JINDAL STAINLESS LTD. & ANRversusSTATE OF HARYANA & ORS

                           120161 JO S.C.R. l


                 .JINDAL STA!NLESS TTD. & ANR.                                A
                                    v.

                   STATE OF HARYANA & ORS.
                    (Civil Appeal No. 3453 of 2002)
                         NOVEMBER 11. 2016                                    B
      IT. S. THAKUR, C.ll, A. K. SIKRl, S. A. BOBDE,
  SHIVA KIRTI SINGH, N. V. RAMANA, R. BANUMATHI,
  A. M. KIJANWILKAR, DR. D. V. CIIANDRACIJUD AND
                 ASllOK BHlJSHAN, .I.I.I
      Constitution of India:                                                  c
        Arts.301. 304 · Taxes sirnpliciter are not within the
contemplation o( Part XIII of the Constitution-· Word 'Free' used in
:ln.301 does not mean "free .fim11 taxation" - Only such taxes as
al'(' discriminalorr in nature are prohihired ''Y Art.304(a) - hfi>ll01r.1·
that lny o( a no11-di.1·criminalon· tax would 110! co11stit11fe an
                                                                              D
infi·action of/lrt.301 -·Decisions o/thi.1· Court in Atiabari. Automobile
Transport and .Jindal case.1· and all otherjudgmenrs that /bl/ow these
pm11011nce111e11/s are to the extent o{ s1.1ch reliance overruled - Entry
fox. (Per maiority)
                                                                              E
      Art.30-'l{a).(h) - Clm1ses (a) and (h) of Art.301 to he read
disiw1ctivelv. (Per majoritvj
       Art.304(a). (h)    /I /ei:r that 1·iolates Art.304(a} cannot he
sm·ed ei·e11 i( the pmcedure ul·lrt.31N(h) or the pro1·iso thereunder
is satisfied. (Per majority)
                                                                              F
       Cm11pen.1·atorv tax thenrv - Held: Th{' Compensatorv Jax
theory evolved in Automobile Transport case and suhsequemly
modified i11 Jinctars case hos no juristic basis and is rejected. (Per
maf o ri I)')

       ilrr . .l(M - .1 tax 011 entn· ofp,oods into a local area fbr use,     G
sale or consumption therein is pennissihle even H'hen similar good'
are nor produced wi1hi11 the taxing Stale - Art.301/ (a) .fi"mrns upon
disai111i11ation (of a hostile nature in the protectio12ist sense) and
 not 011 mere differentiation - Therefore. incentives. set-offs etc .
.~ra111ed to a specified class of dealers (or a limited period ·of rime
                                                                              1-1
2             SUPREME COURT REPORTS                      [2016] 10 S.C.R.



A    in a non-hostile fashion with a view to developing economical!)'
     backward areas would not violate ;lrt.304(a) - The question i,·hether
     the levies in the present case indeed satisfl' this test is !efi to he
     determined hv the i·egular benches hearing the matters. (Per
     majoritv)
B          llrt.304 - States are well within their right to design their
  fiscal legislations lo ensure that the lax hurden on good1· imported
  .fi·o111 other States and good~ produced within the State fall equallv
   - Such measures if taken would 1101 contravene Art. 304(a) - The
   q11es1irm · H·hether the le Pies in the present case indeed satislr this
C test is left to he deter111ined by the regular benches hearing the
   matters. (Per majoritv)
            Sch. VJJ Dst II Entry 52 - E1111y Tax - 1/1e questions whether
     the entire State can he notified as a local area and whether entrv
     tax can he levied on ,<_?,oods entering the landmass of India fimn
D    another countrv left open to he determined in appropriate
     proceeding,.1·. (Per majoritv)
            Sovereignll' - Power to tax - Held: ft is essential attrihute of
     s0Fereig11tv - Exercise o( s01·ereign power is however subject to
     co11stit11tional li111i1atio11 - Poirer to le1y taxes heing a sovereign
r~   pmver controlled 011/p /Jv Constitution, limitation on that poiver must
     /Jc express. (Per T S. Thak111; CJ/for himself and for A.K. Sikri and
     A.M. Khamrilkar. J.1.)
           Arts.245, 246 and 304(a) - State\· power to levy tax - Held:
   Crmstiwtionallr vested pmver to /epy tax can he regulated or
F controlled onlv hv specific Constitutional limitations, if any -
   Applving this principle to the case at ha11d, there is 110 specific
   limitation on the State'.\· power to few taxes on the import of goods
  .fi"om other States except the one re/erred to in Art.304(a) - That
   limira1io11 is confined to lev.v of discriminatory taxes within the
   comprehension of Art.304(a) - So long as taxes are 11011-
G discriminarorr and. therefi1re, consistent with Art.304(a}, there is
   no limitation leave alone any express limitation on the States·
   legislative power to levv any tax 011 the import ofgood1ji·o111 another
   State - The pmver to /e1y a tax in terms of Arts.245 and 246 read
   v.oith E11t1T 52 of Us! Ii no/ heing in dispute in the cases at hand, the
H
       JINDAL STAINLESS LTD. v. STATE Of HARYANA                                 3


 ahsence of am• specific limitatio11 forhidding the exercise of' such            A
/!ower whether fiJr the sake o(fi-'ee rrade, commerce and i11tercourse
 or othenvise simplr 111ea11s that the Stare legislatures are ,fl-ee to le1~v
 laxes that are non-discriminatorr in nature (Per T S. Thak111; CJl
j(Jr himself and for A.K. Sikri and A.M Khanwilkm; JJ.)
         An.301 - Whether unreasonah!y high rate of' tax could hy                B
i1sel/'co11.1·tit11te restriction offensh·e to ,.Jrt.301 - Held: Taxes whether
high or 1011· do not constiture restricrion.1· on the freedom of' trade
and co11m1erct' - Mert' .fact that a tax casts a heavy hurden is no
reason .fin· holding that it is a restriction on the .fi'eedom of trade
and commerce - Any such excessive tax hurden may he open to
                                                                                 c
challenge under Part 111 of the Constitution hut the extent of /Jurden
mmld not h1• itselfjustifi• the levv being srruck dmn1 as a restriction
rnntrm:i· to Art.301 of the Constitution. (Per 'l: S. Thakw; CJlfor
hi111sell a11d for A.K. Sikri and A.M. Khanwi!km; JJ.)
           Arrs.301, 304(h) .. ls the Entrv fox levied hy the States in D
 the present hatch of cases violatiFe of' Art.301 of the Constiflltion
 and in particular have the impugned State enactments relating to
 rntrv tax to he tested wirh reference to hoth Arrs. 304(a} and 304(h)
.for deter111i11ing their rnlidity - Held: The re.1·n·ictio11s referred to in
 ilrt.304(h) ore nr!/l~fiscal in nature - Constirutiona! validizv of anv
 taxing statute has, theref{1re, to he tesred only on the anvil of' Art. E
 304(a) and if the /cnr is found to he 11011-discriniinatory, it can he
 declared to he crmstitutional!]' valid without the legislation having
 to go through the test or the process envisaged /Jy Art.304(/1) -
 Should, howeve1; the statute fc.1il the test of non-discrimination under
 .'1rt.304(a) it must he struck drn1:n fiJl· the same cannot he sustained F
 e\'en if it had gone through 1he process stipulated hy Art.304(h) -
  That is hccause H'hat is constitutionally impermissible in terms of'
 . lrr.304!a) cannot he validated and sanctioned through the medium
 of Art. 304 (h) - ,.f. fiscal statute shall he open to challenge only under
 Art.304(a) ·withow being suhjected to the te.1·1 of Art.304(h) either
                                                                              G
 in rerms of rhe exis1ence of puh!ie interest or reasono/1lene.1·s of' the
 lev\' - Court ought to examine whether the differentiation made is
 intended or inspired hv an element of' zmf'avoura/Jle hias in favour
 of the good1· produced or manufactured in rhe Stote as against those
 imported fiwn outside. (Per T. S. Thakw: CJl for himself and for
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4                 SUPREME Cl)lJRT REPORTS                       [2016\ 10 S.C.R.



A        /J. K. Sikri and A. M. Kharzwilkar; J.J.)
                Arts.3()1, 3()2, 3()3 and 3()4-Scope of-Held: A plain reading
         of Art.3()] 11'011ld show that fi·eedom of trade, commerce and
         intercourse is hr no means absolute, the same being subject to the
         other provisions of' Part Xiii ol the Constitution - The ahsolute
B        character of the .fi"eedom of trade, commerce and intercourse is lost
         hy reason of 11rt.302 itself empowering Parliament to impose such
         restrictions as it may consider necessarv in puhlic interest - Art.303,
         in turn. places restrictions 011 the legislative powers of the Parliament
         and of the States - A conjoint reading of Cl. (I) and (2) of Art.303
C        show.\· that 1-vhile Parliament/Legislature of' a State shall have no
         power to make a lmr imposing restriction on trade, .commerce and
         intercourse, hy giving or authorizing the giving of any preference
         to one State over the otho; such /imitation on the legislative power
         ol Parliament shall not extend to giving of any preference or making
         or authori::.ing any discrimination il it is declared hy law that a
])
         situation has arisen out of scarcity ofgoodv that makes it necessarv
         to do so - Government ol india Act, 1935 - s.297. (Per 1: S. l71ak11r,
          CJ! for hi111sell and for A.K. Sikri and A.M. Khanwilkw; JJ.)
                 Art.301 - !merpretation of - Held: Art.301 hegin.1· with the
         phrase 'Suhject to other provisions ol thi.1· Part.' - 171is phrase gives
         an initial indication as to what to expect - The position of this phrase
         should he taken into consideration - Even hefi1re the declaration
         of.fi"eedom of Trade. Commerce and intercourse, it is heing suhjected
         to limitations - Further the opening words ol Art.301, namely,
          'suhject to the provisions of' this part· require that all the Articles of'
         the Part Xiii have to he read together so as to understand the width
         and meanini~ o(the Part )(]JJ - 'Suhject to' is the dominant expression
         so far as Art.301 is concerned - It indicates suhservience to at
         least Arts.302. 303 and 304 - Arts.302 to 304 embody a restatement
         ofpov.·ers uhlrt.246 r/w the State List under the VII Schedule -
('
         Each restated power hv itself overrides the freedom of trade in
    ·'   Art.301. (Per N. V Ramana, J.)
               Art.301 - Legislative intent behind enactment - Held: The
         Co11stirution-maker.1· desired free flow ol trade and commerce in
         India as they realized that economic unity and integration of' the
         country provided the main sustaining force for the stahility and
H
       JINDAi. STAINLESS LTD. \. STATF OF HA RY ANA                             'i



progress of the political anJ economic unity of the nation, and that            A
the count1}' shouldfimction as one sin;;le economic '1111i(v without
harriers on internal trade -- A rt. 30 I was incorporated in the
Co11sti111rio11, in order to ensure that the State Legislat11re.1· suhjected
to local and regional pulls did not create trade harriers in fi1t11re.
(Per f?. Ramnnathi, J.)                                                         B
        Art.301 - Entrr tax - J,evy. if violative of Art.301 - Held:
l:'mrv tax is not collected at the hehest of m1111ir'ipality or a pa11chayat
attached to a checkpost -         It is payahle hr the asses.1·ee hv filing
!heir re111rn.1· - Imposition of En!!)' taY is not merely "on movement
or transport of goods": consideratio11 o{Ent1T 52, /,ist fl of Seventh C
Schedule shows tho! ta.rnhle event in the case of enlry tax is entrv
of'gornl' into the local area where if is to he used. consumed or sold
!herein -- !(the goods mcreir e!7ler inw a local area and then move
10 another destination heyonJ that local area, no tax can he levied
 1111der Entrr 52 -- fo attract a levv under Entry 52. Ust 11. the good\·
                                                                             ])
 must come w rest in the local area where they are taxed in the sense
 1/wl their firrther mo1•e111ent and transport stands terminated and
 the goods are supposed to he used, consumed or sold in thal local
 area - Since rn11:r tax is leviahle at the termination of the movement
 of' trade and the good1· have entered the local area fiJr the purpose
 or use, {'0/1S11111ption or sale. the levv of entry tax does not restrict E
.flow of'trade, co1111nerce or intercourse and is not violative of Art.301
 of' the Constitution. (Per R. Banumathi, J.)
          Arts. 30/ lo 304 - interpretation ol- Held: Art.301 ought
 not to he read as .fi'eedom .fi'mn tax lent'.\' - Tax legislation.1· can he
 challenged on the ground that they in/i'inge the Fundamental l?ight.1·
 1111der Part Ii1 hut that does not however mean that there is fi'eedom
 fi·o111 toxation or that tax is per se a restriction on Fundamental
 Rights or ji·eedom of' trade. commerce and intercourse - Taxes nre
 levied i11 puhlir: interest and hence. cannot he considered a restriction
 per se on the enjoyment of' a11v fi-eedom contemplated hy the
                                                                                G
 Constitution. (Per R. Ba1111111athi. J.)
         Art.303 - Whether use of' the expression "hy virtue of any
 entrr relating to trade and commerce" appearing in Art.303 are·
 wide enough to include entries relating to levy of' laxes also - Held:
 'f/1c consfit11tio11ol scheme is s11ch that a taxing enflJ is disti11ctfi·om
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              SUPREME COURJ' REPORTS                       J2016J 10 S.C.R.


A    other entries und levy of tax is possihle onZv if there is an entry
     vrhich authorises the competent legislature to levy the same - The
     entries relating to Trade. and Commerce hy themselves are 1101
     sufficient to empower the legislature to lev)' ta.~es. (Per T S. 77wkw;
     C.!Jj(Jr himself andfor A.K. Sikri and A.M Khanwilkm; JJ.)
ll          Art. 303 - Scope of - Held: Art.303 is m1 exception to Art.
     302, inasmuch as it limits the power co11ceded to the Parliament
     under Art. 302 to impose restrictions onji-eedom of Trade, Commerce
     and fnterco11rse in puh!ic interest - The power exercised hy Art.302
     cwmol he so exercised as to give preference to one State over
c    a11other except under a situation covered by Art. 303(2) namely
     situation arising fi·o111 scarcity of good1· in any part of the territory
     of India. (Per T S /7wlw1~ CJ!j(H himself and for A.K.Sikri and
     A.M. Khanwilkar, JJ)
            Art.304(a) - Whether Art.304(a) is violated if the goods
J)   suhjected to levy of entr)' tax are not produced or manufactured
     within the State le1ying the fax - Held: 771e essence of the guarantee
     in Art.304(a) lies in the same or similar good1· heing treated similarZv
     in the maffer of taxation - 771e guarantee is not violated if the goods
     suhjected to levy of Entrr tax are not produced or manufactured
     1dthi11 the State levvi11g the tax - ?his is hecause there is no question
F    of anr discrimination if goods ji"Oln outside the State are not al a
     disadvantage vis-a-vis good1· produced or 111am1factured within that
     State (Per T S lliakw: CJ! /(Jr himself andfilr A.K.Sikri and A.M.
     Khanwilkm: JJ.)
             Art.304(a) - Whether Art.304(h) treats taxes as a restriction
F   so that anv such levy mayfctllfoul of Art.301 - Held: Art.304(u) far
   .fi·o111 freafinp, raxes as a restriction per se, .1pecifical11• recognises
    the State legislature:\' povo,>er to impose the same on good~ imported
     fimn other States or Union Territories - ft is true that the source of
   .power avai!ahle to the State legislature to levv a tax is frmnd in
Ci .-lrts.245 and 246 of the Constitution but, the availabi!i~J' of such
    power .frir raxinp, goods imported fi·om other Stares or Union
      Territories is c!earlv recognised hy Art.304(a) - The expression 'ma)'
     ,r,y law impose· is certainlv nor a restriction 011 the pov.-'er 10 tax.
    (Per T S. Thakur, CJJ for himself and for A.K.Sikri and A.M.
    Kh«mv-:ilkm: JJ.)
H
       JlNDAL STAINLESS IJ'D. v. STATE OF HARYANA                              7



       Art.304(a) - !11te1pretatio11 al- J,evv al enfrJ tax ·when good~ A
similar to those imported are 1101 produced - Held: Art.304(a)
imposes two conditions: .firstly, that a law 111av impose 011 goods
i111ported fi'om other States, 'any tax' to which "'similar goods
111mwfi1crured or produced' in that State are subject - This clearly
implies that the good1· imported .fimn other States nwv he suhjected
                                                                         B
tn a tax Vl·here similar good\" are in fact, manufactured or produced
in the i111por1i11g State and are suhjected to tax - Jn other words, (a)
the good1· importedfi·om other States must be similar to (h) the good1·
1111111u/"acl11red or produced in the importing State and (c) the goods
so locallr m1111u/i.1ctured or produced must he suhject to tax - The
sr'{"(md condition is the tax that is imposed on imported goods should         c
no! discriminare hctwee11 the imported goods and goods
mm111/i1ct11red or produced in the importing State. (Per SA. Bohde,
J.)

         Art.3(N(a) - Leµ.islative intention hehind enactment - Held:
The inte11tio11 of" the 11rt.304(a) is that ivhere a tax exists on goods       D
imported into a Stale, there should he no discrimination het1ree1z
such a tax and u tax 011 similar good1· nw1111f"actured or produced in
the importing State - The effect ol such a co11struction is that the
imported goods cannot he taxed where similar goods are not
111111111/"actured or produced in the importing State and are there(rJre,      E
nor suhjected to similar tax and that seems to he the clear intention
of this Article - This interpretation would also .fi1rther economic
prop,ress and the unhindered availahility of" goodv in States which
dn not have 111an11/"acturing capacities and may not he ahle to
de\'(: lop it. having regard to lack of natural resources or other
                                                                               F
,;;eo,f!,raphicc;l limitations. (Per SA. Bohde, J.)
       Arr. 304(a} - Compensatmy tax theorv - Held: Since, in the
matter o/" levr of" taxes the compensatory rhemy is no more relevant.
the State Legislatures arefi·ee to exercise their taxing powers without
1hc 11eed of declaring and showing that taxes imposed hy them 011
                                                                               G
outside goods are f(Jr the henc/"it of concerned traders or
11111mdil{"fl/rers - But such tax must he, in essence, 11011-discriminatorv,
hoth, in the ultimate tax /Jurden and in 111achine1y provisions. (Per
Shirn Kirti Singh, J)
      An.304(a) - interpretation of'- Held: Art.304(a) should he
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8               SUPREME COURT REPORTS                            f2016] 10 S.C.R.


A     interpreted keeping in mind the ha lanced ·development of the
      cou111rv. tt11ich is an impor/anf part o( economic integration -
      Art.3(M(a) is not a limitation on the legislature of a State to impose
      such tax 011 goods imported - The onlv condition envisaged under
      Art.304 (a) is, same tax is imposahle on the good1· importedfi'0711
n     other States as v.dl as good1· if manufaC!ured in that State It is not
      correct to say that since goods· heing taxed are not produced in the
      Slate, the power to levy a tax gets ohlitera/ed, that is lo say, that
      A rt. 3 () ..f (a) does nor lwr levr of tm· if the gooll.1· are not nwnufactured
      or prod11ced within the State. (Per N. V. Ramana, J.)
C              Art. 30,1 - Wonil' "mav hy law" - lnrerpretation of- State\·
      pott·er ro levv tax · Held: The wordy "may hy lm..v" is an option
      ,f!,iven to the Sia/es in case it decides to levy any lax on the good1·
      importedfi·o111 other States ·· The source of legislalive poiver resides
      in Art.245 rlw Arl.246 - This power is not suhject to any implied
      limitation ·· The plain reading would show that in a given situatio11,
D     the State may hy choice decide not to levv any tax imported from
      other Stares or opt to levv taxes 011 certain goods imported fi'om
      other States. (Per NV. Ramana, J.)
             Art.304(a) - Difference in the rate of tax 011 goodv locally
      11w1111factured a11d those imported - Whether fall foul of Art.304(a}
I~
      - Held: Every differentiation is not discrimination -'Any difference
      in the rate of tax on good1· locally manufactured and those imported,
      such difj{!rence nor heing discriminat01:v does not fall foul under
      Al't.30-i(a) - Any incentivelhenefits of concession in the rate of tax
      given to the local 11wmifact11rers/producers in order to encourage
,..   the local 111anufauurers/production in the State cannot he said to
      he discriminarorv - Any difference in the rate of'tax on goocf.1· locally
      nw1111/{1ctured and those imported. such difference not heing
      discriminatorv does not fall foul of Art. 304(a}. (Per R. Banumathi,
      .J.)

Ci             Art.304 (a) and (h} - Whether Cl. (a) and (hj have to he read
      conjunctivelv - Held: Cl. (a) and (h) o/Art.304 deal with two distinct
      suhjects and mus/, thaefore, he u11derstood to he independent of
      each other ... While Cl. (a) deals entirelv vvith imposition of taxes on
      go(}(/.1· importedji·om othel' States, Cl. (h} deals with imposition of
      rcasonahle restriction in puhlic i11terest - The use of the word 'and'
H
       .TINDAi, STAINLESS r:rn. V, STATE Of HARYANA                              9



hl•t1we11 cl. (o) and (h) does 11ot admit of an interpretation that may A
impose an ol!ligation 11pon the legislat11re to necessarily impose a
lax and a re.1·trie1ion together - The word 'and' can mean 'or' as
irell as 'and· depemlin.~ upon the con/ext in which the law enacted
In• the legisla!ure uses the some. (Per T S. Thakw; CJ! f(>r himself
cmdji>r .1.K Sikri and .1.M. Kha11wil!a11: .!.!.)
                                                                          B
       Art.301(a}, (h) - Use of 11·ord 'and' afier semicolon -
ln!erpretation of: in the context o(Ar!.304 - Held: It ivifl have to he
read as 'or· rTeatin,t; u disjunctive reading of' Art.304(a} und
,.Jr1.3M(h! indicminp, thar the State Legislature can exercise ils poH·er
cilher under 11rl.304(a) or Art.3M(h! or hoth. (Per R. Bammwthi,
                                                                          c
./)
         Ar!.30 1/(h). proviso - Requirement of' Presidential sanction in
/erms u( pm1·i.1·0 - Held: Clause (h) dealing 1vith reaso11ah/e
rcs1riuiom· mus/ 11ecessarilv applv to restriction.\· other tha11 those
h1· 11·av of/axes - !tfi.Jl!ows that.for /e1y of't(LlCS prior Presidenlial       D
.1·m1c1io11 in rer111s u( proviso under Art.304(h) is whollv w111ecessarv.
(Per 7: S. Thakur, C.JJ .for himself and/or A.K. Sikri and A.M.
Klwnwilkm; JJ.)
      Art.304(h) - Restrictions mentioned u/Art.304(h} do not
include tax. (Per N. V Ramano, .!.)                                              E
         .1rt.304(h! ·- Applicahilitv ol- Held: Applica/Jle 011~v to 11011-
fiscal laH·.1· ond nor 10 /ax laws - Arr.301(h) deals with 11011~/iscal
 i<'.~is/a1io11 i111posi11g rcaso1111h/e res1riclio11s i11 puhlic inreresl and
 lrn /a11·1· arl' 1101 included under //n.304(hi. (Per R. Banw11arhi, .!.)

       .·ln.3114(h) - Presiclenrial assent - .Judicial review - Held:            F
Art.3114(/J) re/ares 10 11011~/isca/ laws of' the Srares -- The assen/ of'
!he f'residen/ envisaged in proviso ro Arr.304(h) v.,·011/cl he some1vhar
akin to rhe assent conternplated in Art254 - Such assents are not
judicial!v reviewahle. (Per R. 13a11umathi. .!.)
       Arls.304(a), (h} - l"ocal area - When the entry tax is levied             G
In· the Entl)' Tax //ct enacted In· the State Legislature, the term 'a
local area' co111emplated hy Entry 52 may cover the 'whole Srate' or
 'a local area' as notified in the legislation - From the point of view
of entn· tax. !he Sra1e is a compendium of local areas and 11·here the
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10             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A    local areas contemplated hy the Act cover the entire State, the
     diffi:rence hctwee11 the State and 'a local area' practically
     disappears. (Per R. Ban11111athi, J.)

                Taxi11g power of the Unio11 and the States - Held: Are 11111t11alzv
     excl11si1•e - While the Parliament ca11no1 legislate 011 the sub;ects
Fl   re.1·e1Tedfor the States. the States ca1111ot similarZv tre.1pass onto the
     taxil1g prrwers of the Union - If the Constitutional scheme does not
     al!mt· !he Parlia111e111 lo usurp the taxing powers of" the Slate
     f,L',t,:islat11re1·. such process of usurpation cannot also he permitted
     lo lake place in the garh of making U11ion executive :1· concurrence
C    cm essential pre-req11isitefor any taxing !egis!ation.(Per 'l: S. 11wklll;
     CJ! for himself a11dfi1r A.K.Sikri and A. M. K!zanv.:ilkar, JJ.)
            Part XIII - Diffr;rence hetween Part XIJI and s.297 of
     Governmelll of India Act, 1935 - Held: 17ie essence offf"eedom of
     trade. commerce a11d intercourse as recognized in 1935 Act and in
D    !he Co11slit11tio11 under !,art XIJJ is same - The onlv difference is
     that 1he principles enunciated in s.297 were extended to Union
     Govern111ent and Union Parlia111el7/ and to the territory IVhich had
     after 111e1y,er hecome port of India - Government of India Act, 1935
     - s.]97. (Per T S. Thak111; CJI for himself and for A.K.Sikri and
     A. /If Kha1111·ilkw~ JJ.)
            Par! XII! - 'fo.r laH".\" - The co11111wn thread in Port XIII is the
     achievcmrnl ol economic 1111itv and paril}' which does not altogether
     preclude differentiation .fin· j11s1ifiahle and rational reasons wherever
     11ece.1·rnn· - The heurt and soul of Part XIII is to dissolve hostile
     discri111inalio11 H"ilhin the territo1T ol India - Part Xlll does not
     contempla!e lax !mvs within i/.1· amhit except to the extent of
     Ar1.3(N(a) of" !he Constitution. (Per N. V Romana. J.)
            l'art Xi JI - There is a vital difference he tween mere
     "dif/erenliation' and 'discriminalion' - fr is discrimination not
     differentiarion that is sought to he prevented rhrough Part XIII -
G    Ar1.304(a) prorects jimn discrimination (for protectionis111) and not
     mere diff'erentialion. (Per N. V Ramona. J.)
           Sevemh Schedule Ust ff Entrv 52 - Concept of Compensatory
     lax ewJ!ved in Automobile case - Held: The nomenclawre of
      ·cmnpensa10rv · ascri hed to the taxes levied hy the State Govemment
H
       JINDAL STAINLESS Ll'D. v. STATE Of HARYANA                                    11


1111der E11trr 52 . .Ust II pursuant to Automobile is wnmrranted - The               A
concept of' compensaton· tax was evolved 50 years hack through
judicial pronou11ceme11ts - lt has withstood the test of" time and thus,
any suhsc>quent judicial pro1101111cement like the instant case should
1101 prejudice the in1ere.1·t o(lhe parties inl'Olved - State Go1•erm11ents
should not suffer mJV loss of revenue solely hecause <~/"judicial
                                                                                     B
 i11rerpre1ations and innovation.1· in Automobile case and the cases
 \'llhsequent lo ii·· Suhject ro passing the muster of .lrt.304(a), e11trv
 lax let"ied hv the States under Enll} 52. Ust 11 even though termed
a.1· rnmpensatory lax docs notfall.fiml o/Art. 301 - ft is not neces.1·m)'
 tlzal the 111011ey realized hy the levy should he put into a separate
 Fund or that the lev1• should he proportionate to the expe11dit11re -               c
 There is no har to suhsumption ol the reve1n1e realized ji·om
 regulatorr!co111pensatorv taxes into the Consolidated Fund of' the
 Stiltc as thei· are 110 differenrfimn other taxes of a general nature -
  Mnrem·c1: the quantum of' expenditure incurred in achievi11g the
 ohjecl hehind a compensatorv le1•v ca11not he inquired into. (Per R.                D
 !Ja111111w1hi, J.)
           Seventh Schedule Ust fl EntrJ' 52 - Import of goods and
customs clearance and the entry of good1· into the local areas -
 fo.Yah!e event           f-feld: The 11vn events are disti11c/ - ]11 the case o/'
r:11.1·101n.1· d11t1', the /Uxahle ei·ent is entrv of' good1· i11to the territorv    E
of Indio .. 1he /a.rnhle e1·ent ullder Em1y 52, List JI is the entrv ol
.!!.nods ill to !oral area ./or conswnplioll, use or sale therein - The
1n·o taxahle events are distinct in lavv and there is 110 overlap -
 Ullder our Constitution, there is no overlapping ill the taxing power
    J71e Constitution gives indepe11dellt powers o/ taxation to the Unioll
                                                                                     F
and the Siates - The /axing power of' the Ullion and of' the States
ill'!' mutually e.Yclusive · This avoid1· the dilficul1ie.1··which have arisell
 1111der other Federal Constitutions. (Per R. Banumathi, .J.)
        Se1·enth Schedule List JI Enny 52 -- Entrv tax levied In· W1rious
States termed as a 'co111pensatorv 1ax' 1vhe1herfa/l.fi)//l of'Art.301 --
                                                                                     G
f-leld: EllflY lax ji1/li11p, wit hill the domain ol Entrr 52, List 11, is a
/(fX simplicitcr. even though hy nome11clat11re it is termed as a
 ·compenrn1orv tax· - Suhiect to passing the muster of Art. 304(a),
enn:r lax levied hv the States under Emrv 52, List JI even though
lel"lned as C!il11pell.1·otm:i- tax does not fall.fi)U/ of' Art. 301. (Per
                                                                                     H
12             SUPREME COURT REPORTS                        [20161 JO S.C.R.


A    R. Ba1111mathi, J.)
             Seventh Schedule List I a11d 11 -· Taxation entries are to he
     .fimnd 01111• in Usts I a11d II. indicating that in our Co11stilutio11al
      schcnw. ta.rntirm pm1•ers o/ the Centre and the States are 11111/uallv
      exclusi1·e - There are 110 Entries in the Concurrent List which gives
B     poi1·cr o/ la:rntion      This heing the case, the moment the levy
      contained in a !axing slalute transgresses inlo a prohihitedfield, it
      is liahle to he .1·truck down. (Per N. V Ramano, J.)
            /17/erpretation of' Statutes:
             Interpretation which is hoth textual and c;ontextual has always
c    heen found to he more acceptahle ~ An interpretation that makes
     the texlllal motch the contextual meaning of' the provision is preferred
     hy courts over one that prefers 011e at the cost of' tlze othe1: (Per
     7'. S. Thak111: CJ.I.for himself' and.for A.K.Sikri and A.M. Kha11wilka1;
     .IJ)
D
            An i111e1pretation that supports and p11m10tes federalism tt'hile
     upholding the Central supremacy as contemplated hy some ol the
     :1rticles 11111st he prelerred. (Per T S. Thakw; CJ! for himself' and
     for ,LK.Sikri. and A.M. Khanwilkm; JJ.)
               Ce11/re-Sta1c relationship in legislative and fiscal matters -
     Harmonious relationship - Held: A narrow interpretation that may
     have the potential or tendency to subvert the delicate halance which
     the .fi"m11ers of' the Consritution had in mind while distrihuting
     legislatiFe husinesses including the sovereign power to levy taxes
     11111st he amided and a construction that is most heneficial for a
F    harmonious relationship between different limhs of' the State
     i1ll'l11di11.'-' that het1veen rhe Cemre and the States or Stales inter se
     adopred. (Per T S. lhalun; CJ! for himself' and for A.K.Sikri and
     ..J.M. Khanwilkw: ./J.J
            Constitution of India - fVhile interpreting the Constitution.
G    the emphasis must he rm reading it as a whole. and in a manner that
     the intent and object of' no part ol the Co11stitlltio11 is defeated - In
     this regard. there 111u.1·t he a holistic approach toward~ the provisions
     of the Constiturion. ff'er R. Bammwthi, .!.)
            Proviso - Interpretation ol - Held: Proviso is i11fended to
H
        JINDAL STAINLESS !TD. v. STATE OF 1-IARYANA                                  13


e.rploin rhe main op1n1rin.'.; /Jar! of rhc .·lrticle -- Jr is never used or         A
ifllcrprctcrl as expanding rlre operative part of" the provision. (Per
.Y r-: /? m nwru. .!. !

        .J11diciol Rei·iew·

        Poll er of Srate to erul("t tax laiu·           l"egislatil'e p1H1·ers
                                                                                     B
especial/\· taxin:' povt·crs cannot he tested hr implication - L'n/rss
rlrcrc is nprcss li111itation 011 tl1c JHJ11·er of the State to enact the
S111t1' hm, ir  not the p1rn·i11ce of' the Courr to curtail the power of"
rlw Srore hy i111erprctaril·c pmcess. (Per N. V Ramano, ./.)

        fo.ri!lr:wrion:
                                                                                     c
        !:"sscnlial chara!"fcristics of" a tux -- Jr is imposed undi'I" a
,·tofu/on poircr \\"i1ho111 rhe taxpayer\· <:onsent and the pav1111-'11f is
rn/im·ed h1· /mr: it is an imposition nwdcfor puhlic purpose without
1cfi.'!"!'11r·c ro onr spi'l"iol hcm:fir lo he conferred rm the payer of" rhe
lo.\"." ond ii is pon of the co111mon huf"den. (Per R. Bamonathi, .!.)

        fo_y,""J(1xotwn: Pwpose o( imposing la.\" and essenrial elcmenr.\·
o/ tm      lli,1·1 ·11ssed. r!-'er 1V V Rm1w11a, .J.)
        f fi.~lr1i'.rnrhi111nt r11le of tux  l111pnsition o/: propriel\' - Held:
 //!/Jou.eh .\"111/<'s on' c:1np01n'n·d lo lox under 1he Constil//lion, it does
no1 11ecc.1·1m·il1·                     . should la.\" al exorbitant rates -- A
                    . 111ea11 rha1 tin"\"                                            E
rcsponsii>I<' gm·r.,.11111c111 in a demo1;rarT should ahw1vs strive lo keep
raxes as low os possihlc so Iha! no hean' burden is placed 011 tire
i11dh"iduals.    (Per ;V. 1'. l?m1w1w, J.)

        Unjust f'nrid11nenl
       The co11cep1 o( u11j11sl enric/r111c11r is applicahlc fiJr considering
rhe 11uestio11 of refimd     ( l11les.1· rhe assessees estahlish 1hat ther
iwn' nor pusscd 1111 1he rax lmrden lo rhc cn11.rn1ne1"s, they ca111101
11/ukc a clai111 .for refinul and 1111j111·1h enrich 1/remselves. (Per
I?. Hu1111111mlri. .!)

         fl>im/.1· and Plrrmes:

            "!Ji.1crimination' and 'difli'rel7liotion · - Distinction herii:een.
u'i.1·1·11.1·sul. I fJeT" J: S. riwk.111; C:IJ /or himself' and.tin· A.K.Sikri and
. I. M. l\ha1111·ilkar; .!.!.)

                                                                                     H
14            SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A          Import - Mea11i11g of discussed. (Per R. Banumathi . .!.)
           DISSENTING VIEW:
           Constitution of India:
          Arts.301. 30-1 - It is 1111/enable to postulate as a general
B pri11cip/e that it is 011/)1 a discriminatory tax falling withi11 the a111hit
  t!f Art.304(a) that is suhjecl lo Part X!ll of the Constitution -
  Art.304(a) elaborates that a particular form of taxalion. a 1w11-
  discrimina101:JJ lax on goods . .shall not be construed lo Fiolate Arl.301
  - But Art.304(a) ca11110/ be a basis for holding that every fiscal
  measure (apart ji·om a discriminatorv Im) lies outside the pun:iew
c <~f Part XIII - For one thing. the rate of tax is bw 011e eleme111 of
  taxation - There are other eleme111s in a jiscal exaction i11c!udi11g
  assessment, the machinery for culleL·tiun and set offs and exemptions
  ·which can have a11 important hearing 011 whether the tax operates
  in a ma1111er that i111pedes the freedom of inter-State trade and
D commerce - Moreover, a discri111inatorv tax otherwise than 011 goods,
  does not a/tract the prol'isions of Arr. 304 (a) - Finally, a 11011-
  discri111i11alory lax may also become an impediment on the ji·eedom
  of trade and commerce where the lax is so high as tu render it
  cu11.fiscatury - Hence, a discri111i11atoryfiscal i111positiu11 of the nature
E which offends Art.304{a) is illustrative <if hut not exhaustive of.fiscal
  impediments mt the freedom of trade and co11imerce. (Per D1'. D. Y.
  Chandrachud. J.J
         Art.30./(b) - Reasonableness of restriction -- Held: A tax may
  amount to a restriction where its direct and inevitable effect is lo
F restrict the freedum of trade. c:ommerce and intercourse - The burden
   to establish this is on the person who seeks lo assail the validity (if
  a particular tax on the ground that it amounts to a restriction on the
  ji·eedom guaranteed by Art. 301 -- Unless this threslzo/d is crossed.
  the proviso to Arr.30./(b) will have no applicalion for, it is only
  whe11 there is a restriction that the question of its reaso11ahle11ess
G can arise. (Per Dr. D..Y. Chandrachud, .!.)

            Formal and s11bstanti1•e equality - Art.3114(a) comprehemis
     both formal and substantive notiom of equality - Formal equality
     'rvould be met when the same rare of tax is prescribed fur goods
     imported from other Stales as is levied 011 goods produced cmd
H
       JINDAL STATNLESS !TD. v. STATE OF HARYANA                             15



11w11uf{1ctured 1rithin Suhstantive equality recognises the needfiJr         A
the develop111c111 of 1111derde1·eloped areas ol the cou11trv - A ha lance
lws lo lw slmck he tween rite rn11eer11s ol hothfiJr111al and s11hs1antive
equalitr. (!'er D1: JJ. Y Chamlrachud, J)
       Direct a11d immediale effecl lest - The States and the Union in
the exercise o( their legislative pmrers, utilise taxation no/ onlv as       B
o means of raising rc1·e1111es to support their developmental activities
h111 also as ll lll('llSllr!' or achieving social o/Jjecls - Whether the
p11rsuil of 1ho1·c social ohiects or the pursuit o( social regulation
in/ring.es 11po11 the area oj"ji-ee trade and commerce cannot he
decided a priori - The pmrer o/ taxation is capoble ol heing used ill        C
a manner which can constitute, ill a given case, a restraint or
impediment on the freedom ol trade and commerce - Jn determining
as to when taxes can constitl//e a restriction on the fi"eedo111 ol !rade
ond commerce, !he direct and immediate eflect test (as refined
s11hse11ue11tlr) pro1·ides a judicially manageable ji-mnework - The
tes/ of direc/ and immediate effect was enunciated in the judgments          D
in i\liabari and ;\ulomobik Trnnsport - The test isfirmlv entrenched
as a par/ of our j11rispmdence. (Per D1: D. }'. Chamlrachud, J.)
         Art.301    J,evr of a 11on-discri111i11a101y tax 1nay constitute
infi·uction of"Art.301 if ii impedes the fi"eedom u/ trade, commerce
and intercourse A II taxes ll'hich contain restrictions to trade,            E
commerce and intercourse. discriminator)' or non-discriminatory
infi·in,c,e Arr.301 unless they are saved u!Arts.302 to 304 - Jn the
event, the s11hmission is accep!ed that all taxes are outside Part Xlll
except nm1-discrimina1on' taxes as pe11nitted u/Art.304(a}, the same
ivill lead 10 giving righl ro the Parliament and State f,egisla!ure to       F
pass f(1ciall.v 11011-discriminatmy lcrws but creating restrictions on
trade and comnwrr·e hv other means hy providing arhitrary
procedure and various other kind ol restraints - The taxation which
can impede the trade. co111111erce and intercourse thus cannot he
nmfined 011/r to 11011-di.1·1Tilni11aton· taxation. (Per Asl10k Bhushan,
                                                                             G
Ji
       .frrs 304(aJ and (h) - ls the Emrv Tax levied hy the States in
the presem hatch of" cases violative of Arr.301 and in particular
hm•e the i111p11gned State enac/rnents relating to ent1y tax to he tested
irirh re/in·11ce to hoth Arts.304(a) and 304(h) for determining their
                                                                             H
              SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A  rn/iditr ·· Held: li>fi77d 0111 m· to whether F,'ntry Tax levied hy different
   Stales in !he presenl ha1ch of cases viola/es Ar!.301, each slat11te
   has lo he looked info - A law made hy Slate Legislature complying
   clause(a) of Art.301 and 77ot containing any restriction on the
  .fi·eedom of trade, commerce and inlercourse need not comply
   !lrt.304(h) - Howeve1; a law evell !hough complies with Art.304(a)
B
   Im! l'077tai77s reslriclions 011 fi·eedom o/ trade. commerce and
   intercourse has lo he routed through prMiso to clause (h) o/Art.301
      The comp/ianr:c o/ Ari. 304(h) proviso whelher required or not
   shall depellll on !he 11alure and conlelll of the State legislation -
   The proFiso o{ Arl.301(h} is part of Constitutional Scheme which is
c  neither agaim·t the fi'deral stmr·rure of the Constitution nor affi'Cts
   the State '.v sovercig77tr · Word 'reszriclion' used ill Art.304(h) is wide
   e17011gh to include restrictions placed hoth hy fiscal or non~/isca/
   /m1·, (Per :ls/wk !Jh11shol7, J)

               Can a ta.\' 11·hich is compensatorv in nature also fcill foul
     ..Jrt.301 of the Consliflltion and what are the tests for determinillJ!.
      1rhe1her the tax or /evv is cm!lpc11sui01T in nature -· Held: ft is an
      accepred proposition rlwt one of the charncteristics of tax is that it
      is an imposition made fi>r p11hlic purpose without reference to any
     special henefit lo he conferred on the payer of the tax - The taxes
E     imposed hy the Legislature, apart fi-0111 heing source of Revenue is
      also expended for various p11hlic welfare measures and 11·hc11 it\·
      ohjccr is in no Wal' connected H'ilh the puhlic interest or puhlic
      welf{ire it loses its character of taxation and hecomes a levy which
      is 1mr·onstilW ional - The ji'amers of the Conslit11tion after pmviding
     fi1r.freedo111 oftrnde. wm111erce and imercourse in Art.301 laid dmn1
      exceptions to the saidfi·eedmn in Art.302 to 31!() - The excep1io11s
      loid do11·11 in the constifl(/irmal scheme arc se/f~conrained and no
      ne11· exceprion can he added hy judicial interpretation "- Mere fan
      that a rm: stm111e compensates 1he paver of the 1m· does 1101 rake our
      the statute hewmd Parr Xiii. all laxes. heing ji;r one or other p11h/ic
c;   J!lll'}JO\'CS   The tax legislation ,,.hich professes /0 co111pe11sare the
     paver cannot lake the lax /egis/a1ion m1 a higher pedestal heyond
      !he reach of Part XI//. 111akin5~ s11ch legislation "not suhject to
      Cons1i1111ion" - !Vhen all legislative power is "sl(hjccl to
      Constitution" as per Arts.215 and 24() of' the Constitution. a
H     legislation, namelr. rn111pensato1:r tax legislation cannot be said to
       JINDAL STAINLESS !TD.\'. STATE or HARYANA                              17



he hevond Part )Off·- A1n- swh interpretation is clearly against the          A
co11stitutio11al sche1ne · Howeve1; it is always open to scrutinize the
tmc nature 1111d character or legislatio11 to decipher as to whether it
contains any restriction on ji·eedom of trade, commerce and
intercourse vio/atinp, Arr.301 -·A legislatio11 which is compensatmy
i11 nature may shed light while determining whether it contains
                                                                              B
restriction 011 trade, co111111erce and intercourse orfacilitate the trade,
co111111erce and intercourse - But all legislations he it a co111pe11sat01y
tax legislation or otherwise has to he tested in accordance with
prrwisions of Port XJIJ of the Constitution. (Per Ashok Bhushan, J.)
       Answering the reference, the Court                                     c
       HELD:
      PER T. S. THAKCR, C.JI (FOR UJMSELF AND A. K.
SIKH.I AND A. M. KllANWILKAR •. J.J.)
      Whether non-discriminatory fiscal measures impede free
                                                                              D
trade, commerce and intercourse and thereby fall foul of Article
301 of the Constitution.
      1.1 While the power to levy taxes is an attribute of
sovereignly, exercise of that power is col1trollecl by the
Constitution. This is evident from the provisions of Article 265
                                                                              E
which forbids levy or recovery of any tax except by the authority
of law. The authority of law must be traceable to a provision in
the Constitution especially where the legislative powers are
shared by the Centre and the States as is the case with our
Constitution which provides for what has been described as quasi
federal system of governance. The source of power to enact laws               F
is contained in Articles 245 and 246 of the Constitution. !Para
1811181-A-B, DJ


       Raja .Jagannath Baksh Singh v. State of UP & Am:                       G
       1963 SCR 220 : AlR 1962 SC 1563; Dena Bank v.
       Bhikhahhai Prahlmdas Parekh & Co. 2000 (3) SCR
       509 : (2000) 5 SCC 694; Income Tax. Udiapur,
       Rajasthan v. MCdowel! and Co. Ltd. 2009 (8) SCR 983
       : (2009) 10 SCC 755: State of West Bengal v. Kesoram
                                                                              H
lR            SUPREME COT JRT REPORTS                     12016J 10 S.C.R.


A           Industries Ud. 2004 (1) SCR 564 : (2004) 10 SCC 201;
            State of Kera/a and ors. v. Mar Appraem Kuri Co. Ltd.
            and Am: 2012 (4) SCR 448 : (2012) 7 SCC 106 -
            relied on.
            Ta:w1io11 - ViJlu111e 1 (4'" Edition) Chapter 2 by Cooley
13          -- re fer red to.


            1.2 Exercise of sovereign power is, however, sub,ject to
      Constitntional limitations especially in a federal system like ours
      where the States also to the extent permissible exercise the power
c
      to make laws including laws that levy taxes, duties and fees. The
      powe1- to levy taxes, being a sovereign power controlled only by
      the Constitution, any limitation on that power must be express.
      fParas 20, 2811184-D; 188-R-Ff

D
            Svnthetics and Chemicals Ltd. and Ors. v. State of U.P
            and Ors. 1989 (l) Suppl. SCR 623 : (1990) 1 SCC 109
            - relied on.
            Mis. Hoechst Pharmaceuticals Ltd and Ors. v. State of
E           Bihar and Ors. 1983 (3) SCR 130: (1983) 4 SCC 45;
            Maharaj Umeg Singh v. State of Bombay 1955 SCR
            164 : AIR 1955 SC 540; Firm Bansidhar Premsukhdas
            v. State of Rajasthan 1966 Suppl. SCR 81 : AIR 1967
            SC 40 - affirmed.
F

             1.3 Before commencement of the Constitution nearly 2/3"0
      of the country was rnled by the British while the remaining 1/3""
      was ruled by the Princes also known as native States that enjoyed
      varying degrees of sovereignty over their respective territories.
G     These rulers had the power to impose taxes and to regulate the
      flow of trade, commerce and intercourse. Some of them had
      erected trade barriers thereby impeding free flow of trade,
      commerce and intercourse. With the merger of these Princely
      States into the dominion of India to constitute one single political
1-1   entity, that part of the country that was ruled by the British came
      JINDAi. STAJNLESS !TD. v. STATE Of HARYANA                          19


to be known as Part A State while the native States became Part           A
I~ States. Even after the merger of these States, the Constitution
had to acknowledge the existence of trade barriers and make
transitional provisions with a view to eventually abolishing the
same. It was in that background that the Constitution by Article
301 provided for the abolition of all such trade barriers consequent      B
upon the entire geographical boundaries of .India being knit into
one political unit. IP;ua 4411209-G-II; 210-A-C]


      S. R. Bmnmai v. Union offndia 1994 (2) SCR 644 : 1994
      (3) SCC I; Re: Under Article 143. Constitution olfndia              C
      (5/x'cia! Reference No. 1 of 1964) 1965 SCR 413 : AlR
      1965 SC 745; M.P V S1111derara111ier v. State of Andhra
      Pradesh 1958 SCR 1422 : AIR 1958 SC 468 -- relied
      on.
                                                                          D

     Constitutional validity of Compensatory Tax theory
prnpoundcd by ma.iority judgment in Automobile Transport case.
       1.4 Compensatory taxes would fall outside Part XIII of the
Constitution only if tax payers receive benefits and facilities
                                                                          E
commensurate to the levy. Any and every benefit howsoever
remote or distant, would not save the levy from an attack on the
ground of violation of Article 301. Three distinct aspects touching
the question whether the Compensatory Tax Theory is indeed
sustainable arc: Firstly, the concept of compensatory taxes is
not recognised by the Constitution. A tax is a compulsory exaction
of money for general public good. If taxes are eventually meant
to serve larger public good and for running the governmental
machinery and providing to the people the facilities essential for
civilized living, there is no question of a tax being non-
compensatory in character in the broader sense. Secondly,                 G
because the concept of compensatory tax. obliterates the
distinction between a tax and a fee. The essential difference
between a tax and a fee is that while a tax has no element of quid
prfl quo, a fee without that element cannot be validly levied. Thirdly,
and lastly, the concept of Compensatory taxes being outside Part
                                                                          l-1
20            SUPREME COURT REPORTS                       (2016] IO S.C.R.



A    XUI, is difficult to apply in actual practice. Most of the legislations
     enacted by the States in these cases have described the entry
     tax levied under the same to be compensatory in character. This
     may have been done to take the levy outside the mischief of .\rticle
     301 of the Constitution. The question, however, is whether tax
     amount collected in terms of the said legislation is really used by
     the State for the purpose of providing or maintaining services
     and benefits to the tax payers and whether the Courts can follow
     the money trail to determine whether the State concerned has
     actually used the amount for the avowed purpose underlying the
     legislation. This prncess is fraught with serious difficulties. Actual
('
     application of the Compensatory Tax Theory, therefore, runs into
     difficulties to an extent that the theory at some stage breaks down.
     The Compensatory Tax Theory was legally unsupportable and
     deserved to be abandoned. [Paras 63, 64 and 65)[238-E; 239-B;
     240-F-G; 241-C-Ei
D

           Co111111issirme1: Hindu Religious Endoivments, Madras
           \'. Sri !.aksh111indra Thirtlw Swamiar of Sri Shirur Mutt
           1954 SCR 1005 : AIR 1954 SC 282; Mahant Sri
           Ja,c,annalh Rama1111j Das & Am: v. Stale of Orissa &
E          ilm: 1954 SCR 1046: AIR 1954 SC 400; 77ie Hingir-
           Ramp11r Coal Co. Ltd. v. State of Orissa 1961 SCR 537
           : AIR 1961 SC 459; Co1poratio11 of Calcutta and am:
           1: !Jher1_1' Cinema 1965 SCR 477 : AIR 1965 SC 1107;
           Kewal Krishna Puri and Am: v. State of Punjah 197'>
           (3) SCR 1217: (1980) I SCC 416; Krishi Upaj Mandi
           Samili and Ors. v. Orient Paper and Industries Ltd. 1994
           (5) Suppl. SCR 392 : (1995) 1 SCC 655; Stare of
           Gujarat and Anr. v. Akhil Gujarat Pravasi V.S.
           Mahamendal 2004 (3) SCR 956 : (2004) 5 SCC 155;
           Stale of' Wes/ Bengal v. Kesoram industries Ltd & Ors.
(I
           2004 (1) SCR 564 : (2004) 10 SCC 201 - referred to.
            l71e /,m1· of foxarion by Thomas M Cooley; The Major
            /,aw Lexicon by P. Ramanatha Aiyar - Vol. 6 - 4'h
            Edition - Page Nos.6678 and 6679; Blackwell on Tax
            llrles as cited in 'Tata Iron & Steel Co. Ltd. v. State
H
      JTNDAL STAJNLFSS LJ'D. v. STATE OF J-IARYANA                   21


     of Bihar, AIR 1991 Patna 75, 81; Black'.\' Law                 A
     Dictionmy, 7'" Edn., P. 1469; Seervai '.I' hook (Vol. 3,
     Page 2607) -· referred to.


       J .5. l A plain reading of Article 301 would show that freedom
                                                                      B
of trade, commerce and intercourse is by no means absolute, the
same being subject to the other provisions of Part XIII of the
Constitution. Amongst those provisions arc Articles 302, 303
and 304 which have a direct bearing on the nature and the extent
of restrictions snhjcc.t to which only is the right to freedom of
trade, commerce ancl intercourse referred to in Article 301 C
exercisable. Reading Articles 301 and 302 together, it is evident,
that freedom of trndc, commerce and intercourse is subject to
restrictions which Parliament may hy law impose in public interest.
The absolute character of the freedom of trade, commerce and
intercourse is flrns lost by reason of Article 302 itself empowcl"ing D
Parliament to impose such restrictions as it may consider
necessary in public interest. Article 303, in turn, places
restrictions on the legislative powers of the Parliament and of
the States. A careful reading of Article 303 would show that
not withstanding the power vested in the Parliament under Article
302, it shall not make any law giving, or authorising the giving of E
any preference to one State over another, or making, or
authorising the making of, any discrimination between one State
and another, by virtue of any entry relating to trade and commerce
in any of the Lists in the Seventh Schedule. A conjoint reading of
Clauses (1) and (2) of Article 303 would thus make it clear that F
while Parliament/ Legislature of a State shall have no power to
make a law imposing restriction on trade, commerce and
intercourse, by giving or authorizing the giving of any preference
to one State over the other, such limitation on the legislative
 power of Parliament shall not extend to giving of any preference
                                                                      G
or making or authorizing any discrimination if it is declared by
 law that a situation has arisen out of scarcity of goods that makes
it necessary to do so. In other words, while the Parliament may
 impose restrictions in public interest under Article 302, the
 restriction so imposed shall not be in the nature of giving
                                                                     J-1
22            SUPREME COURT REPORTS                      [2016] 10 S.C.R.



A    preference or discrimination between one State or the other
     except when the law declares that scarcity of goods in any part of
     India necessitates such preference or discrimination. [Paras 66,
     68][242-B-C, F; 243-D-ll; 244-A-BI
            I.5.2 Article 304 starts with a "no11-obsta11te" clause. Article
B    304(a) far from treating taxes as a restriction per se, specifically
     recognises the State legislature's power to impose the same on
     g,oods imported from other States or Union Territories. The
     expression 'may by law impose' is certainly not a restriction on
     the power to tax. That does not, however, mean that the power
c    to tax goods imported from other States or Union Territories is
     unqualified or unrestricted. There are two restrictions on that
     power. The words "to which similar good.s manufactured or
     produced in that State are subject" impose the first restriction
     on the power of the State legislature to levy any such tax. These
     words would imply that a tax on import of goods from other States
D    will be justified only if similar goods manufactured or produced
     in the State are also taxed. The second restriction comes from
     the expression "so, however, as not to discriminate between goods
     so imported and goods so manufactured or produced". The State
     legislature cannot in the matter of levying taxes discriminate
E    between goods imported from other States and those
     manufactured or produced within the State levying such a tax.
     The net effect of Article 304(a), therefore, is that while levy of
     taxes on goods imported from others State and Union territories
     is clearly recognised as constitutionally permissible, the exercise
     of such power is subject to the two restrictive conditions. That
     does not however detract from the proposition that levy of taxes
     on goods imported from other States is constitutionally
     permissible so long as the State legislatures abide by the
     limitations placed on the exercise of that power. [Para 69] 1244-
     E-F, G-11; 245-A-EJ
G
          1.6 Question is whether Clauses (a) and (b) have to be read
     conjunctively.
           Clauses (a) and (b) of Article 304 deal with two distinct
     subjects and must, therefore, be understood to be independent
     of each other. While Clause (a) deals entirely with imposition of
H
      .JINDAL STAINLESS LTD. '. STATE OF HARYANA                     23



taxes on goods imported from other States, Clause (b) deals with A
imposition of reasonable restriction in public interest. It is trite
that levy of a tax in terms of Article 304(a) may or may not be"
accompanied by the imposition of any restriction whether
reasonable or unreasonable. The use of the word 'and' between
clauses (a) and (h) docs not admit of an interpretation that may
                                                                     B
impose an obligation upon the legislature to necessarily impose
a tax and a 1·es!riction together. The law may simply impose a tax
without any restriction reasonable or otherwise or it may simply
impose a reasonable restriction in public interest without imposing
any tax whatsoever. lt may also levy a tax and impose such
reasonable restriction as may be considered necessary in public c
interest. All the three situations are fully covered and permissible
under Article 304 in view of the phraseology used therein. The
word 'and' can mean 'or' as well as 'and' depending upon the
context in which the law enacted by the legislature uses the same.
Levy of taxes do not constitute a restriction under Part XHI except D
in cases where the same are discriminatory in nature. Once
Article 304 (a) is understood in that fashion, Clause (b) dealing
with reasonable restrictions must necessarily apply to restrictions
other than those b~' way of taxes. It follows that for levy of taxes
prior Presidential sanction in terms of the proviso under Article
                                                                     E
304(h) will be wholly unnecessary. This view is reinforced on
the plain language of proviso to Article 304(b), which is limited
 lo law relating to reasonable restrictions referred to in clause
(b). [Paras 70, 711[245-F-G; 246-C-HJ
       2. An interpretation that makes the textual match the
contextual meaning of the provision is preferred by Courts over
one that prefers one at the cost of the other. The question is
whether the textual interpretation placed on Articles 301 to 304
matches the contextual. The contextual interpretation of Part
XIII must, out of necessity, start with the historical perspective
of that Part. Part XIJI had a historical precursor in the form of    G
Section 297 of the Government of India Act, 1935 that governed
what was then called the British India comprising the territory of
India subject to British Rule. The rest of the territories were at
that time Princely States who claimed sovereign rights within th~
limitations imposed by the paramount power. The power to levy        H
24           SUPREMF COURT RFPORTS                     [2016] 10 S.C.R.



A    taxes was one such power wielded by the Princely States which
     led to erection of customs barriers impeding the flow of trade,
     commerce and intercourse. Section 297 aimed at removing such
     trade harriers. It provided for a prohibition against enactment of
     any law or taking of any executive action by the provincial
     legislature that restricted the entry into or export from the
B
     province goods of any class or description. More importantly, in
     terms of clause (b) of Section 297(1) of Government of India Act,
     1935, no provincial legislature or Government could impose any
     tax, ccss, toll or due which discriminated between goods
     manufactured or produced in the provinces and goods not so
c    manufactm·ed or produced or between goods manufactured or
     produced outside the province discriminated between goods
     manufactured or produced in one locality and similar goods
     manufaclu1·cd or produced in another locality. With India attaining
     its freedom, Part XIII of the Constitution adopted by it, was aimed
J)   at bl"inging about economic unity. The object underlying Part
     XIII was to make movement and exchange of goods free
     throughout the territory of India. This was achieved by Article
     301 to Article 304 adopting substantially the scheme underlying
     the 1935 Ad. The only difference between the said provisions
     and Section 297 of the 1935 Act was that the principles enunciated
     in the latter were extended to the Union Government and the
     Union Parliament and to the territory which had after merger
     become a 1rnrt of India. The essence of the freedom of trade
     commc1·cc and intercourse as recognized in the 1935 Aet and in
     the Constitution under Part XIU remained the same. !Paras 73,
F    76 and 77][248-C; 249-B-ll; 250-A-B)


           Reserve Bank o(Jndia \'. Peerless General Finance and
           lnvestmrnt Co. /Jd. 1987 (2) SCR 1 : (1987) 1 SCC
           424 - relied on.
           Constit11rio11al Lmv ol lndia ( 4"' Edition) by H.M.
           Secrvai - referred to.


           3.1 Legislative competence of the State legislatures can
H
      JlNDAL STAINLESS r:rD. v. STATE or HARYANA                       25



be circumscribed only by exp1·ess provisions or the Constitution       A
and unless lhei-e is an express limitation on the plenary taxing
power of the States. there is no other feHcr on the exercise of
n1al power. Applyint: this principle to the case at hand, there is
no specific limitation on the State's power to levy taxes on the
import of goods from other States except the one referred to in
                                                                       B
Article 304(a) of the Constitution. That limitation is confined lo
levy of disc.-iminatory taxes within the comprehension of Article
304(a). The power to levy a tax in terms of A.rticles 245 and 246
read with Entry 52 of list ll not being in dispnte in the cases at
hand, the absence of any specific limitation forbidding the exercise
of such power whether for the sake of free trade, commerce and         c
intercourse or otherwise simply means that the State legislatures
arc free to levy taxes that arc non-discriminatory in nature. [Paras
79, 80]!251-D-G]
      3.2 The provisions of our Constitution are aimed at vesting
and maintaining with the States substantial and significant powers     D
in the kgislalivc and cxccntive fields so that Slates enjoy their
share of autonomy and sovereignty in their sphere of governance.
This e1n in turn be done by interpreting the prnvisions of the
Constitution including those found in Part XIII in a manner that
preserves and promotes the federal set-up instead of diluting or       E
undermining the same. An approach which tends to dilute the
federal characte1· of our Constitutional scheme must·. therefore,
he avoided and one that supports and promotes the concept of
federalism preferred hy the courts while interpreting the
provisions of the Constitution. Taxing power of the Union and
                                                                       F
the States arc mutually exclusive. While the Parliament cannot
kgislatc on the subjects reserved for the States, the States cannot
similarly trespass onto the taxing powers of the Union. If the
Constitutional scheme docs not allow the Parliament to us111·p
the taxing powers of the State Lcgislatun:s, such process of
usurpation cannot also be permilled to take place in the garb of       Ci
making Union executive's concurrence an essential p1·c-rcquisitc
for an~· taxing lq!i~latinn. [Paras 81. 83 and 841 1252-B-C; 254-E,
C-H: 2:'i5-AI

      ;\./1» lnremutio110/ fo11rist Corpom1i1m & ors. v. Sww
                                                                       H
26            SUPREME COUR!' REPORTS                    [2016] IO S.C.R.


A          of Harvana a11d Ors. 1981 (2) SCR 364: (1981) 2
           SCC 318; ITC Umited ''· ilgricultuml Produce Market
           Co1111nittce and Ors. 2002 (1) SCR 441 : (2002) 9 SCC
           232 ·- relied on.
            Constirutirm Assemblv Debates (Vol. IX Page 1131) -
B           rcfen-ed to.


            3.3 The expression 'subject to other provisions of this Part'
      appearing in Article 301 and the non-obstante clause appearing
      in Article 304 do not traverse in different directions. There is no
c     conllict in the two provisions on account of the use of the said
      expressions. Interpreted individnally or conjointly, the two
      expressions simply mean that Article 304 takes precedence over
      Article 301. [Para 9111260-F-Gl
            3.4 It is fairly well settled by now that Courts show
I)
      considerable deference to the legislature in the matter of quantum
      of tax that may be levied as also the subjects and individuals
      upon whom the same may be levied. .Just because room for
      challenge to a fiscal statute is limited is no reason to hold that
      levy of taxes otherwise within the competence of the legislature
E     imposing the same should be seen as a restriction on free trade
      and commerce guaranteed under Article 301 which Article does
      not either textually or contextually recogn'ize levy of taxes as
      impediments except in cases where the same are discriminatory
      in nature thereby being offensive to Article 304 (a) of the
F     Constitution. [Para 9611264-C-E]


            Ramjilal v. IT7come fox Officer, Mohindargarh 1951
            SCR 127: AIR 1951 SC 97: Kunnathat Thathu11ni
            Moopi/ Nair v. 17ze State of' Kera/a & Anr. 1961 SCR
G           77: AIR 1961 SC 552; Laxmanappa Hanumantappa
            Jomkhandi v Union of India AIR 1955 SC 3 - relied
            on.
            1\!l/1-. Bhugatrnm Rajee1' Kumar v. Commissioner of
            Sales Tax, MP and Ors. 1994 (6) Suppl. SCR 91 :
l-l
     JINDAL STAINLESS ITD. v. STATE OF IIARYANA                    27



     1995 Suppl. (l) SCC 673; State of Bihar and Ors. v.           A
     Rihar Cham her of Commerce and Ors. 1996 (2) SCR
     184 : (1996) 9 SCC 136; Jindal Stripe !JJ. and Am: v.
     State of Hwyana and Ors. 2003 (4) Suppl. SCR 154 :
     (2003) 8 sec 60: Jaiprakash Associates Limited v. State
     of /\i!adhya Pradesh and Ors. 2008 (17) SCR 1282 :
                                                                   B
     (2009) 7 sec 339; Jindal Stainless Limited and Am: v.
     Stale off-Jarrana and Ors.2010 (4) SCR 743: (2010)
     4 SCC 595; Keshav Mills Co. Ltd. v. CIT 1965
     SCR 908: AlR 1965 SC 1636; GK. Krishnan v. State
     of fomil Nadu 1975 (2) SCR 715 : (1975) 1 SCC 375;
     Kihoto Hollo/um v. Zachillhu 1992 (1) SCR 686 : (1992)        c
     Supp 2 SCC 651; Tlv!A. Pai Foundation and others 1-:
     Stale of Karnataka 2002 (3) Suppl. SCR 587 : (2002)
     8 SCC 481; Chi el.Justice of Andhra Pradesh and others.
     v. L V A. Dixi111/11 and others 1979 (1) SCR 26 : (1979)
     2 SCC 34; Ke.rn\'Gnanda Bharati v. State ol Kera/a            D
     1973 Suppl. SCR 1 : (1973) 4 SCC 225; Ku/deep Nair
     v. Union of India and Ors. 2006 (5) Suppl. SCR 1 :
     (2006) 7 SCC l; Smt. U1)a111 Bai " State of Uttar
     Pradesh 1963 SCR 778: AlR 1962 SC 1621 - referred
      to.
                                                                   E


      3.5 The ''direct and immediate" effect test evolved by the
pronouncement of the Australian High Court has itself been
watered down and diluted. The current view in Australia is that
only such taxes as are discriminatory introduced by way of a
protectionist measure operate as restrictions on the freedom of
trade, commerce and intercourse. !Para 102]1268-B-Ci


     .James r. Cmmnmni:ealth o(Ausrralia (1936) A.C. 578;
                                                                   (.!
     Cmmnomi:eallh of /1 l!Stralia and others F. Bank of Nnv
     South I-Vales m1d others 119501 A.C. 235;
     Co111mrm11'calth ol Australia and Ors. v. Bank ol New
     South Wales and Ors. [1950] A.C. 235; McCulloch v.
      Marv/and, 17 US 316 (1819) - referred to.
                                                                   H
28            SUPRRME COURT FF!'ORTS                            [20l6l l0 S.C.R.


