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CASE NO.:

Appeal (civil) 1366-74 of 2001

PETITIONER:

M/s Widia (India) Ltd. & Others

RESPONDENT:

Vs.

The State of Karnataka & Others

DATE OF JUDGMENT: 21/08/2003

BENCH:

M.B. SHAH & AR. LAKSHMANAN.

JUDGMENT:

J U D G M E N T

WITH

CA Nos.1375-82, 2511-14, 2771, 3279, 3760-62, 4761-64, 5595,

7535 of 2001, CA Nos. 645-47, 1911, 2183-84, 2552, 2730,

4148-49, 5095, 5853-54, 8098-8100 of 2002.

Shah, J.

The levy of entry tax on goods by the State of Karnataka has

chequered history and the State had to face various litigations on this

score. The constitutional validity of Karnataka Tax on Entry of

Goods into Local Areas for Consumption, Use or Sale Therein Act,

1979 (hereinafter referred to as 'the Act') and the notifications issued

by the State Government in exercise of its powers conferred by

Section 3 of the said Act were challenged before the High Court by

filing writ petitions under Article 226 of the Constitution. The Act

and the notifications issued thereunder were declared unconstitutional

and mandamus was issued directing the State Government and its

officers to forebear from enforcing the provisions of the Act. Against

that judgment and order, the State Government preferred appeal

before this Court. This Court in State of Karnataka and another v.

M/s Hansa Corporation [(1980) 4 SCC 697] set aside the order

passed by the High Court striking down the Act.

The Court negatived the contention that Section 3 of the Act

was vague. The Court also held that it was settled law that if the tax is

compensatory in character, it would be immune from challenge under

Article 301 of Constitution of India; if on the other hand, the tax is not

shown to be compensatory in character, it would be necessary for the

party seeking to sustain the validity of the tax law to show that the

requirements of Article 304 have been satisfied. The Court also held

that the levy of tax by the notification at the relevant time was not

discriminatory in character as envisaged by Article 304(a) and it does

not impose restrictions. The Court further held that the restrictions

imposed are reasonable and in public interest and the Act

subsequently having received the assent of the President, proviso to

Article 304(b) is complied with and, therefore, the Act was saved by

Article 304 and could not be struck down on the ground of its being

violative of Article 301.

The title of the aforesaid Act was amended in 1992 and it was

named as 'The Karnataka Tax on Entry of Goods Act, 1979'. Section

3 of the Act empowers the State Government to levy tax by issuing

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notification on the entry of any goods specified in the Schedule into a

local area for consumption, use or sale therein. At present, Sub-

section (1) of Section 3 reads as under:â\200\224

"3. Levy of Tax.â\200\224(1) There shall be levied

and collected a tax on entry of any goods specified in the

First Schedule into a local area for consumption, use or

sale therein, at such rates not exceeding five per cent of

the value of the goods as may be specified

"retrospectively or prospectively" by the State

Government by Notification, and different dates and

different rates may be specified in respect of different

goods or different classes of goods or different local

areas."

The controversy in these appeals centers round the addition of

the word 'retrospectively'. Section 3 was amended by amending Act

No.8 of 1993, namely, the Karnataka Tax on Entry of Goods (Second

Amendment) Act, 1992, whereby for the words "by the State

Government, by notification from time to time", the words

"retrospectively or prospectively by the State Government by

notification and different dates" were substituted. The amending Act

was passed by the State legislature after obtaining the assent of the

Governor on 11th February, 1993 but the assent of the President was

not obtained and that is the only surviving challenge in these appeals.

Thereafter, Karnataka Act No.45 of 1994, namely, the

Karnataka Tax on Entry of Goods (Amendment) Act, 1994 was

enacted after obtaining the assent of the President on 19.10.1994.

Again, the said Act was amended by Karnataka Act No.3 of 1995,

namely, the Karnataka Tax on Entry of Goods (Amendment) Act,

1992 after obtaining the assent of the President on 6.9.1994.

The Government of Karnataka in exercise of its power under

Section 3(1) of the Act brought out notification dated 30.3.1994,

which came into effect on Ist April, 1994, levying tax on the entry of

goods brought into a local area from any place outside the State for

consumption and use therein, at the rate of taxes as specified against

the goods stipulated in the table appended thereto.

