TMI Blog2017 (10) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... are referable to Entry 52 of List II of Seventh Schedule of the Constitution. Entry 52 also provided a legislative field, namely, 'taxes on the entries of goods into a local area for consumption, use or sale therein'. Legislation is thus concerned only with entry of goods into a local area for consumption, use or sale. The origin of goods has no relevance with regard to chargeability of entry tax - definition clause, Section 2(d) read with Section 3 does not exclude the charging of the entry tax on goods entering into local area for consumption, use or sale from outside the country. In Section 2(d) the word used is 'any place outside that local area or outside the State'. The word 'any' is a word of very wide meaning and use of word 'any' excludes any limitation. We, thus, are of the view that all the three legislations clearly did not exclude goods coming from outside the territory of India and the definition of entry of goods read with charging section clearly included all goods entering into a local area. Thus, the submissions of learned counsel for the petitioners that entry tax legislation did not include imported goods cannot be accepted. Entry 41 & 83 of List I and En ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner that entry tax legislation of the State encroaches in the Parliament’s field. Import and its extent - Whether the importation of goods, imported from a territory outside the India continues till the goods reach in the premises/factory of the importer, during which period State at no point of time is legislative competence to impose any tax? - Held that: - Import and export are concepts which denote trade between different countries. The term “import” signifies etymologically “to bring in”. To import goods into the territory of India means to bring them into the territory of India from abroad - The submissions of the writ petitioners on the strength of Section 5(3) that even first sale after the import should be treated during the course of the import is not supported by the concept as contained in Section 5 of the 1956 Act and the reliance on the said provision is wholly misplaced - taxing event with regard to levy of customs duty by Parliament and levy of entry tax by States under Entry 52 List II are entirely different and separate. The taxing event pertaining to levy of entry tax occurs only after the taxing event of levy of customs duty is over. Thus, the State L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ncidental to the purchase. Thus, noninclusion of custom duty specifically in definition of purchase value in 2(j) is inconsequential and cannot lead to mean that the legislature never intended to include the imported goods under the entry tax legislation - We thus do not find any substance in the submission of petitioner that noninclusion of custom duty in definition of purchase value leads to conclusion that entry tax is not payable on entry tax. Whether Entry Tax Legislations are not covered by Entry 52 List II since the Entry 52 is in essence entry of levying octroi which can be levied only by local authorities and the State has no legislative competence to impose entry tax under Entry 52 List II? - Held that: - It is well settled that the nomenclature or form of a tax is not a decisive factor to find out the nature of the tax. It is the matter of legislative policy as to how the tax is to be collected. The definition of taxation as given in Article 266 (28) that tax includes general or local tax does not in any manner support the contention of the petitioner that tax under Entry 52 is only a local tax which ought to be collected through local bodies. It is the matter of legi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Orissa Act, 1999 - A plant imported in knocked out condition is fully covered with the definition of machinery and equipment under Part II of Schedule of the Orissa Act, 1999. - CIVIL APPEAL NOS. 3381-3400 OF 1998 - - - Dated:- 9-10-2017 - Mr. A.K. Sikri And Mr. Ashok Bhushan JJ. T.C.(C) No. 149/2013, C.A. No. 3720-3722/2003, C.A.No. 15957 of 2017 @ SLP(C) No. 6831/2008, C.A.No.15958 of 2017 @ SLP(C) No.7914/2008, C.A.No.15959 of 2017 @ SLP(C) No.8204/2008, C.A.No. 15960 of 2017 @ SLP(C) No.9227/2008, C.A.Nos. 15961-62 of 2017 @ SLP(C) No.12424-12425/2008, C.A. 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No. 16057 of 2017 @ SLP(C) No.22084/2008, C.A. No. 16059-60 of 2017 @ SLP(C) Nos.22100-22101/2008, C.A. No. 16063 of 2017 @SLP(C) No.23270/2008, C.A. No. 16065 of 2017 @ SLP(C) No.26750/2008, C.A. No. 16069 of 2017 @ SLP(C) No.19986/2008, C.A. No. 16070 of 2017 @ SLP(C) No.23077/2008, C.A. No. 16073 of 2017 @SLP(C) No.26377/2008, C.A. No. 16075 of 2017 @ SLP(C) No.26593/2008, C.A. No. 16080 of 2017 @ SLP(C) No.29764/2008, C.A. No. 16082 of 2017 @SLP(C) No.29763/2008, C.A. No. 16084 of 2017 @ SLP(C) No.3276/2009, C.A. No. 16085 of 2017 @ SLP(C) No.29194/2008, C.A. No. 16087 of 2017 @SLP(C) No.29196/2008, C.A. No. 16089 of 2017 @ SLP(C) No.9548/2009, C.A. No. 16092 of 2017 @ SLP(C) No. 25467/2009,C.A. No.2042/2011, C.A. No. 16094 of 2017 @ SLP(C) No.6762/2010, C.A. No.2041/2011, C.A. No. 16095 of 2017 @SLP(C) No.2459/2010, C.A. No. 16096 of 2017 @ SLP(C) No.12690/2010, C.A. No. 16097 of 2017 @ SLP(C) No.4 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No.29119/2014, C.A. No. 16086 of 2017@SLP(C) No.22349/2015, C.A. No. 16088 of 2017@SLP(C) No.72/2016, C.A. No. 16090 of 2017@ SLP(C) No.2057/2016, C.A. No. 16091 of 2017@SLP(C) No.86/2016, C.A. No. 16093 of 2017@SLP(C) No.16820/2016, C.A. No. 16029-33 of 2017@ SLP(C) No.18360-18364/2008, C.A. No. 16077-79 of 2017@SLP(C) Nos.27442-27444/2008, C.A. No. 16066-68 of 2017@SLP(C) Nos. 16744-16746/2013, C.A. No. 16111 @SLP(C) No.11419/2010, C.A. No.3026 of 2012, C.A. No. 3592/1998, C.A. No. 4651/1998, C.A. NO. 918/1999, W.P(C) No. 574/2003, C.A. NO. 6177/2010, C.A. NO. 6178/2010, C.A. No. 6179/2010, C.A. No. 15523 of 2017@SLP(C) No.18088/2007, C.A. NO. 6180/2010, C.A. No. 15524 of 2017@SLP(C) No.18044/2007, C.A. No. 15518-20 of 2017@ SLP(C) Nos. 17394-17396/2009, C.A. No. 15522 of 2017@SLP(C) No.25390/2009, C.A. No. 15525 of 2017@SLP(C) No.1820/2010, C.A. No. 15521 of 2017@SLP(C) No.19194/2010,C.A. No. 16157 of 2017@SLP(C) No.26543/2008, C.A. No. 16156 of 2017@SLP(C) No.11646/2009 C.A. No. 16155 of 2017@SLP(C) No.7356/2010 C.A. No. 16163 of 2017@SLP(C) No.1101/2007. For the Appellant : Mr. Dinesh Kumar Garg, AOR Mr. Ginny J. Rautray, Adv. Ms. Kanchan Kaur Dhodi, AOR Ms. Vanita B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Mr. Vinayak Mathur, Adv. Mr. Vipin Upadhyay, Adv. Mr. Anupam Mishra, Adv. Mr. Kishore Kunal, AOR Mr. A. Venayagam Balan, AOR Ms. Suruchii Aggarwal, AOR Mr. Syed Shahid Hussain Rizvi, AOR M/s. Arputham Aruna And Co, AOR For the Respondent : Mr. Rakesh Dwivedi, Sr. Adv. Ms. Kirti Renu Mishra, AOR Mr. Sansriti Pathak, Adv. Mr. Apoorva Upamanyu, Adv. Ms. Apurva Garg, Adv. Mr. Milind Kumar, AOR Mr. C. N. Sree Kumar, AOR Mr. Ravi Prakash Mehrotra, AOR Mr. Praveen Kumar, AOR Mr. Devashish Bharuka, AOR Mr. Gunnam Venkateswara Rao, AOR Mr. Gopal Singh, AOR Mr. M. P. Vinod, AOR Mr. Dileep Pillai, Adv. Mr. Atul Shankar Vinod, Adv. Mr. Ajay K. Jain, Adv. Mr. Vimlesh Kumar, Adv. Mr. Roy Abraham, Adv. Ms. Reena Roy, Adv. Ms. Seema Jain, Adv. Mr. Akhil Abraham, Adv. Mr. Himinder Lal, Adv. Ms. Baby Krishnan, AOR Mr. R. Sathish, AOR Mr. Rajiv Mehta, AOR Mr. M. T. George, AOR Mr. Sunil Kumar Jain, AOR Mr. K. R. Nambiar, AOR Mr. Suvendu Suvasis Dash, AOR Rr-ex-parte, AOR Mr. Y. Prabhakara Rao, AOR Mr. Sanjeeb Panigrahi, AOR Mr. E. M. S. Anam, AOR Mr. L. Badri Narayanan, Adv. Mr. Aditya Bhattacharya, Adv. Mr. Victor Das, Adv. Ms. Apeksha Mehta, Adv. Mr. Punit Dutt Tyagi, AOR Mr. M. P. Devanath ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the High Courts. State of Orissa 5. In the appeals arising out of the judgments of the High Court of Orissa, most of the appeals have been filed against judgments dated 18.02.2008 and 09.10.2012. Judgments of different dates were also delivered by the Orissa High Court following its judgments dated 18.02.2008 and 09.10.2012. There are appeals containing different facts and grounds which shall separately be noticed. 