Holding

The High Court erred in applying res judicata; the liability to pay interest under the 2007 Act is not barred and the Act does contain a substantive provision for interest via Section 13’s incorporation of Section 33 of the Uttar Pradesh VAT Act, 2008.

Summary

The appellant, Indian Oil Corporation Ltd., challenged demand notices for interest on entry tax levied under the Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007, arguing that the Act contained no substantive provision for interest and that the High Court’s dismissal of its writ petition was barred by res judicata. The Supreme Court examined whether the plea on interest, expressly raised in the earlier writ petition, could be deemed decided and thus barred, invoking Section 11 Explanation IV of the CPC. It held that the High Court had erroneously applied constructive res judicata because the issue of interest was not permitted to be decided in the earlier batch of petitions. The Court further analyzed the statutory scheme, concluding that Section 13 of the 2007 Act mutatis mutandis incorporates Section 33 of the Uttar Pradesh Value Added Tax Act, 2008, which provides a substantive basis for levying interest. Consequently, the question of liability to pay interest remains open and must be determined by the High Court on merits. The Supreme Court set aside the High Court’s order and revived the writ petitions for further consideration.

Issues considered

Whether the writ petitions challenging the demand for interest are barred by the principle of res judicata under Section 11 Explanation IV of the CPC.
Whether the Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007 contains any substantive provision for charging interest on entry tax.
Whether the appellant is liable to pay interest on entry tax for the period 01.11.1999 to 23.09.2007, i.e., when the earlier 2000 Act was declared ultra vires.
What is the extent of liability to pay interest on entry tax for the period after 24.09.2007.
What relief, if any, is available to the appellant.

Legislation cited

Code of Civil Procedure, 1908s. 11
Uttar Pradesh Tax on Entry of Goods into Local Areas Act, 2007s. 10, s. 12, s. 13, s. 4, s. 9
Uttar Pradesh Value Added Tax Act, 2008s. 33

Subjects

Entry TaxRes JudicataSection 11 Explanation IVInterest on TaxMutatis MutandisUttar Pradesh Tax ActConstitutional validityCompensatory taxCivil Procedure CodeStatutory interpretation

Judgment

[2019] 6 S.C.R. 601 601

INDIAN OIL CORPORATION LIMITED A
v.
STATE OF U.P. & ORS.
(Civil Appeal Nos. 3257-3268 of 2019)
APRIL 22, 2019 B
[ASHOK BHUSHAN AND K. M. JOSEPH, JJ.]
Code of Civil Procedure, 1908 – s.11, Explanation IV –
Respondent-State enacted the 2007 Act after the High Court declared
the 2000 Act to be ultra vires inter alia holding that Entry Tax levied
C
on crude oil does not fulfil the requirements of compensatory tax –
Challenged by the appellant before the High Court – Supreme Court
in Jaiprakash Associates Limited case referred the issue of levy of
Entry Tax in various States enactments including U.P. for
determination by nine Judges Bench – High Court held that the
State did not lack legislative competence in enacting the 2007 Act – D
SLP filed by the appellant – Supreme Court passed interim order
staying the operation of the judgment of the High Court inter alia
subject to the appellants in each case depositing 50% of the accrued
tax liability under the 2007 Act – Determination of interest, payable
by the appellant was to be determined subsequently – Nine Judges
E
Bench decided the reference in Jindal Stainless Limited case –
Thereafter, the matter was taken by the Regular Bench and by
judgment dtd. 21.03.17 Supreme Court granted liberty to the
appellant to question the levy of Entry Tax under the 2007 Act, on
the issues left open in the order of the Nine Judges Bench, before
High Court by way of fresh writ petition – Appellant filed Writ F
Petition No.25730 of 17 before the High Court, where assessment
orders were also assailed – Dismissed vide judgment dtd.04.05.18
upholding the validity of the 2007 Act– Demand notices issued–
Challenged by the appellant in so far as demand towards interest
was concerned – Respondents raised preliminary objection that the
G
writ petition is second writ petition on the same and consequential
cause of action– Dismissed – On appeal, held: Writ Petition
No.25730 of 17 was filed by the appellant in pursuant to the liberty
dtd. 21.03.17 challenging the vires of 2007 Act – s.11, Explanation
IV provides that a plea which might and ought to have been taken
H
601
602 SUPREME COURT REPORTS [2019] 6 S.C.R.

A in the earlier suit, shall be deemed to have been taken and decided
against person raising the plea in the subsequent suit – Present is a
case where the plea questioning the leviability of the interest was
specifically raised by the appellant in the Writ Petition No.25730
however, the Division Bench took the view that it was to deal with
the challenge on the grounds as reflected in the judgment dtd.
B
21.03.17 and thus did not permit the consideration of any other
questions including the question of interest – Issue which was not
expressly permitted to be decided cannot operate as res judicata in
subsequent writ petition where the challenge was to the leviability
of the interest – Further, the High Court de-tagged the writ petition
C from the the main bunch where the challenge to levy of interest was
made – High Court committed error in upholding the preliminary
objection of the respondent – Matter remitted to High Court inter
alia for determining the liability of interest – U.P. Tax on Entry of
Goods Ordinance, 2000 – U.P. Tax on Entry of Goods into Local
Areas Act, 2000 – U.P. Tax on Entry of Goods into Local Areas Act,
D
2007 – ss.4, 9, 10, 12 and 13 – Constitution of India – Arts. 301
and 304.
U.P. Tax on Entry of Goods into Local Areas Act, 2007 – s.13
– Held: Application of provisions of VAT Act is provided by s.13 of
the 2007 Act with certain changes – s.13 mutatis mutandis applies
E s.33 of the VAT Act – s.33 has to be applied with respect to payment
and recovery of tax – Thus, the payment of interest which is
contemplated u/s.33 on the amount of tax has to be applied with
regard to the payment of Entry Tax and the interest thereon – Even
if provision of s.33 of VAT Act is to be treated as machinery provision
F which is to be applied by virtue of s.13 of 2007 Act, the machinery
provision has to be interpreted in a manner so as to make the liability
effective and treated to be substantive law – Submission of the
appellant that 2007 Act does not contain any substantive law for
levy of the interest, rejected – U.P. Value Added Tax Act, 2008 –
s.33 – Machinery provision when treated as substantive law.
G
Words & Phrases – ‘mutatis mutandis’ – Meaning of –
Discussed.
Allowing the appeals, the Court
HELD: 1.1 Writ Petition No.25730 of 2017 was filed by the
H appellant in pursuant to the liberty dated 21.03.2017. The main
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 603

pleadings and the grounds raised in the writ petition relate to A
challenge to vires of U.P. Tax on Entry of Goods into Local Areas
Act, 2007. In the writ petition direction sought was declaring the
Act, 2007 as invalid, void and unconstitutional in so far as purports
to levy entry tax on crude oil imported into India for Mathura
Refinery. Further reliefs were claimed in the writ petition including
B
prayer for quashing the assessment orders 1999-2000 to 2011-
2012. In the writ petition there was challenge to interest also.
The Division Bench took the view that it is to deal with the
challenge on the grounds as reflected in the judgment of the
Regular Bench dated 21.03.2017. The Division Bench, thus,
confined the consideration limited to the grounds reflected in C
the questions framed by the regular Bench of the Supreme Court.
The Division Bench, thus, consciously confined the consideration
to only three questions from the judgment of Supreme Court dated
21.03.2017. The Division Bench clearly did not permit the
consideration of any other questions including the question of
D
interest which is clear from the judgment dated 04.05.2018. When
the judgment was reserved on 09.11.2017 in Bunch of writ
petitions including W.P.No.25730 of 2017, in the writ petitions
where challenge to levy of interest was separately made were
de-tagged. [Paras 24-26][623-D-E; 624-F-G]
1.2 Present is a case where the Division Bench while E
deciding Writ Petition No.25730 of 2017 consciously restricted
the consideration to three questions as noted in the judgment of
Supreme Court dated 21.03.2017 and did not permit to raise any
submission other than three questions as noted above or proceed
to consider any other questions. The issue which was not F
expressly permitted to be decided by judgment dated 04.05.2018
cannot operate as res judicata in subsequent writ petition filed
by the appellant where the challenge to the leviability of the
interest has been raised. Explanation IV to s.11, CPC provides
that a plea which might and ought to have been taken in the earlier
suit, shall be deemed to have been taken and decided against G
person raising the plea in the subsequent suit. Present is a case
where the plea of questioning the leviability of the interest was
specifically raised by the appellant in the writ petition. The
Division Bench of the High Court did not entertain such pleas
due to the Court having restricted the consideration to the three H
604 SUPREME COURT REPORTS [2019] 6 S.C.R.