;\         " I freatise 011 the Co11stit11/io11al J,imitation.1·" (8'" Edn.
           1927     Vol. II Page 986) by Thomas M Cooley
           referred to.


          3.6 Simpl,v because the tax is high is no reason for it to
Il
     change its character and take the form of a restriction within the
     meaning •tf Part XI 11, no matter any one aggrieved of such heavy
     burden shall have the liberty to assail the same on all such grounds
     a' may be available to him under Part Ill of the Constitution.
     !Para 1l6J J278-BJ
           St{{/e o/ lvf{{dru.1· '" J\'. K. i\'{{/{{raja Mudalior l 968 SCR
           829 : A IR 1%9 SC 147 - relied on.
           Rojo .Joganno!h Hoksh Singh v. Stale of' UP 1963
           SC R 220 : A I H. l 962 SC 1563; Federa1io11 o( Hotel &
I)
           Rc.1·taura11/ .·l.\·sn. of Indio etc. 1·. U11io11 ol l11dia & Ors.
           198'l (2) scR 918: (1989) 3 sec 634; Y                          v
           Sri11i1·asa11111rtln· and ors. 1·. Stoic of' 1'vlrsore and /lm:
           AIR 1959 SC 894; 0 G Gose & Co. (Agents) (P! Ltd v.
           Stole of Kera/a {//Id am: 1980 (I) SCR 804 : (1980) 2
           SCC 410; A S11resh and olilt'rs 1·. State o/11V and another
I'         1996 (8) Suppl. SCR 947: (1997) l SCC 319- referred
           to.


           4.1 Whether the use of the expression "by virtue of any
     entry 1·clating to trade and commc1·cc" appearing in Article 303
     arc wide enough to include entries relating to lev:v of taxes also.
            The entries relating to Trade and Commerce by themselves
     are no! snfficicnl to cmpowc1· till' legislature lo levy taxes. The
     constitutional scheme is such that a taxing entry is distinct from
(i
     other entries and a levy of tax is possible on!~· if there is an entry
     which authorises lhP cornpcknt legislature to levy the same.
     :\rticle 303 is an exception lo Article 302, inasmuch as it limits
     the po\\ er conceded to the Parliament under Article 302 to impose
     restrictions on freedom of Trade, Commerce and Intercourse in
     public interest. The power exercised by Article 302 cannot be
II
      JJNDAL STAINLESS !TD. v. STATE Of HARYANA                         29


so exercised as to give preference to one state over another            A
except under a situation covered by Article 303(2) namely
situation arising from scarcity of goods in any part of the territory
of India. !Paras 117-11911278-E, G-H; 279-A; 280-E-F]


                                                                        B
      M. P V Sunderammier \·'. State of Andhra Pradesh 1958
      SCR 1422 : AlR 1958 SC 468 - relied on.


      4.2 Whether the levy of entry tax on import of goods from
outside the local area i11 the State will be per sc discriminatory if   C
goods so imported or similar arc not produced or manufactured
within the State.
       1\t-ticlr 304(a) strikes at discriminatory taxation implying
thereby that the levy falls unequally as between goods produced
or manufactured within the State and those being imported from D
outside. The essence of the guarantee in Article 304(a) lies in
the same or similar goods being treated similarly in the matter of
taxation. The question, therefore, is whether that guarantee is
violated if the goods .rnbjected to levy of ei1try tax arc not
produced or manufactured within the State levying the tax.Answer
                                                                    E
is in the negative. This is because there is no question of any
discrimination if goods from outside the State are not at a
disadvantage vis-a-vis goods produced or manufactured within
that State. His true that a levy on goods that arc not produced or
manufactured in the State is likely to make such goods costlier
but that is not enough for the levy to be considered F
unconstitutional. A responsive Government aware of the needs
of its constituents will be under tremendous pressure to keep
such taxes low enough for its constituents to be able to afford the
same. Dcmocrat.ic processes and pressures within the system of
governance that we have will itself take care of any aberration in G
this regard. What is absolutely clear, however, is that Article
304(a) will not frown at a levy simply because same or similar
goods as are taxed are not produced or manufactured in the State.
 !Para 1221[282-C-G]

                                                                        H
30           SUPREME COURT REPORTS                      [2016] 10 S.C.R.


;\

           Ka!rani Stores v. State of' Orissa (1966) 1 SCR 865 -
           held inapplicable.


ll          4.3 The Central Sales Tax Act, 1956 was enacted pursuant
     to the Sixth Amendment Act, 1956 whereby taxes on sale and
     purchase of goods in the course of inter-state trade and commerce
     were expressly brought within the purview of the legislative
     competence of Parliament. This included the 1wwcr to impose
     rcst.-ictions upon the power of the State legislature insofar as
c    levy of taxes of sale or purchase of goods of special importance
     is concerned. F:ntry 92-A added by the Sixth .\mendment Act
     1956 empowered the Parliament to levy taxes on the sale and
     purchase of the goods other than newspapers in the course of
     trade and commerce. Entry 54 of the State List by the same
D    amendment was redrawn to make the taxes on the sale and
     purchase of goods subject to Entry 92-A of List I. The States'
     power is made subservient to the powers of the Parliament under
     Entry 92-A. Section 15 of the Central Sales Tax Act, t.herefore,
     has overriding effect vis-a-vis any State Law authorizing imposition
E    of taxes on sale/purchase of declared goods. In t.his perspective,
     Parliament has limited the legislative power of the Stat.c insofar
     as taxes on declared goods arc concerned. The imposition of
     restrictions on the State's power of taxation in regard to declared
     goods is not suggestive of taxes themselves being restrictions
     for purposes of Part XIII oft he Constitution. Not only that, Article
     286(3) provides the source of power for the Parliament to impose
     any restriction on the State authority t.o leV)' a tax on goods of
     special importance declared by Parliament. A non-discriminatory
     tax does not per se constitute a rest1·iction on the right to free
     trade, commerce and intercourse guaranteed under Article 301.
(i   !Paras 124-12611283-D-J•'; 284-A-C; 285-A-B]


           Atiuhari Tea Co. Ltd. \'. Srare of'Assam & Ors. 1961
           SCH 809 : Am 1961 SC 232; Automohile 1/'a11.1porf
           (Rajasrhan; Lrd. ere. v. Swre of' Rajastlwn & Ors.1963
II
      JlNDAI. STAINl .FSS lTD. v. STATF OF HARYANA                     31


      SC R 491 : A IR 1962 SC 1406; Jindal Swinless Ltd                A
      ( J) and ,.Jnr. 1·. Swre ol Harvana and Ors. 2006 (3)
      SCR 1095: (2006) 7 SCC 241 - overruled.


      5.1 ls the Entry Tax levied by the States in the present
                                                                       B
hatch of cases yiolativc of Article 301 of the Constitution and in
particular have the impugned State enactments relating to entry
tax lo be tested with reference to both Articles 304(a) and 304(b)
of the Con.~titution for determining their validity?
       The restrictions referred to in Article 304(b) arc non-fiscal
in nature. Constitutional validity of any taxing statute has,
                                                                       c
therefore, to he tested only on the anvil of Article 304(a) and if
the law is found to be non-discriminatory, it can be declared to be
constitutionally valid without the legislation having to go through
I.he test or the process envisaged by Article 304(b ). Should,
however, the statute fail the test of non-discrimination under         D
Article 304(a) it must he struck down for the same cannot be
sustained even if it had gone through the process stipulated by
Article 304(b). That is because what is constitutionally
impermissible in terms of Article 304(a) cannot be validated and
sanctioned through the medium of Article 304(b). A fiscal statute      E
shall be open to challenge only under Article 304(a) of the
Constitution without being subjected to the test of Article 304(b)
either in terms of the existence of public interest or
 rcasonah!rness of the lcv~·. !Para 12911174-C; 285-F-II; 286-A-
BJ
      Video t.'lectronics v. State of Punjab 1989 (2) Suppl.
      SCR 731 : (1990) 3 SCC 87 - affirmed.


      5.2 The Court ought to examine whether the differentiation
made is intended or inspired by an element of unfavourable bias        G
in favour of the good~ produced or manufactured in the State as
against those impor1ecl from outside. Sn long as the differentiation
made b~· the States is not intended lo create an unfavourable bias
and so long as the differentiation is intended to benefit a distinct
                                                                       H
32            SUPREME COURT REPORTS                      [2016] 10 S.C.R.


A    class of industries and the life of the benefit is limited in terms of
     period, the benefit must be held to flow from a legitimate desire
     to promote industries within its territory. Grant of exemptions
     and incentives in such cases must be deemed to have been
     inspired by considerations which in the larger context help
     achieve the Constitutional goal of economic unity. !Pam 133] [289-
B
     D; 290-C-DI


           Shree Mahavir Oil Mills and Anr. v. Stale of Jammu and
           Kashmir and Ors. (1996) 2 SCC 39 - distinguished.
           Kathi Raninp, Rawat l'. The State of Saurashtra 1952
           SCR 435: AJR 1952 SC 123 - affirmed.
           Mk Bhagatram Rajeev Kumar v. Commissioner of
           Sales Tax, MP. and Ors. 1994 (6) Suppl. SCR 91 :
           1995 Suppl. (1) sec 673; State of Bihar and Ors. V.
D
           Bihar Chamber of Commerce and Ors. 1996 (2) SCR
           184 : (1996) 9 sec 136; Ji11dal Stripe Ltd and Am: V.
           State of' Hwyana and Ors. 2003 (4) Suppl. SCR 154 :
           (2003) 8 SCC 60; Jaiprakash Associates Limited v. Stale
           of Madhva Pradesh and Ors. 2008 (17) SCR 1282 :
E          (2009) 7 SCC 339; Jindal Stainless Limited and Am: v.
           State of Harvana and Ors. 2010 (4) SCR 743: (2010)
           4 SCC 595; [<eshav ivlil!.1· Co. Ltd. v. CIT 1965
           SCR 908 : AIR 1965 SC 1636: GK Krishnan v. State
           of fomil Nadu 1975 (2) SCR 715 : (1975) 1 SCC 375;
 F         Kihoto Hollo/um v. Zachi/lhu 1992 (1) SCR 686 :
           (1992) Sup1>l. 2 SCC 651; TM.Ii. Pai Foundation and
           others l'. State ofKamataka 2002 (3) Suppl. SCR 587 :
           (2002) 8 SCC 481; Chief Justice of Andhra Pradesh
           and others. v. L. V. A. Dixitulu a11d others 1979 (1) SCR
           26 : (1979) 2 SCC 34; Kesavananda Blwrati v. State
           of Kera/a 1973 Suppl. SCR l : (1973) 4 SCC 225;
           Ku/deep Nair v. Union ojlndia and Ors. 2006 (5) Suppl.
           SCR 1 : (2006) 7 SCC l; S1111. Ui/am Bai v. Stale uf
           U1tar Pradesh 1963 SCR 778 : AIR 1962 SC 1621 -
           referred to.
H
       .JJNDAL STAINLESS LTD. \'. STATE or HARYANA                        33


         5.3 Courts have almost universally accepted the principle        A
 that keeping in view the inherent complexities of fiscal
 adjustments and the diverse elements and inputs that go into
 such exercise a greater latitude is due to the legislature in taxation
·related legislations. So long as the intention behind the grant of
 exemption/adjustment/credit is to equalize the fall of the fiscal        B
 burden on the goods from within the State and those from outside
 the State such exemption or set off will not amount to hostile
 rliscrirninati.on offensive to Article 304(a). Whether the impugned
 enactment achieve the object of such equalization or lead to a
 sit nation that exposes goods from outside the state to suffer any
 disadvantage vis-a-vis those produced or manufactured in the             c
 taxing State is left open for examination by the regular benches
 hearing the matters. !Paras 137, 1411[291-G; 297-E]


       Ma/i1tlal i: Union of India 1996 (10) Suppl. SCR 585:              D
       l 997 (5) SCC 536; Khandige Sham Bhat v. Agrl.
       /JV 1963 SCR 809 : AIR 1963 SC 591; V Gun1viah
       Naidu and Sons and Ors. v. State of Tamil Nadu and
       Ors.1977 (1) SCR 1065 : (1977) 1 SCC 234; Malwa
       /3111· Se111ice (Private) Ltd. v. State of P.unjah and Others
       1983 (2) SCR 1009: (1983) 3 SCC 237; Maharaj                       E
       Umeg Singh v. State of !3omhav, 1955 SCR I 64 : AIR
       1955 SC 540 - referred to.
       Cole v. Whitfield (1988) 165 CLR 360 - referred to.

                                                                          F
       PER S. A. BOBDE, .J. (Concurring)
       Taxes arc not restrictions on Trade.
        1. Tax is predicated on freedom of trade and commerce. It
 is pa1·ticularly true of entry tax. Entry tax is an impost levied on     G
 transactions which are entered into in the course of that freedom.
 In fact, but for such freedom of trade, there would be no
 transaction and no occasion for the levy of a tax. The levy of a
 tax is a distinct event from the transaction. Trade and commerce
 must take place to attract a tax. Undoubtedly a tax may make
                                                                          H
34            SUPREME C()LJRT REPORTS                     [2016] 10 S.C.R.


/\   the transacHon less profitable to the extent of the tax. Bnt that
     is rar from being an impediment on the transaction which is part
     of trade, the freedom which is guaranteed under Article 301. It
     is not possible to readily conceive of a tax, which in itself, restricts
     or impedes the freedom of trade. !Para 2] [298-C-D]
           2. Article 304(a).
             The levy of entry tax on import of goods from outside the
     local area in the State will be per se discriminatory if goods similar
     to those imported are not produced or manufactm·ed within the
     State. Article 304 recognizes the power of a Legislature to a State
c    to impose the tax on the imported goods so, however, as not to
     discdminatc between goods so imported and goods so
     manufactured or produced. The Article imposes two conditions:
     firstly. that a law may impose a tax on goods imported from other
     States, "any tax' to which "similar goods manufactured or
I)   produced' in that Stale are subject. This clearly implies that the
     goods imported from other States may be subjected to a tax where
     simib1r goods a1·c in fact, manufactured or produced in the
     imporfing State and arc subjected to tax. In other words, (a) the
     goods imported from other States must be similar to (b) the goods
     manufactured or produced in the importing State and (c) the goods
     so locally manufactured or produced must be subject to tax. The
     second condition is the tax that is imposed on imported goods
     should not discriminate between the imported goods and goods
     manufactured or produced in the importing State. The intention
     of the Article thus, clearly is that where a tax exists on goods
     impot"ted into a State, there should be no discrimination between
     such a tax and a tax on similar goods manufactured or produced
     in the importing State. The reference point for tax on imported
     goods is the tax on locally manufactured goods. It is not possible
     to construe the prohibition against discrimination where there is
     no tax upon similar goods manufactured or produced in the
G
     importing State. Undoubtedly, the effect of such a construction
     is that the imported goods cannot be taxed where similar goods
     are not manufactured or produced in the importing State and arc
     therefo1·e, not subjected to similar tax and that seems to be the
     clear· intention of this Article. !Paras 4, 6 and 711299-C; 300-D-
H
      JINDAL STAINLESS LTD. v. STA.TE OF HARYA.NA.                     3)



II; 301-A-BI                                                           A
      3. Jn the normal course, a State in which certain goods arc
not manufactured would rely on the supply of such goods from
other States and the effect of this provision would he to make the
goods so imported available without the additional burden of tax.
In sum, the premise on which lax can be imposed is the existence       B
of no! mere taxes on goods produced or manufactured locally, or
the thcon:tical possibility of taxation, to avoid the prohibition
under Article 304 (a), hut the actual production or manufacture
of similar goods, that are subject to like or similar tax. Absent
this condition, the levy would fall foul of Article 304 (a) since it   c
would constitute an additional burden (the goods already having
suffered some form of taxation in the producing state). This
interpretation would also further economic progress and the
unhindered availahili!y of goods in states which do not have
manufacturing capacities and may not be able to develop it, having
regard to lack of natural resources or other geographical              D
limitations. I! also furthers the aims underlying Article 301 of the
Constitution of India. (Para 8]1301-C-F]


      f1riahari ](,a Co. Ud.Stall' of'Assam & Ors. 1961
                               1:
                                                                       E
      SCR 809 : AIR 1961 SC 232 - referred to.
      McC11lloch v. Mwyla11d. 17 lJS 316 (1819) - referred
      to.

                                                                       r
      PER SHIVA KIRTI SINGH, .I. (Concurring)
      Challenge to various taxing statutes enacted by several
States to impose Entry Tax on goods in exercise of specific power
available lo the State legislature under· Entry 52 of List II in the
7th Schedule of the Constitution.                                      G
       I. Since, in the matter of levy of taxes the compensatory
theory is no more relevant, the State Legislatures are free to
('Xercise their taxing powers without the need of declaring and
showing that taxes imposed by them oi1 outside goods arc for the
benefit of concerned traders or manufacturers. But such tax must       H
              SUPREME COURT REPORl'S                     12016] I0 S.C.R.


A    be, in essence, non-discriminatory, both, in the ultimate tax burden
     and in machinery provisions. To muster compliance with Part XIII
     of the Constitution, the lax must pass the twin tests embodied in
     Article 304(a) - (i) Similar goods produced locally must also be
     subjected lo similar tax and (ii) such state action should not attract
13   the vice of discrimination between the two varieties of goods.
     I Para 611303-0-Fl
            2. The entire discussion leads to a fair conclusion that the
     views summarized by Sinha, CJI in paragraph 18 of his judgment
     in Atiabari case depict the law emanating from Part XIII of the
c    Constitution in the correct perspective. However same cannot
     he said of observations in paragraph 16 where His Lordship used
     the expression - "If a law is passed by the legislature ...... .
     imposing a high tariff wall----------assumes the character of a trade
     barrier which it was the intention of the Constitution makers to
     abolish by Part XUJ." These observations do create practical
D    difficulties of insurmountable proportions. Hence these deserve
     to be treated as obiter or interpreted in the light of the entire
     passage, to mean such taxes which impose an impediment to the
     free flow of trade, commerce and intercourse by creating
     discriminatory tariff wall/trade barrier (emphasis supplied). For
r'   Part Xlll there can be no real impediment through tax unless
     the so called wall or barrier is one of hostile discrimination
     between local goods aud outside goods. !Para 711303-G-ll; 304-
     A-Bl


F          Atiahari Tea Co. Ltd. v. State of Assam & Ors. 1961
           SCR 809 : AIR 1961 SC 232; Auromobi!e Transport
           (Rajasthan) Ud etc. v. State of Rajasthan & Ors. 1963
           SCR 491 : AIR 1962 SC 1406 - not good law.

G
           PER N. V. RAMANA, J. (Concurring)
           1.1 It is a settled proposition that generally the construction
     of the Constitution must be most beneficial and widest possible
     amplitude. The court must gather from the spirit of the
II
      .JINDAL STAINLESS !TD. v. STATE OF HARYANA                       37


Constitution and 1he language must not be construed in a narrow A
and pedantic manner. Equally important point is that legislative
powers especially taxing powers cannot be tested by implication.
Unless there is express limitation on the power of the State to
enact the State law, it is not the province of the court to curtail
the power of the slate by interpretative process. Every law must B
he tested with reference to preamble and Directive Principles of
State Policy. !Paras 5.2, 5.3]1316-D-E, G; 317-A]


     Kesavananda Bharti v. State o( Kera/a 1973 Suppl.
     SCR l : 1973 (4) SCC 225 · relied on.                             c
     RH/ v. Pearle.1·.1· General Finance AIR 1987 SC 1023:
     1987 (2) SCR 1: In re CP and Berar Act, 1938, 1939
     FCR 18; Aram Prakash v. State of Harvana 1986 (1)
     SCR 399 : 1986 (2) SCC 249; State o( 11/est Bengal v.
     Kesoram Industries Ltd. 2004 (1), SCR 564 : AIR 2005              D
     S.C. 1646; Ci. K. Krishnan v. State of Tamil Nadu 1975
     (2) SCR 715: AIR 1975 S.C 583; RC Cooper v. UOJ,
     1970 (3) SCR 530 : (1970) l SCC 248; Madho Rao
     .Jimii Scimlia l'. Cnion oflndia 1971 (3) SCR 9: (1971)
     1 sec 85 - referred to.                                           E
      Constituent Asscmhly Dehote Vol. IX, September 8,
      1949 - referred to.


      1.2 In a democratic system, the elected Governments are
always responsible for its people. If there is any high taxation
which is affecting their life, this puts pressure on the Governments
lo reduce taxes and elected Governments are answerable to
public every five years. No Government can raise tax which would
cause public inconvenience. In this context, Sovereignty is no
more endless power, rather it is responsibility. A responsible         G
government in a democracy should always strive to keep taxes
as low as possible, so that no heavy burden is placed on tbe
individuals. Although States arc empowered to tax under the
Constitution. it does not necessarily mean that they should tax at
                                                                       H
38           SUPREME COURT REPORTS                       [2016110 S.C.R.


A  exorbitant rates. Tax is a way uf apportioning the cost of
   government among those who in some measure are privileged
   to enjoy the benefits and must therefore bear its burdens. A tax
   is a burden or charge imposed by a competent legislature upon
   persons or property, to raise money for public purposes.
   Important clements of a tax may be said to be first, that it is a
B
   compulsory exaction; secondly, it is payable to the State or to
   some public authority on its behalf; and thirdly, that it is an exaction
  .for purposes of public interest. Our Constitution has demarcated
   the taxing powers between the Center and States. Taxing power
   of the Union as well as the States resides in Article 245 read with
c 246 of the Constitution. Article 246 of the Constitution, lays down
   that Parliament has exclusive power to make laws with respect
   to any matter enumerated in Union List (List I of schedule VII).
   The States have complete power to make laws with respect to
   ~my matter enumerated in the State List (List II of schedule VII)

D  and   both Parliament and State Legislature have power to make
   laws with respect to any matter enumerated in the Concurrent
    List (List IU of schedule VU). As per Article 265, no taxes shall
   be levied or collected except by the authority of law. Taxation
   entries are to be found only in lists I and II, indicating that in our
   Constitutional scheme, taxation powers of the Centre and the
   States are mutually exclusive. There ar·c no Entries in the
   Concurrent List which gives power of taxation. This being the
    case, the moment the levy contained in a taxing statute
    transgresses into a prohibited field, it is liable to be struck down.
    !Paras 6.1, 6.211324-C-F; 325-A-E)
 F

          Raja .!agannath Baksh Singh v. State of U.P & Am:
          1963 SCR 220: AIR 1962 SC 1563; Dena Bank v.
          Bhikhahhai Prahhudas Parekh & Co. 2000 (3) SCR
          509 : (2000) 5 sec 694; c.rr.. Udaipur Rajasthan V.
0
          McdoH·e!l & Co. Lrd. 2009 (8) SCR 983 : 2009 (10)
          sec 755 - referred to.
           Coole1' on taxation Vol. 1, 4'" ed., Ch.2 - referred to.


1-1
      JINDAL STATNLESS ITD. v. STATE Of HARYANA                        39


        2.1 The freedom of tniclc, commerce and intercourse A
throughout the territory of India is assured, but such freedom of
trade is subject to Part XIII of the Constitution. 'When evaluating
the impact of Article 301 on the plenary taxing power of the
Sovereign State, the opening words become significant. The
dissi;ct.ion of A1·tielc 301 shows that it bas three significant parts
                                                                        B
or p h rascs. T hcse are, 's ul~iect to other provisions of this part',
and 'Trade, Commerce and intercourse throughout territory (}(
India', '.~hall befi·ee'. \Vhichever way one r·eads, the plain meaning
of this is that trade, commerce and intercourse, shall be free,
subject to Articles 302 to 307 of the Constitution. The two sets
or the provisions which are mainl:o-· contemplated in the phrase c
'subject to other provisions' are Articles 302, 303 and 304 (a)
and (h). The Pl1rliamcnt may by law restrict the freedom of trade
in puhlic interest and such law would lJe free from Article 301.
Article 301 of the Constitution begins with the phrase 'Subject
tn othl'r prnvisions of this Part'. This phrase gins an initial D
indication as lo what to expect? The position of this phrase should
 be taken into consideration. Even before the declaration of
freedom of Trade, Commerce and Lntercourse, it is being
sub.iected to limitations. Further the opening words of Article
301, namely, 'sub.ice! to the provisions of this part' require that
                                                                        E
 all the Articles of the Part XIII have to be read together so as to
 understand the width and meaning of the Part Xlll. 'Subject to'
 is the dominant expression so far as Article 301 is concerned. It
 indicates subservience to at least Articles 302, 303 and 304.
 Articles 302 to 304 embody a restatement of powers under Article
 246 r/w the State List under the VII Schedule. Each restated F
 power by itself overrides the freedom of trade in Article 301.
 [Paras 7.3-7.511328-D, E-H; 329-A-BI
      2.2 A1·ticlc 301 loses its prime place, if States make laws
under any of the taxing entries, erecting reasonable restrictions
or imposing tax on the free trade. Such power oYer-ridcs freedom       G
of trade and commerce. Thus, the general declaration by Article
301 is relaxed in favor of Parliament by Article 302 and in favor
of the States by Articles 303 and 304. Article 304 starts with a
11011-ohstallle clause whereas Article 302 does not have a non-
obstanle clause. As the freedom of trade in Article 301 is itself      H
40             SUPREME COURT REPORTS                       1.2016] 10 S.C.R.


/\    subjecl to 302 and 304, the intention of the framers appears to
      be clear. The Constitution guards and protects the State
      legislations under Arliclc 304(a) and (b) from overemphasized
      effect on freedom of trade under Article 301.IPara 7.6] 1329-C-DJ
            3. It is a sound principle of jurisprudence that entire statute
R     has to be construed as a whole and not in isolation. While doing
      so, no clause in any provision can be ignored especially when
      interpreting the Constitution which is 's11pre111a lex'. The
      difference between the power of the Union and the States vis-a-vis
      Article 301 is that Article 302 does not have application to tax
C     laws like Article 304(a), but under Article 304(a), tax can be
      imposed on the goods imported from other States. From the
      legislative history and Constituent Assembly Debates,
      propositions that emerge arc: It is clear from a comparison of
      Clause 16, 243, 244 and 245 of the draft Constitution with Articles
      in Part XA (now Part XIII) that they were not merely arranged in
D     seriatim but were substantially altered. That freedom of trade,
      commerce and intercourse is not a fundamental right. That trade,
      commerce and intercourse in India is not absolutely free. That
      the discriminatory tax (like erstwhile custom duties imposed by
      certain independent states) is harmful for the federation. [Paras
      7.7, 7.1711329-E-F; 335-B-EJ


            F1111dame11tal Rights by Dr. K. M. Munshi B. Shiva
            Rao. The Fmming of India :1· Co11stit111ion, Vol. II, p. 69
            (1967) (B. Shiva Rao); Sir Alladi Krislmaswami Jye1;
 r          B. Shiva Rao, p.68; Co11stitue111 Assemhlv Dehate, Vol.
            IX, 8th September 1949 - referred to.


            4. The main inspiration for Part XIII has been American
      and Austrnlian models. These models present before the
      Constituent Assembly were re-designed and expanded by the
      framers of the Constitution in India according to the needs of
      Indians. The interpretation provided by other countries are Just
      indicative. They may have persuasive value because the context
      and history has been quite different as compared to India. At
f-l
      JINDAL STAINLESS LTD. v. STATE Of HARYANA                        41



least in relation to Part XUJ of the Constitution an indigenous        A
interpretation should be provided without placing heavy reliance
on the foreign cases as they may be subject to change which will
inevitably stir !he matter once again. Moreover, our constitutional
~tructm·e is quite different from those provided under Australian
and American Constitutions. ln Australia and the U nitcd States
                                                                       B
of America, giving textual meaning to the applicable
Constitutional provisions, the Courts interpreted the 'commerce
clause' or 'free trade clause' in such a manner that the (federal
units) were completely barred lo levy any taxes o·n inter-state
trade and commerce. Fortunately off late, in these jurisdictions,
the law has been dilutl'd to enable the· federal units to regulate     c
inter-state trade and commerce even by imposing levies. This
would be clear by bi-icf reference lo !he case law governing inter-
state trade in Australia, Canada and the United States of America.
!Paras 7.19, 7.201[336-B-Ej
                                                                       D

      Gold Seal Ud.   1·.   Alherta AG (1921) 62 SCR 424 --
      referred to.
      Cole 1·. Whitfield (1988) I 63 CLR 360; Castlemaine
      foohey.1· Ud v. South A 1.11·tralia ( 1990) 169 CLR 436;         E
       Bct/(1ir Pty Ud v. Western Australia (2008) 234 CLR
      418; Common wealth\'. Bank ofrww South H'ltlcs, (1949)
      79 CLR 497; Brmvn v. Mw).Zand 25 lJ.S. (12 Wheat.)
      419 (1827); i'vicCulloch 4 Wheal. 316 (1819); Freeman
      1·. Hc11·irt. 329 U.S. 249 (1946); Comp/Pie Auto fransit

      '" Hrndr 430 U.S. 274 (I 977); D.H. Holmes C01npa11v             F
      Lid. 1·. Shirln Mc1Vamara 486 lJ.S. 24 (1988);
      C11111111om1·ealrh Edison Company '" Srate of lvlontana
      453 U.S. 609 (1981) - referred to.
      Constitutiomt! /,aw of Canada, Peter rV Hogg. Vol.l,
      pg. 857 referred lo.
                                                                       c;

      5. There is no gainsaying that the law made by Parliament
or State legislature is subject to Constitutional limitations. A law
                                                                       H
-l2             SUPREME COURT REPORTS                       j2016j IO S.C.R.



A      which abridges fundamental rights is rendered void by reason of
       Article 13. ;\ law hy the Union or the States relating to a sub.ice!
       matter outside the powers assigned under Articles 245 read with
       Article 246 and relevant legislative entries in the Seventh
       Schedule would be ultra vires as legislatively incompetent. Apart
       from these limitations, the law of the Union or the States is also
B
       subject to other Constitutional limitations. The provisions of Part
       XIII, especially, Article 304(a) and (b) also act as a limitation on
       the legislative .i uriscliction of the Union and the States. The power
       endowed under Articles 245 and Article 246 to a competent
       legislature to make laws is 'subject to the provisions of the
c      Constitution'. Nonetheless, if a State makes law under Article
       245( 1) read with A1·ticle 246(3) in respect of the subjects
       enumerated in Entries 45 to 63 of List II in the Seventh Schedule,
       it is doubtful whether it can be invalidated only on the ground
       that it does not comply with Articles 301 and 304(a). Indeed
D      various provisions of the Constitution dealing with fiscal measures
       in Part XII, for instance Articles 265, 269, 276 and 286,
       spccilically deal with taxes, but in Part XJJI, except A1·ticle 304(a),
       no other Article deals with taxes. Further Chapter I of Part XII
       of the Constitution specifically deals with provisions regarding
       •Finance', whereas Part XIII deals with ·Tracie, Commerce and
 r·:
       Intercourse' within the territory of India. Thus, these two Parts
       are kept distinctly separate. Though every law is made subject
       to all provisions of the Constitution, it does not mean that every
       tax law made by the State must be made answerable to the general
       provisions relating to trnde, commerce and intercourse. The
 F     JJro,·isions of the Constitution, the Constituent Assembly Debates
       and the p1·eccdents, lead to such a conclusion.IPara 7.40]1351-F-
       ll; 352-A-C I
             Maharaj Umeg Singh and Others v. The State al
             Bomhar and Others 1955 (2) SCR 164; Khverbari Tea
 G           Company v. State of'Assam (1964) 5 SCR 975 : AIR
             1964 SC 925 - referred to.
             Concise OxfiJrd Dictionarv, p. 474 (10th Ed.) - referred
             to.

 H
       JINDAL STAlNLFSS LTD. v. S IArE OF HARYANA                         43


      PART-VIII : ARTICLE 304 OF THE CONSTITUTION                         A
       6.1 Whether a law levying tax on cntr~· of goods needs to
he test.ed with reference to Article 304(a) and (b) of the
Constitution'? In order to appreciate the implication of Article
:104 of the Constitution, it is necessary to hear in mind the
historical background of these provisions. The Government of              B
l ndia Act. 1935 envisaged a federal Constitution for the whole of
British India. The Government imposed restriction on the
legislature of the States to legislate in relation to internal trade
1111de1· Section 297. The prohibition contained in section 297
applied only to I'n>Vincial Governments and Provincial                    C
legislatures with reference to entries in the legislative list relating
 lo trnde and commerce and to production, supply and distribution
 of commodities. This section dealt with prohibitions or restrictions
 in respect of import into or export from a Province, of goods
generally. It also dealt with the power lo impose laxes etc. and
 prohibited discrimination against goods manufactured or produced         D
 outside a Province or goods produced in different localities. The
 proviso empowered the 'Unit' to impose by Jaw, reasonable
 restrictions in the interest of the public order, morality or health.
 !Paras 8.1, 8.2 and 8.4] [354-G-IJ; 355-A, F-G; 356-C]
      6.2 Another important question is whether State                     E
enactments relating lo levy of entry tax have to be tested with
reference to both clauses (a) and (b) of Article 304 or only with
reference to clause (a) of Article 304 of the Constitution'! The
history, the context and the plain words indicate that Article 304
(a) and (h) an'. disjunctive in nature. A levy of tax need not be
tested with reference lo Article 304 (b) of the Constitution. The
n~asons for reading Article 304 (a) and (b) of the Indian
Constitution disjunctively arc: First, the legislative history and
the intention of the framers clearly point out that taxes were never
treated as restrictions in the first place. Secondly, Article 304(a)
                                                                          G
docs not bar or limit State power to levy non-discriminatory taxes
on the goods imported from other States. What is restricted is
levy of discriminatory tax only, so to say, similar goods
manufactured or produced in that State are also subjected to tax,
so as not to discriminate between the goods imported and goods
                                                                          !-I
44            SUPREME COURT Rf~PORTS                       12016110 S.C.R.


A    manufactured or produced in the State. Thirdly, the two clauses
     of Article 304 are connected by the word 'and'. Sub-clause (a)
     puts a restriction on the State to not impose a discriminatory tax,
     whereas sub-clause (b) deals with other restrictions relating to
     trade, commerce and intercourse. Fourthly, Article 304 (a) and
     (b), on a careful reading would show that Article 304 (a) and (b)
B
     are disjunctive. This is made clear by the proviso, which is to the
     effect that a Bill for the purpose of Article 304 (b) can be moved
     by the Legislature of the States, only by the previous sanction of
     the President. If Clauses (a) and (b) are not disjunctive, then the
     language of the proviso would have been certainly different and
('
     the Bill for the purpose for Clause (a) would have been mentioned.
     Conspicuous absence of reference to 304(a) in the proviso would
     certainly lend support to the view that Clause (a) and (b) of Article
     304 are distinct and dis,junctivc. The proviso, it is well settled, is
     intended to explain the main operating part of the Article. lt is
j)   never used or interpreted as expanding the operative part of the
     provision. Fifthly, if one reads Clauses (a) and (b) of Article 304
     conjunctively, then it would not subserve the federal nature of
     the Constitution which is a basic structure. [Para 8.141 [364-B-
     ll; 365-A-B]

!'
           B. Shiva Rao. Fmming of Jndia :\' Constitution, A Study
           (2"" Ed.), p. 699 to 707; R. Shiva Rao, Fm111ing of India :1·
           Co11sri111tio11, Vol. Ill, p.9 (2"" Ed.); R. Shiva Rao,
           Frn111i11g of Jndia '.\· Constitution, Vol. IV, p.329 -
I'         refetTcd to.


           6.3 There is a vital difference between mere 'differentiation'
     and "discrimination. It is discrimination not differentiation that is
     sought to he prevented through Part XIII. . The principle laid
G    down in Video Electronics is that. if a backward area in a State
     needs impetus for the development, and in such circumstances
     incentives are given for the industry to develop whether by way
     of subsidies or tax exemptions for a certain period of time as
     desi1·ed by the competent legislature, the same would be
H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                       45



permissible and would fall outside the scope of Article 304 (a). A
Such State enactment is not inherently discriminatory, but rather
aims to ensure economic equality which is a facet of economic
unity. A State law directed towards development of a particular
region is permissible under Part XIII. The common thread in
Part XII.I is the achievement of economic unity and parity which B
does not altogether preclude differentiation for justifiable and
rational reasons wherever necessary. The heart and soul of Part
XIII is to dissolve hostile discrimination within the territory of
India. T!Je second facet is that Article 304 (a) is a limitation to
impose any tax on goods imported from other States. This power
is subject to the condition that the goods manufactured or c
produced within the State are also subjected to tax, so as not to
discriminate between the goods imported from outside the State.
Article 304(a) is not a limitation on the legislature of a State to
impose such tax on goods imported. The only condition envisaged
under Article 304 (a) is, same tax is imposable 011 the goods D
imported from other States as well as goods if manufactured in
that State. (Paras 8.17, 8.19, 8.20, 8.21 and 8.22] (368-A; 369-F-
 ll; 370-A; 371-A-C]
      Video Electronics v. State of Punjah 1989
      (2) Suppl. SCR 731 : (1990) 3 SCC 87 - affirmed.                E
      Constituent Assemh/y Dehates, 1949. Vol. IX, Pages
      1125, 1145 - referred to.


      6.4 Taxing power lies in Article 245 read with 246.             F
       The words "may by law'' appearing in Article 304 is not
source of legislative power. ll is an option given to the Stales in
case it decides to levy any tax on the goods imported from other
States. The source of legislative power resides in Article 245
read with Article 246 which is indisputable. This power is not        G
subject to any implied limitation. The 1>lain reading would show
that in a given situation, the State may by choice decide not to
levy any tax imported from other States or, 'opt to levy taxes on
certain goods imported from other States. Indeed in all the entry
tax laws, the charging section enables the·levy'of entry tax only
                                                                      H
             SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A   on the scheduled goods. The scheduled goods are goods declared
    as attracting entry tax. [Para 8.23) [371-D-F'I
           6.5 Discrimination is a relative concept; in order to
    discriminate a reference point is required. Article 304(a) rather
    than being an enabling provision to allow the State to impose tax,
B   is a restricting provision, which prevents such levy of tax on
    goods as would result in discrimination between goods imported
    from other States and similar goods manufactured or produced
    within the State. The object is to p1·cvent discrimination against
    imported goods by imposing tax on such goods at a rate higher
C   than that borne by local goods since the difference between the
    two rates would constitute a tariff wall or fiscal barrier and thus
    impede the free flow of inter-State trade and commerce. It does
    not prohibit levy of tax as such in the situation wherein the goods
    are not produced or manufactm·ed in the Stale itself and does not
    affect the authority of the State to tax the imported goods. It only
D   bars discrimination on the basis of taxing the products
    manufactured within the Slate v;s-1i-vis imported goods which will
    only occur if the precondition of manufacturing in the taxing State
    is satisfied. [Para 8.24] (371-G-ll; 372-A-B]
          7. There was good amount of debate on the doctrine of
    compensatory tax evolved by this Court in Automobile. The
    concept of compensatory tax has neithe1· any juristic basis nor a
    part of Indian Constitutional law. At the stage of drafting, at the
    stage of consideration by the Sub-Commillcc as well as Advisory
    Committee and when lhe Part XA (now Part XIII) was adopted
F   by the Constituent Assembly, never even for a moment, the
    principle of compensatory tax was thought of. f Para 8.26] (372-
    C-E]


         .lriahari Tea Co. J.td. v. Srate of Assam & Ors. 1961
         .SCR 809 : AIR 1961 SC 232; Automohile Transport
                                1
          r1?(1j{;,·th111iJ L1d. ere v. _\·1ate pf Rajas1ha11 & Ors. 1963
    pl
         ·s~:R 491 :. Ali{ '1962 ~f 1406'- not good ~~~v.
          Blwgatram Rajee1· Kumar v.       en:
                                        .MP 1994 (6)·SuppL.
          SCR 91 : 1995 Suppl. (l) SCC 1636; State of Bihar E
H
JINDAL STAINLESS !TD. v. STATE OF HARYANA                      47


Bihar Chamher oj' Commerce and Ors. 1996 (2) SCR               A
184: (1996) 9 SCC 136; Jindal Stainless Ltd. And Am:
v. SI ale of Haryana and Ors. 2006 (3) SCR 1095 : AIR
2006 SC 2550; Jaiprakash Associates v. Slate of MP
2008 (17) SCR 1282 : 2009 (7) sec 339; Jindal
Stainless Ud. and .Im: v. Slate of J-farvana 2010 (4)
                                                               B
SCC 595; Jindal S1rips Lrd. v. Srare of Ha1Jana 12003 j
129 S.'J'.C 534; .Jindal S1ripe Ud. v. Slate of Harvana
2003 (4) Suppl. SCR 154: 2003 (8) SCC 60; Jindal
S1rip.1· Limited 1·: Stale of Har)'ana 2006 (3) Suppl.
SCR 569 : 2006 (7) SCC 271; Indian Oil Cmporation
1: Stale of' Harvana (2009) 21 V.S.T 10 (P&ll); A.             c
Laksluninarh, PrecC'denl in India (3"• Ed.} p.178 (2009);
 In re Sea Customs 1lct 1964 SCR 787 : AIR 1963 SC
 J 760; Stale Trading, Corp. o( India Ltd. v. CTO 1964
SCR 99 : AIR .1963 SC 1811; Golaknath v. State of
P1111jah 1967 SCR 762: AIR 1967 SC 1643; Naresh                D
Shridhar Mirajkar v. Stale of Maharastra 1966
  SCR 744 : AIR 1967 SC 1; S11ptd. And Remembrancer
 o(' f,e,'..!,al Affc1ir v. Corp. of Calculla 1967 SCR 170 :
 AIR 1967 SC 997; Ahmedahad Sr. Xavier College
 Sociclv v. State of Gujarat 11)75 (1) SCR 173 : (1974)
                                                               E
 1 SCC 717; Indira Sa11 hney 1.: UOJ 1992 Supp. (3) SCC
 215; Supreme Co11rl Advocalc.1· on Record Association
 \'. UOI 1993 (3) SCR 669 : (1993) 4 sec 441; SR
 Ho111111ai v. UOJ (1994) 3 SCC I; Attorney General of
 India 1.: Amritlal Pmjvandm· (1994) 5 SCC 54; Mafatlal
 llld11stries v. UOJ 1996 (10) Suppl. SCR 585 : 1997           f
 (5) SCC 536; <Vi'v!DC v. Stare of Punjab 1996
 (10) Suppl. SCR 472 : (1997) 7 sec 339; TMA Pai
 Foundation Case 2002 (3) Suppl. SCR 587 : (2002) 8
 SCC 481 (11 .iudge bench); J.R. Coelho v. State of
 TN 2007 (1) SCR 706 : (2007) 2 SCC 1; Central Board           G
 of DaV1·oodi Bohra Community & ,Jnr. v. State of
 !vlaharashtrn & Am: 2004 (6) Suppl. SCR 1054 : 2005
 (2) SCC 673: Keshav .\!fills Co. Ltd. v. CIT 1965
 SCR 908 : A.IR I 965 SC I 636; Minerva Mills Ltd. &
 Ors. 1'. Union Of India & Ors. 1980 AIR 1789: 1981
                                                               H
48           SUPREME COURT REPORTS                     [2016] 10 S.C.R.



A         (1) SCR 206; State of West Bengal v. U11ion of India
          119641 1 SCR 371; S.R. Bommai v. Union of India
          119781 2 SCR 1; Special Reference No.I of 1964) 1965
          SCR 413: AIR 1965 SC 745; ITC Limited v. Agricultural
          Produce Market Committee and Ors. 2002 (1)
          SCR 441 : (2002) 9 SCC 232 - referred to.
8
          J,ord De1111i11g, Familv Storv, p. 207 (1999) - referred
          lo.


           PER R. HANUMATill, .J. (Concurring)
c
            1.1 The underlining idea in making trade, commerce and
     intercourse throughout lhe territory of India free is to emphasize
     on the economic unity of India and to ensure that unity of the
     country may no! be broken by internal barriers. In order to ensure
I)
     that the Slate Legislatures sub.jected to local and regional pulls
     did no! create trade barriers in future, Art. 301 was incorporated
     in !he Constitution. Art. 301 in general enacls that "subject to
     the other provisions of this Part, trade, commerce and intercourse
     throughout the territory of India shall be free". After having
     declared the general nature of the freedom of trade and
     commerce, Part XIII of the Constitution sets out the limitations
     to this freedom, in Articles 302 to 304 which re-state the powers
     of the Parliament and the State Legislatures in imposing
     restrictions on the freedom of trade, commerce and intercourse.
     !Paras 15, 161 1382-A-H, D-EI
 f         Ji11dal Stai11/ess Ltd. (2) and Am'. v. State of Haryana
           and Ors. 2006 (3) SCR 1095 : (2006) 7 SCC 241 -
           overruled.
           K. T Plantation Private Limited and Another v. State of
           Karnataka 2011 (13) SCR 636 : (2011) 9 SCC 1; State
G          of Kera/a a11d Ors. v. ivlar Appraem Kuri Company
           Limited and .for. 2012 (4) SCR 448 : (2012) 7 SCC
           106; Ma hara; Umeµ; Singh and Ors. v. The State of
           Bomhay a11d Ors. 1955 SCR 164: AIR 1955 SC 540 -
           referred to.
H
      JINDAL STAINLESS r;rD. v. STATE or HARYANA                       49



       1.2 Ar!.302 empowers the Parliament to impose restrictions A
on the freedom of trade, commerce and intercourse provided
1hey arc required in pnhlic interest The purpose of this provision
is lo allow !he Government of India to restrict the movement of
goods so as to safeguard a well-balanced economy and for proper
organization or supply of goods and services. Famine may be B
raging in one par! of the country while there is plenty in another
part, as has been the past experience of the country in regard to
food. If Parliament has no effective powers to impose restrictions
in such situations on freedom of trade and commerce, then it will
undermine the unity of nation. It is reasonable to presume that
!he Parliament, people's representative is a bet!er judge of public c
 interest and that its Judgment must have primacy over any other
judgment, including that of the courts. !Para 17] [382-G-H; 383-
Al
       1.3 Ar!. 303(1) of the Constitution prohibits Parliament
                                                                       ])
and the Slate Legislature from making "any law giving or
authorizing the giving of, any preference to one State over another,
or making or authorizing the making or, any discrimination
het ween Slate and another, by virtue of any entry relating to trade
and commerce in any of the Usts in Seventh Schedule".
P1·cfcrence or discrimination amounts to a restriction on the          E
freedom guaranteed under Ar!. 301 of the Constitution only if it
is a law made by virtue of any entry relating to trade and commerce
in any of the Lists in the Seventh Schedule. Application of Art.
303(1) is to specific entries on trade and commerce and not to be
confused with the general application of Art. 301 to all the
legislative entries other than the entries relating to trade and
commerce. But when any part of the country is suffering from
scarcity of goods, Parliament may, to meet such a situation; pass
even a discriminatory law [Art. 303(2)]. Art. 303(2) is an exception
to Art. 303(1) inasmuch that the limitations of Art. 303(1) lose
operation when aforesaid preference and discrimination is made         G
for the purpose of dealing with situation arising from scarcity of
goods, and the Parliament may in these situations enact a law
that gives or authorises giving preference or makes or authorises
making of any discrimination. [Para 18] [383-C-E]
                                                                       H
50           SUPREME CDURT REPORTS                     [2016110 S.C.R.


           1.4 As per Art. 304(a), a State Legislature may impose any
     tax on goods imported from other States or Union Territories to
     which similar goods produced in that State are also subject, so as
     not to discriminate between the goods so imported and goods so
     manufactured or produced within the Stale. A State Legislature
     is also authorised to impose reasonable restrictions on the
     freedom of trade and commerce with or within that State as may
     be required in public interest, subject to the condition that no
     Hill or Amendment shall be moved in the Legislature of a State
     without previous sanction of the President !Art. 304(b)I. Art.
     304 begins with non-obstantc clause and is intended to override
c    both Art. 30 I and Art. 303. Art. 304(a) does not prevent taxation
     of goods; it only prohibits taxes that discriminate between the
     goods imported from other States and similar goods that are
     manufactured or produced within the taxing State. [Para 19] [383-
     F-ll; 384-Al
D           1.5 Part XII and Part XIII of the Constitution lay down the
     parameters within which State Governments can exercise their
     right to enact laws/impose tax, restricting the freedom of trade,
     commerce and intercourse. Puq>0se of including Part XIII (as it
     stands today) in the Constitution as emerges from Section 297 of
E    the Government of India Act, 1935 was to confer a freedom of
     trade, commerce and intercourse, subject to restrictions and non-
     discriminatory tax laws. In this respect, Art.301 does not confer
     any higher right. Even the Constitutional Assembly Debates show
     that the framers did not intend to confer any absolute freedom of
     trade, commerce and intercourse. They did not adopt the
F
     expression "absolutely free" as found in the Australian
     Constitution. The purpose of including Part XIII in the
     Constitution as emerges frqm the Constituent Assembly Debates
     was to ensure the interest of the larger economy of the nation
     and to prevent unreasonable trade barriers in the free flow of
G    trade, commerce and intercourse, impeding economic growth.
     Framers of the Constitution considered flow of trade, commerce
     and intercourse throughout the territory of India as important
     for economic unity, but they did not deify trade, commerce and
     intercourse nor they entertained any fetish for it. In fact, freedom
H    of trade, commerce and intercourse was initially meant to be a
      JlNDAL STAINLESS LTD. v. STATE OF HARYANA                        51



fundamental right but was removed from the part pertaining to          A
'Fundamental Rights' as it was considered that it did not have
any great content as a fundamental right. !Paras 21, 25]1384-E-
F; 387-U; 388-A-B]
     Jindal Stripe Ltd. and Am: v. State of Haryana and Ors.
     2003 (4) Suppl. SCR 154 : (2003) 8. sec 60;                       B
     Jaiprakash Associates Limited v. State of Madhya
     Pradesh and Ors. 2008 (17) SCR 1282 : (2009) 7 SCC
     339; Jindal Stainless Limited and Anr. v. State of
     Harvana and Ors. 2010 (4) SCR 743: (2010) 4 SCC
     595 - referred to.                                                c
      "'Constituent Assemhly De hates 30. 07. 1949 to
      18. 09. 19,19 " - referred to.


      Freedom under Art. 301 is sub.iect to Part Xlll and other
                                                                       D
parts of the Constitution Parts viz. III, IV and XII etc.:
       2.1 Interpretation of the Constitution should emerge from
a reading of the whole of the Constitution to ensure that the
overall objectives are achieved. Part XIII as a whole is based on
a balanced scheme and it should be interpreted with reference to
                                                                       E
other parts of the Constitution including Part Ill, Part XII and
Articles 38 and 39 of the Directive Principles of State Policy. Each
of these Parts must be read not in isolation or as water tight
compartments but harmoniously as a logical whole. The
Constitution must be treated as a logical whole and provisions
are not to be read in isolation. !Para 31 I [392-G-H; 393-A)           F

       2.2 Object of Part Xlll is not to make inter-State trade,
commerce and intercourse absolutely free. Part XIII will have
to be rcl!d along with other Parts of the Constitution namely, Parts
Ill, IV and XII along with the basic features of sovereignty and
federalism. Free trade, commerce and intercourse is subject to         G
the other provisions of Part XIII as well as other constitutional
provisions. A1·t. 301 does not use the word subject 'only' to Part
XIII. The word "free" in Art. 301 is to be read not in isolation or
in the limited context of Part XIII, but has to be read as part of
                                                                       H
52           SUPREME r::)lJRT REPOR!'S                 [2016] 10 S.C.R.



A    the Constitution as a whole. The word "free" cannot be given a
     meaning which renders the legislative powers of the State
     ineffective. Articles 302 to 304 are neither exceptions nor
     provisos to Art. 301 and therefore, the principles of interpreting
     a proviso cannot be applied to them. But both Atiabari and
B
     A utomohile proceeded on the footing that Art. 302 is in the nature
     of exception to Art. 301. [Paras 33, 34] J394-D-E, G]


           Kesavananda Bharati v. State of Kera/a 1973 Suppl.
           SCR 1 : (1973) 4 SCC 225 - followed.
c
           Kihoto Hollohan v. Zachillhu 1992 (1) SCR 686 :
           (1992) Suppl. 2 SCC 651; TM.A. Pai Foundation and
           others F. State of Karnataka 2002 (3) Suppl. SCR 587:
           (2002) 8 sec 481 - relied on.

D
           Can the levy of a non-discriminatory tax per se constitute
     infraction of Article 301 of the Constitution of India?
           Power to Tax is an incident of State Sovereignty:-
          3.1 Entries relating to taxation and levy of duty under the
E
    State List, Seventh Schedule are Ent.ries 46-62 and under the
    Concurrent List, Seventh Schedule arc Entries 35, 43 and 44.
    The power to tax is a sovereign right of the State and is essent.ial
    to the very existence of a Government. Any fetters on the power
    of the State to generate revenue through taxes have a direct
r · impact on the autonomy and governance of the State. The term
    'tax' is ordinarily used to express the exercise of the sovereign
    power to raise revenue for the expenses of the Government.
    Subject t.o the Constitution and its inherent restrictions, the power
    of taxation is regarded as political and supreme. Without taxes,
    for lack of source of revenue, the Government would become·
G
    paralyzed. How much revenue is to be drawn and from which
    source is a matter of fiscal policy and wholly depends on the needs
    of a State. [Paras 36, 37 and 40) J397-B-C; 399-F)


H
      .JINDAL STAINLESS LfD. v. STATE or HARYANA                       53


     Raja Jagamwth Baldi Singh v. The State of U.P and                 A
     Anr. (1963) 1 SCR 220; State of WB. v. Kesoram
     Industries Ltd. and Others 2004 (1) SCR 564 : (2004)
     10 SCC 201; Yadlapati Ve11kateswarl11 v. State of A.P.
     1990 (1) Suppl. SCR 381 : 1992 Suppl. (1) SCC 74,
     Stale of U. I' & Am: v. Synthetics and Chemicals Ltd. &           B
     ,Jnr. ( 1991) 4 SCC 139; Amrit Banaspmi Co. Ltd. and
     Anr. v. State of Pun/ah and .1nr. 1992 (2) SCR 13 :
     (1992) 2 sec 411; Dena Bank V, Bhikhahhai
     Prahhudas Parekh & Co. and Ors. 2000 (3) SCR 509 :
     (2000) 5 sec 694 - relied on.
                                                                       c
      Constilutional Law of India. 4'h Edition, Volume 3;
      Coole_\', fo.wlion (4'h E(lition) Pages. 72, 149, 150;
      Referred to in the Article Power to Tax by Herman
      M. Knoellcr reported in Market Law Review Volume
      22 Issue 3 April, 1938 - referred to.
                                                                       D

       3.2 Parts XI and XII of the Constitution deal with "Relations
between the Union and the States" and "Finance, Property,
Contracts and Suits" respectively. Part XII dealing with finance
etc. has been treated as Part dealing with the sovereign power of      E
the States to impose taxes, which must always mean imposing
hurden on citizens and others in public interest. The power of
taxation is vested in a sovereign State to carry on with the affairs
of the Government. Our Constitution had laid the foundation of a
Welfare State, very much extending the activities of the
Government and the administration thus making it necessary for
the State to impose taxes on a large scale and in much wider
fields. The legislative competence of the Parliament or of the
State Legislatures can only be circumscribed by express
prohibition contained in the Constitution itself. The plenary
powers of legislation vested in the Union and State Legislatures       G
by the Constitution are not subject to any limitations other than
those imposed by the Constitution itself. !Para 42] 1400-D-F]



                                                                       H
54            SUPREME COURT REPORTS                    [2016] 10 S.C.R.



A          Elel Hotels & Investments Lrd. and Others v. Union of
           117dia J989 (2) SCR 880 : (1989) 3 SCC 698 - referred
           to.


           Freedom in Art. 301 does not mean freedom from taxation.
B
           3.3 Exemption from tax power of Parliament /State
     Legislature must be provided expressly and unambiguously.
     Art.289(2) shows that the trade and business carried on by or on
     behalf of the Government of the State can also be subjected to
     tax and the tax could be "to such an extent'', if any, as Parliament
c    may by law provide. When even the trade or business carried on
     by or on behalf of the Government of the State can also be
     subjected to tax, it would be erroneous to hold trade, commerce
     and intercourse carried on by private individuals and companies
     in the country free from tax; and that too, by implication. Even
D    Fundamental Rights in Part HI of the Constitution are not immune
     from taxation and taxation has been held to be "not a restriction".
     [Paras 49, 50] [403-A-C]


           Indian Express Newspapers (Bomhay) Pvt. Ltd and Ors.
E
           etc. v. Union of India and Ors. etc. 1985 (2) SCR 287 :
           (1985) 1 sec 641 - relied on.


           3.4 While the States have legislative power to levy taxes
r:   on goods imported from other States, Art. 304(a) imposes
     restrictions on this power of the States to levy a tax on goods
     that would result in discrimination between goods imported from
     other States and similar goods manufactured or produced within
     the States. The non-obstante clause in Art. 304 with respect to
G    Art. 301, actually indicates that since tax does not fall within the
     purview of Art. 301, therefore, Art. 304(a) was brought in to
     provide against discrimination based on source or destination of
     goods. Art. 304(a) is thus a restriction on the tax powers of the
     States, not to discriminate between the goods imported into the
     State with similar goods manufactured or produced within the
H
      .TlNDAL STAINLESS ITD. v. STATE Of HARYANA                     55


taxing State. [Para 531 1405-E-FI                                    A
      3.5 The Constituent Assembly Debates indicate that the
framers of the Constitution while intending to guarantee free flow
of trade, commerce and intercourse did not deify it. At the time
nf drafting Constitution, provision containing freedom of trade,
commerce and intercourse which was initially shown as B
Fundamental Rights; but after debates, it was shifted to a separate
Part !Part XIII!. The framers of the Constitution did not intend
that trade, commerce and intercourse is free from taxation. Art.
304 provides for the power of the States to impose taxes, subject
of course, the levy is not discriminatory. Hence, Art. 301 ought c
not to be read as freedom from tax laws. A tax legislation could
be challenged on the ground of legislative competence as well as
violation of Fundamental Rights guaranteed under Part Ill of the
Constitution. Tax legislations can be challenged on the ground
that they infringe the Fundamental Rights under Part Ill but that
docs not however mean that there is freedom from taxation or D
that tax is per sc a restriction on Fundamental Rights or freedom
of trade, commerce and intercourse. !Paras 54, 56 and 57] [405-
G, II; 406-A; 407-B; 409-DJ
      All Bihar Schools Association and Am: v. State of Bihar
      and Ors. 1988 (2) SCR 49 : (1988) l SCC 206; Printers          E
      (Mrsore) Ltd. and Am: 1.: Asstt. Commercial Tax Officer
      and Ors. 1994 (1) SCR 682 : (1994) 2 SCC 434 -
      affirmed.

                                                                     r
      Tax is not a restriction per sc.
      4. Under Art. 246(3) of the Constitution, a State has
exclusive power to make laws for such State or any part thereof
with respect to any of the matters enumerated in List 11 of the
Seventh Schedule. Art. 246(3) is subject to clauses (1) and (2) of   G
Art. 246 i.e. matters enumerated in Lists l and Ill of the Seventh
Schedule. As per Art. 265, a tax can be imposed only under
authority of law and there is no role of the Executive. It is a
sovereign power of compulsory exaction as a part of any burden
hy public authority for public purposes enforceable by law. The
                                                                     H
56           SUPREME COURT REPORTS                     [2016] JO S.C.R.



A    taxing power of the State stands independently fortified by Parts
     XI and XII of the Constitution of India and can only be challenged
     on the ground of reasonableness. Power of States to levy taxes
     for the purpose of governance and carrying out its welfare
     activities is a necessary attribute of State's sovereignty and in
     that sense it is a power of supreme attribute. It is well-settled
B
     that taxes are levied in public interest and hence, cannot be
     considered a restriction per se on the enjoyment of any freedom
     contemplated by the Constitution. The essential characteristics
     of a tax arc that: (i) it is imposed under a statutory power without
     the taxpayer's consent and the payment is enforced by law; (ii) it
c    is an imposition made for public purpose without reference to
     any special benefit to be conferred on the payer of the tax; and
     (iii) it is part of the common burden. [Paras 58-60] [409-F-G, H;
     410-A-DJ

D
           Commissioner Hindu Religious Endowments, Madras
           v. Sri f,akshmindra l71irtha Swamiar of Sri Shirur Mutt
           1954 SCR 1005; Indian Medical Association v. VP
           Santha and Ors. 1995 (5) Suppl. SCR 110 : (1995) 6
           SCC 651; State of Gujarat and Ors. v. Akhil Gujarat
E          Pravasi VS. Mahama11da! and Ors. 2004 (3) SCR 956 :
           (2004) 5 SCC 155; Federation of Hotel a11d Restaurant
           Association of Jndia. Etc. v. Union of India and Ors.
           J 989 (2) SCR 918 : (1989) 3 SCC 634; Express Hotels
           Private Umited v. State of Gujarat and Am: 1989 (2)
F           SCR 893: (1989) 3 SCC 677; Hari Krishna Bhargav
           v. Union of India and Anr. 1966 SCR 22 : AIR 1966
           SC 619; Rai Ramkrislma and Ors. V. me State of Bihar
           (1964) 1 SCR 897 - relied on.


          MaJority view in Atillbari and Automobile: Need of
     re-appreciation.
          5.1 Art. 301 guarantees freedom of trade and commerce
     from "restrictions" and not freedom from all "laws". In Atiabari,
     by application of "direct and immediate test", rather than
H
       JINDAL STAlNLESS !TD. v. STATE Of HARYANA                           57



examining the powers of the State Legislature to enact legislation         A
with reference to the entries in List II, the majority has gone
into the effects of the Iegislat.ion. As per ma.iority view of Atiabari,
Art. 301 is a limitation upon the exercise of legislative powers of
the State, which negates or limits the legislative power of the
States expressly granted under various entries in List ll of the
                                                                           B
Seventh Schedule. In Atiabari and A11tomobile, there was no
detailed n'ference lo Constituent Assembly Debates which throw
considerable light on the scope of Part XIU. The view taken in
Atiabari and A11to111obile that taxes may and do amount to
restriction, is flawed. Taxing power of the State stands
independently fortified by Part XII of the Constitution and can be         c
challenged only on the ground of reasonableness.[Paras 72,
731[420-C-E]
     Freedom in Art. 301 is not freedom from taxation-
non-discriminatory taxes are outside the purview of Art. 301.
                                                                           D
        5.2 The views taken in Atiabari and Automobile in the light
of the Australian cases represent a mechallical implantation of a
foreign concept into the Indian legal system, not keeping in view
the distinct features of Indian Polity and the Constituent Assembly
Debates. Majority view in Atiabari and A11to111obile do not appear
to have taken note of the historical background of merger of               E
'i'<ative States' with their individualities, with British India, and
the federal nat111·e of the Indian Constitution while discussing
the fundamental question as lo whether 'Freedom' in Art. 301
meant freedom from tax. The majority appears to have begun
with the presumption of tax laws being subservient to Art. 301             F
and later concluded that if all the tax laws are hr.ought in Art. 301,
State's legislative power to tax would be destroyed. Thereafter,
in an attempt to save the taxing power of the State, they borrowed
1he concepts of 'direct and immediate test' and 'compensatory
tax' from the Australian and American Cases. [Para 82] [426-C-
                                                                           G
li:I
       Com111omveal1h of Australia v. Bank of New South Wales
       (1949) 79 CLR 497 : 119501 AC 235: James v Stale of
       So1//h llustralia (1927) 40 CLR 1; James v. Cou.·m1
       (1932) AC 542; James v. Commo1rwealth o('Australia
                                                                           H
58            SUPREME COURT REPORTS                      [2016] 10 S.C.R.