6. With regard to judgment dated 18.02.2008 delivered in bunch of writ petitions, we take up Civil Appeal arising out of SLP(C)No.18405 of 2008 M/s. Steel Authority of India Ltd. vs. State of Orissa Anr. The State of Orissa enacted Orissa Entry Tax Act, 1999 (hereinafter referred to as 1999 Act ) to provide for levy of tax on entry of the scheduled goods into a local area for consumption, use or sale therein and matters incidental thereto and connected therewith. 7. The Steel Authority of India, a public sector undertaking of Government of India filed the writ petition challenging the legality and constitutional validity of Orissa Entry Tax Act, 1999 and Orissa Entry Tax Rules, 2000 in so far as it seeks to levy and collect entry tax on imported ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in Writ Petition No.15519 of 2010 and other connected writ petitions have given rise to large number of civil appeals. The leading writ petition in which judgment dated 09.10.2012 was delivered was writ petition No.15519 of 2010 Tata Steel Limited vs. State of Orissa Ors. We now proceed to notice the facts and pleadings in the aforesaid writ petition. The writ petitioner, Tata Steel is company which has its branches, divisions across the State of Orissa. The writ petitioner carries on business in mining as well as manufacturing of FerroChrome and FerroManganese at different plants in the State of Orissa. For the ready reference the pleadings in paragraph 3 of the writ petition needs to be extracted which is to the following effect: 3. That the relevant facts giving rise to the present writ application are inter alia are: ( a) The petitioner in order to carry out its manufacturing activity both inside the state of Orissa as well as in factories located outside the state imports various raw materials from outside India. ( b) That for importing the said goods from outside India, the petitioner has obtained has obtained necessary licenses and permissions ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 256 of 2013 M/s. National Aluminium Company Limited vs. State of Orissa Ors. 16. The writ petitioner is the public sector undertaking and is running three units, namely, Aluminium Refinery Plant at Damanjodi in the District of Koraput, Aluminium Smelter Plant at Angul in the District of Angul and Captive Thermal Power Plant at Angul. The writ petitioner in order to carry out its manufacturing/mining activity imports various material and equipments including spares from outside India. For importing the said goods from outside India, the petitioner has obtained necessary licences and permission from appropriate authorities. The petitioner brings in various goods including scheduled goods for its business operation from within the State and also from outside the territory of India by way of import. The writ petitioner has filed the writ petition challenging the Orissa Entry Tax Act, 1999 and levibility of entry tax on petitioner. By a common judgment dated 09.10.2012 the writ petition has been dismissed. Aggrieved by which this appeal has been filed. Civil Appeal arising out of SLP(C) No.1426 of 2013 Emami Paper Mills Limited vs. State of Orissa Ors. 17. The ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction capacity by installing and erecting plant and machinery both indigenous and imported. For the manufacture of the refractory products, the petitioner requires imported raw materials, stores and spares, trading items and capital goods. Petitioner imports various materials from different countries. The materials are fused silica, lime stabilize fused zirconia, fused magnesia, sintered magnesia, silicon metal, natural PVC, refractory glaze, furfural alcolhol and micro silica. Generally, these goods are imported from either the Kolkata Port or the Kolkata Airport where from they are transported to the factory. Besides the raw materials imported from other countries, the petitioner also uses raw materials available in other States within the Union of India. The petitioner was under the bona fide belief that it was not required to pay entry tax on the goods imported from abroad. Further, the petitioner effected a payment under protest of ₹ 37,08,682/towards entry tax. The petitioner filed writ petitioner No.7 of 2008 challenging the Entry Tax Act, 1999. The writ petition was filed basically on the following three grounds: a. Entry tax is not leviable on goods imported fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s imported from outside the territory of India. 21. There are few other appeals which are different from the above mentioned common judgment of the Orissa High Court. Civil Appeal Nos.37203722 of 2003 National Aluminium Co.Ltd. vs. State of Orissa Ors. 22. The writ petitioner is a Government of India Undertaking, engaged in production of alumina and aluminium. It has its captive Bauxite Mines and Alumina refinery factory at Damanjodi in the District of Koraput. The major raw material is bauxite. Petitioner has set up its own Captive Power Plant at Angul near its Smelter Plant. For production of electricity, the basic raw material is coal, which obtained from Mahanadi Coal Fields. The petitioner filed Original Jurisdiction Case No.72 of 2001 challenging the validity of 1999 Act on several grounds. The Division Bench of the High Court vide its judgment dated 13.11.2002 declined to strike down the 1999 Act. However, while declining to strike down the 1999 Act following directions were issued: 44. In the result, while declining to strike down the Orissa Entry Tax Act, 1999 as ultra vires, we direct that: 1. Unless the basic ingredients, i.e. Entry of Schedule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the local area. Petitioner filed Writ Petition No.16650 of 2010. In the writ petition, petitioner has attacked the correctness of the assessment order dated 23.02.2010 on the ground that assessment order under Section 9C of the 1999 Act has been made by way of Orissa Entry Tax (Amendment) Act, 2005 which came into force with effect from 19.05.2005. The writ petition has been dismissed by the Division Bench by its judgment dated 08.11.2010 on the ground that the petitioner is at liberty to seek its alternative remedy by filing an appeal within a period of two weeks, the writ petition was disposed of. CIVIL APPEALS OF STATE OF KERALA 26. The civil appeals relating to State of Kerala have been filed both by State of Kerala as well as by its officers. State of Kerala has filed appeals against judgment dated 06.01.1998 and several others subsequent judgments following the judgment dated 06.01.1998. Another judgment has been passed by High Court of Kerala on 18.12.2006. There is one writ petition filed by a company. It is sufficient to notice facts of few cases to decide the group of cases relating to Kerala. Civil Appeal Nos. 33813400 of 1998 State Of Kerala Ors Vs. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the State of Kerala. The Division Bench held that levy of entry tax on goods imported from other States to the State of Kerala and from abroad is not compensatory in nature and such demand is illegal, unauthorised and violative of Article 301. Application for intervention has also been filed by various petitioners which applicants have also been heard. State has filed other appeals questioning subsequent judgments which have followed judgment dated 06.01.1998 and 18.12.2006. Writ Petition (C) No. 574 of 2003 Parisons Agrotech Private Ltd. Anr vs. State of Kerala Ors. 29. This writ petition has been filed under Article 32 of the Constitution praying for declaration that 1994, Act is ultra vires and unconstitutional and the Act also does not apply to the entry of goods imported in India from foreign country. The petitioner company is engaged in the import of crude palmolin, refining the same to make it edible and thereafter selling of palmolin oil. The petitioner imports crude palmolin oil in bulk from Malaysia, Indonesia and Singapore. Purchase of crude by the petitioner is in the course of import from foreign countries and imported through Cochin Port within the S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2008 by which judgment the writ petition filed by the appellant has been disposed of in terms of the para 69 of the Division Bench judgment of Patna High Court, M/s Indian Oil Corporation Ltd. (supra). Civil Appeal arising out of SLP(C) No. 7356 of 2010 ITC Ltd vs State of Bihar 32. This appeal has been filed against judgment and order dated 15.02.2010 of the Division Bench of the Patna High Court by which writ petition filed by the petitioner has been dismissed. Petitioner has challenged the constitutional validity of 1993, Act thereby challenging the Section 4 of 1993, Act as inserted by Amendment Act 19 of 2006. It was prayed that Amendment Act be declared as ultra vires to the power of State Legislature. Petitioner has also challenged the demand notice dated 20.6.2009 issued by Joint Commissioner, Commercial Tax Bhagalpur and demand notice dated 03.07.2009 under the Amendment Act, 19 of 2006. It was noticed in the writ petition that in view of the judgment dated 09.01.2007 of the Patna High Court in Indian Oil Corporation Ltd. (supra) after the amendment by amending Act, 19 of 2006 the entry tax sought to be levied with effect from 29.08.2006, has become compensat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t/asseesee to pursue the same. The respondent/assessee had also raised the contention that coal was imported on which no entry tax was paid. On this aspect, we have heard the arguments and the judgment is reserved. 35. Thus in the present appeal, we have permitted the assessee to raise the only issue as to whether on imported coal entry tax could be levied. 36. We have heard large number of learned counsel for the writ petitioners including Shri Arvind P. Datar, Shri A.K. Ganguli, Shri S.K.Bagaria, Shri Jagdeep Dhankar, Dr. G.C. Bharuka, Shri Ashok Kumar Panda, Senior Advocates. Shri Rakesh Dwivedi, Senior Advocate has been heard on behalf of the State of Orissa and State of Bihar. Shri V.Giri, Senior Advocate has appeared on behalf of the State of Kerala. Shri Ajit Kumar Sinha, Senior Advocate has also been heard. Submissions 37. The following are the substances of submissions raised by different learned counsel for writ petitioners relating to State of Orissa attacking the provisions of 1999, Act: i. The legislature has not created any chargeability for levy of entry tax on goods imported from outside the country in Orissa Entry Tax Act, 1999. Entry of g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve out any taxing event by seeking to term it as a tax from entry into local area for consumption, use or sale therein. The entry tax legislation imposing entry tax on the imported goods is thus beyond the competence of State Legislation. Article 286(1)(b) of the Constitution excludes the taxing power of the State in respect of goods in the course of import. iii. The goods imported by actual users for their captive consumption and own use continues to remain in the course of import and continues to retain the character of imported goods. The Doctrine of Unbroken Package evolved by American Courts do supports the petitioners case. The judgment of the US Supreme Court in Brown versus Maryland 6 L.Ed. 678 which laid down that the constitutional prohibition of State to tax the goods imported survives even after they have landed and cleared from custom, after payment of duties the protection continues till they are sold by importer, is still good law and has been followed subsequently. iv. The impugned entry tax is not an entry under Entry 52 of List II of the VIIth Schedule of the Constitution. The tax covered by Entry 52 is nothing but the levy that is known as octroi, which is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... les Tax, 1956 has no relevance with regard to Entry 52 List II. 40. The word import means to bring in. The word imported goods are defined in Customs Act, 1962. The above definitions clearly indicate that ones the goods have been cleared for home consumption then they ceased to be imported goods. The importation happens before clearance for home consumption and after clearance the character as import ceases. The Doctrine of Unbroken Package as evolved by the US Supreme Court is not attracted in this country. The judgment of the US Supreme Court in Brown versus State of Maryland, 6 LED 678 has been discredited even in USA. In the subsequent judgments of US Supreme Court, the judgment of Brown vs. State of Maryland has been considerably diluted. The Federal Court as well as this Court has specifically held that the judgment of US Supreme Court in Brown vs. State of Maryland is not applicable in this country. 41. The submissions raised by one learned counsel of the petitioners that entry tax is not covered by Entry 52 List II is wholly fallacious. In the Constitution of India, there is clear demarcation of taxing power of Union and the State. When by Entry 52 Lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o imported goods of the petitioners prohibiting the State from levying any tax till the goods are first sold/dealt by the importer. vi. Whether in the definition of purchase value as contained in Entry Tax Legislations in question, noninclusion of custom duty is indicator of fact that the legislature never intended to levy entry tax on imported goods. vii. Whether Entry Tax Legislations are not covered by Entry 52 List II since the Entry 52 is in essence entry of levying octroi which can be levied only by local authorities and the State has no legislative competence to impose entry tax under Entry 52 List II. viii. Whether a plant, imported in knocked out condition is covered by the Part II of the Schedule of Orissa Act, 1999. 45. Before we proceed to consider the various issues as noted above, it is relevant to notice the statutory provisions relating to entry tax applicable in the above mentioned States. 