Shiva and Company and Others vs State of Uttaranchal and Others

B.S. Verma, J.—Sri Sharad Sharma, learned Counsel for the petitioners, Sri K.P. Upadhyay, learned Additional Chief Standing Counsel for the State-respondent Nos. 1, 3, 5 and 6, Smt. Bina Pande, learned Standing Counsel of the U.P. Government for respondent Nos. 2 and 4 and Sri Arvind Vashist, learned Assistant Solicitor General of India for the Union of India-respondent No. 7 and 8.

Learned Counsel for the petitioner has urged that the amendment application (5238 of 2004) moved by the petitioner was allowed vide order dated 16-09-2004, but due to inadvertence the amendment could not be incorporated.

Learned Counsel for the petitioner is permitted to incorporate the amendments and to file amended memo of writ petition during the course of the day.

This writ petition has been filed for the following reliefs:

a. To issue a writ, order or direction in the nature of mandamus commanding the opposite parties No. 1 to 6 not to charge entry tax on sugar holding the same to be ''ultra virus'' the provisions of the Constitution of India.

b. To issue a writ order or direction quashing the orders/Act/Ordinance by the opposite parties No. 1 to 6 by means of which Entry Tax on sugar is to be levied as per the provisions of the U.P. Act No. 12 of 2000 as also the show cause notice dated 23.1.2001 by means of which the opposite party No. 6 had required the petitioners to deposit Entry Tax.

c. To direct the opposite parties to refund the amount to Additional Excise duty along with interest is case entry Tax is held in respect of sugar.

d. To issue a writ, order or direction in the nature of mandamus commanding the respondents not to charge entry tax on sugar, in pursuance to adopting Act No. 2228-9/B/Anu/Vuya/Ka/2002 dated 8.11.2002 of 2003, thereby adopting Act No. 12 of 2000 holding the same to be ultra vires to the provisions of the Constitution of India.

e. To mould and issue any other writ, order or direction which this Hon''ble Court deems necessary keeping in mind the facts and circumstances of the case.

f. To award the cost of this petition to the petitioners.

I have heard learned Counsel for the parties and perused the record.

At the outset, learned Counsel for the petitioners has urged that that similar controversy had arisen before the Allahabad High Court wherein imposition of the same entry tax under the same Act was challenged in Writ Petition No. 251 of 2003, Indian Oil Corporation v. State of U.P. and the Entry Tax has been declared ultra vires and void being violative of Article 301 and 304 of the Constitution of India vide order dated 27-1-2004. The Allahabad High Court has further held that the ''entry tax'' is not a ''compensatory tax''. It has further been submitted that following the verdict of the Allahabad High Court, this Court by order dated 2-6-2008 passed in Writ Petition (M/S) No. 1016 of 2007 Polyplex Corporation Limited v. State of Uttaranchal and two Ors. has taken a similar view and has allowed the said writ petition. Hence this writ petition may also be allowed in terms of the said order dated 2-6-2008.

Learned Counsel appearing for the respondents have fairly conceded to the above fact.

In the facts and circumstances of the case taking into consideration the fact that the U.P. Tax on Entry of Goods Act, 2000 has been declared ultra vires by the Division Bench of the Allahabad High Court and it has also been held that the ''entry tax'' is not a ''compensatory tax'', referred to above, and order dated 23- 6-2008 of this Court passed in Writ Petition No. 1074 of 2007 (M/S), D.S.M. Group of Industries v. State of Uttaranchal and Ors. declaring the Uttar Pradesh Tax On Entry Of Goods Act (Uttaranchal Amendment) Act, 2001 to be violative of Articles 301 and 304 of the Constitution, hence ultra vires, therefore, the present writ petition is liable to be allowed in terms of the order passed in Writ Petition No. 1074 of 2007 (M/S).

The writ petition is allowed in terms of the order dated 23-6-2008 passed by this Court in Writ Petition No. 1074 of 2007 (M/S), D.S.M. Group of Industries v. State of Uttaranchal and Ors. The respondents are directed by a writ of mandamus not to charge entry tax on sugar in pursuance of Notification No. 2228-9/Vi. Anu.5/Vya. Ka./2002 dated 08-11-2002 as well as The Uttaranchal (The Uttar Pradesh Tax On Entry Of Goods Act 2000) Adaptation and Modification Order 2002. Costs easy.

All pending applications stand disposed of.