Orissa High Court
Bharath Coal Chemicals Ltd vs State Of Odisha & Others on 7 August, 2023
IN THE HIGH COURT OF ORISSA AT CUTTACK
W.P.(C) No.15698 of 2013
Bharath Coal Chemicals Ltd. ..... Petitioner
(BCCL)
Mr. Sumit Lal, Advocate
Vs.
State of Odisha & Others ..... Opposite Parties
Mr. Diganta Dash, A.S.C.
for the Revenue
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE MURAHARI SRI RAMAN
ORDER
07.08.2023
Order No. This matter is taken up through hybrid mode.
05.
2. Heard Mr. Sumit Lal, learned counsel appearing for the
petitioner and Mr. Diganta Dash, learned Additional Standing
Counsel appearing for the Revenue.
3. The writ petition has been filed with the following prayer:-
"It is, therefore, prayed that this Hon'ble Court may be
graciously pleased to issue Writ/ Directions/
Declaration/ Orders under Article 226 of the
Constitution of India and more particularly to issue:
1. Rule nisi calling upon the Opposite Parties to show
cause as to why the prayers made hereunder shall
not be allowed;
2. Declaration declaring that the plant and machinery
brought by the petitioner from outside the borders of
Union of India and in the course of import entering
into local area of Paradeep or reaching Paradeep
after entering in the Port at Haldia in West Bengal
shall not be subject to levy of Orissa Entry Tax and
that the Opposite Parties shall not collect/realize
Entry Tax thereon and the entry tax already realized
from the Petitioner is contrary to law and the same is
liable to refunded to the Petitioner with interests;
3. Declaration that the Opposite Parties do not have
jurisdiction to levy and collect Orissa Entry Tax
under the Orissa Entry Tax Act, 1999 for the tax
period 12/2010 to 6/2011 in the Notice u/s 7(5) of the
OET Act on the goods brought from outside the
Union of India in the course of import through
different ports i.e. Haldia and Paradeep.
4. Writ of certiorari quashing the Notice dated
22.06.2013 vide Annexure-2 of the Opposite Party
No.3 issued u/s.7(5) for the tax period 12/2010 to
6/2011 demanding a sum of Rs.4,67,36,300.00 and
writ of mandamus directing refund of the entry tax
already deposited for the said assessment years to
the tune of Rs.1,44,50,121 under threat and coercion
with interest.
5. Interim order restraining the Opposite Parties from
collecting Entry Tax from the Petitioner on the Plant
and machineries already brought from outside the
Country and in the course of being imported into the
State of Orissa from Haldia in the course of import
during pendency of the Writ Petition;"
4. Mr. Diganta Dash, learned Additional Standing Counsel
appearing for the Revenue contended that in a similar matter in
W.P.(C) No.12049 of 2013 he has filed Misc. Case No.4959 of
2018, wherein at para-3 it has been averred as follows:-
"3. That the validity of levy of entry tax on goods
imported from outside the territory of India has been
upheld by the Hon'ble Apex Court in the order
dt.09.10.17 in State of Kerala & Others vs. FR. William
Fernandez Etc. Etc. in C.A. Nos.3381-3400 of 1998. The
Hon'ble Court in paragraph 144 of the said order
dt.09.10.17 had arrived 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 local area for consumption, use
or sale.
(ii) All the Entry Tax Legislations questioned in these
appeals are legislations which are within the legislative
competence of the State legislatures and do not intrude
the legislative domain of Parliament as reserved in Entry
41 and Entry 83 of List I.
(iii) The import of goods from any territory outside
India comes to an end when the goods enter into the
custom frontiers of India & are released for home
consumption.
(iv) After import of goods comes to an end the State
Legislature has full legislative competence to levy entry
tax under Entry 52 List II.
(v) The original Package Theory as developed by the
American Supreme Court in case of Brown vs. State of
Maryland (supra) is not applicable in this country & the
imported goods are not exempted from entry tax till it
reaches to the factory premises/ destination of its
consumption, use or sale.
(vi) Non inclusion of custom duty in the definition of
purchase value in the Statute of entry tax is not an
indicator of the fact that legislature never intended to
levy entry tax on imported goods.
(vii) Entry Tax legislation are fully covered by Entry 52
List II & the submission that essence of Entry 52 is octroi
which can be levied only by local authorities & State has
no legislative competence to impose entry tax under Entry
52 List II is fallacious."
5. Mr. Sumit Lal, learned counsel appearing for the petitioner
as well as Mr. Diganta Dash, learned Additional Standing Counsel
appearing for the Revenue contended that in view of the law
decided by the Apex Court in State of Keral & Others vs. FR.
William Fernandez Etc. Etc., 2017 SCC OnLine SC 1291= (2018)
57 GSTR 6 (SC); Jindal Stainless Ltd. Vrs. State of Haryana,
(2016) 11 SCALE 1 and Order dated 28.03.2017 in State of
Odisha vrs. Reliance Industries Ltd., CA Nos.6474-6798 of 2017,
this matter may be disposed of accordingly.
6. Having heard the learned counsel for the parties and after
going through the record, this writ petition stands disposed of in
terms of judgments and order as referred to above.
(DR. B.R. SARANGI)
JUDGE
(M.S. RAMAN)
JUDGE
MRS
Signature Not Verified
Digitally Signed
Signed by: MANORANJAN SAMAL
Designation: PERSONAL ASSISTANT
Reason: Authentication
Location: Orissa High Court, Cuttack
Date: 07-Aug-2023 17:34:19