Several assessees filed writ petitions challenging the said

notification. Pending writ petitions, Government of Karnataka in

exercise of its power under Section 3(1) of the Act read with Section

21 of the Mysore General Clauses Act, 1899, by issuing Notification

No.FD-109-CET-97(8) dated 31st March, 1997, amended the

notification dated March 30, 1994 by substituting for the words "from

any place outside the State for consumption or use", the words "where

such entry is for consumption or use of such goods and where such

goods have not suffered tax under the Karnataka Sales Tax Act, 1957"

with effect from Ist April, 1994.

The said notification was also challenged by filing interlocutory

applications in pending writ petitions. Thereafter, the Division Bench

of the High Court, by its judgment dated 4th August, 1997 in Avinyl

Polymers Pvt. Ltd. etc. v. The State of Karnataka and others [(1998)

109 STC 26] quashed both the notifications, namely, notification

dated 30th March, 1994 and notification dated 31st March, 1997. The

High Court arrived at the conclusion that the levy of tax on entry of

goods was compensatory in nature and not restrictive requiring any

previous sanction or assent of the President of India and, therefore, the

said Act cannot be held to be illegal for want of President's assent.

However, the Court arrived at the conclusion that the notifications

were discriminatory for the reasons recorded therein and it was also

held that the authority exceeded its powers conferred under Section

3(1) of the Act and, therefore, the said notifications were ultra vires.

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The said judgment and order was challenged before this Court

and the Court finally passed the following order:â\200\224

"C.A. No.3958 of 1998 and Nos.1819-1848 of

2000 be delinked and listed separately.

Leave granted in S.L.P. (C) No.134 of 1998.

Counsel for the parties agree that the appeals filed

by the State of Karnataka have become infructuous.

These appeals arise out of judgment of the Karnataka

High Court before whom the respondents had challenged

the notification dated March 30, 1994 and the

amendment made on March 31, 1997 pertaining to entry

tax. The said notification was quashed but while

quashing the same the High Court had accepted the

contention of the State of Karnataka that the entry tax

was compensatory in nature.

We are now informed that the aforesaid

notifications on March 30, 1994 and March 31, 1997

have been superseded by notification dated January 7,

1998 and notification on September 23, 1998, which are

retrospective in character. The later notifications are

subject-matter of challenge before the Karnataka High

Court. As far as the State of Karnataka is concerned, it is

not seeking to realise any tax under the earlier

notification dated March, 30, 1994 and March 31, 1997.

This being so, the appeals filed by the State of Karnataka

have become academic and nothing more survives.

As far as the appeals filed by the respondents are

concerned, the same relate to the finding of the High

Court to the effect that the entry tax was compensatory in

nature. Learned Advocate-General agrees that without

going into the merits this finding may be set aside and the

High Court will be at liberty to go into this question

afresh while deciding the writ petition which have been

filed challenging the subsequent notifications.

Ordered accordingly. The High Court while

deciding the fresh writ petitions will not be bound by its

earlier decision. The appeals are disposed of. No order

as to costs."

As this Court had declined to stay the operation of the judgment

rendered by the Division Bench of the High Court in Avinyl

Polymers's case, the Government of Karnataka issued notification

dated January 7, 1998 which provided rate of tax on entry of goods

into a local area for consumption, use or sale therein. The notification

was brought in consonance with the judgment rendered by the High

Court and it remained in force from January 7, 1998 to March 31,

1998. On March 31, 1998, another notification was issued providing

levy of tax on entry of goods into local area for consumption, use or

sale therein. This notification was prospective in operation.

Thereafter, on 23rd September, 1998, Government of Karnataka

brought out another notification, which was effective for the period

from April 1, 1994 up to January 6, 1998 by prescribing different rates

of taxes for goods enumerated in the table appended to the notification

purporting to levy tax on entry of goods brought into a local area from

outside for consumption, use or sale therein.

Again, various writ petitions were filed before the High Court

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challenging the said notifications, which were dismissed by the Single

Judge by holding as under:â\200\224

1. The provisions of Section 3(1) of the Act are not

ultra vires of the Constitution of India on the

ground that no guidelines for prescribing rate of

tax has been given and the provisions are

compensatory in nature and does not require the

assent of the President of India.