46. The Orissa Entry Tax Act, 1999 (hereinafter referred to as Orissa Act, 1999 ) was enacted to provide for the levy and collection of tax on the entry of goods into a local area for consumption, use or sale therein and matters incidental thereto and connected th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 03.) consumption or sale therein; ( g) Importer means a person who brings or cause to be brought any goods whether for himself or on behalf of his principal or any other person, into a local area, from any place outside the State for use, consumption, or sales therein or who owns the goods at the time of entry into the local area. ( h) Local area means the area of jurisdiction of a local authority; ( n) purchase value means the value of the goods as ascertained from the original invoice and includes insurance, excise duties, countervailing duties, sales tax, transport fee, freight charges and all other charges incidentally levied on the purchase of goods and in the case of a motor vehicle includes the value of accessories fitted to the vehicle; Provided that, where the purchase value of the goods is not ascertainable on account of nonavailability or nonproduction of the original invoice or when the invoice produced is proved to be false or if the goods are acquired or obtained otherwise than by way of purchase, then the purchase value shall be the value or price at, which the goods of like kind or quality is sold or is capable of being sold, in open mar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch the scheduled goods of like kind or quality is sold or capable of being sold in open market. ( f) Local Areas means the areas within the limits of a (i) Municipal Corporation; (ii) Municipality; (iii) Notified Area Committee; (iv) Cantonment Board; (v) Town Board; (vi) Mines Board; (vii) Municipal Board; (viii) Gram Panchayat; (ix) Any other local authority by whatever nomenclature called, constituted or continued in any law for the time being in force. 51. Section 3 is a charging Section. Section sub-section (1) is as follows: 3. Charge of Tax (I) There shall be levied and collected a tax on entry of scheduled goods into a local area for consumption, use or sale therein for the purpose of development of trade, commerce and industry in the State, at such rate, not exceeding twenty percent, of the import value of such goods, as may be specified by the State Government in a notification published in a official gazette subject to such conditions as may be prescribed: Provided different rates for different scheduled goods may be specified by the State Government. Provided further, that if an importer claims that he imported goods notified under sub-section ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted that entry of goods into local area can be any of the following places: (i) from any place outside that local area that is from other local area within the State of Orissa itself; (ii) from any place outside the State that is from any place outside the State of Orissa. The expression State here can only be the State of Orissa and cannot mean the country as a whole. (iii) from any place outside the country. 56. The definition of Section 2(d) on its own term does not cover entry of goods into a local area from any place outside the country . It is, however, submitted that expression any place outside the local area by itself would have been enough to cover the goods imported from anywhere outside the local area. Outside the local area would have been outside the State or outside the country but Legislature never intended to levy entry tax on goods imported from outside the country that is why entry of goods from local area, from outside the State was provided for. Reference of various other States' enactments have been made where any place outside the country has been expressly mentioned. Reference has been made to West Bengal Tax on Entry of Goods into Loca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sidered in the above case was as to whether Item No.31 of List II in the Seventh Schedule of Government of India Act, 1935 which provided intoxicated liquor and narcotic drugs whether included foreign liquors. The arguments that provincial legislature has no power to restrict or prevent the goods imported from foreign country, was repelled. In paragraph 4 of the judgment following has been held: 4. Now, under S. 100 of the Constitution Act the Provincial Legislature has, subject to the other sub-sections of that section, the exclusive power to make laws with respect to matters enumerated in List II in the sch. VII. Item 31 of that List comprises Intoxicating liquor and narcotic drugs, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors, opium and other narcotic drugs subject to certain reservations not material here. Prima facie, the offending provisions are within this legislative power. But counsel for the appellant drew attention to Item 19 of List 1 which covers Import and export across customs frontier as defined by the Dominion Government , and argued that if intoxicating liquors in Item 31 of List I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gard must be had to plain and strict letter of law. Reliance has been placed on the judgment CIT v. Vatika Township (P) Ltd., (2015) 1 SCC 1 . In paragraph 41.2 and paragraph 41.3 following has been held: 41.2. At the same time, it is also mandated that there cannot be imposition of any tax without the authority of law. Such a law has to be unambiguous and should prescribe the liability to pay taxes in clear terms. If the provision concerned of the taxing statute is ambiguous and vague and is susceptible to two interpretations, the interpretation which favours the subjects, as against the Revenue, has to be preferred. This is a wellestablished principle of statutory interpretation, to help finding out as to whether particular category of assessee is to pay a particular tax or not. No doubt, with the application of this principle, the courts make endeavour to find out the intention of the legislature. At the same time, this very principle is based on fairness doctrine as it lays down that if it is not very clear from the provisions of the Act as to whether the particular tax is to be levied to a particular class of persons or not, the subject should not be fas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g into a local area of a State whether coming from another local area of State, any other State or outside the country, the charging event is same for all goods entering into local area. We, thus, are of the clear view that charging Section is clear, unambiguous and the provisions cannot be read to mean that the imported goods coming from outside the country are excluded from charge of entry tax. No such indication is discernible from any provision of the Act. Charging event is complete as and when goods enter into local area for use, sale or consumption irrespective of its origin. We, thus, are of the view that definition clause, Section 2(d) read with Section 3 does not exclude the charging of the entry tax on goods entering into local area for consumption, use or sale from outside the country. 64. In so far as reference of Section 2(c) of the Bihar Act, 1993 as amended in 2003 by adding an explanation and as amended in 2006 by inserting a new Section 2(c), Section 2(1) (c) of Uttar Pradesh Tax on Entry of Goods into Local Area Act, 2007, Section 2(1)(c) of the Uttarakhand Tax on Entry of Goods into Local Areas Act, 2009 as well as Section 2(1)(c) of the West Bengal Tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... I, which are as follows: Entry 41 Trade and commerce with foreign countries; import and export across customs frontiers; definition of customs frontiers. Entry 83 Duties of customs including export duties. 70. In so far as trade and commerce with foreign countries, import and export across the customs frontiers and definition of customs frontiers, it is the Parliament which has exclusive legislative competence to make a law under Entry 41 and under Entry 83 on duties of customs including export duties. 71. The Constitution of India, Part XI, Chapter I deals with legislative relations, legislative powers of Parliament and State Legislatures are clearly demarcated. Power to tax is an incidence of sovereignty and there is a clear demarcation of taxing field, which has been earmarked to the Parliament as well as to the State Legislatures. Taxing power of both Union and State Legislatures are mutually exclusive and has been clearly demarcated. This is further clear by the fact that in List III, i.e. Concurrent List, no taxing entry is included except the entry of stamp duty levying of fee in respect of any of the matters in List III but not including fees taken in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... See also State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201.) 