A          (1936) AC 578; Cole v. Whitfield (1988) 78 ALR 42;
           Betfc1ir Pty Ud v We.item Australia (2008) 244 ALR
           32; Freeman v. Hewit 329 US 249 (1946), Complete
           Auto Transit. Inc. v. Charles R. Brady [19771 USSC 54:
           (1977) 430 lJS 274 · referred to.
H          Constitutional Assembly Debates, Volume IX,·
           I'agc.1142, dated 30.07.1949- 18.09.1949 - referred
           to.


           Art.304 (a) and (b) must be read disjunctively.
('
            5.3 As the word "restrictions" in the marginal note of Art.
     304 suggests plurality of powers and indicates that Clauses (a)
     and (b) of Art. 304 confer distinct powers. Art. 304(a) deals with
     tax; Art. 304(b) deals with restrictions that are reasonable and in
     public interest. Constitution framers could not have intended to
D
     include tax in Art. 304(b ); since the elements of "reasonableness"
     and "public interest". are inhe1·cnt in a tax. The use of the word
     "and" does not assist the interpretation that the provisions are
     conjunctive. It only means that:- (i) the State can impose taxes
     on goods coming from outside so as not to discriminate between
E    the goods imported and goods manufactured or produced within
     the State [Art. 304 (a)I -and- (ii) It can also in addition impose
     other restrictions that arc reasonable and in public interest [Art.
     304 (b) I subject to the assent of the President. That Articles 304(a)
     and (b) are dis,junctive, is also clear from the fact that the proviso
 F   to A1·t. 304(b) i.e. the p1·csidential sanction· is referable to Art.
     304(b) only and nol to a law imposing tax on goods imported
     from other States contemplated under Art. 304(a). This is
     because, Art. 304(a) has an inbuilt safcguanl, inasmuch the taxes
     imposed on the goods coming from another State cannot be
     discriminatory and, therefore, no presidential sanction is required.
c;   The word "and" is used after semi colon in Art. 304(a}. While it
     is correct to say that the word "and" normally is conjunctive, it is
     also often constrned as disjunctive on the basis of the legislative
      intent as gathc1·ed from the wm·ds of the prnviso under context
      in which it was used. Since the expression ·and' is used in Art.
II
       .11NDAL STAINLESS LTD. v. STATE Of HARYANA                       59


304 after semi-colon, it will have to be read as 'or' creating a        A
disjunctive reading of Art. 304(a) and Art. 304(b) indicating that
the State Legislature can exercise its power either under Art.304
(a) or Art. 304 (b) or both. [Paras 90-92] [430-F-H; 431-A-D;
433-G-U]
                                                                        B
      lvfalwrishi Mahesh Yogi Vedic Vislrwavidvalaya v. State
      of Afadhya Pradesh and Others 2013 (13) SCR 464 :
      (2013) 15 SCC 677; A.K. Gopa/011 v. State of Madras
      1950 SCR 88 : AIR 1950 SC 27 - relied on.
                                                                        c
      Whether A1·t. 304(b) coupled with the proviso is applicable
to tax laws-.! udicial Approach.
       5.4 In Atiabari, majority held that "tax laws" fall within the
comprehension of Art. 301 and, therefore, any legislation whether       D
taxing or otherwise which imposes any direci restriction on the
movement or transport of goods attracts the provisions of Art.
301, and its validity can be sustained only if it satisfies the
requirements of Art. 302 or Art. 304. According to the above
view in Atiabari, it is not possible for the State Legislature to
                                                                        E
pass any law at all with respect to some of the tax entries viz.
sales tax (entry 54, List II); law relating to gambling (entry 34,
List 11) or tax on betting and gambling (entry 62, List 11); and tax
on the can-iage of goods or passengers by road or inland
waterways (entry 56, List II). If the legislations under the above
entries arc challenged on the ground that they operate as a direct      f
restriction on the freedom of trade, commerce and intercourse,
as per the view in Atiabari, these legislations may have to be
justified under Art. 304(b). Atiabari approach would totally take
away the sovereign powers of the State Legislature to enact laws
in exercise of its powers under various taxing entries of List II,      G
which could not have been the intention of the framers of the
Constitution. [Para 93] 1434-B-D]
      Art.304(b) is applicable only to non-fiscal laws and not to
lax la,vs.
                                                                        H
60           SUPREME COURf REPORTS                     [2016] I 0 S.C.R.



A         6. Art.304(a) and Art.304(b) are two distinct powers and
   freedom of trade, commerce and intercourse is sub,jcct to them.
   Art. 304(b) relates to reasonable restrictions imposed in public
   interest. Art. 304(b) deals with non-fiscal legislation imposing
   reasonable restrictions in public interest and tax laws are not
   included under Art. 304(b). Levy of taxes is the economic lifeline
B
   of the State. Framers of the Constitution never intended to include
   tax within the fold of Art. 304(b). To give the Centre a veto over
   the plenary power of the State to levy the tax would completely
   distort the Centre-State balance and cooperative federalism. Such
   an interpretation has no basis in the Constitutional Assembly
c Debates and is liable to be rejected. The rationale for the sanction
   of President contemplated by proviso to Art. 304(b) is apparent
   from the fact that trade and commerce with foreign countries and
   inter-State trade and commerce are subject matters in List I of
   the Seventh Schedule (entries 41 and 42, List I). Further, trade
D  and  commerce in production, supply and distribution of industry
   controlled by the Union, food stuffs, including edible oils, seeds
   and oils; cattle fodder; raw cotton, cotton seed; and raw jute are
   subject matters in entry 33, List HI. Entry 34, List Ill deals with
   price control. Only intra-State trade and commerce is in List II
   (entry 26, List II) subject to entry 33, List III, as stated therein.
E
   Parliament has thus occupied an overwhelming space with respect
   to trade and commerce within the State also. It is in this backdrop
   that the State has been given power to impose reasonable
   restrictions on the freedom of trade, commerce and intercourse
   with or within that State with the proviso requiring presidential
f  assent. before the Bill is introduced. The rationale, therefore, is
   that a non-fiscal law of the State with respect to freedom of trade,
   commerce and intercourse would be entrenching upon either the
   exclusive legislative field of the Parliament in List I or the
   occupied field of the Parliament in List Ill. It follows that Art.
Ci 304(b) relates to non-fiscal laws of the States. In the above context,
   the assent of the President envisaged in proviso to Art.304(b)
   would be somewhat akin to the assent contemplated in Art. 254.
   Such assents are not judicially reviewablc. IParns 94, 99 and 1001
    1434-E-F; 438-F-H; 439-A-H]

H
      JINDAL STAINLESS Ll'D. \'.STATE or HARYANA                         61


      Kaiser-i-l!i11d (P) Ud. a11d A111: v. National Textile             A
      Corp11. (Maharashtrn North) Ltd. and Others (2002) 8
      sec 182 - affirmed.
      Atiahari Tea Co. Ud. v. State ofAssam & Ors. 1961
      SCR 809 : AIR 1961 SC 232; Auto111ohil.e Transport
      (Rajasthan) Ud. etc. v. State of Rajasthan & Ors. 1963             B
      SCR 491 : AIR 1962 SC 1406; Jindal Stainless Ltd.
      (2) & A11r. v. State of Harvana & Ors. 2006 (3)
      SCR 1095: (2006) 7 SCC 241 - overruled.
      Consti111tional Law o( India. 4th Edition, Volume 3 -
      referred to.                                                       c

      ls the entry tax levied by the States in the present batch of
cases violative of Ari. 301 of the Constitution and in particular
have the impugned slate enactments relating to entry tax to be
                                                                         D
tested with reference to both Articles 304(a) and 304(b) of the
constitution for determining their validity?
       7.1 A bare reading of Entry 52, List ll would show that
entry tax can be levied only on the satisfaction of the conditions
in l~ntry 52 of List II namely: (i) the tax to be levied on the entry
                                                                         E
of goods into local area; (ii) entry of goods into the local area is
for consumption, use or sale therein. Entry tax is not collected at
the behest of municipality or a panchayat attached to a checkpost.
It is payable by the assesses by filing their returns. Ent.ry tax is a
Stale level levy, levied by Slate Legislature upon entry of goods
into a local area for consumption, use or sale therein. The local        F
authorities themselves cannot levy the tax. The power is that of
State Legislature and of no one. Imposition of entry tax is not
n1crcly "on movement or transport of goods"; consideration of
Entry 52, Lisi II of Seventh Schedule shows that taxable event in
lhe case of entry tax is entry of goods into the local area where it     G
is to be used, consumed or sold therein. If the goods merely
enter into a local area and then move to another destination
beyond that local area, no tax can be levied under Entry 52. Since
lhc taxable event under Entry 52 is not the mere entry of the
goods into the local area, but the fact that the ·goods are also to
                                                                         H
62            SUPREME COURT REPORTS                     [2016] 10 S.C.R.



A    be used, consumed or sold, the necessary sequiter is that the
     movement of goods is terminated in that local area. Power to
     levy entry tax lies within the competence of a State Legislature.
     Since entry tax is leviable at the termination· of the movement of
     trade and the goods have entered the local area for the purpose
     of use, consumption or sale, the levy of entJ·y tax does not restrict
B
     flow of trade, commerce or intercourse and is not violative of
     Article 301 of the.Constitution. [Paras 104, 110 and 1121 1440-G-
     ll: 441-A, C; 443-G-II; 445-H; 446-A-Cj
           Diamond Sugar Mills Limited v. State of U.P 1961 (3)
c          SCR 242; M. 0. Sha111sudhi11 v. State of' Kera/a 1995
           (2) SCR 900 : (1995) 3 SCC 351; Bzmnah Shell Oil
           Storage and Disturhing Co. of' India Ltd. Belgaum v.
           Belgaum Borough M1111ir:ipalitv Helga11111 Ce/11963 SCR
           Suppl. (2) 216 - referred to.

D
           Rn try Tax levied only on goods imported from other States:
     No levy of Entry Tax on the goods manufactured inside the
     State - Whether discriminatory.
           7.2 The term 'any tax' means any exaction by any impost
 F   or levy. The effect of all the taxes levied on the goods imported
     from other States and the ones manufactured within the State
     must be such that no discrimination is caused either to the
     imported goods or locally manufactured goods. Unlike Section
     92 of t.he Australian Constitution, Art. 304(a) does not talk of
 F   uniformity. Section 92 of the Australian Constitution reads as
     follows:- "On the imposition of uniform duties of customs, trade,
     commerce, and intercourse among the States, whether by means
     of internal carriage or ocean navigation, shall be absolutely free."
     No such restr-iction is imposed on the legislative power of the
     States in India to ensure uniformity in levy of a particular tax.
     The raison cl' etre for use of the expression "so, however, as not
     to discriminate" is to prohibit protectionism. Moreover,
     Constitution of India does not contain a provision similar to
     Section 55 of the Australian Constitution which mandates one
     tax law on one subject. In India, the State Legislature is nowhere
H
      JINDAL STAINLESS !TD. v. STAl'E Of HARYANA                        63



obligated by the Constitution to ensure that the.law imposing tax       A
deals with one subject of taxation only. !Paras 114, 116] 1447-C,
G-H; 448-A-B]


     J11dia11 Cnnent and Ors. v. State of".1.ndhra Pradesh and
                                                                        B
     Ors. 1988 (2) SCR 574 : (1988) 1 SCC 743; Western
     Electronic and Am: v. State al Gujarat and Ors. 1988
     (3) SCH 768 : (1988) 2 SCC 568 - referred to.


      7.3 The chai·gcablc event in the case of entry tax is entry       c
of goods into a local area. By its very nature, entry tax does not
contemplate impost on indigenous goods. Goods imported into
a local area from another State are subjected to entry tax but
goods entering into a local area from another local area of the
same State do not attract entry tax. In this way, it may appear
                                                                        D
that goods imported from outside the State are put to a
disadvantageous position but in terms of tax treatment the1·e is
no discrimination. The essence of Art. 304(a) lies in ensuring
equality of fiscal burden and absence of discrimination. In terms
of Art. 304(a), the only requirement is that the goods imported
into the local area should not be discriminated against. In tax         E
treatment there is no discrimination between the goods. !Para
117][448-C-E]
      7.4 The expression 'any tax' used in Art. 304(a) is generic
in nature and covers all taxes on goods which a State is competent
to impose by virtue of Articles 245 and 246 read with List II of
Seventh Schedule. A Scheme adopted by a State Legislature
whereby several taxes are levied on the goods (either locally
Jlroduced or imported from other States) under different heads,
cannot be faulted with if it conforms to the principle of equivalence
and non-discrimination. For e.g., both sales tax levied under Entry     G
54, List II and entry tax levied under Entry 52, List II are taxes
on goods. It is the burden of the tax which can discriminate and
not the form. States are free to equalise the burden of entry tax
on the goods imported from other States by giving them set-off
against the sales tax paid by them in the exporting State. In such
                                                                        H
64           SUPREME COURT REPORTS                     [2016] 10 S.C.R.



/\   a manner, equivalence can be hrought about in the tax burden
     borne by the goods imported from other States and the locally
     manufactured/produced goods. The contention of the assessees
     that the term 'any tax' used in Art. 304(a) refers to every tax
     distinctly, thereby prohibiting imposition of entry tax on imported
     goods unless, entry tax is imposed on locally manufactured/
B
     (Hoduced goods, does not lead to just and reasonable
     interpretation of Art. 304(a). The wholesome effect of the laxes
     levied under distinct heads needs to be taken into account. The
     lax burden borne by the goods form a part of the price of the
     goods and if both, locally manufactured/produced goods and
c    imported goods are subjected lo similar tax burdens, irrespective
     of the heads under which the taxes are levied, say entry tax or
     sales tax etc., then no discrimination can be said to have been
     caused. In case if entry tax not levied to equalize tax burden on
     the local goods and goods imported from outside, there will be
D    huge trade diversion to low-rate tax State, causing loss of revenue
     to the high-rate tax Stales, where the goods are used or consumed.
     !Paras 118, 119] 1448-F-H; 449-A-C]
           7 .5 Any difference in the rate of tax on goods locally
     manufactured and those imported, such difference not being
E    discriminatory does not fall foul of Art. 304(a). Any incentive/
     benefits of concession in the rate of tax given to the indigenous
     manufacturers in order to encourage the manufacture/production
     in the State cannot be said to be discriminatory.f Para 1451 1469-
     G!
F          Kathi Ra11i11g Rawat v. 777e State ol Saurashtra (1952)
           SCR 435 - affirmed.
           Firm ATB Mehtah Majid & Co v. State of Madras &
           Am: I 963 Suppl. SCR 435 : AIR 1963 SC 928; State
           of Madras v. N.K. Nataraja Muda!iar (1968) 3 SCR
           829; State ol Kera/a v. Ahdul Qadir and Others 1970
           (1) SCR 700 : (1969) 2 SCC 363 - referred to.
           Prof: D.D. Basu in Comparative Federalism. Prentice
           Hall of India, 1987 ·-referred to.

H
      JINDAL STAINLESS TTD. v. STA.TE OF HARYANA                         65


     Repercussions of Art. 304(a) when no local goods are                A
produced.
      8. A State law that imposes a tax on imported goods where
similar goods arc not manufactured or produced in that State,
will meet the requirement of Art.304(a) and there would not arise
any question or discrimination. lt is true that when similar goods       B
arc not manufactured inside the State, there are chances of a
higher rate of lax on such goods brought into the taxing State
from other States but that docs not mean that there should be a
blanket protection of such goods from tax. Power of the State to
lax the goods imported cannot be whittled down on the ground             C
that there are no similar goods manufactured or produced within
the taxing State. Exorbitant taxation of such goods will remain
open to challenge under Part Ill in Ari. 19(1)(g) read with Art.
19(6) and Art. 14. !Paras 150, 1511 1470-A; 472-F-ll]

                                                                         D
      Kolwmi Stores v. State of' Grisso and Others 1966 1
      SCR 865 - not good law.


      Levy of Entry Tax on lm1Jorted Goods.
                                                                         E
       9.1 "Import" means bringing or taking by sea or air across
any customs frontier. Goods imported in a vessel/aircraft require
payment of customs duty before they are cleared into the country.
I mporl of goods and customs clearance and the entry of goods
into the local areas are two distinct events. In the case of customs     f
duty, the taxable event is entry of goods into the territory of India.
The taxable event under Entry 52, List 11 is the entry of goods
into local area for consumption, use or sale therein. Two taxable
t'venh are distinct in law and there is no overlap. Under our
Constitution, there is no overlapping in the taxing power. The
Constitution gives independent powers of taxation to the Union           G
and the States. The taxing power of the Onion and of the States
are mutually cxclusin. This avoids the difficnlties which have
arisen under other J•'edcral Constitutions. !Paras 155, 160, 161
and 1661 [473-B; 474-H; 475-F-G; 476-E-F; 478-.FI
                                                                         H
66           SUPREME CC>LIRT REPORTS                    [2016] 10 S.C.R.


A         Hoechst Pharmaceuticals v. Stale of Bihar l 983 (3) SCR
          130 : (1983) 4 sec 45; Stale of rVi:st Bengal V. Kesoram
          !11d11slries 2004 (1) SCR 564 : (2004) IO SCC 201;
          G11jara1 /lni/111/a Ce111e11t J,td. v. Union of India 2005
          (2) SCR 1038: (2005) 4 sec 214 - relied on.
Fl         P Ramanatha Aivar \· "17ze Major J,aw Lexicon", 4'"
           l<:dition 2010 - referred to.


           9.2 According to F:ntry 83, List I as well as the Customs
     Act, 1962 the taxable event is 'import' or 'bringing of the goods
c    into India' and it is distinct from the taxable event of Entry 52,
     List IL The taxable events under F:nlry 83, List I and I<:ntry 52,
     List II are distinct; any movement of the imported goods to the
     warehouse in the factory unit would not prevent the State from
     levying and collecting entry tax when such goods enter a local
D    area of the Slate for consumption, use or sale therein. !Paras
     171, 1761 1481-F:; 482-G-II; 483-AI


           Province of Madras v. Bodd11 Paidanna & Sons AIR
           1942 FC 33 : l 942 FCR 90; State of Bomhay v. FN.
F
           Balsam (CB) AIR 1951 SC 318; State of Travancore-
           Cochin v. S!za111n11gha Vilas Cashew Nut Facton' (1954)
           SCR 53; Gramophone Company of India Ltd. v.
           Birendra Bahad11r Pander 1984 (2) SeR 664 : (1984)
           2 sec 534 - relied on.
F
           Prol frihe 011 American Co11stitutio11al Law States -
           referred to.


           9.3 When the entry tax is levied by the Entry Tax Act
G    enacted by the State Legislature, the term 'a local area'
     contemplated by Entry 52 may cover the 'Whole State' or 'a local
     area' as notified in the legislation . .From the point of view of
     entry tax that the Stale is a compendium of local areas and whe1·c
     the local areas contemplated by the Acl cover the entire State,
H
     the diffei-cncc between lhe State and 'a local area' practically
      JINDAL STAINLESS LTD. v. STATE Of I-IARYANA                       67



disappears. Articles 304(a) and 304(h) are to be read                   A
dis.iunctivcly; both apply to different sub.ice! matters; while Art .
.104(a) deals with tax, Ar!. 304(b) deals only with non-fiscal
matters. !Para 1771 1483-C-EI
      State of fJihar and Ors. v. Bihm· Chamber of Commerce
      and Ors. 1996 (2) SCR 184 : (1996) 9 SCC 136 -                    B
      affirmed.


      9.4 Where there is equivalence in terms of tax treatment
between the locally produced goods and the ones imported from
                                                                        c
other States, levy of entry tax on the goods imported from other
States when there is no such levy on the locally produced goods
is not discriminatory. Every differentiation is not discrimination.
Any difference in the rate of tax on goods locally manufactured
and those imported, such difference not being discriminatory does
not fall foul under Art.304(a). Any incentive/benefits of concession    D
in the rate of tax given to the local manufacturers/producers in
order to encourage the local manufacturers/production in the State
cannot he said to be discriminatory. !Para 1771 1483-F-ll; 484-AI

                                                                        E
       Video Electronics Pvt. Ltd. and Am: v. State of Pzmjah
      ,111</ A111: 1989 (2) Suppl. SCR 731 : (1990) 3 sec 87;
      Sri Dip,vi;av Cement Company Limited and Ors. v. State
      of Rajasthan and Others 1999 (5) Suppl. SCR 428 :
      (2000) l sec 688 - affirmed.
                                                                        f
      Shri Mahavir Oil Mills and 11111: v. State of J&K and
      Others 1996 (9) Suppl. SCR 356 : (1996) 11 sec 39;
      Stme of UP. and .1111: v. La.rn1i Paper Marr and Ors.
      1997 (1) SCR 914 : (1997) 2 SCC 697 - not good law.


       Can a tax which is compensatory in nature also fall foul of
Ar·ticle 301 of the Constitution of India'? What are the tests for
determining whether the tax or levy is compensatory in nature?
       10.1 The concept of 'compensatory tax' is a judicially
                                                                        H
68             SUPREME r'OlJRI' REPORTS                   [2016] LO S.C.R.


A     evolved concept. Majority in Atiabari held that taxes may and do
      amount lo rcsl.rictions and hence tax legislation is subject. to
      scrutiny under Art. 301. In Atiabari, the test of "direct and
      immediate effect on trade, commerce and intercourse" was
      evolved. The majority in Atiabari had thus completely read down
      State's taxing power under Entry 52, List ll thereby holding that
      State's legislative power is subject to the freedom clause in Art.
      301. This had an adverse effect OI) the legislative power of the
      State to levy tax and its financial autonomy. (Para 178) (484-D-F(
             10.2 All the taxes arc intended for public purpose and are
c     levied in public interest. Levy of tax is not to fill the State coffers
      but to perform various functions including public welfare for which
      said funds are required. Taxation is not a profit-making exercise
      for the St.ates; the States perform several functions for which
      they require funds and have the power to levy tax to raise
      revenues and thus virtually all taxes are monies paid for services
I)
      or facilities provided by the State. Art. 266(1) provides that all
      revenue including that from taxes received by a State
      Government shall form one consolidated fund-the Consolidated
      Fund of the State. This fund is a reservoir and resources placed
      in it are a part of the whole. All revenue is subsumed in ii and
      cannot be delineated. The Consolidated Fund of a State is a single
      unified account for the State and withdrawal of money from the
      same is protect.eel by the requirement of passing an Appropriation
      Act. Further, Art. 266(3) by stating that 'no money out of any
      Consolidated Fund shall be appropriated except in accordance
      with law - for the purposes and in the manner provided in the
      Constitution' provides another safeguard in lieu of ensuring
      legitimate use of public money. The manner of appropriation of
      money collected in the Consolidated Fund of the State falls under
      Part VI, Chapter Ill, ranging from Articles 202 to 206 of the
      Constitution. There are sufficient constitutional safeguards for
c;    the apprnpriation of money collected in Consolidated Fund. The
      revenue generated by the States in the form of entry tax has to
      necessarily form part of this Fund, and once it so subsumed, States
      cannot be asked to show a 'proximate quid pro quo' by furnishing
      'quantifiable data' as to their expenditure. It may not be possible
1-1   for the States to show with mathematical precision a direct link
      JINDAL STAINLESS LTD. v. STATE or HARYANA                      69


between the expenditure incurred in individual cases and the         A
corresponding levy imposcd.[Para 18711492-D-H; 493-AI
        10.3 The entry tax levied by various States, falling within
the domain of entry 52, List II, is a tax simpliciter, even though
by nomenclature it is termed as a 'compensatory tax'. Subject to
passing the muster of Art. 304(a), entry tax levied by the States B
under entry 52, List JI even though termed as compensatory tax
docs not fall foul of Art. 301. The narrnw approach in Jindal
Stai11less Ud. (2) equating compensatory laxes to 'fee' and
mandating the States to prove 'proximate quid pro quo' by
'quanliliahk data approach' is not correct. Since taxes arc held C
lo be outside the purview of Art. 301, taxes in the name of
'compensatory taxes' arc also outside the purview of Art. 301.
To uphold a regulatory or compensatory tax, comprehensive
parameters cannot he laid down as they may vary depending upon
the nature of the levy. Automobile case itself has laid down
parameters of compensatory laxes. It is not necessary that the ])
money so collected should be put into a separate fund or that the
lev~' should be proportionate to the expenditure. Insofar as levy
of entry tax is concerned, enactments of some Slates facial!)'
declare that they are compensatory. The compensatory tax so
levied is subsumed in the Consolidated Fund of the Slate~ Once E
there is intermingling in the Fund and money is spent for public
purposes of development of various local areas like construction,
 maintenance of roads and bridges, and for other amenities which
 facilitate trade, there will always be a link between the liability of
the tax borne by the traders and benefits enjoyed by them either
directly or indirectly. 1Parns 188-1901 1493-B, D-lll


      8/wgatram Rajeev Kumar v. Commissioner of Sales
      Tax. M.1' and Ors. 1994 (6) Sup1)l. SCR 91 : 1995
      Suppl. (1) SCC 673 - affirmed.                                 G
      State of" Tamil Nadu v. TVL South Indian Sugar Mill~
      Association 2015 (9) SCR 148 : (2015) 13 SCC 748,
      Krishi Upaj Mandi Samiti and Others v. Orient Paper
      & Industries Jtd. 1994 (5) Suppl. SCR 392 : (1995) 1
                                                                     H
70           SUPREME COURT REPORTS                     [2016J 10 S.C.R.


A          SCC 655 and Krishna Das v. Town Area Committee,
           Chil;e,aon 1990 (2) SCR 13 : (1990) 3 SCC 645; GK.
           Krishnan v. State of Tamil Nadu 1975 (2) SCR 715 :
           (1975) l SCC 375; lntemational Tourists Corporation
           and Ors. v. Stale of Harvana and Ors. 1981 (2) SCR
           364 : (1981) 2 SCC 318; Governor General of Council
           \'. Provi11ce of Madras AIR 1945 PC 98 : 58 LW 228;
           Ram Krisha11 Ram Na!h Agarwal 1•. Secretan', Municipal
           Committee, Kamptce, Union of India 1950 SCR 15 :
           AIR 1950 SC 11 ·- referred to.

c
           Refund and unjust enrichment:-
           11. It is well-seUlcd that a claim of refund can be allowed
     only when the claimant establishes that he has not passed on the
     tax burden to the consumers. No refund can be granted so as to
D    cause windfall gain to any person when he has not suffered the
     burden of tax. The possibility of the tax burden having been passed
     on to the consumers by the assessees cannot be ruled out in the
     present case. In the present case, the assessees cannot claim
     refund irrespective of whether the impugned legislations are
F    declared valid or unconstitutional. Unless the assessees establish
     that they have not passed 011 the tax burden to the consumers,
     they cannot make a claim for refund and unjustly enrich
     themselves. [Para 1981 [498-G-H; 499-A]


F          Mafi11lal Industries Ltd v. Union of India 1996 (10)
           Suppl. SCR 585: (1997) 5 SCC 536; Godji·ey Philips
           India Ltd. v. Stale of UP 2005 (1) SCR 732 : (2005) 2
           sec 515 - relied on.
           S\'llthetics & Chemicals v. State of UP (1990) 1 SCC
G          109; Belsund Sugar Co. Ltd. v. Slate of Bihar 1999 (1)
           Suppl. SCR 146: (1999) 9 SCC 620 -referred to.




II
      JINDAL STAJNLESS ITD. v. STArE or HARYANA                          71



     PER DR. D. Y. CHANDRACIJUD, .I. (Partly dissenting)                 A
      Part XIII of the Constitution: Text and Context
      1.1 In framing Article 301, the framers of the Constitution
made a deliberate departure from the text of the Australian and
US Constitutions. One of the aspect of A1·ticle 301 in which a
                                                                   B
conscious departure was made from the US and Australian
Constitutions is that the freedom of trade, commerce and
intercourse extends, in our Constitution, throughout the territory
of India and not merely among the states. The expression 'among
the states' would cover a movement inter-State or across State
boundaries. In discarding the expression "among the states" C
(which is used in Section 92 of the Australian Constitution) and
"among several states'' (which is used in Article 1 Section 8 of
the US Constitution), Article 301 guarantees a more
comprehensive coverage to the freedom to include both intcr-
Stat e and intra-State trade, commerce and intercourse. D
'Throughout the territory of India', means in every part of India.
!Paras IO, 121 1507-C-D; 508-D-F]
       1.2 The provisions of Part XIII of the Constitution contain
an elaboration of the freedom of trade, commerce and intercourse
and the restrictions which the Constitution contemplates as being        E
within the legislative powers of Parliament and the slate
legislatures. The legislative power conferred upon Parliament
can restrict the arnhit of the freedom to the extent that is specified
in Articles 302 and 303. Similarly, the slate legislatures arc subject
to the limitations contained in Article 303 (1) and Article 304.
Parliament as well as the state legislatures are subject lo
constitutional limitations on the exercise of their law making
power in restricting the freedom of trade, commerce and
intercourse. The extent of the freedom under Article 301 has in
this manner been made subject to the provisions of Part Xlll.
Those provisions of Part XIII define the extent to which a               G
1·estriction can be imposed by law as well as the limitations on
the power of Parliament and the state legislatures while
p1·cscribing a rcstTiction. [Paras 18, 19] [512-D-F]


                                                                         H
72           SUPREME COURT REPORTS                     [2016] I 0 S.C.R.



A         A Consiitutional history as a guide
         2. The deliberations in the Constituent Assembly
   surrounding the introduction of Part XIII leave little ambiguity
   about the constitutional philosophy underlying the introduction
   of the guarantee of free trade, conunerce and intercourse. The
H guarantee of that freedom was guided by the ob.iect of fostering
   economic development. Towards achieving that goal, the founding
   faH1ers recognised the need to weave the nation into one
   economic entity. At the same lime, regional interests representing
   the diversity prevalent within the states had to be recognised by
c allowing a regulator~· role for the states. While recognising the
   importance of the state legislatures in relation to trade, commerce
   and intercourse, the founding fathers had evident concerns about
   what they described as parochial interests or narrow provincial
   policies posing a clanger to the economic development of the
   nation. Ileuce, the Union Government was conferred with a power
I)
   of intervention which was qualitatively different from the
   regulatory power conferred upon the states. It was in that
   background that !he proviso to Article 304 (b) mandated the prior
   sanction of the President to a bill or amendment introduced in
   the state legislature for imposing reasonable restrictions in the
E public interest on the freedom that was guaranteed by Part Xlll.
   !Paras 3311519-F-II; 520-A-C]


          Fu11da111ental Rights by Dr. K.M. Munshi B. Shiva
          Rao, The Framing uf" India '.1· Constitution, Vol. II, p.
 F        69(1967) (B. Shiva Rao); Sir Alladi Krishnaswa111i
          l_ver, B. Shiva Rao, p.68.; Co11stituent Assemhly
          Debate. Vol. IX, 8th September 1949 - referred to.



G          Compensatory Taxes
           3.1 Compensatory taxes which are in the nature of a charge
     for the use of trading facilities \\Ould not be regarded as being a
     hindrance to the freedom of trade, so long as they are reasonable.
     Ry first devising the concept and then placing it beyond the pale
H
      JINDAL SlAINLESS I.TD. v. STAfE OF HARYANA                        73


of Article 301, the Court in Automobile Transport ensured that          A
compensatory taxes would not be subject In the constitutional
grind of Article 304(a). A class of tax legislation bearing a
compensator.v character was carved out of Part XIII. The
principle that Automohile Transport enunciates is that the freedom
under 1\i-ticle 301 is consistent with facilitative regulations which
                                                                        B
('nhancc, rathe1· than hinder trade. Second, though the power to
lax is an essential attrihute of government, it is subject to
constitntional limitations including amongst them Part Xlll of the
Constitution. As a consequence, tax laws are not as a matter of
principle outside the ambit of Article 301. Third, the test to be
applied in determining whether a law infringes the freedom              c
guaranteed by Article 301 is whether the direct and immediate
effect is to hinder the movement of trade. A law which has that
effect, including a tax law must, where it has been enacted by the
state legislature be subject to the provisions of Article 304.
Fourth, compensatory taxes which are imposed in consideration           D
of the facilities which are provided hy the state to trade and
commerce are outside the ambit of Article 301. Fifth, a
compcnsator.v tax does not hinder the freedom of trade and
commerce and need not compl_v with the requirements of the
proviso to Article 304(b) of the Constitution. !Paras 71, 7611544-
                                                                        E
E-F; 549-H-El


      Khverhari Tea Co. Ltd. v. State of Assam (1964) 5
      SCR 975; SK Madar Saheh 1·. State of AP 1972 (2)
      SCR 853 : 1972 (4) SCC 635; Boiani Ores J.td v. State             F
      of Orissa 1975 (2) SCR 138: 1974 (2) SCC 777; GK.
      Krishnan v. State of TN 1975 (2) SCR 715: 1975 (1)
       sec 375 ; MA International Tourist Corporation &
      Ors. v. State of Harrana and Ors. 1981 (2) SCR 364 :
      (1981) 2 SCC 318 ; lvlalwa Bus Service (Private) Ltd.
                                                                        G
      1•. State of Punjah and Others 1983 (2) SCR l 009 :

      (1983) 3 SCC 237; Meenakshi v. State of Karnataka
      1983 AIR 1283 : 1984 Suppl. SCC 326; B.A. Jayaram
      v. Union of India 1983 (3) sen. 624 : 1984
      (I) SCC 168; Mis. Bhagatram Rajeev Kumar v.
                                                                        H
74            SUPREME COURT REPORTS                     [2016] IO S.C.R.


A          Commissioner of Sales Tax, M.P and Ors. 1994 (6)
           Suppl. SCR 91 : 1995 Supp ill SCC 673; State of
           Kamataka v. llan.1·a Corp. 1981 (1) SCR 823 : 1980
           (4) SCC 697; India Cement Ud i: State of Tamil Nadll
           1989 (I) Suppl. SCR 692 : 1990 (1) SCC 12; State of
B          Maharashtra 1·. Jvladhukar Balkrishna Badiya 1988 (2)
           Suppl. SCR 482 : 1988 (4) SCC 290; Jindal Stripe Ltd.
           a11d Am: v. State ofHmyana and Ors. 2003 (4) Suppl.
           SCR 154 : (2003) 8 SCC 60; Jindal Stainless Ltd. (2)
           and .·lnr. v. State of Han·mw and Ors. 2006 (3) SCR
           1095 : (2006) 7 sec 241 -- referred to.
c
           Doctrinal concerns and inconsistencies
            3.2 The theory of compensatory taxes was evolved in
     Automohile Transport to assimilate doctrinal concerns at several
D    levels. Fr-cedom of trade and commerce under Article 301 of the
     Constitution is expressly made subject to the provisions of Part
     XIII. The deliberate use of the expr·cssion 'fr.cc' instead of
     "absolutely free" (the latter expression being adopted in the
     Australian Constitution) coupled 11 ith the language of Article 301
E    which subjects its 1>rovisions to Part Xlll is indicative of the fact
     that the freedom which is guaranteed is subject to legislative
     control. Articles 302, 303 and 304 are a part of the constitutional
     scheme which, while defining the ambit of the freedom in Article
     301 subjects it to restrictions under Articles 302 and 304. The
     nature of the restrictions and the limitations on the power of
F    Parliament and of the state legislatures while legislating to impose
     restrictions is conditioned by constitutional parameters. The
     conditions are based on the fulfilment of substantive and
     pn1cedural norms: substantive such as the principle of non-
     discrimination, the element of public interest and reasonableness;
     and procedural (if it can be regarded as a matter of procedure) by
     requiring the sanction of the President prior to the introduction
     of a Bill in the state legislature. Compensatory taxes were
     envisaged as a doct.-inal concept to prcser-ve an area where the
     sovereignty of the state legislatures in fiscal matters could operate
     without the constraining influence of a prior Presidential sanction.
H
      JINDAL S1AINLESS U'D. v. STATE OF HARYANA                      75



Such taxes would not fall within the ambit of Article 301. Their     A
position was reconciled with freedom on the ground that a
compensatory tax for the use of facilities is not a hindrance to
trade hut facilitates it. !Paras 96, 99]1563-F-ll; 564-A-B; 565-C-
ll]
      ,11/ India Federation of fox Practitioners v. Union of'        B
       India 2007 (9) SCR 147: 2007 (7) SCC 527; State of'
      A.P v. NTPC 2002 (3) SCR 278 : 2002 (5) sec 203;
      Sri Digvi;av Cemrnt Company Umited and Ors. v. State
      of Rajastlum and Others 1999 (5) Suppl. SCR 428 :
      (2000) l sec 688; State of Bihar and Ors. V. Bihar             c
      C/wn1her of Commerce and Ors. 1996 (2) SCR 184 :
      (1996) 9 sec 136 - referred to.


       3.3 As this batch of appeals indicates, the state legislatures
have amended their entry tax legislation to incorporate specific D
sfalul<ff)' prnvisions indicating the manner in which the proceeds
of the tax would he utilized so as to enable the tax to approximate
a compensatory tax. Once the state legislature has done so, by
adopting statutory provisions, would the Court have either the
expertise or the competence to second guess the basis which E
has been made by the state legislature? The answer to that would
necessarily have to be in the negative. The Court cannot assume
the character of an accountant overseeing the balance sheets of
income and expenditure and enquiring into capital account
investments made by the states. Such matters do not lie within
the competence or ken of judicial review. More fundamentally, F
all tax revenues are utilised by the state for public purposes. All
taxation being in aid of lhe creation of conditions of social order,
a compensatory element can never be disassociated from
taxation. Equally insofar as fees are concerned, the payment which
is required to be made is not always voluntary. The contribution G
exacted from trade and commerce may not always be for the actual
use of a facility but may be for the provision of the facility which
trade and commerce is entitled to use. The state expends large
budgets on providing expenditure to maintain law and order and
security. The distinction between a tax and a fee has become
                                                                      H
76             SUPREME COURT REPORTS                     [2016] 10 S.C.R.


A     blurred in 0111· jurisprndcnce and Courts have found it difficult to
      find a clear dividing line. !Para 1031f569-B-Fl
            3.4 A doctrinal irrationality which the theory of
      compensatory taxes fails to meet is a discriminatory
      compensatory tax. Discriminatory taxes which single out goods
B     originating in other states to hostile discrimination violate Article
      304(a). If compensatory taxes as a class fall outside Part XIII,
      this would include even those compensatory taxes which are
      discriminatory. While holding that compensatory taxes fall outside
      Part XIII, the theory propounded by this Court did not account
c     for the position that discriminatory compensatory taxes constitute
      an impediment to trade and commerce, thereby violating Article
      301. Hence, the notion of compensatory taxes is beset with
      doctrinal problems. The concept has led to uncertainty and
      vagueness and has produced inconsistencies in constitutional
      adjudication. Constitutional adjudication must avoid these
I)
      uncertainties which result in a multiplication of litigation and
      uncertainty both lo the revenue and to the tax payer. Uncertainty
      in the application of fisca'I legislation leads to a situation where
      tax compliance is beset with interprctational and practical
      difficulties. A concept which is replete with such evident problems
      is best eschewed. !Paras 104, 10511569-F-G; 570-A-BJ
            The content of freedom : goods, services, persons and
      capital
             4. Article 301 has guaranteed the freedom of trade,
      commerce and intercourse (subject to the provisions of Parl XIIJ).
F     Article 19(1 )(g) guarantees to every citizen the right to carry on
      any occupation trnde or business. At a certain level, a distinction
      can be drawn between the two sets of freedoms. Article 19(1)(g)
      guarantees individual freedom. Article 301, on the other hand,
      looks al trade, commerce and intercourse as a whole. Such a
G     distinction however may have its own limitations. Individual rights
      of all citizens protected by Article 19 lead to the establishment of
      a constitutional democratic order governed by the rule of Jaw
      and based on human freedom. The dichotomy that Article 301 in
      its perspective looks at trade and commerce as a whole (as
      distinguished from an individual right) may also have its own
1-1
      JINDAL STAJNIJ-:ss JTD. v. STATE OF HARYANA                       77



limitations. The freedom recognised by Artidc 301 is enforceable.       A
Enforceability is a( the behest of an individual. The freedoms
guaranteed by Article 301 arc enforceable at the inslance of
individuals who arc aggrieved by state action. Thus, a distinction
hctwcen Article I 9(1)(g) and Article 301 on the basis of the former
reflecting an individual right as opposed to a collective entitlement
                                                                        B
nnder the latter may not be completely accurate. Though, one is
an enforceable fundamental right of a citizen while the other is a
rccop.nition of the free. flow of trade, commerce and intercourse,
hotb in essence are enforceable, and enforceable at the hehcst
of aggrieved in!livid1t;1ls. ll'ara 106]1570-C-Ul
                                                                        c
      Taxation :rnd Federalism
      S.1 The doctrine ol' the basic structure of tht lndian
Constitution has evolved to incorporate federalism as one of its
integral features. The guarantee that trade, commerce and
intercourse shall he free throughout the territory of lndia is          D
subject to the provisions of Part Xlll. The meaning of the
expression "thrnughout the territory of India" is elucidated by
Article 1 of the Constitution which stipulate!; that "India, that is
Bharat, shall be a lJnion of Sh!tes". The Union which the
Constitution postuiatcs is .defined in terms of a pol;tic;.l union
and an economic uniou which brought together the erstwhile              E
1>rovinccs of British India and the princely states. Th;: fn.•edom
under Article 301 comprehends, the free movement of goods,
sen ices, persons and capital. These are essential ingredients in
the creation of a common market as an incident of an economic
union. The freedom under Article 301 is not absolute for, the           F
constitutional guarantee is subject to the provisions of Part XIII.
The provisions of Article 302 to Article 304 bring about a balance
hctwecn the guarantee of lrecdom on one hand and legislative
control over trade and commerce on the other hand. While doing
so, those articles define lhe powers of Parliament :md the ~tate
                                                                        G
legislatures. while subJecting then; to restraints that arc intended
to preserw the power of rc1~uiating trade and commc1·ce. !Paras
109, 1101[572-C-F]
      5.2 While the Constitution docs in that sense subordinate
the freedom under Article 301 to the provisions of Part XIII, it
                                                                        H
78           SUPREME COURT REPORTS                     [2016] I0 S.C.R.


A would not be correct to read the provisions of Part XIII in isolation.
  Part XIII is an integral element of the Constitution, but so are
  the other Parts under which executive and legislative powers
  are constitutionally conferred upon the structures of governance
  in the Union and the States. While construing the provisions of
  the Constitution it is necessary to construe the text in the context
B
  of the organic nature of the constitutional document. The linkages
  between various Parts of the Constitution contribute to the
  creation of a composite whole. No segment of the Constitution
  can he read in isolation. The scheme of the Constitution must
  hence be understood having regard to its history, text and context.
c Words of the Constitution "cannot be read in isolation and have
  to be read harmoniously to provide meaning and purpose". The
  judgment of Justice Gajendragadlrnr, speaking for the majority
  in Atillbari, however construed the language of Article 30 I to mean
  that the guarantee of freedom wus subject only lo the provisions
D of Purt XIII. This docs not constitute an appropriate approach to
  constitutional interpretation since it leads to a construction of
  Part XIII in isolation from other provisions which have a
  significant bearing on the nature of the freedom and its
  relationship with the structures of governance. To consider the
  guarantee under Article 301 as being subject only to Article 302
E
  to 304 overlooks the rclationshiIJ of Part XIII with other
  provisions of the Constitution. l<'n•cdom is integral to that
  relationship. [Paras Ill, 112, 1131[572-G-H: 573-A-B, F-G; 574-
     AJ
           Kihoto Hollolwn v. Zadzill!w 1992 (I) SCR 686: (1992)
 F
           Supp 2 SCC 651; T.lvf.A. Pai Foundation and others v.
           State of Karnataka 2002 (3) Suppl. SCR 587 : (2002)
           8 sec 481 - relied on.
           5.3 In interpreting the text of the Constitution, the Court
     must construe the text in a manner that would preserve the
G
     carefully crafted balance betwem the Union and the states. Where
     the language of the text permits, the effort of constitutional
     interpretation should be to ensure that the states arc not
     subordinated to the Union in an·as reserved to them. Yet it is
     equally a matter of constitutional doctrine that \Yherc a particular
H
      JINDAL STAINLESS LID. v. STATE Of HARYANA                          79



provision (such as the pro\'iso to Article 304(b) imposes a specific     A
requirement (assent of the President before a Bill is introduced
in the state legislature) which subjects the legislative power of
the states to constitutional limitations, it would not be open to
the Court to ignore the plain meaning and effect of such a
provision. The text of the Constitution cannot be subverted on
                                                                         B
the basis of an abstract notion or hypothesis. While creating a
federal structure, the draftsmen of the Constitution were
conscious of the need for preserving a political and economic
Union. lf, as a part of that constitutional scheme, the text of the
document has incorporated specific provisions, they must be
given their plain meaning and effect. It would riot be open to the       c
Court to dilute the meaning of the text on the basis of a priori
considerations. !Para 120]1578-E-ll; 579-A]
      State of West Bengal v. Union of India [1964] 1 SCR
      371; Special Reference 1 of 1964 (1961) I SCR 413;
      S.R. Bommai 1·. Union of India 1994 (2) SCR 644 : 1994             D
      p) SCC 1; JTC Umited v. Agricultural Produce Market
      Commillee and Ors. 2002 (1) SCR 441 : (2002) 9 SCC
      232; Ku/dip ."lawU" 1·. Union of" Jndia 2006 (5) Suppl.
      SCR 1 : (2006) 7 SCC 1 - referred to.
      Taxing powers                                                      E

      Article 245 and constitutional limitations
       6.1 Article 245 of the Constitution provides for the extent
of laws made h:v Parliament and the legislatures of the states.
Clause 1 of Article 245 enables Parliament. "subject to the              F
pn1visio11s of this Constitution" to make laws for the whole or
an;. part of the territory of India and for the legislature of a state
to make laws fm- the whole or any part of the state. Article 245 is
the fountainhead of legislative power. It makes legislative powers
subject to constitutional limitations. The distribution of legislative
powers is embodied in Article 246 which deals with the subject           G
matter of laws made by the Parliament and by the state
legislatures. Parliament has exclusive powers to make laws with
n:specl to mattc.-s cnnrnerntcd in List I of the Seventh Schedule.
Subject to the law making powers of Parliament in List .I, the
                                                                         H
80           SUPREME COURT REPORTS                      12016] 10 S.C.R.



/\   Icgisl:.it urc of a state has exclusive power to enact Jaw for the
     state with respect to any of the mat1ers enumerated in List 11.
     Parliament and the state legislatures have concurrent powers to
     enact legislation in i-cspecl of matters enumerated in List Ill.
     Article 245 is the source of legislative power. Article 246
B    distributes legislative powers between Parliament and the state
     legislatures on the basis of the Lists in the Seventh Schedule.
     Article 245, in the conferment of legislative powers upon
     Parliament and the state legislatures makes them subject to the
     provhions of the Constitution. The power to enact laws is a
     manifestation of sovereignty. The Constitution while conferring
c    legislative powers upon the Union and the states makes them
     subject to constitutional limitations. The sovereignty of the
     legislature is subject to the norms of the written constitution.
     The power to tax is subsumed in legislative power. Like all
     legislative power, fiscal legislation is subject to the mandate of
D    the written constitution. This is the plain consequence of the
     opening words of Article 245(1) under which the conferment of
     legislative powers is made subject to the provisions of the
     Constitution. [Paras 121, 122]1579-B-Il; 580-AI
            6.2 The entries in the legislative lists of the Seventh
     Schedule arc not sources of legislative power but only define the
     subjects or heads of legislation entrusted to the law making
     competence of Parliament and the state legislatures. Read
     together, Articles 245 and 246 confer legislative power upon the
     Union and the states in the first place and distribute that powe1·
     between them to enact legislation on the fields of legislation
 r
     entrusted to their competence. Though Article 245 is made
     expressly subject to the provisions of the Constitntion while there
     arc no such similar words in Article 246, both Articles arc subject
     to the other provisions of the Constitution. The language of Article
     245 which subjects the conferment of legislative power to
     constitutional provisions is a recognition of the doctrinal principle
     that all constitutional power vesting in the organs of the state is
     subject to const.itutional limitations. The Constitution which
     entrusts power conditions the entrustment to the. observance of
     constitutional safeguards and limitations. All legislative power
11   is subject to constitutional limitations. The limitations on the
      JINDAL STAlNLESS l:l'D. v. STATE OF HARYANA                      81



exercise of k ;,:islativc power emanate from (i) guarantees of A
freedom under l'arl IJJ of the Constitulion containing fundamental
rights; (ii) the requirement that the law making authorily must
possess legislative competence to enact a law on the subject on
which it legislates; and (iii) other constitutional limitations. Part
XIIJ of the Comlitulion is one of those constitutional limitations. B
The constitutional limitation emanating from Part XIII arises from
the recognition which it contains of the guarantee of free trade,
commerce and intercourse. Hence the first premise upon which
legislative powers are conferred upon and distributed between
the Centre and the states is that though the enactment of law is a
manifestation of sovereignty, law making authority under the c
Indian Constitutior. is subject to constitutional restraints.
Absolute power does not dwell in any constitutional authority
which is subject to a written constitution. The legislative entries
in the Lists of the Seve11th Schedule to the Constitution delineate
general fields of legislation separately from taxing heads. In the D
Union List taxing entries are contained from Entries 82 to 92C.
The residual entry, Entry 97 deals with m"atte1·s not enumerated
in the state or concurrent lists, including any tax not mentioned
in either of those lists. In the state list taxes are comprised in
 Ii:ntrics 46 to 62. Fees are dealt with under separate heads: in
                                                                      E
Entry 96 of List I, Entry 66 of Lisi II and Entry 47 of List UI.
 !Paras 123, 125, 126][580-B-D; 581-B-F]
      StatP of' Kera/a and ors. v. Mar Appraem Kuri Co. Ltd
      and Anr. 2012 (4) SCR 448 : (2012) 7 SCC 106 -
      referred to.
                                                                       F
      Sovereignty and constitutional limitations
       7.1 The legislative power of the states to impose taxes is
subject, in general, to the same constitutional parameters which
govern the exercise of all legislative power. The containment of
legislative power follows from three constitutional precepts. First,   G
legislation is valid if it is enacted by a legislature which has
competence to enact law on the subject Second, the enumeration
of fundamental rights by Part Ill of the Constitution operates as
a restraint on the sovereign power vesting in the legislatures to
enact law. Article 13. of the Constitution stipulates that the state
                                                                       H
              SUPREME C:Ol 'RT REPORTS                  /2016] 10 S.C.R.


A    shall not cnad law which violates the freedoms guaranteed by
     the Chapter on fundarnental rights. A law whether made before
     or after the advent of the Constitution is void to the extent of its
     inconsistenc\ with Part XIII. Third, other constitutional limitations
     or restrictions may contain the law making power including in
ll   the field of taxation. f Para 1301f585-E-F, G-H; 586-A-B]
             7.2 ln the field of taxation, I.he containment of legislative
     powers vesting in the states may take place through provisions
     which are in the nafure or: (i) abstraction; (ii) eclipse; and (iii)
     limitations or rest1·ictions. These categories arc convenient
     reference points for understanding the source of constitutional
     restrictions. An illustration of an abstn1ctio11 of legislative power
     is contained in Entry 54 of the State List which provides for taxes
     on the sale or purchase of goods other than newspapers, subject
     to the provisions of Entry 92(A) of the Union List. Entry 92(A) of
     the U11ion List was introduced hy the Sixth amendment to the
I)
     Constitution in 1956 to provide for taxes on the sale or purchase
     of goods other than newspapers, where such sale or puHhase
     takes place in the course of inter-state trade or commerce. Under
     U'.nt1·y 54 of the State List as it originally stood, the states
     possessed an unfctlered area for imposing taxes on till' sale or
     purchase of goods othc1· than newspapers. Article 286 stipulates
     that a state law shall not impose or authorize the imposition of a
     tax on the sale or purchase of goods, where the sale or purchase
     takes place outside the state or in the course of import or export
     from or outside the territoi-y of India. Arlicle 286(1) provides an
     express har. Article 269(3) empowers Parliament by law to
     formulate principles for determining when a sale or purchase or
     consignment of goods takes place in the course of inter-state
     trade or c1immercc. Parliament, in exercise of its powers under
     Article 269(3) enacted the Central Sales Tax Act 1956. Sections
     14 and 15 of that Act provide a list of goods of special importance,
     the manner of imposing taxes and the restrictions on the power
     of imposing taxes. The second source of eontainment on the
     legislative powers of the states in the area of taxation is Article
     253 of the Constitution under which Parliament, notwithstanding
     anything contained in the earlie1· provisions of Chapter 1 of Part
H    XI is entrusted with the power to enact legislation for the entire
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                        83


territory of 1.ndia for implementing a treaty, agreement or A
convention with one or more countries or to implement a decision
at an international conference association or other body. The non-
nhstanlc provision of A1·ticlc 253 operates in relation to Articles
245 to 252. Hence, the legislative powers of the stales including
in the area of taxation may be eclipsed where Parliament has
                                                                        B
enacted a law to effectuate India's international obligations in
pursuance of Article 253. The third source of constitutional
containment on the legislative power of a state is in the form of
limitations of which Clause 3 of Article 286 provides an
illustration. Under Clause 3, Parliament provides the restrictions
and conditions in regai·d to "the system of levy, rates and other c
incidents of tax" upon which a law enacted by a state providing
for a tax of the nature specified in sub-clause (a) and (b) is subject.
Sub-clause (a) deals with a tax on the sale or purchase of goods
declared to be of special importance in inter-state trade or
commerce by a law enacted b)' Parliament. Sub-claus~ (b) deals D
with a tax on the sale or purchase of goods falling under sub-
clauses (b), (c) and (d) of Article 366(29A). Among other things,
a tax on contracts for hire purchase and involving transfer of the
righ1 to use goods is subject to the restrictions and conditions
which arc provided by a law enacted by Parliament in regard to
                                                                        E
the system of levy rates and other incidents of tax. The
constitutional containment of the legislative powers of the states
also originates in the provisions of Part Xlll which enable
Parliament and the state legislatures to impose restrictions on
inle1·-state trade or commerce subject to defining parameters.
!Paras 131-135H586-C-E, G-ll; 587-A-Gl                                  F


      Rai Ramkrislrna v. State of Bihar 1963 AIR 1667:
      1964 SCR 897; Raja Jagannath Baksh Singh v. State
      of UP & Am: 1963 SCR 220: AIR 1962 SC 1563;
                                                                       G
      Amrit Ban{/.\pati Co. Ltd. and Anr. v. State of Punjab
      and Anr. 1992 (2) SCR 13 : (1992) 2 SCC 411; Dena
      Bank v. Bhikhahhai Prahhudas Parekh & Co. and Ors.
      2000 (3) SCR 509 : (2000) 5 SCC 694 ; Maharaj Umeg
      Singh v. State of Bomhay, 1955 SCR164 : AIR 1955
                                                                       1-1
             SUPREME ('OURT REPORTS                      [2016] 10 S.C.R.



/\         SC 540; Finn Bansidhar Premsukhdas v. State of
           Rajasthan 1966 Suppl. SCR 81 : AIR 1967 SC 40;
           Thakur Jagmmath Baksh Sinp,h v. United Provinces
           (1946) FCR 111 - referred to.


           All taxes are not impediments

            8. The free movement of goods, services, persons and
     capital requires the existence of public order and conditions which
     allow for trade and commerce to take place unhindered. Neither
     trade nor commerce can flourish amidst violence, unrest and social
c    disorder. Taxes provide revenue for the state to sustain manifold
     activities which are geared to providing conditions of social order.
     Tax revenues form an essential part of the requirements
     necessary for states to govern. Taxes are required by Article
     265 to be imposed by a law enacted by Parliament or the state
D    legislatures. Without the power to raise revenues, the ability of
     the state to create conditions requisite for trade and commerce
     to exist would be denuded. Hence, as a matter of first principle it
     cannot be postulated that taxation in whatever form is a burden
     on trllde, commerce and intercourse and that every tax necessarily
F    hinders trade. Such a wide construction cannot be accepted simply
     because by raising revenues through the means of taxation, the
     state provides a political and legal order based on the rule of law
     where contractual transactions can be executed effectively. fPara
     13911589-G-IJ; 590-A-C]

F
           Indian Express Newspapers (Bomhay) Pvt. Ltd. and Ors.
           etc. v. Union of India and Ors. etc. 1985 (2) SCR 287
           : (1985) I sec 641; Government of Tamil Nadu v.
           A!w/Jilo Matam 1987 (1) SCR 232: 1987 (1) SCC 38;
G          A II Bihar Christian Schools 'Association v. State of Bihar
           (1988) l SeC 266; Federation of Hotel & Restaurant
           Assn. of India etc. v. Union of India & Ors. 1989 (2)
           SCR 918 : (1989) 3 sec 634; Express Hotels Private
           Lim ired 1·. State of Gujarat and Anr. 1989 (2) SCR 893 :
           (1989) 3 sec 677; Pankaj Jain Agencies V. Union of
H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                           85



      India 1994 (1) Suppl. SCR 602: 1994 (5) SCC 198;                    A
      Vrajlal Manila/ & Co. v. State of M.P (1986) Suppl. 1
      SCC 201; 7/Je Bengal Immunity Company v The State
      of Bihm· (1953) 1 BL.JR 48; NMDC v. State of
      1'11l1jah 1996 (10) Suppl. SCR 472: (1997) 7 SCC 339
      - referred to.                                                      B


      Articles 302, 303 and 304
       9. Articles 302, 303 and 304 provide for restrictions on
trade and commerce. The marginal note to each of the three
articles specifically contemplates restrictions on or with regard
                                                                          c
to trade and commerce. The marginal note to Article 302 refers
to the power of Parliament to impose restrictions on trade,
commerce and intercourse. Under Article 302, Parliament is
empowered by law to impose restrictions in the public interest
on the freedom of trade, commerce and intercourse between one             D
state and another or within any part of the territory of the India.
Consequently, Parliamentary power under Article 302 to impose
restrictions is not only confined to inter-state trade but extends
to restrictions within any part of the territory of India. However,
Article 303 imposes a limitation both on Parliament and the state         E
legislatures. Under Article 303, neither Parliament nor the
legislatu1·e of a state can enact a law giving or authoring the giving
of a preference to one state over another or making or authorising
the making of discrimination between one state and another, by
virtue of any entry relating to trade and commerce in any of the
lists in the Seventh Schedule. Article 303 has a non-obstante             F
provision which overrides Article 302. The non-obstante clause
in Article 303 is evidently inapposite in relatioJJ' to the legislature
of a state because Article 302 does not apply to a state legislature
in the first instance. Evidently the non-obstante provision can
have meaning only in relation to Parliament because it has the            G
effect of stipulating that the power of Parliament to impose
 restrictions in the public interest under Article 302 is subJect to
the principle of non-discrimination and non-grant of preferences
 to one state over another under Article 303. The effect of the
 norm which Article 303 enunciates is that neither Parliament nor
                                                                          H
              SUPREME COURT REPORTS                      [2016] I 0 S.C.R.


i\   the legislature of a state can grant preferences while enacting
     law to one state over another or make any discrimination. Article
     303 concludes with the words "by virtue of any entry relating to
     trade and commerce in any of the lists in t.he Seventh Schedule."
     I Paras 143, 14411592-B-Hi


           M.P V Su11deroramia i.: Stale of Andhra Pradesh 1958
           SCR 1422: AIR 1958 SC 468; State o/iv!adras 1·. N.K.
           :Vataraja 1v!mlaliar 1968 SCR 829: AIR 1969 SC 147;
           State o/ Jli111i! Nadu and Others l'. Sitolaxmi Mills and
C          Others 1974 (3) SCR 1 : 1974 (4) SCC 408 - referred
           to.


           Construing A1·ticle 304
D           10. The use of the non-obstantc clause in Article 304 in its
     application to Article 301 has been debated. That is because while
     Article .:rn1 makes the guarantee of freedom of trade and
     commerce subject to the other provisions of Part XIII, Article
     304 commences with a non-obstantc provision which operates
     notwithstanding what is contained in Article 301. A reasonable
     construction or meaning would have to he attributed to these
     two prnvisions. So construed, Article 304, in its non-ohstante
     prn,·ision, must mean that it would permit what is contemplated
     by Clauses (a) and (h) even though it would otherwise be within
     the ambit of the freedom guaranteed hy Article 301. Similarly, in
I'   its application to Article 303, the 11011-obstante clause in Article
     304 indicates that despite the prohibition that is contained in
     Article 303, the state legislature is empowered to do something
     of the nature that falls within the ambit of the provision. The 11011-
     obstantc provision of A1·ticlc 304 governs both Clauses (a) and
     (h) that follow. By virtue of Clause (a), the legislature of a State
     can, despite the provisions of Article 301, impose a non-
     discriminatory tax. The power to impose a tax is not conferred
     h~· Clause (a) of A1·ticle 304 hut is a power which is traceable to
     the legislative power of the states under Articles 245 and 246 of
     the Constitution read with the legislative entries in the State List.
II
      .JINDAL STAINLESS !TD. v. STATE OF HARYANA                        87


Article 304(a) is a clear indication that though a tax may constitute   A
a restriction within the meaning of Article 301, the imposition of
a non-discriminatory tax is permissible to the state legislature.
Article 304(a) lifts an embargo that would otherwise have existed
hut for the non-obstantc provision. Article 304(a), however,
mandates that a tax which is being imposed on goods imported
                                                                        B
from other States or Union territories must be a tax to which
similar goods manufactured or produced in that state arc subject.
Moreover, the tax shall not discriminate between goods that are
imported and goods so manufactured and produced. !Para
15611603-B-C]
                                                                        c
      So11rh !11diu11 Cmporation (P) Ud. v Board of" Revenue
      (1964) 4 SCR 280; State of' Bomhay v. The united
      Alo/ors (India) Ltd. (1953) 4 SCR 1069; Clwndavarkar
      Sita Raina Rao v. Asha/ala S. Guram 1986 (3) SCR                  D
      866 : 1986 (4) SCC 447; South India Corporation v.
      Board of Revenue (1964) 4 SCR 280 - referred to .
      .Justice G P Singh in his seminal treatise, 'Principles
      of S10111101:r Interpretation' 14th Edition - referred to.
                                                                        E

      Conjunctive or dis_junctive : 'may'; 'and'
       11. l Article 304 provides that the legislature of a state may
by law (a) impose a non-discriminatory tax as provided in clause
(a); and (b) impose reasonable restrictions on the freedom of
                                                                        F
t.radc, commerce or intercourse. The npression 'may' in the
prefatory part of Article 304 has to be read together with the
expression 'and' which separates clauses (a) and (b). The use of
the expression ·may' is indicative of the intent that the legislature
of a state is not bound to levy an impost on goods imported from
other states (though if it does so, the tax has to be non-              G
discriminatory). Similarly, the state legislature has an enabling
power to impose restrictions under clause (b). The legislature
'may' do so. It has the discretion whether to impose a tax or to
impose a rcsfriction and is not bound to do so. The word 'and' is
                                                                        H
88            SUPREME COURT RF.PORTS                      [2016] 10 S.C.R.


