M/S M.P.Chini Industries Ltd vs The State Of Bihar And Ors
2021 Latest Caselaw 5310 Patna

         IN THE HIGH COURT OF JUDICATURE AT PATNA
                  Civil Writ Jurisdiction Case No.18625 of 2009
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M/S M.P.CHINI INDUSTRIES LTD. (Formerly known as M.P. Udyog Ltd.) a company registered under the Companies Act, 1956 having its Registered And Head Office At 117/K/13, Gutaiya, P.B. No. 69, Kanpur-208025 And It'S Sugar Factory At Majhaulia, P.O. Majhaulia - 845454 And District- West Champaran Bihar Through Its Executive Director Ravindra Nath Sharma S/O Sri Mahendra Nath Sharma

... ... Petitioner/s

Versus

1. The State of Bihar through its Special Secretary, Deptt. Of Law, Govt. Of Bihar

2. The Commissioner Of Commercial Taxes Cum Principal Secretary To Govt.

Finance Commercial Taxes Deptt., Govt. Of Bihar, New Secretariat, Vikas Bhawan, Bailey Road, Patna

3. The Deputy Commissioner Of Commerical Taxes Bettiah Circle, Bettiah West Champaran

4. The Assistant Commissioner Of Commercial Taxes Bettiah Circle, Bettiah West Champaran

... ... Respondent/s ====================================================== Appearance :

For the Petitioner/s : Mr.Ramesh Kumar Agrawal, Advocate For the Respondent/s : Mr. Vikash Kumar, SC 11 ====================================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE S. KUMAR ORAL JUDGMENT (Per: HONOURABLE THE CHIEF JUSTICE)

Date : 18-11-2021

The petitioner has prayed for the following relief(s):-

"(i) To declare the Bihar Tax on Entry of goods into local areas for consumption, use or sale therein (Amendment and Validation) Act, 2008 (Act No. 13 of 2008) dated 15.4.2008 (hereinafter referred to as 'the Amendment and Validation Act, 2008' only) as contained in Annexure-7 as ultra vires Articles 14, 19(I)(g), 246, 301 and 304 of the Constitution of India.

Patna High Court CWJC No.18625 of 2009 dt.18-11-2021

ii) To quash notification bearing No. S.O. 95 dated 31.07.2008 (Annexure-8) issued under Section 3(I) of the Bihar Tax on Entries of Goods into the Local Areas for consumption, use or sale therein Act, 1993, by which rates of entry tax have been fixed for the scheduled goods mentioned in 26 entries from 2% to 16% on their entry into a local area for consumption, use or sale therein for the purpose of development of trade, commerce and industries in the State of Bihar.

(iii) For issuance of an appropriate writ(s) or order(s) or direction(s) to the respondents for restraining them from making any demand of entry tax from the petitioner sugar mill on the purchases made by them.

(iv) For issuance of appropriate writ, order or direction for refund of the entire amount of entry tax recovered from the petitioner along with reasonable rate of interest.

(v) To any other relief or reliefs for which the petitioner is found entitled to in the facts and circumstances of the case."

In effect, the petitioner challenged the

Constitutional validity of different provisions of the Bihar Tax

on Entry of Goods into Local Area for Consumption, Use or

Sale Therein Act, 1993, as amended from time to time.

It is a matter of record that Hon'ble the Apex Court

vide judgment dated 14th of July, 2006 passed in Civil Appeal

No. 3453 of 2002, titled as M/s. JINDAL STAINLESS Ltd. &

ANR. Vs. STATE OF HARYANA AND ORS. had permitted

the parties, before the Supreme Court, to place within two

months additional material in the concerned writ petitions.

In most of the cases, such an additional material Patna High Court CWJC No.18625 of 2009 dt.18-11-2021

was not placed by the parties, perhaps for the reason that the

issue decided in terms of the said judgment was pending

consideration before a Larger Bench of Hon'ble the Apex Court.

Subsequently, a Constitution Bench (Nine Judges)

of the Hon'ble Apex Court in the case of JINDAL STAINLESS

LIMITED & ANOTHER VS. STATE OF HARYANA &

OTHERS, reported in (2017) 12 SCC 1, after examining the

correctness of the decision rendered in the case of Jindal

Stainless Ltd. (2) and another Vs. State of Haryana and

others, reported in (2006) 7 SCC 241 has observed as under:

"1159. By majority the Court answers the reference in the following terms:

1159.1. 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".

1159.2. 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.

1159.3. Clauses (a) and (b) of Article 304 have to be read disjunctively.

1159.4. A levy that violates Article 304(a) cannot be saved even if the procedure under Article 304(b) or Patna High Court CWJC No.18625 of 2009 dt.18-11-2021

the proviso thereunder is satisfied.

1159.5. The Compensatory Tax Theory evolved in Automobile Transport case and subsequently modified in Jindal's case has no juristic basis and is therefore rejected.

1159.6. The decisions of this Court in Atiabari, Automobile Transport and Jindal cases and all other judgments that follow these pronouncements are to the extent of such reliance overruled.

1159.7. A tax on entry of goods into a local area for use, sale or consumption therein is permissible although similar goods are not produced within the taxing State.

1159.8. Article 304 (a) frowns upon discrimination (of a hostile nature in the protectionist sense) and not on mere differentiation. Therefore, incentives, set- offs etc. granted to a specified class of dealers for a limited period of time in a non-hostile fashion with a view to developing economically backward areas would not violate Article 304(a). The question whether the levies in the present case indeed satisfy this test is left to be determined by the regular Benches hearing the matters.

1160. States are well within their right to design their fiscal legislations to ensure that the tax burden on goods imported from other States and goods Patna High Court CWJC No.18625 of 2009 dt.18-11-2021

produced within the State fall equally. Such measures if taken would not contravene Article 304(a) of the Constitution. The question whether the levies in the present case indeed satisfy this test is left to be determined by the regular Benches hearing the matters.

1161. The questions whether the entire State can be notified as a local area and whether entry tax can be levied on goods entering the landmass of India from another country are left open to be determined in appropriate proceedings."

Perhaps, the only surviving issue requiring

consideration by this Court is the one pointed out in Paragraph

1161, reproduced supra.

However, after the matter was heard for some time,

we find the record to be totally silent on facts or grounds with

regard thereto. No doubt, the issue is purely legal. But even the

relevant provisions of the Statute claimed to be ultra vires are

not on record and the reason is not far to seek for the petition

was filed way back in the year 2010 and the Legislation

amended/enforced subsequently. That apart, even during the

course of hearing we find absolute incoherence with regard

thereto.

As such, we are of the considered view that the Patna High Court CWJC No.18625 of 2009 dt.18-11-2021

petitioner files a fresh petition placing on record not only the

specific legislation or part thereof, Constitutional validity

whereof he wishes to challenge, as also specify the grounds, in

addition to the one reproduced supra.

This he is permitted to do so within a period of eight

weeks on the same and subsequent cause of action. As and when

such petition is filed, the same shall be considered for hearing

on priority basis.

Petition stands disposed of in the aforesaid terms.

Interlocutory Application, if any, shall stand

disposed of.

(Sanjay Karol, CJ)

( S. Kumar, J)

K.C.Jha/-

AFR/NAFR
CAV DATE
Uploading Date          24.11.2021
Transmission Date