2. Notifications dated 31.3.1998 and 7.1.1998 are

valid piece of legislation.

3. Notification dated 23.9.1998 has not been issued

under Section 4B of the Act, but has been issued

under Section 3(1) and as such retrospective effect

could have been given.

4. Notification dated 23.9.1998 cannot be considered

to be invalid on the ground that it was not in force

on the date of issue and was made applicable for

past transactions only.

5. Notification dated 23.9.1998 is a valid piece of

legislation. It is however declared that tax shall

not be levied or collected for the period from

1.4.1994 to 6.1.1998 for entry of goods in local

area when the goods are brought from other areas

of the State of Karnataka and also when the goods

have been imported from outside the State of

Karnataka and are meant for sale.

6. Entry 2-A by Notification dated 9.11.1998

prescribing rate of tax at 8% from 1.4.1995 is ultra

vires the power of Section 3(1) of the Act.

7. In cases where assessments were already framed,

the assessees would be free to file appeals within

four weeks and where notice alone has been

issued, they may submit objections within the

aforesaid period.

The State had not preferred any appeal against the aforesaid

judgment and order.

However, the appellants (dealers) filed appeals before the

Division Bench of the High Court. The High Court, by judgment and

order dated 18th October, 2000, dismissed the Writ Appeal Nos.1717-

21, 8191-93 of 1999 and other appeals involving similar question.

Those judgments and orders are challenged by filing these

appeals.

For the levy of entry tax, the High Court held that:â\200\224

17. The State of Karnataka came into being on

1.11.1956 pursuant to the reorganizations of the

State of India. Municipal laws prevailing in

different areas of the new State provided for

imposition of tax called octroi. With effect from

1.4.1965 uniform taxation on various items under

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the Municipalities Act was brought into force.

18. Considerable debate is going on in the country

regarding the justification of charging the octroi by

the municipal committees. The octroi was being

criticized as Archaic and Obnoxious impeding the

free flow of trade creating bottlenecks. State of

Karnataka was the first State to abolish octroi with

effect from 1.4.1979. In order to compensate the

loss, Karnataka Tax on Entry of Goods into Local

Areas for Consumption, Use or Sale therein Act,

1979 was passed. The Act was enacted under the

legislative powers derived from Article 246 of the

Constitution of India read with Entry 52 List II of

the 7th Schedule of the Constitution. It received

the assent of the President of India on 27.5.1979.

Originally the tax was levied on three items,

namely textiles, tobacco and its products and

sugar. Subsequently, there has been changes and

the position as now stands is that tax could be

levied on any items specified in the first schedule

from items 1 to 103. Item No.103 is a residuary

clause and confers power on the State Government

to levy tax on:

"Goods other than those specified in any

entries in this schedule, but excluding those

specified in the second schedule."

Further, in the High Court, the appellants did not challenge (a)

the notification levying the tax w.e.f. 7th January, 1998 (paragraph

12); and (b) the nature of the tax being compensatory or regulatory

(paragraph 20).

Instead, it was contended that Act No.8 of 1993 which

introduces the words "retrospectively or prospectively by the State

Government by notification on different dates" is neither reasonable

nor in public interest and in any event if the said restriction could be

said to be reasonable and in public interest, the same is

unconstitutional and void as assent of the President was not obtained

before enacting the same.

Dealing with this contention, the High Court relied upon its

earlier decision in Avinyl Polymers's case (supra) as well as the

decision rendered by this Court in Venkata Rao Esajirao Limbekar

and others v. The State of Bombay and others [(1969) 2 SCC 81],

wherein the Court held thus:â\200\224

"â\200¦ We would, however, like to observe that, as

noticed before, when Hyderabad Amending Act III of

1954 was enacted the assent of the President was duly

obtained. Similarly when Bombay Act XXXII of 1958

which was meant for amending Hyderabad Act XXI of

1950 was enacted the assent of the President had been

given. If the assent of the President had been accorded to

the amending Acts, it would be difficult to hold that the

President had never assented to the parent Act, namely,

Hyderabad Act XXI of 1950. Even if such assent had not

been accorded earlier it must be taken to have been

granted when amending Act III of 1954 was assented to."