A    normally used in the conjunctive sense. However, this is not
     always the case. Coupled with the use of the expression 'may,
     the expression 'and' in Article 304 should be construed to mean
     and/or. In other words, the legislature of a state may take recourse
     to both clauses (a) and (h) of Article 304 or either of them. In the
     context of Article 304(a) the use of the expression 'may' in the
     prefatory part together with 'and' which separates clauses (a)
     and (b) indicates that the true meaning and intent is conveyed by
     the joint and several and/or. The state legislature may impose a
     tax falling under clause (a) as well as a reasonable restriction
     falling under clause (b). Alternately it may impose one of them.
('
     These being enabling provisions, the legislature may not take
     recourse to either. However, when it imposes a tax and/or a
     restriction, the state legislature has to abide by the conditions of
     clauses (a) and (b) respectively. [Paras 158, 159, 160][604-G-Il;
     605-A-C; 606-D-EJ
D          ..Statutorv /1Jte17Jretation ·· by Ruth Sullivan - referred
           to.
           Article 304(a) not the universe of taxation
            11.2.J A discriminatory tax is prohibited by Article 304(a).
     There is intrinsic material in the constitutional text to indicate
     that Article 304(a) does not exhaust the universe of taxation for
     the purposes of Part XIII. First, Article 304(a) provides that the
     legislature of a state may by law impose on goods imported from
     other states or union territories any tax to which similar goods
     manufactured or produced in that state are subject. The ambit
F    of dause (a) is a tax on goods, the origin of the goods being a
     state other than the state which is imposing the tax. Article 301
     (over which the 11011-obstante clause contained in Article 304
     operates) has a geographical coverage which extends throughout
     the territory of India. Article 301 guarantees the freedom of trade
G    and commerce not only across state boundaries but equally
     freedom within any part of the territory of India. If the freedom
     of trade and commerce is restricted by a discriminatory tax - as
     Article 304(a) postulates is the case - the imposition of a
     discriminatory tax on internal movement within a state must by
     the same logic breach the freedom guaranteed by Article 301.
H
       JINDAL STAINLESS TTD. v. STAfE or HARYANA                         89



Since Article 304(a) covers only a tax on goods imported from            A
other states, a discriminatory tax on goods which do not traverse
state ho11nda1·ies would not fall within the ambit of Article 304(a).
Yet it would offend Article 301. A state may conceivably have a
.iustifica!ion in the public interest in doing so or for imposing such
a tax and if it were to do so, it must meet the requirements of          B
Article 304(b ). lf Article 304 (b) were to be construed to not
include taxes, such a course of action would be barred, however
legitimate be the state interest. !Paras 162][607-B-E]
      11.2.2 There is a second reason why the language and
scheme of Part XI ll must lead to the conclusion that it is not only     c
discriminatory taxes of the nature contemplated by Article 304(a)
which fall within the ambit of the Part. Article 304(a) only covers
a tax on goods (goods imported from other states as seen above).
A tax imposed by the state legislature otherwise than on goods,
docs not fall within the ambit of Article 304(a). The taxing entries
of List II of the Seventh Schedule include various taxes that fall       D
within the legislative competence of the state legislatures other
than a tax on g,oods. Among the taxing entries of List II (entries
46 to 62) are several which deal with aspects of taxation of goods.
Article 304(a) applies only to taxes on goods. A tax which is not
on goods or on aspects bearing on goods is not governed by               E
Article 304(a). A discriminatory tax which is not on goods is not
within the prohibition of that article. Similarly, Article 304(a) will
not apply to a tax on passengers carried on roads or inland
waterways under Entry 56. Since the ambit of Article 304(a) is a
non-discriminatory tax on goods imported from other states, it is
evident that this provision is not exhaustive even of those
                                                                         r
discriminatory taxes which will offend Article 301. There are
taxes which fall within the legislative competence of the states,
other than on goods, which are outside the purview of Article
304(a). If those taxes impede the freedom of trade, commerce
and intercourse they would infringe Article 301 though they do           G
not fall within Article 304(a). Third, Article 302 has been held to
enable Parliament to impose Central Sales Tax. The expression
"restrictions" in Article 302 has been construed not to exclude a
restriction by way of a taxing measure. If the expression
'restriction' for the purposes of Article 302 does not exclude a         H
<)(}            SUl'RFMF COURT REPORTS                    [2016) JO S.C.R.



 /\    legislative measure by way of a fiscal imposition, i1 cannot
       evidently be excluded from the ambit of the phrase 'restrictions'
       in Article 304. [Paras 163, 164JJ607-F-II; 608-D-IIJ
              11.2.3 Fourth, this conclusion is buttressed by the non-
       obstantc provision contained in Article 304. The plain meaning
       of the non-obstante provision is that state legislatures may enact
       legislation in exercise of their law making authority under A1·ticles
       245 and 246, of the nature contemplated by clauses (a) and (b) of
       Article 304, despite the fact that such a legislative measure would
       otherwise fall within the ambit and purview of Article 301. The
 c     non-obst:inte provision in Article 304(a) refers to Article 301.
       Obviously, unless something falls within the ambit of Article 301,
       there is no reason to incorporate the non-obstante clause in Article
       304(a). Despite Article 301, it is permissible in view of Article
       304(a). Article 304(a) lif1s the embargo. The use of 1he clause of
       s11hjeclio11 in Article 301 and the non-obstante provision in Article
 J)
       304 have been criticised as a case of inartistic draftsmanship. A
       clause which makes a conslitutional provision or, for that maHe1·,
       a statutory provision subject to another makes the provision in
       which that clause is contained subordinate to the provision to
       whi.ch it is subjected. On the other hand, a non-obstante provision
 r;    commencing with the word 'notwithstanding' is intended to
       indicate that the text in which the provision is contained overrides
       another. JI'aras 165, 16611609-A-E]
             11.2.4 The guarantee of freedom under Article 301 is
       subject to Part XII I. Article 304 enables a state legislature in
 F     the exercise of its legislative power (under Articles 245 and 246)
       to enact a law despite the fact that it may otherwise fall within the
       ambit of Articles 301 or 303. Article 303 contains the mandate
       that neither Parliament nor the legislature of the state can grant
       prcfc1·cnces to one state over another or discriminate between
 (;    one slate and another hy virtue of the entries relating to trade
       and commerce in the lists of the ScYcnth Schedule. Article 303
       poslulales (in n~lation lo Parliament) that the power confert"ed
       upon Padiarncnt under Article 302 to impose restrictions on the
       freedom of trade, commerce or intercourse, in the public interest
       between one state and another or over any part of the teuitory of
 II
      JINDAL STAINLESS LJ'D. v. STATE OF l-lARYANA                       91



India cannot he exercised so as to grant preferences or to A
discriminate between one state and another. However, this
embargo is lifted by clause (2) of Article 303 when Parliament is
dealing wilh a situation of scarcity of goods in any part of the
territory of India. ln relation to the legislature of the state, Article
303(1) imposes the same mandate against the grant of preferences
                                                                         B
between states or the making of any discrimination. However,
clause (2) of Article 303 docs not apply to the state legislatures.
Clause (1) of Article 303 is a restraint on discriminating between
one state over another or from granting preferences between
them. Article 303(1) is akin to a provision in international trade
parlance conferring a 'most favoured nation' treatment. Under c
such an •mfn' clause, treatment extended to one nation state has
to be extended to the other. Article 303(1) embodies a similar
pl"ineiple inter .1·e bdween the states so as to ensure a uniformity
of treatment between states when Parliament or the state
legislatures enact a l:iw in exercise of their law making power. A D
state legislature which enacts a law is required to confer a parity
of treatment to other states and is prevented from granting
 preferences to one state over another or from making
discrimination between one slate and another, by the operation
of Article 303(1). Article 304(:i), however, allows the legislature
                                                                         E
 nf a state 1o impose a tax on goods imported from other states or
 union territories so long as the tax is one which is imposed on
similar goods nrnnufacturcd or produced in that state. The clause
 nf subjection in Article 301 and the non-obstante clause of Article
304 can hence be harmonised. [Para 167)1609-F-H; 610-A-F]
                                                                         F
      12. Article 306 as it was originally incorporated into the
Constitution provided :i clear indicator tlrnt the founding fathers
did not intend to use the expression 'restrictions' in
conlrndistinction to taxes or duties on the import or export of
goods bcl ween states. !Para 16911611-Fl
                                                                         G
      13.1 Article 304(a) elaborates that a particular form of
taxation - a non-discriminatory tax on goods -· shall not be
construed to violate Article 301. But Article 304(a) is not
exhaustive of the universe of taxation. Article 304(a) has three
defining characteristics. The first is that the tax is a tax on goods.
                                                                         1-1
              SUPREME COURT REPORTS                        [2016] 10 S.C.R.


     The second is that it is a tax on goods imported from other states.
     The third is the non-discrimination norm in relation to similar
     goods produced or manufactured in the state. A tax which fails to
     meet the yardstick embodied in Article 304(a) will violate Article
     301. But Article 304(a) cannot be a basis for holding that every
     fiscal measure (apart from a discriminatory tax) lies outside the
     puniew of Part XII I. For one thing, the rate of tax is but one
     clement of taxation. There arc other elements in a fiscal exaction
     including assessment, the machinery for collection and set offs
     and exemptions which can have an important bearing on whether
     the tax operates in a manner that impedes the freedom of
c    interstate trade and commerce. Moreover, a discriminatory tax
     otherwise than on goods, does not attract the provisions of Article
     304(a). Finally, a non-discriminatory tax may also become an
     impediment on the freedom of trade and commerce where the
     tax is so high as to render it confiscatory. Hence, a discriminatory
D    fiscal imposition of the nature which offends Article 304(a) is
     illustrative of but not exhaustive of fiscal impediments on the
     freedom of trade and commerce. !Para 170][611-F-H; 612-A-C]
             13.2. The Constituent Assembly, while adopting Article 304
     incorporated a marginal note which describes the ambit of the
F    provision as : "restrictions on trade, commerce and intercourse
     amongst states". The marginal note is a broad indicator of
     cc11,stitutional intent. It is a constitutional indicator of the position
     that a restriction on the freedom of trade and commerce can be
     fisi;al or non-fiscal in origin. The marginal note evidently utilizes
     the expression "restrictions" in relation to the entirety of the
F
     article. Though a marginal note cannot override constitutional
     text nor can it control the specific meaning of the words used in
     the text, it is a broad indicator or pointer to the meaning intended.
     For these reasons, it would be untenable to postulate as a general
     principle that it is only a discriminatory tax falling within the ambit
G    of Article 304(a) that is subject to Part XIII of the Constitution.
     !Paras 171, l 72]1612-D-F]
           Tax legislation - .Judicial review and Part XIII
           Taxation and Part XII
II         14.J A law which imposes a tax is not immune from
        ,--JDAL STAlNLFSS LTD. v. STATE Of HARYANA                        93



conslitulional challenge merely because taxation is a manifestation       A
of the sovereign power of the slate or because there is a
presumption that a tax is imposed by the legislature in lJUblic
interest. Taxing legislation is sub,ject to constitutional restraints
originating in lhe legislative competence of the legislature to enact
lhc law, the guarantees of fundamental freedoms contained in
                                                                          B
Part Ill and constitutional limitations originating in the provisions
of the Constitution. !Para 1761[614-E-Fl
      The standard of judicial review
       14.2 The standard of .iudicial review in relation to taxing
legislation however recogni;~cs that there inheres in the                 C
legislature the power to determine the ob,jects on which a tax
should he levied and lo classify persons or properties for the
purposes of the levy. Uthe classification is rational, a taxing statute
cannot be challenged merely because different rates of taxation
arc prescribed fo1· different categories of persons or objects. The       D
validity of a taxing statute cannot be challenged merely on the
ground that the rate of taxation is excessive. However, if the
statute is a colourable piece of legislation or a fraud on legislative
power, ii would be open to challenge on the ground that while
enacting the law, the legislature has adopted a cloak or devise to
confiscate the property of a citizen who is taxed. But such a             E
conclusion cannot be reached merely on a finding that the tax
which is imposed is unreasonably high or excessive.
Conccpt.nally, the availability of judicial review in regard to taxing
legislation is distinct from the standard of judicial review. Taxing
legislation is nol immune from constitutional challenges based
on a lack of legislative competence, a breach of fundamental rights
or a violation of a constitutional limitation or provision. But the
standard of judicial 1·eview in relation to fiscal statutes recognizes
that lhe legislature must possess a wide latitude to classify persons
or objects for the purposes of the levy. [Paras 177, 178]!614-G;
                                                                          G
615-A-D]
      Ramji/al v. Income Tax Officer; Mohindargarh (1951)
      2 SCR 127; K111111athat Thathunni Moopil Nair v. The
      State of' Kera/a 1961 (3) SCR 77; Balaji v. Income Tax
                                                                          H
94            SUPREME COURT REPORTS                       [2016] 10 S.C.R.


A          Office1; S)1ecial !11vestigatio11 Officer 1962 (2) SCR 983;
           Chhotahhai Jethahhai Patel & Co. v. Union of India
           (1962) Supp. (2) SCR ] ; Raja Jagan11ath Baksh Singh
           i: State of' UP (1963) I SCR 220; Federation of' Hotel
           & Restaurant Assn. of flldia etc. v. Union of India &
           Ors. 1989 (2) SCR 918 : (1989) 3 SCC 634 - referred
B
           to.


            14.3 Taxation is indeed a manifestation of the sovereign
     power of the slak to raise revenues for public purposes. Bui the
     exercise of sovereignty is subject lo the constitutional limitations
     of a written constitution. Enactment of law by a law making body
     which possess a legislative competence over the subject maUer
     upon which it legislates is one of the constitutional limitations.
     The Constitution distributes legislative powers between the
D    lJ nion and States. \Vhile doing so it carves out fields of legislation
     which arc reserved to the Union and the States respectively.
     Legislative powers in relation to taxation are also distributed
     between the Union and the States. Uenee, all legislative power
     (of which the legislative power to impose a tax is a part) is subject
     to the distribution provided in the Constitution. Exercise of
     sovereign power is governed by the norms of a written
     Constitution. Taxing statutes, like other legislation, arc subject
     to co11stil11tio11al limitations including those contained in Part XIII.
     Hence, the general notion that taxation is a manifestation of
     sovereign pow('rs must also comprehend within that
 F   conceptualisation, the limitations which the Constitution imposes
     upon all legislative power of which the taxing power is a part.
     !Para 18011616-G-II; 617-A-C!
           14.4 Article 245 mandates that all laws are subject to the
     provisions of the Constitution. From that basic premise, it must
G    follow that the l~mitations on the taxing power are not only those
     which are referable to Part XII. A sub.ject such as taxation may
     be referable to a specific part of the Constitution, such as Part
     XII.. This does not mean that its validity must be assessed only
     with reference In the provisions of that Part. The provisions of
     the Constitution are not isolated 01· watertight compartments.
11
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                          95



Constitutional provisions do not rest in silos.· As regards the A
third rationale undoubtedly, the revenues which the state raises
from fiscal exactions generate resources which arc also utilized
to augment trade and commerce. This, however, does not confer
an immunity from a challenge that a law which is enacted in
pursuance of the taxing 110wer breaches specific provisions of B
the Constitution. [Paras 181, 18211617-D-F']
       14.5 While the concept of public purpose is implicit in tax
law, it is also implicit in all legislation which is presumed to be in
the public interest. Yet the presumption of constitutionality or of
legislation being in the public interest docs not confer a protection    C
or immunity against a specific challenge on the ground that it
violates a constitutional limitation such as that originating in
legislative competence, the fundamental rights or constitutional
proYisions. !Para 18311617-G]
      Presidential sanction : the proviso to Article 304(b)              D
       15. Article 303 prohibits both Parliament and the legislature
of a state from enacting laws granting preferences to one state
over another or making discrimination between one state over
another. Article 303(2) makes an exception in respect of Union
legislation enacted to deal with a situation of scarcity of goods in     E
any part of the territory of India. The prohibition contained in
clause 1 of Article 303 is, hence, lifted in the case of Parliament
by clause 2. In the case of a state legislature, Article 303(1) is
attracted where it grants preferences or makes a discrimination
between one slate and another. Article 304 in its non-obstante
clause refers inter a!ia to Article 303. Consequently, where a state     F
legislature seeks to enact legislation granting a preference to
one state over another or to make a discrimination of the nature
referred to in Article 303(1), it must comply with the requirements
of a Presidential sanction under the proviso to Article 304(b ).
Where the law enacted by the state legislature would result in a         G
preference or discdmination prohibited under Article 303(1), the
embargo can be lifted upon obtaining the previous sanction of
the President under the proviso to Article 304(b ). [Paras 185,
186]1618-D-G]
                                                                         H
              SUPREME COURT REPORTS                       [20 l 6J l 0 S.C.R.


,\         Article 304(a) : The principle of non-discrimination
            16. While understanding Article 304 (a), this Court has to
     analyse the meaning of the expressions (i) 'goods imported from
     other states'; (ii) 'any tax to which similar goods manufactured
     or produced in that state m·e subject'; and (iii) 'so, however, as
I~   not to discriminate between goods so imported and goods so
     manufactured'. \Vhilc defining the meaning of these cxp1·cssions,
     judici:1l 1·cview is confronted with the basic question of when Article
     304(a) would apply and the situations in which the requirement
     of a non-discriminatory ta1' is fulfilled. An important aspect of
('   Article 304(a) is whether it permits a classification by the state
     legislature based on the need to achieve the economic
     development of the state. If development is a legitimate priority,
     to what extent docs Article 304(a) condition the power of the
     state legislature to encourage the growth of its own industries by
     the grant of incentives. rebat.es and exemptions through fiscal
!)
     legislation'? !Para 18711618-11; 619-B-D]


           5;1ate of Madhava Pradesh v. Ahdeali 1963 SCR 704 :
           AIR 1963 SC I 237; Firm .L TB. lvlehtah Majid v. State
Ji         of :\1adrm· (1963) Suppl. (2) SCR 435; A Hajee Abdul
           Shakoor i: State of' i'v!adms 1964 AJR 1729: 1964 SCR
           217; State of Madras v. :V.K. Na/arajo Muda!iar (1968)
           3 SCR 829; Ka!wmi Stores v. l/1e State o/Orissa (1966)
           1 SCR 865; Srat<' ofKemlc1 v..·1.B. Ahdul Khadir (1970)
            I SCR 700; Ra/Ian Lui de Co. v. The .·1ssessing Authority
           ( 1969) 2 SCH 544; V G11ruviah .Vaid11 and Sons v. State
           of fomi! Nadu 1977 (1) SCR 1065 : 1977 (1) SCC
           234; Stale of Kamawka v. Hansa Cmporation 1981
           (I) SCR 823 : 1980 (4) SCC 697; Wes/Un Electronik.I·
           '" Slate of Gujarat 1988 (3) SCR 768 : 1988 (2)
           SCC 568; Video Electronics v. State al Punjab 1989
           (2) Suppl. SCR 731 : (1990) 3 SCC 87; Shree Mahavir
           Oil Mi11s v. State of J&K 1996 (9) Suppl. SCR 356 :
            1996 (11) sec 39 ·- referred to.


H
      JINDAL STAINLESS LTD. v. STATE Of HARYANA                       97



      Article 304(a) and reasonable classification                   A
       17.l Does Article 304(a) prohibit a state from making a
reasonable classification? Article 303 contains a prohibition on
the legislature of a state granting a preference to one state over
another and for making a discrimination. Article 304 operates,
inter alia, as an exception to the norm contained in Article 303 as B
a result of its 11011-obsta11te provision. Under clause (a) of Article
304 a state may impose on goods which are imported from other
states "any tax" to which similar goods manufactured or produced
in that state are subject. This is followed by the further
requirement that the imposition of such a tax shall "so however'' C
not discriminate between goods so imported and goods so
manufactured or produced. The principle which underlies clause
(a) of Article 304 is non-discrimination between goods imported
from another state and goods produced or manufactured within.
Clause (a) enables the state legislature to impose a tax on goods
imported, in the exercise of its legislative power, so long as that D
tax is imposed also on similar goods manufactured or produced
within. The latter part of clause (a) which contains a mandate
against discrimination must have some meaning. In drafting the
provision, the founding fathers evidently did not confine it merely
to a norm providing a parity of taxes between imported goods E
and similar goods produced or manufactured within. While
stipulating that "any tax" to which similar goods produced or
manufactured in the state are subject can be imposed on goods
imported into the state from other states, clause (a) contains the
mandate that there should be no discrimination between goods,
                                                                       F
I hat ar·c imported and goods that are manufactured within. The
.iudgmcnt in Video Electronics construed Article 304(a) as not
 precluding a state from taking steps to promote the growth of its
own nascent industry. Jn the case of the State of Punjab, the
defence of the State was that a reduced rate of sales tax was
 imposed to boost the electronics manufacturing industry and to G
 stop existing industrial units shifting to neighbouring states,
 particularly having regard to "the prevailing peculiar
 circumstances of PunJab". Moreover, while states, such as
 GuJarat and Maharashtra were fully developed industrial states,
 Pun.iah at that stage was backward in terms of industrial growth. H
              SUPREME COURT REPORTS                        [2016/ 10 S.C.R.


/\   These factors undoubtedly weighed wilh this Court in sustaining
     the notification. !Para 207] f636-E-H; 637-A-D]
           17.2 A state docs have a legitimate concern and interest in
     ensuring the growth and development of its own industry. Levels
     of indnstrial growth and economic development arc not uniform
Ii   across the countr~'· A state legislature can have a legitimate
     interest, in the exercise of its law making power, to ensure
     balanced development and growth of its industry, particularly, in
     the nascent stage of industrial development. Yet, while doing so
     and granting incentives the legislature or as its delegate, the
C    state government must ensure that the grant of incentives is
     carefully structured so as not to defeat the underlying spirit and
     object of Article 304(a). Moreover, when the grant of such an
     incentive is challenged, it is for the state to justify it with reference
     to circumstances which have a bearing on legitimate state
     interest. [Para 208][637-D-Ff
I)
           Formal and substantive equality
            18.J Equality and non-discrimination are elements of the
     same universe. Equality has both a formal and substantive
     content. In a formal sense, equality perceives of governance under
     the same legal regime and the application of the same legal
     principles. Uniform application of law fulfills the norm of formal
     equality. Substantive equality looks beyond formal equality. That
     which may satisfy the requirements of formal equality may be
     inadequate and insufficient to meet the vision of substantive
     equality. S11bsta1ifive equality recognises that there are histories
F    of discrimination based on social background, gender and access
     to resources. They determine the pursuit of opportunity. Hence,
     formal equality may not necessarily result in just outcomes.
     Treating all individuals alike may perpetuate deprivation and
     denial of economic opportunity to those for whom the social order·
G    has not provided equal access to education or to the resources
     necessary for economic advancement. Hence, substantive
     equalit~' is premised on the foundation that in order to produce
     just outcomes and a real equality between individuals who are
     unequally situated, the legal regime must comprehend an
     understanding of their past histories of discrimination, disability
H
      JINDAL STAINLESS J;l'D. v. STATE OF HARYANA                      99


and injustice. !Para 209]!637-G-ll; 638-A-C]                           A
       18.2 Regions within a nation arc not equal in a real sense
in terms of economic advancement and social development.
Typically, economic development has spread along areas which
dcvclo1>cd around the availability of infrastructure and resources.
As ports and rnilways developed over the last century and a half,      H
the benefits of development permeated to regions where
economic opportunity was available. Yet, other areas of the country
have remained in a state of comparative under-development as a
result of circumstances such as geographical isolation and the
absence of developed means of communication. Many regions              C
have suffered from the absence of education and unavailability of
access to health and sanitation. Social deprivation and
discrimination have been the defining characteristic of large
swathe8 of the nation. In this background, substantive equality
like its mirror image-non-discrimination-construes the need for
development in terms of mitigating regional histories of suffering     D
and strife, and of denial, deprivation and discrimination. !Para
210)1638-D-F]
       18.3 Article 304(a) is an amalgam of formal as well as
substantive norms of equality. At a formal level, the provision
requires that when a state imposes a tax on imported goods, the        E
tax must likewise be imposed on similar goods which are
manufactured or produced in the state. Parity of tax between
domestic goods produced and manufactured in a state with those
which are imported from other states is the first and formal
requirement. But beyond this, Article 304(a) brings into focus         F
substantive principles by embodying a norm of non-discrimination
in its latter stipulation. Non-discrimination in a substantive sense
requires a level playing-field. Two states in the nation may not be
comparable in terms of social development and economic
advancement. One state may be industrialised with a growth of
                                                                       G
capital investment in urban infrastructure while another state may
be predominantly agricultural. Article 304(a) does not prohibit a
state from taking steps that are necessary for development and
growth within its territories. [Pua 211]1638-G-ll; 639-A-BJ

                                                                       H
l 00            SUl'REMF COURT REPORTS                    [2016J 10 S.C.R.


A            Produclion and manufacture within the home state
              19. Another aspect which needs close analysis is whether
       under Article 304(a), it is necessary that a state must actually
       produce or manufacture goods similar to goods imported from
       other states which arc sought to he taxed. The crucial words are
 13    "any tax to which similar goods manufactured or produced in that
       state arc subject". Art.icle 304(a) is not in the nature of a
       countervailing duty. The words "similar goods manufactured or
       llroduced" arc common to both Article 304(a) and Entry 51.
       llowever, the notion of a countervailing duty under Entry 51 (as
 c     the judgment in Kalyani Stores explains) is intended to
       counterbalance the duty of excise levied on articles which arc
       produced or manufactured in the state. The countervailing duty
       is imposed on articles which arc produced or manufactured
       elsewhere in India. Jn the context of a countervailing duty, this
       Court in Kalyani Stores held that it postulates the actual production
 !)
       or manufacture of goods. This principle cannot be extrapolated
       to Article 31l4(a) where the tax which is imposed is not in the
       nature of a countervailing duty. Article 304(a), when it refers to
       a tax on goods, covers taxes on any aspect of goods which fall
       within the legislative competence of the state legislature. The
       latter part of Article 304(a) which contains the words "so however
       as not to discriminate between goods so imported and goods so
       manufactured and produced" is not a surplusage. The object of
       the latter part is to ensure that there is no discrimination between
       goods which are produced or manufactured in the state and goods
       which are imported from other states. If a particular rate of duty
       is levied on goods which arc produced or manufactured in a state,
       a higher rate of duty cannot be levied on goods imported from
       othe1· states. This, however, does not preclude a state from
       imposing a duty on imported goods where it does not actually
       produce or manufacture goods of that description. The
 G     ohservations of this Court in Kalyani Stores were made in the
       context of a countervailing duty under Entry 51 of List IJ which
       is distinguishable. H a state does not manufacture or produce
       goods similar to the imported goods on which a tax is imposed,
       no question of disuimination will arise. The object of Article
 11    J04(a) is to prevent disparity of freatment between goods that
      JINDAL STAINLESS LTD. v. STATE Of HARYANA                   101



are produced or manufactured in a state and goods which a state ·A
imports from other states. \Vhere a state docs not actually
prnduce or manufacture goods of that description, no issue of
discdmination qua Article 304(a) would arise. !Paras 212, 213] [639-
G; 640-D-ll; 641-A-DI
     Entry Tax/Octrois and Terminal taxes                         B
        20. Entry 52 of List II to the Seventh Schedule of the
Constitution provides for " Taxes on the entry of goods into a
local area for consumption, use or sale therein." The legislative
history surrounding the incorporation of Entry 52 is a significant
guide to interpreting its provisions. Section SOA of the C
Government of India Act, 1915 defined the powers of the
provincial legislatures. In the Government of India Act, 1935,
Entry 49 of the legislative lists (list 11) provided as follows:
" Ccsses on entry of goods into a local area for consumption, use
Ill" sale therein. Terminal taxes were placed in List I." In the    D
Government of India Act, 1935, Entry 49 used the expression
"entry of goods into a local area for consumption, use or sale
therein", instead and in place of "octroi'' (as contained in the
Devolution Rules under the Act of 1915). The Constitution
incorporated Entry 52 in List ll in language which corresponds
to Entry 49 of List II under the Government of India Act, 1935 E
but with the difference that the expression 'taxes' is used instead
of 'cesses'. Octroi was a tax levied on the entry of goods into
areas which were administered by local bodies. When the
draftsmen of the Constitution incorporated Entry 52 in List II, it
was with the knowledge that the expression 'local area' had been
 used in the Government of India Act, 1935. Moreover, it could
 not but have been present to the minds of the framers that the
expression ·octroi' which was used in the Devolution Rules had
 heen replaced subsequently in Entry 49 of List II in the
Government of India Act of 1935 with a description rather than
                                                                    G
label : the label being descriptive of the entry of goods into a
 local area; the purpose being consumption, use or sale therein.
The exp1·ession 'therein' also indicates that the goods enter for
 the purpose of being used, consumed or sold within the local
 area. Entry 52 having used the expression "local area" rather
                                                                   H
102             SUPREME COURT REPORTS                     (2016] 10 S.C.R.


/\     than "area", the Constitution did not intend that the entry of
       goods into just any area in the state would attract the entry. The
       entry had to be into a local area. A local area is an area
       administered by a local authority such as a municipality, a district
       or a local board or a panchayat or some other body constituted by
 ri    law for administering the governance of local affairs in any part of
       the s1atc.f Paras 214, 215, 216, 218, 2201[641-E-F, G-11; 642-C-
       E; 643-B-C; 645-A-BJ


             Ranga1ore Woo/1e11 Cotton and Silk Mills Co. Ltd. v.
             Corporation of the City ol Bangalore (1961) 3 SCR
             707; Burnwh She1! Oil Storage and Distrilmtion Co.
             India /Jd. v. 771e !Jelgium Borough Municipality (1963)
             Supp. 2 SCR 216 - referred to.


D
             Enti-y taxes and Article 304(a)
             21. The first significant as1>ect of the matter is the inter-
       play between entr-y tax legislation and Article 304 (a). The
       interface between the two arises hccause entry tax is levied on
 1~
       the entry of goods into a local area for consumption, use or sale
       therein. If the goods odginate in any other. state, the imported
       goods would upon entry into a local area he liable to entry tax
       since the charging event is the entry of the goods into the local
       area for consumption, use or sale. Issues of discrimination arise
       on whether similar goods produced or manufactured within the
       state arc sub_jcct to entry tax. Article 304 permits the state
       legislature to impose on goods importe~ from another state any
       tax to which similar goods produced or manufactured in the state
       arc sub.icct. The object is to ensure that there is no discrimination
       between the goods "so imported" and the goods "so produced
 (I    or manufactured". The critical requirement of Article 304 (a) is
       that the tax must be origin neutral. Hence, where the state
       legislature levies an entry tax on goods entering a local area
       (without making any discrimination based on whether or not the
       goods originate in the state or are imported from outside) the
       mandate of Article 304(a) would be met. The issue is whether
 1-1
      JINDAL STAINLESS Ll'D. v. STA.TE Of HARYANA                      103



Article 304 (a) would be breached by imposing an entry tax only A
upon goods that are imported from other states. Plainly, if a tax is
imposed on goods which are imported from other states without
subjecting similar goods produced or manufactured within the
state to the tax, there would be a violation of Article 304(a). This
would constitute an unconstitutional discrimination between
                                                                       B
goods imported from other states which are subject to I.ax and
goods produced or manufactured within the state which are not
subject to the levy. Such an act of discrimination may take place,
for instance, in a situation where state law defines the entire area
of the state as a local area or by incorporating a specific definition
of the expression dealer or importer lo mean an importer of goods c
from outside the state. For instance, goods may be subject to
entry tax only when they cross the state boundary. Movement of
goods exclusively within the state, is not sub.ject to entry tax.
Alternative!~', the expression local area may be defined with
reference to the entire state. If the legislation imposes a tax only D
upon the entry of goods originating outside the state into the
state, while goods produced and manufactured within the state
are not sub.iect to the levy, this would constitute a hostile
discrimination prohibited by Article 304 (a). [Paras 227, 228,
22911648-A-HJ
                                                                       E
      Meaning of 'Local area'
       22. The Seventy-third amendment to the Constitution has
incorporated Part IX which deals with Panchayats while the
Seventy fourth amendment has incorporated Part IXA which deals
with Municipalities. Article 243(d) defines Panchayats as              f
institutions of self-government constituted under Article 243(b)
for the rural areas. Article 243(b} requires the constitution in
eve1·y state of Panchayats at the village, intermediate and district
levels. Article 24311 (a) empowers the legislature of a state by
law lo authorize a Panchayat to levy, collect and appropriate such
                                                                       G
taxes, duties, tolls and fees in accordance with such procedure
and subject lo such limits. Article 243Q provides for the
constitution of a Nagar Panchayat, a Municipal Council and a
Municipal Corporation. Article 243X empowers the legislature
of a state by law to authorize a Municipality to levy, collect and
                                                                       H
104           SUPREME COURT REPORTS                     [2016] 10 S.C.R.



A     appropriate such taxes duties, tolls and fees in accordance with
      such procedure and subject to such limits. With these
      amendments, local areas now have assumed a constitutional
      context and significance. In the judgment in Diamond Sugar Mills,
      the Constitution Bench emphasized that in i1sing the expression
      local area, the framers of the Constitution were aware of the
      previous legislative history and meant an area administered by a
      body (such as !Vlunicipalities, Panchayats or local board)
      constituted under the law for the governance of local affairs in
      any part of the stale. This statement of principle in the decision
      in Diamond S11Kar Mills now stands fortified in view of the
c     constitutional amendments brought by the insertion of Parts IX
      and IXA into the Constitution. A local area cannot be defined
      with reference to the entire state but will comprehend within the
      state, an area that is administered by a local body constituted
      under the law. [Paras 231, 232][650-B-G]
j)
            Diamond Sugar Mills /Jd v. 7/1c Stale al Uttar Pradesh
            (1961) 3 SCR 242; Shaktik11mar M. Sancheti v. State
            of Maharashtra 1994 (6) Suppl. SCR 98 : 1995 (1)
            sec 351 -- relied on.

            Sevcrability
            23. A discrimination between goods imported from outside
      the slate and goods produced or manufactured within the state
      for the levy of a tax would be violative of Article 304(a). Where
      the state legislature has committed an act of hostile discrimination
      hy imposing a tax only upon goods originating outside the state
      upon their entry within it, the court must strike down such a
      provision which violates Article 304(a). The provision cannot be
      re-written by judicial interpretation to mean that the tax will be
      levied both on goods originating outside the state and goods
      originating within the state and entering a local area. Re-writing
      a legislative provision is impermissible in the exercise of judicial
      review. [Para 233][650-11; 651-C-E]
            Equality of lax burdens
 H          24.1 Article 304(a) refers to the imposition of any tax on
      JINDAL STAINLhSS LTD. v. STATE Of HARYANA                      105



goods. The provision is not either a source of legislative power A
nor docs it prescribe fields of legislation. The expression "any
tax on goods" is of a generic nature and covers. all taxes which a
state is competent to impose on any aspect of goods under Articles
245 and 246 read with List JI of the Seventh Schedule. The
expression 'any tax' would mean any exaction in the nature of an B
impost or levy which the state legislature is competent to enact
by virtue of its legislative powers. The expression 'any tax' must
mean what it says: it means an~· levy which the state is
constitutionally competent to legislate. The second aspect of
Article 304(a) is the latter 1rnrt which provides that the state shall
ad : "so, however, as not to discriminate between goods so c
imported or goods so manufactured or produced."                   The
fundamental reason fo1· the incorporation of this provision is to
prohibit discrimination being practiced by the state against
imported goods by embarking upon protectionist policies. A state
cannot impose taxes in a manner that would make the goods of D
another state non-competitive so as to effectively bar the inflow
of trade by utilizing fiscal exactions. Thirdly, the latter part of
 Article 304(a) is prefaced by the expression "so however". In
\:Vords and Phrases, the expression however has been explained
as indicating "an alternative intention, a contrast with a previous
                                                                       E
 clause and a modification or it under circumstances". The latter
 part or Article 304(a) follows upon the first which enables the
state to impose on goods which are imported from other states
 any tax to which the goods produced or manufactured within the
stale arc subject. The latter part constitutes a positive re-
 aflirmation that in any case, at all events and at any rate there F
shall be no discrimination between goods manufactured or
 prnduced within the taxing state and goods imported from other
 states. This narrative is the dominant theme of Article 304 (a).
 Fourthly, an expression of some significance that is used in the
 latter part or Article 304(a) is "between". That expression has G
 been employed so as to mandate that there shall be no
 discrimination between goods imported into the taxing state from
 other states and goods that are manufactured and produced
 within. The use of the expression "so" in the latter part is an
 obvious reference to the imported goods and the goods
                                                                       H
106            SUPREME COURT RFl'OJUS                    r2016J IO S.C.R.



A     manufactured or produced within, referred to in the first part.
      The expression 'between' postulates that imported goods and
      local goods must be allowed a level playing field in the taxing
      slate. Imported goods from another state cannot be placed at a
      comparative disadvantage. The expression 'between' also
H
      signifies that goods produced or manufactured within the taxing
      stale should also not be discriminated against. In seeking parity
      of treatment, it is as much the obligation of the taxing state to
      ensure that there is no discrimination against goods originating
      in other states, as much as it is its concern to ensure that domestic
      goods ;ire not discrirninalcd against. The former is a matter of
c     constitutional obligation. However, il does not exclude a similar
      obligation and concern of the taxing state in respect of goods
      produced and manufactured within its territorial limits. Both must
      go hand in hand. Discrimination both in a positive manner against
      imported goods and a reverse discrimination against domestic
 I)   goods arc within the ambit of Article 304(a). The fifth important
      principle which requires emphasis is that our Constitution does
      not embody a requirement that the state legislature while enacting
      a legislation must legislate separately in respect of each subject
      of legislation contained in List JL A law enacted by the state
      legislature imposing a fiscal levy may cover more than one subject
      of legislation falling within its legislative competence in List II.
       In contrast, Section 55 of the Australian Constitution mandates
      that there shall be one tax law on one subJect. The Indian
      Constitution does not. impose such a restriction on the states.
      Considered from a different perspective, "rag-bag" legislation
 F     is constitutionally permissible under the Indian Constitution and
       it is open to a single enactment to draw sustenance from more
       than one entry which falls within the legislative competence of
       the enacting legislature. !Paras 240, 241, 242)[653-E-H; 654-A-
       G; 655-A-II; 656-A)
            Ujagar Prints (ll) v. Union of India 1988 (3) Suppl.
            SCR 770 : 1989 (3) SCC 488 - relied on.
            Wordl" and Phrases Permanrnl Eel. Vol. 19A , Oxford
            dictionary; P Ramanatha Aiyar's Lcrw Lexicon 4th Ed.
            Vol. III, Id. at p. 3134 -- referred to
 H
      JINDAL STAINLESS LID. v. STAl'E OF HARYANA                       107



       24.2 As a matter of constitutional doctrine, there is no A
restraint on the plenary powers of Parliament as well as the state
legislatures which requires the legislative body enacting a statute
to legislate only upon one head of legislation falling within its
competence. The legislature can distribute or allocate its
regulatory or law making requirements (both fiscal and non-fiscal)
                                                                      B
in a manner which best sub-serves its needs and concerns. Once
this be the position, its impact upon the interpretation of Article
304(a) is that it is open to the state legislature to have due regard
to the equality of tax burdens, when it legislates to impose "any
tax" so long as it does not breach the notion of non-discrimination
as between goods that arc imported from other states and goods c
which are produced or manufactured within. It is legitimately
entitled to ensure that the tax burden should not discriminate
between locally produced or manufactured· goods of that state
and goods originating in other states. The substance must prevail
over form. Once there is no constitutional necessity that the form D
in which legislation is enacted in India must cover only one
legislative entry, the legislature is entitled to devise a law in a
suitable manner which while being consistent with the norm of
non-discrimination also preserves a parity of tax burden between
goods imported and domestic goods. This is t.he foundation of
                                                                      E
 the theory of equivalence. (Para 24311656-B-EJ
       24.3 The burden of establishing that there is a
discrimination against goods which are imported from other states
lies on the person who sets up such a plea. In answering a plea of
discrimination, it would be open to the state to establish that the
                                                                       F
legislative provision which it has enacted maintains the principle
of non-discrimination between goods produced and manufactured
within the state and goods imported from other states while at
the same time bringing about parity in terms of tax burden between
domestic and imported goods. Sales tax is referable to Entry 54
of List II ("taxes on the sale or purchase of goods other than         G
newspapers, subject to the provisions of Entry 92A of List I").
Enlry tax is referable to Entry 52 of List II ("taxes on the entry
of goods into a local a1·ea for consumption, use or sale therein").
Both sets of taxes fall within the competence of the state
legislature. Tax11ble events under entries both entries are distinct   H
108            SUPREME COURT REPORTS                    [2016] 10 S.C.R.


A     : in the case of one the sale of goods and in the case of the other,
      entry of goods into a local area for consumption, use or sale
      therein. Both deal with separate aspects of the taxation of goods;
      the taxable events being proximate though distinct. The
      expression "any tax" recognises the full panoply of taxes on goods
      falling within List II. If a law can cover Entry 52 and Entry 54 of
B
      List II, there is no reason to prohibit the state Jaw making
      authority from having due regard to the tax burdens imposed on
      domestic goods and goods imported from other states under entry
      tax and sales tax legislation, taken as a composite whole. "Any
      tax" docs not mean a tax under one ent.ry of List II as a discrete
 c    and isolated legislation independent of any another entry. Any
      adjustment, exemption or set off based on the payment of sales
      tax may be intended to avoid double taxation and discrimination.
      Whether this objt1ct has been legitimately achieved by the
      enacting law is a matter to be determined on its interpretation
 I)   and application. !Para 244]1656-F-G; 657-A-DJ
            24.4 It is trite Jaw that every discrimination involves a
      differentiation hut every differentiation docs not implicate
      discrimination. The enquiry into whether a state has practiced
      discrimination against goods imported from other states will
 r:   commence with an investigation into whether the state legislation
      has made any differentiation between the two sets of goods. This
      is not merely in terms of the rate of tax but there arc other
      important aspects including: proccdui-cs and machinery including
      aspects such as licencing, recognition and compliance: J\ieasure
      of the tax; and Exemptions or set offs; Beyond this enquiry, the
 F
      court would need to analyse the reasons for the differentiation
      and then to determine a~ to whether there has been a
      discrimination violative of Article 304(a). fP.ara 245)[657-D-GI
            Entry tax and imported goods
 G          25.1 Entry 83 of List I provides for "duties of customs
      including export duties". The taxable event referable to a Jaw
      enacted under Entry 83 of List l (in relation to an import customs
      duty) is the act of import by which goods originating in a foreign
      country ai·e hrought into India. Section 2(23) of the Customs Act,
      1962 defines the expression import to mean "bringing into India
 II
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                        109



from a place outside India". The ex1Jression imported goods is         A
defined to mean "any goods brought into India from a place
outside India" but so as not to include goods which have been
cleared for home consumption. Section 2(26) defines the
expression importer in relation to any goods at any time between
their importation and the time when they arc cleared for home
                                                                       B
consumption, to include any owner or any person holding himself
out to be an importer. !Paras 246, 24711658-B, D-E]
       25.2. The Constitution distributes subjects of legislation
including, amongst them, those covering fiscal matters between
the Union and the States. The fields or subjects of legislation are    C
elaborately defined so as to exclude the possibility of overlapping
bet ween entries in List I and those in List IL Even where the
fields may appear to overlap, they must be construed to be
mutually exclusive. Entry 83 of List I and Entry 52 of List II have
separate and distinct fields of operation. Entry 41 of List I deals
with trade and commerce with foreign countries; import and export      D
across customs frontiers; and definition of customs frontiers. The
distribution of powers with reference to the taxing entries in List
I and ll is mutually exclusive. The principle of law is hence well-
settled : the taxing powers of the Union and the states are mutually
exclusive. [Paras 249, 250 and 2561[659-D-E, F-G; 663-G-H]             E
      Province of' Madras l'. Messrs. Boddu Paidanna & Sons
       1942 F.C.R.90; Governor General i11 Council v.
      Province ol Madras AIR (1945) PC 98; Kamptee, Union
      ol 111dia 1950 SCR 15 : AIR 1950 SC 11; The
      Jiyajeerao Collon Mills Ltd v. State ol Madhya Pradesh
      (1962) Supp. 1 SCR 282; D G Gose & Co. (Agents) (P)
      J,td. v. State ol Kera/a and am'. 1980 (l)· SCR 804 :
      (1980) 2 SCC 410; Union of India v. HS Dhillon 1972
      (2) SCR 33 : 1971 (2) SCC 779; Lt. Col. Sawai
      Bhawani Singh v. Stale of Rajasthan 1996 (2) SCR 145
                                                                       G
      : 1996 (3) SCC 105; Mh RR Engineering Co. v. Zila
      Parishad Bareillv 1980 (3) SCR 1 : 1980 (3) SCC 330;
      Hoechst Pharmaceuticals v. State of Bihar (2004) 10
      SCC 2011; Stare of Wesr Bengal" Kesoram Industries
      (1963) 3 SCR 787 - referred to.
                                                                       H
110           SUPREME COURT REPORTS                     r10l6l IO S.C.R.


;\           25.3 Entry of goods into a local area for consumption, use
      or sale therein attracts the charging provision of entry tax
      legislation. The levy which is referable to Entry 52 of List II is
      attracted the moment the goods enter a local area for consumption,
      use or sail'. The Customs Act, 1962 has made a beneficial
I\
      provision for allowing goods to be deposited in public or private
      warehouses and for the clearance of goods for home consumption.
      These provisions cannot and do not dclract from the power of
      the state legislatures under Entry 52 nor do they denude the
      states from levying an entry tax once the taxable event under
      state law has occurred. The taxable event for the imposition of
c     a duty of customs is distinct from the taxable event in respect of
      an cnt1·y tax, which is the entry of goods into a local area for
      consumption, use and sale therein. !Paras 257, 259]1664-E-G;
      665-C-D I
            Direct and inevitable effect test
D
            26.l \Vhether taxes per .~e constitute an impediment upon
      the freedom of trade, comme1·cc and intercourse is an issue which
      has resu!lcd in two contrary positions, neither of which has been
      subscribed to in this judgment. At one end of the spectrum is the
      theory that all taxes impede the freedom of trade, commerce and
      intercourse. If this theory were to he accepted, the entire tax
      regime and the state taxing power would he controlled by Part
      XIII of the Constitution. The stales which arc sovereign within
      their own sphere would in the exercise of their constitutional
      powc1· to raise revenues by way of taxation be subject to the dgours
      of Part XII I. Such an extreme view is not acceptable either from
      the stand point of textual construction or from its consequence
      for the federal structure of the Constitution. All taxes do not
      impede the freedom of trade, commerce and intercourse. In fact,
      taxes provide the means by which revenues can be raised under
      a regime of law made by law making bodies at the federal and
G
      state level. Absent a taxing power, the states would be bereft of
      revenues needed for maintaining order and governance. Trade,
      commerce and intercourse cannot survive in the abstract and
      without conditions of stability and order created by the state.
      Moreover. the revenues which arc made available to the state
 11
      JINDAL STAINLESS lTD. v. STATE OF HARYANA                       111


provide the basis for creating infrastructure and amenities, both     A
direct and incidental, through which trade and commerce can
effectively be transacted and can flourish. Hence, the extreme
proposition that all taxes constitute a restriction or impediment
upon trade has been eschewed. !Para 260]1665-E-H; 666-A-B)
       26.2 At the other end of the spectrum lies the view that B
taxes do not constitute a restriction upon the freedom of trade,
commerce and intercourse. If this view were to be accepted, Part
XUI would have no role as a constit.utional limitation on taxing
legislation save and exce1>t for discriminatory taxes of the kind
that arc prohibited by Article 304(a). The position that Article c
304(a) constitutes the entire universe of taxation for the purpose
of Part XIII has been rejected by this judgment on the ground
that it suffers from fundamental fallacies and is contrary to the
text of Part XIII. The grounds for so holding arc : Laws for the
purposes of Part XIII must mean all laws and not to the exclusion
of taxing legislation; The constitutional validity of Parliamentary D
legislation imposing sales tax has been upheld on the basis of
the provisions of Article 302 which enables Parliament to impose
 restrictions on the freedom of trade and commerce in the public
 interest. If taxing legislation is regarded as a restriction for the
purposes of Article 302, there is no reason to exclude the same E
 interpretation for the purposes of Article 304; Article 304(a) deals
 with a specific area of taxation - taxation of goods. The legislative
 powers of the state legislatures in List 11 of the Seventh Schedule
 enables them to tax persons, activities or things. Article 304(a)
 covers only the last category namely a tax on goods. It does not
                                                                        F
 cover taxes 011 persons (profession taxes or luxury tax) or taxes
 on activities (betting and gambling); Article 301 guarantees free
 trade, commerce and intercourse throughout the territory of
 India. Inter-state trade as well as trade and commerce within a
 state is guaranteed. Article 304(a) covers only taxes imposed on
 goods imported from other states. Article 304(a) in other words G
 docs not cover imposts on goods traversing within a state; Article
 306 of the Constitution, as it stood 1>rior to its repeal contemplated
 that restrictions could take the form of duties and imposts; and
 The expression '1·cstrictions' has been utilized in Part XIII of
 the Constitution, as the provisions of Articles 302, 303, 304 and H
112            SUPREME COURT RFPORTS                     [2016] 10 S.C.R.



A      306 would indicate in a manner that would not exclude taxing
       legislation. jI'ara 261 j j666-C-II; 667-A-C]
             26.3 Near!~', five decades of jurisprudence lrnving
       developed in support of the above principle, there is neither any
       rationale of constitutional principle or law that should leave this
       Court to make a departure from the position and to hold that
       taxes can in no circumstances constitute a restriction on the
       freedom of trade and commerce. Moreover, it has been accepted
       even as a matter of judicial precedent that taxation serves not
       only the purpose of raising revenues but is also a powerful
 c     instrument of social control. The states and the Union in the
       exercise of their lcgislatin powers, utilise taxation not only as a
       means of raising revenues to support their developmental
       activities but also as a measure of achieving social objects.
       Whether the pursuit of those social objects or the pursuit of social
       regulation infringes upon the area of free trade and commerce
       cannot he decided a priori. The power of taxation is capable of
       being used in a manner which can constitute, in a given case, a
       restraint or impcdirncnt on the freedom of trade and commerce.
       In determining as to when taxes can constitute a restriction on
       the freedom of trade and commerce, the direct and immediate
 J'.   effect test (as refined subsequently) provides a judicially
       manav;eable framework. The test of direct and immediate effect
       was enunciated in the judgments in Atiabari and Automobile
       Transport. The test is firmly entrenched as a part of our
       jurisprudence. jParas 262, 26311667-G; 668-A-DI
 F           A liahari Tea Compa11v Ltd. v. The Stale of Assam
             (1961) I SCR 809; A11to111ohile 71-ansport (Rajasthan)
             Ud. 1·. The State of Rajasthan (1963) I SCR 491 -
             partly affirmed.
             Godfi·ey Philips India Ltd v. State ol U.P 2005 (1)
             SCR 732 : (2005) 2 SCC 515; R C Cooper v. Union o{
             lndia (1970) l SCC 248; il K Gopalan v. The State of
             Madras (I 950) 1 SCR 88; Bennett Coleman & Co. v.
             Union oflndia 1973 (2) SCR 757 : 1972 (2) SCC 788;
             Maneka Gandhi i·. Union of India 1978 (2) SCR 621
             J 978 (1) sec 248 - referred to.
 H
      JINDAL STAINLESS ITD. v. STATE OF HARYANA                         113



       26.4 In order to determine whether a law providing for the A
imposition of a tax constitutes a restriction on the freedom of
trade, commerce and intercourse, the principle that must be
applied is whether the direct and inevitable effect or consequence
of the law is to impede trade and commerce. The burden must lie
on the person who alleges that such is the effect of the tax to B
plead and establish to the satisfaction of the court that the
consequence which is alleged docs in fact exist. The direct and
inevitable consequence for the purposes of Part Xlll of the
Constitution is not the same as an infringement of the fundamental
right to carry on an occupation trade or business under Article
19(l)(g). Under Article 19 (l)(g), it is the individual's right to c
carry on trade or business which is guaranteed as a fundamental
freedom. When a legislative measure seeks to curtail that
 freedom, the test is whether the right of the individual has been
infringed or cviscernted. In the context of Part Xlll, the matter
is looked at. from the perspective of trade and commerce as a D
whole. Hence, in a case which falls under Part XIII of the
Constitution it is for the petitioner to demonstrate and establish
 that the direct and inevitable effect of the law imposing a tax is to
 impede or restrict the flow of trade and commerce. The mere
 fact lhat the activity which is taxed is related to the flow or
                                                                        E
 movement of trade and commerce is not sufficient in itself to
 lead to the inference that a tax on that activity impedes or restricts
 il. Businessmen and traders must and do necessarily factor in
 lhc requirement of tax compliance as a part of an overall business
 plan. Hence, the mere fact lhat the lax is imposed with reference
 to an activity or thing which constitutes an aspect of trade or F
 comme1·cc is not sufficient in itself lead to the consequence that
 it is a restriction or impediment of trade and commerce. The
 petitioner with such a gi-ievance must cross the threshold of
 establishing in cogent terms before the Court that the direct and
 inevitable effect of the tax law is to constitute an impediment of G
 lrade and commerce. [Paras 265, 2661[670-C-H; 671-A]
       26.5 In the context of entry tax, it is said on behalf of the
petitioners that, there cannot be an entry into a local area of goods
for consumption, use or sale unless the tax is paid. If the tax is
not paid there can be no entry of goods. This is the basis for           H
114            SUPREME C'. >URI REPOIUS                    [2016] 10 S.C.R.


A     urging that entry tax constitutes a direct impediment or restriction
      on the freedom of trade and commerce. This approach to the
      issue cannot be accepted. In the regulatory sphere, adherence
      to a regulatory statute may be made a condition precedent to
      engaging in a particular line of activity involving business, trade
B
      or commerce. However, the requirement of compliance docs not
      by itself render the statute an impediment of trade and commerce.
      Similarly, in the fiscal arena, the fact that a tax liability has to be
      discharged as an incident of or a pre-condition for engaging in a
      line of activity does not by itself - and without actual proof of
      impediment or restraint - constitute a restriction. A conclusion
('
      that the inevitable consequence and effect of the legislation is to
      impede or restrict trade and commerce can be drawn only on the
      basis of demonstrable material that establishes that the impact
      of the tax is to result in that consequence. The burden to establish
      this is on the person who seeks to do so as a ground for relief.
l)    In a regulatory area as well as in a fiscal context, the legislature
      may prescribe the fulfilment of certain requirements subject to
      which a line of business, trade or commerce may be pursued.
      The fulfilment of those requirements may be set down as a
      condition precedent. A statutory regulator may for instance
      stipulate requirements of liccncing or registration before a
 E
      commercial activity which it regulates can be undertaken.
      Licencing or registration norms may stipulate financial and other
      requirements which-need to be fulfilled as a pre-condition for
      carrying on an activity or business. The fact that a statute allows
      for or prescribes such norms which constitute a condition
 F    precedent is not reason enough to hold that they constitute
      restrictions in themselves or an impediment of trade and
      commCl"ce. The right to carry on trade and commerce is not a
      right to be free from regulation that ensures orderly conditions
      for the pursuit of the activity. Nor can a right be exercised in
 Ci   such a manner as would create chaos through unregulated actions
      of numerous participants. In other words, the fact that a
      requirement operates as a pre-condition is not sufficient in itself
      to hold that it impedes or restricts trade. In order to constitute
      an impediment, the condition must be demonstrated to cause, as
      a direct and inevitable consequence of its operation a restriction
 H
      .JINDAL STAINLESS r.:rD. v. STATE Of HARYANA                    115



of trade or commerce. Every regulalo1·y requirement does nol          A
restrict or impede trade and commerce even if at the threshold,
its fulfilment is a condition enabling a person or entity to engage
111 a regulated activity. [Paras 267, 26811671-B-ll; 672-A-BI

       26.6 Jn a fiscal context, the payment of an impost or levy is
attracted when lhc taxing event occurs. The lax may be on 13
persons, activities or things. It is the taxing event which incurs
the charge or liability to tax. The charge may be associated with
an aspect of an activity or thing. The mere fact that this aspect is
connected with the flow or movement of trade or commerce does
not in itself lead to the conclusion that the tax constitutes an c
impediment or restriction. The impediment does not lie in the
aspect of the activity or thing which is the subject of the tax but
in ils consequence. Every tax or movement on entry does not
impede trade or commerce. The volume of trade in a commodity
is determined by numerous variables including the nature of the
product, availability of raw material, transportation and D
infrastructure, the nature and extent of competition, market cycles
as well as the elasticity of demand and supply. The tax structure
is one ingredient which has a bearing on the allocation of
 resources. For a tax to constitute a restriction, there must be
 demonstrable material to indicate that its direct and inevitable E
effect or consequence is to obstruct or impede trade or
 commerce. Before the tax is held to be a restriction, the threshold
 must be crossed by demonstrating that the immediate and
 necessary consequence is to restrict impede or obstruct trade
 as a whole. t:nless the impact of the financial levy is demonstrated,
 in terms of its direct and inevitable consequence, to restrict trade
 01· commerce the provisions of Article 304 (b) would not be
 attracted. For, there has to a restriction in the first place before
 the issue of its reasonableness arises. Consequently, it is not
 possible to hold that lhe mere fact that the charge of the tax is
 associated with an aspect of the movement of trade and commerce G
 indicates that it is a restriction in every case. The burden lies
 upon the individual or entity asserting the existence of a restriction
 to demonstrate its impact in terms of the direct and inevitable
 effect test as adopted above. Hence, there can be no a priori
 assumption that an entry tax constitutes a restriction or H
               SlJl'RFME CCURT REPORTS                    [2016] JO S.C.R.


A     impediment to trade and commerce. While recognising
      sovereignty in the fields assigned to the centre and the states,
      the Constil ution subjects its sovereign arms to constitutional
      limitalions which are designed to preserve the balance which it
      has created. Hence all legislative power, including of a fiscal nature
      has to abide by the norms of the written constitution ..Judicial
      review of fiscal legislation however recognises the wide latitude
      which inheres in the legislatures both at the national and state
      level lo classify persons, objects and things for the purpose of
      raising rcvenues.jPara 269, 276]1672-B-IJ; 674-Cj

c
            .-1 hmeda!wd St. Xm·ier Co!!age Society v. State of"
             (iujoror 1975 (I) SCR 173 : (1974) 1 SCC 717; !ndirn
            Saw/mer 1·. UOJ 1992 Supp. (3) SCC 215; Supreme
             Courr AdFocales on Record Association v. UOJ 1993
D            (3) SCR 669 : (1993) 4 SCC 441; SR Bommai v. UOJ,
             (1994) 3 SCC 1; Attomev General of" India v. Amritlal
             Prajvandas (1994) 5 SCC 54; Mafatlal Industries v.
             UOJ 1996 (10) Suppl. SCR 585: 1997 (5) sec 536;
             Special Reference No. I of I 998 1998 (2) Suppl. SCR
             400: (1998) 7 SCC 739; 1.R.Coe!ho v. State of TN 2007
I·.          (1) SCR 706 : (2007) 2 sec 1 - cited.


            PER ASUOK BIIUSIIAN, .J. (Partly dissenting)
             1. From the legislative hislor:v and the ex lent of freedom of
F     trade and commerce as emerged from Constituent Assembly
      Debates, it is abundantly clear that the taxes were treated as
      rcstric1ion on freedom of trade and commerce and it was further
      comprehended that restriction on freedom of trade and commerce
      can be put by taxation also. !Para 15511734-B]
(i

            Ke.1·a1·,111m1da !?harati v. State of Kera/a 1973 Suppl.
            SCR I : (1973) 4 SCC 225 -- followed.
            State of Rajastlwn and others I". U11io11 of India and
            others 1978 (I) SCR I : (1977) 3 SCC 592; Special
ll
        JINDAL STAINLESS LTD. v. STATE Of HARYANA                      117



       Reference No. 1 of' 1964: In the matter of.' Under Article      A
       143 of' the Constitution of' India, (1965) l SCR 413;
       S.R. Bommai v. Union of'Jndia 1994 (2) SCR 644 : 1994
       (3) SCC 1; Ku/dip Na.var v. Union of' India 2006 (5)
       Suppl. SCR l : (2006) 7 SCC 1 - rererred to.
       A.V. Dicey "The Law of' the Constitution .. - referred to.      B


       Nature or Federalism in Constitution or India
       2. Federalism in the Constitution is limited and controlled
hy the Constitution and the exercise of powers of both the States      C
and the Centre arc controlled by express provisions of the
Constitution. IJ>ara 17 3117 46-A]
        Limitation on the legislative power of the State under the
C 011Stjt11ti0 II

      3.1 It is well settled that legislative power of the State is    D
subject to the provisions of the Constitution. The words 'subject
to the prnvisions of this Constitution' had lo give its full meaning
and content. Thus, limitation of the legislative powers wherever
found in the Constitution has to be given effect to. There can be
no doubt that Part XIJ of the Constitution deals with "Finance,        E
Property, Contracts and Suits" and there are various express
limitations provided in Part XII, namely, Articles 276, 286 and
certain other Articles but can Part XII be treated as the only
limitations on the legislative powers of the States, the answer
has lo be in negative. All legislative powers is subject to
                                                                       F
limitations in the Constitution, be it fiscal statutes or non-fiscal
statutes. !Paras 182, 18511750-G-II; 751-A; 752-F]


        Slate ol Kercila and others v. Mar Apprae111 Kuri
        Co111pam· Urnited and another 2012 (4) SCR 448 :               G
        (2012) 7 SCC 106; K111111athat Tha1lw1111i Moopil Nair
        v. The Srate of' Kera/a and anot/1e1: (1961) 3 SCR 77;
        Hari Krishna Blwrgav v. U11io11 of' India and another
        1966 SCR 22 : 1966 AIR SC 619 - relied on.
                                                                       H
118            SUPREME COURT REPORTS                     [2016] 10 S.C.R.



A            3.2 Whether Part XIII also contains limitations on the
      legislative power of the State. Part XIII of the Constitution has
      been included in the Constitution after great deliberation and
      debates in the Constituent Assembly. Part XIII contains one of
      the most important right and principle on which country was to
      march to attain economic freedom. [Para 1861(752-G-H)
 8
            3.3 Article 245 which is a source of all legislative power
      puts a general limitation on all legislative power which lrns been
      expressly made 'subject to the provisions of this Constitution'.
      When all legislative powers arc subject to the provision of
c     Constitution, Part XIII being also a part of the Constitution, all
      legislative power has also to be subject to Part XIII. [Para
      188][753-F-G]
             3.4 Article 303 is an express provision which provides for
      'restriction on the legislative power of the Union and the States
D     with regard to trade and commerce'. Article 304 is another
      provision which although empowers the legislature of the State
      to put restriction on trade, commerce and intercourse among
      the States by law, but law to be made by the State is hedged by
      various restrictions as contained in Article 304(a) and 304(b).
      Thus Article 304 is also a limitation on legislative power of the
 E    State. Part XIII of the Constitution contains limitation on the
      legislative power of the State and all legislative power of the State
      whether fiscal or non-fiscal has to conform Part XII of the
      Constitution. [Parns 189, 192][753-H; 754-A-B, G)

 F
            Stale cif Tamil Nadu and Olhers v. Sitolaxmi Adills and
            O!hers 1974 (3) SCR 1 : 1974 (4) SCC 408; G.K.
            Krishnan v. Sla/e <if Tamil Nadu 1975 (2) SCH 715 :
            (1975) 1 sec 375 - referred to.

G
            Whether Part XIII of the Constitution covers "tax
      legislation" and word "restriction" used therein includes tax
      legislation.
            4.1 Part XIII covers all tax legislations which impede the
 H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                    119



freedom of trade, commerce and intercourse: (a) The express A
use of word tax in Article 304(a) and 306 (as it existed before its
repeal by Constitution's 7th Amendment Act, 1956) indicates that
taxes were expressly included in Part XIII. Had the taxes, apart
from as mentioned in 304(a) were not to be covered under Part
XIII, Article 306 ought not to have been engrafted which B
permitted continuance of tax or duty on the import and export of
the goods, in Part B States for a period not exceeding ten years
from the commencement of the constitution. The framers of the
Constitution were conscious that unless an overriding effect is
given to taxes which are continuing in the State the same shall
fall foul to Article 301. (b) Article 302 uses the phrase, c
"Parliament may by law". Whereas Article 303 uses the phrase
"neither Parliament nor the legislature of the State shall have
power to make any law..... " Article 304 uses the phrase the
legislature of a State "may bv law". All laws framed by Parliament
or State in exercise of legislative entries under VII'" Schedule D
arc law. Article 302 - 304 contain exception according to which,
freedom of trade, commerce and intercourse as guaranteed under
Article 301 can be overridden. The word law is wide enough to
include both fiscal and non-fiscal legislations. (c) Article 303
imposes restriction on the legislative power of the Union as well
                                                                     E
as of the State with regard to trade :md commerce. Article 303(1)
 provides that a State shall have no powers to make any law giving
 or authorising the giving of, any preference to one State over
 another, or making or authorising the making of, any
 discrimination between one State or another, by virtue of any
entry relating to trade and commerce in any Lists of the VTI"' F
Schedule. The legislative power of the State, which is restricted
 under 303(1) cannot be held to be confined only to law as referred
 to in 304(a) rather it can extend to a legislation by virtue of any
 entry relating to the trade and commerce in List II. From this, it
 is clear that tax legislation which arc covered under Part Xlll G
 arc not confined to only Article 304(a). (cl) ln the event, the
 submission is accepted that all taxes arc outside Part XIII except
 non-discriminatory taxes as permitted under Article 304(a), the
 same will lead to giving right to the Parliament and State
 Legislature to pass facially non-discriminatory laws but creating
                                                                     H
120            SUPREME COURT REPORTS                       [2016] 10 S.C.R.


