cess. Therefore, they seek a declaration that the provisions of the Act are not applicable to them. 9. If on the other hand the provisions are applicable, then such provisions are unconstitutional for the reason that the State lacks legislative competence to enact such a law. This is especially so in view of the finding of the Supreme Court that there is no employer-employee relationship between the fisherman who is the beneficiary and the exporter or nexus between the beneficiary and the exporter. The said mischief, for the presence of which the provisions of the Welfare Fund Act were set aside by the Supreme Court, still subsists rendering the provisions of the Cess Act also unconstitutional and liable to be set aside for the very same reasons. 10. The said mischief, for the presence of which the provisions of the Welfare Fund Act were set aside by the Supreme Court, still subsists rendering the provisions of the Cess Act also unconstitutional and liable to be set aside for the very same reasons. 10. According the Senior Counsel appearing for the petitioners, the provisions of the Cess Act are identical to the provisions of the Welfare Fund Act, particularly the objectionable sections. Section 2(d) of the Welfare Fund Act defines a 'dealer' and Section 2(i) defines the expression 'fund'. Section 2(i) defines the word 'fund' to mean the Kerala Fishermen's Welfare Fund established under Section 3 of the Act. Section 4(2) mandates that a dealer shall contribute every year to the fund, one percent of his sale proceeds in the year. 11. The Constitutional validity of Section 4(2) of the Welfare Fund Act had come up for consideration before the Apex Court in Koluthara Exports Ltd. v. State of Kerala ( (2002)2 SCC 459 ). It was argued in the said case by the appellant who was a purchaser and exporter of fish that there was no employer-employee relationship between the appellant and the fishermen. Therefore, the legislature had no power to levy an impost by way of contribution on the appellant under Section 4(2) of the Act, for want of legislative competence. 12. The above contention was sought to be met by the respondent, State of Kerala, contending that the Scheme was framed as a welfare measure for the benefit of the fishermen under the Welfare Fund Act, which is a welfare legislation enacted in furtherance of the Directive Principles of State policy enshrined in Articles 39 and 41 of the Constitution. The fishermen form a poor and downtrodden section of the society and therefore Entry 23 of List III of Seventh Schedule of the Constitution conferred the necessary legislative competence on the State to enact a law requiring one set of persons to pay contributions for the benefit of another set of persons. 13. The fishermen form a poor and downtrodden section of the society and therefore Entry 23 of List III of Seventh Schedule of the Constitution conferred the necessary legislative competence on the State to enact a law requiring one set of persons to pay contributions for the benefit of another set of persons. 13. After considering the rival contentions, the Apex Court found that though the State had the legislative competence under Entry 23 of List III to cast the burden of an impost by way of contribution for giving effect to the provisions of a welfare legislation, such burden could not be imposed on a person who was not a member of such section of the society or an employer of a person, who is a member of such section of society that is to benefit from the impost. The burden of the impost could be cast only where there exists the relationship of employer and employee between the contributor and the beneficiary of the provisions of the Act and the Scheme made thereunder. Applying the above principle to the facts of the case, the Apex Court held that the relationship between an exporter and a fisherman was not that of an employer and employee. The class of fishermen is comprised of the persons who catch and sell fish while the exporters are purchasers. According to the Apex Court, “such a nexus in our view, is not sufficient to burden a purchaser/exporter with the impost or levy of the contribution under Section 4(2) of the Act, which will clearly be outside the ambit of Entry 23 of List III of the Constitution and, therefore, lacking legislative competence.” On the above reasoning, Section 4(2) of the Welfare Fund Act was declared unconstitutional. 14. According to the Senior Counsel, since the very same provision has been incorporated in the Cess Act also as Section 3(1), on the same reasoning on which Section 4(2) of the Welfare Fund Act was set aside, Section 3(1) of the Cess Act is also liable to be set aside. For the purpose of collecting and levying cess also, a relationship of an employer and employee is necessary, as held by the Apex Court, cess being an impost for the purpose of implementing a welfare measure to benefit the fishermen, a separate class of people. Such an impost is therefore liable to be set aside. 15. For the purpose of collecting and levying cess also, a relationship of an employer and employee is necessary, as held by the Apex Court, cess being an impost for the purpose of implementing a welfare measure to benefit the fishermen, a separate class of people. Such an impost is therefore liable to be set aside. 15. A further contention is put forward relying on the definition of 'dealer' in Section 2(d) of the Cess Act to the effect that, Section 2(d) of the Welfare Fund Act included the words 'exporting fish (in raw or in processed form)' thereby roping in an exporter also within the definition of a dealer. The above expression though available in Section 2(d) of the Kerala Fishermen's Allied Workers Welfare Ordinance, 2006, the same has been omitted by the definition contained in Section 2(d) of the Cess Act. Instead, the expression used is 'bringing into the State or sending outside the State the fish (raw or processed)'. A comparison of the definitions in the Welfare Fund Act, the Ordinance and Cess Act shows that the words 'exporting fish' has been consciously excluded by the legislature while enacting the Cess Act. Thereby, the legislative intent to exclude exporters from the applicability of the Cess Act is clear. Therefore, it is contended that the Cess Act itself is not applicable to the class of exporters. 16. Another ground of attack against the Cess Act is that, the State lacks the legislative competence to enact the same. Entry 23 List III of the Seventh Schedule of the Constitution, cannot supply legislative competence to the State to levy an impost on an exporter with respect to whom, a fisherman has no employer-employee relationship. In view of the decision of the Apex Court in Koluthara Exports Ltd. v. State of Kerala (supra), it is no longer resintegrathat Section 3(2) of the Cess Act, inasmuch as it levies an impost on an exporter in the absence of an employer-employee relationship with a fisherman, is unconstitutional as lacking in legislative competence. Therefore, according to the Senior Counsel, viewed from any angle, the members of the petitioner's association are liable to be excluded from the provisions of the Cess Act. 17. Therefore, according to the Senior Counsel, viewed from any angle, the members of the petitioner's association are liable to be excluded from the provisions of the Cess Act. 17. The contention of the State as set out in paragraph 21 of their counter affidavit is that there is an intimate nexus between the fishermen and the ultimate purchaser of fish, which includes an exporter. In paragraph 17 of the counter affidavit also, it has been contended that the fishermen form the backbone of the industry, without whom the industry cannot survive. 18. The above contention is refuted by pointing out that the same is diametrically opposed to the dictum of the Supreme Court in the decision in Koluthara Exports Ltd. v. State of Kerala. (supra). Or, in other words, the statements in the counter affidavit show that the State has only quoted the reasoning adopted by the Division Bench of this Court in Koluthara Exports Ltd. v. State of Kerala (supra) that did not find favour with the Supreme Court. The Supreme Court having set aside the reasoning of the Division Bench, it is an exercise in futility for the State to attempt to sustain the Act on the strength of the said reasoning. Therefore, the said stand in the counter affidavit and additional counter affidavit filed in the present case is only liable to be rejected, it is contended. 