A questions. Subsequent writ petition where plea of leviability of
the interest was raised could not have been thrown on the ground
of res judicata. The sequence of the events and the fact of de-
tagging the writ petition with the main Bunch where challenge to
interest was made separately clearly indicate that the Division
Bench which reserved the judgment on 09.11.2017 clearly
B
intended not to entertain the question of liability to pay interest
in the Bunch which was reserved on 09.11.2017. When the High
Court expressly restricted the consideration to three issues, the
plea of constructive res judicata cannot be pressed in service
against the appellant to preclude him from raising the question
C which was not expressly permitted to be argued in Writ Petition
No.25730 of 2017. From the facts of the case, it is apparent that
in the order of this Court passed on 06.12.2013 while modifying
the interim order passed in C.A. No. 3413 of 2012 (arising out of
SLP(C)No.2757-2758 of 2004), this Court observed “in the event
of appellant failing in this appeal, the appellant will be liable to
D
pay the arrears of tax along with interest, as may be determined
by this Court under the provisions of the Uttar Pradesh Entry
Tax Act, 2007, at the time of final disposal of the appeal.” When
Appeal No.3413 of 2012 was ultimately decided on 21.03.2017
by this Court, this Court granted liberty to the appellant to file
E fresh writ petition raising the issues mentioned therein for
consideration of the High Court. In the order dated 21.03.2017
there was no determination by this Court regarding interest to
be paid by the appellant under the provisions of the Entry Tax
Act, 2007. However, when the liberty was granted by this Court
to the appellant to raise above noted three issues on the
F
necessary factual background or any other constitutional/statutory
issues, which arise for consideration, the High Court was free to
consider the question of liability of interest to be satisfied by the
appellant under Act, 2007. [Paras 28-30][625-C-E; 626-A-H]
1.3 The question relating to nature and extent of liability to
G pay interest on Entry Tax under the scheme of Act, 2007 need to
be examined by this Court in these appeals. The High Court in
the impugned judgment committed error in upholding the
preliminary objection of the respondent. [Para 32][627-D-E]

H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 605

1.4 Section 4 of the U.P. Tax on Entry of Goods into Local A
Areas Act, 2007 provides for levy of tax. Section 4(1) provides
that for the purpose of development of trade, commerce and
industry in the State, there shall be levied and collected a tax on
entry of goods specified in the Schedule into a local area for
consumption, use or sale therein, from any place outside that
B
local area, at such rate not exceeding five per cent of the value of
the goods as may be specified by the State Government by
notification. Section 9 deals with submission of returns and
assessment of tax. Section 10 deals with provisional assessment
of tax. Section 12 deals with realisation of tax through
manufacturer. Section 12 deals with only one incident of realisation C
of Entry Tax, i.e., through manufacturer. Section 12(1) makes it
clear that any person who intends to bring into a local area from
any manufacturer within the State, such goods specified in the
Schedule as may be notified by the State Government, shall, at
the time of taking delivery of the goods from the manufacturer,
D
pay to the manufacturer the tax payable on entry of such goods
into the local area and the manufacturer shall receive the tax so
paid. Section 12(2) creates liability on person who intends to bring
into a local area from any manufacturer any goods specified in
the Schedule and the time of payment is statutorily laid down that
is at the time of taking goods. Section 12(3) contemplates a E
situation where although manufacturer received the tax under
Section 12(1) but failed to pay tax as required by Section 12(2)
then he shall be liable to pay tax along with the interest. Thus,
liability of the interest under Section 12(3) is confined to one
particular situation and does not provide for any universal
F
application for payment of interest. Requirement of payment of
interest under Section 12 (3), thus, is for a particular situation
and has no application with regard to any other instance of liability
to pay tax. Present is a case where appellant is not receiving any
goods from any manufacturer, hence, in the present case
Section 12 has no applicability. Section 13 mutatis G
mutandis applies Section 33 of U.P. Value Added Tax Act, 2008.
[Paras 33, 34, 36 and 39][628-A-C; H; 630-A-D; 631-C-D]
1.5 Thus, application of provisions of VAT Act, 2008 is
provided by Section 13 of Act, 2007 with certain changes in points
H
606 SUPREME COURT REPORTS [2019] 6 S.C.R.

A of details. Section 33 of the VAT Act, 2008 which has been
mentioned to apply under Section 13 has to be applied with respect
to payment and recovery of tax. Thus, the payment of interest
which is contemplated under Section 33 on the amount of tax has
to be applied with regard to the payment of Entry Tax and the
interest thereon. Even if provision of Section 33 of VAT Act, 2008
B
to be treated as machinery provision which is to be applied by
virtue of Section 13 of Act, 2007, the machinery provision has to
be interpreted in a manner so as to make the liability effective
and treated to be substantive law. The submission of the counsel
for the appellant that Act, 2007 does not contain any substantive
C law for levy of the interest, rejected. [Paras 43 and 48][634-E-F;
636-H; 637-A]
1.6 The questions for determining the liability of interest
and various aspects including factual aspects need to be examined
and considered by the High Court. For instance, what shall be
D the effect of deposit of Entry Tax in separate interest-bearing
account in pursuance of the interim order of this Court dated
09.02.2004 in Civil Appeal Nos.997-998 of 2004 needs to be
considered. There may be few other issues, questions of facts
which need to be decided by the High Court for determining the
liability of interest of the appellant. It shall also be open for the
E High Court to frame any other question or issue which may be
required to be considered and answered. The impugned judgment
of the High Court is set aside. The Writs are revived
before the High Court to be considered and decided on merits.
[Paras 49, 50][637-B-D]
F J.K. Synthetics Limited v. Commercial Taxes Officers
(1994) 4 SCC 276 ; V.V.S Sugars v. Govt. of A.P. and
others (1999) 4 SCC 192 : [1999] 2 SCR 925
– followed.
M/s. Ashok Service Centre and others v. State of Orissa
G (1983) 2 SCC 82 : [1983] 2 SCR 363 ; Rajasthan State
Industrial Development and Investment Corporation
and another v. Diamond & Gem Development
Corporation Limited and another 2013 (5) SCC 470 :
[2013] 4 SCR 331 – relied on.
H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 607

Jindal Stainless Ltd. (2) and Another v. State of Haryana A
and Others (2006) 7 SCC 241 : [2006] 3 SCR 1095 ;
Atiabari Tea Co. Ltd. v. State of Assam AIR 1961 SC
232 : [1961] SCR 809 ; Automobile Transport
(Rajasthan) Ltd. v. State of Rajasthan AIR 1962 SC
1406 : 1963 SCR 491 ; State of U.P. & Ors. v. M/s.
B
Indian Oil Corporation Ltd. & Etc. 2017(6)
SCALE 540 ; Jaiprakash Associates Limited v. State
of Madhya Pradesh & Ors. (2009) 7 SCC 339 : [2008]
17 SCR 1282 ; ITC Limited v. State of U.P. and Others.
Decision of Allahabad High Court in Writ Tax No. 1484
of 2007; Jindal Stainless Limited & Anr. v. State of C
Haryana & Ors. (2017) 12 SCC 1 : [2016] 1 SCR 1 ;
M/s. Birla Corporation Limited vs. State of U.P Decision
of Allahabad High Court in Writ Tax No. 474 of 2017;
VST Industries Limited v. The State of Uttar Pradesh &
Ors. S.L.P. No. 2691 of 2018; Shree Bhagwati Steel
D
Rolling Mills v. Commissioner of Central Excise and
another (2016) 3 SCC 643 : [2015] 12 SCR 332 ; India
Carbon Ltd. and others v. State of Assam (1997) 6 SCC
479 : [1997] 3 Suppl. SCR 1 – referred to.
Case Law Reference
E
[2006] 3 SCR 1095 referred to Para 5
[1961] SCR 809 referred to Para 5
1963 SCR 491 referred to Para 5
2017 (6) SCALE 540 referred to Para 6 F
[2008] 17 SCR 1282 referred to Para 8
[2016] 1 SCR 1 referred to Para 11
[2015] 12 SCR 332 referred to Para 31
(1994) 4 SCC 276 followed Para 37 G
[1999] 2 SCR 925 followed Para 40
[1983] 2 SCR 363 relied on Para 41
[2013] 4 SCR 331 relied on Para 42
[1997] 3 Suppl. SCR 1 referred to Para 44 H
608 SUPREME COURT REPORTS [2019] 6 S.C.R.

A CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 3257-
3268 of 2019.
From the Judgment and Order dated 22.11.2018 of the High
Court of Judicature at Allahabad in Writ Tax Nos. 757, 769, 772, 770,
779, 776, 768, 775, 778, 766, 753 and 754 of 2018.
B Ms. Aishwarya Bhati, ASG, Dr. Manish Singhvi, AAG, Guru
Krishan Kumar, Dhruv Agrawal, Dinesh Dwivedi, Sr. Advs., Ajay
Aggarwal, Ms. Mallika Joshi, Rajan Narain, Nishit Agrawal, Manik Sethi,
Bhakti Vardhan Singh, Yasharth Kant, Krishnam Mishra, Satyendra
Kumar, Shailja Nanda Mishra, Udit Jain, Abhishek Anand, Isaan Saran,
C M. P. Devanath, Advs. with them for the appearing parties.
The Judgment of the Court was delivered by
ASHOK BHUSHAN, J.
1. These appeals have been filed against the Division Bench
D judgment of Allahabad High Court dated 22.11.2018 dismissing the writ
petitions filed by the appellant questioning the demand notices issued by
the respondent demanding interest on Entry Tax from the appellant.
2. These appeals centres round the issue regarding liability to pay
interest on the Entry Tax on the appellant under The U.P. Tax on Entry
of Goods into Local Areas Act, 2007 (hereinafter referred to as “Act,
E
2007”) The demanded Entry Tax having been paid by the appellant, the
issue to be considered is with regard to liability to pay interest on the
Entry Tax alone.
3. The Entry Tax Legislations in the State of U.P. as well as in
other States of the country have a long history of litigation. The Entry
F
Tax Legislations enacted by different States including the State of U.P.
were challenged in the High Courts questioning the very legislative
competence of State Legislature to enact Entry Tax Legislations, which
according to writ petitioners violated freedom of trade, commerce and
intercourse guaranteed under Article 301 and other Articles of Part XIII
G of the Constitution of India. Some of the High courts including Allahabad
High Court have struck down the initial Entry Tax Legislations on the
ground that it violates rights guaranteed under Part XIII of the Constitution
of India.
4. For deciding the issues, which have arisen in these appeals, it is
H necessary to notice the history of litigation in so far as State of U.P. is
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 609
[ASHOK BHUSHAN, J.]