A     restrictions on trade and commerce by other means by providing
      arbitrary procedure and various other kind of restraints. The
      taxation which can impede the trade, commerce and intercourse
      thus cannot he confined only to non-discriminatory taxation. Even,
      non-discriminatory taxes which create restraint on trade have to
      he held to fall foul to Article 301. In the event of accepting the
      ahovc submission, the restraint in trade by other means offa:rntion
      sh:tll be out of reach of Part XIII, which is never the intention of
      the framers of the Constitution. (c) Article 304(a) covers
      imposition of taxes on goods imported from other States. Article
      304(a) docs not apply to imposition of taxes on intra-State trade.
('
      Can it be presumed that intra-State taxation, if it contains restraint
      on trade between one local area to another local area or is
      discriminatory, the same is outside the reach of Article 301'? The
      answer is obviously no. Trade and commerce throughout the
      territory of India is to be free. Thus reach of Article 301 is not
J)    confined to taxation as contemplated by 304(a) rather Part XIJI
      embraces in itself all kind or tax legislation, which contains
      restraint on trade, commerce and intercourse. (f) Article 304(a)
      only covers taxes on goods imported from other Stale and Union
      Territories. List II of VII 11 ' Schedule contains various other entries
      which cm1rnwer the State to levy taxes. Entry 49 to Entry <>2
      enumerate various fields of taxing legislation. In the event, the
      submission is accepted that it is only taxes referred to under
      Article 304(a), arc covered hy Part XIII, all taxing legislations
      as enumerated in List II shall go out of reach of Part XIII. Whether
      Constitution framers contemplated that restriction in freedom of
 F    trade, commerce and intercourse can be imposed by the State by
      taxing legislation other than those referred to in 304(a), answer
      has to he negative. Other taxing legislation apart from those,
      mentioned in Article 304(a) are not immuned from restriction
      contained in l'a1·t X IJJ. For example, Entry 49 provides 'taxes on
 (i   lands and buildings'. A State Legislation is passed imposing taxes
      on buildings where I rade and commerce is carried, the effect of
      which is to impede the trade and commerce, can it be said that
      such tax legislation cannot be questioned as violating Article 301.
      The answer is that such legislation has also to comply with Article
      301. Thus, Article 304(a) is not the only taxation which is covered
 11
      JINDAL STAINLESS r:rD. v. STArE OF HARYANA                    121



by Part Xlll. But it is only species of taxation which has been     A
expressly indicated for carving out gateway for the State
Legislature to impose tax which may not impede Article 301.
(g) Lastly, there arc no provision in Part XIII which negate the
applicability of Part XIII on taxes which operates as restriction
to trade, commerce and intercourse. Something which is not
                                                                     B
expressly excluded in Part Xlll cannot be excluded by way of
intcrprclal ion. !Para 19911756-F-ll; 757-A-ll; 758-A-G]
       4.2 While discussing the subject 'Legislative History and
Debates in Constituent Assembly' on freedom of trade, commerce
and intercourse, it was found that taxes were treated as restrictions c
on freedom of trade and commerce and it was further
comprehended that 1·cstrictions on freedom of trade and
commerce can he put by taxation also. Apart from above, there
arc following reasons which support conclusion that word
'restriction' used in Part XIII includes tax legislation: (i) The
textual interpretation of Part XIII itself indicates that taxes were D
contemplated to be included in word ·restriction'. The heading
of Article 304 reads 'restrictions on trade, commerce and
intercourse among States'. Although the heading refers to
"restrictions' but Article 304(a) uses the word 'any tax'. (ii) The
same conclusion is drnwn from the Article 306 as it was enacted. E
Article 306 also contained a heading 'power of certain States in
Part B of the I'' Schedule to impose restriction on 'trade and
commerce'.' Article 306 contained a 11011 obstante clause
empowering Part B, States to continue to levy and collect such
tax, subject to an agreement with the Government of India which
                                                                      F
was being levied at the time of commencement of the Constitution.
The heading only referred to restrictions on trade and commerce
whereas section referred to imposition of taxes. Thus textual
interpretation of Article 304 and 306 clearly indicates that word
"1-cstriction' was used as inclusive of taxes. (iii) The word
'restriction' has been used in Part Ill, in Article 19(2) to Article G
19(6). The word 'restriction' has also been used in Part Xlll.
The word 'restriction' appearing in Part Ill and Part Xlll have
the same meaning and should be construed as such. It is well
 known principle of statutory interpretation of Constitution that
when the same words or phrases arc used in different parts of H
122             SUPREME COURT REPORrs                     [2016] 10 S.C.R.


/\      the Constitution, the same meaning should be ascribed to such
        word unless the context demands otherwise. (vi) The word
        'resfriction' used in Article 304(h) has also to be interpreted in
        the same manner. Article 304(a) covers limited field to taxes on
        goods imported from other States. Article .104(a) does not cover
 fl     intra-State taxation. An Intra-State Tax Legislation, impeding the
        freedom of trade, commerce and intercourse between one local
        area to another local area, has also to fall foul to Article 301.
        There may he valid reasons for State legislature to impose
        restriction with regard to intra-State taxation and there may be
        reasons for fixing different rate of taxes with 1·egard to different
('
        local areas, which may be a restriction on the trade, commerce
        and intercourse. Article 304(b) is a window by which a State can
        impose reasonable restriction in public interest. In the event, it
        is held that Article 304(b) does not cover taxes, the State will
        have no mechanism to impose restriction on intra-State trade
])      and with regard to imposition of taxes other than goods imported
        from other States, which can not be the intention of framers of
        the Constitution. jPara 20011758-11; 759-A-U; 760-A-ll; 761-A-
        BI
              K. T Alnopi/ Nair v. State of' Kera/a and Anr. 1961 (3)
 l '.         SCH 77 - referred lo.
               Legislative history and constituent assembly debates
        relating to Article 304(a)and 304(b)
               5. Article 244 which was subsequently approved as Article
        274D in Part XA and was adopted as Article 304 of the
 F
        Constitution. The above indicates that initially the provisions
        empowered the State "to impose on goods imported from other
        States any tax to which similar goods manufactured or produced
        in that State arc subject'', and hy an amendment another
        restriction i.e. "so, however, as not to discriminate between goods
        so imported and goods so manufactured or produced" was added.
        Article .104(a) contains both the above restrictions on the
        legislative power of the State. The proceedings of the Constituent
        Assembly, thus, clearly indicate that both the above conditions
        have hcen added in lhe provision as separate conditions and the
        second condition was added by way of amendment in addition to
 If
      JINDAL STAINLESS LTD. v. STATE or HARYANA                        123


the first condition which already existed. Now coming to Article       A
304(b) which was similar to draft Article 244(b), Constituent
Assembly debated the above Article threadbare. It is clear that
ohjcclion:: with regard to Article 274D sub-clause (b) whi<:h is
now Article 31H(b) \HTC raised before the Constituent Asr;cmhly
hut the objections were overruled by retaining Article 2740 snb-       B
clausc (h) which is now Article 304(b), thus, inclusion of Article
304(h) in <he Con~:titntion was consequent to well deliberated
Constitutional Scheme and was accepted as restriction on the
power of State to have uniform fiscal 1101icy. and uniform an
economic policy. !Paras 207, 216][764-D-F; 770-C-D]
                                                                       c
     Interpretation, scope and ambit of Article 304(a) and Article
304(b)
      6.1 'Article 304 begins with a 11011 obsta11te clause i.e.
'notwithstanding anything in Article 301 or 303'. Article 301
declares that trade, commerce and intercourse throughout the           D
tenitory of India shall be free. Article 304 has overriding effect
over Article 30 I, Article 304 provides for 'restrictions on trade,
commerce and intercourse' amongst States, as is clear by its
heading, which otherwise would not have been permissible under
301. Article 304 also overrides restrictions on the legislative
power of the State as provided for in Article 303. Article 304         E
empowers legislature of a State by law to impose on gooc;s
imported from other States or Union Territories any tax. A rlain
reading of Article 304(a) indicates that it contains certain
conditions for imposition of taxes on goods imported from other
States. Article 304(a) can be divided in following parts:- i. Impose   F
on goods irnpor·tcd from other States or Union Territories; ii.
 Any tax to which similar goods manufactured or produced in that
State arc subject;iii. So, however, as not to discriminate between
goods so imported and so manufactured or produced. !Paras 218,
219][771-B-El
                                                                       G
      6.2 Article 304 is, in nature of enabling provisions to the
State, to impose taxes on goods imported from other States.
Framers of the Constitution had stated that the goods coming
from other· parts of the India in the units concerned cannot escape
duties and taxes to which the goods produced in the units arc
                                                                       H
124           SUPREME COURT RFPORTS                     [2016] 10 S.C.R.


/\    subjcd. Th~rc is specific purpose and object in enabling lhe
      State to impose tax on goods imported from other States only
      when similar goods manufactured or produced in that State arc
      sub_ject. The object is that trade and commerce throughout the
      trrritory of India has to be free, as required by Article 301 and
      limited power to State was given to tax the outside goods when
      local goods arc subject to taxes. In event, locally manufactured
      or produced goods arc not subject to any tax, State has no
      jurisdiction to impose tax on similar goods coming from other
      States. Tax on the locally manufactured or produced goods is
      condition precedent for imposing tax on similar goods coming
c     from other States. Idea is that when State docs not tax its locally
      manufactured or produced goods, similar goods coming from out
      of the State he permitted a free flow which is a part of freedom
      guaranteed under Article 301. jPara 22011772-A-DI
             6.3 The last condition that 'so, however, as not to
!)
      discriminate between goods so imported and goods so
      manufactured or produced ... " is another limb of restriction which
      prohibits the State from discriminating in imposing taxes on
      imported goods as compared to goods manufactured or produced
      locally. The question of discrimination shall arise only when first
 E    condition that is locally manufactured or produced goods arc taxed
      hy a State. In event, a particular good is nol produced or
      manufactured in a State, State cannot be allowed to impose tax on
      goods coming from other States. First condition that is, taxing of
      the local goods being not fulfilled, the question of discrimination,
      does not arise. The power under Article 304(a) for imposing
      taxes on the imported goods can be exercised by a State only
      when similar goods manufactured or produced locally are subject
      to tax. When the similar goods are not subject to tax or similar
      goods are not available in the State, the State is obliged to permit
      free flow of goods from other States which is cardinal principle
 G    enshrined in Article 301 and the relaxation to the States has been
      given only on a condition that State imposes taxes both on local
      goods and outside goods. [Para 2211[772-E-H I



 11
      JINDAL STAINLESS r:rD. v. STATE Of HARYANA                        125



      Firm A.TR.Mehtahmajid and Company v. State of                     A
      Madras and 11nother.1· 1963 SCR Suppl. (2) 435; State
      of Madhl'a Pradesh i,: Bhailal Bhai and Others 1964
      (6) SCR 261 -- aflirmed.
       7.1 Imposition of tax only on imported goods when no such
tax is levied on local goods violates Article 304(a). Articles 304(a)   B
and 304(1.>) are joined with conjunction 'and'. According to the
principles of statutory intcq>retation the word 'and' is normally
used conjunctively and word 'or' is normally used disjunctively
hut at times they arc used as vice versa to give effect to the
manifest intention of the Legislation as disclosed in the context       c
of the Legislation. Article 304 is an exemption granted to the
State when State can impose taxes and impose restrictions on
the freedom of trade and commerce which freedom is guaranteed
under Article 301 of the Constitution of India. Article 304 begins
with the words "Notwithstanding anything in Article 301 or Article
303, the Legislature of a State may by law-". Two sub-clauses           D
(a) and (b) are enabling powers given to the State by which taxes
can be imposed on imported goods and rcs_trictions can lie
imposed on the freedom of trade, commerce or intercourse. In
the event, we tend to read conjunction 'and' as 'or' it may mean
that the State may exercise only one of the enabling powers as          E
given in the clauses (a) and (b). It is not the intention of Article
304 to empower the State to only exercise either of the powers,
the clear intendment of the State is that the State may by law
impose on goods imported from other States any tax- clause (a);
and impose reasonable restrictions on the freedom of trade,
                                                                        F
commerce or intercourse with or within that State - clause (b ).
The use of word 'may' in the beginning of Article 304 indicates
that the power is enabling and States are entitled to exercise
either or both the powers as may be required in the facts of the
case. Furthc1; there is no compulsion on the State to exercise
powers given in clauses (a) and (b) both. The State may choose          G
to exercise only power given in clause (a) or power given in clause
(h). (Paras 234, 235, 236 and 238]1779-C, D-E, G; 781-A-E)



                                                                        H
126           SUPREME COURT REPORTS                      [2016] IO S.C.R.


A        7.2 The word 'and' between clauses (a) and {b) has to be
   read as joint and several, both meaning can be assigned as per
   requirement of a State Legislature. With regard to law made by
   State Legislature exercising the power under clause (a) of Article
   304 which does not ii.npose any restriction on the freedom of
R trade, commerce and intercourse need not comply with Article
   304(b). llowever, a law even though may comply with Article
   304(a) but contains restrictions on the freedom of trade,
   commerce and intercourse has to obtain sanction of the President
  ·as contemplated by proviso to clause (b). The requirement of
   obtaining previous sanction of the President has to be decided in
c accordance with the nature and content of the State Legislation.
   Article 304(b) proviso is one of such Constitutional Schemes
   where the State power is restricted and limited to the above
   extent. The Constituent Assembly Debates clearly bring about
   the rationale of introduction of the requirement of Presidential
D assent in respect of certain laws by which State Legislature put
   restriction on the freedom of trade, commerce and intercourse.
   In the Constituent Assembly there was serious objection raised
   against clause (b) of Article 304 and amendment was moved for
   deletion of clause (b) from the Constitution. The above
   amendment after great discussion was negatived by approving
   the limited restraint 1rnt on the State Legislature as cngrafted in
   Article 304(b) proviso. [Paras 240, 24211782-G; 783-D-E; 786-F-
      G]
             7.3 Article 304(a) is only with regard to the imposition of
      tax on goods imported from other States. Article 304(a) does not
 f
      refer to taxes imposed on the local goods. In the event, the State
      Legislature imposes restrictions on the freedom of trade and
      commerce by taxing legislation covering local goods, whether
      the validity of it cannot be tested on anvil of Article 301. Further,
      State in public interest requires imposition of reasonable
 G    restriction by imposing tax on the local goods, what procedure it
      has to follow so as to not impede Article 301. There cannot be
      any dispute that power to legislate including tax legislation is the
      power allocated to State Legislature under the Constitutional
      Scheme under Article 245 and 246. Article 304 is not a source of
 H
      power of legislation by State rather as the heading of the section
      JINDAL STAlNLESS !TD. v. STATE Of HARYANA                       127



indicates that it is a "Restriction on trade, commerce and            A
intercourse among States." Article 304(a) only deals with goods
imported from other States hence for imposing reasonable
restrictions in the pulJlic interest on trade, commerce and
intercourse with regard to local goods, only way out for a State to
save its legislation is to go through the route as provided under     B
Article 304(b). We cannot imagine that merely because State
Legislature has competence to frame tax law with regard to local
goods, it can impose taxes which amoui1t to impeding the freedom
of trade and commerce, whereas the Constitution does not
provide any exemption to State Legislature in that regard. [Para
24911791-B-F']                                                         c
       7.4 A State Legislature in exercise of its legislative power
referable to any of the Entries of List ll can frame law both fiscal
or non-liscal. When Article 304 uses words "by law" and the law
is a wider term which embraces both fiscal and non-fiscal
legislation with regard to clause (b), it cannot be limited as only D
non-fiscal law. If it is held that Article 304(b) does not refer to tax
law, a different meaning would be given to wor.ds "by law" used
in the beginning of Article 304 which governs both clauses (a)
and (b). The mere fact that clause (a) uses the words 'any tax'
and clause (b) does not use the word 'tax' is not of much E
significance since the word restrictions used in clause (b) is wide
enough to cover any kind of restriction by fiscal law. Neither
Article 302 no·r Article 303 uses the word 'tax'. Both Articles
are dealing with freedom of trade and commerce, non-use of word
'tax' in Article 304(b) is also inconsequential. Thus, the word
                                                                        F
'restrictions' under Article 304(b) is vide enough to include
restrictions placed both by fiscal or non-fiscal law. Article 304(b)
operates in a very limited field and plenary legislative power of
the State, in no manner, is restricted by Article 304(b). Thus, the
apprehension that Article 304(b) operates serious restraint on
the legislative power is misplaced. Thus, word 'restriction' as G
used in Part XII I as well as in Article 304(b) at the Constitution
includes tax legislation also. [Paras 251, 253][791-G-H; 792-A-
B, F-GI
      State of Madhaya Pradesh v. Ahdeali 1963 SCR 704 :
      AIR 1963 SC 1237 - distinguished.                                H
             SUPREME COURT REPORTS                     [2016] 10 S.C.R.



A         Union o/ !ndia and others v. Wood Papers Ltd. And
          another 1990 (2) SCR 659 : 1990(4) SCC 256 -
          affirmed.
          Andhra Steel Corpora/ion v. Co11imissioner of
          Commercial Taxes in Karna/aka, 1990 (Suppl.) SCC
B         617; Shree Mahavir Oil Mills and anolher v. Slate of' J
          & Kand others, 1996 (9) Suppl. SCR 356 : (1996) 11
          SCC 39; Weston Electronics and t11101her 1•. State of'
          Gujaral and others 1988 (3) SCH 768 : ( 1988) 2 SCC
          568 - referred to
c
            7.5 For a legislation to be within four corners of 304(a),
     two conditions arc necessary to be fulfilled (1) State can impose
     on goods imported from other States any tax to which similar
     goods manufactured or produced arc subject, (2) so however, as
D    not to discriminate between goods so imported and goods so
     manufactured or produced. The first condition is tbat goods
     manufactured or produced in the State are subject lo tax, when
     exemption is granted in payment of tax to a specified category on
     fullillmenl of certain condition, it pre-supposes that goods are
r:   subject to tax. The exemption granted on a specified class of
     goods, subject to condition, docs not militate against the tax to
     which the goods arc subject. Thus in cases of grant of exemption
     to a specified category on conditions mentioned therein, first
     condition as noted above is not breached. Now coming to the
     second condition i.e. so, however, as not to discriminate goods
F    expo1·ted and goods locally manufactured or produced. Goods
     exempted fall in a different category then the bulk of goods
     produced and manufactured in the State. Exemptions under
     different statutes have been upheld due to legislative policy i1s
     delineated in a particular statute. [Para 277][808-G-H; 809-A-C]
G          7.6 The exception carved out in Video Electronics upheld
     exc1J1pt.ion notification where it is limited to specified type with
     short pe.-iod. The gcncrnl exemption and exemption in wider term
     has never hccn approved. The ratio of Video Electronics has to
     he read as justifying only exemption limited to a specified category
II
       JINDAL STAINLESS LTD. v. STATE OF l-IARYANA                        129



for a short periocl. Exemption in general terms of unlimited in           A
nature cannot he approved. The exemption cannot he usecl as
measure of cliscrimination between goocls imported from other
States ancl goocls manufactured or proclucecl in the State. The
exemption has to he a limitecl exemption to the tax which is
imposecl on the similar goocls. In the event exemption is total           B
ancl general in nature, the said exemption is clearly violative of
Article 304(a). Similarly, set off of a particular tax which is general
ancl not limited to specified category has also to be clisapprovecl.
State Legislature in exercise of its· taxing power can grant
exemption/set off to local goocls, only to a limited extent hasecl
on intelligible clifferentia which is not in the nature of general/       c
unspecifiecl exemption. The exemption/set off which tend to
become general exemption violates Article 304(a). [Paras 279,
28011810-F-H; 811-A-BJ

                                                                          D
      Videv Electrvnics Pvt. Ltd. And anvther v. State uf
      Punjab and anuther 1989 (2) Suppl. SCR 731 : (1990)
      3 SCC 87 - Clarified.


      Entry 52 of list II of VII th schedule of the Constitution          E
      8.1 Legislative fielcl uncler State List, Entry 52 is 'taxes on
the entry of goods into a local area for consumption, use or sale
therein'. The Entry 52 itself clemonstrate that there are inherent
limitations as regarcl the nature ancl character of the levy. In orcler
to have a levy of tax to come within the purview of Entry 52, such        F
levy has to satisfy three conclitions: (I) The levy uncler the State
Entry must be 'on the entry of goods' which constitutes the
taxable events. (ii) The levy in question must be in respect of
'into a local area'. The local area has been defined as ' an area
aclministered by local body like a municipality, a clistrict board, a     G
local boarcl, a union board, a panchayat or the like'. (iii) The goods
must enter into the local area for the purpose of 'consumption,
use or sale therein'. [Para 281 ][811-D-F)


                                                                          1-1
130            SUPREME CC"_;RT REPORTS                   [2016] 10 S.C.R.


/\          8.2 The cx1Jrcssion Entry Tax has to be understood in its
      plain meaning and ulso in the backdrop -0f historical imposition of
      taxes of this kind. The tax commonly known as octroi was in
      force in 190 l and j( was subsequently included in VII'h Schedule
      of Lisi II of Government of India Act, 1935. The Constitution of
      India docs not use the word octroi. List I Entry 89 provides for
      'terminal tax on goods and passengers carried by railways, sea
      or air; taxes on railway fares and flights'. Taxes levied under
      Entry 52 is commonly known as entry tax. While noticing the
      Constituent Assembly debates, it is seen that freedom of trade
      and commerce was envisaged as freedom from border taxes,
c     custom barriers etc., which was prevalent in Indian States. Section
      297 of 1935 Act had contained a prohibition for imposing taxes
      on entry of goods from other States. The Constitution framers
      decided that States have to be conceded some taxing powers for
      revenue 1rnrposes and for purpose of carrying out various
D     development pro.iects. Article 301 provides freedom of trade,
      commerce and intercourse throughout the territory of India,
      simultaneously, exception to such freedom have been engrafted
      in Article 302 - 306. jParas 282, 283J[811-G-H; 812-A-C]
             8.3 The Ent1·y Tax is related to movement of goods.
      Movement of goods have been treated to be an integral part of
      trade and commerce. A law, made under the subject matter of
      f<:ntry 52 List 11, would thus clearly be a tax on the movement of
      goods and thus would fall within the purview of the inhibition of
      Article 301 and the said law can only be saved if it complies with
      the Article 304. It is well settled that there is a clear distinction
 F
      between incidence of a levy and the machinery provisions
      contained in law to give effect to such levy. The incidence of levy
      is on entry of goods hence incidence of tax is complete as the
      goods enters into the local area, whether the tax is collected
      immediately or subsequently has no relevance with the incidence
 G    of taxation. !Paras 285, 28711812-D; 813-C, El


            State ol Kamataka v. Hansa Corporation 1981 (1)
            SCR 823 : 1980 4 SCC 697 -- referred to.
H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                      131



       8.4 The trade and commerce being contemplated to be free A
throughout the territory of India, any restriction on movement of
goods per .se has to be treated as violating Article 301 unless the
tax is saved by exceptions provided in Part XIII. However, there
may be a tax which though complies Article 304(a) but still contains
the restriction to trade and commerce which is an area where B
much difficulty has been felt. All taxes which comply with Article
304(a) need not to be routed through Article 304(b) and it is only
those taxes which contain restrictions on trade, commerce and
intercourse which need to be routed through 304(b). This can be
demonstrated by taking a simple example. An Entry tax legislation
is passed complying Article 304(a) levying Entry Tax on goods c
imported from outside the State as well as local goods at the rate
of one percent of value of goods. Normally, such levy cannot be
treated as any restriction on the trade and commerce and shall
1iass muster of Article 304(a) and need no compliance of Article
304(b). But in a case wliere, Entry Tax is levied to the extent of D
hundred per cent of the value of goods both on imported goods
and locally produced or manufactured goods, the said levy is clear
restriction on trade and commerce and has to be routed through
Article 304(b). For taking out such levy, from the effect of Article
301 both 304(a) and 304(b) needs to be complied with. Entry
                                                                     E
Tax legislation which is a tax on movement of goods, trade and
commerce is inhibited by Article 301 and such State legislation
can be saved under Article 304. Whether a particular Entry Tax
Legislation is valid and docs not contravene Part XIII of the
Constitution, can be decided only after looking into the nature,
content and extent oflcgislation and its impact on trade, commerce F
and intercourse. [Paras 288, 289][813-F-H; 814-A-D]


      Meaning of "restriction" as used in Part XIII
      9.1 Freedom of trade, commerce and intercourse
                                                                     G
throughout the territory of India is guaranteed under Article 301.
The framers of the Constitution were conscious that the freedom
cannot be absolute and it may be necessary in several
circumstances to restrict the freedom in public interest. Article
302 - 306 enumerates exceptions to the freedom as guaranteed
                                                                     H
132            SUPREMF COl !RT REPORTS                     12016] JO S.C.R.



A     under Article 301. What is the meaning and contents of word
      'restriction' as used in Part Xlll? The word 'restriction' has
      also been used under Article 19 (2) to 19 (6) while empowering
      the State to impose reasonable restrictions on the fundamental
      rights guaranteed under Article 19(1) (a) to 19 (1) (g). The
      restriction thus is an act to limit, confine and restrain. The
      'restriction', in Part XHI has been used in the context of
      restriction to freedom of trade, commerce and intercourse. The
      law, which restrict or limit such right are called restrictions. !Paras
      290, 29211814-E-F; 815-CI

c
            illdia11 Cement and Others v. State o( Andhra Pradesh
            1988 (2) SCR 574: 1988 1 SCC 743 - referred to.
            New Webster Dictionary; The Black's Law Dictionary
            -- · referred to.
I)


            9.2 Article 302 - 306 contain provisions, by which
      restriction can he put on the freedom of trade and commerce.
      Some restrictions have been expressly mentioned in said articles.
      Article 303 provides for 'restrictions on the legislative powers
      of the Union and of the States with regard to the trade and
      commerce'. As per Article 303, sub-article Clause I following
      arc treated to be restrictions:- (i) Any law giving or authorising
      the giving of any preference to one State over another, (ii) Any
      law making or authorising the making of, any discrimination
      between one State and another. Thus preferences and
      discrimination both are treated as restriction in the context of
      freedom of trade and commerce. Coming to Article 304(a) any
      law framed by legislature is restriction on freedom of trade and
      commerce which:- a). Imposes on goods imported from other
 G    Slate, any tax when no such tax is imposed on similar goods
      manufactured or produced in that State, b). Imposes on goods
      imported from other States any tax which discriminates between
      goods so imported and goods so manufactured or produced.
      !Paras 294, 29511816-C-H]

 H
      JINDAL STAINLESS lTD. v. STATE OF HARYANA                     133



       9.3 Again in Article 304 sub-clause(b) State is empowered A
to impose reasonable restrictions in the public interest. Article
306, as it was initially enacted, contained heading 'power of certain
States in Part B of the Schedule to impose restriction on trade
and commerce'. Article 306 permitted any tax on duty on import
of goods into the State from other States or on the export of goods
                                                                      B
from the State to another States which was being imposed by a
State specified in Part B to continue by an agreement between
Government of lndia and Government of States for a period, not
exceeding ten years. The article contemplates continuance of
tax or duty which was treated to be 1·estriction and was allowed to
continue only with an agreement for a maximum period of ten c
years. The restriction which can be imposed, as contemplated by
above provisions of law, have to be such limitation on the right of
 freedom of trade and commerce which should not be arbitrary or
of excessive nature beyond what is required in the context of the
 power. ll'aras 296, 298] 1817-A-C, l~I                               D


      Slm:e Mahavir Oil Mills and Another i: State of Jammu
      & Kashmir and Others 1996 (9) Suppl. SCR 3S6 : 1996
      11 SCC 39; State of Madras v. V G Row 19S2 SCR
      607; Keshav Mills Co. Ud. v. CIT 196S SCR 908 :                E
      AIR 1965 SC 1636; K. K. Koch11ni and Others v. State
      nl :\!ladros and Others. (1960) 3 SCR 887; K. T. Moopil
      Nair ''- State of Kera/a and Others (1961) 3 SCR 77;
      Godlrey Philips India Ltd v. State of UP 200S (1)
      SCR 732 : (200S) 2 SCC SIS; Maharaj Umeg Singh                 F
      and others v. The State of Bomhav and others (19SS) 2
      SCR 164; State of Madras v. N.K. Nataraja Mudaliar
      1968 (3) SCR 829; ITC Ltd. v. State of Tamil Nadu and
      Others 120071 7 VST 367; Madras; Kaiser-I-Hind Pvt.
      Ltd. and another i-: National Textile Co17m. (Maharashtra
                                                                     G
      North) Ltd. and others 2002 (2) Suppl. SCR SSS : (2002)
      8 sec 182 - referred to.



                                                                     H
134           SUPREME COURT REPORTS                     [2016] IO S.C.R.


A            9.4 Allhough the word 'restriction' may also in certain
      circumstances includes prohibitions but restriction is not to be
      understood with complete prohibition or stopriage of business,
      effect of tax when it hinders the trade & commerce, it becomes
      restriction and prohibited under Article 301. The issue as to
 B    whether the restriction contained in any taxing statute impede
      the freedom of trade and commerce is a question which will vary
      from case to case. The nature of restriction and the magnitude
      of the restriction are all relevant factors to determine whether
      trade is impeded or not. It is well settled that provisions in a
      statute which is regulatory in nature which facilitates the trade
 c    have not been treated as restriction impeding the freedom of
      trade and commerce. Traffic regulations, registration of motor
      vehicles for plying in the State, collection of toll have not been
      treated to be restriction in freedom of trade and commerce. [Paras
      299, 30311818-A; 820-D-FJ
 I)


            /"axmi Khandwri Etc. v. State of U.P 1981 (3) SCR 92;
            G. K. Krishnan and Others v. State of Tamil Nadu and
            Others 1975 (2) SCR 715 : (1975) 1 SCC 375;
            Federation of Hotel and Restaurant Association of India,
 E          Etc. v. Union of India and Others 1989 (2) SCR 918 :
            (1989) 3 sec 634 - referred to.


             9.5 What has been expressly prohibited in Article 302 -
      306 arc all restrictions in the freedom of trade and commerce
      which shall obviously contravene Article 301, bnt there may be
      other instances when a law is treated to be restriction although
      not expressly enumerated in Part 302 to 306. Article 301 is not
      attracted in a legislation which does not contain any kind of
      restriction to the freedom of trade and commerce. The question
 G    of applicability of Part XIII arises only when the legislation
      contains restrictions which hamper, restrict, impede and
      adversely affect the freedom of trade and commerce directly &
      immediately. !Para 304)1820-F-H I

 H
      JINDAL STAINLESS LJ'D. v. STATE or HARYANA                     135



     Whether 'direct and immediate effect test' as laid down in      A
Atiabari and approved in Automobile Transport is no longer a
correct test
        10.1 Our Constitution framers were well aware of the
provisions of the Australian Constitution and the difficulties which
arose in the Australia and different views expressed on the B
interpretation of Section 92, the Constitution framers though took
inspiration from Section 92 but they did not stop there, rather
they expressly provided for qualification to the right and freedom
guaranteed under Article 301 by Article 302 - 306. In Atiabari in
all the three opinions expressed by Sinha, C.J., and C
Gajendragadkar, J., and Shah, J., it was noted that in our
Constitution, there is a departure from A.ustralian Constitution
and the Australian judgments are not relevant. .Justice
Gajendragadkar, has referred to two Privy Council judgments
dealing with Australian Constitution to know how judicial minds
have resrwnded to the challenge presented by similar provisions. D
In the above spirit, references of those two Privy Council
judgments were made. Thus Gajendragadkar, J., did not base his
judgment on the test, which was laid down in the Australian
judgments but found justification for his conclusion from the
aforesaid judgments. Further, the primary reason why the E
Australian High Court in Cole Vs. Whitfield rejected the 'trade
and immediate effect test' is, that because the freedom guaranteed
 under Section 92 applies only "between the States" i.e. to the
 interstate trade, i.e., The doctrine accordingly ended up
discriminating against intrastate trade as it 1>rovided some sort
                                                                       F
of immunity to interstate transactions which intrastate transaction
 did not enjoy. In Part Xlll of the Constitution, the Constitution
 framers had provided for non-discriminatory taxation between
the intrastate and interstate trade with provision for dealing with
 all situation including a case whether restriction has to be imposed,
 on both interstate or intrastate trade that is Article 304(b). G
 Although the Australian High Court rejected the idea of 'direct
 and immediate effect test' as being artificial, this Court has
 continued to adopt the said doctrine whenever legislation is
 decided on the touchstone of reasonable restriction and the
 doctrine has been applied consistently in the vast number of cases H
Ll(i           SUPREME COURT REPORTS                      12016) 10 S.C.R.


A      for decades which have stood the test of time. [Paras 312,
       31311824-F:-F; 825-A-F]
             10.2 The commerce class of the American Constitution
       Article I, Section 8, Clause 3 provides "to regulate commerce
       with foreign nations and among the several States and with the
 f3    Indian tribes;" Part Xl!J of the Constitution has not adopted the
       American model and the interpretation on the commerce class is
       hardly relevant for interpretation of Part XUI. Non-discriminatory
       taxation by State in reference to interstate and intrastate trade is
       ingrained in Article 304(a) itself, and no abstract theory needs to
 C     he referred to for following Non-discriminatory Theory. I Paras
       314, 3151[826-B-Ci
             10.3 The concept as evolved in Australia and America with
       regard to freedom of trade and commerce, cannot be adopted in
       respect of interpretation of our Constitution, despite arguing
 D     against the relevance of foreign judgments, the States themselves
       arc now relying on the foreign .iudgmcnts in context of 'direct
       and immediate effect test theory'. The change in the legal position
       in Australia and America does not have any bearing on the Indian
       legal position as our Constitutional framework is different from
       those countries. No hard and fast formula can be laid clown to
       determine as to whether a particular legislation/taxation violates
       rights of freedom of trade and commerce under Article 301. It is
       for the Court to examine facts of each case and come to a
       conclusion. The submission for the State that 'direct and
       immediate effect test' is no longer a correct test, cannot be
 i:    accepted. Each case has to he determined on facts of each case.
       The 'direct and immediate effect test' as laid down in Atiabari
       and approved in A11to111obile Tramport still holds good. [Paras 316,
       317, 3181[826-D-E, F; 828-A-BI
             James v. Commonwealth al Australia (1936) AC 578;
             Co11mw1111:ealth of' Australia and Others v. Rank ol New
             SOLtlh Wales and Another (1950) AC 235; Cole v.
             Whirfie!d (1988) 78 ALR 42; S]Jector Morar Services.
             Inc. i·. q "Connor 430 US 289 (1951); Complete Auto
             fransir v. Bradr 430 US 274 (1977); Stale of' Marv/and
             1: Stale ol J,011isia11a 451 US 725 - referred to.
 1-1
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                           137


      Compensatorv Tax Theory                                             A
      11.1 Can a tax which is compensatory in nature lllso fall
foul Article 301 of the Constitution '!" and "What are the tests
for determining whether the tax or levy is compensatory in
nature'"? It is an accepted proposition that one of the
characteristics of tax is that it is an imposition made for public        B
purpose without reference to any special benefit to be conferred
on the payer of the tax. The taxes imposed by the Legislature,
apart from being source of Revenue is also expended for various
public welfare measures and when it's object is in no way
connected with the public interest or public welfare it loses its         C
character of taxation, becomes a levy which is unconstitutional.
[Paras 319, 325][828-C; 831-B-C]


      Khyerbari Tea Company Ltd. v. State ()f Assam (1964) 5
      SCR 975; Co111111issione1~ Hindu Religious Endowme11ts.             D
      A1adras v. Sri Lakshmindra Thirtha Swamiar ()f Sri
      Shina· Mutt, 1954 SCR 1005 : AIR 1954 SC 282-
      referred to.
      M"Culloch v. Stale of Maryland. 17 US 316 (1819);
      Duncan v. The State 4 Quee11sla11d, (1916) 22 CLR                   E
      556; Mc Carter v. Brodie, (1950) 80 CLR 432; Hughes
      a11d Vale Proprietwy ltd. v. State of New South Wales,
      (1955) AC 241; Armstrong v. State <~l Victoria .Vu.2,
      (1957) 99 CLR 28; Co111111011wealth ()/" Austrulia v. Bunk
      of New South Wales (1950) AC 235; Commonwealth                      F
      Freighters Property ltd. v. Sneddon (1959) 102 CLR
      280; Duncan and Others 1'. State of Queensland and
      Another (1916) 22 CLR 556. AfcCarter and Another 1~
      Brodie, (1950) 80 CLR 432; Hughes and Vale
      ProprietmJ1 Ltd v. State <if ,'Vew Solllh Hides and Others
      [1955) AC 241 - referred to.                                        G



      11.2 Law of compensatory charge as developed in Austrnlia
was clue to the fact that Section 92 dicl not contain any qualification
                                                                          H
             SUPREME COURT REPORTS                       [2016] IO S.C.R.


A    to !he absolute freedom of trade and commerce granted therein.
     Various qualifications and restrictions to the above freedom were
     culled out by judicial decisions of the High Court of Australia and
     Privy Council to justify the said qualifications and restrictions.
     The ratio contained in various judgments of the High Court of
B    Australia and the Privy Council on Section 92 of the Constitution
     of Australia cannot be a guiding factor for interpreting Part XIII
     of the Constitution of India. [Para 350][845-F-G]


           Co111111omrea!th of Australian and Others v. Bank of Nett:
C          South Wales and Others [19501 AC 235; Hinson v. Lott,
           8 Wall, 75 US 148 (1869); Harold H. Henneford et al.,
           v. Silas Mason Company, Inc. 300 US 577; Associated
           industries Of Missouri, et al., v. Janette M. Lohman 128
           L Ed 2d 639; Oregon Waste s:vsrems v. Department oj'
!)         Enl'iro11111e11tal Quality of the State of Oregon 511 US
           93 (1994); Fulton Corporation v Jenice H. Folk11e1;
           Secrelm:v of Revenue of North Carolina 516 US 325,
           133 L Ed 2d 796 - referred to.


r          11.3 The answer to the question as to whether a
     compensatory tax is out of reach of Article 301 has to be found
     out from the Scheme of Part Xlll of the Constitution itself and
     not from the theory of compensatory charge as evolved in
     Australia or United States of America. Two fundamental principles
F    of taxes are: (i) that it is an imposition made for public purpose,
     (ii) without reference to any special benefit to be conferred on
     the payer of the tax. [Para 3541f848-f:-FJ
           Stale of Bomhay v. R. M.D. Chamarhaugivala and
           another 1957 SCR 874 : AIR 1957 SC 699 - relied
G          on.


          11.4 The compensatory doctrine evolved in Automobile
     Transport is that compensatory tax is to compensate for facility
     extended, for example, wear and tear of the Road. The
H
      JINDAL STAINLESS r;ro. v. STATE OP HARYANA                       139


compensatory tax can be imposed only for public purpose which A
fact is not denied by any of the parties. Can it be said that a tax
which is a compensatory in nature need not to be subject to
restriction as contained in part Xill ? If it is accepted that once a
tax is held compensatory tax it goes out of reach of Part Xlll, it
will be carving a new exception to Article 301 which is not B
contemplated in the constitutional scheme. The framers of the
Constitution after providing for freedom of trade, commerce and
intercourse in Article 301 laid down exceptions to the said
freedom in Article 302 to 306. The exceptions laid down in the
constitutional scheme arc self-contained and no new exception
can be added by judicial interpretation. Can a compensatory tax c
 not impede trade, commerce and intercourse even if it is a non-
discriminatory tax ? For example, Entry Tax is imposed on
 vehicles carrying goods in a local area to the extent of 50% of
 the value of goods, the statute further declares that entire amount
 received from tax will be expen"ded for providing facilities to the ])
 entrants in the local area, i.e., on roads, lights, free fooding, free
 lodging, facility for free servicing, repairs of the vehicles, etc.etc.
 Can the mere fact that entire amount collected is expended for
 providing facilities shall take out the statute from the scrutiny of
 Part XIII ? Answer has to be in negative. The fact that a tax
                                                                         E
 statute compensates the payer of the tax does not take out the
 statute beyond Part XIII, all taxes, being for one or other public
 purposes. The tax legislation which professes to compensate the
  payer cannot take the tax legislation on a higher pedestal beyond
 the reach of Part Xlll, making such legislation "not subject to
 Constitution". When all legislative power is "subject to p
 Constitution" as per Article 245 and 246 of the Constitution, a
  legislation, namely, compensatory tax legislation cannot be said
  to be beyond Part XHI. Any such interpretation is clearly against
  the constitutional scheme. Thus the judgments of the High Court
  of Australia and the Privy Council relied in Automobile Transport G
  did not furnish a foundation for evaluation of compensatory tax
  theory in part XIII of the Constitution. [Paras 355, 3561[848-G-
  H; 849-A-.Fl
      12. The scheme of Constitution of India indicates that
 wherever it was contemplated to insulate any provision from            H
140               SUPREME COURT REPORTS                     [2016] JO S.C.R.


A        challenge, expressed provisions have been made to provide for
         such insulation. Article 31 B is one of such examples which
         provides that none of the Acts and Regulations specified in IXth
         Schedule shall be deemed to be void or ever to have become
         void on the ground of such Act, Regulation or provision is
         inconsistent with or lakes away or abridges any of the rights
B
         conferred by Part Ill. The Constitutional Scheme as delineated
         by Part XIII docs not indicate that a particular type of legislation,
         i.e., compensatory tax is out of Part XIII. Reading any such
         protection to compensatory tax legislation is against the
         constitutional provision. The compensatory theory as evolved in
c        A11to111obile 'J'ramport is not compatible to the constitutional
         scheme and a compensatory tax legislation cannot be insulated
         from challenge under Part XIIJ of the Constitution. It is always
         open to scrutinize the true nature and character of legislation to
         decipher as to whether it contains any restriction on freedom of
])       trade, cornmei-cc :rnd intercourse violating Article 301. A
         legislation which is compensatory in nature may shed light while
         determining whether it contains restriction on trade, commerce
         and intercourse or facilitate the trade, commerce and intercourse.
         But all legislations be it a compensatory tax legislation or
         otherwise has to be tested in accordance with provisions of Part
         XJII of the Constitution. The ratio of judgment of Automobile
         Transport is overruled in so far as it lays down that the
         compensatory tax legislations are out of part XIII of the
         Constitution. !Paras 357, 3581[849-G-H; 850-A-D]

 F
               .ltialwri Tea Co. Ud. v. State of .1.ssam & Ors. 1961
               SCR 809; Automohile Jhmsport (Rajasthan) Ltd. etc.
               v. State of Rajasthan & Ors.1963 SCR 491 - Partly
               ove1..-ulecl.
 (".'J         Jindal Stripe Ltd. and Am'. \'. State of Harvana and Ors.
               2003 (4) Suppl. SCR 154 : (2003) 8 SCC 60; Jindal
               Stainless Ltd (2) and Aw v. State ofHarvana and Ors.
               2006 (3) SCR 1095 : (2006) 7 SCC 241; Jindal Strips
               Umited v. State of Harvana 2006 (3) Suppl. SCR 569
 H
     JINDAL STAINLESS LTD. v. STATE OF HARYANA                   141



     : 2006 (7) SCC 271; Jaiprakash Associates Limited v.        A
     State (?f Madhya Pradesh and Ors. 2008 (17) SCR 1282
     : (2009) 7 SCC 339; Jindal Stainless Limited and Am:
     v. State of Haryana and Ors. 2010 (4) SCR 743 : (2010)
     4 SCC 595; Mis. Rhagatram Rajeev Kumar v.
     Commissioner uf Sales Tax. MP. and Ors. 1994 (6)            B
     Suppl. SCR 91: 1995 Supp (1) SCC 673; Slate ofBihar
     and Ors. v. Bihar Chamber of Commerce and Ors. 1996
     (2) SCR 1S4 : (1996) 9 SCC 136 - referred to.
                       Case Law Reference
    Per T.S. Thakur, C.JI (for himself and A.K. Sikri and A.M.   C
Khanwilkar, .JJ.)


  1961 SCR S09                overruled             Para2
  1963 SCR 491                overruled             Para2
                                                                 D
  1994 (6) Suppl. SCR 91      referred to           Para2
  1996 (2) SCR 1S4            referred to           Para2
  2003 (4) Suppl. SCR 154 referred .to              Para3
  200S (17) SCR 12S2          referred to           Para 7
                                                                 E
  2010 (4) SCR 743            referred to           Paras
  1965 SCR 90S                referred to           Paras
  1975 (2) SCR 715            referred to           Para S
  1992 (1) SCR 6S6            referred to           Para 11
  2002 (3) Suppl. SCR 5S7 referred to               Para 11      F
   1979 (l) SCR 26            referred to           Para 11
  1973 Suppl. SCR I           referred to           Para 11
  1963 SCR 220                relied on             Para 15
  2000 (3) SCR 509            relied on             Para 16      G
  . 2009 (S) SCR 9S3          relied on             Para 17
   19S3 (3) SCR 130           affirmed              Para 19
  2004 (1) SCR 564            relied on             Para 19
                                                                 H
142        SUPREME COURT REPORTS             [2016) 10 S.C.R.


A     2012 (4) SCR 448        relied on         Para 19
      1989 (1) Suppl. SCR 623 relied on         Para 20
      1955 SCR 164            affirmed          Para 28
      1966 Suppl. SCR 81       affirmed         Para 28
R     1994 (2) SCR 644         relied on        Para 33
      2006 (5) Suppl. SCR 1   referred to       Para 34
      1965 SCR 413            relied on         Para 36
      1958 SCR 1422            relied on        Para 38

c     AIR 1991 Patna 75        referred lo      Para 63
      1954 SCR 1005            referred to      Para 64
      1954 SCR 1046           referred to       Para 64
      1961 SCR 537             referred to      Para 64
      1965 SCR 477             referred to      Para 64
D
      1979 (3) SCR 1217        referred to      Para 64
      1994 (5) Suppl. SCR 392 referred to       Para 64
      2004 (3) SCR 956         referred to      Para 64
      2004 (1) SCR 564         referred to      Para 64
 E
      1987 (2) SCRl            relied on        Para 74
      2002 (1) SCR 441         relied on        Para 81
      1981 (2) SCR 364         relied on        Para 83
      1951 SCR 127             relied on        Para 92
 F    1961 SCR 77              relied on        Para 94
      AIR 1955 SC 3            relied on        Para 95
      1963 SCR 778             referred to      Para 95
      1968 SCR 829             relied on        Para 112
 G    1963 SCR 220             referred to       Para 116
      1989 (2) SCR 918         referred to      Para 116
      AIR 1959 SC 894          referred to       Para 116
      1980 (1) SCR 804         referred to       Para 116
H
   ,tNDAL STAINLESS LTD. v. STATE OF HARYANA                    143


1996 (8) Suppl. SCR 947 referred to             Para 116        A
2006 (3) SCR 1095           overruled           Para 126
(t 996) 2 sec 39            distinguished       Para 130
1989 (2) Suppl. SCR 731 affirmed                Para 131
1952 SCR 435                affirmed            Para 132        B
1996 (10) Suppl. SCR 585 referred to            Para 137
1963 SCR 809                referred to         Para 138
1977 (l) SCR 1065           referred to         Para 139
1983 (2) SCR 1009           referred to         Para 140
                                                                c
(1966) 1 SCR 865            held inapplicable   Para 122


Per S. A. Bobde, J.

                                                                D
1961 SCR 809                referred to         Para3


Per Shiva Kirti Singh, J.

                                                                E
1961 SCR 809                Not good law        Para3
1963 SCR 491                Not good law        Para3


Per N. V. Ramana, J.
                                                                F
1961 SCR 809                Not good law        Para 1.1
1963 SCR 49                 Not good law        Para 1.1
1975 (2) SCR 715            reforrecl to        Para 1.1
1994 (6) Suppl. SCR 91      referred to         Para 1.1        G
1996 (2) SCR 184            referred to         Para 1.1
2006 (3) SCR 1095           referred to         Para 1.1
2008 (17) SCR 1282          referred to         Para 1.1, 2.1
                                                                H
144        SUPREME COURT REPORTS             [2016] 10 S.CR.


A     2010 (4) s.c.c 595       referred to      Para 1.1, 2.1
      [20031 129 S.T.C 534     referred to      Para 1.2
      2003 (4) Suppl. SCR 154 referred to       Para 2.1
      2006 (3) Suppl. SCR 569 referred to       Para 2.1
B     (2009) 21 V.S.T 10 (P&H) referred to      Para 2.1
      1964 SCR 787             referred to      Para 2.2
      1965 SCR 908             referred to      Para 2.2
      2004 (6) Suppl. SCR 1054 referred to      Para 2.2

c     1964 SCR 99              referred to      Para 4.2
      1967 SCR 762             referred to      Para 4.2
      1966 SCR 744             referred to      Para 4.2
      1967 SCR 170             referred to      Para 4.2
      1970 (3) SCR 530         referred to      Para 4.2
D'
      1971 (3) SCR 9           referred to      Para 4.2
      1973 Suppl. SCR 1        referred to      Para 4.2
      1975 (1) SCR 173         referred lo      Para 4.2
      1992 Supp. (3) S.C.C 215 referred to      Para 4.2
E
      1993 (3) SCR 669         referred to      Para 4.2
      (1994) 3 S.C.C J         refened to       Para 4.2
      1996 (10) Suppl. SCR 585 referred to      Para 4.2
      1996 (10) Suppl. SCR 472 referred to      Para 4.2
F     2002 (3) Suppl. SCR 587 referred to       Para 4.2
      2007 (1) SCR 706         referred to      Para 4.2
      1987 (2) SCR 1           referred to      Para 5.1
      1939 FCR 18              referred to      Para 5.2
G     1986 (1) SCR 399         referred to      Para 5.3
      1981 (I) SCR 206         refetTed to      Para 5.4
      11964] I SCR 371         referred to      Para 5.8
      [19781 2 SCR 1           referred to      Para 5.8
H
   JINDAL STAINLESS LTD. v. STATE OF HARYANA         145


1965 SCR 413             referred to   Para 5.8      A
2002 (1) SCR 441         referred to   Para 5.8
1973 Suppl. SCR 1        relied on     Para 5.8
2004 (1) SCR 564         referred to   Para 5.8
1963 SCR 220             referred to   Para 6.1      B
2000 (3) SCR 509         referred to   Para 6.1
2009 (8) SCR 983         referred to   Para 6.1
(1921) 62 S.C.R 424      referred to   Para 7.27
(1964) 5 SCR 975         referred to   Para 7.35
                                                     c
1980 <4) sec 463         referred to   Para 7.38
1955 SCR 164             referred to   Para 7.40
1958 SCR 1422            referred to   Para 7.40
1989 (2) Suppl. SCR 731 affirmed       Para 8.16
                                                     D

Per R. Banumatbi, J.


2003 (4) Suppl. SCR 154 referred to    Para5
                                                     E
2008 (17) SCR 1282       referred to   Para6
2010 (4) SCR 743         referred to   Para 6
2011 (13) SCR 636        referred to   Para 13, 30
2012 (4) SCR 448         referred to   Para 14
1973 Suppl. SCR 1        followed      Para 31       F

1992 (1) SCR 686         relied 011    Para 31
2002 (3) Suppl. SCR 587 relied on      Para 32
(1963) l SCR 220         relied on     Para 38
2004 (1) SCR 564         relied on     Para 39       G
1990 (1) Suppl. SCR 381 relied 011     Para 39
(1991) 4 sec 139         relied ou     Para 39
1992 (2) SCR 13          relied on     Para 39
                                                     H
146        SUPREME COURT REPORTS             [2016] 10 S.C.R.


A     2000 (3) SCR 509        relied on         Para 39
      1989 (2) SCR 880        referred to       Para 41
      1955 SCR 164            referred to       Para 43
      1985 (2) SCR 287        affirmed          Para 50
B     1988 (2) SCR 49         affirmed          Para 51
      1994 (1) SCR 682        affirmed          Para 51
      (1964) 1 SCR 897        relied on         Para 56
      1966 SCR 22             relied on         Para 57

c     1954 SCR 1005           relied on         Para 60
      1995 (5) Suppl. SCR 110 relied on         Para 60
      2004 (3) SCR 956        relied on         Para 60
      1989 (2) SCR 918        relied on         Para 61
      1989 (2) SCR 893        relied on         Para 62
D
      1961 SCR 809            overruled         Para 64
      (1963) 1 SCR 491        overruled         Para 67
      2013 (13) SCR 464       relied on         Para 91
      1950 SCR 88             relied on         Para 92
E
      (2002) 8 sec 182        affirmed          Para 100
      1963 SCR Suppl. (2) 216 referred to       Para 106
      119611 3 SCR 242        referred to       Para 109
      1995 (2) SCR 900        referred to       Para 109
f     1988 (2) SCR 574        referred to       Para 123
      1988 (3) SCR 768        referred to       Para 124
      1997 (1) SCR 914        not good law      Para 125
      1989 (2) Suppl. SCR 731 affirmed          Para 127
G     (1952) SCR 435          affirmed          Para 137
      1996 (9) Suppl. SCR 356 not good law      Para 139
      1999 (5) Suppl. SCR 428 affirmed          Para 140
      1963 Suppl. SCR 435     referred to       Para 140
H
   JINDAL STAlNLESS LTD. v. STATE OF HARYANA       147


(1968) 3 SCR 829         referred to    Para 140   A
(1966) 1 SCR 865         not good law   Para 146
1970 (1) SCR 700         referred to    Para 147
AlR 1942 FC 33           relied on      Para 162
AIR 1945 PC 98           referred to    Para 163   B

1950 SCR 15              referred to    Para 164
2005 (2) SCR 1038        relied on      Para 165
1983 (3) SCR 130         relied on      Para 166
2004 (1) SCR 564         relied on
                                                   c
                                        Para 166
AIR 1942 FC 33           relied on      Para 169
AIR 1951 SC 318          relied on      Para 169
(1954) SCR 53            relied on      Para 169
                                                   D
1984 (2) SCR 664         relied on      Para 170
1975 (2) SCR 715         referred to    Para 181
1981 (2) SCR 364         referred to    Para 182
1996 (2) SCR 184         affirmed       Para 184   E
2015 (9) SCR 148         referred to    Para 186
1994 (5) Suppl. SCR 392 referred to     Para 186
1990 (2) SCR 13          referred to    Para 186
2006 (3) SCR 1095        overruled      Para 191   F
1994 (6) Suppl. SCR 91   affirmed       Para 191
(1990) 1 sec 109         referred to    Para 194
1999 (1) Suppl. SCR 146 referred to     Para 194
1996 (10) Suppl. SCR 585 relied on      Para 196   G

2005 (1) SCR 732         relied on      Para 197



                                                   H
148        SUPREME COURT REPORTS                  [2016) I0 S.C.R.


A     Per Dr. D. Y. ehandrachud, J.


      1975 (1) SeR 173          cited                Para 1
      1992 Supp. (3) sec 215    cited                Para 1
B     1993 (3) SCR 669          cited                Para 1
      (t 994) 3 sec 1           cited                Para I
      (1994) 5 sec 54           cited                Para 1
      1996 (10) Suppl. SCR 585 cited                 Para l

c     1998 (2) Suppl. SCR 400 cited                  Para 1
      2007 (1) SeR 706          cited                Para 1
      (1961) 1 SCR 809          partly affirmed      Para 35
      (1963) 1 SCR 491          partly affirmed      Para 35
      (1964) 5 SeR 975          referred to          Para 77
D
      1972 (2) SCR 853          referred to          Para 82
      1975 (2) SCR 138          referred to          Para 82
      1975 (2) SCR 715          referred to          Para 84
      1981 (2) SCR 364          referred to          Para 83
E
      1983 (2) SCR 1009         referred to          Para 82
      1983 AIR 1283             referred to          Para 82
      1983 (3) SeR 624          referred to          Para 82
      1988 (2) Suppl. SCR 482 referred to            Para 82
F     1994 (6) Suppl. SCR 91    referred to         · Para 89
      1981 (I) SCR 823          referred to          Para 90
      1996 (2) SCR 184          referred to          Para 91
      l 989 (1) Suppl. SCR 692 referred to           Para 91
G     2003 (4) Suppl. SCR 154 referred to            Para 93
      2006 (3) SCR 1095         referred to          Para 93
      1992 (1) SCR 686          relied on            Para 112
      2002 (3) Suppl. SCR 587 relied on              Para 112
H
   JINDAL STAINLESS LTD. v. STATE OF HARYANA      149



119641 I SCR 371        referred to    Para 115   A
(1961) 1 SCR 413        referred to    Para 117
1994 (2) SCR 644        referred to    Para 118
2002 (1) SCR441         referred to    Para 119
2006 (5) Suppl. SCR 1   referred to    Para 119   B
2012 (4) SCR 448        referred to    Para 124
1964 SCR 897            referred to    Para 128
1992 (2) SCR 13         referred to    Para 128
2000 (3) SCR 509        referred to    Para 128
                                                  c
1955 SCR 164            referred to    Para 129
1966 Suppl. SCR 81      referred to    Para 129
(1953) 1 BLJR 48        referred to    Para 131
1996 (10) Suppl. SCR 472referred to    Para 137
                                                  D
1985 (2) SCR 287        referred to    Para 140
1987 (1) SCR 232        referred to    Para 141
(1988) 1 sec 266        referred to    Para 131
1989 (2) SCR 893        referred to    Para 141
                                                  E
1994 (1) Suppl. SCR 602 referred to    Para 141
(1986) Supp. I sec 201 referred to     Para 142
1958 SCR 1422           referred to    Para 147
1968 SCR 829            referred to    Para 150
1974 (3) SCR l          referred to    Para 151   F
(1964) 4 SCR 280        referred to    Para 153
(1953) 4 SCR 1069
                               .
                        referred to    Para 154
1986 (3) SCR 866        referred to    Para 155
(1964) 4 SCR 280        referred to    Para 155   G
(1951) 2 SCR 127        referred to    Para 173
1961 (3) SCR 77         referred to    Para 174
1962 (2) SCR 983        referred to    Para 174
                                                  H
150        SUPREME COURT REPORTS              [2016) 10 S.C.R.


A     (1962) Su11p. (2) SCR 1   referred to      Para 174
      (1963) 1 SCR 220          referred to      Para 175
      1989 (2) SCR 918          referred to      Para 179
      1963 SCR 704              referred to      Para 188
B     (1963) Suppl.(2) SCR 435referred to        Para 190
      1964 SCR 217              referred to      Para 191
      (1968) 3 SCR 829          referred to      Para 192
      (1966) 1 SCR 865          referred to      Para 194

c     (1970) 1 SCR 700          referred to      Para 195
      (1969) 2 SCR 544          referred to      Para 196
      1977 (1) SCR 1065         referred to      Para 197
      1981 (1) SCR 823          referred to      Para 198
      1988 (3) SCR 768          referred to      Para 199
D
      1989 (2) Suppl. SCR 731 referred to        Para 200
      1996 (9) Suppl. SCR 356 referred to        Para203,211
      (1961) 3 SCR 242          relied on        Para 217
      (1961) 3 SCR 707          referred to      Para 221
E
      (1963) Supp. 2 SCR 216 referred to         Para 222
      1994 (6) Suppl. SCR 98    relied on        Para 230
      1988 (3) Suppl. SCR 770 relied on          Para 242
      2007 (9) SCR 147          referred to      Para 242
r     2002 (3) SCR 278          referred to      Para 242
      1999 (5) Suppl. SCR 428 referred to        Para 245
      1942 F.C.R.90             referred to      Para 251
      AIR (1945) PC 98          referred to      Para 251
G     1950 SCR 15               referred to      Para 252
      (1962) Supp. 1 SCR 282 referred to         Para 252
      1980 (1) SCR 804          referred to      Para 253
      1972 (2) SCR 33           referred to      Para 254
H
   JINDAL STAINLESS LTD. v. STATE OF HARYANA            151


1996 (2) SCR 145         referred to        Para 254    A
1980 (3) SCR 1           referred to .      Para 255
2005 (1) SCR 732         referred to        Para 255
(2004) 10 sec 2011       referred to        Para 256
(1963) 3   SCR 787       referred to        Para 256    B
(1970) 1   sec 248       referred to        Para 263
(1950) 1 SCR 88          referred to        Para 263
1973 (2) SCR 757         referred to        Para 263
1978 (2) SCR 621         referred to        Para 264    c
Per Ashok Bhushan , J.


1961 SCR 809             partly overruled   Para 35
                                                        D
1963 SCR 491             partly overruled   Para 3, 7
1994 (6) Suppl. SCR 91   referred to        Para 12 ·
1996 (2) SCR 184         referred to        Para 12
2003 (4) Suppl. SCR 154 referred to         Para 13
                                                        E
2006 (3) SCR 1095        referred to        Para 14
2006 (3) Suppl. SCR 569 referred t<i        Para 15
2008 (17) SCR 1282       referred to        Para 17
2010 (4) SCR 743         referred to        Para 17
1965 SCR 908             referred to        P~1ra 62    F

1975 (2) SCR 715         referred to        Para 63
(1960) 3 SCR 887         referred to        Para 117
2005 (1) SCR 732         referred to        Para 121
(1965) 1 SCR 413         referred to        Para 164    G
1973 Suppl. SCR 1        followed           Para 165
1978 (1) SCR 1           referred to        Para 167
1994 (2) SCR 644         referred to        Para 169
                                                        H
152         SUPREME COURT REPORTS               [2016] 10 S.C.R.


/\     2006 (5) Suppl. SCR J    referred t.o       Para 172
       2012 (4) SCR 448         relied on          Para 180
       (1961) 3 SCR 77          relied on          Para 182
       1966 SCR 22              relied on          Para 184
 B     J 974 (3) SCR 1          referred to        Para 191
       1975 (2) SCR 715         referred to        Para 192
       1973 Suppl. SCR 1        referred to        Para 200
       1968 (3) SCR 829         referred to        Para 200
c      1966 1 SCR 865           referred to        Para 223
       [20071 7 VST 367 Madras referred to         Para 234
       2002 (2) Suppl. SCR 555 referred to         Para 243
       1988 (3) SCR 768         referred to        Para 258
.D     1988 (2) SCR 574         referred to        Para 260
       1989 (2) Suppl. SCR 731 elarilied           Para 262
       1990 (Suppl.) sec 617    referred to        Para 267
       1996 (9) Suppl. SCR 356 referred to         Para 268
       1963 SCR 704             distinguished      Para 271
 I·:
       1990 (2) SCR 659         affirmed           Para 276
       1981 (l) SCR 823         referred to        Para 286
       1963 2 SCR 435           affirmed           Para 293
       1988 (2) SCR 574         referred to        Para 293
 F     1%4 (6) SCR 261          affirmed           Para 297
       1996 (9) Suppl. SCR 356 referred to         Para 297
       1952 SCR 607             referred to        Para 298
       1981 (3) SCR 92          referred to        Para 300
G      1989 (2) SCR 918         referred to        Para 302
       (1964) 5 SCR 975         referred to        Para 320
       1954 SCR 1005            referred to        Pam 324
       1957 SCR 874             relied on          Para 351
H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                          153



      CIVIL APPELLATE JURISDICTION: Civil Appeal No. 3453                A
of 2002.
      From the Judgment and Order dated 21.12.2001 of the High Court
of Punjab and Haryana at Chandigarh in Civil Writ Petition No. 6630 of
2000
                                                                         B
                                 WITH
      C. A. Nos. 6383-6421, 6422-6435, 6436, 6437-6440of1997,
      C.A. Nos. 3381-3400, 3592, 4651 ofl998,
      C.A. No. 918of1999,
                                                                         c
      C.A. Nos. 2769 and 4471 of2000,
      C.A. No. 3314 of2001,
     C.A. Nos. 3454, 3455, 3456-3459, 3460, 3461, 3462-3463, 3464,
3465,3466, 3467,3468,3469,3470,3471,4008,5385,5740,5858of
200~                                                                     D
      W.P. (C) Nos. 512 and 574 of2003,
      C.A. Nos. 2608, 2633, 2637, 2638, 3720-3722, 6331, 8241, 8242,
8243,8244,8245, 8246,8247,8248,8249,8250,8251,8252, 1956of
2003,                                                                    E
      T.C. (C) No. 13 of 2004,

      W.P. (C) No. 66 and 221 of 2004,
      C.A. Nos. 997-998, 3144, 3145, 3146, 4953, 4954, 5139, 5141,
5142,5143,5144,5145,5147,5148,5149,5150,5151,5152,5153,5154,             F
5155,5156,5157,5158,5159,5160,5162,5163,5164,5165,5166,5167,
5168, 5169, 5170, 7658 of 2004,
      SLP(C) Nos. 9479, 9496, 9569, 9832, 9883, 9885, 9891, 9893,
9898,9899,9901,9904,9910, 9911,9912,9950,9964,9976,9989,9991,
9993,9998,9999, 10003, 10007, 10129, 10133, 10134, 10153, 10154,         G
10156, 10161, 10164, 10167, 10206, 10207, 10232, 10366, 10381, 10382,
10384, 10385, 10391, 10402, 10403, 10404, 10407, 10417, 10449, 10493,
10495, 10497. 10501, 10505, 10539, 10557, 10563, 10566. 10567, 10568,
10569, 10571, 10704. 10706,10708, 10736, 10906, 10907, 10909, 10908,
10910, 10923, 10929, 10977, 11012, 11266, 11271, 11274, 11281, 11320,
11326, 11328, 11329, 11370 of 2004,                                      H
154           SUPREME COURT REPORTS                     [2016] I 0 S.C.R.