19. The alternative contention put forward by the State is that the present cess is justifiable either as a 'tax' or a 'fee'. According to the learned Senior Counsel, the above question was considered by a Single Bench of this Court in Indian Trawlers Association v. State of Kerala ( 1993(1) K.L.T. 256 ). In the said decision, the Constitutional validity of the Welfare Fund Act was involved. This Court held in the said decision that the Welfare Fund Act is a legislation coming under Entries 20, 23 and 24 of List III of the Seventh Schedule of the Constitution. It was also held that the said Act was not violative of Articles 14 and 19 of the Constitution. However, on the question as to whether the impost that was sought to be levied on a dealer under the Act was a tax or a fee, it has been held that it was neither a tax nor a fee. It was also held that the said Act was not violative of Articles 14 and 19 of the Constitution. However, on the question as to whether the impost that was sought to be levied on a dealer under the Act was a tax or a fee, it has been held that it was neither a tax nor a fee. However, it is worth noticing that since the Apex Court has found that the State lacks legislative competence to enact the Welfare Fund Act in Koluthara Exports Ltd. v. State of Kerala (supra) under Entry 23, List III, the dictum in Indian Trawlers Association v. State of Kerala (supra) cannot survive. 20. According to the learned Senior Counsel, the findings on tax or fee in Indian Trawlers' Association v. State of Kerala (supra) were entered not on the basis of any concession made by the counsel but, on the merits. The above aspect is especially clear from a reading of paragraphs 10 and 14A of the said judgment. According to the said judgment, the contribution that is liable to be made under the Welfare Fund Act cannot be a tax for the reason that there is no levy under the Act for a general purpose. No characteristic of a tax is also present. The benefit under the Act is only to sub-serve the common good of the fishing industry. The above finding has been made further clear in paragraph 14A of the said judgment itself, where it is held that the legislation (the Welfare Fund Act) comes as a welfare measure and it is not a tax or a fee. Though the above findings were against the State, the constitutionality of the Act was upheld on the ground that the State had legislative competence under Entries 20, 23 and 24 of List III of the Seventh Schedule of the Constitution, since it was a social welfare legislation. 21. The above finding as to whether a contribution was tax or fee was upheld by a Division Bench of this Court in the appeal against the judgment of the Single Judge. The said judgment is in Indian Trawlers' Association v. State of Kerala (supra). In paragraph 18, the Division Bench has concluded the issue by observing as follows: “Without a specific entry for taxation, the learned Single Judge found that the legislation cannot be justified as a tax. The said judgment is in Indian Trawlers' Association v. State of Kerala (supra). In paragraph 18, the Division Bench has concluded the issue by observing as follows: “Without a specific entry for taxation, the learned Single Judge found that the legislation cannot be justified as a tax. Before us, the State did not try to justify the levy as a tax or fee.” 22. The above position has been further reiterated in paragraph 20 of the said decision by the Division Bench. The Division Bench also confirmed the findings of the learned Single Judge and sustained the constitutional validity of the enactment by finding that it was a welfare legislation. 23. The position that emerges therefore is that there is a conclusive finding by a learned Single Judge of this Court that the contribution payable under the Welfare Fund Act cannot be justified as a tax or a fee, which has been confirmed by a Division Bench of this Court. The State was a party to both the decisions. The findings have become final, binding and conclusive on the State for the reason that the matter was not carried in appeal to the Apex Court, it is pointed out. In view of the above, it is not open to the State to re-agitate the said contention in the present case. The contribution demanded under the Cess Act is expressly stated to be, to augment the Fishermen's Welfare Fund constituted under the Welfare Fund Act. If contribution under the Welfare Fund Act cannot be termed either as tax or fee, then by the same reasoning, contribution demanded under the Cess Act also cannot be termed as either tax or fee, it is contended. 24. Apart from the above, in paragraph 18 of the judgment of the Division Bench in Koluthara Exports Ltd. v. State of Kerala (supra), which was set aside by the Supreme Court, it has been held that the levy under the Cess Act is neither a tax nor fee. In fact, the Division Bench has declined to consider the above question in view of the categoric statement made by the Advocate General that the contribution envisaged by the Cess Act is neither a tax nor a fee but, only a contribution. For the above reasons, it is contended that the contribution under the Cess Act is neither a tax nor a fee. 25. For the above reasons, it is contended that the contribution under the Cess Act is neither a tax nor a fee. 25. In Gasket Radiators Pvt. Ltd. v. Employees' State Insurance Corporation ( AIR 1985 SC 790 ), the Supreme Court has held that the contribution towards a fund is neither a tax nor a fee. In the above case, the liability of the employer was to make contribution under the Employees State Insurance Act, 1948. The contribution was sustained for the reason that an employer-employee relationship was in existence. Therefore, it is contended that the contribution demanded in the present case is neither a tax nor a fee. 26. It is specifically stated by the learned Senior Counsel that the petitioners herein represent only exporters and therefore, the petitioner Association and its members are concerned only with exporting fish. The State has a further contention that the contribution demanded is justifiable as sales tax. The above contention is met by the learned Senior Counsel by pointing out that the petitioner and its members being exporters, their sale is in the course of export and no sales tax could be levied on such sales. 27. Reliance is placed on the decision in M/s. Sterling Foods v. State of Karnataka ( AIR 1986 SC 1809 ). Particular reference is made to paragraphs 3, 5, 6 and 9 of the decision to contend that no levy of sales tax is permissible if the goods purchased by the assessee and the goods exported by him are the same. If by reason of any process, to which the goods may be subjected after purchase, they change their identity so that commercially they can no longer be regarded as the original goods but have instead become a new and different kind of goods and then they are exported, the purchase of original goods made by the assessee cannot be said to be purchases in the course of export. In the present case, according to the petitioners, apart from the fact that the sale here is in the course of export and is not taxable, it is relevant to note that the word 'export' has been consciously excluded by the Legislature from the definition of a dealer. Consequently, exporters are excluded from the purview of the Act. 28. In the present case, according to the petitioners, apart from the fact that the sale here is in the course of export and is not taxable, it is relevant to note that the word 'export' has been consciously excluded by the Legislature from the definition of a dealer. Consequently, exporters are excluded from the purview of the Act. 28. The learned Senior Counsel also relies on the decision in State of Karnataka v. Azad Coach Builders Pvt. Ltd. ( (2010) 36 VST 1 (SC)) to point out that the 'same goods' theory set out in M/s. Sterling Foods case (supra) is reiterated in this case also. Placing reliance on paragraph 18, it is contended that in order to resist imposition of sales tax by the State, the assessee would have to establish that the identity of the goods that are exported out of the territory of India remains the same. If the identity of the goods changed as a result of some process, then it will not be a case of export of the same goods. 29. Hindustan Times v. State of U.P. ( (2003) 1 SCC 591 ) is another decision in which the Apex Court has found that in the absence of employer-employee nexus, an impost is liable to fail. The above is evident from paragraphs 25, 26, 28 and 29. 