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TMI Blog2023 (5) TMI 180X X X X Extracts X X X X X X X X Extracts X X X X ..... 265, 301 and 304(a) of the Constitution of India and seek consequential relief of refund of entry tax recovered by the State from the Petitioners. 4. The Goa Legislative Assembly enacted the Impugned Act after the bill was introduced with the previous sanction of the President. The Act provided 1st September 2000 as the appointed date on which it would come into force. 5. The Petitioner Bharti Telemedia Ltd. (BTL) is in the business of providing Direct to Home (DTH) services in various States in India, including the State of Goa, under a licence issued in terms of the Indian Telegraph Act 1885. Similarly, the Petitioner Bharti Airtel Ltd. (BAL) is in the business of providing cellular telecommunication services in various States in India, including the State of Goa, also under a similar licence under the Indian Telegraph Act, 1885. 6. The Petitioners challenge the impugned Act, inter alia, on the ground that the same purports to relate to Entry 52 of List II of the Seventh Schedule to the Constitution of India but, in pith and substance, relates to entries in List I and consequently, beyond the legislative competence of the State legislature. Besides, the Petitioners urge that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t that all the contentions raised by the Petitioners stand answered against them by these decisions. The learned Additional Govt. Advocates submit that these Petitions were instituted before the decision of the Nine Member Constitution Bench in Jindal Stainless Limited (supra). After the Constitution Bench clarified the position, all these contentions now raised stand fully answered. 13. Indeed, these Petitions were instituted before the decision of the Constitution Bench in Jindal Stainless Limited (supra). Therefore, most of the raised contentions stand answered against the Petitioners in the Nine Member Constitution Bench decision in Jindal Stainless Limited (supra). 14. By majority, the Constitution Bench answered the reference, which was necessitated due to conflicting opinions, in the following terms. "11.59.1. Taxes simpliciter are not within the contemplation of Part XIII of the Constitution of India. The word 'Free' used in Article 301 does not mean "free from taxation". 11.59.2. Only such taxes as are discriminatory in nature are prohibited by Article 304(a). It follows that levy of a non-discriminatory tax would not constitute an infraction of Article 301. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 471/2007 and 417/2014. However, both these Petitions were disposed of by a separate judgment and order dated 24th April 2023. Accordingly, for the reasoning in the said judgment and order, the same questions now raised in these Petitions must be answered against the Petitioners. 17. The argument, based upon the local area and the consequent effect upon the legislative competence of the State, additionally stands answered by the decision of the Division Bench of this Court in Hindustan National Glass & Industries Limited (supra). The Division Bench, in paragraphs 62, 63, 64, 65, 66, 67, and 70, has dealt with this issue and answered the same against the Petitioners and favouring the State. The said paragraphs are now transcribed below for the convenience of reference : "62. It is contended by petitioners that Entry tax cannot be levied only on goods coming from outside State by defining the entire State as a local area. In support of the submission, Petitioner had relied upon the decisions in the case of Thressiamma L. Chiravil v. State of Kerala - (2007) 7 VST 293 (Ker), ITC Ltd. vs. State of Tamil Nadu - [2007] 7 VST 367 (Mad), Bharat Earth Movers Ltd -vs- State of Karnatak ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he same taxing period, and (4) for the same purpose". Octroi duty and entry tax are imposed by the different authorities and for entirely two different purposes. Former is for augmenting the resources of the local body and the latter is for compensating the loss of Revenue of the State on account of diversion of transaction of sale and purchase of vehicles to the neighbouring States or Union Territories due to difference in the rates of sales tax. Goods taxable are not the same, though some may be common, eg., vehicle brought in the local area after 15 months of its registration under the MV Act in areas outside the State. Thus, there is no taxation of the same goods twice by the same authority and/or for the same purpose and hence there is no "double taxation" 64. The Supreme Court, in the case of Shaktikumar Sancheti Vs. State of Maharashtra - (1995) 1 SCC 351, has observed that :- "Feeble attempt was made to submit that the tax being in addition to octroi realised by the local body it amounted to double taxation. The taxable event for entry tax is not same as octroi". 65. By way of amendment carried out in W.P. No. 1813 of 2013, the Petitioner has alleged that l ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The set off under rule 52 is available to prevent the cascading effect of multi point taxation scheme which stops at the stage of consumer. The final consumer is not entitled to any set-off and has to sustain the burden of tax ultimately. Therefore, where the importer is itself the ultimate consumer of the goods imported into the local area and is not using them to manufacture further goods for sale, there is no question of granting set off in respect of the goods purchased. An importer consumer cannot be compared with an importer manufacturer registered under MVAT Act and therefore eligible for set-off under Rule 52 of the MVAT Rules. Further the MVAT Act and Rules framed thereunder do not provide for any set off to a person who is the ultimate consumer not registered under the Act. The Petitioner in this case is a final consumer and hence he is not entitled for any set-off nor for exemption from payment of entry tax under Section 3(5) of the Entry Tax Act. These provisions are neither discriminatory nor unconstitutional inasmuch as the different class of importers under the Entry Tax Act that the Petitioner refers to is similar to the different class of purchasers recogni ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al dealers so far as burden of tax is concerned since in effect there is no entry tax at all when rebate or set off or ITC is granted for the same. Further as per the second proviso any local sales tax paid by the importer on the goods that are imported is also available for reduction from the entry tax payable under the Act. Thus the rebate is provided in second proviso of the Act that the tax payable by the importer under this Act shall be reduced by amount of tax paid, if any, under the law relating to General Sales Tax in force in the U.T. or the State in which the goods are purchased by the importer in effect takes care of the ground that the dealers who import goods are discriminated vis a vis the dealer who procure the goods from local sources." 18. The Division Bench has relied, inter alia, on the State of Kerala and ors. vs. Fr. William Fernandez and ors - (2021) 11 SCC 705, in which the contention based upon such legislations being beyond the legislative competence of the State under Entry 52, List II of the Seventh Schedule, was rejected. 19. Thus, having regard to the decision of the Constitution Bench in Jindal Stainless Ltd. (supra), Fr. William Fernandez and ors ( ..... X X X X Extracts X X X X X X X X Extracts X X X X
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