concerned. Levy of tax on entry of any goods into a local area was A
introduced by the U.P. Tax on Entry of Goods Ordinance, 2000, w.e.f.
01.11.1999, which Ordinance was replaced by the U.P. Tax on Entry of
Goods Act, 2000, which Act was deemed to have come into force on
01.11.1999. The Entry Tax was also imposed on crude oil. The appellant
filed a Writ Petition No. 251 of 2003 before the Allahabad High Court
B
challenging the validity of levy of Entry Tax on crude oil. The Allahabad
High Court vide its judgment and order dated 27.01.2004 declared Act
No. 1 of 2000 as violative of Articles 301 and 304 of the Constitution of
India and, thus, was held to be ultra vires. The State of U.P. filed a
Special Leave Petition against the judgment dated 27.01.2004, which
was later re-numbered as Civil Appeal Nos. 997-998 of 2004. This C
Court on 09.02.2004 passed following interim order:-
“Issue notice on the application for impleadment.
Leave granted.
The operation of the impugned judgment is stayed subject to the D
appellant’s depositing all taxes that may be realized by the appellant
from the respondents after 27.1.2004 in a separate interest bearing
account. This amount and the interest accrued thereon shall be
held subject to the further orders of this Court.
SLP (C) No.3033/3004 E
Delink this matter.”
5. The Constitution Bench of this Court in Jindal Stainless Ltd.
(2) and Another Vs. State of Haryana and Others, (2006) 7 SCC
241 laid down the yardsticks to determine whether tax was compensatory
or not. Constitution Bench reiterated that the doctrine of “direct and F
immediate effect” on the trade and commerce under Article 301 as
propounded in Atiabari Tea Co. Ltd. Vs. State of Assam, AIR 1961
SC 232 and the working test enunciated in Automobile Transport
(Rajasthan) Ltd. Vs. State of Rajasthan, AIR 1962 SC 1406 for
deciding whether a tax is compensatory or not was to continue to apply.
G
Constitution Bench held that accordingly, the constitutional validity of
various local enactments which are the subject matters of pending appeals,
special leave petitions and writ petitions will now be listed for being
disposed of in the light of this judgment.

H
610 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 6. Pursuant to Constitution Bench judgment, the matters were
listed on 14.07.2006, when this Court permitted the parties to place the
relevant materials in the concerned writ petitions within two months
before the respective High Courts, which were to deal with the basic
issue as to whether the impugned levy was compensatory in nature.
The High Courts were requested to decide the issues within five months
B
from the date of receipt of the order. After the above orders of this
Court, the Allahabad High Court was pleased to decide the questions
raised on 08.01.2007 holding that Entry Tax levied on crude oil and other
goods does not fulfil the requirements of compensatory tax as laid down
by this Court. On 17.04.2007, this Court in C.A. Nos. 997-998 of
C 2004 – State of U.P. & Ors. Vs. M/s. Indian Oil Corporation Ltd.
& Etc., passed an order in the following terms:-
“……………………….The High Court’s orders, wherever it has
been passed in favour of the tax payers, shall operate so far as
the writ petitioners are concerned………………..”
D 7. The effect in view of the above interim order was that the levy
of Entry Tax in the State of U.P., thus, was held to be unsustainable.
The State of U.P. promulgated the U.P. Tax on Entry of Goods into
Local Areas Ordinance on 24.09.2007 (U.P. Ordinance No. 35 of 2007)
with retrospective effect from 01.11.1999 repealing the earlier Act No.1
E of 2000 and re-enacting the same w.e.f. 01.11.1999. The Statement of
Objects and Reasons, which necessitated the issuance of the aforesaid
Ordinance was as follows:-
“STATEMENT OF OBJECTS AND REASONS
The Uttar Pradesh Tax on Entry of Goods Act, 2000 (U.P.
F Act No. 12 of 2000) was enacted to provide for the levy and
collection of tax on entry of goods into a local area for consumption,
use or sale therein. The said act was declared ultra vires by the
Hon’ble High Court of Judicature at Allahabad in writ petition
No. 251/2003 M/s Indian Oil Corporation Limited Versus State
G Government in its Judgment dated January 27, 2004. The State
Government filed the special leave petition No. 2757-2758/2004
against the said Judgement. The Hon’ble Supreme Court in the
said special leave petition stayed the operation of the said
Judgement of the High Court on February 9, 2004 with the
condition that the amount realised as entry tax shall be deposited
H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 611
[ASHOK BHUSHAN, J.]

in the separate interest bearing account. Thereafter in the case A
of Jindal Steel Limited Versus State Government and others, the
Hon’ble Supreme Court required the High Court to submit its
report regarding whether the entry tax under the said act falls in
the category of compensatory tax or not. The High Court in its
judgment dated January 8, 2007 held that the entry tax under the
B
said act does not fall in the category of compensatory tax. The
same Judgement had been delivered by the High Court in the
case of the Indian Oil Corporation Limited and other similar cases.
A special leave petition was filed in the Supreme Court by the
State Government against the Judgement of the High Court dated
January 8, 2007. Since M/s Indian Oil Corporation Limited was C
demanding for the refund of Rs. 3022-58 crore on the basis of the
interim order dated April 17, 2007 of the Apex Court, the State
Government was considering to enact afresh the said Act
retrospectively after the Judgement of the constitution Bench of
the Supreme Court. In the meantime the Bihar Entry Tax Act
D
was held to be valid by the Patna High Court. It was therefore
decided to make a Law with retrospective effect by removing the
short-comings pointed out in the Judgement of the High Court of
Judicature at Allahabad and in the light of observations with respect
to the compensatory tax made by the Constitutional Bench of the
Supreme Court and on the basis of the provisions of the Bihar E
Entry Tax Act, which had been held valid by the Patna High Court.
Since the State Legislature was not in session and immediate
legislative action was necessary to implement the aforesaid
decision, the Uttar Pradesh Tax on Entry of Goods in to Local
Areas Ordinance, 2007 (U.P. Ordinance No. 35 of 2007) was F
promulgated by the Governor on September 24, 2007.
This Bill is introduced to replace the aforesaid Ordinance.”
8. The Ordinance No.35 of 2007 was replaced by the U.P. Tax
on Entry of goods into Local Areas Act, 2007. The appellant after
enforcement of the Ordinance had filed a Writ Petition No. 1483 of G
2007 in the Allahabad High Court challenging the Ordinance No. 35 of
2007. After enactment of the Act, writ petition was sought to be amended
by replacing the word “Ordinance” with “Act”. On 18.12.2008, a Two-
Judge Bench of this Court in Jaiprakash Associates Limited Vs.
State of Madhya Pradesh & Ors. (2009) 7 SCC 339 referred the H
612 SUPREME COURT REPORTS [2019] 6 S.C.R.

A issue of levy of Entry Tax in various States enactments including U.P.
for determination of a Larger Bench of Nine Judges in terms of Article
145(3) of the Constitution of India. On 23.12.2011, a Division Bench of
the Allahabad High Court decided the Writ Petition No. 1483 of 2007
alongwith bunch of writ petitions, leading writ petition being Writ Tax
No. 1484 of 2007 – ITC Limited Vs. State of U.P. and Others.
B
The Division Bench of the Allahabad High Court held that the State of
U.P. did not lack legislative competence in enacting the U.P. Tax on
Entry of Goods into Local Areas Act, 2007, imposing Entry Tax on the
entry of scheduled goods into the local areas for consumption, use or
sale thereunder. Concluding part of the judgment in Paragraph Nos.
C 151, 152 and 153 are as follows:-
“151. For the reasons given as above, we hold that the State of
U.P. did not lack legislative competence in enacting U.P. Tax on
Entry of Goods into Local Areas Act, 2007, imposing entry tax on
the entry of scheduled goods into the local areas for consumption,
D use or sale thereunder. The provisions of the Act patently and
facially indicate and that there are sufficient guidelines and
guarantees under the Act for ensuring that the entire amount of
entry tax collected and credited to the U.P. State Development
Fund is utilised only for the purposes of its reimbursement to
facilitate the trade, commerce and industry. The State Government
E has also established that the entire amount of entry tax is by way
of reimbursement / recompense to the trade, commerce and
industry, in the local areas of the State of U.P. provides quantifiable/
measurable benefits to its payers. The levy under the Act, 2007 is
also not discriminatory, unreasonable or against public interest.
F The levy of entry tax under the Act, therefore, does not violate
the freedom of trade, commerce and intercourse guaranteed under
Article 301 of the Constitution of India. Section 17 of the Act
validating the amount of entry tax levied, assessed, realized and
collected under the U.P. Tax on Entry of Goods Act, 2000, is also
valid and authorises the State to keep the entire amount, for the
G purposes of its utilisation for facilitating trade, commerce and
intercourse in the local areas of the State.
152. We may observe by way of clarification that in these writ
petitions we have confined our enquiry to the constitutional validity
of the U.P. Tax on Entry of Goods into Local Areas Act, 2007,
H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 613
[ASHOK BHUSHAN, J.]