73. This Court further held that in construction of a taxing entry, an interpretation which may lead to overlapping must be eschewed. If the taxing power is within a particular legislative field, it would follow that other fields in the legislative lists must be construed to exclude this field. In Para 46,following was held : 46. Therefore, taxing entries must be construed with clarity and precision so as to maintain such exclusivity, and a construction of a taxation entry which may lead to overlapping must be eschewed. If the taxing power is within a particular legislative field, it would follow that other fields in the legislative lists must be construed to exclude this field so that there is no possibility of legislative trespass. 74. Entries in VIIth Schedule are not powers but fields of legislation. It is also well settled that in deciding whether any particular enactment is within the purview of one Legislature or the other, it is pith and substance of the legislation that has to be looked into. Whenever a State legislation is challenged as being under the competence of the State Leg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stribution of legislative power between the Federal Government and Provincial Government as contained in Seventh Schedule of the Government of India Act, 1935. The Government of India Act, 1935 has been referred to as Constitution Act by the Privy Council. In this context, reference is made to a judgment of Federal Court reported in AIR 1942 FC 33, The Province of Madras Vs. Messrs. Boddu Paidanna and Sons.(1942 FCR 90), the Madras Legislature has enacted Madras General Sales Tax Act, 1939. The respondent was carrying on business which consists of purchase of ground nuts for the purpose of extracting oil from the kernels of the nuts and the making of groundnut cake out of the residue was assessed to tax under the 1939 Act. The levy of tax was challenged by the respondent before the District Munsif and the High Court of Madras on the ground that first sale of goods manufactured in the Province was a duty of excise, which is not within the competence of Provincial Legislature. The High Court accepted the challenge and held that State Legislature was not competent to tax. In the Government of India Act, 1935, the Federal Legislature, under List I Entry 45, has an exclusive power t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ure or production. The manufacturer or producer cannot of course sell his commodity unless he has first manufactured or produced it ; but he is liable, if at all, to a sales tax because he sells and not because he manufactures or produces; and he would be free from liability if he chose to give away everything which came from his factory. In our opinion the power of the Provincial Legislatures to levy a tax on the sale of goods extends to sales of every kind, whether first sales or not; and we regret that we are unable to agree with the contrary opinion which has been expressed by the High Court.... 77. The above judgment of Federal Court was upheld by Privy Council in The Governor General in Council Vs. The Province of Madras, reported in 58 L.W. 228. LORD SIMONDS held that in event a controversy should arise whether one or other Legislature is not exceeding its own, and encroaching on the other's, constitutional legislative power, and in such a controversy it is a principle, that it is not the name of the tax but its real nature, its pith and substance , which must determine into what category it falls. After referring to the provisions of Madras General Sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellant challenged the leviability of octroi on the ground that tobacco is excisable goods under Central Excises and Salt Act, 1944. It is only Central Government, who is entitled to recover the excise duty and the octroi is not payable. The High Court had rejected the contention and the appeal was dismissed by this Court holding that levy of excise duty is not in conflict with the levy of an impost on the entry of the goods. In Para 10 of the judgment following has been held: 10. This discussion clearly shows that the relevant question is what is the nature of the tax. Excise duty is a tax on manufactured goods. Octroi duty is a tax levied on the entry of goods within a particular area. Under the Excise Act, tobacco becomes excisable goods within the meaning of Item 9 in the Schedule. The subsequent use of such manufactured goods in making different articles only affects the rate of tax. Therefore, tobacco becomes subject to excise duty when it reaches the stage of manufacture mentioned in Item 9 of the Schedule to the Excise Act. Even before it is converted into bidis or any other article mentioned in the entry it has become excisable goods and liable to pay excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lature to legislate and not in a narrow and pedantic sense. Constitution bench judgment in D.G. Gose and Co. (Agents) Pvt. Ltd. Vs. State of Kerala Anr., (1980) 2 SCC 410 also need to be noticed. The Kerala Building Tax Act, 1975 imposing tax on building under List II Entry 49 tax on land and buildings whereas List I Entry 86 Taxes on the capital value of assets, exclusive of agricultural land, of individuals and companies; taxes on the capital of companies. 81. Referring to the aforesaid two taxes under List I and List II, this Court laid down that two taxes are separate and distinct imposts and they cannot be said to be overlap each other and shall be within the competence of the Legislatures concerned. In Para 9 of the judgment, following has been held: 9. It has to be appreciated that in almost all cases, a tax has two elements which have been precisely stated by Seervai in his Constitutional Law of India , 2nd Edn., Vol. 2, as follows, at p. 1258: Another principle for reconciling apparently conflicting tax entries follows from the fact that a tax has two elements: the person, thing or activity on which the tax is imposed, and the amount of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stion open of validity of entry tax on goods imported from countries outside the territories of India, the two Hon ble Judges, i.e. Justice R. Banumathi and Justice Dr. D.Y. Chandrachud while delivering separate judgment have considered the leviability of entry tax on imported goods in detail. Both Hon ble Judges have held that there is no clash/overlap between entry levied by the State under Entry 52 List II and the custom duty levied by the Union under Entry 83 List I. We have also arrived at the same conclusion in view of the foregoing discussions. We thus hold that entry tax legislations do not intrude in the legislative field reserved for Parliament under Entry 41 and under Entry 83 of List I. The State Legislature is fully competent to impose tax on the entry of goods into a local area for consumption, sale and use. We thus repel the submission of petitioner that entry tax legislation of the State encroaches in the Parliament s field. Concept Extent of Import 84. Now, we come to Issue No.IV relating to import and its extent. Import and export are concepts which denote trade between different countries. The term import signifies etymologically to bring in . T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onverting them by means of certain processes into edible kernels, exporting the kernels to other countries, mainly America. The oil pressed from the shells removed from the cashewnuts was also exported. The Constitution having come into force on January 26, 1950, the respondent in each appeal claimed exemption under Article 286(l)(b) in respect of the purchases made from that date till May 29, 1950, the end of the account year. The Sales Tax authorities having rejected the claim, the respondents applied to the High Court under Article 226, and that court upheld the claim and quashed the assessments in so far as they related to the said period. The State has preferred the appeals. 