The Court, thereafter, arrived at the conclusion that the assent

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of President of India would be deemed to have been given to the Act 8

of 1993 when assent to the subsequent Acts No.45 of 1994 and 3 of

1993 was given.

SUBMISSIONS:â\200\224

In these appeals, challenge is confined to the notification dated

23rd September, 1998, which was issued by the State Government in

exercise of powers conferred by sub-section (1) of Section 3 of the

Act providing that w.e.f. Ist Day of April, 1994 and up to 6th day of

January, 1998 tax shall be levied and collected on the entry of goods,

specified in Column (2) of the table, into a local area for consumption

or use or sale therein at the rate specified.

The learned counsel for the appellants submitted that for levy of

tax on the entry of goods on the basis of notification dated 7th January,

1998 which empowers the authority to collect tax prospectively, the

appellants have no grievance. However, the notification dated 23rd

September, 1998 empowering the authority to levy and collect tax

from 1st April, 1994 up to 6th January, 1998 without prior sanction of

the President is illegal and void and requires to be set aside. Further,

there was no notification levying tax on entry of goods for a period

from 1.4.1994 to 6.1.1998 as the previous notifications were held to

be illegal and void. It is submitted that the notification dated 23rd

September, 1998 is in pith and substance validating notification. It is

also submitted that for the hiatus period from 4.8.1997 to 6.1.1998,

there was no notification levying the entry tax. Such power could not

be exercised by the delegated authority, namely, the State

Government. Hence, the notification dated 23rd September, 1998

cannot be justified.

It is also submitted that the State cannot justify the validity of

amending Act No.8 of 1993 on the ground that since the subsequent

amendments have received the President's assent, the impugned

amendment is deemed to have received the President's assent, as it is

against the law laid down by this Court in Kaiser-I-Hind Pvt. Ltd.

and Anr. v. National Textile Corporation (Maharashtra North) Ltd.

and Ors. [(2002) 8 SCC 182] and Gram Panchayat of Village

Jamalpur v. Malwinder Singh and others [(1985) 3 SCC 661]. It is

contended that there was no proposal before the President to provide

for levy of tax on entry of goods with retrospective effect when assent

was given to Act No.45 of 1994.

Lastly, it is contended that most of the appellants in the appeals

fall within the limit of industrial area as declared under Section 3 of

the Karnataka Industrial Areas Development Act, 1966. Hence, they

would not be covered by the definition provided under Section

2(A)(5) of the Act, which defines 'local area' to mean:â\200\224

" 'Local Area' means an area within the limits of a

city under the Karnataka Municipal Corporation Act,

1976 (Karnataka Act 14 of 1977) a municipality under

the Karnataka Municipality Act, 1964 (Karnataka Act 22

of 1964) a notified area committee, a town board, a

sanitary board or a cantonment Board constituted or

continued under any law for the time being in force and a

Mandal under the Karnataka Zila Parishads, Taluk

Panchayat Samithis, Mandal Panchayat and Nyaya

Panchayats Act, 1983 (Karnataka Act 20 of 1985) and

Panchayat Area under the Karnataka Panchayat Raj Act,

1993 (Karnataka Act 14 of 1993)."

The learned counsel for the respondents justified the impugned

judgment for the reasons recorded therein. It is their submission that

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retrospective effect is given after removing the defects pointed out by

the High Court in Avinyl Polymers's case (supra) and to validate the

levy of entry tax.

FINDINGS:â\200\224

Before dealing with the rival contentions, we would first refer

to Articles 301 and 304 which are as under:â\200\224

"301. Freedom of trade, commerce and intercourse.â\200\224

Subject to the other provisions of this Part, trade,

commerce and intercourse throughout the territory of

India shall be free.

304. Restrictions on trade, commerce and

intercourse among States.â\200\224 Notwithstanding anything

in article 301 or article 303, the Legislature of a State

may by lawâ\200\224

(a) impose on goods imported from other States or

the Union territories any tax to which similar

goods manufactured or produced in that State are

subject, so, however, as not to discriminate

between goods so imported and goods so

manufactured or produced; and

(b) impose such reasonable restrictions on the

freedom of trade, commerce or intercourse with or

within the State as may be required in the public

interest.

