10. It is necessary then to consider the contention, which in the Boddu Paidanna case1 found favour with the High Court of Madras, that the Madras Act so far as it imposes a tax on first sales of goods manufactured or produced in India is ultra vires the Provincial Legislature. This contention is thus clearly stated in the appellants formal reasons on the present appeal: (1) a tax on the manufacturer or producer of goods on the first sale thereof is a duty of excise, (2) under the provisions of the Constitution Act the appellant has, and the respondent has not, power to impose a duty of excise, (3) the provisions of Entry No. 48 in the Provincial Legislative List must "be construed subject to the provisions of Entry No. 45 in the Federal Legislative List. The third reason thus stated rests on the opening words of Section 100(1), Constitution Act, "Notwithstanding anything in the two next succeeding sub-sections" and the opening words of Section 100(3) "subject to the two preceding sub-sections." Their Lordships do not doubt that the effect of these words is that, if the legislative powers of the Federal and Provincial Legislatures, which are enumerated in List 1 and List 2 of Sch. 7, cannot fairly be reconciled, the latter must give way to the former. But it appears to them that it is right first to consider whether a fair reconciliation cannot be effected by giving to the language of the Federal Legislative List a meaning which, if less wide than it might in another context bear, is yet one that can properly be given to it, and equally giving to the language of the Provincial Legislative List a meaning which it can properly bear. In this connexion it must in the first place be observed that the contention of the appellant involves doing violence to the language of Entry No. 48 of the Provincial Legislative List. For if his contention is upheld, the plain words "Taxes on the sale of goods" must be read as if the words "other than the first sale of goods manufactured or produced in India" were added by way of qualification. Bearing in mind first that the problem of the division of taxing power in a Federal Constitution was in general no new one and that the framers of the constitution must in particular have been well aware of the controversies that had arisen in regard to "excise" and taxes on first or other sales, and, secondly, that the contention of the appellant would remove from the range of Provincial taxation goods which had not been in the past, nor were likely in the future to be, the subject of an excise duty, their Lordships would be reluctant to adopt such a construction if any other was fairly open to them. The validity of the appellants first reason must therefore be examined in order to see whether the Lists can be reconciled not by doing violence to the language of the Provincial List but by giving some other than the meaning and effect, for which the appellant contends, to the relevant words of the Federal List.

11. Their Lordships would first observe (concurring herein in the cogent reasoning of the Federal Court in the Boddu Paidanna case1) that little assistance is to be derived from the consideration of other Federal Constitutions and of their judicial interpretation. Here there is no question of direct and indirect taxation nor of the definition of specific and residuary powers. The Indian constitution is unlike any that have been called to their Lordships notice in that it contains what purports to be an exhaustive enumeration and division of legislative powers between the Federal and Provincial Legislatures. Where there is such an enumeration, the language of the one list may be coloured or qualified by that of the other. The problem is different when on the one hand there are specific, and on the other residuary, powers.

12. The appellants fundamental contention is that the power to impose a duty of excise, which is given to the Federal Legislature alone by Entry No. 4.5 of the Federal List, entitles that Legislature and no other to impose a tax on first sales of goods manufactured or produced in India. No other meaning, it is contended, can fairly be given to the words "duty of excise" than one which includes a tax on the first sales of such goods. If such a construction involves that violence must be done to the plain meaning of Entry No. 48 of the Provincial List, that, it is said, is contemplated and safeguarded by the opening words of Section 100(1).

13. To their Lordships this contention does not appear well-founded. The term "duty of excise" is a somewhat flexible one: it may, no doubt, cover a tax on first and perhaps on other sales: it may in a proper context have an even wider meaning. An exhaustive discussion of this subject, from which their Lordships have obtained valuable assistance, is to be found in the judgment of the Federal Court in In re the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act No. 14 of 1938 (39) 26 A.I.R. 1939 F.C. 1. Consistently with this decision, their Lordships are of opinion that a duty of excise is primarily a duty levied upon a manufacturer or producer in respect of the commodity manufactured or produced. It is a tax upon goods not upon sales or the proceeds of sale of goods. Here again their Lordships find themselves in complete accord with the reasoning and conclusions of the Federal Court in the Boddu Paidanna case. Province of Madras v. Boddu Paidanna and Sons. Reported in (42) 29 A.I.R. 1942 F.C. 33 The two taxes, the one levied upon a manufacturer in respect of his goods, the other upon a vendor in respect of his sales, may, as is there pointed out, in one sense overlap. But in law there is no overlapping. The taxes are separate and distinct imposts. If in fact they overlap, that may be because the taxing authority, imposing a duty of excise, finds it convenient to impose that duty at the moment when the exercisable article leaves the factory or workshop for the first time upon the occasion of its sale. But that method of collecting the tax is an accident of administration: it is not of the essence of the duty of excise which is attracted by the manufacture itself. That this is so is clearly exemplified in those excepted cases in which the Provincial, not the Federal, Legislature has power to impose a duty of excise. In such cases there appears to be no reason why the Provincial Legislature should not impose a duty of excise in respect of the commodity manufactured and then a tax on first or other sales of the same commodity. Whether-or not such a course is followed appears to be merely a matter of administrative convenience. So by parity of reasoning may the Federal Legislature impose a duty of excise upon the manufacture of exciseable goods and the Provincial Legislature impose a tax upon the sale of the same goods when manufactured.

14. It appears then to their Lordships that the competing Entries No. 45 of the Federal List and No. 48 of the Provincial List may fairly be reconciled without adopting the contention of the appellant, and that the validity of the Madras Act cannot successfully be challenged. Their Lordships would again emphasise that in coming to this conclusion they have regarded substance not form. The tax imposed by the Madras Act is not a duty of excise in the cloak of a tax on sales. Lacking the characteristic features of a duty of excise such as uniformity of incidence and discrimination in subject-matter, it is in its general scope and in its detailed provisions a "tax on sales." Their Lordships must not be taken as ex-pressing any view upon the validity of any measure upon the substance of which a different opinion might be formed. For the reasons already stated, their Lordships are of opinion that this appeal must be dismissed and they will humbly advise His Majesty accordingly.