A          SLP(C) No. 14380 of2005,
        SLP(C) Nos. 1101, 1288, 6914, 9054, 10694, 12959, 13806, 14070,
  14819, 14820, 14821, 14823, 14824, 14826, 14828, 14829, 14830, 14832,
  14833, 14835, 14837, 14838, 14839, 14841, 14842, 14845, 14846, 14847,
  15082-15085, 15807, 16351, 17589,17590, 17905, 17906, 17907, 17908,
B 17909, 17910, 17911, 17913, 17914, 17915, 17916, 17917, 17918, 17919,
  17920, 17921,17922, 17923, 17924,17925, 17926, 17929, 17930,17933,
  17934, 17936, 17937, 17938,17939,17941, 17942, 17943, 17944, 17957,
  17959, 17960, 17961, 17962, 17963, 17964, 17965, 17972, 17973, 17974,
  17975, 17976,17977, 17978,17979,17980, 17981,17983, 17984, 18036,
c 18037, 18038, 18039, 18040, 18041, 18042, 18043, 18044, 18045, 18046,
  18047, 18048, 18049, 18050, 18051, 18053, 18054, 18055, 18056, 18057,
  18058, 18059, 18061, 18062, 18063,18064, 18065, 18066, 18067,18068,
  18069, 18073, 18074, 18075, 18076, 18077, 18078, 18079, 18080, 18081,
  18082, 18083, 18084, 18085, 18086, 18087, 18088, 18089, 18090, 18091,
  18092, 19049,19050, 19051,19052, 19053, 19055, 19057, 19059, 19060,
D 19062, 19064,19066, 19068, 19070,19071, 19072, 19073, 19074, 19076,
  19077, 19094, 19095, 19096, 19099,19100, 19101, 19102, 19103, 19104,
  19105, 19106, 19107, 19108, 19110, 19111, 19113, 19114, 19505, 19506,
  19507, 19508, 19510, 19511, 19512, 19513, 19514, 19515, 19516, 19518,
  19521, 19522, 19523-19528, 19529, 19530, 19531, 19543-19547,20527,
E 20529, 20559, 21841, 21843, 21844, 21845, 21846, 21847, 21848, 21849,
  21851,21855,218~4,21866, 21867,21871-21904,21905,21907,21908,
  21909, 21910, 22947, 22958, 24934-25066 of2007,
            SLP(C) Nos. 742, 746, 747, 3230, 3231, 3233, 3234, 3236, 3237,
      3238-3262 of2008,
 F          C.A. Nos. 4715, 5041-5042 of 2008,
         SLP(C) Nos. 5407, 5408, 6148-6152, 6831, 7914, 8053-8077, 8199,
   9227, 12424-12425, 13327, 13889, 14232-14252, 14454-14778, 14828,
   14829, 14875, 15047, 15078, 15090, 15161, 15164, 15179, 15253, 15273,
   15274, 15286-15287, 15288-15289, 15324, 15325, 15326, 15327, 15328,
 G 15329, 15330, 15331,15335, 15337, 15356, 15357, 15369,15405, 15491,
   15492, 15493, 15495, 15496, 15498, 15540, 15551,15579, 15605, 15618,
   15623, 15628, 15629, 15630, 15631, 15632, 15633, 15636,15643, 15647,
   15652, 15653, 15655, 15656, 15657, 15659,15660, 15666, 15684, 15700,
   15711, 15819, 15845, 15934,16664, 16667, 16689, 16733, 16754, 16832,
 H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                      155


l6837, 16841, 16865, 16885, 16926, 16930, 17187, 17192, 17193, 17203, A
17204, 17233, 17267, 17269,17271, 17272, 17274, 17276,17277, 17279,
17280,17282. 17367, 17368, 17369,17370,17372, 17373, 17374, 17375,
l7376, 17377, 17408, 17865, 17892, 18001, 18030, 18034, 18035, 18040,
l8066-18067, 18344, 18346, 18354, 18360-18364, 18379, 18405,18532,
18533, 18582, 18684-18714, 18850, 18857, 18865, 18870, 18871,19019, B
19026, 19030, 19049, 19120, 19141, 19372,19421, 19425,19460, 19470,
19714, 19722, 19731, 19737, 19802, 19847, 19849, 19867, 19873, 19876,
19986,20068,20089,20165,20766,20795,21107,21117-21125,21127,
21506,21509,21510,21819,22081,22083,22084,22086,22100-22101,
22195,22707,22735,22931,23075,23077,23270,23277,23383,23609,
23623,25378,25498,26377,26543,26571,26572,26593,26750,26813, c
26972, 27442-27444, 27606, 27927, 29194, 29196, 29561-29570, 29763,
29764, 30276, 30533, 30534-30540, 30542, 8204 of 2008,
      SLP(C) ... CC No. 15314 of2008,
      SLP(C) ... cc Nos. 2867, 5143, 5311, 5803 of2009,              D
      SLP(C) Nos. 3276, 4720, 5371, 5376, 5381, 5383, 5384, 5393,
5395,5396.5399,5401,5403,5405,5406,5408,5409,5410,5411,5412,
5413,5414,5420,5421,5422,5424,5426,5493-5494,5495,5883,6254,
6669,6670,6675,6676,6682,6683,6684,6685,6686,6687,6688,6689,
6690,6692,6693,6694,6696,6698,6699,6700,6701,6702,6703,6704,         E
6705,6708,6709,6710,6711,6712,6713,6714-6715,6953,7345,8244,
9548,9699, 10040, 10041, 10042, 10045, 10047, 10048, 10049, 10050,
10051, 10053-10054, 10192, 10279,10952, 10954-10956, 11042, 11122,
11603-11611, 11646, 12948, 13270-13274, 13483, 13496, 13517,
13611-13612, 14429, 14484, 14488, 14623, 14856, 14949, 15723,
l6253, 16757-16760, 16784, 16789. 16888-16898, 17332-17333,          F
17394-17396, 17488, 17490, 17491, 17492-17498, 17722, 17731,17744,
19695,22293,22295,22302,22303,22304,22306,22307,22308,22309,
22310,22311,22312,22313,22316,22317,22318,22320,22321,22322,
22323,22324,22325,22408,22425,22428,23990,24149,24430,24822,
25157,25390,25399-25400,25467,25470,25474,25753,25797,26116,         G
26236,26509,27883,28509,28583,28696,28775,29597,29868,30383,
30746-30845,30847,31410,31411,31412,33176,33663-33665,33672,
34253,34859,35038,35585,35587,35740,35742,35743-35746,35747,
35749,35750,35751,35752, 35753,35754,35755,35756,35757,36193,
36196, 36219, 36271, 16116, 30594 of 2009,
                                                                     H
156            SUPREME COURT REPORTS                       [2016j 10 S.C.R.



A           W.P. (C) Nos. 11, 42, 43, 44, 46, 48, 63, 71 of 2010,
              SI.P(C) Nos. 104, 245, 247, 248, 1820, 1876, 2459, 3387, 4102,
      4362.4388,4389,4390,4511,4572,4720,5151,5308,5309,6037,6723,
      6762, 6763, 6765, 6770, 6811, 7356, 7426, 7776, 7929, 9022, 9077, 9702.
      9723, 10361, 11419, 11423, 12690, 14845, 14886, 15015, 15903, 16694,
 B    I <>720, 18318. 18834, 19194, 19199, 19217, 22327, 22520, 23836, 29578,
      36486 of 20 I 0,
            SLP(C) ... cc Nos. 886, 1082 of2010,
            C.A. No. 5343-5344 of2010,
 C          W.P. (C) Nos. 31, 497 of2011,
            C.A. Nos. 905, 2041, 2042, 9900-9903 of 2011,
            SLl'(C) Nos. 1308, 3433, 4730, 4743, 4747, 4750, 5094, 5105,
      5106,5110,5112.6351,6492,8571,9758, 12605, 13451, 13525, 13526,
      14144, 14269,14342, 18858, 18859,18862, 18863, 18864,33344of2011
 D
            SLl'(C) ... CC No. 2103 of 2011,
            W.P.(C) Nos. 278, 290 of 2012,
            C.A.No.4210,5860,5861,8275,8278,8280,8283,8284,8286,
      8290,8292,8294,8295,8296,8297,8298,8299,8300,8301,8302,8303,
 E    8304,8305,8306,8307,8308,8309,8311,8312,8313,83!4,8315,8316,
      8333,8734,8735,8736,8737,8738,8739,8740,8741,8744,8745,8832,
      8833,8834,8836,8837,8839,8840,8841,8842,8843,8844,8845,8846,
      9148,9149,9150,9151,9152,9153,9154,9155,9156,9157,9158,9159,
      9160, 9161, 9162, 9163, 9164, 9165, 916(i, 9167, 9168, 9169, 9170, 9292,
 F    'J293 of 2012,
            SLP(C) Nos. 16535-16536, 16538, 18602, 28173, 33954, 36187,
      37455,37680,37708-37709,37712,37728,38304,38919,39998,40146,
      40147, 33923 of 2012,
            T.C. (C) No. 149 of 2013,
 G
           SLP(C) Nos. 449, 1426, 8939, 9844, 10466, 10516, 10879, 11060,
      16744-16746, 16867, 16869, 16870,27001-27002,30986,32256,33600
      of2013,


 H
        JINDAL STAINLESS LJ'D. v. STATE Of HARYANA                         157


        C.A. Nos. 539, 540, 541, 542, 543, 544, 545, 546, 547, 548 of A
2013,
        C.A. Nos. 1838, 9216, 9214 of2014,
        SLP(C) No. 29119 of2014,
       SLP(C) No. 208, 2 J 2. 315-317, 320, 336, 352, 376, 411- 421, 380, B
437,445.457,508,510,567,561-562,585,621,638,641,661,664,662,
669,668,671,672,675.674,683,690-691,684-686,693-694,712,1270,
1424, 1596, 1631, 1714, 1851-1852, 1943-2001,2038,2054,2063-2065,
2081,4557,4581.91,4657,5046,5107,5131,5143,5375,5447,5610,
5966, 6086, 6143, 6158, 6240-6243, 6565, 6575, 6631, 4600, 5007, 6728,
6754-6755,6823,6907,6909-6910,6939,6956,4386, 7319,7957-7958,
                                                                          c
8089, 2483, 8248, 8325, 8350-8351, 8527, 9585, 11830, 8798, 9584,
5311-5329, 11204-11205,9164,9167,9176,9181,11832,9188,9348,5908,
9484, 9582, 7874, 11080- 11086, 12839, 11156, 11170, 12844, 8162, 11484,
12847, 11582, 11592,13200,13201,4219-4227,2966-2999,11888,11203,
14828, 14854, 15856,15857,15858, 11458-11465,18213,18333,16312, D
 18334, 18335, 15855, 18338,18184, 18179,8775-8777,5303,16853,21720,
23673-23674,23764,23765, 15353,22349,21718,24547,23757,26751,
9117,2214,2531,2289,2530,2392,2499,2502,2538-2543,2426,2358,
2401,2389,2485,2495,3163-3164,3666,3679,3723,3321,4198-4199,
3325,3466,3635,3318,30396,2636,2680,2952,2641,2588,2928,2737, E
2682, 8197-8 l 98, 4197of2015,
        C.A. No. 8240 of2015,
      C.A.Nos. 110, 109,583.3925,5534,5536,5137,5537,5538,5533,
4642-4643 of 2016 and
                                                                           F
        SLP(C) Nos. 4945, 8253, 2057, 86, 72, 14539-14541, 16820 of
2016.
      Mukul Rohatgi, Ju gal Kishore Gilda, AGs, P. S. Narsimha, Maninder
Singh, Tushar Mehta, ASGs., Harish N.Salye, S. K. Bagaria,
A. K. Ganguli, T. R.Andhyarujina, Arvind Vanna, Kavin Gulati, Rakesh       G
Kr. Khanna, Rakesh Dwivedi, Jagdeep Dhankar, Ashok K Parija, V. Giri,
N. Venkatraman. Dinesh Dwivedi, Amit Singh Chadha, Ravindra
Shrivastava, Ashok K Gupta, S. B. Upadhyay, Ms. Vibha Dutta Makhija,
Arvind P. Datar, Gopal Jain. Shyam Diwan, P. P. Rao, Dr. J. N. Dubey,
Ashok K Parija, Dhruv Agarwal, Ajit Kr. Sinha, Vivek K Tankha, Guru
                                                                           H
158          SUPREME COURT REPORTS                      [2016] 10 S.C.R.



A Krishna Kumar, Subramonium Prasad, Jagabandhu Sahoo,Anil K. Kher,
  Dr. .J. N. Dubey, Arvind Varma, Ms. Kiran Suri, Sudhir Gupta, Sr. Advs.,
  S. S. Shamshery, Suryanarayana Singh, Devadatt Kamat, Ms. Nidhi
  Gupta, Alok Sang wan. Pushpendra Kaurav, Shiv Mangal Sharma, C. D.
  Singh, Edward Belho, AAGs., A. T. M. Sampath, Ms. fereshte D.Setlma,
B Tushar Jarwal, Sachit Jolly, Rahul Sateeja, Gautam Swarup, Ms. Tanya
  Chanda, Aditya Sarin. Ms. Gayatri Goswami. Karan Lahiri, Mmuneet
  Singh Gulati. Ms. Vijay Lakshmi Menon, Mahesh Agarwal, Ms. Neha
  Nagpi!l, Ms. Shally Bhasin. Shashank Manish, Ms. Shruti Garg, E. C.
  Agrawala, Syed Slrnhid Hussain Rizvi, Sanjeev K Singh, N.A. Usmani,
  Sunil K Jain, Pawanshree Agrawal, Hibekananda Mohanti, Ajit Kumar
c Singh, Akarsh Garg, T. N. Durga Prasad, Nikhil Nayyar, Arnboj Agrawal,
  N. Sai Vinod, Ms. Smriti Shah, Divyanshu Rai, Arunabh Ganguli, Raj iv
  Agnihotri, Rajesh Kumar, R. K. Srivastava, P. N. Srivastava, K. S.
  Mahadevan, Devavrat Anand, Ms. Poonam Kumari, Ms. Mala Dubey,
  Krishnakumar R. S., K. K. L. Gautam, U. A. Rana, Mrinal Elkar
D Mazumdar, 1-!imanshu Mehta, Sidharth Sijoria, Avirat Kumar (for Mis.
  Gagrat & Co.), Anand S. Pathak, Amit K Mishra, Akshat lfansaria, Ms.
  Hima Lawrence, Kesav Raychaudhari, Vinay P Singh, Ms. Aditi Mohan,
  Ms. Ajita Tandon, Ms. Kopal Shrivastava, Sunil Kumar Jain, Shaantanu
  Jain, Pravcen Kumar, Ms. Babita Sant, Kartik Kurmy, Kumar Ajit Singh,
  Ms. Sunaina Kumar, Ms. Ruby Singh Ahuja, R. N. Karanjawala, Vishal
  Gehraria, Chahat Chawla, Mrs. Manik Karanjawala, Milinda Sharma
  (for Mis. Karanjawala & Co.), Ro hit Sthalekar, D. K.Gandhi, Ms.
  Vasudha /,utshi, Anish Agarwal, Avi Tandon, T. Mahipal, Shekhar
  Sharma, Puneet Agrawal, Dr. Rashmi Khanna, G. L. Bhatti, Pranav
  Vyas, Ms. Shefali Jain, Anirudh Tanwar, Surya Kant, Vikram Hegdc,
F Chanchal Kumar Ganguli, Barnali Basak, Ms. Narmada Singh, Anurag
  Rana, Mrs. Kirti Renu Mishra, Ms. J'reetika Dwivedi, Rajesh Kumar,
  Ms. Apurva Upmanyu, Ms. Apoorva Garg, Kedar Nath Tripathy, M.A.
  Aleem Majid, Ms. PriyankaParida, Gaurav Kejriwal, Sujit Keshri,Avnish
  Kr. Sharma. Harsh Trivedi, Mrs. Manik Karanjawala (for Mis.
G Karanjawala & Co.), M. P. Devanath, Abbay A. Jena. Ms. Bina Gupta,
  G. Prakash, Jishnu M. L., Ms. Priyanka Prakash, Mohammed Sadique
  T. A., Svadha Shankar. Manav Vohra, .J. Krishna Dev, Ms. Beena
  Prakash, Manu Srinath. Siddhesh Kotwal, Ms. Bansuri Swaraj, Ms.
  Shreya Bhatnagar. Raghunatha Sethupathy, Ms. Urvashi Sandhu,
  Nirnimesh Dube, Mahcsh Agarwal, Sayaree Basu Mallik, Chaitnaya,
H
        INDAL STAINLESS lJ'D. v. STATE OF HARYANA                      159



Lakshmeesh Kamath, Abhimanyu Tiwari, Hitesh Kumar Sharma, A
Kalinder Mishra, Ashish Kumar Sinha. Shree Pal Singh, S. Nanda Kumar,
Parivesh Singh. P. Srinivasan, Sanand Ramakrishnan, Rajeev Mishra,
Prateek Gupta, Parmanand Pandey, Anup Kumar Mishra, Ms. Jayashri
Venkataraman. \/. Ubhaya Bharthi, Minchu Mariam Punnoose, Cynduja
Crislman, Ganjcndra Maheshwari. Ms. Prema Chopra, Ms. Swati Thapa,
                                                                         B
Parivesh Singh. Subblrn Somu, Ranjeet Singh, \/. N. Raghupathy,
Narendera M Sharma, Ms. Prachi Johri. Abhishek Sharma. Ms. Sakshi
Mchley, Ms. Prachi Gupta, Ra.iesh Prasad Singh, Ravi Prakash Mehrotra,
Ashutosh Kumar Sharma, Vibhu Tiwari, Sunil K Jain, Pawanshree
Agarwal, Shaantanu Jain. Dileep Tandon, Shailesh Madiyal, Ms. Neha
Tandon. Jagjit Singh Chhabra, Tarun Gulati, Sparsh Bhargava, Neil c
Hildreth. Shashi Mathews, Kishore Kuna!, Anupam Mishra, Ms. Ishita
Parsaiya, Ankit Sachdeva. Ms. Rachana Yadav, Rony 0. John, Ms. Vipin
Upadhayay, Nikhil Gupta, Rahul Jain, Manish Rastogi, Pranav Bansal,
R. Chandrachud, B. R. Menon. Rohit Choudhary, Ms. Preeti Khewani,
Ms. B. Vijay Lakshmi Menon. Ms. Kaadambari Singh Puri. Ms. Abha D
Sinha. Rameshwar Prasad Goyal, Kumar Gaurav, Dr. Farrukh Khan,
Ms. Rubina Jawed. Vir Bahadur Singh, Hitesh Kumar Shanm. Ms. Shanti
Kumar Jaisani. R. P.Goyal. Kapil Joshi, Amit Pai, Arun S. Bhati, Suraj
Prakash Singh. Divyesh Pratap Singh, Ms. Kriti Joshi, Mrs. Mm1ju Shanna
Jelley, Mrs. Vanita Bhargava, Ajay Bhargava, Jeevan Ballav Panda,
                                                                         E
Ms. Abhisaar Bairagi. Anshuman Sharma, Ms. Abhisaar Bairagi (for
Mis Khaitan & Co.), Ms. Yugandhara Jha, Ms. Prasanna Mohan, Pulkit
Tare, Siddharth Shrivastava, Kuna! Venna, M.A. Krishna Moorthy, Kuna!
Verma, Ritin Rai, Prateek Rath.\/. K. Monga, Azim H. Laskar, Sachin
Das, A. \/. Manavalan, Ms. Sampa Sengupta Ray, PR Abal, Pratap
Singh Solanki,Abhijit Sengupta, Lakshmi Raman Singh, Ms. Udita Singh, F
Ms. Preeti Singh, S.P. Singh Chauhan. Gagan Deep Sharma, Satya
Prakash. Kapil Dahiya, Nikhil Jain, Deepak Kanwar, S. \/(jay Kanth.
Vipin Maurya. Sudhir Kumar, Ms. Firoza Matta, Sudarshan Singh Rawat,
Vijay K. Gupta. P. K. Manohar. Rahul Kaushik, K. C. Kaushik, Mrs.
Rhuvneshwari Pathak, Mrs. Shilpi Satya Priya Satyam, Sanjay Grover, G
 Ms. Meenakshi Grover, Rajesh Kumar. Ms. Poonam Kumari, Krishna
 KLimar R. S .. K. K. L. Gautam, Vinod Pandey, K. S. Mahadevan, R. K.
Srivastava. P. N. Srivastava, Shiv Lal Singh, Balaji Srinivasan, Saurabh
 Ajay Gupta, Nishant Bishnoi, Rajeev Singhal, Saurabh Singhal, Vishal
Gehraria, Rajiv Shankar Dvivedi, S. K. Sarkar, Ms. Madhavi Shanna,
                                                                        H
160          SUPREME COURT REPORTS                      12016] 10 S.C.R.


A Balkrishan Shanna,Abinash Kumar, Md. ZiauddinAhmad, Pankaj Ghiya,
    Milan Ghiya, Suman Yadav, Ms.Aakanksha Muqjlrnl, Harsh Trivedi (Ml
    s Karanjawala & Co.), S. S. Ray, Vaibhav G., Ms. Rakhi Ray, T. K.
    Majumdar. Ms. Reshmi Rea Sinha, Sankar Ch. Ghosh, V. N. Koura,
    Ms. Aruna Mathur, Ms. Paramjeet Benipal, Sumit Benipal, Avneesh
B
    Arputham,   Yusuf Khan, Ms. Anuradha Arputham (for Mis Arputham
    Aruna Co.), Rajeev Sharma, V. Madhukar, Mohit D. Ram, Ms. Monisha
    Handa, Ms. Anvita Cowshish, Lubna Naaz, Pushpinder Singh, Niraj Kr.
    Jain, Pankaj Kr. Bohra, Anurag Rana, Mernsagar Samantaray, Debmalya
    Bane1:jee, Jasmeet Singh, A. S. Aman, Manish Sharma, Ms. Anuradha
    Dutt, Amit Sharma, Prateek Yadav,Ankit Raj, Milind Kumar, P. Venkat
c Reddy, A. Ramesh, Syed Ahmad Naqvi, Ms. Shilpi Gupta, Mis Venk:at
    Palwai I.aw Associates, Nakul Dewan, l'radhuman Gohil, Vikash Singh,
    Ms. 1~1runa Singh Gobi!, Ms. Jaikriti S. Jadeja, Himanshu Chaubey,
    Shivarama Krishnan M. S., Vinayak Pannicker, Ms. Aanchal Basur,
    Purvesh Malkan, Ajoy K Roy, Ms. Nandita Chauhan, Ms. Gargi Jha, S.
D   S. Shroff, Anand Raja, Pawan Upadhyay, Sarvjit Pratap Singh, Mrs.
    Anisha Upadhyay, Kaustuv P. Pathak, Ab.sh Tyagi, Nishant Kumar,
    Ratik Sharma.Arindam, Param Mishra, Ms. Sharmila Upadhyay. Varun
    K. Chopra, Shishir Deshpande. Amit Yadav, Pulkit Tare •. Akshat
    Shrivastava, Abhijeet Shrivastava. Ms. Ruchi Sahay, Ms. Akanksha
    Sisodia, Siddharth .Shrivastava, Jarun Gulia, Anshuman Shrivastava,
E
    Sarabjeet Dutta, Mohit Arora, Ms. Divya Roy, T. Natarajan Durga
    Prasad, Akarsh Garg, Kaushik Choudhury, Sunil Kumar Jain, Sridhar
    Potaraju, Gaichangpou Gangmei, Arjun Singh, Ms. Sindoora V. N. L.,
    Ms. Ankita Sharma, Ms. Madhavi Divan, Ms. Ranjeeta Rohatgi, Ms.
    Movita, Ms. Misha Rohatgi, Ms. Akhila J., Thangathurai, Diksha Rai,
    Ms. Nidhi Khanna, Ms. Aishwarya Bhati, S.N. Terdal, B. Krishna Prasad,
    M. K. Maroria, Syed Shahid Hussain Rizvi, Sanjeev K Singh, N.A.
     Usmani, Surajita Pattanaik, D.S. Mabra, Rajesh Kumar, Ms. M. Prasad,
    Ms. Surekha Raman, Pratap Venugopal, Aman Shukla, Anuj Sanna, Ms.
     Niharika (for Mis K. J. John & Co.), Krishnayan Sen, Uddyam
     Mukhe1:jee, 1-limanshu Bhushan, Ankit Jain, Atul Jha, Ms. Divya
G
     Balasundaram, Sandeep Jha, Dhannendra Kumar Sinha, T. K. Majumdar,
     Ms. Reshmi Rea Sinha, Sankar Ch. Ghosh. Kuna! Mimani, Ms. Vandana
    Anand, Ritunjay Gupta, Dheeraj Nair. Ravinder Narain, Ajay Aggarwal,
     Ms. Kanika Gamber, Ms. Mallika Joshi, Kishan Rawat, Ms. Ruchik:a,
     Rajan Narain, Ms. Deepti Sarin, Nakul Gandhi, Sanjiv Kumar Singh,
!-I
       JINDAL STAINLESS LfD. v. STATE Of HARYANA                        161



Ms. Tahira Karanjawala, Ms. Aakanksha Munjal (for M/s. Karanjawala A
& Co.), Ms. Nandini Gore, Trishala Kulkarni, Ms. Neha Khandelwal
(for M/s. Karanjawala & Co.), Abhishek Roy, A1:jun Sharma, Rajeev K
Pandey, Rajeev Maheshwaranand Roy, Matrugupta Mishra, Ms. Shikha
Ohri, Piyush Singh, Hernant Singh, Nimesh Kr. Jha, Ms. Shannila
Upadhyay, Ms. Pragati Neekhra, Dr. M. V. K. Mo01thy, Hitendranath B
Rath, Ms. T. Anamika, Ajay Kumar, Shivam Ojha, Ms. ·Richa Srivastava,
Ms. Krishna Sanna, Av~jit Roy, Ms. Vartika Sahay (for M/s Corporate
Law Group), Ranjit B. Raut, Abbay Anand Jena, Ms. Bina Gupta, Ms.
Surbhi Kapoor, Raghav Shankar, Joseph Aristotle S., Mrs. Priya Aristotle,
Rajesh Kumar Singh, Pankaj Pandey, Rajesh Inamdar, Javedur Rahman,
Parikshit, Kamal Mohan Gupta, franklin Caesar Thomas, Chand Qureshi, c
M. P. Siddiqui, Ms. Bina Madhavan, Anil Grover, Sl).meer Rohatgi,
 Udayaditya Bane1:jee, Akshay Puranik, Devashish Bharuka, Sanjay
 Kumar Visen, Ravi Bharuka, Ms. Jaya Bharuka, Vaibhav Niti, Ms. Arpita
 Bishnoi, Ms. Anu Tyagi, Gautam Sharma, Akshay Puranik, Dr. Monica
Gusain, Kedar Nath Tripathy, Raghenth Basant, Abhishek Tripathi, Ms. D
 Aanchal Tikmani, Senthil Jagadeesan, C. D. Singh, Sagar Suri, Ms. Sakshi
 Kakkar, Ms. Sylona Mohapatra, Ms. Saumya Kalra, Ms. Sukanya Basu,
 Sandeepan Pathak, Udit Arora, Swarnendu Chatterjee, Ms. Ananya
 Sarkar, M. P. Srivignesh, Lalitendu Mohapatra, Puneet Parihar, Adhi
 Raj Singh Rajawat, Vivek R. Mohanti, Sitesh Narayan Singh, Shrey
                                                                          E
 Kapoor, Ms. Ruchi Mohli, Saurabh Raj pal, Amit Shanna, Prateek Yadav,
 Ankit Raj, Ms. Ruchi Kohli, Atul Jha, A. P. Mayee, A. Selvin Raja, An up
 Gilda, Nikhil Swami, Ms. Divya Swami, Mrs. Prabha Swami, Raghenth
 Basant, Abhishek Tripathi, Ms. Aanchal Tikmani, Ms. Liz Mathew,
 Anurag Dubey, Ms. Anu Sawhney, Ms. Meenakshi, S. R. Setia, Sujit
 Keshri, Ashok Kumar Juneja, Vijendra Kasana, Kamal Mohan Gupta, F
 Ms. Manju Shaima Jetley, Lakshmi Raman Singh, Wills Mathews, Ginesh
 P., Ashish Kumar Sinha, Shreepal Singh, Mandeep Kalra, C. Mukund,
 S.Sukumaran, Anand Sukumar, Bhupesh Kumar Pathak, Ms. Meera
 Mathur, Ms. K. Enatoli Sema, Amit Kumar Singh, K. Luikang Michael,
 Flix Gangmei, Nalin Kohli, Ankit Roy, Ms. Sansriti Pathak, Avijit Roy, G
 Shuvodeep Roy, Manoj Goel, Shuvodeep Roy, Guntur Prabhakar, Ms.
 Prerna Singh, Sree Vignesh, Swarnendu Chatte1:jee, K. R. Sasiprabhu,
 Raghav Shankar, Shubhranshu Padhi, Ashwin Dave, Vishnu Sharma,
 Ms. Shruti .lain. Somiran Sharma, Biju P. Raman, Raghu Chandra,
 1-limanshu Suman, Karan Lahiri, D. K. Singh, Pradeep Shukla, Ms. Koma!
                                                                          H
•
    162            SUPREME COURT REPORTS                        [2016] JO S.C.R.



          Mundra, A. D. Agrawal, Saurabh Agrawal, Abhijit Sengupta, Ravinder
          Narain, Ms. Kanika Gomber, Ms. Mallika Joshi, Rajan Narain. Ms. Vimla
          Sinha, Riturnj Biswas. M.anish Kumar. Shivam Singh, Aditya Raina,
          Shreyas Jain. Advitya Awasthi, Ms. Varsha Poddar, Chandan Kumar,
          Gopal Singh, Ms. Ranja1rn Roy Gawai, Ms. Vasudha Sen,Abhay l'ratap
          Singh, Anshumaan Bahadur. Ms. Divya Roy, Pushkar Taimani, Ms.
          Chandra Bhushan, Shashank Singh, R. K. Ojha, Ms. Chhaya Kumari, S.
          K. Divakar, Ms. Priyanka Tyagi,Abhijit Sinha,Anil K. Jha, Gopal Prasad,
          Srijan Sinha, V. Lakshmikumaran, M. P. Devanath, Ms. L. Charnaya,
          Abhishek Anand, Adity;i Bhattachary;i, Hemant Bajaj. Anandh K., Aniket
          Ghosh, Vivek Sharma, Victor Das, Govind Manoharan, Ms. Shruti Iyer,
    c     Joydeep Mazumdar, Gaurav Ghosh. Par\jat Sinha, Sachin Pujari, D.
          Kumanan, Ahhishek Atrey, Rishabh Sancheti, Raj Singh Rana, Ms.
          Anti ma Bazaz, Makrand Pratap Singh, D. N. Dubey, Rakesh Kr. Mudgal,
          Pawan Kunrnr Shukla, Ritin Rai, Prateek Rath, V. K. Monga, K. V.
          Mohan, Rupesh Kumar, Ms. Pankhuri Shrivastava, Pravesh Bahuguna,
    D     Ji tin Singlrnl, Prateek Raoka, Ms. Neelam Sharma, Amatjit Singh, Ms.
          Srikala Gurukrishna Kumar, Ms. Shikha Sandhu, Prasanna Venkat, Ms.
          Sneha R. Iyer, Ms. Charulata Chaudhary, Prashanth K. Mukandan,
          Mohan, K. R. Sasiprabhu, Somiran Shan11a, Biju P. Raman, Raghu Reddy.
          Sandeep Narain (for Mis. S. Narain & Co.), Mrs. Priya Puri, S. K. Puri,
          Ranjay Dubey, Ms. Churchi Mandakini, Shubail Farook, Faisal Farook,
          Jayant Sud. Amit Pathak, Ms. Suruchii Aggarwal, Ms. Indra Sawhney,
          Bibekananda Mohanti, Mr. Rajesh Jain, Ms. Roohina Dua, C. George
          Thomas, Ms. Akriti Chaubey, Ms. Kriti Awasthi, Fai·az Maqbool, Ms.
          Qurratulain, Ms. Tanya Shree, Maninder Singh, Abhimanyu Bhandari,
          Atul N., Ma yank Pandey, Dr. Ravindra Chingala, Ms. Kamakshi S.
          Mehlwal, Sanveer Mehlwal, Ms. Geetanjali, K. L. Janjani, Roy Abraham,
          Ms. Reena Roy, Ms. Seema Jain, Ms. Chandrani Prasad, Himinder Lal,
          Ms. Kamini Jaiswal, Jatinderpal Singh, Rajesh Kr. Singh, Ms. Romy
          Chacko, Pawanshree Agarwal, Manish Panda, Tarun Jain, Asit Das,
          Vinoo Bhagat, Vijay Kr. Gupta, Abhishek Gupta, Ms. Shweta, P. K.
          M;inohar, Devashish Bharuka, P. N. Puri, Tanm Johri, Ms. Shiiin Khajuria,
          Sibo Shankar Mishra, Ravi Prakash Mehrotra, Virvijay Singh, Ashok
          Mathur, Ramesh Babu M. R., B. Balaji, S. Ramsubramanian, Muthuvel
          l'alani, A. Arvind Athithan, Utkarsh Srivastava, R. Gopalakrishnan, S.
          Udaya Kumar Sagar, Ms. Bina Madhavan, Ms. Akanksha Mehra,

    H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                        163



Mrityunjai Singh (for Mis Lawyer's Knit & Co.), Mohan Pandey, Mrs. A
B. Sunita Rao, Ms. Sujatha, .layant Kumar Mehta, Narendera M Sharma,
Ms. Prachi Johri, Rajesh Prasad Singh, Ashok Kumar Gupta,-II, Ashok
Panigrahi. Tejaswi Kumar Pradhan, V. N. Raghupathy, M. Paikaray, N.
Paikray, Rishipal Singh, Ms. Vinakshi Kadan, Tejaswi Kumar Pradhan,
Dr. Rajeev Sharma, Anirudh Sanganeria. Chinmay Deshpande, Parikshit
                                                                          B
Angadi, Amjid Maqbool, Vinay Garg, Kumud Lata Das, Ms. Padma
l'riya, Rishabh Sancheti. Dr. Sanjeev Johri, Dinesh Mehta, Bishwa
Bandhu, D. Subaramanian. T. Mahipal, Pankaj Kr. Mishra, A. S. Bhasme,
Ms. Manali Singhal, Santosh Sachin, Abhijat P. Medh, Gaurav Srivastava,
Rohit Kaul, lJdayan Tandan, Deepak Singh Rawat, Ms. Mamta Rani,
Vodafone Essar Ms. Ruby Singh Ahuja, Ms. Suman Yadav, Ms. c
Aakanksha Munjhal, Debmalya Bane~jee, .lasmeet Singh, A. S. Aman,
Manish Sharma, K. K. Mani, Sharad Puri, Ms. Aruna Mathur, V. N.
l(oura, Ms. Anma Mathur, Ms. Paramjit Benipal, Avneesh Arputbam,
Yusuf Khan, Ms. Anuraclha Arputham, M/s. Arputham Aruna & Co.,
Arvind Minocha, Shaclan rarasat, Ahmed Said, Gunnam Venkateswara D
Rao, Ms. Prerna Mehta, S.K. Sabharwal, Jai Prakash Pandey, Ms.
Sadapurna Mukhetjee, Vivek Jain, Ratan Kumar Singh, Vipin Kumar
Jai, Anil Shrivastav, Rituraj Biswas, Krishnanancl Pandey, Jayesh Gaurav,
 Abhijeet Sinha, Shashank Singh, Srijan Sinha, Amrenclra Kr. Chobey,
Mel. Waquas, Anand, Ms. Ameyvikarama, Ms. Susluna Suri, P. V. Dinesh,
                                                                          E
Radha Shyam Jena, Ms. Ginny J Rautray, Dharmencler Rautray, Mrs.
 Kanchan Kaur Dhodi, Manish Kumar, Nakul Jain, Ms. Divya Roy, Mrs.
Naresh Bakshi, Parijat Sinha, Ms. Priyanka Paricla, Saksham
 Maheshwari, Jagjit Singh Chhabra, Sunil Kumar Jain, Dinesh K. Garg,
 Abhishek Garg, Dhananjay Garg, Deepak Mishra, Ratan Kumar
 Choudhuri, .layesh Gaurav, Ms. Soojan, Sumeet Lal, Jogy Scaria, Ms. F
 Manjeet KirpaL Mrs. Raj di pa Behura, Mrs. Y. S. Lakshmi, A. Venayagam
 Balan, S. K. Bhattacharya, Niraj Bobby Paonam, S. Chandra Shekhar,
 M/s Mitter & Mitter Co., Pankaj Pandey, Ms. C. K. Sucharita, Shibashish
 Misra. Mrs. Anil Katiyar, Sarvesh Singh Baghel, Pramit Saxena, Rahul
 Aggarwal, Mrs. Shally Bhasin, H. D. Thanvi, Ms. Preeti Thanvi, Rishi G
 Mato Ii ya. Balkishan Ladania, Mukul Kumar, Raj iv Shankar Dvivedi, S.
 K. Sarkar, Ms. Maclhavi Sharma. Balkrishan Shanna, Abinash Kumar,
 Mel. Ziaudclin Ahmad. Punit Dutt Tyagi. Pankaj Kumar Singh, D. N.
 Dubey, Ms. Rinku Mishra, Ms. Parul Shukla, Ms. Varsha Rana, M.

                                                                         H
164            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



/\    Dubey. Dr. Vinod Kumar Tewari, Mrs. K Sarada Devi, Bijan Kumar
      Ghosh, Raj Singh Rana, Makrand Pratap Singh, Ms. Varsha Rana. Rakesh
      Kr. MudgaL D. N. Dubey, Pa wan Kumar Shukla, Sanjay Bhatt, Dushyant
      Kumar, Naveen Kumar, Joydeep Mukherjee, Rabin Majumder, Sameer
      Jain, Siddharth Jain, Harsh Vardhan, Sandeep Bajaj, Ms. Nishtha Sikroria,
      Anurag Gupta, Sandir Kalia, Nand Ram, Aditya Chopra, Ms. Sayali
      Qureshi. Gajendra Maheshwari, Ms. Swati Thapa, Ms. Prema I ,al, Dheer
      Srivastava, Ms. Tripti Dhar, Ms. Shikha Bhardwaj, Ashwarya Sinha,
      Anurag, Ankur Mittal, Farrukh Rasheed, Ms. Garima Prashad, Vikas
      Singh Jangra, Bbakti Vardan Singh, Amit Kumar Pathak, Gaurav Singh,
      Jivesh Mehta, Sanjay Krnnar Das, Mullapudi Rambabu, Ajay Choudhary,
c     Kush Chaturvedi, A. P. Sinha, Brajesh Kumar; Sudhanshu Palo, Ms.
      Anuj Bhandari, Rahul Pachauri, Ankit Mishra, Mordhwaj Singh, S.
      Thananjayan, K. R. Nambiar, M. P. Viond, M. T. George, Rajiv Mehta,
      R. Sathish, Ms. Baby Krishnan. C. N. Sree Kumar, Aruneshwar Gupta,
      TV. George. Mis J. S. Wad & Co., Vijay K. Gupta, Mrs. Sunita Sharma,
])    Rohan P. Shah,Alok Yadav, Udit .lain, Somnath Shukla, Avinash Tripathi,
      1-larish Pandey. Raj iv Agnihotri, Nisbit Agarwal.Ms. Babita Sant, Yash
      Agarwal, Ms. Sunaina Kumar, Raj iv Agnihotri, Ramesh Agarwal. Kartik
      Kurmy, Shrish Kumar Misra, Ralrnl Prasanna Dave, Shakil Ahmed Syed,
      Sanjay Kapur, Anmol Chandan, Ms. Priyanka Das, Partha Sil, Vijay
      Pratap Singh, K. S. Rana, Aditya Sharma, Ms. Rekha Sethi, B. K. Satija,
      Amlan Kumar Ghosh, Bhargava V. Desai, Ms. Akriti Dewan, Anurag
      Dubey. Mrs. Meenakshi, Ms. Anu Sawlmey, Rajesh Pandey, S. R. Setia,
      Prashant Kumar, Gaurav Agrawal, M. K. Dua, Devashish Bharuka,
      Sanjay Jain, Y. Prabhakara Rao, M. K. Michael, A. Raghunath, Vishnu
      Sba1111a, Ms. Anupama Sharma, Tripurari Ray, K. Rajeev, Deba Prasad
 F    Mukherjee, R. V. Kameshwaran, T.G. Narayanan Nair, V.K. Sidharthan,
      P. N. Puri. C.K. Sasi, Mrs. S. Janani, Ms. Malini Poduval, Mis T. T. K.
      Deepak & Co., Vijay Kumar, E. M. S. Anam, S. Sukumaran, Anand
      Sukumar, Bhupesh Kumar Pathak, Ms. Meera Mathur, V.K.Siddharthan,
      .logy Scaria. Ms. Beena Victor, Senthil Jagadeesan, Govind Manoharan,
Ci    Ms. Shruti Iyer, Bijoy Kumar Jain, Samir Ali Khan, A. Radhunath,
      Chiraranjan Addey, Ghanshyam Joshi, Jai Prakash Pandey, Manish K
      Bislmoi, Narinder Kumar Verma, Venkat Poonia, Sanjay KathiyaL Deepu
      Kr. Jha, M. P. Vinod, Dileep Pillai, Ajay K. Jain, Atul Shankar, Rauf
      Rahim. Somiran Sharma, K. V. Mohan, A. V. Rangam, Buddy A.
      Ranganadhan, D. V. Raghu Vamsy, Prem Prakash, Punit Dutt Tyagi, Y.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                        165


Raja Gopala Rao, Ajay Choudhary, Raj iv S. Roy, Avrojyoti Chatte1jee,   A
Abh~jit S. Roy, Pranab Kumar Mullick, Aditya Mehrotra, Sukumar, Sebat
Kumar Devria, Prem Sunder Jha, Somnath Bane1jee, Satya Mitra Garg,
Siddhaiiha Choudhury, Sanjiv Kumar Singh, Sanjeeb Panigrahi, S. Ravi
Shankar, Biswajit Das, Nayanika Pattnaik, Ms. Vanshika Chandra, Ms.
Asha Gopalan Nair, Ms. Indra Sawhney, Ms. K. V. Bharthi Upadhyay, B
Ms. Manjula Gupta, Ciccu Mukhopadhaya, Ms. PunamKumari, A.G.
Garg, Rakesh Garg, Ms. Shweta Garg, Abhisth Kumar, P. P. Singh, Niraj
Sharma, Ms. Krishna Sarma, Avijit Roy, Ms. Vartika Sahay (for Mis
Cmvorate Law Group), Anil Shrivastav, Rituraj Biswas, Pragyan Pradip
Sharma, Shikhar Garg, Ganesh Bapu TR., Ravi Kant Pal, P. V.
Yogeswaran, B. S. Banthia, Ms. Anitha Shenoy, Ms. SurabhiAggarwal,      c
Ranjith K., Ms. Shally Bhasin, Bhaskar Y. Kulkarni, Ms. Sushma Shanna,
Amit Pawan, Ravindra Bana, Nikhil Majithia, Ms. Shirin Khajuria, Y.
Raja Gopala Rao, Rakesh K. Sharma, T.N. Rama Rao, Hitesh Kumar
Sharma, T. Veera Reddy, Ms. C. K. Sucharita, G.N. Reddy, P.A. Noor
Muhmed, Nitin Bhardwaj, Shishir Pinaki, Rajiv Kumar Sinha, lrshad D
Ahmad, Sandip Kalia, Krishna, Nand Ram, C. Balakrislma, Ms. Bharti
Tyagi, Kaushik Poddar, Adarsh Upadhyay, S. K. Verma, N. Ganpathy,
Arijit Mazumdar, Abhinav Muke1:ji, Ms. Archana Pathak Dave, Ms.
Ankita Chaudhary, Ardhendumauli Kumar Prasad, Mrs. Pratibha Jain,
Ms. Nilofar Khan, R. C. Gubrele, Anant K. Vatsya, Dr. Sanjay Gupta,
                                                                          E
Ajay Singh, Dr. Sushi! Balwada, Ambhoj Kumar Sinha, Pradeep Kumar
 Dubey, Viswajit Singh, Naresh Kumar, Merusagar Samantaray, Renjith
Marar, Vinodh Kanna B., S. J. Amith, Gautam Kumar, Dr. (Mrs.) Vipin
Gupta, P. B. Suresh, Vipin Nair, Tishampati Sen, Ms. Nandini Sen, D. P.
Mukherjee, Amai:iit Singh Bedi, Umang Gupta, Varun Chandiok, Srisatya
Mohanty. Ab hay Kumar, Khalid Akhtar, Bilal Khan, A. R. Madhav Rao, F
 Rajat Mittal, Pawanshree Agrawal, Amar Gupta, Ritunjay Gupta, Divyam
Agarwal, Pankaj Bhagat, Ms. Babita Sant, Ms. Sunaina Kumar, Nitesh
Jain, Shubhranshu Padhi, Kush Chaturvedi, M. Yogesh Kanna, Ms.
Ni th ya, Sunil Roy, Raj iv Tyagi, Divakar Kumar, Gyanendra Shanna, Rahul
Tyagi, Ajay Bansal, Gaurav Yadava, Viswapal Singh, Naveen Shanna, G
 Mishra Saurabh, Ankit Kumar Lal, Ms. Vanshaja Shukla, Biswajit Das,
 Nayanika Pattnaik, Ms. Asha G. Nair, Ms. Sonu Bhatnagar, Anil Kumar,
 Nishant Ramakantrao Katneshwarkar, R. Nedumaran, Ms. Rashmi
 Singhania, Ayush Sharma, Nupur Shanna, ShaileshK. Kapoor, Sanjay
 Kumar Singh, Advs. for the appearing parties.
                                                                          H
166             SUPREME COUIU REPORTS                           [2016] 10 S.C.R.



             The following .Judgments and Order of the Court were delivered:

             T. S. THAKUR, C.11 (for himself and A. K. Sikri and A. M.
      Khanwilkai; .J.J.) I. These appeals bring to fore for our determination
      vexed questions touching the interpretation of Articles 301 to 307
      comprising Pmi XIII of the Constitution which have been the subject
B     matter or several Constitution Bench decisions of this Court, all but one,
      decided by majority. The questions assume in a great measure
      considerable public importance not only because the same deal with the
      powers of the State legislatures to levy taxes but also because any
      pronouncement of this Court is bound to impact the federal character of
      our polity and the Centre-State relationship in legislative and fiscal matters.
      There is no gainsaying that it is the importance of the questions that lies
      al the bottom of the present reference to a larger Bench made in the
      following circumstances.

             2. ln exercise of their legislative powers under Entry 52 of List II
D     of the Seventh Schedule to the Constitution several States in the country,
      at least 14 of whom are parties to these proceedings, have enacted laws
      that provide for levy of a tax on the "entry of goods into local areas
      comprising the States". The constitutional validity of these levies was
      questioned in different High Courts by assesses/dealers aggrieved of
      the same, inter a!ia, on the ground that the same were violative of the
      constitutionally recognised right to free trade commerce and intercourse
      guaranteed under Article 301 of the Constitution of India. The levies
      were also assailed on the ground that the same were discriminatory and,
      therefore, violative of Article 304(a) of the Constitution oflndia. Absence
      of Presidential sanction in terms of Article 304(b) of the Constitution of
 r    India was also set-up as a ground of challenge to the levies imposed by
      the respective State legislatures. Writ Petition (Civil) No. 8700 of2000
      filed before the High Court of Punjab and Haryana was one such petition
      that assailed the constitutional validity of the Haryana Local Development
      Act, 2000. Relying upon the decisions of this Court inAtiabari Tea Co.
 G    Ltd. v. State of Assam & Ors. (AIR 1961 SC 232); Automobile
      Transport (Ra)astllan) Ltd. etc. v. State of Ra}asthan & Ors. (AIR
      1962 SC 1406); Mis. Bhagatram Rajeev Kumar v. Commissioner
      of Sales Tax, M.P. and Ors. (1995 Supp [1] SCC 673 ); and State of
      Bilwr and Ors. v. Bihar Chamber of Commerce and Ors. (1996) 9

 H
       JINDAL STAINLESS ITD. v. STATE OF HARYANA                             167
                   [T. S. THAKUR, CJl]

SCC 136, a Division Bench of the High Court of Punjab and Haryana            A
dismissed the said petition and connected matters on the ground that the
levy was compensatory in character hence outside the purview of Article
301.
       3. The correctness of the said order was assailed before this Court
in Jindal Stripe Ltd. and Am: v. State of lla1J1a11a and Ors. (2003)         B
8 SCC 60. A two-Judge Bench of this Court, however, referred the
matter to a larger Bench as it noticed an apparent conflict between the
pronouncements of this Court in Atiabari (supra) and Automobile
Tramport (supra) cases on the one hand and Bhagatram (supra) and
Bihar Clrnmber of Commerce (supra) on the other. The Court after             c
noticing the development of law on the subject observed:


       "25. To sum up: the pre-1995 decisions held that an
       exaction to reimh11rse/recompense the State the cost of
       an existing facility made available to the traders or the             D
       cost o{ a specific facility planned to he provided to the
       traders is compensatory tax and that it is implicit in such
       a levy that it must, more or less, be commensurate with
       the cost of the service or facility. The decisions
       emphasized that the imposition of tax must he with the                E
       definite pwpose of meeting the expenses on account o{
       providing or adding to the trading facilities either
       immediately or in fitture provided the quantum of tax
       sought to he generated is based on a reasonable
       relation ro the actual or projected expenditure on the
                                                                             F
       cost of the service or facility.


       26. 111e decisions in Bhagatram and Bihar Chamber of
       Commerce now sav thar even if the purpose o{ imposition
       of the tax is not mere~v to confer a special advantage                G
       on the traders hut to benefit the public in general
       including the traders. that levy can still he considered
       to he compensarmy. According to this view, an indirect
       or incidental hene/it lo traders hy reason o{ stepping
                                                                             H
108            SUPREME COURT RF.PORTS                      [2016] 10 S.C.R.



A           up the developmental activities in various local areas
            of' the State ca11 be legitimately brought within the
            co11cept of' compensatory tax, the nexus het\1'een the
            tax k11ow11 as compensatOI)' tax and the tradingfacilities
            not heing necessari(v either direct or specific.
B

            2 7. Since the concept of compensatorv tax has hee11
            judicial!\' evolved as an exception to the provisions of
            Article 301 and as the parameters of this judicial
             co11cept are h!urred, partintlar!y by reason of the
C           decisions in Blrngatram and Bi/tar Cltamber of
             Commerce we are of the view that the interpretation of
            Article 301 vis-a-vis compensatory tax should be
            authoritatively laid dmvn ivith certitude by the
             Constitution Bench under Article 145(3).
D
            28. !11 the circumstances let all these matters he placed
            hefime the Hon 'hie the Chief .Justice for appropriate
            directions. "

 E
             4. The matters were. pursuant to the above, placed before a
      Constitution Bench of this Court in Jindal Stainless Ltd. (2) and A11r.
      v. State <~f IlmJ•ana and Ors., (2006) 7 SCC 241 which resolved the
      conflict noticed in the reference order by holding that the working test
 f    propounded by seven Judges in Automobile Transport case (supra) was
      incompatible with the test of 'some connection' enunciated by the
      three Judge Bench in Bhagatram'.~ case (supra). The Court held that
      the test of 'some connection' as propounded in Bhagatram 's case
      (supra) had no application to the concept of compensatory tax. The
      Court, accordingly, ovenuled the decisions rendered in Bhagatram and
G     Bihar Chamber of Commerce cases and held that the doctrine of' direct
      and immediate effect' of the impugned law on trade and commerce
      under Article 301 as propounded in Atiabari (supra) and the working
      test enunciated in Automohile Transport (supra) cases for deciding
      whether a tax is compensatory or not will continue to apply. The Cou1t
 H
       JINDAL STAINLESS LTD. v. STATE Of HARYANA                            169
                   [T. S. THAKUR, CJI]

observed:                                                                   A


      "53. We reiterate that the doctrine of "direct and
      immediate effect·· of the impugned law on trade and
      commerce under Article 301 as propounded in Atiabari
                                                                            B
      Tea Co. Ltd. v. State of Assam and the working test
      e111111ciated in Automohile 7/·ansport (Rajasthan) Ltd. v.
      State of Rajasthan for deciding whether a tax is
      cmnpe11sat01y or not vide para 19 of the Report (AIR),
      H·ill continue to apply and the test of "some connection"
      indicated in para 8 (of SCC) of the judgment in                       c
      Bhagatram Rajeevkumar v. CST and followed in State
      of Bihar v. Bihar Chamber of Commerce is, in our
      opinion, not good law. Accordingly, the constitutional
      validity of various local enactments which are the
      s11hject-matter.1· of pending appeals, special leave                  D
      petition.1· and writ petitions will now he listed for being
       disposed of in the light of this judgment. "


      5. The matters were. in terms of the above direction, listed before
a two-Judge bench for hearing of the appeals in the light of the above      E
pronouncement of the Constitution Bench. The two-Judge Bench,
however, noticed that although the basic issue in the appeals revolved
around the concept of compensatory tax, the High Courts had not
examined the same as they had considered themselves bound by the
view taken in Bhagatram and Bihar Chamber of Commerce cases                 F
(supra). The Court further found that in the absence of relevant data
before the High Courts, the issue whether the levies were compensatory
could not have been considered and accordingly referred the matter
back to the High Courts to decide the said aspect. The appeals were, in
the meantime, adjourned to await the finding from the High Courts on
the question whether the levies were indeed compensatory in nature          G
having regard to the decisions of this Court inAtiabari and Automobile
Ji'amport cases (supra).
        6. The matters were accordingly taken up by the High Courts,
after the remand, who came to the conclusion that the impugned levies
                                                                            H
170             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     were neither compensatory in character nor was the procedure stipulated
      by Article 304(b) and the proviso to the same followed. The levies were
      on that basis held to be in violation of Article 301 being an impediment to
      free trade, commerce and intercourse and accordingly struck down.
      The High Courts of Assam, Arunachal Pradesh, Jharkhand, Kerala and
      T1mil Nadu struck down the levies imposed by their respective States
B
      also on the ground that they were discriminatory in nature hence violative
      of Article 304(a) of the Constitution.
             7. All these judgments and orders of the High Courts. passed
      after the remand, then, came to be challenged by the States concerned
C     in the appeals filed against the same. These appeals initially came-up
      before a two-Judge Bench of this Court comprising .Justice Arijit Pasaya!
      and Justice S.H. Kapadia. Their Lordships referred the same to a
      Constitution Bench for an authoritative pronouncement on as many as
      ten questions formulated in the reference order (Jaipralws!t Associates
      Limited v. State of Mad/Jya Prades/J and Ors. (2009) 7 SCC 339).
 I)
      The Court noticed the arguments advanced on behalf of the assessees
      that entry taxes were, in essence and ill the classical sense, in the nature
      of 'a fee' and not 'a tax'. It also noted the contention that all the cases
      on which the parties had placed reliance related to entry tax in the context
      of tax on vehicles in contradiction to taxes on entry of goods. The Court
      was of the view that while the Constitution Bench in Jindal Stainless
      Ltd. (2) (supra) had dealt with some aspects of the matter, certain other
      important constitutional issues remained to be examined especially
      because a conceptually and contextually different approach may be
      required vis-rl-vi.1· "transport cases" on the one hand and cases of·'entry
      tax on goods" on the other. The questions formulated by the Court for
 F
      determination by the Constitution Bench were in the following words:

             "(l) Whether the State enactments relating to levy of
             entrv tax have to he tested with reference to hoth clauses
             (a) and (h) of Article 304 of the Constitution for
             determining their validity and whether clause (a) of
 G
             Article 304 is conjunctive with or separate fi'om clause
             (h) of Article 304?

             (2) Whether imposition of entry tax levied in terms of
             Entry 52 Ust II of the Schedule VJJ is violative of Article
 H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                    171
             IT. S. THAKUR, CJl]

301 of the Constitution? If the answer is in the              A
affirmative whether such levy can he protected if entry
tax is cmnpensatorr in character and if the ansiver to
the af(Jresaid question is in the a{firmlitive what are the
yardvtick.I· to he applied to determine the compensatmy
character of the rntr)' tax?                                  B

(3) /!Vhether En Irr 52 Ust II, Schedule VII of the
Co11s1it11tion like 01her taxing entries in the Schedule,
men· , J>mvides a taxing field for exercising the po1ver
to /el'.1' a11d whether collection of entry tax which
ordinarilv would he credited to the Consolidated Fund         C
of the State being a revenue received by the Governme/11
of the State and 1vould have to he appropriated in
accordance ivith law and for the purposes and i11 the
manner provided in the Constitution as per Article 266
and there is nothing express or explicit in Entry 52 List
                                                              D
fl, Schedule VII 1\'hich would compel the State to spend
the tax collected within the local area in which it was
collected?

(1) Will the principles of quid pro quo relevant to a fee
applv in the matter of' taxes imposed under Part XIII?        E

(5) Whether the entry tax may he levied at all where the
goods meant .for heing sold, used or consumed come to
rest (standvtill) afier the movement of the goods ceases
in the ''local area"?
                                                              F
(6) Whether the entry tax can he termed a tax on the
movement of goods when there is no har to the entry of
good1· at the State horder or when it passes through a
local area within which they are not sold, used or
C0/1Sl/11Jed?
                                                              G
(7) Whether inte17Jretation o/Articles 3()1 to 304 in the
co/1/ext ol tax on vehicles (commonly known as
"transport") cases in Atiahari case and A utomohile
11-ansport case applv to e1111y tax cases and !f so, to
whal extenr'!
                                                              H
172            SUPREME COURT REPORTS                         [2016] l 0 S.C.R.



A           (8) Whether the 11011-discriminatorv indirect State tax
           which is capahle of' heing passed on and has heen
           passed 011 hy traders to the consumers infi·inges Article
           301 of' the Constitution?

            (<J) Whe!her a tax on good1· within the State vvhich directlv
 B          impedes the trade and thus violates Article 301 of the
            Constitution can he saved hy ref'erence to Article 304
            of the Constitution alone or can he saved hy any other
            article?

            (10) Whether a fe1~y under E1111y 52 List JI, even if held
c
           to he in nature of' a compensatory levy, must, on the
           principle of equivalence demonstrate that the value of
           the quantifiahfe henefit is represented hy the costs
           incurred in procuring the facifitylservices (v..-!1ich costs
           in tum become the hasis of rei111hursement/reco111pe11se
D          for the provider of the services/facilities) to he provided
           in the "local area .. concerned and whether the entire
           State or a part thereof' can he comprehended as local
           area fiir the pwpose of' entn· tax?"

 E
             8. The matter was accordingly placed before a five-Judge Bench
      of this Court (.Jindal Stainless Limited and Am: v. State of llaryana
      and Ors. (2010) 4 SCC 595) who briefly refe1Ted to the decisions in
      Atiabari, Automobile Transport cases (supra) and Kesltm• Mills Co.
      Ltd. v. CIT (AIR 1965 SC 1636) and a few others and refe1Ted the
 F    matters to a larger Bench for reconsideration of the judgment of this
      Court in Atiabari and Automobile Tramport (supra). The Court noted
      that the correctness of the view taken in the said two cases had been
      doubted as early as in the year 1975 in G.K. Krishnan v. State of
      Tamil Nadu (1975) 1 SCC 375. The reference order briefly set out
 G    some of the questions that required consideration by a larger Bench.
      The Court said:


            "l J. Some of' these aspects which need consideration
            hr a farger Bench of' this Cowt may he hriefly
 11
      JINDAL STAINLESS Ll'D. v. STATE Of HARYANA                            173
                  [T. S. THAKUR, CJl]

     e111111ierared. Interplay/interrelationship hetvveen Article           A
     301(a) 011d ,1rticle 304(/J). The significa11ce of the word
     "and" he/ween Articles 304(a) a11d 304(h). The
     significance of the non ohstante clause in Article 304.
     The halancing o{.fi'eedom of trade and commerce in
     llrticle 301 vis-a-vi.1· the Srates' authority to levy taxes           B
     under Articles 215 and 246 of the Constitution read
     with the appropriate legislative entries in the Seve11th
     Schedule. particularly in the context of movement of
     trade and cmnmerce.

      12. Whether Article 301(a) and Article 304(/J) deal with              c
      differe111 suhjccts? Whether the impugned taxatio11 law
      to he valid under Article 301 (a) must also fu(fil the
      conditions mentio11ed in Article 304(/J), including
      Presidential assent? Whether the ivord "restrictions"
      in Article 302 and in Article 304(/J) includes tax laws?
                                                                            D
      Whether validity al a /av.; impugned as violative of
      Article 301 should he judged only in the light of the
      test of non-discrimination?            Does Article 303
      circumscribe Article 301? Whether "internal good.1·"
      H'mild come under Article 304(/J) and "external goods·"
      under Article 304(a) '! Whether "per se test" propounded              E
      in Atiahari case should or should not he rejected?
       Wherher tax simpliciter constitutes a restriction under
      Part Xlll of the Constitutibn? Whether the word
       "restriction" in Article 304(h) includes tax lmvs? ls
      taxation justiciahle? Whether the "working test" laid
      dmrn in A tiahari makes a lax law per se violative of'
      Article 30 l '! Jrzterrelationship hetween Article 19(1)(.g)
      and Article 301 of the Constitution? These are some of
       the questions v.11ich warrant reconsideration of the
      judgments in Atiahari Tea Co. Ltd. and Automobile
       hansport (Rajasthan) Ltd by a larger Bench of this                   G
       Court. "
       9. At the hearing before us learned counsel for the parties agreed
after a day-long exploratory exercise that the questions that fall for

                                                                            H
174            SUPREME COURT REPORTS                         [2016] I0 S.C.R.


A     determination by this Cou1t could be re-framed as under:

            I. Can the levy of a non-discriminatory tax per se constitute
            infraction of Article 301 of the Constitution of India?

            2. If answer to question No. I is in the affirmative, can a tax
B           which is compensatory in nature also fall foul of Article 301
            of the Constitution of India?

            3. What are the tests for determining whether the tax or
            levy is compensatory in nature?

C           4. Is the Entry Tiu levied by the States in the present batch
            of cases violative of Article 301 of the Constitution and in
            particular have the impugned State enactments relating to
            entry tax to be tested with reference to both Articles 304(a)
            and 304(b) of the Constitution for determining their validity'!
o            I 0. We have heard learned counsel for the parties at considerablt:
      length on the above questions which we shall now take up for discussion
      ad-seriatim.


            Re: Question No. 1
 E

             l I. Whether no11-discri111inato1y fiscal measures also impede free
      trade, commerce and intercourse and thereby fall foul of Article 30 I of
      the Constitution can be answered only if one keeps in view the
 F    Constitutional scheme underlying separation of powers in a federal
      system of governance like the one chosen by us. The answer would also
      depend upon the way we look at. understand and interpret the provisions
      of the Constitution and in particular the provisions of Parts XI, XII and
      Xlll thereof. Interpretation of these and indeed every other provision
      must have due regard to what are recognised as the basic features of
G     the Constitution. In doing so, the approach of the Courts can neither be
      rigid nor wooden or pedantic. Being a Iiving and dynamic document, the
      Constitution ought to receive an equally dynamic and pragmatic
      interpretation that harmonizes and balances competing aims and objectives
      and promotes attainment of national goals and objectives. It must, as
H
       JINDAL STAINLESS LTD. v. Sl~.\TE OF HARYANA                        175
                   [T. S. THAKUR. CJ!]

observed by this Court. in Ki/1010 Hollo/um I'. Zttcl1il/hu (1992) Supp A
2 SCC 651 be read as a logical whole. The Constitutional provisions
cannot be read in isolation. nor can they be interpreted in a manner that
renders another provision redundant declared this Court in T.M.A. Pai
Fo1111d11tion and others 1•. State of Kamatakll (2002) 8 SCC 481. If
words used in the provision are imprecise, protean or evocative or can B
reasonably bear meaning more than one. it would be legitimate for the
Court to go beyond the literal confines of the provision and to call in aid
other well recognised rules of construction such as legislative history,
the basic scheme and framework of the statute as a whole, the object
sought to be achieved and the consequence flowing from the adoption
of one in preference to the other possible interpretation observed this c
Court in Chief Justice of Audhm Pradesh anti others. v. L. V. A.
Dixit11l11 lint! others (1979) 2 SCC 34. Reference may also be made
 to the decision of this Court in Ke.mw111<111da Blwrati v. State ofKemla
 (1973) 4 SCC 225 where this Court quoted with approval Lord Greene:~
 observations in the following words:                                       D


       '"56 . ... ... It is not riah/ to construe words in vacuum
       and then insert the meaning info an arlicle. Lord Green
       observed i11 Bidie v. General Accident. Fire and Life
       Assurance Corporation [1948] 2 All E.R. 995:                        E

       The first thing one hos to do. I venture to think. in
       construing words in a section <~f w1 Act 1if Parliament is
       not to take those words in vacuo. so to speak. and
       attribute to them what is sometimes called their natural
       or ordinary meaning. Few words in the E11glish                      F
       language have a natural or ordinary 111ea11i11g in the
       sense that they must be so read that their 111eani11g is
       entirely independenl of their context. The method 14"
       construing statutes that I prefer is not to take particular
       words and attribute to them a surf of prima facie                   G
       meaning which you may have to di.1place or modify. ft
       is to read the statute as a whole and ask 011eself the
       question: '!11 this state, in this context, relating to this
       subject-matte1; what is the true meaning of that word.

