M-S. WIDIA (INDIA) LTD. AND ORS. v. THE STATE OF KARNATAKA AND ORS

Citation: [2003] SUPP. 2 S.C.R. 822

Court: Supreme Court of India

Bench: M.B. SHAH, AR. LAKSHMANAN

Judgment text

M/S. WIDIA (INDIA) LTD. AND ORS. v. THE STATE OF KARNATAKA AND ORS. AU(JUST 21, 2003 [M. B. SHAH AND DR. AR. LAKSHMANAN, JJ. ] Karnataka Tax on Entry of Goods Ayt, I979 (as amended): Section 3-Amendment ofsection 3 of I979 Act by Act No. 8 of 1993 empowering imposition oftax on entry ofgoods retrospectively or prospectively by State Government by notification on different dates-However sanction of the President not obtained-Constitutional validity of-Held: levy of tax retrospectively or prospectively in section 3(1) would not make the section restrictive which can be hit by Article 301 requiring sanction of President under Article 304(b)-However subsequent notification issued may in some cases amount to restriction to free trade and commerce-Furthermore, once it is conceded that the imposition of tax is compensatory or regulatory in nature, sanction of the President under Article 304(b) is not required- Constitution of India, I950-Articles 301 and 304(b) proviso.

Section 3(/)-Notification of 23. 9. 1998 empowering the authority to levy and collect tax from 1. 4. 1994 to 6. 1. 1998 after removing the defects pointed out in previous notifications of 30. 3. 1994 and 31. 3. 1997- Constitutional validity of-Held: Normally State Government in exercise of its powers under Section 3(1) would not levy tax with retrospective effect but it can do the same to validate the tax levied earlier by removing the defects pointed out by the previous decision and it cannot be said that it has acted beyond its jurisdiction. Section 2(A)(5)-Karnataka Industrial Areas Development Act, 1966- Section 3-. lndustrial area declared under Section 3-Whether covered under local area under Section 2(A)(5)--Held: Such area does not cease to be part of municipal corporation'or area of municipality or panchayat-:- Hence covered by the definition of 'local area' under Section 2(A)(5) of the Act.

The constitutional validity of the Karnataka Tax on Entry ofGoods into Local Areas for Consumption, Use or Sale Therein Act, 1979 and also the WIDIA(INDIA) LTD. v. STATE 823 notifications issued under Section 3 of the Act were challenged. This Court in Hansa Corporation's case held that the Act having received the assent of the President was saved by Article 304 and could not be struck down on the ground of being violative of Article 301. Later on the Act was amended and ... named as Karnataka Tax on Entry of Goods Act, 1979. Section 3 of the Act empowered the State Government to levy entry tax on goods by issuing notification. Section 3 was amended by Act No. 8of1993 whereby for words 'by the State Government by notification from time to time', words 'retrospectively or prospectively by the State Government tiy notification and different dates' were substituted. Governor's assent was obtained but not the assent of the President. Thereafter Act No.

45 of 1994 was enacted after obtaining assent of the President and also Act No. 3 of 1995. Government ofKarnataka issued a notification levying tax on the entry of goods brought into local area from any place outside the State for consumption and use therein. The notification was challenged and during pendency of the writ petitions, the said notification was amended and 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 such goods have not suffered tax under the Karnataka Sales Tax Act, 1957' was substituted. This notification was also challenged. High Court held that the levy oftax on entry ofgoods was compensatory in nature and not restrictive requiring any previous sanction or assent of the President and hence not illegal for want of assent; and that the notifications were discriminatory and ultra vires. Thereafter, appeals were filed.

Since the above notifications were already superseded by notifications of7. l. 1998 and 23. 9. 1998 which were retrospective in character, State's appeal became infructuous. In the other appeal this Court set aside the High Court's order that the entry tax was p compensatory in nature and granted liberty to the High Court to examine the question afresh while deciding the writ petition filed challenging the subsequent notifications. The subsequent notification of7. 1. 1998 provided rate of tax on entry of goods into a local area for consumption, use or sale therein which was brought in consonance with the judgment of High Court and remained in force from 7. 1. 1998 to 31. 3. 1998. On 31. 3. 1998 another notification was issued providing levy oftax on entry ofgoods into local area for consumption, use or sale therein being prospective in operation. Notification of 23. 9. 1998 prescribed different rates of taxes for goods enumerated in the table which was effective for the period from 1.