Provided that no Bill or amendment for the

purposes of clause (b) shall be introduced or moved in

the Legislature of a State without the previous sanction of

the President."

Article 301 provides for free trade, commerce and intercourse

throughout the territory of India. To this, two fold exceptions are

carved out in Article 304 by providing that:â\200\224

(1) State may by law levy tax on the goods imported

from other States. However, such levy should be

similar to the tax levied on similar goods

manufactured or produced in the State so as not to

discriminate between the goods imported and

goods manufactured or produced in the State.

Hence, levy of tax normally by the State

legislature per se would not be, in any way,

violative of Article 301.

(2) Further, Article 304(b) empowers the State

legislature to impose reasonable restrictions on

freedom of trade, commerce or intercourse with or

within the State as may be required in the public

interest.

For such restrictions to be valid, the State

must obtain previous sanction of the President

before introduction of the bill in the legislature of

State.

On this aspect, it would be worthwhile to refer to the decision

in Rattan Lal & Co. v. Assessing Authority (1969) 2 SCR 544]

wherein the Court held that where the general rate applicable to the

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goods locally made and on those imported from other States is the

same nothing more normally and generally is to be shown by the State

to dispel the argument of discrimination under Article 304(a), even

though the resultant tax amount on imported goods may be different.

The aforesaid decision was referred to and relied upon in Video

Electronics Pvt. Ltd. and another v. State of Punjab and another

[(1990) 3 SCC 87]. In that case, the Court also referred to the

decision in Kalyani Stores v. State of Orissa [(1966) 1 SCR 865]

wherein it was observed that the restriction on the freedom of trade,

commerce and intercourse throughout the territory of India declared

by Article 301 cannot be justified unless it falls within Article 304.

Exercise of power under Article 304(a) can be effective only if the tax

or duty on goods imported from other States and the tax or duty

imposed on similar goods manufactured or produced in that State is

such that there is no discrimination. The Court also referred to the

observations of Hidayatullah, J. that Article 304(a) imposes no ban

but lifts the ban imposed by Articles 301 and 303 subject to one

condition. That article is enabling and prospective. The Court (in

para 22) further held:â\200\224

"â\200¦ It is manifest that free flow of trade between

two States does not necessarily or generally depend upon

the rate of tax alone. Many factors including the cost of

goods play an important role in the movement of goods

from one State to another. Hence the mere fact that

there is a difference in the rate of tax on goods locally

manufactured and those imported would not amount to

hampering of trade between the two States within the

meaning of Article 301 of the Constitution. As is

manifest, Article 304 is an exception of Article 301 of the

Constitution. The need of taking resort to the exception

will arise only if the tax impugned is hit by Articles 301

and 303 of the Constitution. If it is not then Article 304

of the Constitution will not come into picture at allâ\200¦"

In V. Guruviah Naidu & Sons v. State of Tamil Nadu [(1977)

1 SCC 234], this Court held that Article 304(a) does not prevent levy

of tax on goods; what it prohibits is such levy of tax on goods as

would result in discrimination between goods imported from other

States and similar goods manufactured or produced within the State.

The object is to prevent discrimination against imported goods by

imposing tax on such goods at a rate higher than that borne by local

goods since the difference between the two rates would constitute a

tariff wall or fiscal barrier and thus impede the free flow of inter-State

trade and commerce. The Court also held that it is for the petitioner

challenging levy of tax to establish that such tax is discriminatory.

Further, for the tax to become a prohibited tax it has to be a

direct tax the effect of which is to hinder the movement part of trade.

So long as a tax remains compensatory it cannot operate as a

hindrance. {Re: Sharma Transport v. Government of A.P. and others

[(2002) 2 SCC 188]}

In these appeals, no contention is raised to the effect that levy

of tax on goods by the impugned notification discriminates between

the goods imported from other States and similar goods manufactured

or produced within the State. Hence, it would be difficult to accept

the contention that the sanction of the President was required to be

obtained before amending and enacting Act No.8 of 1993 whereby for

the words "by the State Government, by notification from time to

time", the words "retrospectively or prospectively by the State

Government by notification and different dates" were substituted.