30. The State has a contention that the Cess Act is a rectification enactment. According to the petitioners, the question as to what is a rectification enactment has been explained by a Five Judge Bench of the Supreme Court in Shri P.C. Mills v. Broach Municipality ( AIR 1970 SC 192 ). It has been held in paragraph 4 that a court's decision must always bind unless the conditions on which it is based are so fundamentally altered that the decision could not have been given in the altered circumstances. For the purpose of enacting a re-validating statute, the legislature must possess the power to enact the said legislation. Such a power being absent in the present case, the Cess Act cannot be sustained in the teeth of the dictum in Koluthara Exports Ltd. v. State of Kerala (supra). Whether it is a re-enacting statute or revalidating statute, the piece of legislation can be sustained only if the legislature has the power to enact the law. Such a power being absent in the present case, the Cess Act cannot be sustained in the teeth of the dictum in Koluthara Exports Ltd. v. State of Kerala (supra). Whether it is a re-enacting statute or revalidating statute, the piece of legislation can be sustained only if the legislature has the power to enact the law. In the present case, the State lacks legislative competence under the Constitution, it is contended. 31. A three Judge Bench of Supreme Court has considered the constitutional validity of a re-validating statute in D. Cawasji and Co. v. State of Mysore (1984 (Supp) SCC 490). It has been held in the above decision that a validating Act seeks to validate the earlier Acts declared illegal and unconstitutional by the courts by removing the defects or lacunae which led to the invalidation of the law. Therefore, without removing the mischief, the constitutionality of the Act cannot be sustained. 32. With respect to the provisions of the Cess Act, it is contended that Section 2(d) is similarly worded as the provision of the Welfare Fund Act that was set aside by the Supreme Court. The only difference is that the present definition does not contain the word 'exporter'. Therefore, the expression 'dealer' does not take in an exporter. For the same reason, the petitioner and their members are excluded from the purview of the definition of 'allied workers' and 'sales proceeds' also. 33. The pleadings on the side of the State, which consists of a counter affidavit and an additional counter affidavit, discloses the shifting positions taken by the State, asserting at one place that the levy is a tax and at another place that the levy is fee, it is pointed out by the counsel for the petitioners. The State also has a case that it is a social welfare legislation. The State has put forward a further plea that the Cess Act is rectificatory in nature. It is clear from the above that the State has not been able to adopt any definite stand. 34. The pleadings as evident from the counter affidavit and additional counter affidavit filed on behalf of the State shows that there is no consistent stand for the respondents, it is pointed out. The respondents are shifting their stand by maintaining alternatively that the levy is a tax and a fee. 34. The pleadings as evident from the counter affidavit and additional counter affidavit filed on behalf of the State shows that there is no consistent stand for the respondents, it is pointed out. The respondents are shifting their stand by maintaining alternatively that the levy is a tax and a fee. Some times, they even characterize it as a contribution simplicitor. The counter affidavit, particularly paragraphs 5 and 9, set out their case regarding tax. In paragraph 9 it is contended that the levy is a fee. In the additional counter affidavit filed, it is pleaded that the enactment is rectificatory in nature. In paragraph 4, a case that it is a validating enactment is put forward. 35. Viewed from any angle, the levy cannot be sustained, according to the Senior Counsel. The mischief, on the basis of which the earlier provisions were set aside by the Supreme Court, continues to vitiate the present enactment. The vital ingredient of employer-employee relationship which, according to the Supreme Court, was absent in the earlier provisions continue to be absent in the present enactment also. Without removing the vice, the present enactment cannot survive. Therefore, it is contended that the enactment is liable to be set aside as unconstitutional. 36. The learned Government Pleader started his submissions in defense by pointing out that the Welfare Fund Act of 1985 was amended twice, first in 1987 and thereafter in 1999. The amendments in 1999 introduced the definition of 'allied worker' into the enactment. The definition brings within its scope a number of categories of workmen namely, the beach worker, fish curer, peeling worker and processing worker. Processing workers are employed in processing plants, where fish is processed by the exporters and packed for export. The entire range of activities from cleaning, grading, processing and packing of fish or fish products are done by processing workers employed by processing plants. They are direct employees of the exporters, who own the processing plants. All the said activities are undertaken as preliminary to the exporting of fish or fish products. Therefore, according to the learned Government Pleader, there is employer-employee relationship between an exporter and a processing worker. They are direct employees of the exporters, who own the processing plants. All the said activities are undertaken as preliminary to the exporting of fish or fish products. Therefore, according to the learned Government Pleader, there is employer-employee relationship between an exporter and a processing worker. In view of Sub Section (2) of Section 2 of the Cess Act, the definitions in the Fund Act are applicable in cases where words are found to be not defined in the Cess Act, but defined in the Welfare Fund Act. 37. Though the above definition was incorporated into the Act by the Amendment Act of 1999, neither the said Act nor the impact of the said provision that was introduced by amendment was taken note of or considered by the decision in Koluthara Exports Ltd. v. State of Kerala (supra). The above fact is evident from the opening words of the said decision. 38. It is therefore contended that by virtue of the amendments of 1999, the vice that prompted the Supreme Court to find that the provisions of the Welfare Fund Act were unconstitutional has been removed, employer-employee relationship between the exporter and an allied worker has been supplied and therefore the present enactment is a validating Act. Since the Constitution Bench has in the said decision found in favour of the State's legislative competence, by virtue of the 1999 amendments, the substratum of the Supreme Court decision has been removed. Since the Supreme Court had no occasion to consider the impact of the provision introduced through the 1999 amendment, the said decision cannot help the members of the petitioner in questioning the constitutional validity of the present enactment. 39. Reliance is placed on another decision of the Supreme Court in Kerala Fishermen's Welfare Fund Board v. Fancy Food ( (1995) 4 SCC 341 ) for the proposition that there is an intrinsic connection between an exporter and a fisherman. However, the learned Government Pleader concedes that this decision was distinguished by the Supreme Court in paragraph 21 of the decision in Koluthara Exports Ltd. v. State of Kerala (supra). Reliance is placed on paragraphs 19 and 24 of the Division Bench decision in Indian Trawler's Association (supra). In Mangalore Ganesh Beedi Works v. Union of India ( 1974 (3) SCR 221 ), a Constitution Bench of the Supreme Court has held in favour of a levy. Reliance is placed on paragraphs 19 and 24 of the Division Bench decision in Indian Trawler's Association (supra). In Mangalore Ganesh Beedi Works v. Union of India ( 1974 (3) SCR 221 ), a Constitution Bench of the Supreme Court has held in favour of a levy. The learned Government Pleader has also relied on paragraph 6 of the decision in Gasket Radiators Pvt. Ltd. (supra). 40. According to the learned Government Pleader, the present legislation is enacted in implementation of one of the directive principles of State Policy. Therefore, the said enactment cannot be challenged. While considering the constitutional validity of such enactments, greater latitude should be given towards the constitutionality of the enactment. (See C.B. Boarding & Lodging v. State of Mysore ( AIR 1970 SC 2042 ), Sri. Manchegowda v. State of Karnataka ( AIR 1984 SC 1151 ) and M/s. Gasket Radiators Pvt. Ltd. v. Employees' State Insurance Corporation ( AIR 1985 SC 790 )). Apart from the above, the Welfare Fund Act has received the Presidential assent as contemplated by Article 31 C of the Constitution. 