                                                                           H
17(,             SUPREME COURT REPORTS                            [2016] 10 S.C.R.



 /\           5 7. 1 respect/idly adopt the reasoning of Lord Green in
              co11strui11g the expressio11 "the amendment of the
              Constitution ....
              xxxxxxxx
              61. 1 may also refer to the ohservatio11 of Gwve1; CJ.,
 R
              a11d Lord Wright:
                        "A grant of the power in general terms,
              standing hy itself, would no douht he construed in the
              vvider sense; hut it mav he qualified by other express
              provisions in the same e11actment, hy the implications
c
              ol the context, and even hy considerations arising out
              of H1wt appears to he the general scheme of the Act."
              (Per GH·1•e1: CJ - The Central Provinces and Berar
              Act, 1939, FCR 18 at 12 MR).

D                        "The question. then, is one olconstruction and
              in the ultimate resort must he determined upon the actual
              words used, read not 111 vacua but as occurring in a
              single complex instrument, in which one part may throw
              light on anotha The Constitution has heen described
              as the federal compact, a11d the Construction 11111.1·t hold
 E            a balance hetween all its parts. " (Per Lord Wright -
              James v. Co111111011wea!th olAustralia, 1936 AC 578 at
              613.)"



F              12. It is trite that a nanow interpretation that may have the potential
       or tendency to subvert the delicate balance which the framers of the
       Constitution had in mind while distributing legislative businesses including
       the sovereign power to levy taxes must be avoided and a construction
       that is most benefici.al for a harmonious relationship between different
       limbs of the State including that between the Centre and the States or
G      States inter se adopted. This may. at times, involve ironing out of rough
       edges which exercise a Constitutional Court must necessarily undertake
       to avoid confusion and resultant negation of the Constitutional objectives.
              13. Having said so. we must sail smooth on certain fundamentals

1-1
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            177
                   [T. S. THAKUR, CJ!]

before we address the question whether levy of taxes per se operate as A
an impediment or restriction on the right to free trade, commerce and
intercourse. That is because a true and correct answer to Question
No. I can be found only if we constantly keep those fundamentals in
mind while attempting to resolve what has been found to be somewhat
difficult to resolve. For instance, whether levy of a tax is an attribute of B
sovereignty and if so whether Article 246 of the Constitution recognises
the sovereign power of the State to make laws including the power to
levy taxes on subjects enumerated in List II of the Seventh Schedule of
the Constitution is an important dimension that must be addressed as a
part of the interpretative exercise. So also, we must examine whether
pO\verto tax if held to be subservient to Article 30 I, shall h~ve the effect c
of denuding the States of their sovereignty in the matter of levy of taxes
and in the process affect the federal structure of the polity envisaged by
the Constitution. If levy of taxes is always presumed to be reasonable
and in public interest, whether such levies could be said to be within the
contemplation of Article 304(b) when it provided for imposition of D
"reasonable restrictions in public interest'' is yet another aspect that must
be explored especially when the reasonableness of any restriction within
the comprehension of Article 304(b) is not free from judicial scrutiny by
Courts. These are some of the broad and fundamental issues that need
to be examined before we attempt to answer the question whether levy
                                                                              E
of taxes per se acts as an impediment for free trade, commerce and
 intercourse. We may now briefly refer to these fundamentals before
adverting to the provisions of Part Xlll that fall for our interpretation .
     . Power to Tax : an Attribute of sovereignty
       14. Power to levy taxes has been universally acknowledged as an       F
essential attribute of sovereignty. Cuvley in his Book on Taxation -
Volume-I (4'" Edn.) in Chapter-2 recognises the power of taxation to be
inherent in a sovereign State. The power, says the author. is inherent in
the people and is meant to recover a contribution of money or other
property in accordance with some reasonable rule or apportionment for
                                                                             G
the purpose of defraying pub! ic expenses. The following passage from
the book is apposite:
       "57. Power to tax as an inherent attribute of.wJJ'ereignty.
         The power (~l taxation is an essential and inherent
                                                                             H
178            SUPREME COURT REPORTS                        [2016] I 0 S.C.R.



A          attribute of' sovereignty, belonging as a murter of' right
            to every independent government. It is possl'ssed by
            the government without being expressly conferred by
            the people. The power is inherent in the people because
            the sustenance of' the government relJUires cun1ril111tio11s
           Ji-inn them. In fac:t the power of taxation may be defined
B
            as "'the puwer inherent in the sovereign state to rec:uver
            a contribution r~f money or other property, iii
            accordanc:e with some reasonable rule or
           apportionment. Ji"om the property or oc:c:upations within
            its jurisdiction for the purpose of defi·aying the public
c           expenses. " Constitutional provisions rel11ting lo 1he
           power of taxation do not operate 11s grants <~f the puwer
            of taxation tu the government but instead merely
            constitute limitations upo11 a power whic:h would
            otherwise be practically without limit. This i11here11t
D          power to tax extends to everything over which the
           sovereign power extends, but not to anything beyond
            its sovereign power. Even the federal gover111ne111 :1·
           power of taxation does not inc:lude things beyond its
           sovereign pmFe1: But where exclusive j11risdictio11 over
            land is granted to another stale or co1111t1J', the land
 E
            remains suNect to the taxing power <~/the state within
            whose boundaries it is located. "


             15. To the same effect is the decision of this Court in Raia
 F    Jllga11nlltfl Bllksh Singh v. State of U.P. & Anr. (AIR 1962 SC 1563)
      where this Court observed:


                   The power of taxation is. no doubt. the sovereign
            ri<,£ht of the State: as was observed bv Chief' .Justice
G           ~Marshall in lvf'Culloc:h v. Marv/and U Law Edn. 5 79
            p.6071 : "The power of taxing the people and their
            properrv is essential tu the verv existenc:e o{Govern111e11t,
            and mav be legitimatelv exercised 011 the obiects to which
            it 'is upplicahle to the utmost extent to which the
H
      JINDAL STAfNLESS LTD. v. s·1~<\TE OF HARYANA                      179
                  [T. S. THAKUR, CJ!]

     Government mav choose to carrr it." In that sense. it is           A
     not the function of the court tu eni-1uire whether the
     power of taxation has been reasonably exercised either
     in respecr of the amount taxed or in re.1pecl of the
     property which is made the object of the tax. Article
     265 of the Constitution provides that no tax shall be              B
     levied or collected, except by authority of law: and so.
     for deciding whether a tax has been validly levied or
     not. it would be necessmy first to enquire whether the
      legislature which passes the Act H'llS competent tu pass
      it or 1101. "
                                                                        c
                                           (E111p/1t1sis supplied)


     16. Reference may also be made to Dena Bank v. Bhik/iahlrni
Prabhudas Parekh & Co. (2000) 5 SCC 694 where this Court held:
                                                                        D
      "8. The principle of priority of government debts is
     founded on the rule of necessity and of public policy.
      The basic justification jiJr the claim jiJr priority of State
     debts rests on the well-recognised principle that the State
     is entitled to raise monei· bv taxatio11 because unless
     adequate revenue is received bv the Stale. ii would nut            E
     be able to function as a so1•ereign Government at all. It
      is essential that as a sovereign, the Stale should be able
      to discharge its priman: governmental functions and in
      order lo be able to discharge such f1111ctions efjicientlv,
      it must be in possession of necessan• funds and this              F
      consideration emphasises the necessity and the wisdom
   ~ of conceding to the State, the right to claim priorit): in
      re.1pec1 of its tax dues (.~ee Builders Supply Cu11111.[AIR
      1965 SC 1061: (1965) 56 !TR 91])"
                                          (E111pflt1sis supplied)       G


       17. In Commissioner of Income Tax, Udit1p11r, Rajastlian v.
MCtlowell and Co. Ltd. (2009) 10 SCC 755 where this Court reiter.1ted
the legal position in the following words:
                                                                        H
180      SUPREME COURT REPORTS                         [2016] I 0 S.C.R.



A     "2 I. "Tax". "dutv ··. ''cess" ur "fee" cu11stiluting a class
      denules tu l'ariuus kinds u{ impusts bv State in its
      sovereign power of taxation lo raise r11ve1111e (or the
      Stale. Within the expressiu11 uf each specie each
      expression denotes different kind of impost depending
B
      on the purpose for which they are levied. This power
      can be exercised in w1y uf its 111a11ifestatio11 only under
      any law authori.1ing levy and collection of lax as
      e11l'isaged under Article 265 which uses only the
      expression thal no "tax" shall be levied and collec!ed
      excepl authorised by law. It in ifs elementary meaning
c     conveys that to support a tax legisla!ive action is
      essential, it cannot be levied and collecled in the ahse11ce
      r!f any legislative sanction by exercise uf executive
      power rif Stale under Article 73 hy the U11io11 or Article
      I 62 by the State.
D     22. Under Article 366(28) "Taxation" has been defined
      lo include the imposition of any lox or impost whether
      general or local or special and tax shall be construed
      accordingly. "Impost" meuns compulsory levy. The wqJl-
      known a11d well-settled characteristic of "tax" in its
 E    wider sense includes oil imposts. Imposts i11 the context
      have fi1llowing characteristics:


      (i) The pol1'er to tax is an incident of sovereig111v.
 F    (ii) "Law" ill the context <~f Article 265 mew1s an Act c~f
      legislature and cannot comprise an executive ordl!I' or
      rule without express statutm:v authority.
      (iii) The term "tax" 1111der Article 265 read with Article
      366(28) includes imposts of everr kind viz. tax, duty,
G     cess or fees.
      (iv) As an i11cide11t ofsovereigntv and in the nature of
      compulsorv exaction. a liabilitv fin11llled 011 principle
      of contract cannot be a "tax" in its t<!Chnical sense us
      w1 impost. general, local or special. ..

1-1                                         (Emphasis Supp/ietl)
       JINDAL STAINLESS LTD. v. S'fATE OF HARYANA                             181
                   [T. S. THAKUR, CJI]

      Power o{ Taxation 1111der tile Co11.stitutio11:                         A
       18. We shall presently turn to the Constitutional limitations on the
sovereign power to tax but before we do so we need to point out that
while the power to levy taxes is an attribute of sovereignty, exercise of
that power is controlled by the Constitution. This is evident from the
provisions of Article 265 which forbids levy or recovery of any tax except    B
by the authority of law. It reads:


      "265. Taxes not to he imposed sm•e by a11tl10ri(v of law
      - No fax shall be lei!ied or co/leered except by auihorify
      of law."
                                                                              c


      The authority of law referred to above must be traceable to a
provision in the Constitution especially where the legislative powers are
shared by the Centre and the States as is the case with our Constitution      D
which provides for what has been described as quasi federal system of
governance.
      The source of power to enact laws is contained in Articles 245
and 246 of the Constitution which read:
                                                                              E

       "245. Extent of laws made by Parli11111e11t and by the
       Legislatures of State~· - (I} Subject fo the provisio11s of
       this Constitution. Parliament may make laws for the
       whole or any part of the territory of India, and the
                                                                              F
       Legislature of a State may make laws for the whole or
       any part of the State.

       (2) No law made by Parliament shall be deemed to be
       invalid 011 the ground that it would have extra-territorial
       operation.                                                             G
      246. Subject-matter of law.~· made by Parliament and
      by the Legislatures of States - (1) Notwithstanding
      anything in clauses (2) and (3). Parliament has exclusive
      power to make laws with respect lo any of the mal/ers
                                                                              H
182             SUPREME COURT REPORTS                          [2016) 10 S.C.R.



A           enumerated in List I in the Seventh Schedule (in this
            Constitution referred to as the "Union List").

            (2) Notwithsta11di11g anything in clause (3), Parliament
            and , .whject to clause (1), the J"egislature of any State
            also, have power to make laws with respect to any of
            the matters enumerated in Ust Ill in the Seventh
            Schedule (in this Constit11tio11 referred to as the
            "Concurrent List").

            (3) Suhject to clauses (1) and (2), the Legislature of
            any State has exclusive power to make laws for such
c           State or any part thereof ·with respect to any of the
            matters enumerated in List 11 in the Seventh Schedule
            (in this Constitution referred to as the 'State J,ist ').

            (4)Parliame11t has power to make laws with respect to
D           a11y matter for any part of the territory of India not
            i11cluded {in a State] notwithstanding that such matter
            is a matter enumerated in the State List. "


             l 9. Interpreting Articles 245 and 246, a three-Judge Bench of this
F.    Court in Mis. lloechst Pliarmace11tical.1· Ltd anti Ors. v. State of Bihar
      and Ors. (1983) 4 SCC 45, held on a review of the available decisions
      that the Constitution effects a complete separation of taxing powers of
      the Union and the States under Article 246 and that there is no overlapping
      anywhere in the exercise of that power. The sources of taxation are
 F    clearly delineated, observed the Court. The Court also held that there is
      a distinction between general subjects of legislation and taxation for the
      former are dealt within one group while the later is dealt with in a separate
      group. The result is that the power to tax cannot be deduced from a
      general legislative entry. That view was approved by a Constitution
      Bench of this Court in State of West Bengal v. Kesoram Industries
G
      Ud. (2004) 10 SCC 201. The propositions stated in the two decisions
      must therefore be treated to be fairly well settled. Reference may also
      be made to the decision of this Court in State of Kera/a anti ors. v.
      Mar Appmem Kuri Co. Ltd. and Anr. (2012) 7 SCC 106 where this
      Court explained the sweep and purport of Articles 245 and 246:
H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                      183
             [T. S. THAKUR, CJ!]

"35. Article 2./5 deals with ex/en/ of' laws made by            A
Par/iamelll and by the legislatures of States. The verb
"made", in pas/ tense, finds place ill the Head Note lo
Arlicle 2./5. The verb "make", i11 the present tense, exists
in Article 2-15(1) whereas the verb "made", in the past
tense. finds place in Article 2./5(2}. While the legislative    8
power is derived fru111 Article 2-15. !he entries ill the
Seventh Schedule of the Collstitwion 011/v demarcate
!he legislative fields o( the respective /egislalures and
do llOI confer legislative power as such. While
Parliament has power lo make laws for the whole or
any parf of !he territory of India. the legislature of a        c
Stale cw1 make laws only fiJr the Stale or par/ the1w!f
 Thus, Article 2-15 inter aliu indicates the ex/e11/ of laws
made by Par!iame11/ and by the Stale Legislatures.

36. Article 246 deals with the subject-mu/fer of laws
                                                                D
made by Parliament and by the legislatures (!f States.
The verb "made" once again finds place in the Head
Note to Article 2-16. This article deals with distribution
o(/egislative powers as betweell the Union and the State
Legislatures. with reference lo the different Lists in the
Seventh Schedule. Jn iihorl, Parliame11l has full and           E
exclusive powers lo legislate with re.1pec/ lo mailers in
Lisi I and has also power tu legislate with respect lo
mailers in Lisi Ill, whereas the Stale Legislatures, on
the other hand, have exclusive power lo legislate with
respect to matters in Lisi fl, minus mattersfi11/i11g in Lisi   F
I and List 111 and have concurrenl power with respect
lo matlers in Lisi 111. (.'lee Subrahmanyan Chell iar v.
Jvluttuswami Goundan)

37. Article 246. thus, provides for dislribulio11, as
between Union and the Stales. o( the legislative powers         G
which are conferred bv Article 2-15. Article 2-15 begins
with the expression ''subject to the provisions of this
Constitution". Therefore, Article 2-16 must be read as
"subject to other provisions of the Conslitulion ".
                                                                H
184             SUPREME COURT REPORTS                          (2016] I 0 S.C.R.



A           38. For the purposes (}f this decision, the point which
            needs to be emphasised is that Article 245 deals with
            co11(erment o( legislative powers whereas Article 246
            provides fin· distribution of the lc<.;islative por1'as.
            Article 245 deals with extent o( laws whereas Article
            246 deals with distribution of/egi.,/ative puwers. 111 these
B
            articles. the Constitutio11 Framers have used the word
             ··make" and 110! "comme11ce111e111" which has a specific
            legal co111101ation. [See Section 3(13) of the General
            Clauses Act. 1897.j"

c                                                  (Emphasis supplied)


            Limitatio11s 011 the Exercise o(Power
              20. Exercise of sovereign power is. however. subject to
D     Constitutional limitations especially in a federal system like ours where
      the States also to the extent permissible exercise the power to make
      laws including laws that levy taxes. duties and fees. That the power to
      levy taxes is subject to constitutional limitations is no longer res-integra.
      A Constitution Bench of this Court has in Sy11tltetics and Chemical.~·
      Ltd. and Ors. 11. St{l/e of U.P. {Int/ Ors. (1990) 1 SCC 109 recognised
 E    that in India the Centre and the States both enjoy the exercise of sovereign
      power, to the extent the Constitution confers upon them that power. This
      Court declared:



 f            ·· 56 ... We would not like, howeve1'. to embark upon
             any theory (4 police power because the 111dia11
             Constitution does not rec"gnise police power as such.
             But we must recognise the exercise of Sovereign j)O"Wer
             which gives the State sufficient authority to enact any
             law subject to the limitations of the Constitution to
G            discharge its fimctions. Hence. the Indian Constitution
             as a sovereign State has power to legislate on all
             branches except to the limitation as to the division of
             powers between the Centre and the Stales and also
             subject to the fi111da111e11ta! rights guaranteed under the
H
       JlNDAL STAINLESS LID. v. STATE OF HARYANA                                185
                   [T. S. THAKUR, CJI]

      Constitution. The Indian States. hetween the Centre and                   A
      the States, has sovereign powe1: The so1'ereign pmver
      is plcnar)' and inherent in every sovereign State to do
      a11 things H'hich promote the health, peace, morals,
      education and good order of' the people. Sovereignty is
      difficult to define. This power of' sovereignty is.                       B
      hm1·c1'er. suhiect to constitutional limitations. "This
      p011·c1: according to some constitutional authorities. is
      to the puhlic iv/wt 11ect'ssi1y is to the individual. Right
      10 la.\' or lev1• impost must he in accordance with the
      prm·ision> of' the Constitution ...
                                                                                c

       21. What then are the Constitutional limitations on the power of
the State legislatures to levy taxes or for that matter enact legislations in
the field reserved for them under the relevant entries of List ll and Ill of
the Seventh Schedule. The first and the foremost of these limitations           D
appears in Article 13 of the Constitution oflndia which declares that all
laws in force in the territory of India immediately before the
commencement of the Constitution are void to the extent they are
inconsistent with the provisions of Part Ill dealing with the fundamental
rights guaranteed to the citizens. It forbids the States from making any
law which takes away or abridges, any provision of Part Ill. Any law            E
made in contravention oflhc said rights shall to the extent of contravention
be void. There is no gain saying that the power to enact laws has been
conferred upon the Parliament subject to the above Constitutional
Iimitation. So also in terms of A1ticle 248, the residuary power to impose
a tax not otherwise mentioned in the Concurrent List or the State List          F
has been vested in the Parliament to the exclusion of the State legislatures,
and the States' power to levy taxes limited to what is specifically reserved
in their favour and no more.
      22. Article 249 similarly empowers the Parliament to legislate with
respect to a matter in the State List for national interest provided the        G
Council of States has declared by a resolution supported by not less than
two-thirds of the members present and voting that it is necessary or
expedient in national interest to do so. The power is available till such
time any resolution remains in force in terms of Article 249 (2) and the
proviso thereunder.
                                                                                H
186            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A            23. Article 250 is yet another provision which empowers the
      Parliament to legislate with respect to any matter in the State List when
      there is a proclamation of emergency. In the event of an inconsistency
      between laws made by Parliament under A11icles 249 and 250, and laws
      made by legislature of the States, the law made by Parliament shall, to
      the extent of the inconsistency, prevail over the law made by the State in
B
      terms of Article 251.
             24. The power of Parliament to legislate for two or more States
      by consent, iii regard to matters not otherwise within the power of the
      Parliament is regulated by Article 252, while Article 253 starting with a
c     11011-ohstante clause empowers Parliament to make any law for the
      whole country or any pa11 of the ten-itory oflndia for implementing any
      treaty, agreement or convention with any other country or countries or
      any decision made at any international conference, association or other
      body.

D            25. Article 285 exempts the property of the Union from all taxes
      imposed by the States save in so far as the Parliament may by law
      provide. Article 286 places yet another Constitutional limitation on the
      State's power to collect any levy that imposes or authorises the imposition
      of a tax on the sale or purchase of goods where such sale or purchase
      takes place outside tbe State or in the course of import of the goods into
      or export of the goods outside the teJTitory of India. It also makes any
      law of a State imposing tax on sale or purchase of goods of special
      importance in inter State trade or commerce or a tax on the sale or
      purchase of goods being a tax of the nature referred to in the relevant
      sub-clauses of clause 29(A) of Article 366 subject to such restrictions
 F    and conditions as to the system of levy, rates and other incidents of tax
      as the Parliament may by law specify.
             26. Article 287 places a Constitutional limitation on the State's
      legislative power to enact laws in so far as imposition of tax on
      consumption or sale of electricity consumed by the Government of India
 G    or sold to the Government of India for consumption by the Government
      or for consumption of the construction, maintenance or operation of any
      railway by the Government of India or a rail company etc. Similarly,
      Article 288 contains a Constitutional limitation on the power of the State
      in so far as imposition of a tax in respect of any water or electricity
      stored. generated, consumed, distributed or sold by any authority
 H
       .JINDAL STAINLESS LTD. v. STATE Of HARYANA                          187
                    IT. S. THAKUR. CJJ I

established by any existing law or any law made by the Parliament is       A
conccrnccl.
        27. It would thus appear that even when Article 246(2) and (3)
confers exclusive power on the State legislatures to make laws with
respect to matters in the Seventh Schedule such legislative power is
exercisable subject to constitutional limitations refened to above. What B
is significant is tlrnt the power of the State legislatures to levy taxes is
also subject to the limitations of Article 304(a) of the Constitution
appearing in Part Xlll thereof. which part regulates trade, commerce
and intercourse within the tenitory oflndia and comprises Articles 301
to 307. The provisions of these Articles have been the subject matter of c
a series of decisions of this Court including several Constitution Bench
decisions to some of which we shall presently refer. The language
employed in the provisions and the 11011-ohstante clauses with which
lhe same start have all the same given rise to several contentious issues
for determination by this Court over the past five decades or so. The
fact that the present batch of cases had to be refened to a Nine-Judge D
 Bench to once again examine the very same issues as have been debated
and determined in the previous judgments of this Court only shows that
 the task of interpreting the provisions is by no means easy and has in
 fact become more and more clifJicu lt on account of the pronouncements
 of this Court taking different views not many of which have been E
 urnmimous. The marked difference in the approach adopted by learned
 counsel for the parties in these appeals is also a measure of the
 complexities of issues that fall for determination. This is specially so
 because the prevailing legal position in ter111s of the judgment of this
 Court in Atiabari and A11to111obile cases (supra) holding that fiscal
                                                                             F
 measures that are compensatory fall beyond the mischief of Article 301
 has been questioned by both sides. Mr~ Harish Salve who led the forensic
 exercise followed by Mis.Arvind Datar, Laxmi Kumaran, Ravindra
 Shrivastava, N. Venkataraman and others vehemently argued that the
 "Compensatory Tax Theory" propounded by the Seven Judges Bench
 of this Court in Automobile case (supra) had no legal basis or G
 constitutional sanction and was neither acceptable nor workable. That
 is particularly so because the State legislatures had taken umbrage under
 the "Compensatory Tax Theory" and declared the fiscal levies imposed
 hy them to be compensatory in character and claimed the same to be
 outside the mischief of Article 30 I and consequently immune from any
                                                                             H
188            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     challenge on the ground that these taxes and levies were unreasonable
      restrictions on the right to free trade and commerce. The States who
      have enacted the laws providing for levy of taxes on the entry of goods
      into a local area within the meaning of Entry 52 of List ll have. on the
      other hand similarly contended that the Compensatory Tax Theory is
      bereft of any legal basis and that the decision in Atialmri anc\Automobile
B
      cases (supra) need to be revisited to restore and protect the sovereign
      power oflegislation of the States and the Federal character of our polity.
      Suffice it to say that except a feeble attempt made by some Counsel.
      there has been a general consensus that the compensatory tax theory
      deserves to be rejected and the issues examined afresh on a trut: and
c     correct interpretation of the relevant constitutional provisions. We are
      mentioning all this only to show that even after fifty years and several
      illuminating pronouncements of this Court. the cleavage in the judicial
      opinion as to the true and correct legal position on the subject continues
      to loom large and haunt lawyers and litigants and, if we may say so,
D     even Judges alike. The present reference to a larger Bench is in that
      backdrop expected to give a quietus to this raging legal controversy of
      considerable complexity. though given the perseverance of the litigants
      and the ingenuity of the bar a quietus is only a pious hope which has and
      may even in future elude us.

 E          Constitutional Limitations must be Express:
            28. The power to levy taxes. being a sovereign power controlled
      only by the Constitution. any limitation on that power must be express.
      That proposition is well settled by the decisions of this Court in Maharaj
      Umeg Singh v. State of Bombay, AIR 1955 SC 540 and Firm
 F    Bansidhar Premsuklzdas v. State of Rajastlum AIR 1967 SC 40. In
      Umeg Singh 's case (.rnpra) this Court stated the legal position in the
      following words:


             "12 ....... The legislative competence of the State
 G
            Legislature cun only be circumscribed by express
            prohibition contained in the Constitution itself and
            unless and until there is imy provision in the Constitution
            expressly prohibiting legislation 011 the su/1ject either
            absolutely or conditionally, there is 110 fetter or limitation
 H
 JINDAL STAINLESS !TD. v. STATE OF HARYANA                      189
             ITS. THAKUR, C.Jlj


011 the ple11arv p01rers H'hich the State Legislature           A
enjoys to legislate on the topics e11umerated in the Lists
JI & Ill of the Se1n11h Sched11/, w the Constitution .

                     .YX.Y.\ XXXX XXXX


13. The feller or /imitatio11 upon the legislatil"l' power      B
of the Stale Legislat11re which hadplenwy powers of
legisla1io11 withi11 the amhil of the legislative heads
.1pecified in the Lists 11 & lll of the Seve11th Schedule to
the Constitutio11 could 011ly he imposed hy the
Constilulion itself and not hy any obligation which had
                                                                c
heen 1111dertake11 hv either the Domi11io11 Government
or the Province of /30111hay or eve11 !he State of Bmnhay.
 Under Article 146 the State Legislature was i11vested
1rith the power to legislate on the topics e11u111erated i11
Us ts 1I & JJJ o{the Seventh Schedule to the Co11slitution
a11d !his po1Ner was hy virtue of article 245( 1) subject       D
lo the provisio11s of the Cons!ilutirm.

The Constitution itself/aid down thefelters or li1nitatio11s
011 !his powe1; e.g .. in /lrticle 303 or article 286(1). But
unless and until the Court came to the conclusion !hat
the Constitution itself had expressly prohihi!ed                E
legislation on the suhject either ahsolutely or
conditionallv the power of the State Legislature to enact
legislation within its legislative competence 1vas plenary.
Once the lopic of legislation was comprised irithi11 any
of the entries in !he Lists lJ & 111 of the Seventh Schedule    f
to the Co11slit11tio11 the fetter or limitation on such
legislative power had to he found within the Constitution
itself' and if there 1-vas no such fetter or limitation to he
found there the Stale Legislature had fi;ll competence
to enact the impug11ed Act no matter ivhether such
                                                                G
enactment was contrarv to the guarantee given. or the
ohligation undertaken hy the Dominion Government or
 the ProFince of Bomlwr or even the State of Bombay.


                                                                H
190            SUPREME COURT REPORTS                          [2016] l 0 S.C.R.


A            29. Again in Bansidlzar'.\· case (supra) this Court reiterated the
      legal position in the following words:


             "8 ... It is well-established that Parliament ur the State
            Legislatures are comperent lo enact u law altering the
 B
            terms and conditions ofa previous contract or ofa f{:l'lllll
            under which the liabilitv of the Govern111e11/ of India or
            of the State Governments arises. The legislutive
            competence of Parliament or of the State Legislatures
            can only be circumscribed bl' express prohibition
C           contained in the Constitution itself and unless and until
            there is a11v provision in the Co11s/it11tio11 expresslv
             prohibiting legislation 011 the subject <'ither absolutdv
            or conditionallv. ther<' is no fetter o{ limitation on the
            plenarv powers which the Legislature is enduwed with
D           for legislating on the topics enumerated in the releva11t
             fists. This view is bome out bv the decision of the
            Judicial Committee in Thakur Jagannath Baksh Singh
            v. The United Provinces [19./6 FCR 111} in which a
             similar complaint was made by the taluqdars of' Oudh
             against the United Provinces Tenancy Act (U.P Act 17
 E           of 1939). 11 was held bv the Judicial Cummittee that the
             Crown cannot deprive itself of its legislatii•e authority
             by tile mere .fc1ct that in the exercise of its prerogative it
             makes a grant of land 1Fithi11 the territory over 1l'hich
             such legislative authority exists. and 1w court cw1 annul
 F           the enactment of a legislative body acting wirhin the
             legitimate scope of its sovereign competence. fl
             therefore, it be found that the subject-nwtter o(a Crown
             grant is within the competence o(a Provincial legislature
             nothing can prevent that legislature from legisluti11g
             ahout it unless the Co11stitlllio11 Act itself expresslv
 G
             prohibits legislatfrm 011 the subject either ahsolutelv or
             conditional!)'. According!;,~ in the absence of any such
             express prohibition, the United Pro1•inces Tenancy Act.
             1939, which in co11solidati11g and amending the law
             relating tu agricultural tenancies mill other matters
 H
       :1NDAL STAINLESS LTD. v. STATE OF HARYANA                            191
                   [T. S. THAKUR, CJ!]

     eunnected therewirh in Agra and Oudh. dealt wirh                       A
     111atlers wirhin rhe exclusive legislative competence uf
     the Provincial legislature under Item 21 of Lisi 11 of
     the Seventh schedule to the Government of India Act,
     1935, was intra vires the Provincial legislature
     notwithstanding that admiffedly some <~fits provisions                 B
     cut down the absolute rights claimed by the appellant
     taluqdar to be comprised in the grant 11{ his estate as
     evidenced by the sanad granted by rhe Crown to his
     predeeesso1: The same principle has been reiterated br
     this Court in A1aharaj Umeg Singh and others v. The
     State of Bombay [1955 2 SCR 164]. It was pointed out                   c
     that in view of Art. 246 of the Constitution, no
     c11rtai/111enl of legislative competence can be spelt out
     of the terms of clause 5 of the Leffers <If Guaranree
     given by the Dominion Government to the Rulers of
      "States" subsequent to the agree111e111s of iVferger. which           [)
      guaranteed, inter alia. the continuance of .!agirs in the
      merged 'States'. Jhis principle also underlies the recent
      decision of this Court in 1\1aharaja Shree Umaid Mills
      Ltd. v. Union oflnJia fl 963 Supp 2 SCR 515 l in which
      it was pointed 0111 that there is nothing i11 Ari. 295 of
                                                                            E
      the Consfifution which prohibits Parliament ji·om
      enacting a law alteri11g the terms. and cu11ditio11s of a
      contrncl or of a grant under ll'hich the liability of the
      Government of India arises .... " (Emphasis Supplied)

                                                                            F
       30. One other fundamental aspect which must always be kept in
mind while interpreting the provisions ofthc Constitution is the federal
structure envisaged by it. Whether or not the Constitution of India is
truly federal in character has been the subject matter of debate not only
in the Constituent Assembly but also in Courts for over 60 years. The
                                                                            G
character of the Constitutional scheme described in the Constituent
Assembly Debates was that there were doubts expressed whether the
Constitution really provided a federal structure in the governance of the
country. The criticism was that the scheme underlying the Constitution
was more unitary than federal, on account not only of several provisions
                                                                            H
\92            SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A     in the Constitution that empowered the Centre to at times intervene and
      enact laws for tbe States but also on account of the Centre's power to
      take over the governance oftbe State. Repelling that criticism, Dr. B.R.
      Ambedkar speaking in the Constituent Assembly explained the true
      charncter of the Constitution oflnclia in the following significant words:
 B

             "There 11 0111)' one point of constitutional import to
             which I propose to make a reference. A serious complaint
             is made on the gro11nd that there is too much of
             ce/7/ralisation a11d that the States hal'e heen reduced to
 C           1111111icipalities. It is clear that this view is not only an
             exaggeration. hut is alsofo11nded 011a111is11nderstandi11g
             of irhat exactlv the Constit11tio11 contrives to do. As to
             the relation hetween the Centre and the States, it is
             11eces.1·mJ' to hear in mind the fundamental principle on
 IJ          V1-!1ich ii rests. The hash; principle of.federalism is that
             the legislative and executive authority is partitioned
             hetween the Centre and the States not hy any law to he
             made hy the Centre hut hy the Constitution itself This
             is ·what Constitution does. The States under our
             Constitution are in no H'av dependent 11pon the Centre
            .fi;r their legislative or executive aulhority. 771e Centre
             and the States are coequal in this ma/la It is difficult to
             see hml' such a Constitution can he called cenlralism.
             It may he that the Constitution assigns to the Ce11tre too
             large a field for the operation of its legislative and
 F           executive authority than is to he found in any other
            fedeml Constilulion. It ma1· he !hat the residuary powers
             are given to the Centre and not to the States. But these
            fc'a/11re.1· do notj(mn the essence offederali.1·111. 771e chief'
             mark offedemlism as I said lies in the partition of the
             legislative and executive aulhority hetween the Centre
 (;
             and the 1111its hv the Consti111tio11. This is the principle
             emhodied in our Constitution. "
            3 J. To the same effect was the answer given to the criticism by
      Shri T.T. Krishnamachari during the ConstitnentAssembly Debates
 H
       JINDAL STAlNLESS LT'D. v. STATE OF 1-IARYANA                      \93
                   jT. S. THAKUR, CJ\]

on the draft Constitution. when he said:                                 A

      "Si1~ J would like to go into afewjimdamentul ubjectiuns
      because as J said ii would not be right fur us lo leave
      these criticisms zmcontruverted. Lei me take up a matter
      which is perhaps partly theoretical but one which has a
      validity so far as the average 111011 in this country is           B
      concerned. Are we ji-aming a unilwy Constitution? Is
      this Co11stitutio11 centrnlising power i11 Delhi'.? ls there
      w1y way provided by means of which the position (if
      people in various areas co11ld be safeguarded. their
      voices heard in regard tu 111a/ters of their local                 c
      admi11istratio11'! I think it is a verF big charge lo make
      that this Co11stit11tio11 is not a federal Co11stitutio11. a11d
      that ii is a zmilarv one. We should not fi1rget that this
      questim1 that the Indian Consti1uti011 should be a federal
      one has been settled bv our Leader who is no more with
      us. in the Round Table Conference in London eighteen               D
       vears buck. ,.



       "/ wo11ld ask 11/V honourable fi-iend 10 applv a verv
      simple test so far as this Constitution is concerned lo            E
      find out whether it is federal or 1101. Tile simple defi11ifio11
      J have got fi·om the German school o( political
       philosophy is that the first cri1erio11 is that the Stale must
      exerdse compulsive power in the enfi1rce111ent ofa given
       political orde1; !he second is that these powers must be          F
      regularly exercised over all the inhabita11t.1· uf a given
       territory, and the third is the must important and that is
       that the activitv of the State must 1101 be cumpletelv
      circumscribed by orders handed down /(Jr execution bv
       lhe superior unit. The i111portu11t words are 'must nut be
                                                                         G
       completely circumscribed', which envisages some
      powers of the State are bound to be circ11111scribed by
       /he exercise offederal authority. Hal'ing all these fi1ctors
       in view, J will urge that our Constitution is a federal
       Constitutio11. I will urge that our Co11stitutio11 is 011e in
                                                                         H
194             SUPREME COURT REPORTS                          [2016] I 0 S.C.R.



A           irhich .we have given power Iv the 1111its which ure both
            substantial and significant i11 the legislative sphere a11d
            in the executive sphere. ·· (Emphasis Supplied)


             32. Whether or not the Constitution provides a federal structure
B
      for the governance of the country has been the subject matter of a long
      line of decisions of this Court reference to all of which may be
      unnecessary but the legal position appears to be fairly well settled that
      the Constitution provides for a quasi federal character with a strong bias
      towards the Centre. The pronouncements recognised the proposition
c     that even when Constitution may not be strictly federal in its character
      as the United States of America. where sovereign States came together
      to constitute a federal union. where each State enjoins a privilege of
      having a Constitution of its own. the significant feature of a federal
      Constitution are found in the Indian Constitution which makes it a <JUasi
D     federal Constitution. if not truly federal in character and in stricto se11su
      federal. The two decisions which stand out in the long line of
      pronouncements of this Court on the subject may. at this stage, be briefly
      mentioned. The first of these cases is the celebrated decisions of this
      Court in Kesavanmtda Bharati ease (supra). wherein a thirteen Judges
      Bench of this Court. Sikri CJ (as His Lordship then was), being one of
 E    them talks about whether the Constitution of India was federal in
      character and if so whether federal character of the Constitution formed
      the basic feature of the Constitution. Sikri CJ. summed up the basic
      feature of the Constitution in the following words:

              "292 . ......... The true position is thm ere1y provision
 F
             (Jf the Constilutivn can he amended provided in the result
             the basic .finmdation and structure of the Constitution
             remains the same. The basic structure mav be said tu
             consist of' the fo!!owi11g features:

 G           (I) Supremacy of the Constitution.

             (2) Republican and Democratic .f<Jrm <f Government.

             (3) Secular character r~f' the Co11stitutio11.

             (I) Separation (~f powers between the legislature, the
 H
       JINDAL STAINLESS LJ'D. v. STATE OF HARYANA                             195
                   [T. S. THAKUR, CJI]

      executive and the judiciarv;                                            A

      (5) Fedr'ra! character of the Constitution.

      293. Tlw ahovr' structure is huilt 011 the basic.foundation
      i.r'. the dignitr a11d.fi·eedom of'the individual. This is of
      s11pre111e importance. This ca1111ot hy any form of                     B
      a111e11d111e11t he destroved.

      294. The a hove .frm11datio11 and the a hove hasic features
      arc easill' discernih/e 110/ 011/v .fimn the preamh!e hut
      the 1vl10/e scheme of the Constitution, which I have
      alreadv discussed "                                                     c
        To the same effect me the views expressed by Shelat and Grover
.I.I. who declared that the federal character of the Constitution is a part
of its basic structure.
       33. In S.U. Bo111111ai v. l!11io11 of India 1994 (3) SCC 1, this       D
Court had yet another occasion to examine whether the Constitution
was federal in nature. Speaking for himself and Justice Kuldeep Singh,
Sawant .I. while referring to ll.M Secrvai's commentary on
"Constitutional Law of India" held that the principle of federalism
has not bc:en watered down so as to make the Constitution unitary in
character. The presence in the Constitution exclusive legislative powers      E
conferred on the State and the provision that such powers may be
exercised by the Parliament during an emergency may not affect and
dilute the federal character of the Constitution. So also, the provisions
of Article 355 imposing the duty on the Union to protect a State against
internal disorder are not inconsistent with the federal principles nor are    F
the powers vested in the Central Government under Article 356
inconsistent with the federal character of the Constitution.


       The Court, in particular, dealt with the question whether List 11
contains unimportant matters thereby denuding the Constitution of its         G
federal character. The Coult observed that List 11 contains very important
subjects assigned to the State including the power to levy taxes which
powers are made mutually exclusive so that ordinarily the States have
independent source of revenue of their own. The following passages
                                                                              H
196            SUPREME LOURT REPORTS                         [2016] I0 S.C.R.


A     from the decision are apposite:


            97 (kl 771e view that 1111impurtant matters were assigned
            tu the States cannot be sustai11edi11 /(ice o( the verv
            important subjects assigned to the States i11 List 11 and
B
            the same applies lo taxing puwers o{ the Slates. which
            are made mutuallv exclusive o[/he fa.\'ili:.' powers of the
            Union so that ordi11arilv the States hal'e i11depe11de11l
            source of revenue of their own. The legislatil'e entries
            relating to taxes in List fl show that the sources of
c           revenue available tu the States are substantial and
            would i11creasi11glv becom<' more substanrial. h1 addition
            to the exclusive laxiizg powers of !he States. the Stales
            become entitled either lo appropriate taxes collected
            bv the Union or lo a sharl! in the taxes collected bv the
D           U11io11 ..
            99. The above discussion thus shows Iha! the Stales have
            an independent constitutional existence and rlze1' lzave
            as i111porta11t a role to plav ilz t/ze political, social,
            educational and cultural life ofthe peo/Jlc as the U11io11.
E           Thev are neither satellites nor agents o[ 1/!. '_·c:11tre. The
            fact that during emergencv um/ i11 cerrain other
            evenlualities their powers are overridden or i11vaded
            by the Centre is nut destructive o{ Ihe esse11fial federal
            nature o( our Cu11stif11fio11. The invasion o{ power in
            such circumstances is not a 11or111al feature o{ the
 F          Constitution. They are exceplio11s and have to be
            resorted to only occasionally to meet the exigencies of
            the special situations. The exceptions are not a rule.
             JOO. For our purpose. further it is really 1101 necessm:v
            lo determine ri1zether. i11 spite <Jf !he pruvisio11.1· o[ the
G            Conslitutio11 referred tu above, our Co11stilutio11 is
            federal, quasi-federal or unitary in 11at11re. It is not the
            theoretical label given to the Co11stiturion hut the
            practical implications of the provisions of the
             Constitution ivlzich are <~f i111portm1ce to decide the
H
       JINDAL STAINLESS LTD. v. S'TATE OF HARYANA                          197
                   [T. S. THAKUR. CJ!]

      question that ari:ses in the present context, viz., whether          A
      the powers u11der Article 356(1) can be exercised by
      the President arbitrurily and unmindful of its
      consequences lo the governance in the State crmcerned.
      So long us the States are not mere administrative units
      but in their own right c011stitutio11al potentates with the
                                                                           B
      same para[Jhernalia as the U11io11. a11d with independent
      Legislature and the Executive co11stituted hi• the same
      process as the Union. whatever the bias in f(JVour o(
      the Centre, it cwmol be argued that merelv because (and
      assuming it is CO/Teel) the Co11Sfitution is labelled u11itarv
      or <111asi-(ederal or a mixture o( federal a11d 1111itarv            c
      .1·/rw.:ture, the President has 1111restricted power ofissuing
      Proclamatio11 1111der Article 356{! ). If the Presidential
      powers under the said pr<Jl'ision are subject to judicial
      review within the limits discussed above. those
      li111itatiu11s will have lo be applied strictly while                D
      scrutinising the concerned 111alerial. "
                                           (Emphasis Supplied)


       34. What is important is that B.P. Jecvan Reddy. J. speaking for    E
himself and Aggarwal L while holding the Constitution to be federal in
character cautioned that the Centre cannot tamper with the powers
confer'red upon the States. States are not mere appendages of the Centre
within the sphere allotted to them. The States are supreme and the
Centre cannot tamper with their powers.
                                                                           F
       35. Justice K. Ramaswamy, speaking for himself also accepted
federalism of the Indian Constitution as a basic feature. One other
decision that has dealt with the federal character of the Constitution of
lndia is Ku/deep Nair I~ Union of India a11tl Ors. (2006) 7 sec 1
wherein this Court held that nature offederalism in the Indian Constitution
is no longer res integra. Relying upon the Constituent Assembly Debates G
to which we have referred earlier. The Court declared:
      "50. A lot of energy has been Jevoted on behalf of the
      petitioners to build up a case that the Co11stit11tio11 o(
      !11dia is federal. The nature offeJera!ism in the I11Jiw1
                                                                           H
198            SUPREME COURT REPORTS                          l2016l 10 S.C.R.



 A          Constitution is 110 longer res integru.
            51. There can he no quarrel with the proposition that
            the Indian model is broadlv hased on federal form of
            governance. A11s11'ering the criticism of the tilt towards
            the Centre, Shri l: T Krishnamachari, during debates
 Fl         in the Constituent Assemh~v 011 the draft Constitution.
            had stated as jiJ11ows:


             .36. v\lhile parting with this aspect we must also refer to the
      decision of this Cowi in Re: Under Article 143, Constitution o.f India
.c    (Special Reference No.I of 1964) AIR 1965 SC 745 wherein this
      Court held:


              "'39. In dealing with this question, it is necessarv to
 D          hear in mind one fimdamental feature of a Federal
            Consti/lltion. Jn England, Parliament is sovereign; and
             in the word1· of Dicev. the three distinguishing features
            of the principle of Parliamentarv Sovereign~y are that
            Parliament has the right to make or un111ake any law
             whatever; that 110 person or body is recognised by the
 E
            law of England as having a right to override or set
            aside the legislation of Parliament, and that the right
            or pmrer of Parliament extends to everv part of the
             Queen :1· dominions ( 1). On the other hand, the essential
             characteristic of.federalism is '"the distrihution of li111ited
 F          executive, legislative and judicial authority among
             hodie.1· which are coordinate ·with and independent of
             each other". The supremacy of the constitution is
            fimdamental to the existence of" a federal State in order
             to prevent either the legislature of the federal unit or
 G           those olthe memher Statesfiwn destroying or impairing
             that delicate balance qf power which satisfies the
            particular requirements of States which are desirous of
             union. hut not prepared to merge their individuali(v in
            a unitv. This supremacy of the constitution is protected
             hy the authoritv of an independent judicial bod)' to act
 H
        JINDAL STAINLESS !TD. v. STATE Of HARYANA                                199
                          [T. S. THAKUR, CJ!]

      ns tlw interpreter of' a scheme of distribution of powers.                 A
      Nor is any change possihle in the Constitution hy the
      01di11ar1· process offederal or State legislation (2). Thus
      the dominant characteristic of the British Constitution
      cannot he claimed hr a Federal Constitution like ours."
                                                                                 B
        3 7. Before we turn to the provisions of Articles 30 I to 307
comprising Part Xlll of the Constitution, we need to also bear in mind
the historical backdrop in which that part of the Constitution was enacted.
While doing so we must at the threshold acknowledge that the historical
perspective of Part XI lJ has been explored several times during the past        c
in several pronouncements of this Court. The exposition of different
stages of evolution and development of what comprises Part Xlll today
has been both extensive as well as incisive. The decisions of the Court
have gone into great details while examining the history of Part Xlll. It
will, therefore, be presumptuous for us to suggest that the historical basis     D
of Part XI ll is a virgin area being traversed for the first time. In fairness
to the scholarly pronouncements that have preceded the present batch
of cases, we must acknowledge with gratitude the usefulness of the in-
depth study and understanding of the Judges who have examined and
traced the evolution of Part Xlll while drawing their conclusions from
the same. no matter such inferences and conclusions have more often              E
 than not been varied which is but natural when one examines history or
the events that led to its making.
       :rn. It is. in our opinion. unnecessary to refer to all the decisions
that have till now traced the development of the jurisprudence concerning
Part Xlll from its inception. A reference to some of the decisions alone         f
should, in our opinion. suffice. The first of these decisions to which we
must make a reference is the Constitution Bench decision in M.P. V.
Sundemramier v. State of Andlira Pradesh, AIR 1958 SC 468. That
was a case filed under Article 32 of the Constitution of India for a Writ
of Prohibition restraining the State of Andhra Pradesh from imposing a           G
tax on inter-State trade of sale and purchase of yarn. The levy and
collection of any such tax was according to the petitioner contrary to the
provision contained in Article 282 (6) of the Constitution oflndia. One of
the questions that fell for consideration of the Court was whether the
States could impose a tax on inter-State sales having regard to the              ]-]
200             SUPREME COURT REPORTS                        [2016] I 0 S.C.R.



A      provisions of Articles 246 and 301 of the Constitution of India. The
       argument was that the freedom guaranteed under Article 301 included
       freedom from taxation with the result that any tax on inter-State sales
       would offend that guarantee. The contention was rejected by this Court
       in unequivocal terms. The Court said:
 B
             "(50)   This contention suffers, i11 uur opi11io11. from
             serious infirmities. it overlooks that our Co11stilutiu11
             l1'as 1/0f wriffen on a tabula-rasa. that a Federal
             Constirution had bee11 esrablished 1111der rhe Govemmellf
C            of India Act. 1935. a11d tlwugh rhat has 1111dentone
             considerable change bv wav of repeal. modification and
             addirion. it still remains the fi·amewurk un which the
             present Cu11stit11tio11 is built, and that the pruvisions o(
             the Constitutio11 must accordingfv be read in the light
 D           of the wovisions of the Guvermnent o( India At'!. "
                                                  (Emphasis supplied)


              39. Three years later came the Constitution Bench decision of
       this Court in Atiabari Tea Company Ltd. case (supra). The petitioner
 E
       in that case questioned the constitutional validity of Assam Taxation (on
       Goods Carried by Roads or Inland Waterways) Act, (Assam Act XII!
       of l 954 ), before the High Cowi. The Writ Petition having failed. the
       matter was brought up in appeal before this Court which was heard
       alongwith several petitions filed under Article 32 of the Constitution of
 F     India. The impugned legislation levied taxes on certain goods carried by
       road and inland waterways in the State of Assam. The levy under the
       legislation was challenged primarily on the ground that the same was
       ultra vires of the Constitution inter aila because of their repugnance
       with the provision of Article 301 of the Constitution. This Court by a
 G     majority struck down the Constitutional validity of the enactment holding
       that the impugned levy operated directly and immediately as a restriction
       on free trade. commerce and intercourse guaranteed under Article 30 I
       of the Constitution of India. The decision propounded three diffen:nt
       points of view. one each taken by B.P. Sinha. CJ. and J.C. Shah, J. and
       the third by majority comprising P.B. Gajendragadkar. K.N. Wanchoo
 1-1
       .JINDAL STAINLESS !TD. v. STATE OF HARYANA                            201
                    IT. S. THAKUR, CJL]

and K.C. Das Gupta ..l.l. We shall presently deal with the rationale         A
underlying the three vic:ws but before we do so, we may gainfully extract
l'rom the decision rendered by Sinha. CJ., tl1e historical perspective in
which Part XII I of the Constitution was enacted. In Para 9 of the Report,
Sinha. CJ.. as His Lordship then was. traced the evolution of Part Xlll in
th~ following words:
                                                                             B
       .. 9. In order to fullr appreciale lize implicaliom of' the
      pmvisions olParl XIII olthe Comtit11tio11, it is necessary
      to hear in mind the historv and hackground of' those
      prm·1szu11s. lhe Constitution Act of' 1935 (Government
      of India Act. 26 ('Geo. 5, Ch. 2) which envisages the                  c
      federal co11slitutin11 jar !he H-f10le of India, including
      it-!wt was then Indian Jndia in contradislinction to British
       India, H-11ich could not he fit!h· implemented and ivhich
       also introduced fiill provincial autonomy enacted
       Section 297 prohibiting certaill reslrictiolls on illfernal
       trade ill these terms:                                                D

       297. ( 1) No Provincial J,egislarure or Government shall-

       (a) Br virtue of the ent1~v ill the Provincial Legislative
       List rel(Jfing lo trade and commerce within the Province,
       or the entry in that list relating to the production, supply,         E
       and distrihution of commodities, have power to pass
       a/ff law or toke any executive action prohibiting or
       reslricting the entry into, or export .fim11 lhe Province
       of" good\' of' am· class or description; or
                                                                             f
       (hJ By l'irt11e ol onything in this Act have power to
       impose om• tax, cess, toll or due which, as between good<;
       11w1111j'actured or produced in the Province and similar
       goodl' not so manufactured or produced, discriminates
       in favour of the former; or which, in the case of good1·
       man11f{1crured or produced outside the Province,                      G
       discrimi11ates between good1· 1110m1factured or produced
       i11 one locality and similar goods 1nanufact11red or
       produced in an01her localil_v.

       (2) Anv law passed in contravention of' this section shall,
                                                                             H
202      SUPREME COURT REPORTS                          [2016] I0 S.C.R.


 A    tu the extent of the cv11trave11tio11, be i11valid. ,.

      10. It will be noticed that the prohibition contained in
      the section quoted above applied only lo Provi11cial
      Civvern111ents and Pruvi11cial Legislatures with reference
      tu entries in the Provincial Legislative List relating to
 B    trade and commerce within the Province and lo
      production. supp(v and distribution of commodities. T'/iat
      section dealt with prohibitions or restrictions in respect
      uf import info O/" export from a Province. u( goods
      generalh: It also dealt with the power lo impose taxes
 c    etc. and pruhibited discrimination against goods
      manufi1ctured ur produced outside a Province ur guods
      produced in different localities. Par/ XIII of the
      Cunstitution has introduced all those prohibitions, 1101
      only in respect o( State Legislatures, but of Parliament
      also . ....
 D
      11. 111 this cu1111ection it has got to be remembered that
      before the co111me11ce111e11r of the Constitution about two-
      rhirds of l11dia was directly under British rule and was
      called 'Britis/z India· and the remai11i11g about 011e-third
 E    was being directly ruled by the l'ri11ces and was knm1•n
      as "Native States". There were a large number uf them
      ivith varying degrees of sovereignly vested in them.
      Those rulers had, broadly speaki11g, the trappings uf a
      Sovereign State with power to impose taxes and to
      regulate the jlow <~f trade, commerce and intercourse.
 F    It is a nutorious fact that many of them had erected
      trade barriers seriously impeding the free }low <if trade,
      commerce and intercourse, nut 011/y shutting out but also
      shutti11g in cummodities meant for mass consumptio11.
      Between the years 19-17 and 1950 almusl all the Indian
 G    States entered into engagements with the Ciover11111e11t
      1if India and ultimately merged their individualities into
      India as (Jlle political unit. 11·ith the result that what was
      called Britisl1 India, broadly speakinf!:. became, under
      the C'onstirution, Part A States, and subject to certain
      exceptions 1101 relevant to our purpose, the Native States
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            203
                   [T. S. THAKUR. CJI]

      became Part B States. We also know that before the                    A
      Constitution introduced the categories of' Part A States,
      Part B Stares and Part C States (excluding Part D
      relating to other territories), Part B States themselves,
      be/ore their bei11g con.1·tiluted into so many units,
      contained many small Stales, which .fi1r111ed themselves              B
      into Unions <;/'a number of States, and had such trade
      barriers and custom posts. even inter se. But even after
      the 111erge1~ the Constitution had to take notice of the
      existence of' trade barriers and therefore had to make
      transitional provisions 11'ith the ultimate o~;ective ti(
      abolishing them all. A1ost of those Native St"tes, big or             c
      small, had their own taxes cesses tolls and other
      imposts and dwies meant nor onlv fur raising revenue,
      but also as trade barriers a11d tariff walls. It was in the
      background of these facts and circumstances that the
      Constitution bv Article 301 provided for the abolition                [)
      of all those trade barriers and tariff' walls. fYhen fur
      the first time in the historv of India the entire territorv
      within the geographical boundaries of!mlia, minus what
      became Pakistan, was knit into one political unit. it was
      necessarv to abolish all those trade barriers and custom
                                                                            E
       posts in the interest of national solidarilJ'. economic a11d
      cultural unity as also of freedom of trade. commerce
      and intercourse. "

                                           (Emphasis supplied)
                                                                            F

       40. The majority opinion offered by Gajendragadkar J.. also traced
the history of Part XIII in the following words:


      "33. Let us first recall the political and co11stitutiom!I            G
      background of Part XIII. It is a matter of com111011
      knowledge that, befbre the Constitution was adopted,
      nearly two-thirds of the territory of India was subject
      to British Rule and was then known as British bidia,
      while the remaining part <~/the territory <~/India was
                                                                            H
204             SUPREME COURT REPORTS                       [2016] !0 S.C.R.


            governed h1· Indian Princes and it consisted of several
            Indian States ..·1 large nwnher of these States claimed
            sovereig11 rights within the 1imitatio11s imposed hy the
            paramount pml'er in that hehal(, and they purported to
            exercise their legislative power of imposing taxes in
            respect of' trade and commerce which inevitably led to
 B
            the erection of' customs harriers betvveen themselves and
            th<' rest of' India. In the matter of such barriers British
            India was governed hy the provisions of Section 297 of
            the Constitution Act, I935. To the prorisions of this
            sectirm we ;vii/ have occasion later to refer during the
 c          course of thi.1 judgment. Thus, prior lo 1950 the flow of
            trade and commerce was impeded al several points which
            co11stit11ted the boundaries of Indian States. After lndia
            attained political .freedom in 1947 and hefore the
            Constitution was adopted the historical process ol the
 D          merger and integration of the several Indian States with
            the rest of' the co1111trv was speedily accomplished with
            the result that whe11 the Constitution was first passed
            the territories of' India consisted of Part A States v.•hich
            hroadlv stated represe11ted the provinces in British India,
            and Part B States which were made up ol lndian States.
             This merger or integration of' Indian States with the
             Union of' India >Fas preceded hy the merger and
            consolidation of some of' the States inter-se hetween
            thernselves. It is with the knowledge of' the trade barriers
            which had heen raised hv the Indian States in exercise
            ol their legislative powers that the Constitution- makers
            Famed the Articles in Part Xll!. The main ohject of
            Article 301 obviousZv was to af!ow the free flow of the
            stream of' trade, commerce and intercourse throughout
             the territory of India. "
 G

             41. Then came the decision of this Court in Automobile case
       (supra) wherein, this Court examined the challenge to the Rajasthan
       Motor Vehicles Act, inter aila, on the ground that levy of taxes imposed
       under the said Act were offensive to Article 301 of the Constitution of
 1-1
         JINDAL STAINLESS !TD. v. STATE OF HARYANA                         205
                        [T. S. THAKUR, CJI]

India. S.K. Das, J. speaking for the majority also traced the historical   A
background of Part Xlll in the following words:


        ·· 7. So far we have set out the factual and legal
       background against which the problem he.fore us has
                                                                           B
       to he solved We must now say a few word~ regarding
       the historical background. It is necessm:v to do this.
       hecause extensive references have heen made to
       Australian and American decisions, Australian decisions
       with regard to the interpretation of Section 92 of the
       Australian Constitution a11d American decisions with                c
       regard lo the Commerce clause of the American
       Co11sti11.1tio11. This Court pointed out in the Atiabari Tea
     . Co. case (196IJ I SCR 809: (AIR I96I SC 232). that
       it vvould not he ahmvs safe to re~v upon the American
       or Australian decisions in interpreting the provisions              D
       ol our Constitution. Valuahle as those decisions might
       he in showing how the problem a/freedom of trade,
       co111111erre a11d intercourse was dealt with in other.federal
       co11stitutio11s, the provisions of our Constitution must
       he interpreted against the historical background in
       ·which our Constitution was made; the background ol                 E
       prohlems vvhich the Constitution-makers tried to solve
       according to the genius of the Indian people whom the
        Constitution-makers represented in the Constituent
       Assemh/)-: Thefir.1·t thing to he noticed in this connection
        is that the Constitution-makers were not writing on a              F
       clean slate. 7/Jey had the Government o.lfndia Act, I935
       and they also hpd the administrative set up which that
     . Act envisaged. India then consisted of            . various
        administrative units known as Provinces, each with its
       own administrative set up. There were differences of
                                                                           G
        language, religion etc. Some of the Provinces were
        economically more developed than the others. Even
        inside the same Province, there were under developed,
        developed and highly developed areas from the point
        of view ol industries, communications etc. The problem
                                                                           H
206            SUPREME COURT REPORTS                         [20161 JO S.C.R.


 A           of economic integration with which the Constitution-
           . makers 1rere faced was a prohlem ·with many facets.
             iko questions. howeve1; stood out: one question was
             how to achieve a federal, economic and fiscal
             integration, so that economic policies affecting the
 B           interests of'Jndia as a whole could he carried out without
             putting an ever-increasing strain on the unity of' India,
             particularly in the context ol a developing economy.
             The second question was how to foster the development
             of" areas which were under-deFeloped without creating
             too many preferential or discriminative harriers. Besides
 c           the Provinces, there were the Indian States also known
             as Indian India. After India attained political fi'eedmn
             in 194 7 and he/ore the Constitution was adopted, the
             process of' merger and integration ol the- Indian States
             t1·ith the rest ol the country had heen accon1plished so
 D           tha! when the Constitution 1rns first passed the territory
             ol/ndia consisted olPart A States, which hroad(v stated,
             represented the Provinces in British India, and Part B
             States which were made up ol Indian States. 771ere were
             trade harriers raised hy the Indian States in the exercise
             ol their legislative powers and the Constitution-makers
 E
             had to make provisions with regard to those trade
             harriers as well. The evolution of" a federal structure or
             a quasifederal structure necessarilv involved, in the
             context of' the conditions then prevailing, a distribution
             ol po11'er.1' and a hasic part ol our Constitution relates
 r           to that distrihution with the three legislative lists in the
             Seventh Schedule. ., . ... . .. "


            42. Hidayatullah J., in a separate dissenting opinion traced at great
      length the historical evolution of not only the federal structure of the
 G
      Government of India Act, 1915 but also the recommendations made by
      the Simon Commission and the Joint Parliamentary Committee on the
      Evolution of such federalism and for the protection of trade, commerce
      and intercourse. His Lordship referred to the backdrop in which the
      Government of India Act, 1935 was enacted, including the
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                               207
                    [T. S. THAKUR, CJ!]

recommendations made by the Butler Committee, the Round Table                   A
Conference, the Federal Structure Committee, the Federal Legislature
and Provincial Legislature Committee and the Joint Parliamentary
Committee to eventually conclude that the avowed object underlying all
these recommendations and constitutional framework was to ensure that
the accession of the State to the federation implies its acceptance of the      B
principle that it will not set up a barrier to free interchange so formidable
as to constitute a threat to the future of the federation. Based on the
historical developments decades before the enactment of Government
oflndia Act, 1935. his Lordship concluded:

                                                                                c
       '"95. The detailed examination of the historv lving at
       the back of the Government of India Act. 1935 lays
       bare some fundamental facts and premises. It shows that
       the process through a whole centurv was the breakup
       of a highlv centralized Government and the creation of                   D
       auto11omo11s Provinces with distinct and separate
       political existence, to be combined inter se and with the
       Indian States. at a later period. in a federation. To
       achieve this. not only was there a division of the heads
       of legislation. but the fi11ancial resources were also
       divided and separate fiscs f(Jr the &deration and the                    E
       Provinces were established. The fields of taxati011 were
       demarcated, amf those for the Provinces were chosen
       with special care to make these units self-s11pporti11g as
      .fi1r as possible wirh enough to spare for "11ation-
       buildi11g activities". !11 this arrangement. the door was                F
       open for the Indian States to join on the same basis and
       on terms of equalitv. The most important fuel was that
        unlike the American cmd the Canadian Constitutions
       the commerce power was divided between the Centre
       and the Provinces as the Entries quoted bv us clearly
                                                                                G
       show. The commerce power of the Provinces was
       exercisable within the Provinces. The fetter on the
        commercial power of the Provinces was placed bv
        Section 297. This was in two directions. Clause (a) o[
        sub-seclion (I) banned restrictions at the barriers o[
                                                                                H
208            SUPREME COURT REPORTS                         (2016] I 0 S.C.R.