4. 1994 to 6. 1. 1998. These notifications were challenged. Single Judge of High Court dismissed the petition~, Appellant-dealers filed appeals. They contended that Act No. 8of1993 was unconstitutional and void as the assent of the President was not obtained before enacting the same. High Court held that assent would be deemed to be given to Act of 1993 when assent was given to the subsequent Act of 1994 and of 1995. Hence the present appeals. Appellants contended that amending Act No. 8of1993 by which words 'retrospectively or prospectively' are added requires sanction of the President as contemplated under Article 304(b); that the notification of 23. 9. 1998 empowering the authority to levy and collect tax from 1. 4. 1994 upto 6. 1. 1998 without prior sanction of the President is illegal and void; that there was no notification levying tax on entry of goods for a period from l. 4. 1994 to 6. 1.

1998 as the previous notifications' were held to be illegal and void; that such power could not be exercised by the delegated authority, namely, the State Government; and that most ofthe appellants in the appeals fall within the limit of industrial area as declared under Section 3 of the Karnataka Industrial Areas Development Act, 1966 and would not be covered by the definition of 'local area' provided under Section 2(A)(5) of the Act. Respondent contended that the retrospective effect is given after removing the defects pointed out by the High Court and to validate the levy of entry tax. Dismissing the appeals, the Court HELD: 1. Itcannot be said that the sanction of the President was required to be obtained before amending section 3 of the Karnataka Tax on Entry of Goods Act, 1979 by the amending Act No.

8of1993, 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 as it was not contended 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. 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 be discriminatory. 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 WIDIA (INDIA) LTD. v. STATE 825 or prospectively' would not require sanction of the President as contemplated under Article 304(b).

Furthermore, once it is conceded that the imposition tax was compensatory or regulatory in nature, there is no question ofobtaining sanction of the President under proviso to Article 304(b) of the Constitution. (836-D-G( State of Karna/aka and another v. Mis. Hansa Corporation (1980( 4 SCC 697; State ofHimachal Pradesh and Ors. v. Yash Pal Garg (dead) by Lrs. and Ors. JT (2003) 4 SC 413, referred to. Kaiser-I-Hind Pvt. Ltd. and Anr. v. National Textile Corporation (Maharashtra North) Ltd. and Ors. (2002( 8 SCC 182, di~tinguished. 2. 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. In the instant case, the notifications levying ...

tax were held to be illegal, and for validating such levy, the State Government has issued the aforesaid notification. It removed the defects pointed out by the High Court and therefore, it cannot be held that notification of 23. 9. 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. Furthermore it is not pointed out that the said notification is discriminatory between the goods imported from other States and similar goods manufactured or produced within the State. (837-F-H; 838-A( Rattan Lal & Co. v. Assessing Authority (1969) 2 SCR 544; Video Electronics Pvt. Ltd. and Anr. v. State ofPunjab and Anr. (1990) 3 SCC 87; V. Guruviah Naidu andSons v. State ofTamil Nadu [1977( l SCC 234; Sharma Transport v. Government of A. P. and Ors. (2002( 2 SCC 188 and Avinyl Polymers Pvt. Ltd. etc. v. The State ofKarnataka and Ors. , (1998) 109 STC 26, referred to. 2.

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 Sect. ion 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 ofeither municipal corporation or the area of municipality or panchayat. Therefore, it cannot be said that as the appellants fall within the limit ofindustrial area under the section, they would not be covered by the definition of 'local area' under Section 2(A)(5) of the Act. (838-A, B; 833-El CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1366-74 of200 I. From the Judgment and Order dated 18. 10. 2000 ofthe Kamtaka High Court in W. A. Nos.