41. The other contention advanced on behalf of the State is that though certain provisions of the Welfare Fund Act were declared unconstitutional by the Apex Court, that does not take away the power of the State to make a new enactment, after removing the substratum. The Cess Act, according to the learned Government Pleader, is a validating legislation. Reliance is placed on the decisions reported in Bhubaneshwar Singh v. Union of India ( (1994) 6 SCC 77 ), Indian Aluminium Co. v. State of Kerala ( (1996) 7 SCC 637 ), Welfare Association, A.R.P., Maharashtra v. Ranjit P. Gohil ( (2003) 9 SCC 358 ), State of Himachalpradesh v. Narain Singh ( (2009) 13 SCC 165 ) and Goa Glass Fibre Limited v. State of Goa ( (2010) 6 SCC 499 ). Since the State has got the power to validate an enactment by removing the vice that had invalidated the earlier enactment, the State has in exercise of the said power enacted the Cess Act. The Cess Act does not suffer from the infirmity that had invalidated the provisions of the Welfare Fund Act, viz., absence of employer-employee relationship between an exporter and the fishermen. The above result has been achieved by enlarging the scope of the definition of 'allied worker', 'peeling worker', 'processing' and 'processing worker'. The Cess Act does not suffer from the infirmity that had invalidated the provisions of the Welfare Fund Act, viz., absence of employer-employee relationship between an exporter and the fishermen. The above result has been achieved by enlarging the scope of the definition of 'allied worker', 'peeling worker', 'processing' and 'processing worker'. Since such workers are made beneficiaries of the fund, the contribution levied on the exporters is fully justified, it is contended. 42. Section 2(d) defines 'dealer'. The definition uses the words 'processing fish'. The word 'processing' is defined in Section 2(jb) of the Welfare Fund (Amendment) Act, 1999. The definition in the Welfare Fund Act is applicable to the words used in the Cess Act in view of sub-section (2) of Section 2 of the Cess Act which makes the definitions in the Fund Act applicable to words and expressions not defined in the Cess Act. Section 2(jc) of the Welfare Fund (Amendment) Act, 1999 defines 'processing worker'. Since processing plants are owned by exporters and processing of fish or prawns is done in such processing plants, processing workers are workers of the exporters. The definition makes such workers also beneficiaries of the Welfare Fund. Consequently, an exporter, being an employer of a processing worker, is liable to be covered by the provisions of the Cess Act. Thus, the substratum of the decision in Koluthara Exports Ltd. v. State of Kerala (supra) has been completely removed. It is also contended that the Supreme Court would not have rendered the decision in Koluthara Exports Ltd. v. State of Kerala (supra) if the definitions incorporated by the Welfare Fund (Amendment) Act, 1999 had been considered by the Court. The learned Government Pleader relies on the decision in Kerala Fishermen's Welfare Fund Board v. Fancy Food ( (1995) 4 SCC 341 ), where R.M. Sahai, J has held that the expression 'buying and selling' includes an exporter also. For the above reasons, it is contended that an exporter is covered by the provisions of the Act. 43. According to the learned Government Pleader, Article 286(3) read with Article 366, Clause (29A)(d) makes it abundantly clear that the State has got the competence to levy tax on exports. For the above reasons, it is contended that an exporter is covered by the provisions of the Act. 43. According to the learned Government Pleader, Article 286(3) read with Article 366, Clause (29A)(d) makes it abundantly clear that the State has got the competence to levy tax on exports. According to the learned Government Pleader, the decision in M/s. Sterling Foods (supra) relied on by the counsel for the petitioner has no application to the issue involved in this case for the reason that the facts of the said case were different. The question involved there was whether by subjecting fish or prawns to the procedure of processing, whether the commodity undergoes a change. The Apex Court held that even after processing if the commodity is referred to as fish or prawns by the trade community, the article continues to be the same and does not undergo any change in its identity. No such question arises in the present case. Similarly, the facts in Hindustan Times v. State of U.P. ( (2003) 1 SCC 591 ) were also different. In the said case, no legislation was under challenge. The levy had been imposed therein by an executive order as evident from paragraph 1 of the judgment. In paragraphs 28 and 29, the Supreme Court has held that the levy cannot be justified unless there is employer-employee relationship between the beneficiary and the contributor. In the present case, by virtue of the new amended definition of 'allied worker', the said ingredient of employer-employee relationship has been incorporated. In Shri. P.C. Mills Ltd. v. Broach Municipality (supra), the issue was regarding legislative competence. In the present case, the State has legislative competence because the Cess Act is a social welfare legislation that can be justified under Entry 23 List III Seventh Schedule of the Constitution. Therefore, in Koluthara Exports Ltd. v. State of Kerala (supra) it has been found that the State has legislative competence. Thereafter, since employer-employee relationship has been supplied by management, the Cess Act is valid. 44. The Government Pleader relied on the decision in State of Himachal Pradesh v. Narain Singh ( (2009) 13 SCC 165 ) to contend that the power of the Sovereign Legislature to legislate within its field, both prospectively and retrospectively cannot be questioned. Thereafter, since employer-employee relationship has been supplied by management, the Cess Act is valid. 44. The Government Pleader relied on the decision in State of Himachal Pradesh v. Narain Singh ( (2009) 13 SCC 165 ) to contend that the power of the Sovereign Legislature to legislate within its field, both prospectively and retrospectively cannot be questioned. The State therefore has also the power to enact a valid legislation to 'wipe out' judicial pronouncements of the High Court and the Supreme Court by removing the defects in the statute retrospectively when such statutes have been declared ultra vires by courts in view of its defects. It has been held after referring to various decisions on the point in paragraph 26 of the said judgment that where there is a competent legislative provision which retrospectively removes the substratum or foundation of a judgment, the said exercise is a valid legislative exercise, provided it does not transgress any other Constitutional limitation. 45. The learned Government Pleader has also cited the decision in Goa Glass Fibre Ltd. v. State of Goa ( (2010) 6 SCC 499 ), particularly paragraphs 17, 18, 26 and 28 to contend that the State has got the power to cure the defects of any kind from which an enactment suffers. This is with a view to safeguarding the public interest involved. In the said judgment also, it has been held that the legislature has the power to render a judicial decision ineffective by enacting a valid law on the subject within its legislative field by removing the base on which the decision was rendered. On the basis of the dictum laid down by the decisions referred to above, it is contended that a new enactment, in this case the 'Cess Act', curing the defects from which the 'Welfare Fund Act' suffered, can be enacted by the State legislature. Therefore, the decision in Koluthara Exports Ltd. v. State of Kerala (supra) cannot help the petitioner in challenging the Constitutional validity of the Cess Act. 46. In answer to the contention that exporters have been specifically excluded from the purview of the Cess Act by virtue of the definition of a 'dealer' contained therein which does not refer to exporters, it is pointed out that exporters are persons involved in the work of 'processing fish'. The word 'processing' is defined in the Welfare Fund Amendment Act, 1999 by Section 2(jb). The word 'processing' is defined in the Welfare Fund Amendment Act, 1999 by Section 2(jb). Section 2(jc) defines a 'processing worker' also. By virtue of Sub Section (2) of Section 2, words and expressions used in the Cess Act, but not defined and defined in the Welfare Fund Act, shall have the same meaning assigned to such words in the Welfare Fund Act. Therefore, the definitions in the Welfare Fund Act are applicable to the words in the Cess Act. Since processing plants are owned by exporters, their workers are processing workers. They are covered by the Cess Act. Therefore, there is employer-employee relationship between the exporters and the beneficiary of the Fund, in this case processing worker. Placing reliance on the decision of the Apex Court in Kerala Fishermen's Welfare Fund Board v. Fancy Food (supra), it is contended that exporters are included in the Welfare Fund Act. In the said case, the Supreme Court has interpreted the words 'buying and selling' to hold that the said expression ropes in an exporter also. However, it is pointed out by the learned counsel for the petitioner immediately that the said decision was rendered for the reason that exporters are specifically included in the definition. 