and whether the entry tax is compensatory in nature, which does A
not violate the freedom of trade, commerce and intercourse under
Article 301 of the Constitution of India. We have not examined
the other issues namely the validity of the notices, assessments,
rebates, exemption and the liability of the traders, and
manufacturers of the scheduled goods to pay entry tax. All other
B
questions, will remain open to be considered by the competent
authorities under the Act in accordance with law.
153. All the writ petitions are consequently dismissed. The interim
orders are discharged.”
9. Against the judgment of Allahabad High Court dated 23.12.2011, C
decision in the writ petition of the appellant, SLP (C) No. 327 of 2012
was filed by the appellant. On 10.01.2012, this Court passed an interim
order in several special leave petitions filed against the judgment dated
23.12.2011 staying the operation of the impugned judgment of the High
Court dated 23.12.2011 subject to the appellants in each case depositing
50% of the accrued tax liability/arrears under the Act, 2007 and furnish D
bank guarantee for the balance amount within four weeks. In SLP (C)
No. 327 of 2012, following order was passed:-
“Shri R.F. Nariman, learned Solicitor General, appearing for the
petitioner in this matter, would contend that the respondents have
issued demand notices, inter alia, demanding the payment of Entry E
Tax under the provisions of U.P. Tax on Entry of Goods into Local
Areas Act, 2007 for the assessment periods 2007-2008, 2008-
2009, 2009-2010 and 2010-2011, without there being any
quantification by way assessments for all these years. Faced
with this situation, learned senior counsel, Shri K.K. Venugopal, F
appearing for the respondent-State would submit that he will file
an appropriate affidavit indicating whether the petitioners herein
have filed the monthly or annual returns for the assessment years
in question and whether the department has completed
assessments or the basis on which the demand notices are issued.
To facilitate them to file the said affidavit, we adjourn this matter G
to Thursday, i.e. 12.01.2012.”
10. The orders dated 17.01.2012 and 16.02.2012 were further
passed by this Court in the SLP (C) No. 327 of 2012 of the appellant.
Appellant in the interim order has been directed to pay 50% of the Entry
H
614 SUPREME COURT REPORTS [2019] 6 S.C.R.

A Tax. On 06.12.2013, prayer for further modification of the interim order
made on behalf of the appellant was accepted, which is to the following
effect:-
“In I.A. No. 7 in Civil Appeal No. 3413 of 2012, Shri R.F.
Nariman, learned senior counsel for the applicant(s) requests us
B to modify our orders passed on 17.01.2012, by observing that in
the event of appellant(s) failing in this appeal, the appellant(s) will
be liable to pay the arrears of tax along with interest, as may be
determined by this Court under the provisions of the Uttar Pradesh
Entry Tax Act, 2007, at the time of final disposal of the appeal.
C The request of the learned senior counsel appears to be
reasonable and if it is granted it would not prejudice the case of
the respondents in any manner whatsoever.
In view of the above, we accept the prayer so made by Shri
Nariman, learned senior counsel.”
D 11. This Court, thus, left the determination of interest, which was
to be payable by the appellant to be determined subsequently. On
11.11.2016, the Nine Judges Constitution Bench decided the reference
in Jindal Stainless Limited & Anr. Vs. State of Haryana & Ors.,
(2017) 12 SCC 1. The reference was answered by the Court in
E following manner:-
“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
F 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.
G 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 the proviso
thereunder is satisfied.
H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 615
[ASHOK BHUSHAN, J.]

1159.5. The Compensatory Tax Theory evolved in Automobile A
Transport case, AIR 1962 SC 1406 and subsequently
modified in Jindal case, (2006) 7 SCC 241 has no juristic
basis and is therefore rejected.
1159.6. The decisions of this Court in Atiabari, AIR 1961 SC
232, Automobile Transport, AIR 1962 SC 1406 and Jindal, B
(2006) 7 SCC 241 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 C
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 D
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 E
legislations to ensure that the tax burden on goods imported from
other States and goods 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. F
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.”
G
12. After the judgment of Nine Judges Bench dated 11.11.2016,
the matter was taken by the Regular Bench and by judgment and order
dated 21.03.2017, this Court granted liberty to the appellant to question
the levy of Entry Tax under Act, 2007 on the issues, which are left open
in the order of the Nine Judges Bench before High Court by way of a
H
616 SUPREME COURT REPORTS [2019] 6 S.C.R.

A fresh writ petition. The appellant filed a Writ Petition No.25730 of 2017
before the High Court, where assessment orders were also assailed as
the consequential relief in (Prayer iii). There were other writ petitions
also. The appellant’s Writ Petition No. 25730 of 2017 was heard
alongwith the bunch of writ petitions on 09.11.2017 and on 09.11.2017
judgment was reserved. There were few other writ petitions, which
B
were heard alongwith the bunch, one being Writ Tax No. 474 of
2017 – M/s. Birla Corporation Limited Vs. State of U.P., where
the validity of the demand of interest was separately challenged. While
reserving the judgment on 09.11.2017, High Court de-linked all such writ
petitions where validity of demand of interest was separately challenged.
C On 04.05.2018, the High Court delivered the judgment in Writ Petition
No. 25730 of 2017 and other connected matters dismissing the writ
petitions upholding the validity of the Act, 2007. Immediately after the
decision of the High Court on 04.05.2018, demand notices were issued
for the assessment years 2008-2009 to 2011-2012 and demand notices
dated 05.05.2018 for the assessment years 2000-2001 to 2007-2008
D
requiring the appellant to deposit Entry Tax together with interest
thereupon. The appellant paid a sum to the tune of Rs. 3,361.55 crores
towards Entry Tax for the years 1999-2000 to 2011-2012. The appellant
filed a writ petition challenging the demand notices dated 04.05.2018
and 05.05.2018 in so far as demand towards interest was concerned. In
E one of the writ petitions, Writ Petition No.757 of 2018 filed by the appellant,
following prayers were made:-
“(i) Issue a suitable writ, order or direction in the nature of
certiorari calling for the records and quashing the impugned
notice dated 04.05.2018 (ANNEXURE-1) issued by the
F Respondent No.3 demanding interest on entry tax from the
petitioner.
(ii) Issue a suitable writ, order or direction in the nature of
Prohibition restraining the Respondents, their servants, agents
or representative from in any manner realizing any interest
G on the entry tax from petitioner pursuant to the Act No. 30
of 2007, assessment order and the impugned notice dated
04.05.2018;
(iii) Issue a suitable writ, order or direction in the nature of
mandamus commanding the respondents to adjust the interest
H payable by the Respondents on the amounts paid by the
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 617
[ASHOK BHUSHAN, J.]

Petitioner upto 23.09.2007 towards the entry tax together A
with interest;
(iv) Issue any other suitable writ, order or direction as this Hon’ble
Court may deem fit and proper in the circumstances of the
case in the facts and circumstances of the case.
(v) Award the costs of the petition to the petitioners.” B

13. On 10.05.2018, when the writ petitions were taken up for
hearing by the High Court, learned counsel for the appellant made
submission before the High Court that appellant proposes to make an
application before this Court to adjudicate upon the liability to pay interest
under the Act, 2007, since the issue was left to be decided at the time of C
final disposal of the appeal. High Court by order dated 10.05.2018,
adjourned the proceedings considering the facts and prayers made by
the learned counsel for the appellant. An application for direction was
filed by the appellant being Application No.1716 of 2018, which was
permitted to be withdrawn on submission of the learned counsel for the D
applicant that the issue of levy of interest shall be pressed before the
High Court.
14. After the above order dated 20.07.2018, the hearing in writ
petition proceeded. Another demand notice dated 18.05.2018 was issued
by the respondent asking for depositing arrears of interest amount. The E
respondents before the High Court raised a preliminary objection on
25.07.2018 on the ground that writ petition is a second writ petition against
the same assessment order on the same and consequential cause of
action. It was stated in the preliminary objection that for the same relief
Writ Petition No.25730 of 2017 has already been dismissed by the High
Court on 04.05.2018, wherein assessment orders were also challenged, F
hence the writ petition being second writ petition be dismissed as not
maintainable. Reply to preliminary objection was filed by the appellant.
High Court after hearing all the parties by the impugned order dated
22.11.2018 upheld the preliminary objection about the maintainability of
the writ petitions and the writ petitions have been dismissed as not G
maintainable. While dismissing the writ petitions, certain observations
have also been made by the High Court. Appellant, aggrieved by the
judgment dated 22.11.2018 has come up in this appeal.
15. We have heard Shri Dhruv Agrawal, learned senior counsel
for the appellant. Shri Dinesh Dwivedi, learned senior counsel has
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618 SUPREME COURT REPORTS [2019] 6 S.C.R.

A appeared for the respondents. We have also heard Shri Guru Krishan
Kumar, learned senior counsel, who has appeared for appellant in S.L.P.
No. 2691 of 2018 – VST Industries Limited Vs. The State of Uttar
Pradesh & Ors., which is being separately decided.
16. Learned counsel for the appellant submits that under the Act,
B 2007 there are no substantive provisions for realisation of interest on
Entry Tax. In absence of a substantive provision providing for payment
of interest, no interest can be demanded from the appellant. It is submitted
that in Act, 2007, wherever it provided for payment of interest, it has
been so provided. Reference is made to sub-section (3) of Section 12 of
Act, 2007 where liability to tax alongwith interest is created. It is
C submitted that Section 13 of the Act, 2007, which makes the provisions
of U.P. Value Added Tax Act, 2008 mutatis mutandis, applicable adopts
only machinery provisions for the purposes of Act, 2007 and Section 33
of Value Added Tax Act, 2008, which deals with demand and recovery
of tax is only machinery provision, which does not entitle the respondent
D to claim any interest from the appellant. Apart from Section 12, there is
no other substantive provision for payment of interest under the Act,
2007. No charge is created by interpretation of machinery provisions by
virtue of Section 13 of Act, 2007. It is further submitted that bonafide
dispute pertaining to liability of a dealer to make payment of Entry Tax
was going on in the High Court and this Court, which could be finally
E decided on 04.05.2018, when writ petition filed by the appellant
challenging the vires of the Act, 2007 was finally dismissed. There
being bonafide dispute regarding liability to pay the Entry Tax itself, the
respondents are not entitled to charge any interest on the Entry Tax. It
is submitted that till 23.09.2007, there was no power with the State to
F recover any Entry Tax, since the Act, 2007 was declared ultra vires by
the High Court. Levy of Entry Tax was validated by virtue of Act, 2007,
hence there is no liability to pay any interest for the period prior to
24.09.2007, on which date, the Act was passed. The interest is being
demanded from the appellant from the year 1999, which is wholly illegal
and without jurisdiction. As per the interim order passed by this Court
G including the order dated 06.12.2013 passed in S.L.P. No. 327 of 2012
filed by the appellant, where this Court had passed an order on 06.12.2013
directing that the appellant will be liable to pay arrears of tax alongwith
interest as may be determined by this Court under the provisions of Act,
2007 at the time of final disposal of the appeal. It is submitted that
H neither the Nine Judges Constitution Bench in its judgment dated
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 619
[ASHOK BHUSHAN, J.]