1819/99, 1160, 1161, 1746, 1291, 1290 13,14 and 2655 of 2000. WITH C. A. Nos. 1375-82, 2511-14, 2771, 3279, 3760-62, 4761-64, 5595, 7535/ 2001, 645-647, 1911, 2183-84, 2552, 2730, 4148-49, 5095, 5853-54, 8098-8100 of 2002. Bhaskar P. Gupta, A. N. Haksar, T. L. Iyer, Dhruv Agarwal, R. V. Prasad, Praveen Kumar, Satyanarayana, N. D. B. Raju Ms. Bharathi R. , Guntur Prabhakar, D. Venkatesh, Ms. A. Rama, Rajeev M. Roy, Rajeev K. Virmani, Ms. Rashmi Virmani, E. C. Vidyasagar, Sanjay Kunur, Ramlal Roy, Narayan N. Keshwani, Pratap Venugopal, P. S. Sudheer, Ms. Shalini Gupta, Ms. Revathy Raghavan, Ms. Sarpana Raj, Sanjay R. Hegde and Satya Mitra for the appearing parties. The Judgment of the Court was delivered by 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 (hereinafier 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 is'sued 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 Anr v. Mis 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 30 I 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 30I.

The title of the aforesaid Act was amended in 1992 and it was named as 'The Kamataka Tax on Entry of Goods Act, 1979'. Section 3 of the Act empowers the State Government to levy tax by issuing notification on the entry ofany goods specified in the Schedule into a local area for consumption, use or sale therein. At present, Sub-section (I) of Section 3 reads as under:- "3. Levy ofTax. -{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 ofthe 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 Kamataka Tax on Entry ofGoods (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 I Ith 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 Kamataka 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 Kamataka Act No. 3 of 1995, namely, the Karnataka Tax on Entry of Goods (Amendmeht) Act, 1992 after obtaining the assent ofthe 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 1st April, 1994, levying tax on the entry ofgoods brought into a localarea 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 p oration Act, 1976 (Kamataka Act 14 of 1977) a municipality under the Kamataka Municipality Act, I964 I (Karnataka Act 22 of 1964) a notified area committee, a town board, a sanitary board or a cahtonment Board constituted or continued under any law for the tirr)e being in force and a Mandal under the Kamataka Zita Parishads, Taluk Panchayat Samithis, Manda!

Panchayat and Nyaya Panchayats Act, 1983 (Karnataka Act 20 of 1985) and Panchayat Area under tpe Karnataka Panchayat Raj Act, 1993 (Karnataka Act 14of199V. " The learned counsel for the respondents justified the impugned judgment for the reasons recorded therein. It is their submission that 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:--,- Before dealing with the rival contentions, we would first refer to Articles 30I and 304 which are as under:- "301. Freedom oftrade, commerce and intercourse. -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.

- Notwithstanding anything in article 30 I or article 303, the Legislature of a State may by law- (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; a1_1d (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 ofa State without the previous sanction of the President. " Article 30 I 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: - (l) 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 ofthe President before introduction ofthe 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 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 Anr. v. State ofPunjab and Anr. , [1990] 3 SCC 87. In that case, the Court also referred to the decision in Kalyani Stores v. State ofOrissa, [1966] I 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 ifthe 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 prosrective. The Court (in para 22) further held:- " .. 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 exc~ption will arise only ifthe 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 all-" In V. Guruviah Naidu & Sons v. State o/Tamil Nadu, [1977] I SCC 234, this Court held that Article 304(a) does not prevent levy of tax on goods; what it prohibits is such levy oftax 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 interstate 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 ofA. P. and Ors. , (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. 8of1993 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 ofwords 'retrospectively or prospectively' in Section 3(1) would not make the Section restrictive which can be hit by Article 301 ofthe Constitution nor the said part of the legislation could be held to 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 ofthe (>resident 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 Mis. Hansa Corporation, (supra) and thereafter in repeated judgments including State of Himachal Pradesh and Ors, v. Yash Pal Garg (Dead) By LRs and Ors. , 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: - (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) Ifa 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. l. 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 similar goods manufactured or produced within the State. 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 ofindustrial areas is for limited purpose and Section 3 ofthe Kamataka Industrial Areas Development Act, 1966 specifically provides that the State Govennent 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 of2002, SLP (C) ____ @ CC Nos. 3488-90 of2003 and SLP (C) No. 8223-24 of2003. Special Leave Petitions __ @CC Nos. 3488-90 of2003 are dismissed on the ground of delay. For the foregoing reasons, Special Leave Petitions are also dismissed. N. J. Appeals dismissed.