47. In answer to the contentions of the learned Senior Counsel, the learned Special Government Pleader points out that M/s. Sterling Foods v. State of Karntaka (supra) is not applicable to the facts of the present case for the reason that the question involved in the said case was whether by cutting of heads and tails, peeling, deveining, cleaning and freezing, the commodity of shrimps, prawns and lobsters would undergo a change. There, the court has decided only that the entry raw shrimps, prawns and lobsters included processed and frozen shrimps, prawns and lobsters also. The question here is totally different, according to the learned Government Pleader. 48. In Hindustan Times v. State of U.P. ( (2003) 1 SCC 591 ), no legislation was under challenge. The levy had been imposed under an executive order, as evident from paragraph 1 of the judgment. Paragraphs 28 and 29 thereof shows that an impost could be imposed only where there is employer-employee relationship between the beneficiary and the contributor. In the preset case, since the definition of an 'allied worker' has been included, there is employer-employee relationship between the exporters and the beneficiary. Paragraphs 28 and 29 thereof shows that an impost could be imposed only where there is employer-employee relationship between the beneficiary and the contributor. In the preset case, since the definition of an 'allied worker' has been included, there is employer-employee relationship between the exporters and the beneficiary. In Shri P.C. Mills v. Broach Municipality (supra) also, what has been reiterated is only that there should be employer-employee relationship. 49. According to the learned Government Pleader, Article 286 read along with clause 29A of Article 366 confers power on the State legislature to levy a tax even on export sales. Particular reliance is placed on sub clause (d) of clause 29A of Article 366 to contend that the words 'any purpose' would attract purchase of fish in the present case by an exporter also. Relying on the decision in State of Orissa v. M & MT Corporation of India Limited (JT 1994(4) SC 628), it is contended that export would be complete only when goods reach their destination, until then, there is only a potential for export. Therefore, it is contended that State can levy the impost. 50. The next contention of the learned Government Pleader is that the 1999 Amendment made to the Welfare Fund Act was not in the contemplation of the Supreme Court while deciding Koluthara Exports Ltd. (supra). The amendment was notified only on 19.4.1999. However, the learned counsel for the petitioner immediately points out that in paragraph 11 of the said judgment, the Supreme Court has referred to Section 4(1) (1A). Since the provision (1A) was introduced only by the 1999 Amendment, the above is a clear indication of the fact that the said amendment was also taken note of by the Supreme Court. According to the learned Government Pleader, the Supreme Court has not held that there was no legislative competence. The Act has been found to be unconstitutional only because there was no employer-employee relationship. By the 1999 Amendment, the above shortcoming has been rectified. 51. The learned Government Pleader also refers to Exts. R1(a) produced along with the additional counter affidavit filed in this case to substantiate his contention that various social security measures are extended to peeling workers, processing plant workers etc. Therefore, the Act itself is a social welfare measure. By the 1999 Amendment, the above shortcoming has been rectified. 51. The learned Government Pleader also refers to Exts. R1(a) produced along with the additional counter affidavit filed in this case to substantiate his contention that various social security measures are extended to peeling workers, processing plant workers etc. Therefore, the Act itself is a social welfare measure. According to the learned counsel, in paragraph 10 of the decision reported in Indian Trawlers Association (supra) also, it has been so found. 52. The other contention of the learned Government Pleader is that where the power to legislate can be traceable to a particular Entry, even if there has been some incidental transgression, the same would not invalidate the statute. In other words, if in sum and substance the legislation is under a particular Entry, its consequent validity should be sustained. Reliance is placed on the decision in State of Rajasthan v. G. Chawla ( AIR 1959 SC 544 ). 53. The learned Government Pleader contends further that when an enactment is made in exercise of a power available to the State, within its competent field, an incidental encroachment onto a forbidden field is permissible, since the enactment is in pith and substance made in respect of a competent subject. In this case, the levy on an exporter can only be considered to be incidental, the main object of the legislation being social welfare. The enactment is in pith and substance a social welfare legislation, for the enactment of which power is available to the State legislature under Entry 23, List III. The decision reported in Welfare Association A.R.P., Maharashtra v. Ranjit P. Gohil ( AIR 2003 SC 1266 ) is also relied on. Therefore, the learned Government Pleader contends that the challenge against the constitutional validity of the Cess Act has to be repelled. 54. Advocate Premjit Nagendran replies to the contentions of the learned Government Pleader. According to him, though the learned Government Pleader was at pains to submit that the definition of 'allied worker' roped in exporters like the petitioners also, the import of the definition is to the contra. It is not disputed that the petitioners – exporters are employers of processing workers. According to him, though the learned Government Pleader was at pains to submit that the definition of 'allied worker' roped in exporters like the petitioners also, the import of the definition is to the contra. It is not disputed that the petitioners – exporters are employers of processing workers. The above fact is clear from paragraph 16 of the writ petition as well as ground D. However, he places reliance on the rider that is stipulated by the definition which provides that the processing plant workers, to be entitled to the benefit of the Fishermen's Welfare Fund should- (i) not be members or (ii) not eligible to get membership in any statutory welfare scheme. All the employees of the plants owned by the exporters are persons who are enjoying the benefits of the provisions of the Employees State Insurance Act and the Provident Fund Act. For the above reason, no employee of the petitioners is liable to be covered by the provisions of the Cess Act, as contended by the learned Government Pleader. 