88. This Court while considering the exemption under Article 286(1)(b) has laid down the following in Para 10: As regards the first mentioned category, we are of opinion that the transactions are not within the protection of clause (1)(b). What is exempted under the clause is the sale or purchase of goods taking place in the course of the import of the goods into or export of the goods out of the territory of India. It is obvious that the words import into and export out of in this context ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the country has been completed, and having no integral relation with it. Any attempt therefore to invoke the authority of the previous decision in support of the suggested extension of the protection of clause (1)(b) to the last purchase for the purpose of export and the first sale after import on the ground of integrated activities must fail. 90. The writ petitioners have also placed reliance on the contents of Article 286 of the Constitution especially Article 286(1)(b) read with Article 286(2). Article 286(1) and (b) are as follows: Article 286. Restrictions as to imposition of tax on the sale or purchase of goods: - ( 1)No law of a State shall impose, or authorise the imposition of, a tax on the supply of goods or of services or both, where such supply takes place ( a)... ... ... ( b) in the course of the import of the goods or services or both into, or export of the goods or services or both out of, the territory of India. 91. It is supported that though Article 286 deals with the restriction on the State legislative power qua imposition of tax on the sale or purchase of goods nevertheless the formulation of the principle by the Parliament ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... either occasions such import or is effected by a transfer of documents of title to the goods before the goods have crossed the customs frontiers of India. ( 3) Not withstanding anything contained in sub-section (1), the last sale or purchase of any goods preceding the sale or purchase occasioning the export of those goods out of the territory of India shall also be deemed to be in the course of such export, if such last sale or purchase took place after, and was for the purpose of complying with, the agreement or order for or in relation to such export. 93. The submissions of the writ petitioners on the strength of Section 5(3) that even first sale after the import should be treated during the course of the import is not supported by the concept as contained in Section 5 of the 1956 Act and the reliance on the said provision is wholly misplaced. 94. As noted above, the restriction in the legislative power of the State as contained in Article 286 is with regard to taxing on sale or purchase of goods which takes place outside the State or in the course of import of the goods or services or export of goods or services. The restriction of Article 286 does not ipso facto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d Judge expressed his view at p. 92 thus: The word course conveys to my mind the idea of a gradual and continuous flow, an advance, a journey, a passage or progress from one place to another. Etymologically it means and implies motion, a forward movement. The phrase in the course of clearly has reference to a period of time during which the movement is in progress. Therefore, the words in the course of the import of the goods into and the export of the goods out of the territory of India obviously cover the period of time during which the goods are on their import or export journey . We respectfully agree with the aforesaid observations of the learned Judges. The course of the import of the goods may be said to begin when the goods enter their import journey i.e. when they cross the customs barrier of the foreign country and end when they cross the customs barrier of the importing country. 11. The legal position visavis the importsale can be summarised thus: (1) The course of import of goods starts at a point when the goods cross the customs barrier of the foreign country and ends at a point in the importing country after the goods cross the customs bar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... use or sale therein, covered by entry 52 in the State List. Except for duties of excise on alcoholic liquors and opium and other narcotic drugs, all duties of exercise are leviable by Parliament. Hence, it can be said that by and large, taxes on income, duties of customs and duties of excise are within the exclusive power of legislation by Parliament. 98. It is relevant to notice that this Court clearly noticed the power of States to levy entry tax on entry of goods in local area for consumption, sale or use. The above observations made by the Constitution Bench clearly support the submission of learned counsel for the State that power of State under Entry 52 was recognised while considering the Union s power to levy the customs duty. This Court further laid down that in the case of levy of customs duty, the taxable event is the import of goods within the customs barriers. In paragraph 26 of the judgment, following was stated: ( 26) Similarly in the case of duties of customs including export duties though they are levied with reference to goods, the taxable event is either the import of goods within the customs barriers or their export outside the customs barrie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Silk Mills Ltd. Anr. Vs. Union of India Ors., (1999) 8 SCC 744, in paragraph 18, which is to the following effect 18. It would appear to us that the import of goods into India would commence when the same cross into the territorial waters but continues and is completed when the goods become part of the mass of goods within the country; the taxable event being reached at the time when the goods reach the customs barriers and the bill of entry for home consumption is filed. 102. The law relating to customs has been consolidated by the Customs Act, 1962. The definitions of import , imported goods and importer have already been noticed above. The definition of imported goods as given in Section 2(25) is - any goods brought into India from the place outside India but does not include goods, which have been cleared for home consumption. The provision clearly contemplates that once the goods are released for home consumption, the character of imported goods is lost and thereafter no longer the goods could be called as imported goods. The import transit is only till the goods are released for home consumption. The taxing event for entry tax under Entry 52 Lis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in the various entries. On reading both, it has to be decided whether the legislature concerned is competent to legislate when its validity is questioned. The ambit and scope of an entry cannot be determined with reference to a parliamentary enactment. 