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2003 (11) TMI 558 - SC - Indian Laws
Whether the import fee levied is the levied is the price for parting with the privilege given to the respondent to import liquor into the State and, therefore, the same is within the competence of the State to impose import fee?
Whether the imposition of import fee does not, in any way, restrict trade, commerce and intercourse among the States?
Held that:- The maxim 'res extra commercium' has no role to play in determining the constitutional validity of a statute.
The State, in its discretion having regard to the provisions contained in Article 47 of the Constitution of India may part with its right of exclusive privilege but once it does so, the grant being subject to the terms and conditions of a statute, the common law principle based on the maxim 'res extra commercium' shall have no application in relation thereto. (2) When the constitutionality of a taxing statute is questioned, the same has to be judged on the touchstone of the constitutional provisions including Article 301 thereof. The freedom guaranteed under Article 301 of the Constitution of India may not be considered in isolation having regard to the expression contained therein that such freedom is subject to Part XIII of the Constitution of India.
The right to carry on trade in liquor is a fundamental right within the meaning of Article 19(1)(g) of the Constitution of India and the State may, however, legislate prohibiting such trade either in whole or in part in terms of Clause (6) of thereof.
Article 14 is applicable in the matter of grant by the State and, thus, there is no reason as to why grantee would not be entitled to invoke the commerce clause contained in Article 301 of the Constitution of India. (5) In interpreting the constitutional provisions, the court should take into consideration the implication of its decision having regard to the international treaties dealing with countervailing duty, etc.