11.11.2016 nor the Regular Bench deciding the appeals on 21.03.2017, A
entered into or decide the question of liability of interest. The judgment
of the High Court dated 04.05.2018 did not consider the question of
liability of interest of the appellant and the High Court confined to only
three issues, which have been noted in the judgment. The writ petitions
where challenge to demand of interest was separately made, were de-
B
tagged, which make the intention of the High Court clear that it neither
intended or actually decided the issue of interest in the batch of writ
petitions decided on 04.05.2018. In judgment dated 04.05.2018, the
liability of interest under Act, 2007 having not been decided nor argued,
the High Court in the impugned judgment has erroneously accepted the
preliminary objection of the respondent holding that the judgment dated C
04.05.2018 will operate as res judicata in subsequent writ petition filed
by the appellant, where demand notices praying for payment of interest
has been challenged.
17. Shri Agarwal further submits that Act, 2000 having been
declared unconstitutional, there is no liability to pay any interest before D
24.09.2007 on which date Act, 2007 was enacted. It is further submitted
that Act, 2007 was immediately challenged by the appellant which Act
was upheld by Division Bench of the High Court only on 23.12.2011.
Before the aforesaid date, this Court has already referred various issues
pertaining to Entry Tax legislation to a Larger Bench. A Larger Bench,
i.e., Nine-Judges Bench decided the reference only on 11.11.2016. The E
larger Bench had reversed the law which was in operation for more
than last fifty years. In wake of such uncertainty of legal position, the
appellant cannot be saddled with any liability to pay interest. It is submitted
that ultimately the Division Bench after liberty by this Court declared
the Act valid on 04.05.2018. It is submitted that appellant be relieved F
from paying of any interest during the aforesaid period. It is submitted
that appellant had promptly made the payment of entire Entry Tax
immediately after dismissal of writ petition on 04.05.2018. It is submitted
that appellant is a Public Corporation which may not be saddled with
huge liability of interest which shall adversely affect the functioning of
the Public Corporation. G

18. Shri Dinesh Dwivedi, learned senior counsel appearing for
the respondents supporting the impugned judgment submits that High
Court has rightly dismissed the writ petition of the appellant as not
maintainable. It is submitted that in the Writ Petition No.25730 of 2017
H
620 SUPREME COURT REPORTS [2019] 6 S.C.R.

A filed by the appellant, one of the prayers was also to quash the assessment
orders passed determining Entry Tax and interest and even though the
issue of question of liability of interest having not been determined by
the Division Bench of the High Court on 04.05.2018, the principle of
constructive res judicata shall be applicable debarring the appellant to
challenge the demand of interest by a subsequent writ petition. It is
B
submitted that High Court has rightly accepted the preliminary objection
of the respondents and held that writ petition is not maintainable. Shri
Dwivedi further addressed submissions on the merits of the claim of the
appellant. It is submitted that Act, 2007 contains substantive provisions
regarding charging of interest. He submits that by virtue of Section 13
C of Act, 2007, the provisions of U.P. Trade Tax Act, 1948 and U.P. Value
Added Tax Act, 2008 have been adopted, which contains the substantive
provisions for payment of interest. Section 8 of the U.P. Trade Tax Act,
1948 and Section 33 of the U.P. Value Added Tax Act, 2008 provides for
charging of interest when dealer fails to pay the tax, which is liable to be
paid under the Act. Thus, the submission of the appellant that there are
D
no substantive provisions for charging of the interest under the Act is
unfounded. It is further submitted that the appellant has enjoyed the
benefit of the interim order passed by this Court in special leave petitions
filed by the appellant challenging the judgment of the High Court dated
23.12.2011 and now they are estopped from challenging the pay-ability
E of the interest. By Section 17 of the Act, 2007, the levy of the Entry Tax
as per Act, 2007 has been validated. The Act, 2007 has been given
retrospective effect w.e.f. 01.11.1999, hence the appellant was liable to
pay both the Entry Tax as well as the interest. The liability to pay Entry
Tax arises as per the provisions of Act, 2007 and the U.P. Entry Tax
Rules, 2007 framed thereunder. The concept of interest evolves on
F
default in payment of Entry Tax. Shri Dwivedi also placed reliance on
the Principle of Restitution. Liability accrued under Act, 2000 is deemed
to be one arising under the Act, 2007. On dismissal of the Writ Petition
on 04.05.2018, the issue of interest has also been closed finally. After
the interim order of this Court on 10.01.2012 and 17.01.2012 Entry Tax
G was partly paid and remaining was paid only after the judgment of the
High Court on 04.05.2018. Despite the valid levy being there the Tax
was withheld by the appellant. The appellant took a chance with litigation
and retained and used the amount withheld. The levy whose validity is
upheld is deemed valid from date it was due and not from the date of the
judgment of the High Court. The appellant is liable for payment of
H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 621
[ASHOK BHUSHAN, J.]

interest not only as per law but also on equitable grounds. Liability to A
pay interest for a Stay period is valid as interest does not cease running
with passing of interim order. Interest is to be awarded on equitable
grounds. Liability to pay interest on a tax is an accretion of tax and
enlargement of tax liability. In the present case, interest liability on delayed
payment is prescribed by law.
B
19. We have considered the submissions of the learned counsel
on behalf of the parties and have perused the records.
20. From the submissions of the learned counsel for the parties
and pleadings on the record, following are the questions, which arise for
consideration in these appeals:- C
(1) Whether the Writ Petition No.757 of 2018 and other Writ
Petitions filed by the appellant challenging the demand notices
dated 04.05.2018 and 05.05.2018 issued after judgment dated
04.05.2018 of the High Court in Writ Petition No.25730 of
2017 is barred by Principle of Res-judicata, in view of the D
dismissal of Writ Petition No.25730 of 2017 on 04.05.2018?
(2) Whether Act, 2007 does contain any substantive provision
for charging interest?
(3) Whether the appellant had liability to pay interest on the Entry
Tax levied between the period from 01.11.1999 to 23.09.2007, E
i.e., during the operation of Act, 2000, which had been struck
down by the High Court?
(4) What can be the liability of payment of interest with which
the appellant can be saddled after the period w.e.f.
24.09.2007? F
(5) Relief, if any, to which the appellant may be entitled?
Question No.1
21. The preliminary objection raised by the respondents on the
ground of res judicata has been allowed relying on the judgment of the G
High Court dated 04.05.2018 in Writ Petition No.25730 of 2017. We
may first notice the prayers made in Writ Petition No.25730 of 2017.
Following are the prayers made in the writ petition:
“(i) that a suitable writ, order or direction be issued declaring the
“Uttar Pradesh Tax on Entry of Goods into Local Area Act, H
622 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 2007’ as invalid, void and unconstitutional in so far as purports
to levy entry tax on crude oil imported into India for Mathura
Refinery.
(ii) that a suitable writ, order or direction in the nature of
mandamus be issued restraining the Respondents, their
B servants, agents or representative from in any manner
collecting any entry tax from petitioner pursuant to the Act;
(iii) that a suitable writ, of certiorari, order or direction in the
nature of certiorari be issued calling for the records and
quashing the assessment orders enclosed as Annexure
C 3 to 11;
(iv) that a suitable writ, order or direction in the nature of
mandamus or prohibition be issued restraining/ prohibiting
the Respondents from taking any further steps or action
pursuant to the impugned assessment orders;
D (v) issue a suitable writ, order or direction for refund of the entry
tax hitherto paid by the Petitioner to the Respondent pursuant
to the impugned Act;
(vi) that a suitable writ, order or direction be issued as this Hon’ble
Court may deem fit and proper in the circumstances of the
E case in the facts and circumstances of the case.
(vii) award the costs of the petition to the petitioner.”
22. As noted above the liberty was granted by this Court to the
appellant by its order dated 21.03.2017. The liberty granted to the
appellant was on the issues which were left open by the Nine-Judges
F
Constitution Bench judgment dated 21.03.2017 and noticed. Following
are certain other aspects which were argued before the Constitution
Bench but left open:
“(1) Whether the entire State can be treated as ‘local area’ for
the purposes of entry tax?
G
(2) Whether entry tax can be levied on the goods which are
directly imported from other countries and brought in a
particular State?

H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 623
[ASHOK BHUSHAN, J.]