104. There cannot be any dispute to the proposition as laid down by this Court in the above case that the scope and ambit of the Constitutional entries have to be given a wide meaning and scope. There is no inhibition on the Parliament in exercising its legislative power under Entry 41 List I to define customs frontiers and further legislate with regard to duties of customs. Even if we do not confine to the definition of imported goods as given in the Customs Act, 1962, the generally accepted meaning and definition of import as has been laid down in cases as noted above is that import commences when the goods leave the customs frontiers of the country from where the goods are imported and continue when the goods enters into the customs frontiers of imported country and ends when goods are released for home consumption. Till the event of import is over, Parliamentary Legislation, the control of Union continues for ensu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e U.S. Supreme Court, which relied on the case of Brown Vs. The State of Maryland and further formulated the doctrine is C. Adolph Low V. Alexander Austin, 20 L.Ed. 517 . The facts and issue which arose in the aforesaid case had been noted in the beginning of the judgment, which is to the following effect: - The plaintiffs have been for several years past, and still are, importing, shipping and commission merchants, in the city of San Francisco, in the state of California. In 1868, they received, on consignment from parties in France, certain champagne wines of the value of $10,000, upon which they paid the duties and charges at the customhouse. They then stored the wine in their warehouse in San Francisco, in the original cases in which the wines were imported, where they remained for sale. While in this condition they were assessed as the property of the plaintiff, for state, city and country taxes, under the general revenue law of California, which subjects all property, real or personal, in the state, with certain exceptions to an ad valorem tax. The defendant was at the time the tax collector of the city and country of San Francisco, and as such officer levied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssessors of Gwinnett County assessed ad valorem property taxes against inventory of imported tires and tubes. The petitioner challenged it on the ground that State taxes were prohibited by Art. I, 10, cl. 2, of the Constitution. The State Supreme Court held against the respondents that the tyres were subject to ad valorem property tax. The appeal was taken to the U.S. Supreme Court questioning the decision of the Georgia Supreme Court. Referring to the judgment of Low Vs. Austin as well as Brown Vs. The State of Maryland , the U.S. Supreme Court observed as under: Low v. Austin, supra, is the leading decision of this Court holding that the States are prohibited by the ImportExport Clause from imposing a nondiscriminatory ad valorem property tax on imported goods until they lose their character as imports and become incorporated into the mass of property in the State. The Court there reviewed a decision of the California Supreme Court that had sustained the constitutionality of California's nondiscriminatory ad valorem tax on the ground that the ImportExport Clause only prohibited taxes upon the character of the goods as imports and therefore did not pro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction, unlike discriminatory state taxation against imported goods as imports, was not regarded as an impediment that severely hampered commerce or constituted a form of tribute by seaboard States to the disadvantage of the inferior States. It is obvious that such nondiscriminatory property taxation can have no impact whatsoever on the Federal Government's exclusive regulation of foreign commerce, probably the most important purpose of the Clause's prohibition. By definition, such a tax does not fall on imports as such because of their place of origin. It cannot be used to create special protective tariffs or particular preferences for certain domestic goods, and it cannot be applied selectively to encourage or discourage any importation in a manner inconsistent with federal regulation. 113. It was further held: .... The ImportExport Clause clearly prohibits state taxation based on the foreign origin of the imported goods, but it cannot be read to accord imported goods preferential treatment that permits escape from uniform taxes imposed without regard to foreign origin for services which the State supplies..... 114. Referring to Brown Vs. The State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stice Field, unanimously enunciated the originalpackage doctrine, although perhaps not for the first time, see Brown v. Maryland, 12 Wheat 419, 442, 6 L Ed 678 (1827). It held that, under the ImportExport Clause, goods imported from a foreign country are not subject to state ad valorem property taxation while remaining in their original packages, unbroken and unsold, in the hands of the importer. In Michelin Tire Corp. v. Wages, supra, an importer challenged the assessment of Georgia's nondiscriminatory ad valorem property tax upon an inventory of imported tires and tubes maintained at a wholesale distribution warehouse. This Court rejected the challenge to the state tax on the imported tires.1 It found that in the history of the ImportExport Clause, there was nothing to suggest that a tax of the kind imposed on goods that were no longer in import transit was the type of exaction that was regarded as objectionable by the Framers. The tax could not affect the Federal Government's exclusive regulation of foreign commerce since it did not fall on imports as such. Neither did the tax interfere with the free flow of imported goods among the States. The Clause, while not s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o, was decided on the originalpackage doctrine. Thus, Hooven I is inconsistent with the later ruling in Michelin that such a tax is not an Impost or Duty and therefore is not prohibited by the Clause. Although Hooven I was not expressly overruled in Michelin, it must be regarded as retaining no vitality since the Michelin decision. The conclusion of the Supreme Court of Ohio that Hooven I retains current validity in this respect is therefore in error. A contrary ruling would return us to the originalpackage doctrine. So that there may be no misunderstanding, Hooven I, to the extent it espouses that doctrine, is not to be regarded as authority and is overruled. 118. From the above, it is clear that the U.S. Supreme Court itself has abandoned the Original Package theory and it has been held that imported goods are not immuned from nondiscriminatory ad valorem taxes imposed by the State. 119. Now, we come to the judgment of Federal Court and this Court wherein the aforesaid doctrine has been considered and specifically departed with. 120. Federal Court in the case of The Province of Madras Vs. Messrs. Boddu Paidanna and Sons.(supra) has noticed the case of Brow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We must however say that the original package doctrine as enunciated by Chief Justice Marshall on which reliance was placed was expressly disapproved first by the Federal Court in the Province of Madras v. Boddu Paidanna and again by the Supreme Court in State of Bombay v. F.N. Balsara..... 