55. My attention is drawn to the reference made to Section 1A by the Constitution Bench in the Koluthara Exports Ltd. v. State of Kerala (supra) to contend that since the said provision was introduced only by the amendment of 1999, the said amendment was also before the Supreme Court. At any rate, it is pointed out that no review of the judgment was sought by the State Government on the basis of the 1999 amendment. On the contrary, the State Government was under the impression that it had no right to collect the welfare fund contributions from the petitioners in spite of the 1999 amendment. Consequently, no contribution amounts under the Welfare Fund Act was demanded or collected from any of the exporters after 2002. My attention is drawn to paragraph 25 of the Koluthara Exports Ltd. v. State of Kerala (supra) where, at the time of pronouncement of the judgment though the 1999 amendment was already in existence, no plea on the basis thereof was raised. Instead, a plea was raised that the amount already collected may not be ordered to be refunded. The said request was also granted by the Supreme Court. Instead, a plea was raised that the amount already collected may not be ordered to be refunded. The said request was also granted by the Supreme Court. It is clear from the above that the State Government never had a case that the objectionable provision of the Welfare Fund Act had not been set aside by the decision in Koluthara Exports Ltd. v. State of Kerala (supra) or that the 1999 amendment had improved the matters in any manner. 56. Prior to the enactment of the Cess Act, an Ordinance was issued by the State. The provisions of the Ordinance were identical to the provisions of the Welfare Fund Act that was struck down by the Apex Court. Therefore, a representation was made to the Government pointing out the said facts and putting forward the objections of the exporters. Obviously, after considering the objections of the petitioners and others, the definition of 'dealer' (Section 2(d)) and 'sale proceeds' (Section 2(k)) have been altered. In sharp contrast to the definition of the said terms available in the Ordinance, the word 'export' and 'exporting' have been omitted. Even if exports are brought within the purview of the definition of 'dealer' by a process of interpretation, it will not be possible to extract any levy from the exporters for the reason that the definition of 'sale proceeds' in Section 2(k) does not include 'export proceeds'. For the above reason, it is contended that no cess can be demanded from any exporter. 57. The learned counsel relied on Ground G in the writ petition where a specific contention has been raised that the definition of 'allied worker' does not include workers of the exporters. However, the attempt of the State has been to substantiate that there is a link between a fisherman and an exporter. 58. According to the learned counsel, no portion of the contribution that is demanded from the petitioner would benefit exporters or any of their workers. 59. The learned counsel referred to the reported reference order in Koluthara Exports Ltd. v. State of Kerala, (1998) 9 SCC 612 , to point out that as on the date of the said order, the 1999 amendments to the Welfare Fund Act had been brought into force. It was for the State to have brought the said amendments to the notice of the Apex Court, if they have not been so brought. 60. It was for the State to have brought the said amendments to the notice of the Apex Court, if they have not been so brought. 60. In answer to the contention of the learned Government Pleader with respect to Clause 29A(d) of Article 366, it is pointed out that what is contemplated therein is only a transfer for hire and nothing else. The above is clear from the wording of the said provision which contemplates only transfer of a right to use. After use, the goods would have to be returned. In the case of exporters, the transaction involved is nothing but a sale simplicitor. The learned counsel relies on paragraphs 23, 24 and 25 of the decision in State of Karnataka (supra). In the said case, it has been held that if it is clear that local sale or purchase between the parties is inextricably linked to the export of the goods, the same is in the course of export. A sale in the course of export is outside the purview of the State's competence. For the above reasons, it is contended that the Cess Act is unconstitutional and liable to be set aside. 61. The learned Government Pleader wanted to make clarifications in the light of the submissions in reply made by the learned counsel for the petitioner. My attention is drawn to Section 7 of the Cess Act, which mandates submission of returns. Section 8 contemplates an assessment and Section 13 confers a right of appeal on the assessee. The Act itself provides a mechanism for determination of the question as to whether a person should be assessed or not. The contention of the petitioner that their employees do not come within the definition of an 'allied worker' in the Cess Act, is essentially a claim for exemption which has to be decided under the provisions of the Act. As per Section 14, a revision is also provided. According to the learned Government Pleader, the fact that a person can claim exemption is not a ground to attack the constitutional validity of an enactment. 62. The learned Government Pleader also refers to the reference order in Koluthara Exports Ltd. (supra) to submit that the same is dated 24.9.1997, before the 1999 amendment. The said amendment was not under challenge before the Supreme Court. 62. The learned Government Pleader also refers to the reference order in Koluthara Exports Ltd. (supra) to submit that the same is dated 24.9.1997, before the 1999 amendment. The said amendment was not under challenge before the Supreme Court. The decisions in Gasket Radiators (P) Ltd. (supra) and Mangalore Ganesh Beedi Works (supra) has been upheld in Koluthara Exports Ltd. v. State of Kerala (supra). 63. The learned Government Pleader refers to the definition of 'sale proceeds' in Section 2(k). The key words, 'all transactions', 'sending outside the State', and 'or for processing otherwise' indicate that exporters are contemplated by the definition. Section 2(d), the definition of 'dealer', refers to 'fish (raw or processed)'. Since only exporters process fish, they are also included. The learned counsel for the petitioner promptly points out that processing can be done for domestic sales also. Advocate Premjith Nagendran further clarifies that Section 4(2) of the Welfare Fund Act was set aside by the decision in Koluthara Exports Ltd. v. State of Kerala (supra). The 1999 amendment introduced Sub section (1A) to Section 4. By the said provision, 'allied workers' had to contribute to the Welfare Fund. But, in spite of the said amendment, no contribution has been collected from any of the employees of the petitioners during the past 13 years. Further, Section 3 of the Cess Act contemplates levy of collection of cess only from dealers, which definition does not include an exporter. 64. Heard. Though extensive and elaborate contentions have been advanced by the respective parties, the essential question that arises for determination is whether the petitioners, who are exporters, are liable to pay contribution to augment the Fishermen's Welfare Fund? 65. In the above context, it is necessary to take into account the fact that an attempt was made by the State on an earlier occasion to place the burden of contributing to the Fishermen's Welfare Fund on the exporters also. Section 2(d) of the Welfare Fund Act defined “dealer” to mean any person who carries on the business of buying and selling or processing fish or exporting fish (in raw or in processed form) or fish products, thereby specifically including exporters within its scope. It was the said provision that was under challenge in the earlier round of litigation that culminated in the decision of the Apex Court in Koluthara Exports Ltd v. State of Kerala (supra). It was the said provision that was under challenge in the earlier round of litigation that culminated in the decision of the Apex Court in Koluthara Exports Ltd v. State of Kerala (supra). The Welfare Fund Act was enacted as a welfare measure for the ordinary fishermen who constitute a vulnerable class of the society. The enactment constitutes a fund for their welfare. As per the definition of “dealer” referred to above, all categories of people engaged in the business of buying and selling or processing fish or exporting fish or fish products including brokers, mercantile agents, non-resident dealers or agents of non-resident dealers were all included in the expansive sweep of the definition. All such persons were also made liable to contribute towards constituting the proposed fund. 66. The provisions were attacked on the ground that the State lacked legislative competence and that, for the said reason, the Act was liable to be struck down. The Apex Court has considered the question in paragraph 18 of the said decision, which reads as under:- “18. Now adverting to the constitutional validity of the impugned provisions, it must be remembered that Part IV of the Constitution