Addition of words 'retrospectively or prospectively' in Section 3(1)

would not make the Section restrictive which can be hit by Article 301

of the Constitution nor the said part of the legislation could be held to

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be discriminatory. To clarify the situation, it can be stated that a

subsequent notification issued in exercise of the powers conferred

under the said Section may in some case amount to restriction to free

trade and commerce but simplicitor addition of the words

'retrospectively or prospectively' would not require sanction of the

President as contemplated under Article 304 (b). Hence, the

contention that amending Act No.8 of 1993, by which the words

'retrospectively or prospectively' are added, requires sanction of the

President, is without any substance.

Further, once it is conceded that imposition of tax was

compensatory or regulatory in nature, there is no question of obtaining

the assent of the President under Article 304(b) of the Constitution.

For the Act in question, this question is dealt with and made clear by this court

in M/s. Hansa Corporation (supra) and thereafter in repeated

judgments including State of Himachal Pradesh and others v. Yash

Pal Garg (Dead) By LRs and others [JT 2003 (4) SC 413] wherein it

is held that so long as the tax remains compensatory or regulatory, it

cannot operate as hindrance. The Court also held:â\200\224

(a) A demand for tax from the traders in common with

others is not a restriction on the right to carry on

trade, commerce and intercourse.

(b) Such tax would not come within the purview of the

restrictions contemplated under Article 301 unless

it is established that in reality, it hampers or

burdens the trade and commerce.

(c) So long as the tax remains compensatory or

regulatory, it cannot operate as a hindrance.

(d) If a State tax law accords identical treatment in the

matter of levy and collection of tax on the goods

manufactured within the State and identical goods

imported from outside the State, Article 304(a)

would be complied with. There is an underlying

assumption in Article 304(a) that such a tax when

levied within the constraints of Article 304(a)

would not be violative of Article 301 and State

legislature has the power to levy such tax.

In view of this settled law, once it is held that the tax levied by

the State Government was compensatory in nature, there is no

question of obtaining sanction of the President under proviso to

Article 304. In this view of the matter, the decision rendered by this

Court in Kaiser-I-Hind Pvt. Ltd.'s case (supra) has no bearing in the

present case.

It is true that normally tax would not be levied with

retrospective effect but at the same time to validate the tax which was

levied, after removing the defects pointed out by the previous

decision, the State Government could exercise its powers under

Section 3(1) of the Act and it cannot be said that it has acted beyond

its jurisdiction. Therefore, it cannot be held that notification dated

23rd September, 1998 empowering the authority to levy and collect tax

w.e.f. 1.4.1994 to 6.1.1998 is, in any way, illegal or erroneous. The

defects pointed out in Avinyl Polymers's case (supra) are removed

and, therefore, it cannot be said that the notification dated 23.9.1998

is, in any way, illegal. In a situation like present one where

notifications levying tax were held to be illegal, for validating such

levy, the State Government has issued the aforesaid notification. It is

not pointed out that the said notification is discriminatory between the

goods imported from other States and similarly goods manufactured

or produced within the State.

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Last contention only requires to be narrated for being rejected,

as it cannot be disputed that the 'industrial area' is either within the

area of Municipal Corporation or within the area of municipal limits

or Panchayat limits. The establishment of industrial areas is for

limited purpose and Section 3 of the Karnataka Industrial Areas

Development Act, 1966 specifically provides that the State

Government may by notification declare any area to be an industrial

area for the purposes of the said Act. But, it is nowhere provided that

the said area would cease to be part and parcel of either municipal

corporation or the area of municipality or panchayat. Therefore, the

High Court rightly rejected this contention.

In the result, the appeals are dismissed. In each appeal,

appellants to pay costs of Rs.10,000/-.

SLP (C) Nos. 112-13 of 2002, SLP (C) __________ @ CC Nos.

3488-90 of 2003 and SLP (C ) No.8223-24 of 2003.

Special Leave Petitions ______ @ CC Nos.3488-90 of 2003 are

dismissed on the ground of delay.

For the foregoing reasons, Special Leave Petitions are also

dismissed.