123. In view of the foregoing discussions, we conclude that goods imported after having been released from customs barriers are not immuned from any kind of State taxation, which fall equally on other similar goods and the submission of the learned counsel for the petitioner that immunity from State taxation shall continue till it reaches in the premises where it is to be taken for consumption, sale and use cannot be accepted. NONINCLUSION OF CUSTOM DUTY IN PURCHASE VALUE 124. The petitioners referring to definition of purchase value as given in Section 2(j) of the Orissa Act, 1999 and other entry tax enactments contends that the definition of purchase value having not included custom duty legislature intended that no entry tax be levied on the purchase value. For ready reference Section 2(j) is reproduced below: 2(j). Purchase value means the value of scheduled g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt before the Civil Judge failed. The order was challenged by way of writ petition under Article 226 of the Constitution. The High Court negatived the claim. Rule 17(a) is extracted below : 17: Provisions to determine value where octroi is leviable advalorem. ( a) If the original invoice is produced by the importer and accepted by the Octroi Officer the value of the goods means the value made up of the cost price of the goods as ascertained from that invoice plus freight charges, carrier charges, shipping dues, insurance, excise duties, sales tax, vend fee and all other incidental charges incurred by the importer till the arrival of the goods within the octroi limits . Since the words custom duty are not mentioned in the rule, it gave rise to an argument before the High Court and in this Court whether it could be included while determining the value under Rule 17. The High Court relying basi cally on the decision of this Court in Shroff Co. v. Municipal Corpn of Greater Bombay, 1989 Supp(1) SCC 347 held that even though the customs duty was not mentioned in the rule yet it was liable to be included while determining the value under Rule 17. The learned couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l bodies continued to impose octroi. He submits that tax is not covered by Entry 52. Learned counsel for the petitioner referring to a definition of tax in Article 366(28) contends that Constitution itself contemplates local taxes and tax under Entry 52 is nothing but local tax to be levied by local authorities for purpose of local area. The history of entry tax and legislative practice also leads to the same conclusion. The Government of India Act, 1935 included in the Provincial List Item No. 49 to the effect that 'Cesses on the entry of goods into a local area for consumption, use or sale'. 129. Neither the Government of India Act, 1935 nor the Constitution of India has used 'octroi'. Constitution of India consciously avoided to use the term 'Octroi'. List II Item No. 52 provided tax on the entry of goods in local area for consumption, use or sale. List I Entry 89 contained another tax, namely, 'terminal tax on goods and passengers carried by railway, sea or air, tax on railway fair and freight'. This court in BurmahShell Oil Storage and Distributing co. of India Ltd. Belgaum vs. The Belgaum Borough Municipality, Belgaum, AIR 1963 SC 906 , h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ive to octrois. 131. The distribution of legislative power between Union and State is a Constitutional Scheme included in the Constitution of India after great deliberation. Different tax entries in List I and List II are fields of legislation which have to be widely interpreted and no restricted meaning of an entry has to be taken to fetter the legislative power of the Union or State. 132. It is well settled that the nomenclature or form of a tax is not a decisive factor to find out the nature of the tax. It is the matter of legislative policy as to how the tax is to be collected. The definition of taxation as given in Article 266 (28) that tax includes general or local tax does not in any manner support the contention of the petitioner that tax under Entry 52 is only a local tax which ought to be collected through local bodies. It is the matter of legislative policy that whether a tax is collected as a general tax or a local tax. The nature of tax, measure of tax and machinery for tax collection are all different aspects. The submission of the petitioner that tax in Entry 52 should be collected by local authorities and State has no legislative competence to levy such tax ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 136. Part II of the Schedule to the Orissa Act, 1999 provides Item 9 as follows: Item 9. Machinery and equipments [including earthmovers, excavators, bulldozers and roadrollers] [and spare parts and components] used in manufacture, mining, generation of electricity, or for execution of works contract or for any other purposes. 137. The submission which has been pressed by learned counsel for the petitioner is that the plant which is imported by petitioners in completely knocked out condition is not covered by expression machinery and equipments. It is submitted that plant and machinery are two different concept and when plant is imported in a knocked out condition Item No. 9 of Part II of Schedule is not applicable. 138. The Advance Law Lexicon of P Ramanatha Aiyar 3rd Edition defines 'Plant' as follows: Plant means the fixtures, machinery, tools, apparatus, appliances etc., necessary to carry on any trade or mechanical business, or any mechanical operation or process. Webster defines the word plant to be the fixtures and tools necessary to carry on any trade or mechanical business. The word is defined by Worcester to be The machinery, ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Madhya Pradesh and Ors., 1996 (1) SCR 523 while considering Article 266 of the Constitution of India has already held that it is difficult to understand how the Act can be said to be invalid because the cesses recovered under it are not dealt with in the manner provided by the Constitution. Following observations were made by the Court: It is doubtful whether a plea can be raised by a citizen in support of his case that the Central Act is invalid because the moneys raised by it are not dealt with in accordance with the provisions of Part XII generally or particularly the provisions of Article 266. We will, however, assume that such a plea can be raised by a citizen for the purpose of this appeal. Even so, it is difficult to understand how the Act can be said to be invalid because the cesses recovered under it are not dealt with in the manner provided by the the Constitution. The validity of the Act must be judged in the light of the legislative competence of the Legislature which passes the Act and may have to be examined in certain cases by reference to the question as to whether fundamental rights of citizens have been improperly contravened, or other considerations wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lea of discrimination under Article 304(a) in accordance with the law as laid down by Nine Judges Bench in Jindal Stainless Ltd.(supra) . We, however, are of the view that for the above purposes, it is not necessary to grant any liberty to file a fresh writ petition at this stage and at this distance of time. The ends of justice shall be served, if liberty is granted to the petitioners to revive their writ petitions by making a proper application before the High Court. In the writ petitions which have been dismissed by the Orissa High court against which present appeals are decided, the liberty to revive such petition and to urge ground under Article 304(a) is granted which can be availed only within the period of 30 days from the date of this judgment. 144. In view of foregoing discussion, we arrive at the following CONCLUSIONS : (i) Orissa Entry Tax Act, 1999, Kerala Tax Act, 1994 and Bihar Tax on Entry of Goods in Local Area for Consumption, Use or Sale, 1993 (before its amendment by Bihar Act, 2003 and 2006) do not exclude levy of entry tax on the goods imported from any place outside territories of India into a local area for consumption, use or sale. (ii) All the E ..... X X X X Extracts X X X X X X X X Extracts X X X X
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