contains, as noticed above, fundamental principles in governance of the country. They indicate and determine the direction for the State but they are not legislative heads or the fields of legislation like the entries in Lists I, II and III of the Seventh Schedule of the Constitution. When any statute of a State or any provision therein is questioned on the ground of lack of legislative competence, the State cannot claim legitimacy for enacting the impugned provisions with reference to the provisions in Part IV of the Constitution; the legislative competence must be demonstrated with reference to one or more of the entries in Lists II and III of the Seventh Schedule of the Constitution. It is stated that the legislative competence is referable to Entry 23 of the Concurrent List, which may be extracted here: “List II – Concurrent List 23. Social security and social insurance; employment and unemployment.” There can be no doubt that Entry 23 enables the State Legislature to enact a law in respect of social security and social insurance or dealing with employment and unemployment. The provisions of sub-section (4) of Section 3 of the Act (quoted above) postulate social security and welfare measures for the fishermen. Social security and social insurance; employment and unemployment.” There can be no doubt that Entry 23 enables the State Legislature to enact a law in respect of social security and social insurance or dealing with employment and unemployment. The provisions of sub-section (4) of Section 3 of the Act (quoted above) postulate social security and welfare measures for the fishermen. The State can, therefore, justify its competence under this entry. But, in our view, the State cannot, in an Act under Entry 23 of List III, place the burden on an impost by way of contribution for giving effect to the Act and the Scheme made thereunder for the social security and social welfare of a section of society upon a person who is not a member of such section of society nor an employer of a person who is a member of such section of society. The burden of the impost may be placed only when there exists the relationship of employer and employee between the contributor and the beneficiary of the provisions of the Act and the Scheme made thereunder.” The question had been referred to the Constitution Bench in view of the fact that, the Bench before which the case had initially come up entertained a doubt as to whether the decision in Gasket Radiators (P) Ltd v. ESI Corporation (supra) had been rendered without considering the earlier Constitution Bench decisions in Corporation of Culcutta v. Liberty Cinema ( AIR 1965 SC 1107 ) and Hoechst Pharmaceuticals v. State of Bihar ( (1983) 4 SCC 45 ). The Constitution Bench agreed with the dictum in Gasket Radiators (supra). In conclusion, the Apex Court has held in paragraph 22 of the said judgment as follows:- “22. The Constitution Bench agreed with the dictum in Gasket Radiators (supra). In conclusion, the Apex Court has held in paragraph 22 of the said judgment as follows:- “22. In the instant case, the only nexus between the categories of persons covered by the sweep of clause (d) of Section 2 of the Act, including the appellant, who carry on the business of buying or selling or processing fish or exporting fish (in raw or processed form) or fish products, including- (i) a commission agent, a broker or any other mercantile agent, by whatever name called, and (ii) a non-resident dealer or an agent of a non-resident dealer or a local branch of a firm or company or association situated outside the State of Kerala and the beneficiaries under the Act and the Scheme ‘the fishermen’ is that the former are the purchasers and the latter are the catchers and sellers of fish. Such a nexus, in our view, is not sufficient to burden a purchaser/exporter with the impost or levy of the contribution under Section 4(2) of the Act, which will clearly be outside the ambit of Entry 23 of List III of the Constitution and, therefore, lacking legislative competence.” In short, the Apex Court has held that the nexus between an exporter and the fishermen, who are the beneficiaries of the Welfare Fund is only that, the latter form the class engaged in catching fish, while the former are purchasers of their catch. Such nexus has been found to be insufficient to burden a purchaser or exporter with the impost or levy of contribution under Section 4(2) of the Welfare Fund Act. It has therefore been held that the said provision was clearly outside the ambit of Entry 23, List III, Seventh Schedule of the Constitution. In other words, the State was found to be lacking in legislative competence to enact the said provision. Though the State had in the meantime collected the contribution amounts, on a request made by the counsel, the Apex Court ordered that the amounts so collected, need not be refunded. 67. It was in the above context that, the Cess Act was enacted. The same was initially brought in as the Kerala Fishermen's Allied Workers Welfare Ordinance, 2006. Though the State had in the meantime collected the contribution amounts, on a request made by the counsel, the Apex Court ordered that the amounts so collected, need not be refunded. 67. It was in the above context that, the Cess Act was enacted. The same was initially brought in as the Kerala Fishermen's Allied Workers Welfare Ordinance, 2006. Though the definition of “dealer” in the Ordinance included the exporters also, the words “exporting fish (in raw or in processed form)” has been replaced in the Act with the words “bringing into the State or sending outside the State-the fish (raw or processed)”. The definitions of “dealer” in the Welfare Fund Act as well as the Cess Act are identical except for the above change. The stand of the State is that, the definition of “dealer” includes an exporter also despite the change in the expressions used. On behalf of the petitioners, it is contended that, exporting of fish that was initially in the contemplation of the Legislature, having been omitted by the enactment, the only inference possible is that, exporters have been specifically excluded. The contention of the learned Government Pleader on the above aspect is that, by omitting specific reference to exports and by substituting the same with the present expressions of “bringing into the State or sending outside the State”, the definition has only been enlarged to include not merely the exporters, but also all other categories of persons who are engaged in the process of bringing into the State or sending outside the State fish, either in raw form or in processed form. My attention is drawn to the definition of “allied workers” contained in Section 2(a) of the Cess Act to point out that the scope of the said Act is also different and includes not merely fishermen but various other categories like beach workers, fish distributors, fish curers, peeling workers and processing plant workers. However, as already noticed above, the Apex Court has held in Koluthara Exports Ltd. v. State of Kerala (supra) in unmistakable terms that the State does not have the legislative competence to enact a law in exercise of its power under Entry 23 of List III, Seventh Schedule of the Constitution, where there was no nexus between the exporter and fishermen. The fishermen form a class engaged in catching fishing, while an exporter is the ultimate purchaser. The fishermen form a class engaged in catching fishing, while an exporter is the ultimate purchaser. It cannot be disputed that though the fish is initially caught by the fishermen, they are thereafter sold to various other intermediaries before it ultimately reaches the exporter. Thus, there are sellers, retailers, agents, processors etc occupying the line of intermediaries who stand between the fishermen and the exporter. Such connection was held to be insufficient to burden the exporter with the liability to make contributions to the Fishermen's Welfare Fund. It has thus been held that there was no employer-employee relationship between the fishermen and the exporter and in the absence of any such relationship, no contribution as sought to be extracted from them could be permitted. Though elaborate contentions have been put forward on behalf of the State, they have no case that there has been any change in the above position. Thus, the State has no case that there is an employer-employee relationship between an exporter and the fishermen. Therefore, the vice that the Apex court had found in Section 4(2) of the Welfare Fund Act continues