(3) In some statutes enacted by certain States, there A
was a provision for giving adjustment of other 20 C. A.
Nos. 997-998/2004 etc. taxes like VAT, incentives etc. paid
by the indigenous manufacturers and it was contended by
the assesses that whether the benefits given to certain
categories of manufacturers would amount to discrimination
B
under Section 304.”
23. Ultimately, this Court on 21.03.2017 referring to the aforesaid
issues gave following liberty:
“According to us, in the aforesaid scenario, appropriate course
of action would be to permit the appellants to file fresh petitions C
by May 31, 2017, raising the aforesaid issues with necessary factual
background or any other constitutional/ statutory issue which arises
for consideration.”
24. Writ Petition No.25730 of 2017 was filed by the appellant in
pursuant to the liberty dated 21.03.2017 aforesaid. The main pleadings D
and the grounds raised in the writ petition relate to challenge to vires of
Act, 2007. In the writ petition direction sought was declaring the Act,
2007 as invalid, void and unconstitutional in so far as purports to levy
entry tax on crude oil imported into India for Mathura Refinery. Further
reliefs were claimed in the writ petition including prayer for quashing the
assessment orders enclosed as Annexure 3 to 11 to the writ petition that E
is assessment orders 1999-2000 to 2011-2012. It is also relevant to
notice that in the writ petition there was challenge to interest also.
Following was stated in paragraphs 33 and 34 of the writ petition:
“33. That in view of the aforesaid, it is submitted that the judgment
of Atiabari case and Automobile case having been overruled F
on 11.11.2016 by the Nine Judges Bench of the Apex Court, hence
the interest and penalty could not be demanded from the petitioner
for the period prior to 11.11.2016 as the petitioner has acted upon
the law, as has been declared by the Constitutional Benches of
Hon’ble Apex Court earlier, which was holding the field, as being G
the law of the land. Hence, when the law itself has been overruled
subsequently and the petitioner being a bonafide dealer was acting
as per the provisions of the law, as was existing during the period
in dispute, cannot be made to suffer due to subsequent change in
the law by the Hon’ble Apex Court.
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624 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 34. That without prejudice to the above, it is submitted that even
otherwise the interest, if any, could not be charged from the
petitioner prior to the date of passing the assessment order.”
25. A perusal of the judgment of the High Court dated 04.05.2018
indicates that the Division Bench in paragraph No.40 took the view that
B the Division Bench is to deal with the challenge on the grounds as reflected
in the judgment of the Regular Bench dated 21.03.2017. It is useful to
extract paragraph No.40 of the judgment, which is to the following effect:
“40. Thus, while overruling the objection to the maintainability of
these petitions, we would like to confine ourselves within the
C forecorners of the judgment of the regular Bench dated 21 March,
2017. We further observe, once again at the cost of repetition,
that the challenge to the validity of the Act, 2007 was considered
by the Division Bench in ITC Limited on all grounds including
the ground that the levy of tax under the Act is compensatory in
nature. In view of the opinion expressed by the Nine Judges’
D Bench, whereby compensatory theory has been completely wiped
out, we would have to, therefore, consider the challenge limited to
the grounds reflected in the questions framed by the regular Bench
of the Supreme Court. In short and in substance, we observe that
we would be dealing with the challenge only on the grounds as
E reflected in the judgment of the regular Bench dated 21.03.2017,
in the light of the judgment of Nine Judges’ Bench in Jindal
Stainless-II.”
26. The Division Bench, thus, confined the consideration limited
to the grounds reflected in the questions framed by the regular Bench of
F the Supreme Court. The Division Bench, thus, consciously confined the
consideration to only three questions as we have extracted above from
the judgment of this Court dated 21.03.2017. The Division Bench clearly
did not permit the consideration of any other questions including the
question of interest which is clear from the judgment dated 04.05.2018.
It has been specifically submitted that when the judgment was reserved
G on 09.11.2017 in Bunch of writ petitions including W.P.No.25730 of 2017,
in the writ petitions where challenge to levy of interest was separately
made were de-tagged. The order dated 09.11.2017 passed in Writ Tax
No.474 of 2017 (M/s. Birla Corporation Limited Vs. State of U.P. and
others) had been brought on record as Annexure P-24 where the Division
H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 625
[ASHOK BHUSHAN, J.]

Bench ordered: “This petition be de-linked from the Bunch. Place it A
before the appropriate Bench.”
27. Specific ground No.L has also been taken which reads as
follows:
“L. Because even at the time of reserving its judgment in Writ-C
No.25730 of 2017 and connected matters on 09.11.2017, the High B
Court had de-linked all such writ petitions in which the demand of
interest on entry tax was assailed.”
28. It is admitted before us by the counsel for the parties that Writ
Tax No.474 of 2017, which de-tagged with the Bunch of Writ Petition
No.25730 of 2017 is still pending for consideration before the High Court. C
Present is a case where the Division Bench while deciding Writ Petition
No.25730 of 2017 consciously restricted the consideration to three
questions as noted in the judgment of this Court dated 21.03.2017 and
did not permit to raise any submission other than three questions as
noted above or proceed to consider any other questions. The issue which D
has not been expressly permitted to be decided by judgment dated
04.05.2018 cannot operate as res judicata in subsequent writ petition
filed by the appellant where the challenge to the leviability of the interest
has been raised. Section 11 Explanation 4 C.P.C. on which much reliance
has been placed by the counsel for the appellant provides:
E
“Section 11. Res judicata.- No Court shall try any suit or issue
in which the matter directly and substantially in issue has been
directly and substantially in issue in a former suit between the
same parties, or between parties under whom they or any of them
claim, litigating under the same title, in a Court competent to try
such subsequent suit or the suit in which such issue has been F
subsequently raised, and has been heard and finally decided by
such Court.
xxx xxx xxx xxx
Explanation IV.- Any matter which might and ought to have been
G
made ground of defence or attack in such former suit shall be
deemed to have been a matter directly and substantially in issue
in such suit.
29. What Explanation IV provides is that a plea which might and
ought to have been taken in the earlier suit, shall be deemed to have
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626 SUPREME COURT REPORTS [2019] 6 S.C.R.

A been taken and decided against person raising the plea in the subsequent
suit. Present is a case where the plea of questioning the leviability of the
interest was specifically raised by the appellant in the writ petition in
paragraphs 33-34 as noticed above. The Division Bench of the High
Court did not entertain such pleas due to the Court having restricted the
consideration to the three questions as noted above. In the above fact
B
situation, we are of the view that subsequent writ petition where plea of
leviability of the interest was raised could not have been thrown on the
ground of res judicata. The sequence of the events and the fact of de-
tagging the writ petition with the main Bunch where challenge to interest
was made separately clearly indicate that the Division Bench which
C reserved the judgment on 09.11.2017 clearly intended not to entertain
the question of liability to pay interest in the Bunch which was reserved
on 09.11.2017. When the High Court has expressly restricted the
consideration to three issues noted above, the plea of constructive res
judicata cannot be pressed in service against the appellant to preclude
him from raising the question which was not expressly permitted to be
D
argued in Writ Petition No.25730 of 2017.
30. There is one more reason due to which we are not to shut the
consideration of question of liability of the appellant to pay interest on
the Entry Tax. From the facts of the case, as noticed above, it is apparent
that in the order of this Court passed on 06.12.2013 while modifying the
E interim order passed in C.A. No. 3413 of 2012 (arising out of
SLP(C)No.2757-2758 of 2004), this Court observed “in the event of
appellant failing in this appeal, the appellant will be liable to pay
the arrears of tax along with interest, as may be determined by
this Court under the provisions of the Uttar Pradesh Entry Tax
F Act, 2007, at the time of final disposal of the appeal.” When Appeal
No.3413 of 2012 was ultimately decided on 21.03.2017 by this Court,
this Court granted liberty to the appellant to file fresh writ petition raising
the issues mentioned therein for consideration of the High Court. In the
order dated 21.03.2017 there was no determination by this Court
regarding interest to be paid by the appellant under the provisions of the
G Entry Tax Act, 2007. However, when the liberty was granted by this
Court to the appellant to raise above noted three issues on the necessary
factual background or any other constitutional/statutory issues, which
arise for consideration, the High Court was free to consider the question
of liability of interest to be satisfied by the appellant under Act, 2007.
H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 627
[ASHOK BHUSHAN, J.]

31. Further, what is the scheme of payment of interest under Act, A
2007 is a question which depends on the interpretation of the Act, 2007
and the Rules framed thereunder. The issue needs determination for
proper working of the Act and the Rules. In this context, we may refer
to judgment of this Court in Shree Bhagwati Steel Rolling Mills Vs.
Commissioner of Central Excise and another, (2016) 3 SCC 643,
B
where question of levying interest under the provisions of Central Excise
Act, 1944 under Rule 96-ZO, 96-ZP and 96-ZQ of Central Excise Rules,
1944 was held question of jurisdiction to levy interest and the said question
was allowed to be raised. This Court laid down following in
paragraph 29:
“29……………We also feel that since this is a question of the C
very jurisdiction to levy interest and is otherwise covered by a
Constitution Bench decision of this Court, it would be a travesty
of justice if we would not allow Shri Aggarwal to make this
submission.”
32. We are, thus, of the view that the question relating to nature D
and extent of liability to pay interest on Entry Tax under the scheme of
Act, 2007 need to be examined by this Court in these appeals. In view of
the above discussion, we are of the view that the High Court in the
impugned judgment committed error in upholding the preliminary objection
of the respondent. We are of the view that the question relating to nature E
and extent of liability of interest on Entry Tax under the scheme of Act,
2007 need to be examined and answered in these appeals. The question
is answered accordingly.
Question No.2
33. The submission of the appellant is that interest on the Entry F
Tax is not payable by the appellant under the Act, 2007, inasmuch as
there is no substantive provision under the Act, 2007 providing for levy
of interest on the outstanding Entry Tax. Referring to provision under
Act, 2007 it is submitted that interest on Entry Tax is contemplated only
under Section 12 (3) where tax along with interest and penalty is G
contemplated where any manufacturer fails to deposit the tax under
Section 12. He submitted that there is no other substantive provision of
levy of interest. Referring to Section 13, contention is that Section 13
applies only machinery provisions of U.P. Value Added Tax Act, 2008
which provision can at best be stated to be applicability of machinery
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628 SUPREME COURT REPORTS [2019] 6 S.C.R.

A provisions and applicability of those provisions cannot be said to be
applicability of any substantive provision regarding interest. For
considering the above submission, we need to first notice the provisions
of Act, 2007 which are relevant for the present controversy. Section 4
of the Act provides for levy of tax. Section 4(1) provides that for the
purpose of development of trade, commerce and industry in the State,
B
there shall be levied and collected a tax on entry of goods specified in
the Schedule into a local area for consumption, use or sale therein, from
any place outside that local area, at such rate not exceeding five per
cent of the value of the goods as may be specified by the State
Government by notification.
C 34. Section 9 deals with submission of returns and assessment of
tax. Section 10 deals with provisional assessment of tax. Section 12
deals with realisation of tax through manufacturer. Section 12(1), (2)
and (3) are as follows:
“12. Realization of tax through manufacturer (1) Notwithstanding
D anything contained in any other provision of this act, any person
who intends to bring into a local area from any manufacturer
within the State, such goods specified in the Schedule as may be
notified by the State Government, shall, at the time of taking
delivery of the goods from the manufacturer, pay to the
E manufacturer the tax payable on entry of such goods into the
local area and the manufacturer shall receive the tax so paid. The
manufacturer 1[shall not deliver such goods] to the purchaser
unless the amount of such tax has been paid by the purchaser.
(2) The manufacture receiving the tax under sub-section (1)
F shall submit to the Assessing Authority a return in respect of the
goods supplied, and the tax received, by him under subsection (1)
and deposit the tax so received in such manner and within such
time as may be prescribed.
(3) Where any manufacturer fails to deposit, the tax under this
G section he shall be liable to pay the tax along with the interest and
penalty, if any, payable thereon which shall be recoverable as
arrears of land revenue.
xxxx xxxx xxxx xxxx”

H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 629
[ASHOK BHUSHAN, J.]

35. The next provision we notice is Section 13 which provides for A
applicability of certain provisions of U.P. Value Added Tax Act, 2008.
Section 13 as far as relevant is as follows:
“13. Applicability of certain provisions of the Uttar Pradesh
Trade Tax Act, 1948 - The following provisions of the Uttar
Pradesh Value Added Tax Act, 2008, shall mutatis mutandis apply B
to all dealers and proceedings under this Act:-
(i) Section 9 - Liability of firm, association of persons and
Hindu Undivided Family;
(ii) Section 10 - Tax due from deceased person payable by
his representatives; C

(iii) Section 11 - Tax liability in case of minor or incapacitated
person;
(iv) Section 12 - Liability in case of Court of wards;
(v) Section 16 - Burden of proof; D
(vi) Section 19 - Security in the interest of revenue;
(vii) Section 21 - Account and documents to be maintained by
dealers;
(viii) Section 29 - Assessment of tax of turnover escaped from E
assessment;
(ix) Section 30 - Rounding off of turnover and tax;
(x) Section 31 - Rectification of mistakes;
(xi) Section 32 - Power to set aside ex parte order of F
assessment or penalty;
(xii) Section 33 - Payment and recovery of tax;
Xxxxxxxxx
xxxxxxxxx”
G
36. Now coming back to the submission of the learned counsel
for the appellant that only substantive provision in Act, 2007 pertaining
to payment of interest is Section 12. Section 12 deals with only one
incident of realisation of Entry Tax, i.e., through manufacturer. Section

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630 SUPREME COURT REPORTS [2019] 6 S.C.R.

A 12(1) makes it clear that any person who intends to bring into a local
area from any manufacturer within the State, such goods specified in
the Schedule as may be notified by the State Government, shall, at the
time of taking delivery of the goods from the manufacturer, pay to the
manufacturer the tax payable on entry of such goods into the local area
and the manufacturer shall receive the tax so paid. Section 12(2) creates
B
liability on person who intends to bring into a local area from any
manufacturer any goods specified in the Schedule and the time of
payment is statutorily laid down that is at the time of taking goods. Section
12(3) contemplates a situation where although manufacturer received
the tax under Section 12(1) but failed to pay tax as required by Section
C 12(2) then he shall be liable to pay tax along with the interest. Thus,
liability of the interest under Section 12(3) is confined to one particular
situation and does not provide for any universal application for payment
of interest. Requirement of payment of interest under Section 12 (3),
thus, is for a particular situation and has no application with regard to
any other instance of liability to pay tax. Present is a case where appellant
D
is not receiving any goods from any manufacturer, hence, in the present
case Section 12 has no applicability.
37. Learned counsel for the appellant has placed reliance on the
Constitution Bench judgment of this in J.K. Synthetics Limited Vs.
Commercial Taxes Officers, (1994) 4 SCC 276. In paragraph 16 of
E the judgment the Constitution Bench laid down following:
“16. It is well-known that when a statute levies a tax it does so
by inserting a charging section by which a liability is created or
fixed and then proceeds to provide the machinery to make the
liability effective. It, therefore, provides the machinery for the
F assessment of the liability already fixed by the charging section,
and then provides the mode for the recovery and collection of tax,
including penal provisions meant to deal with defaulters. Provision
is also made for charging interest on delayed payments, etc.
Ordinarily the charging section which fixes the liability is strictly
G construed but that rule of strict construction is not extended to the
machinery provisions which are construed like any other statute.
The machinery provisions must, no doubt, be so construed as would
effectuate the object and purpose of the statute and not defeat
the same. (See Whitney v. IRC, CIT v. Mahaliram Ramjidas,
India United Mills Ltd. v. Commissioner of Excess Profits Tax,
H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 631
[ASHOK BHUSHAN, J.]

Bombay and Gursahai Saigal v. CIT, Punjab). But it must also A
be realised that provision by which the authority is empowered to
levy and collect interest, even if construed as forming part of the
machinery provisions, is substantive law for the simple reason
that in the absence of contract or usage interest can be levied
under law and it cannot be recovered by way of damages for
B
wrongful detention of the amount……”
38. What is relevant to be noticed in the aforesaid pronouncement
is that what the Court has held that provision by which the authority is
empowered to levy and collect interest, even if construed as forming
part of the machinery provisions, is substantive law. There is no quarrel
to the proposition that liability to pay a tax or interest on it has to be C
provided by a substantive law.
39. Section 13 mutatis mutandis applies Section 33 of U.P. Value
Added Tax Act, 2008. Section 33 of the VAT Act, 2008 is as follows:
“33. Payment and recovery of tax- (1) Any amount of tax or D
fee or penalty or any other amount, which a dealer or other person
is liable to pay under this Act, shall be deposited by the dealer or
such other person in the prescribed manner.
(2) Subject to provisions of section 42, the tax admittedly payable,
shall be deposited within the time prescribed, failing which simple E
interest at the rate of one and quarter percent per mensum shall
become due and be payable on unpaid amount with effect from
the day immediately following the last date prescribed till the date
of payment of such amount and nothing contained in section 24
shall prevent or have the effect of postponing liability to pay such
interest. F
Explanation-For the purposes of this sub-section, the tax
admittedly payable for a tax period or an assessment year, as the
case may be, shall be computed in accordance with provisions of
section 15.
G
xxx xxx xxx
(4) If the tax {other than the tax admittedly payable to which sub-
section (2) applies} assessed, re-assessed or enhanced by any
authority or court remains unpaid after expiration of the period
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632 SUPREME COURT REPORTS [2019] 6 S.C.R.

A specified in the notice of assessment and demand, simple interest
at the rate of one percent per mensum on the unpaid amount
calculated from the date of such expiration shall become due and
be payable.
xxx xxx xxx
B 40. Further the Constitution Bench of this Court in V.V.S Sugars
Vs. Govt. of A.P. and others, (1999) 4 SCC 192, again reiterated
the same principle in paragraph No.6, which is to the following effect:
“6. This Court in India Carbon Ltd. v. State of Assam has held,
after analysing the Constitution Bench judgment in J.K. Synthetics
C Ltd. v. CTO that interest can be levied and charged on delayed
payment of tax only if the statute that levies and charges the tax
makes a substantive provision in this behalf. There being no
substantive provision in the Act for the levy of interest on arrears
of tax that applied to purchases of sugarcane made subsequent to
D the date of commencement of the amending Act, no interest
thereon could be so levied, based on the application of the said
Rule 45 or otherwise.”
41. What is the nature of the provision of Section 33 of the VAT
Act, 2008 which has been made applicable by virtue of Section 13 of
E Act, 2007 is the question to be answered? Section 13 “mutatis mutandis”
applies certain provisions of VAT Act, 2008 as mentioned in Section 13.
Words “mutatis mutandis” came to be considered in M/s. Ashok
Service Centre and others Vs. State of Orissa, (1983) 2 SCC 82.
In the aforesaid case this Court had occasion to consider the provisions
of Orissa Additional Sales Tax Act, 1975. Section 2(2) of which provision
F mutatis mutandis applies the provisions of Orissa Sales Tax Act, 1947.
In the above reference, this Court explained the expression “mutatis
mutandis” in paragraph No.17, which is to the following effect:
“17. Section 3(2) of the Act which makes the provisions of the
principal Act mutatis mutandis applicable to the levy of additional
G tax is a part of the charging provision of the Act and it does not
say that only those provisions of the principal Act which relate to
assessment and collection of tax will be applicable to the
proceedings under the Act. Before considering what provisions
of the principal Act should be read as part of the Act, we have to
understand the meaning of the expression ‘mutatis mutandis’. Earl
H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 633
[ASHOK BHUSHAN, J.]