to vitiate the Cess Act also. The Cess Act proclaims in its long title itself that it is enacted “with a view to augmenting the resources of the Kerala Fishermen's Welfare Fund constituted under Section 3 of the Fishermen's Welfare Fund Act, 1985”. It was with respect to extracting of contributions from the exporters towards the very same Welfare Fund that, the Apex Court has found in Koluthara Exports Ltd. case (supra), that the State had no power. The above enactment is only another attempt to extract the very same contribution, at the very same rate of 1% of the sale proceeds of the exporters, under a different name, “Cess”. Here also, the nexus between the exporter, who is the ultimate purchaser, and the fishermen, who initially catch the fish is remote. Therefore, unless it is shown that the exporter is also the employer of the fishermen for whose benefit the Welfare Fund is constituted, no liability could be fastened on them. 68. As rightly pointed out by the counsel for the petitioners, the State has no consistent stand regarding the nature of the impost made by the Act. Therefore, unless it is shown that the exporter is also the employer of the fishermen for whose benefit the Welfare Fund is constituted, no liability could be fastened on them. 68. As rightly pointed out by the counsel for the petitioners, the State has no consistent stand regarding the nature of the impost made by the Act. In the counter affidavit filed, it has been contended at some places that the impost is a fee and at other places that it is a tax. If it is a tax, it would have to be justified with reference to a taxing entry and if it is a fee, it would have to be supported by quid pro quo. In the present case, the contribution that is sought to be extracted from the petitioners is described neither as a tax or fee, but as a Cess. The levy in the present case does not answer the definition of a tax. It also does not have any of the characteristics of a tax. A tax is a levy that is imposed for a general purpose. In the present Act, there is no levy for a general purpose. It is also not supported by any of the entries authorizing levy of tax, under List II and List III of the Seventh Schedule. The benefit conferred under the impugned Act is intended to sub-serve the common good of the fishermen. In view of the above, the same has to be understood as a welfare measure. 69. It is necessary to notice at this juncture that in Indian Trawlers Association v. State of Kerala, 1993 (1) K.L.T. 256 , an Association of mechanized boat owners had challenged the Constitutional validity of the Welfare Fund Act before this Court. Both the Single Bench as well as the Division Bench held the Act to be valid. It was contended on behalf of the petitioners in the said case that, the contribution that was sought to be extracted under the Act was either a tax or a fee that was not supported by the authority of law. The Division Bench has considered the said contention in the light of the dictum laid down by the Apex Court in the Gasket Radiators Pvt. Ltd.(supra). Paragraphs 25 and 26 of the said judgment, relevant in the context are extracted hereunder:- “25. The Division Bench has considered the said contention in the light of the dictum laid down by the Apex Court in the Gasket Radiators Pvt. Ltd.(supra). Paragraphs 25 and 26 of the said judgment, relevant in the context are extracted hereunder:- “25. Similarly in Gasket Radiators Case, the Employees' State Insurance Act was justified under Entries 23 and 24 of List III of Seventh Schedule. The Supreme Court held that the Employees' State Insurance Act (34 of 1948) is a valid piece of legislation. The argument that the contribution payable by the employer under the Act is a fee has been answered thus: “Chapter V-A headed as transitional Provisions and providing for payment of the special contribution by the principal employer cannot be challenged as ultra vires on the ground that though the contribution payable under Chapter V-A is a fee, the Act does not contemplate the rendering of any service or the conferment of any benefit to the employer or its employees as quid pro quo for the payment as the payment of contribution by an employer towards the premium (what else is it?) of an employee's compulsory insurance under the Act falls directly within entries 23 and 24 of List III and it is wholly unnecessary to seek justification for it by recourse to entry 97 of List I or entry 47 of List III i.e. Entries relating to fee, in any circumlocutous fashion. There is no reason to brand or stamp the contribution as a tax or fee in order to seek to legitimise it. Legitimation need not be sought fictionally from entry 97 of List I or entry 47 of List III when legitimation is directly derived for the charge from entries 23 and 24 of List III.” 26. The above quote gives an answer to negate and to render ineffective the argument of counsel for the appellants that since the Act is in the nature of the imposition of tax or a levy of fee, the Act is ultra vires on account of lack of legislative competency. We do not want to multiply the decisions on this aspect of the matter. We do not want to multiply the decisions on this aspect of the matter. We are of opinion that from the scheme of the Act, the welfare fund is for the benefit of the fishermen community, and can be justified as a social welfare measure.” Thus, the Division Bench has concluded that the contribution was neither a tax nor fee. Since the State was a party to the said decision, the said dictum binds the State as well as this Court. In view of the above, the contentions of the learned Government Pleader in the said regard are is rejected. 70. As already noticed above, the Apex Court has held in Koluthara Exporters v. State of Kerala (supra), to which the State was also a party that the State had no legislative competence to demand such contribution from the exporters who do not form part of the class that is to be the beneficiary of the fund. A comparison of the definition of the expressions “dealer” and “sale proceeds” show that they are similarly worded. The attempt through the present enactment has been only to extract contributions from the exporters at the very same rate, by changing the nomenclature of the levy. The situation remains unchanged and the very same vice vitiates the present provision also. 71. Though the levy in the present enactment is described as a 'Cess', the change in nomenclature does not make any difference. 'Cess' is a tax according to the Black's dictionary. Since the definition of 'dealer' does not include exporters, the case of the petitioners is that they were consciously excluded by the legislature. However, the stand of the State is that the scope of the expression 'dealer' has only been expanded to include all persons who buy, sell or process fish or bring into the State or send outside the State fish (raw or processed) or fish product or allied objects or equipments. 72. The impugned provisions in so far as they seek to extract a Cess from exporters who are not employers of the fishermen who go out into the sea to catch fish are invalid. 72. The impugned provisions in so far as they seek to extract a Cess from exporters who are not employers of the fishermen who go out into the sea to catch fish are invalid. A comparison of the wordings of the definition of “dealer” contained in Section 2(d) of the Ordinance of 2006 and the Cess Act of 2007 shows that, the words “exporting fish” (in raw or processed form) that was present in the Ordinance has been removed from the definition in the Cess Act. The words that were removed have been substituted by the words “bringing into the State or sending outside the State the fish (raw or processed)”. Though the above wording could be interpreted to rope in all people who deal in fish including exporters, the argument of the counsel for the petitioners that exporters have been consciously excluded by the legislature also cannot be brushed aside. However, the above uncertainty is not of much consequence since the provisions in so far as they seek to burden the exporters with contributions for augmenting the Fishermen's Welfare Fund though they are neither employers nor members of the section of the society that is benefited, cannot be sustained. For the foregoing reasons, the petitioners are entitled to succeed. It is declared that, Section 3(1), 3(2) and 3(3) of the Act are beyond the legislative competence of the State. Consequently, the said provisions are set aside. The writ petitions are allowed as above.