Jowitt’s The Dictionary of English Law (1959) defines ‘mutatis A
mutandis’ as ‘with the necessary changes in points of detail’.
Black’s Law Dictionary (Revised 4th Edn., 1968) defines ‘mutatis
mutandis’ as “with the necessary changes in points of detail,
meaning that matters or things are generally the same, but to be
altered when necessary, as to names, offices, and the like.
B
Housman v. Waterhouse. In Bouvier’s Law Dictionary (3rd
Revision, Vol. II), the expression ‘mutatis mutandis’ is defined as
“[T]he necessary changes. This is a phrase of frequent practical
occurrence, meaning that matters or things are generally the same,
but to be altered when necessary, as to names, offices, and the
like”. Extension of an earlier Act ‘mutatis mutandis’ to a later Act C
brings in the idea of adaptation, but so far only as it is necessary
for the purpose, making a change without altering the essential
nature of the thing changed, subject of course to express provisions
made in the later Act. Section 3(2) of the Act shows that the
State legislature intended not to depart substantially from the
D
principal Act except with regard to matters in respect of which
express provision had been made in the Act. The assumption made
by the High Court that the Act was an independent Act having
nothing to do with the principal Act is not correct. The Act only
levied some extra sales tax in addition to what had been levied by
the principal Act. The nature of the taxes levied under the Act E
and under the principal Act was the same and the legislature
expressly made the provisions of the principal Act mutatis mutandis
applicable to the levy under the Act. The additional sales tax was
in the nature of a surcharge over and above what was due and
payable by an assessee under the principal Act. The Act, though
F
it had a long title, a short title and other usual features of every
statute, could not be considered as an independent statute. It had
to be read together with the principal Act to be effective. In the
circumstances the conclusion reached by the High Court that the
two Acts were independent of each other was wrong. We are of
the view that it is necessary to read and to construe the two Acts G
together as if the two Acts are one, and while doing so to give
effect to the provisions of the Act which is a later one in preference
to the provisions of the principal Act wherever the Act has
manifested an intention to modify the principal Act. The following
observations of Lord Simonds in Fendoch Investment Trust Co.
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634 SUPREME COURT REPORTS [2019] 6 S.C.R.

A v. Inland Revenue Commissioners made in connection with the
construction of certain fiscal statutes are relevant here. He said
at p. 144:
“My Lords, I do not doubt that in construing the latest of a
series of Acts dealing with a specific subject-matter, particularly
B where all such Acts are to be read as one, great weight should
be attached to any scheme which can be seen in clear outline
and amendments in later Acts should if possible be construed
consistently with that scheme.”
42. Further, again the same proposition was reiterated in Rajasthan
C State Industrial Development and Investment Corporation and
another Vs. Diamond & Gem Development Corporation Limited
and another, 2013 (5) SCC 470. In paragraph No.18 following has
been laid down:
“18. Thus, the phrase “mutatis mutandis” implies that a provision
D contained in other part of the statute or other statutes would have
application as it is with certain changes in points of detail.”
43. Thus, application of provisions of VAT Act, 2008 is provided
by Section 13 of Act, 2007 with certain changes in points of details.
Section 33 of the VAT Act, 2008 which has been mentioned to apply
E under Section 13 has to be applied with respect to payment and recovery
of tax. Thus, the payment of interest which is contemplated under Section
33 on the amount of tax has to be applied with regard to the payment of
Entry Tax and the interest thereon. Even if provision of Section 33 of
VAT Act, 2008 to be treated as machinery provision which is to be applied
by virtue of Section 13 of Act, 2007, the machinery provision has to be
F interpreted in a manner so as to make the liability effective and treated
to be substantive law.
44. In this context, we may also notice the judgment of this Court
in India Carbon Ltd. and others Vs. State of Assam, (1997) 6 SCC
479. In the above case the payment of Central Sales Tax on inter-State
G sales of petroleum coke were delayed and the appellants were required
by the respondents to pay interest in purported exercise of their powers
under Section 35A of the Assam Sales Tax Act. The writ petition was
filed challenging the exemption of tax. One of the questions noted for
consideration is as to whether Section 9(2) of the Central Sales Tax Act
H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 635
[ASHOK BHUSHAN, J.]

did not visualise any payment of interest. Section 9(2) has been extracted A
in the judgment in paragraph 4 which is to the following effect:
“4. Section 9(2) of the Central Act, as it stood at the relevant
time, read thus:
“9. (2) Subject to the other provisions of this Act and the rules
made thereunder, the authorities for the time being empowered B
to assess, reassess, collect and enforce payment of any tax
under the general sales tax law of the appropriate State shall,
on behalf of the Government of India, assess, reassess, collect
and enforce payment of tax, including any penalty, payable by
a dealer under this Act as if the tax or penalty payable by such C
a dealer under this Act is a tax or penalty payable under the
general sales tax law of the State; and for this purpose they
may exercise all or any of the powers they have under the
general sales tax law of the State; and the provisions of such
law, including provisions relating to returns, provisional
assessment, advance payment of tax, registration of the D
transferee of any business, imposition of the tax liability of a
person carrying on business on the transferee of, or successor
to, such business, transfer of liability of any firm or Hindu
undivided family to pay tax in the event of the dissolution of
such firm or partition of such family, recovery of tax from third E
parties, appeals, reviews, revisions, references, refunds, rebates,
penalties charging or payment of interest, compounding of
offences and treatment of documents furnished by a dealer as
confidential, shall apply accordingly.”
45. The Constitution Bench judgment of this Court in J.K. F
Synthetics (supra) was noticed and referring to the ratio of the
Constitution Bench following was observed in paragraph 7:
“7. This proposition may be derived from the above: interest can
be levied and charged on delayed payment of tax only if the statute
that levies and charges the tax makes a substantive provision in G
this behalf.”
46. This Court in India Carbon Ltd. (supra) held that the
provision relating to interest in the latter part of Section 9(2) can be
employed by the States’ sales tax authorities only if the Central Act
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636 SUPREME COURT REPORTS [2019] 6 S.C.R.

A makes a substantive provision for the levy and charge of interest on
Central sales tax and only to that extent. In paragraph 13 following has
been laid down:
“13. Now, the words “charging or payment of interest” in Section
9(2) occur in what may be called the latter part thereof. Section
B 9(2) authorises the sales tax authorities of a State to assess,
reassess, collect and enforce payment of the Central sales tax
payable by a dealer as if it was payable under the State Act; this
is the first part of Section 9(2). By the second part thereof, these
authorities are empowered to exercise the powers they have under
the State Act and the provisions of the State Act, including
C provisions relating to charging and payment of interest, apply
accordingly. Having regard to what has been said in the case of
Khemka & Co. it must be held that the substantive law that the
States’ sales tax authorities must apply is the Central Act. In such
application, for procedural purposes alone, the provisions of the
D State Act are available. The provision relating to interest in the
latter part of Section 9(2) can be employed by the States’ sales
tax authorities only if the Central Act makes a substantive provision
for the levy and charge of interest on Central sales tax and only to
that extent. There being no substantive provision in the Central
Act requiring the payment of interest on Central sales tax the
E States’ sales tax authorities cannot, for the purpose of collecting
and enforcing payment of Central sales tax, charge interest
thereon.”
47. Section 9(2) was considered in two parts. This Court treated
the first as substantive provision whereas second part only for procedural
F purpose alone, due to the above reason, this Court held that any claim of
interest was unfounded. In the case before us, Section 33 has been
made applicable by virtue of Section 13 mutatis mutandis. There is no
such dichotomy in Section 13 as was noticed in India Carbon Ltd. in
Section 9(2) of the Central Sales Tax Act.
G 48. As noticed above the Constitution Bench of this Court in J.K.
Synthetics Ltd. has laid down “………But it must also be realised that
provision by which the authority is empowered to levy and collect interest,
even if construed as forming part of the machinery provisions, is
substantive law………” We have, thus, no hesitation in rejecting the
H
INDIAN OIL CORPORATION LTD. v. STATE OF U.P. & ORS. 637
[ASHOK BHUSHAN, J.]

submission of the learned counsel for the appellant that Act, 2007 does A
not contain any substantive law for levy of the interest. Question No.2 is
answered accordingly.
49. We having answered jurisdictional question no.1 and question
no.2, other questions and issues need to be remitted to the High Court
for consideration. The questions for determining the liability of interest B
and various aspects including factual aspects need to be examined and
considered by the High Court. For instance, what shall be the effect of
deposit of Entry Tax in separate interest-bearing account in pursuance
of the interim order of this Court dated 09.02.2004 in Civil Appeal
Nos.997-998 of 2004 as noted above needs to be considered. There
may be few other issues, questions of facts which need to be decided by C
the High Court for determining the liability of interest of the appellant. It
shall also be open for the High Court to frame any other question or
issue which may be required to be considered and answered.
50. In result, the appeals are allowed. The impugned judgment of
the High Court dated 22.11.2018 is set aside. The Writs are revived D
before the High Court to be considered and decided on merits.
51. The parties shall bear their own costs.

Divya Pandey Appeals allowed. E

F

G

H