A           the Provinces on the entrv and export u( goods. and
            clause (b) prohibited discriminatiu11 in taxing goods
            between goods munu(actured and produced in the
            Province as against goods 1101 su manufactured or
            produced and local discriminations. ··
B                                                 (Emphasis supplied)


            43. In the opinion of Hidayatullah Las his Lordship then was,
      several pitfalls existed in the 1935 Act regarding trade and commerce
      which were sought to be remedied by the framers of the Constitution
 c    while maintaining its federal structure. The following passage is, in this
      regard, instructive:


            "96. When drajiing the Constitutio11 of India, the
 D          Constituent Assembly being aware of the problems in
            various countries where freedom of trade, commerce
            and intercourse has been provided dijfere11tly and also
            the way the Courts of those countries have viewed the
            relative provisions. must have attempted to evolve a
 E          pattern of such freedom suitable to Indian conditions.
            The Constituent Assembly realised that the provisions
            of Section 297 and the Chapter on Discrimi11ations i11
            the Government of India Act, 1935 hardly met the case,
            and were inadequate. They had to decide the fi.1/lowing
            questions: (a) whether to give the commerce power only
 F          to Parliament or to divide it between Parliament and
            the State Legislatures: (b) whether to ensure freedom of
            trade, commerce and intercourse inter-State. that is to
            say, at the borders of the States or to ensure it even
            intra-State; (c) whether to make the prohibition against
 G          restrictions absolute or qualified, and if so, in what
            manner: (d) if qualified, by whom was the restriction to
            be imposed and to what extent; (e) whether the ji·eedom
            should be to the individual or also to trade and
            commerce as a whole; (/) what to do with the existing
            laws in British India and more so, in the acceding l11dia11
 H
       JINDAL STAINLESS Ll'D. v. STATE OF HARYANA                           209
                        IT. S. THAKUR, CJI]

     States; (g) whether any special provisions were needed                 A
     for emer.~l'ncies; (h) what should he the special
     provisio11s to enahle the States to levy taxes on sale of
     good1', which taxes were to be the main source of income
     for the States according to the experts. All these matters
     have, in fact, bee11 covered in Part XIII, and the pi(falls            B
      which were disclosed in the Law Reports of the
      Countries which had accepted freedom of trade and
      commerce have been attempted to he avoided by
      choosing language appropriate for the purpose. Jn
      addition to this. the hroad pattern of the political set-
      up, namely, a federation of autonomous States vvas not                c
      lost sight of These autonomous condiiions had
      strengthened during the operation of the 1935
      Constitution and led to what Prol Coupland described
      as .. Provincial-patriotism··. for which the reason,
      according to the learned Professor was:                               ])

      "Jn the course of the last few years, moreover, the sense
      of Provincial patriotism has been strengthened hy the
      advent of a full Provincial selfgovernment. The people
      10ok a new pride in Governments that were now in a
      sense theirs. " (The Constitutional Prohlem in India, part            E
      ill p. 40) ...



       44. The historical backdrop painted by the decisions of this Court
referred to above has not been challenged on a question of fact.            F
Inferences drawn from the same may have, as noticed earlier, varied
depending on the individual perspective of the Judges about the said
backdrop. The common thread that runs through the historical narratives
in the pronouncements of this Court however is discernible and may be
briefly summed-up at this stage. The first of these threads that runs
through the historical perspective is the fact that before commencement     G
of the Constitution nearly 2/3'd of the country was ruled by the British
while the remaining l/3'd was ruled by the Princes also known as native
States that enjoyed va1ying degrees of sovereignty over their respective
territories. These rulers had the power to impose taxes and to regulate
                                                                            H
210             SUPREME COURT REPORTS                          12016] I 0 S.C.R.



A the flow of trade, commerce and intercourse. Some of them had erected
      trade barriers thereby impeding free flow of trade, commerce and
      intercourse. With the merger of these Princely States into the dominion
      of India to constitute one single political entity, that pait of the country
      that was ruled by the British came to be known as Part-A State while
      the native States became Part B States. What is significant is that even
 B
      after the merger of these States, the Constitution had to acknowledge
      the existence of trade barriers and make transitional provisions with a
      view to eventually abolishing the same. 1t was in that background that
      the Constitution by A1ticle 30 I provided for the abolition of all such trade
      barriers consequent upon the entire geographical boundaries of India
 c    being knit into one political unit. The whole object underlying the removal
      of such barriers was to facilitate free trade, commerce and intercourse
      in the interest of national solidarity and economic unity of the country.
      The evolution of Articles 301 to 307 comprising Part Xlll of the
      Constitution is also punctuated by several events, twists and turns to
 D    which we may briefly refer at this stage, but, while we may do so, we
      need to remember that Section 297 of the Government of India Act.
       1935 dealt with the subject that eventually came.under the umbrella of
       Part Xlll and prohibited provincial governments from imposing barriers
      on trade within the country. The said provision also prohibited levy of
      cess, tolls or other tax duties which discriminated between the goods
      manufactured in one locality as against similar goods manufactured
      elsewhere. It is because of the said provision that Vcnkatarama Iyer, J.
      in MPV Smu/eraramier ~~ case (supra) made the observation that the
       Constitution was not written on a tabula rasa.
            45. The first germ plasma for Article 30 l was located in what
      was introduced as Clause 13 in the draft submitted by the Sub-Committee
      on fundamental rights comprising Mr. K.M. Munshi, Sir Alladi
      Krishna swami Ayyar and Sir B.N. Rau amongst others. The clause
      was in the following words:

 G
             "Suhjecr to regulation hy the law of' the U11io11, trade.
             commerce and intercourse among the units, i1:hether hy
             means <Jl internal carriage or hy ocean navigation, shall
             he fi"ee:
 H
       JINDAL STAINLESS Ll'D. v. STATE Of HARYANA                            211
                   IT. S. THAKUR, CH]

      Provided that any unit may hy law impose reasonahle                    A
      restrictions thereon in the interest of ptiblic order,
      moralitv or health. "
      from the note of Sir B.N. Rau it is evident that the first part of
clause 13 (supra) was adopted from Section 92 of the Australian
Constitution while the proviso at the end of the clause was new.             B
       46. Sir Alladi Krishnaswami Ayyar in the Draft Repmi of 10 1\
14'h and l 5'h April, 1947 in relation to Clause 13 suggested that it must
be made clear that:

        "(I) good1·.fi·om other parts of India than in the units'
                                                                             c
      concerned coming into the units cannot escape duties
      and taxes to which the goodv produced in the units in
      themsell·es are suhject.

      (2) it 11111st also he open to the unit in an emergency to
      place restrictions on the rights declared hy the clause. "             D
      47. The above suggestions were accepted and it was modified
and incorporated as Clause 14 in the following words:
        "14. (1) Subject to regulation hy the law of the Union
      trade, commerce and intercourse among the units hy
                                                                             E
      and henveen the citizens shall he free:

      Provided that any unit may by law impose reasonable
      restrictions in the interest of puhlic orde1; morality or
      health or in an emergency:
                                                                             f
       Provided that nothing in this section shall prevent any
       unit .ftnm imposing 011 good~ imported.from other units
       the same duties and taxes to which the good~ produced
       in the unit are .rnhject:

      Provided.further that no preference shall he given by                  G
      any regulation of commerce or revenue hy a unit to one
      unit over anothe1:

       /N.B. - A proviso will have to he added to meet the
       difficulty pointed out in para 6 of our report.]
                                                                             H
212             SUPREME CULJRT REPORTS                           [2016] 10 S.C.R.


 A           (2) Trade, cvmmerce or intercourse within the territories
             of the Union by or with any perso11 other tha11 the
             citizens shall be regulated and controlled by the law of
             the Uniort.                  ·
            48. The above clause then came up for consideration before the
 B    Advisory Committee where an elaborate debate ensued. What is of
      considerable importance is the statement of Sir Alladi Krishnaswami
      Ayyar where he explained the purpose of enabling a State to impose
      reasonable restriction in the interest of public order. mora Iity. health or in
      an emergency:
c            "Cltairnum: Then '.et. us take up clause 1-1

             C. Rajagopalacltari: I Think we should add to 1-1 (I)
             that this shall not be a bar to the imposition o( taxes for
             genuine purposes o[ reve11ue.

 D           Many Members: That comes later 011: "N.B. A proviso
             will have to be added to meet the difficulty pointed out
             in para 6 of our report. "

             C. Rajagopa/acl1t1ri: That is wl1y f am adding it.

 E          Alladi Krisluwswami Ayyar: "Subject to regulation by
             the law of the Union, trade, commerce, and intercourse
             among the units by and between the citize11s shall be
            free. " That is the general principle. The11 come the
             exceptions, "Provided that any unit may by law impose
 F           reasonable restrictions in the interest of public orde1~
             morality or health or in an emergency. " Suppose there
             is a general famine, and people are starved, that is what
             is meant here to be dealt with.

             And then "Provided that nothing in this section shall
 G           prevent any unit from imposing on good~ i111poned from
             other units the same duties and taxes to which the goods
             produced in the unit are subject. " That is to say. we
             ought not to differentiate; but at the same time, goods
             coming in should not go scot-ji·ee; they should be su~ject
             to the same duty as goods produced in the area.
H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                       213
             [T. S. THAKUR, C.ll!

A11d then .. Provided further that no preference shall he        A
given hy any regulation of commerce or revenue by a
unit to one unit over another. " NOH'. kindly read
paragraph 6 of the report, regarding adding a proviso.

 K.M. I:anikkar: Rajaji (C. Rajagopalachari) has raised
 the question of the right of the units to raise taxes, and      B
 says this right should not he denied I, howeve1; think
 this is a dangerous power to he given to the units. 111is
 mav result in the creatio11 of so many competing units.
  We have allmved /(Jr two things. We have allowed the
 unit to tax its own industries. We also allow things            c
 hrought in to he taxed. for the sake of parity. But out
.fhe11ll\' want to go a little fiirther and say that the right
 to impose taxes, or transit duty or some other kind of
 duty mu.1·t he give11 to the units. That I am aji-aid, will
 he a 11egatio11 of the clause. There are certain rates
                                                                 D
 and duties existing in Indian States which for budgetary
 and other reasons cannot now he extinguished
  immediately. It may be possible to extinguish them over
 a period of time. hy agreement, hut not immediateiy.

C. Rajagopalachari: If the States everywhere can                 E
impose taxes and duties for revenue, cannot the
provinces also do so?

Alladi Krislmaswami AJyar: We do not give a carte
hlanche to the States. It has been pointed out that
certain condition of things ohtain at present in the             F
States, and ...

K.M. Panikkar: Let me explain the position. The
position with regard to the internal customs in the States
is complicated. Jn a large numher of States these
customs or duties do not exist. For example for the              G
whole of" the Punjah States there is no right for internal
customs. For Hyderahad they have the right to impose
a tax up to 5% on~v. both on imports and exports. Jn
7/"avancore and Cochin it is governed hy what is called
                                                                 H
214        SUPREME COURT REPORTS                         [2016] 10 S.C.R.


 A       inter-portal convention. A large nwnher of States have
         no right whatever even noV1· for imposing customs duty.
         hut a considerable numher of them do enjov this power
         and rheir hudgeta1y position today is based on the
         customs duties thev receive, hoth rhe maritime States and
 B       the internal States. Therefore arrangements will have
         lo he made with them hy agreement and contract for
         setting this matter.

         Alladi Krish11aswami Ayyar: The Union Powers
         Committee :1· attention was drmvn to this matter and it
 C       was .rnggested hy Sir V 7: Krishnamachari and Sir B.L.
         Mitter that some reference should he made to it in their
         report. fVe wanted to permit the States to enjoy the
         indulgence they have heen enjoying. But we should
         guard against ('011Verting the country into competing
         units; that will he against the federation idea.
 [)

         Chairman: What shall we do ahout the note? A proviso
         will have to he added to meet the difficulty pointed out
         in para 6 of the report. Shall we leave ii as it is or shall
         we draft i(!
 E
         C. Raiagopalaclwri: I would request mernhers who
         have ;!,iven thou,e,ht to this suhject to please inform me
         how the unir.1· will raise their revenue. As it is, the Union
         does not contemplate the distrihution of subsidies to
         the proi·inccs. The proPinces or groups differ among
         themselves, some are rich and some are pom: Some are
         capahle of managing with their existing resources; but
         others ma)! have to increase their revenue for managing
         their aff{1irs. ll.vou impose so many limitations on them,
         how can they do that? It is all very well to say fi"ee
 ( .1'   trade is 11eressar1·; hut how are the provinces to live?

         Alladi Krislmaswami Ayyar: So far as the provincial
         legislatures are concerned, there is provision in Sec.
         ]97 of' the present Government al India Act itself'
         (Read1) "No Provincial Legislature or Government shall
 H
       JINDAL STAINLESS LrD. v. STATE OF HARYANA                               215
                   IT. S. THAKUR, CJlj

      by virtue of entry *** have power to pass any law or                     A
      take any executive action ***description ... "

       C. Rajagopalachari: But at present we have the receipts
      fin111 customs and other rece1jJts.

      Alladi Krishnaswami Ayyar: The other day the Madras                      B
      Premier said he could stop the import of textiles fimn
      !30111/wy and other places outside Madras: hut it was
      pointed out to him that until the constitution is altered
      he cannot do so. This theory of self-sufficiency of
      different units is dangerous in our cow1t1)', hecause we
      ha11e to depend upon one anothe1'.
                                                                               c
      Govind Ba/labh Pant: 77iere is 11nani111ity ahout the bodv
      of this clause and it is clear that there should not be
      any discrimination against one unit hy another unit.
      Otherwise we ·will he going against the ve1;' sense of a                 D
      Union or a Federal Constitution. If the units are to be
      discri111inated against, we will come to hlows more often
      than otherwise. Therefore this should be avoided. The
      onlv thing to he considered is how to give effect to the
      suggestion made in para 6 of the President:~ letter which
      we have received through the chairman. Should we                         E
      append a note to the effect that the Constituent Assemb(v
      may consider ho1v best to give effect to this clause in
      relation to the States or shall we put up a draft. If we
      are not going to put up a draft, then the matter is simple
      enough. ··                                                               F


         49. The Advisory Committee accepted the recommendation of
the Sub-Committee in relation to Clause 14 with one change that the
sub-clause providing for central regulation of trade by or with non-citizens
                                                                               G
was dropped as being vague and unnecessary. The Advisory Committee
in its rep01i submitted on 23rd April, 1947 incorporated the above provision
as Clause 10. Certain amendments to the said clause were suggested
and adopted by the Constituent Assembly.

                                                                               H
21 (i            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



 A            50. In the first Draft Constitution of October, 1947, Clause 17
        unde1went further amendments and eventually appeared in the Draft
        Constitution of 1948 as Clause 16 incorporated in the Fundamental Rights
        Chapter in the following words:


 B
              ·· 16. Suhject to the provisions of Article 244 of this
              Constitution and of' any lmr made hy Parliament. trade,
              commerce and intercourse throughout the territory of
              India shall he .fi'ee. "

 c
              51. It is noteworthy to mention here that Inter-State trade and
        commerce was dealt with in Articles 243, 244 and 245 in the Draft
        Constitution of I 948 which Articles were in the following terms:

               ''243. No prefere11ce shall be given to one State over .
 D            a11other nor shall any discrimination he made hetween
              one State and another hy any law or regulation relating
              to trade or commerce, whether carried hy la11d, water
              or air.

              244. Notwithstanding anything contained in article 16
              or in the last preceding article of this Constitution, it
              shall he lawfitl for any State -

                  (a) to impose 011 good importedfi'om other States
                  any tax to which similar goods manufactured or
                  produced in that State are suhject, so, hmvever, as
  F
                  not to discriminate hetween good1· so imported and
                  goocl1· so manufactured or produced; and

                  (h) to impose hy land such reasonahle restrictions
                  on the fi"eedom of trade, commerce or intercourse
  CJ              with that State as may he required in the puhlic
                  interests:

                  Provided that during a period of.five years from the
                  co111me11ce111ent of' this Constitution the provisions of
                  clause (h) of' this article shall not apply to trade or
  H
       JINDAL STAINLESS IJ'D. v. STATE OF HARYANA                            217
                   IT. S. THAKUR, CJ!]

         commerce in any of the commodities mentioned in                     A
         clause (a) of" Article 306 of" this Constitution.

      24 5. Parliament shall hy law appoint such authority as
      it consider.1· appropriate for the carrving out of the
      provisions of Articles 243 and 244 of" this Constitution
      and confer 011 the authority so appointed such powers                  B
      and such duties as it thinks necessm:v. "


       52. The Ministry of Industry and Supply expressed some
reservation regarding clause (b) of Article 244 and demanded abolition c
of the said clause altogether. The Ministry appears to have argued that
it was not possible to foresee the circumstances in which the freedom of
trade, commerce or intercourse with a State will need to be interfered
with by that State in the public interest, unless it be on the basis of
discrimination between the residents of one State to another, and this
                                                                           D
would be wholly contrary to the spirit of the Constitution. [See: B. Shiva
Rao; the Framing of' liidia :1· Constitution, Volume-IV, Page 329}
      53. The note in support of the proposed clause (b) to Article 244,
however, clearly suggests that restrictions refeITed to in clause (b) were
meant to be restrictions other than by way of taxation. The explanatory
                                                                             E
note which was appended by Sir B.N. Rau was in the following words:


      "Note: During a period of depression owing to
      desiruction by flood or otherwise of crops in any
      particular State, it may be necessm:v for the State to                 F
      impose restrictions on the export of" any crop from such
      State in the puhlic interests. Similarly on the outbreak
      ol any epidemic disease. like plague, in a State it may
      he necessary for a neighhouring State to impose
      restrictions rm the fi·eedom of' intercourse hetween the
                                                                             G
      inhahitants of" that State with the inhahitants ol such
      neighhouring State. Clause (h) of" Article 244 is
      intended ro give power to the State to impose such
      restrictions. ··

                                                                             H
218             SUPREME COURT REPORTS                         [2016) 10 S.C.R.



A             54. On 8111 of September, 1949, Dr. B.R. Ambedkar moved an
       amendment seeking to delete Articles 243, 244 and 245 and the same
       was adopted. Simultaneously, a new Pa1i XA was introduced containing
       draft Article 274-A to E. Dr. Ambedkar informed the House that the
       Articles that were otherwise scattered were now brought together so as
       to ensure that members could get a holistic idea regarding trade and
 B
       commerce. Article 274-A was a repetition of Article l 6 and laid down
       the general principle. Aliicle 274-B empowered Parliament to impose
       restrictions in public interest. Article 274-C prohibited Parliament and
       the State legislatures from making any law giving any preference to one
       State over another, or making any discrimination between one State and
 c     another, except when Parliament found it necessary to do so to deal
       with a situation arising from scarcity of goods; A1iicle 274-D vested
       with the State legislatures the power to impose non-discriminatory tax
       qua extemal goods and to impose reasonable restrictions in public interest
       and Article 274-E provided for an Inter-State Commission.
 D            55. The Constituent Assembly Debates suggests that the
       introduction of Articles 274A to 274E was severely criticized by several
       members of the Assembly including Thakur Das Bhargava and Dr. P.S.
       Deshmukh who moved several amendments to these clauses but the
       same were rejected and Articles 274-A to 274-E including Articles 274
       DD and 274 DOD were adopted without any modification. These
       A!iicles are now renumbered and appear as Articles 301 to 307 of the
       Constitution oflndia.
              56. It is in the above backdrop that question No. l shall have to be
       answered which turns on a true and c01Tect interpretation of Article 301
 F     of the Constitution. We must at the threshold say that while attempting
       to answer the question we are not on virgin ground, for this Court has in
       Atiabari Tea Company case (supra) examined the matter at great
       length. The decision of this Court in Automobile case (,rnpra) has
       modified the view in Atiahari. by b1inging in the concept of compensatory
       taxes which this Collli held to be outside Paii Xlll of the Constitution.
 Ci
              57. While J.C. Shah, J. took the view that all taxes regardless
       whether they are discriminatory or otherwise would constitute an
       impediment on free trade and commerce guaranteed under A1iicle 30 l
       of the Constitution of India, Sinha, CL held that taxes per se were
       totally outside the purview of Article 301 and could never constitute a
 !-I
       .llNDAL STAINLESS Ll'D. v. STATE OF HARYANA                           219
                    [T. S. THAKUR, CJl]

restriction except where the same operated as a fiscal barrier that          A
prevented free trade, commerce and intercourse. The view taken by
.Justice Shah, .I. was not supported by any one of the counsel appearing
for the parties for it was candidly accepted that the same was an extreme
view that was legally unsupportable. What was all the same argued on
behalf of the dealerslassessees was that the majority view that propounded
                                                                             B
the test of "direct and immediate'' effect on free trade, commerce and
intercourse was the c01Tect view. Reliance, in particular, was placed by
learned counsel for the dealers/assessees upon the following passages
appearing in the majority judgment authored by Gajendragadkar, J. to
contend that the same propounded the correct legal position:
                                                                             c

      "50. Let us now revert to Article 301 and ascertain the
      width and amplitude of its scope. On a careful
      e.rnmination ol the relevant provisions ol Part XIII as a
      H1wle as well as the principle ol economic unitJ' which                ])
      it is intended to sa{eguard hy making the said
      provisions, the conclusion appears to us to be inevitable
      that the content ol.fi"eedom provided for /Jy Article 301
      was larger than the fi'eedom contemplated by Section
      297 ol the Constitution Act o{ 1935, and whatever else
                                                                             E
      it may or may not include, it certain~y includes movement
      of" trade which is of the ve1y essence of all trade and is
      its i11tegral part. fl the transport or the movement of
      good1· is taxed solelv on the basis that the good1· are
      thus carried or transported that. in our opinion, direct~y
      affects the freedom of trade as contemplated hy Article                F
      301. I/the movement, transport or the can'.)Jing of goods
      is allowed to he impeded, ohstructed or hampered by
      taxation without satisfying the requirements ol Part XII!
      the fi-·eedom ol trade 011 which so much emphasis is laid
      hy Article 301 would turn to he illu.1·orv. When Article               G
      3111 provides that trade shall he fi·ee throughout the
      territmy of" India primari~y it is the movement part ol
      the trade that it has in mind and the movement or the
      transport parr ol trade must he fi'ee subject ol course
      to the limitations and exceptions provided hy the other
                                                                             H
220      SUPREME COURT REPORTS                         [2016) 10 S.C.R.


A     Articles of Part Xiii. l7wt we think is the result of Article
      301 read with the other Articles in Part XIII.

       51. Thus the intrinsic evidence furnished by some of
       the Articles of Part XIII sh01vs that taxing laws are not
       cxcludedfiwn the operation o/Article 301: which means
 B     that tax laws can and do amount to restrictions freedom
      .fi'om which is guaranteed to trade under the said Part.
       Does that mean that all tax laws attract the provisiom·
       of Part XIII whether their impact on trade or its
       movemelif is direct and immediate or indirect and remote?
 c     It is preciselv hecause the word1· used in Article 301 are
       verv wide. and in a sense vague and indefinite that the
       prohlem of co11strui11g them and determini11g their exact
       width and scope becomes complex a11d difficult.
       J-hnve1-er. in i11terpreti11g the provisions of the
       Conslilution we must ahvay.1· hear in mind that the
 I)
       relernnt pruvisio11 ""has to he read not in vacuo hut as
       occurring in a single complex instrument in which one
       part may throw light on another". (Vide: James v.
       CommonYi:ealth of Australia - 1936 A.C. 578 at pg.
       613). Jn construing Article 301 we nntst, therefore, have
 E     regard to the general scheme of our Constitution as well
       as the particular provisions in regard to taxing laws.
        J71e construction of Article 301 should not he determined
       on a pureZv academic or doctrinnaire considerations;
       in construing the said Article we must adopt a realistic
 f     approach and hear in mind the essential features of the
       separation of powers on which our Constitution rests.
       It is a federal constitution which we are interpreting,
       and so the impact of Article 301 must he judged
       accordinglv. Besides, it is not irrelevant TO remember in
        this connection that the Article we are construing
 c;     imposes a constitutional limitation on the power of the
       Parliament and State Legislatures to levy taxes, and
       generallv, hut f(n· such limitation, the power of taxation
        would he presumed to he for public good and would
        not he subject to judicial review or scrutiny. Thus
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           221
                   [T. S. THAKUR, CJl]

     considered we think it would be reasonable and proper                 A
     to hold that restrictions freedom from "ll'hich is
     guaranteed hv Article 30I, would he such restrictions
     as direct~v and immediately restrict or impede the free
     flow or movement of trade. Taxes may and do amount
      to restrictions: hut it is onZv such taxes as directZv and           B
      immediately restrict trade that would fall within the
     purview of Article 301. The argument that all taxes
     should /Je governed hy Article 30I whether or not their
      impact on trade is immediate or mediate, direct or remote,
      adopts, in our opinion, an extreme approach which
      cannot he upheld. If the said argument is accepted it                c
      would mean, for instance, that even a legislative
      enactment prescribing the minimum 1vages to industrial
      employees may fall under Part XIII because in an
      economic sense an additional wage hill may indirectly
      affect 1rade or commerce. We are, therefore, satisfied               D
      that in determining the limits of the width and amplitude
      of the freedom guaranteed hy Article 30I a rational
      and workah/e test to apply would be: Does the
      impugned restriction operate direct(y or im1r1ediately on
       trade or its movement? It is in the light of this test that
                                                                           E
      we propose to examine the validity of the Act under
      scrutiny in the present proceedings. "


       58. On behalf of the respondent-States it was per contra argued
that the power to levy taxes is a sovereign power that remains totally     F
unaffected by Article 30 l of the Constitution of India. Free trade,
commerce and intercourse was not, according to the learned counsel, to
be understood as free from any restrictions, leave alone free from taxes
which the State legislatures were otherwise competent to levy.
Enunciation oflaw by Sinha, CJ. was according to the learned Attorney      G
General for India and learned Counsel appearing for the States, the
conect view which ought to be accepted in preference to the other two
contrary views propounded in the judgment. Reliance, in particular, was
placed by Mr. Rohatgi and learned Counsel for the respondent-States
upon the following passages appearing in Sinha, CJ. 'sjudgment:
                                                                           H
222        SUPREME COURT REPORTS                          [2016] IO S.C.R.


A       '' 14. Viewed i11 this all co111prehe11sive sense taxation
        on trade, c0111111crce and intercourse would have many
        ramifications and 1rnuld cover almost the entire field of
        pul1lic taxation, hoth in the Union and in the State Lists.
        It is almost impossi/Jle to think that the makers of the
        Constitution intended to make trade, commerce and
        intercourse fi"ee from raxa1io11 in thar comprehensil'e
        sense. If thar were so, all laws ol ra.wrio11 relaring to
        sale a11d purchase of good1· 011 carriage of goods and
        commodiries, men a11d a11imals, from 011e place lo
        a11orhe1; hoth inter-State and infra-Srate, would come
 ('
        within rhe punieH' ol Article 301 and the proviso to
        Article 301 (h! would make it necessarv that all Bills or
        , I me1ul111eur.1· of pre-existi11:J, laws shall have. to g,o
        Through the gamut prescrihed hv that proviso. 7hat will
         he putting too great an impedi111e11t to the power of
 D       taxation vested i11 the States a11d reduce the States' limited
        sovereigntv under the Constitution to a 111ere.fiction. 77wt
        extreme position ha.1-, therefore. ro he rejected as
        li11SOZl/1d.


        15. /11 this crmnection. it is also pertinent to hear ill
 E      mind that all taxation is 1101 11ecessari~v an impediment
        or a restraint in the matter of trade, commerce and
        intercourse. Instead of heing such impediments or
        reslraints, they may, 011 the other hand. provide the
        v.·herewithals to improve di{lerent kinds qf znea11s of
        transport, for example. in cane growing areas. 1111less
         there are good ro(l(/.v. fc1cilitrfor tra11sport of sugarcane
        fi·om .rngarcm1e fields to sugar mills may he whollv
         lacking or insufficient. In order to make new road> as
        also ro improve old 011es, cess on the grower ol cane or
        others illlerested in the /ra11.1port of this commodity has
 ( 'J
         to he imposed, and has heen known in some parrs of
         l11dia to haFe heen imposed at a certain rate per md. or
         1011 of' sugarcane tra11sported to sugar factories. Such

        an imposition is a fax 011 transport ol sugarcane fiwn
        one place to anothe1; either intra-State or inter-State. ft
 H
 JJNDAL STAINLESS !TD. v. STATE Of HARYANA                     223
             JT. S. THAKUR, CJl]

is the tax thus realised that makes itfeasihlefor opening      A
ne\\' means of communication or for improving old ones.
It cannot. therefore. he said that taxation in eve1y case
must mean an impediment or restraint against .fi·ee flow
of trade and co111111erce. Similarly, for the facility of
passenger.1· ond good1· hy motor transport or by railway,
                                                               B
a s11r('harge 011 m11al fares or freights is levied, or may
he levied in fi1t11re. But for such a surcharge,
improvement in the means of communication may not
he availahle at all. Hence, in my opinion, it is not correct
lo characterise a tax 011 movement of goods or
passengcr.1· as necessarily connoting an impediment, or        c
a restraint, in the 11w//er of trade and commerce. That is
another .~ood reason in support of the conclusion that
taxation is not ordinarily included within the terms of
Article 301 of the Constitution.
                                                               D
16. In my opinion. another verv cogent reason for
holding that taxation simpliciter is not within the terms
of Article 301 of the Constitution is that the very
connotation of taxation is the power of the State to raise
money for public purposes by compelling the payment
by persons, hoth natural and juristic. of monies earned        E
or possessed hy them, hy virtue of the facilities and
pmtection aff(Jrded by the State. Such burdens or
imposts, either direct or indirect, are in the ultimate
cmalvsi.1· meant as a contribution hy the citizens or
persons residing in the State or dealing with the citizens     f
of the State, j(1r the support of the Government, with
particular reference to their respective abilities to make
such contrihutions. Thus public purpose is implicit in
every taxation, as such. Therefore, when Part XIII of
the Constitution speaks of imposition of reasonable
restrictions in puhlic interest. it could not have intended    G
to include taxation within the generic term "reasonable
restrictions". This Court has laid it dov.·n in the case of
Ramjilal v. Income Tax Office1; Mohindmgarh( 1951 SCR
117 at page 136) (AIR 1951 SC 97 at page 100). that
                                                               H
224     SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     imposition and collection of taxes hy authority of law
      envisaged by Article 265 is outside the scope of the
      expression .. deprivation of property .. in Article 31 (1)
      of the Constitution. Reasonahle restrictions as used in
      Part 111 or Part XJJJ of the Constitution would in most
 H
      cases he less than total deprivation of property rights.
      Hence, Part XII dealing with finance etc. as already
      indicated, has been treated as a Part dealing with the
      sovereign power of the State to impose taxes, which must
      always mean imposing burdens on citizens and others,
      in puhlic interest. If a law is passed hy the Legislature
 c    imposing a tax which in its true nature and effect is
      meant to impose an impedimellf to thefi"eeflov.• of trade,
      co111111erce and intercourse, for example, /Jy imposing a
      high tariff wall, or by preventing imports into or exports
      out of a State, such a lm1: is outside the significance of
 D    taxation, as such, hut assumes the character of a trade
      harrier which it was the intention of the Constitution-
      makers to abolish hy Part XI!!. 1/ie objections against
      the contention that taxation was included within the
      prohibition contained in Part XIII may thus he
      s11111111arised: (1) Taxation, as such, alwavs implies that
 E
       it is in puhlic interest. Hence, it irould he outside
      particular restrictions, which may he characterised hy
       the courts as reasonahle and in puh/ic interest. (2) The
      power is vested in a sovereign State to carry on
       Government. Our Constitution has laid the foundations
 F    of a welfare State, which means very much expanding
       the scope of the acrivities of Government and
       administration, thus making it necessarv for the State
       to impose taxes on a much larger scale and in much
       v.·ider fields. The legislative entries in the three Lists
 G
       referred to ahove empowering the Union Government
       and the State Governments to impose certain taxations
       with reference to movement of good~ and passengers
       would he rendered ineffective, if not otiose, if it were
       held that taxation simpliciter is within the terms ofArticle
       301. (3) If the argument on hehalf of the appellants
 H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                     225
             [T. S. THAKUR, CJI]

 were accepted, many taxes, for example, sales tax by          A
 the Union and hy the States, would have to go through
 the gamut prescrihed in Articles 303 and 304, thus very
 much detracting from the limited sovereignty of the
 States, as envisaged hy the Constitution. (4) Laws
 relating to taxation, ivhich is essentially a legislative     B
fi.111ctio11 of the State, will hecome justiciable and eve1y
 time a taxation la01: is challenged as unconstitutional,
 the State will have to satisfj; the courts - a course which
 will seriously affect the division of powers on which
 modem constitutions, including ours. are hased. (5)
 Taxation on movement of good1· and passengers is not          c
 necessarily an impediment.

 17. 'J'hat conclusion leads to a discussion of the other
 extreme position that taxation is wholly out o.f the
purview of Article 301. That extreme position is equalzv
                                                               D
 untenahle in view llf the fact that Article 304 contains,
 and Article 306, he/ore it was repealed in 1956,
 contained, reference to taxation for certain purposes
 mentioned in those Articles. But Article 306, which now
 stand~ repealed, contained references to tax or duty on
 the import of goods into one State .fi'om another or on       E
 the exports of good1· from one State to another. Such
 imposts were rea!lv in the nature of impediments to the
.fi'ee flow of goods and commodities on account of
 customs harriers, which it was the intention of Article
 301 to abolish. Similar~v. Article 304, while recognising     F
 the power of a State J,egislature lo tax good1· imported
 inter-State, insists that a similar tax is imposed on goods
 manufactured or produced within the State. 171e Article
 thus hring.1· out the clear distinction between taxation
 as such for the purpose of revenue and taxation for
 pwposes of making discrimination or giving preference,        G
 hoth of which are treated hy the Constitution as
 impediments to free trade and commerce. In other word~.
 so long as the impost was not in the nature of an
 impediment to the free .flow of good~ and commodities
                                                               H
        SUPREME C(;URT REPORTS                        [2016] 10 S.C.R.



A    hetwe!'n 011e State a11d a11other, including in this
     expressio11 Union territories also, its legality >rn.1· not
     s11hject to an attack hased 011 the provisions of Part
     Xiii. !J11t that does not mean that State Legislatures derive
     !heir pm1·er of" taxation hv virtue of ivhat is contained
     in Article 304. Article 304 onlv lefi intact such pmver
     ol taxation, hut contained the inhihition that such taxes
     slw11 not he permitted to hm·e the effect of impeding
     the .fi"ee flow of good1· and conmwdities."


c    Sinha, CJ. concluded as follows:

      "18 . ..... 7/nrs, m1 a fair construction of the provisions
     of' Part Xlli, the following propositions emerge: ( 1)
     trade, commerce, and intercourse throughout the
     territorv of india are not ahsolutelv free, h11t are suhject
])
     to certain powers of legislation hy Parliament or the
     l,egislature ofa State; (2) thefreedom declared hyArtirle
     301 does not mean freedom fi"Oln taxation simplicite1:
     h11t does 111eanji·eedomfro111 taxatio11 which has the effect
     of" directly impeding the fi'ee .flow of trade, commerce
     and intercourse; (3) the ji-eedom e11visaged in Article
     301 is s11hjecl to 11011-discriminatorv restriction.\' imposed
     hv Parliament i11 puhlic interest (Article 302); (4) eve11
     dis('rimi11atu1T or preferrntial legislatirm may he made
     hy Parliament for the purpose of" dealing with an
     e111e1genc1· like a scarcity ol good\· in any part of India
F
     [Article 303(2)}; (5) reasonable restriction.1· may he
     imposed hy the Legislawre ol a State in the puhlic
     interest {Article 304(b}j; (6) 11011-discri111i11atorv taxes
     may he imposed hy the Legislature of" a State on good1·
     imported fi'om a11other State or other States, if similar
Ci   taxes are imposed on good\· produced or manufactured
     in that State /Article 304(a)j: and lastly (7) restrictions
     imposed hy existing laws have heen continued, except
     insofar as the Preside11t 111ay In· order otherwise direct
     (Arric!e 305). ··
II
       JINDAL STAINLESS LTD. v. STATE OF I-IARYANA                            227
                   [T. S. THAKUR, CJ!]

       59. Before we examine the rival submissions, we must also refer        A
to the decision of this Court in Automobile case (supra) which added a
new dimension to the legal exposition inAtiabal'i case (supra) by decla1ing
that taxes that were compensatory in nature fell outside Part Xlll and
could never be treated as ·restrictions offensive to Article 301 of the
Constitution. S.K. Das, .I. speaking for the majority explained the concept   B
of compensatory taxes falling outside P~rt XIII in the following words:


       "10 ... As the language e111ployed in Article 301 nms
      unqualified the Court. hearing in mind the fact that that
      pmvision has to he applied in the working of an orderly                 c
      society, has necessarily to add certain qualifications
       suhject to vi'i1ich alone that freedom may he exercised.
       This point has heen very lucidly discussed in the
       dissenting opi11io11 which Fullagar. J. wrote i11 M.cCarter
       v. Bl'odie (1950) 80 CLR 432 an opinion which was                      D
       s11hsta11tiallr approved hy the Privy Council in Hughes
       and Vale Proprieta1J1 Ld. v. State of New South Wales
       1955 AC 241. 171e learned Judge gave several examples
       to shrnv the disti11ctio11 hetween what was merely
       permitted reg11la1ion and what irns true i11terference with
                                                                              E
       fi·eedo111 of trnde a11d commerce. He pointed out that in
       the 111atter of 1110/or vehicles most countries have
       legislmion which requires the motor vehicle to he
       registered and a fee lo he paid on registration. Eve1y
       motor vehicle must cm-rr lamps of a specified kind in
      .fi'ont and al the rear and in the hours of darkness these              F
       la111ps must he alight if the vehicle is heing driven on
       the road. Everv 1110/or vehicle must cany a warning
       device. such as a horn; it 111ust not be driven at a speed
       or in a manner which is dangerous to the pu/Jlic. In
       certain localities a 1110/or vehicle must not he driven at             G
       more than a certain .1peed. The weight of the load which
       nw1· he carrier! on a motor vehicle on a puhlic highway
       is limited. Such examples may he multiplied indefinite~\'.
       Nohodv douhts that the application of rules like the
       alwve does not really affect the freedom of trade and
                                                                              H
228     SUPREME COURT REPORTS                       [2016] 10 S.C.R.


A     commerce: mz the contrarv they facilitate the fi'ee flow
      of' trade and commerce. The reason is that these rules
      cannot fairlr he said to impose a hurden on a trader or
      deter himfi·om trading: it would he absurd, for example,
      to suggest that .fi·eedom of trade is impaired or hindered
 R    hy lmvs which require a motor vehicle to keep to the
      leli ol the road and not drive in a manner dangerous to
      the puhlic. fl the word 'fi"ee" in Article 301 means
       }i·eedom to do whatever one wants to do ", then chaos
      may he the result; for example, one owner of a motor
      vehicle may v.·ish to drive 011 the left of the road while
 c    another may wish to drive on the right of the road. If
      they come _fi-0111 opposite directions, there will he an
      inevitable clash. Another class of examples relates to
      making a charge for the use of trading facilities, such
      as, road1', hridges, aerodromes etc. The collection of a
D     toll or a tax for the use of a road or .frJr the use of a
      hridge or .fi:Jr the use of an aerodrome is no harrier or
      hurden or deterrent to traders ·who, in their ahsence,
      mav have to take a longer or less convenient or more
      expensive route. Such compensatory taxes are no
      hindrance to anyhodr :, freedom so long as they remain
 E
      reasonahle; hut they could of course he converted into
      a hindrance to the freedom ol trade. If the authorities
      concemed really wanted to hamper anybody'.> trade,
      they could easilv raise the amoullf of tax or toll to an
      amount which would he prohihitive or deterrent or create
      other impediments which instead offacilitating trade
      and commerce v.:ould hamper them. It is here that the
      contrast, hetiree11 "freedom" (Articles 301) and
       ··restrictions" (Articles 302 and 304) clearly appears:
      that which in reality facilitates trade and commerce is
 G    not a restriction, and that which in reality hampers or
      hurde11s Trade and commerce is a restriction. It is the
      reality or suhstance ol the matter that has to be
      determined. It is not possible a priori to draw a dividing
      line hetween that ·which would reulzv he a charge for a
      facility provided and thal which would really he a
 H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                     229
             IT. S. THAKUR, CJI]

deterrent to a trade; hut the distinction, if it has to be     A
drawn, is real and clear. For the tax to hecome a
prohihited tax it has to he a direct tax the effect of which
is to hinder the movement part o{ trade. So long as a
tax remains compensatory or regulatory it cannot
operate as a hindrance.                                        B
                           xxx xxx xxx

I 4. Afrer carefulZv considering the arguments advanced
he/ore us we have come to the conclusion that the
narrow interpretation canvassed for on behalf of the
majoritv o{ the States cannot be accepted, namely, that
                                                               c
the relevant articles in Part XIII applv only to legislation
in respect of the entries relating to trade and commerce
in any of the lists of the Seventh Schedule. But we must
advert here to one exception which we have already
 indicated in an earlier part of this judgment. Such           D
 regulatmy measures as do not impede the freedom of
 trade, commerce and intercourse and compensat01y
 taxes fhr the use of trading facilities are not hit by the
fi·eedo111 declared by Article 30 I. They are excluded
fi'Oln the purview of the provisions o{ Part XIII of the       E
 Constitution for the simple reason that they do not
 hamper trade. commerce and intercourse but rather
facilitate them.

                        xxx xxx xxx
                                                                F
 I 7. /Ye have, therefr;re, come to the conclusion that
neither the 'videst inte1pretation nor the narrow
interpretations canvassed'be{ore us are acceptable. The
interpretation which was accepted by the majority in
the Atiabari Tea Co. case is correct, hut subject to this
clarification. Regulatory measures or measures                 G
imposi11g compensato1y taxes for the use of trading
facilities do not come within the purview of the
restrictio11s contemplated hy Article 301 and such
measures 11eed not comply with the requirements of the
proviso to Article 304(/J) of the Constitution. "              H
2:10             SUPREME COURT REPORTS                            [2016] 10 S.C.R.


 A            60. Hidayatullah. J. in his dissentingjudgment, however. took the
       view that even when a tax may be compensatory in character it would
       be a valid levy only it' it goes through the process of presidential assent i11
       terms of Article 304(b) of the Constitution of India and the proviso
       thereto. The following passage in this regard is relevant:
 8

              "12 5. 77iat a tax is a restriction when it is placed upon
              a trnde direct!)' a11d immediatezv may he admitted. But
               there is a difference between a tax n·hich hurde11s a
               trnder i11 !his 111a1111er and a tax, which heing general,
 c             is paid hy trades111e11 in common with others. The first is
               a levv fi'Om the trade hy reason of its heing trade, the
              other is leviedfi·om all, a11d tradesmen pay it hecause
               everyone has to pay it. There is a viral dZ(fi:re11ce
               between the tivo, viewed .fi-0111 the angle of.freedom of
 J)            /rade and commerce. The first is an impost on trade as
               such, and may he said to restrict it: the second may
               hurden the tradn: hut it is not a "restriction" of the
               trnclc. To refi.1.1·r:' to draw ,1·11ch a distinction would mean
               that there is no faxing ent1:r in Lists I and JI which is not
               suhject to Articles 301 and 304, however general the
               tax and hmvever non-discriminatorv its imposition. To
               hring all the taxes within the reach of'Article 301 and
               thus lo hring them also within the reach of Article 304
               is to overlook the concept o/a Federation, ;vhich al!OH'S
              fi'eedom of action to the States, suhjecl, h01veve1: to the
 F             needs of the unity of India. Just as unity cannot he
               al!o\·Fed to he fi'ittered away hy insular action rhe
               existence of separate States is 1101 to he sacrificed hy a
              .fi1sion heyond what the Constitution envisages. No
               dou/Jr. Parr XIII ensures economic unitv to India and
               combines the .federating Slates into the larger State
               ca!!ed India. 'f71e Consti111tio11 also permits independent
               powers of' wxatirm. What the Constitution does not
               permit is thar trade. commerce and intercourse should
                he rendered "unlree ". Trade and commerce remain free
               even ·when general taxes are paid hy tradesmen in
 H
 JINDAL STAINLESS LfD. Y. STATE or HARYANA                       231
             IT. S. THAKUR, CJJ]

common ·with 11011-tradesmen. The question ivhether a            A
tax off'e11d1· Part )(]ff can 011lv arise when it seeks to tax
trade, commerce and intercourse. Support for the
conlrarv propositirm is not to he found in 1936 AC 578
James v. Co111111011wealth. The Privy Council in James
v. Cmmnomi·ealth did 11ot lay down:
                                                                 B
       "Even• step in the series of operations which
      constitutes particular transaction is an act of
      trade, a11d contml under the Stale law of any of
       these steps 11111st he an i11terfere11ce with ifs
      fi'eedom as trade" (p.629)                                 c
This passage represent.1· the view held in McArthur '.I·
case 192() (28) CLR 530. That case was disapproved at
p. 631. We have alreadv dealt with this view at some
length.
                                                                 D
J26. Fhus, taxation laws and taxes must he divided into
two kinds. Taxes which are general and for revenue
purposes which fc1ll on those engaged in trade,
co111111erce and intercourse in the same way as they fall
011 others not so engaged cannot normally he ·within
the reach of Part Xiii. A motor transport owner cannot           E
claim that he will not pay properly tax in respect of his
garage h11ildi11g.1· or electricitv tax for the electricity he
com11111e.1· i11 lighting them, or income tax on his profits.
Part XIJJ has nothing to do tvith such taxes even though
they fal! upon tradesmen.                                        F
                       xx xxx xxx xxx

l 32. !11 our judgment. the first tesr to appl)I is what is
the ohject and scope of the legislation'! A regulation of'
Trade and commerce may achieve some p11h!ic purpose              G
·which affecTs Trade and commerce incidentally hut
without impairing thefi'eedom. Sometimes, however, the
regulation itself'
  -             . mm·
                    . amount lo a resTriction, and if. such
a stage is reached. then under our Constitution the
restriction must he reaso11ah11• in the puhlic interest, and
                                                                 H
232      SUPREME COURT REPORTS                       [2016] 10 S.C.R.


A      the President :1· prior sanction must be ohtained, if the
       lmv i111posi11g such restriction is made by the State
       J"egislature, ff; howeve1; it does not reach the stage of
       restriction of trade and remains only a regulation
       incidentallv touchinr; trade and commerce, the
       regularion is outside the operation of Articles 301 and
 B
       304. ft is 011 this ground that laivs prescribing the rule
       of the road and like provisions alreaczv referred to as
       well as a regulation that the height to which truck\- may
       he loaded must he such as not to endanger the overhead
       hrid::;es or wires, do not hm·e to go before the President.
 c     since they do not affect the freedom guaranteed. The
       ohject of such laws cannot he regarded as a restriction
       of trade and commerce. Freedom in Article 301 does
       not mean anarchy Similarlv, a demand for a tax .fi"om
       traders in common with others is not a restriction of
 ])    their right to cany on trade and commerce. A system of
       licensing of motor vehicles is a regulation, but does not
        impair the fi'eedom of trade and commerce unless the
       licensing is made to depend upon arbitrary discretion
       of the licensing authorit_v. Similarly, a fee for
       administrative purposes may also he viewed as a part
 E
       of regulation. Such licensing and.fees fall outside Article
       301, hecause they cannot he 1·iewed as restrictions, and
        therefiire do not need to he processed under Article 304.
       Such regulations are designed to give equal opportuni(V
        to evervone, suhiect to a certain standard. The ohject
 r      heing a puhlic ohject, such regulations cannot be
       questioned unless they amount to restrictions. A tax,
        however, which is made the condition precedent of the
        right to enter upon and carry on business af all is a
        ve1T different mattei: It is a restriction on the right to

 G
        carrv 011 trade and commerce, and the restriction is
        released on the payment of the tax, ·which is the price
        of such release. It is from this point of view that the
        impugned provisions in this case must he examined. "


 J-j
       JINDAL STAINLESS ITD. v. STAI'E or HARYANA                          233
                   IT. S. THAKUR, CJI]

      61. Subbarao J. as His Lordship then was, agreed with the majority   A
view but added the following passage to the same:



      "3 7. The next question is, what is the content of the
      concept offi'eedo111'! The word ''.fi'eedom" is not capable          B
      o{ precise definition, hut it can be stated what would
      i11;{ri11ge or detract fi·om the said freedom. Before a
      particular law can he said to i1?fringe the said.freedom,
      it must he ascertained whether the impugned provision
      operates as a restrictio11 impeding the free movement of
      trade or only as a regulation facilitating the same.                 c
      Restrictions ohstruct the fi·eedom, whereas regulations
      promote it. Police regulations, though they may
      superficially appear to restrict thefreedom of movement,
      in fact provide the necessarv conditions for the fi'ee
      movement. Reg11la1io12.1· such as provision for lighting,            D
      speed, good condilion o{ vehicles, limings, rule o{ the
      road and similar others, reallv facilitate the .freedom of
      movement rather than retard it. So too, licensing system
      with compensatorv fees would not be restrictions but
      regulatory provisions: for without it, the necessary lines           E
      of communication, such as roadv, water-ways and air-
      ways, cannot effectivezy be maintained and the fi·eedom
      declared mav in practice turn out to be an empty one.
      So too, regulations providing for necessary services to
      enable the fi·ee movement o{ traffic, whether charged
      or not, cannot also be ·described as restrictions                    r
      impeding the freedom. To say all these is not to say that
      everv provision couched in the form of regulation hut
      in effecl and suhstance a restriction can pass off as a
      pen11issihle regulation. ft is for the Court in a given
      case to decide whether a provision purporting to                     G
      regulate trade is in fact a restriction on freedom. ff it he
      a colourable exercise of power and the regulatmy
      provision in fact is a restriction, unless the said
      provision is one of the permissihle restrictions under
       the succeeding articles, it would be struck down. This
                                                                           H
       SUPREME COURT REPORTS                         [2016] 10 S.C. R.


A   view is co11siste/1/ with the pri11cipl.e.1· laid down hv the
    A111·1rcilian High Court and the Privv Council in the
    context of inte1pre!atio11 of the words "ahsol11telv free"
    in Section <)] of   . the Commonwealth of         . Australia
    Constitution ,·lei, which is more emphatic than the irord
B
    "fi·ee" in drtic!e 301 of our Constitution.

                            XXX .\'XX XXX

     39. But the more diflicu!t question is, what does the
    'vvord "restrictions" mean in /lrticle 302! 77ie dictionw)'
     1JJeani11g of' the word "restrict" is "to confine, hound,
c    limit". Therefi;re, am· limitation placed upon thefi'eedom
     is a restriction 011 that fi·eedom. But the !imitation must
     he real, direct and immediate, hut not fc111cif11!, indirect
     or remote. Jn !his co11text, the principles evolved hr
     . lmerican and Australian decisions in their a/fempt 10
D    reconcile the commerce power and the State police
     p011·er or !he .fl·eedom of' commerce and the
     Commo11wea!th power to make laws affecting that
    .fi·eedom can 11sefitl/y he i11voked with suitable
     modification.1· a11d adjustme11ts. Ol all the doctri11e.1·
     enJlved, i11 my view. the doctrine of "direct and imJ11ediate
     effect" on the .fi'eedom would he a reasonah!e solvent
     to the dif(icu!t situation that might arise 1111der our
     Constitution. If a !a11.: whatever may ha1'e been its source,
     directly and iJ11111ediatelv affects the ji-ce movement of
     trade, it 11•ould he restrictio11 on the saidfi·eedom. But a
     la\\' which may have only indirect and remote
     reperc11ssion.1· 011 the saidfi·eedom cannor he co11sidered
     to he a restriclion 011 it. Taking the illustration from
     taxatio11 law. a law mav impose a tax on the movement
     of goods or persons hy a motor-vehicle; it directly
G    opera1es a.1· a restrictio11 011 the free movement of trade,
     except when it is compensatorv or regulatm:v. On the
     other hand, a law may tax a vehicle as property, or the
     garage 11·herei11 the vehicle usedfor conveya11ce is kept.
      The said law mm· have indirect reperc11ssio11 011 the
      nwvement, hut The said law is not 011e directlv imposing
H
 JINDAL STAINLESS LrD. v. STATE Of HARYANA                     235
             [T. S. THAKUR, C.11]

restnct10111· 011 the fi'ee movement. Jn this context, two     A
difficulties may have to he faced: .firstly, though a law
purporting to il/lpose a tax 011 a property or a 111otor-
vehic/e, as the case may he, may in fact and in reality
i111pose a la.Y on the 111ovement itself;- second(v. a law
mm• not he on the movement o{trade, hut 011 the property
                                                               B
itself. hut !he /Jurden may he so high thal it may
indirectlv a/feel the fi'ee flow ol !rade. In the former
case. the court may have to scrutinize the provisions ol
a particular statute to ascertain whe!her the tax is 011
the 11101·eme11t. fl the provisions disclose a tax on the
mm·el/lenl, it 1vill he a restriction within the meaning ol    c
Article 302. In the lat/er case, il the provisions show
that the tax is 011 propertJ', the reasonableness of the
lax may have to he tested against the provisions ofArticle
19 of the Constitution. The question whether a law
imposes a restriction or not depends on the question           D
11)1elher the said law imposes directly and immediatelv
a limilan. 1n 011 the fi'eedom of 111ovement of lrade. If it
does, the c:xtent of the impediment relates to the question
ol degree rather than to the nature of it. If it is a
 restriction, it must satisfj· the conditions laid down 111
                                                               E
Article 302 of the Constitution.

                           xxx xxx xxx
 46. The foregoing discussion may he summarized in the
following propositions: ( 1) Article 301 declares a right
 o(fi·ee movement ol trade without any obstructions hy         f
 way of harriers, inter-State or intra-State, or other
 impediment.1· operating as such harriers. (2) The said
ji·eedom is not impeded, but, 011 the other ha11d.
promoted, hy reguhitions creating conditions for the fi'ee
 movement ol trade, such as, police regulations, provision     G
/(Jr services. maintenance of roads. provision for
 aerodromes, wharfi· etc., with or without compensation.
 ( 3) Parliament mm• hy !mt· impose restrictions on such
fi'eedom i11 the puh!ic interest: and the said law can he
 made hy virtue ol anv entry with respect whereof
                                                               H
236             SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A           Parliament has power to make a lm1-'. (4) The State also,
            in exercise of its legislative powo; may impose similar
            restrictions, suhject lo the two conditions laid down in
            Article 304(h) and subject to the provi.1·0 mentioned
            therein. (5) Neither Parliament nor the State Legislature
 B          can make a lcrw giving preference to one Stale over
            another or making discrimination hetween one State
            and another, hy virtue of any entry in the Lists,
            inff"inging the saidf;·eedom. (6) 7/1is han is lifted in the
            case ol Parliament j(1r the purpose of dealing with
            situatio11s arising out of scarci(y of goods in any part
 c          ol the terrifOI)' of India and also in the case ol a Stale
            under Article 304(/J), subject to the conditio11s
            mentioned therein. And (7) the State can impose a 11011-
            discriminato1:v tax on good1· imported.fiwn other States
            or the Unio11 territory to which similar goods
D           manuf"actured or produced in that Stale· are subject. "


              62. The net effect of the decision in Automobile case (supra) is
      th<it taxes, if the same are compensatory in character, do not offend the
      guarantee of free trade, commerce and intercourse under Article 301 of
 E
      the Constitution. The further question whether the compensatory
      character of a tax has to be determined by reference to the direct and
      substantial benefits/ facilities provided by the State to the tax payer was
      ex;imined and answered in the affirmative in Jindal Stainless Steel
      case (supra), where this Court while overruling the decisions in
 r    Bhagatram and Bihm· Chamber of Commerce cases (supra) declared
      that it is not just a remote benefit to the tax payer but only a direct and
      substantial benefit that would justify levy of compensatory taxes without
      offending A1iicle 301 of the Constitution oflndia. Speaking for the Comi,
      Kapadia, J. observed:
 G

            "49. The concepl of compensatory taxes was
            propounded in Automobile Transport in which
            compensatorv taxes were equated with regulatmy taxes.
            In that case, a working test for deciding whether a tax
H
  ,NDAL STAINLESS LTD. v. STATE OF HARYANA                      237
             [T. S. THAKUR, CJI]

is compeusatmy or not was laid down. In that judgment,          A
it was observed that oi1e has to enquire whether the
trade as a class is having the use of certain facilities
for the heller conduct ol the trade/business. This
working test remains unaltered even today.

50. As stated ahove, in the post 1995 era, the said             B
working test pmpounded in Automohile 1l·amport stood
disrupted when i11 Bhagatram case, a Bench al three
Judges enunciated the test ol "some connection'·' saying
that even if' there is some link between the tax a11d the
facilities exte11ded to the trade directly or indirectly, the   c
 levy cannot he impugned as invalid. Jn our view, this
 test of "some .connection" enunciated in Bhagatram case
 is not 011/y contrary to the working test propounded in
 Automohile Transport case hut it obliterates the very
 has is of' compensatory tax. We may reiterate that when
                                                                D
 a tax is imposed in the regulation or as a part of
 regulatmy measure the controlling factor of the le1~y
 shifis fr'om burden to reimbursement/recompense. The
 vvorking test propounded hy a Bench ol seven Judges
 in Automobile Transport and the test of "some
 co11nection " enunciated by a Bench of three Judges in         E
 Bhagatram case cannot stand together. Therefore, in
 our view, the test of' "some connection " as propounded
 in Bhagatram case is not applicable to the concept ol
 compensatory tax and accordingly to that extent, the
judgments of' this Court in Bhagatram Rajeevkumar v.            F
 CST and State of' Bihar v. Bihar Chamber of Commerce
 stand overruled.

                     xxx xxx xxx xxx

52. Jn our opinion. the doubt expressed by the referring
                                                                G
Bench about the correctness of the decision in
Bhagatram case followed by the judgment in Bihar
Chamber of Commerce was well founded.

53. We reiterate that the doctrine of "direct and
                                                                H
238             SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A            immediate effect·· of the impugned law on trade and
             commerce under Article 301 as propounded in Atiabari
             Tea Co. Ltd. v. State of Assa111 and the working test
             enunciated in Automobile 11-cmsport (Rajasthan) Ltd. v.
             State of Rajasthan for deciding whether a tax is
 B           compensatory or not vide para 19 of the Report (AlR),
             will col7finue to apply and the test of "'some connection"
             indicated in para 8 (of SCC) of the judgment in
             Bhagatram Rajeevkumar v. CST and followed in State
             of Bihm· v. Bihar Chamher of Commerce is, in our
             opi11ion, not good law. Accordingly, the constitutio11al
 c           validity of various local enactments which are the
             suhject-matters o.f pending appeals, special leave
             petitions and writ petitions will now he listed for being
             disposed of in the light of this judg111e11t. "

D
                63. The legal position that today holds the field in light of the
       above is that compensatory taxes would fall outside Part Xlll of the
       Constitution only if tax payers receive benefits and facilities
       commensurate to the levy. Any and every benefit howsoever remote or
       distant, would not save the levy from an attack on the ground of violation
       of Article 30 I. Having said that we must mention to the credit of the
       learned counsel for the dealers/assessees that except a feeble attempt
       made by Mr.A.K. Ganguly, learned counsel appearing for Sony India
       Pvt. I .td. and Mr. Bagaria, learned counsel appearing for Steel Authority
       of India Limited (SAIL) the rest of the counsel fairly accepted that
 r     there was no constitutional or juristic basis for the Compensatory Tax
       Theory propounded by the majority judgment in Automobile Tramport
       case (supra). Mr. Salve, who led the team oflawyers appearing for the
       dealers/assessees also did not support the compensatory tax theory
       propounded in Automobile case (supra). Mr. Rohatgi, leamedAttomey
       General for India and M/s. Rakesh and Dinesh Dwivedi who appeared
 G
       for some of the States also argued that the Compensato1y Tax Theory
       has no basis whatsoever and that the same ought to be abandoned not
       only because of lack of any juristic support but also because of the
       problems that beset the application of the said theory in practice. It may,
       in the light of the concessions made at the Bar, have become unnecessaiy
 I-!
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                            239
                    lT. S. THAKUR, CJI]

for us to deal with this aspect at any length but since Mis. Ganguly and     A
Bagaria have not fully subscribed to the views urged by their colleagues
appearing for the dealers, we are left with no option but to squarely deal
with the question whether the Compensatory Tax Theory is indeed
sustainable. Three distinct aspects touching the question need be noticed
straightaway. The first and the foremost of these aspects is that the
                                                                             B
concept ofcompensatory taxes is not recognised by the Constitution. A
tax is a compulsory exa~tion of money for general public good and is
defined as under by Thomas M Cooley in his book 11ie Law of Taxation
at page 61(Clark A. Nichols ed., 411' ed. 1924) as:

                                                                             c
      "1bxe.1· are the enforced proportional colltributions fi·om
      persons and property, levied by the state by virtue of its
      sovereignty for the support of government and for all
      puhlic need~. This definition of taxes, often referred to
      as "Cooley:~ definition," has heen quoted and                          D
      endorsed, or approved, expressly or otherwise, by many
      different courts. While this definition of taxes
      characterizes them as 'contributions', other definitions
      refer to them as 'imposts', 'duty or impost', 'charges',
       'lmrdens ', or 'exactions', ; hut these variations in
      phraseology are of no practical importance. "                          E

                            xxx xxx xxx xxx
                            xxx xxx xxx xxx

                                                                             F
        The term is defined also in The Major Law Lexicon by P.
Ramanatha Aiyar - Vol. 6 - 41,, Edition - Page Nos.6678 and 6679
in the following words:


       The term "tax" and "taxes'' have been defined as a                    G
       rate or sum of money assessed on the person or property
       ol a citizen by government for the use of the nation or
       state; burdens or charges imposed by the legislative
       power upon persons or proper~v to raise money for
       pu/Jlic purposes, and the enforced proportional                       H
240              SUPREME COURT REPORTS                           [2016) 10 S.C.R.


A            contrihutio11 o{persons and propertv levied hy authority
             (<l the state for the support of government a11d for all
             puhlic need\'.
                                    xxx xxx xxx xxx
                                    xxx xxx xxx xxx
 B
             Taxes are puhlic hurdens. of·- which everv. individual may
                                                                      .
             he compelled to hear his part, and that in proportion to
             the extent of protection he receives or the amount of
             property held hy him, as the v.:il/ of the Legislature may
             direct. The prxwer of taxation is said to. he an incident
 c
             of sovereignt}; a11d co-extensive with that of which it is
             incident. "


             Blackwell on Tax Titles as cited in 'Tata Iron & Steel Co.
 D     Ltd. v. State of Bilwr, AIR 1991 Patna 75, 81 has the following to
       say about taxes:
              'Taxes are defined to he burdens or charges imposed
              hy the legislatil'e power upon persons or property to
              raise money .fhr public purposes. '
              Black'.s Law Dictionary, 7'" Edn., P. 1469 defines tax as under:
              "A 111onetm); charge imposed hy govern111e11t on persons,
              e11tities or property to yield puhlic revenue,"
               If taxes are eventually meant to serve larger public good and for
 F     running the governmental machinery and providing to the people the
       facilities essential for civilized llving, there is no question of a tax being
       non-compensatory in character in the broader sense.
              64. Secondly, because the concept of compensatory tax obliterates
       the distinction between a tax and a fee. The essential difference between
G      a tax and a fee is that while a tax has no element of quid pro quo, a fee
       without that element cannot be validly levied. The difference between a
       tax and the fee has been examined and elaborated in a long line of
       decisions of this Court. (See: Commissioner, Hindu Religious
       Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
       Shirur Mutt (AIR 1954 SC 282), Mahant Sri Jagamwth Ramanuj
 1-1
        JINDAL STAINLESS Ll'D. v. STATE OF HARYANA                                 241
                    [T. S. THAKUR, CJI]

Das & Am: v. State of Orissa & Am: (AIR 1954 SC 400), The A
/Ji11gir-Ra111pur Coal Co. Ltd. 1•. State of Orissa (AIR 1961 SC 459),
Corporation of Calcuita and am: v. Liberty Cinema (AIR 1965 SC
1107), Kewal Kris/ma Puri and Am: v. State of Punjab (1980) 1
sec 416, Kris/ti Upaj Mandi Samiti and Ors. v. Orient Paper and
Industries Ltd. (1995) l SCC 655), State of Gujarat and Am: v. B
Akhil G1~jarat Pravasi V.S. Malwmendal (2004) 5 sec 155: State
of West Bengal v. Kesoram Industries Ltd. & ors. (2004) 10 SCC
201.
         65. Thirdly, and lastly, the concept ofCompe11satory taxes being
outside Part Xlll, is difficult to apply in actual practice. Experience in         c
the present batch of cases has amply demonstrated that difficulty. Most
of the legislations enacted by the States in these cases have described
the entry tax levied under the same to be compensatory in character.
This may have been done to take the levy outside the mischief of Article
301 of the Constitution. The question however is whether tax amount
collected in terms of the said legislation is really used by the State for the     D
purpose of providing or maintaining services and benefits to the tax payers
and whether the Courts can follow the money trail to determine whether
the State concerned has actually used the amount for the avowed purpose
 underlying the legislation. This process is fraught with serious difficulties,
 a fact that was not disputed by learned Counsel for the assessees/dealers.        E
 Actual application of the Compensatory Tax Theory, therefore, runs into
 difficulties to an extent that the theory at some stage breaks down. M/
 s. Salve, Rohatgi and Dwivedi were in that view perfectly justified in
 submitting that the Compensatory Tax The01y was legally unsupportable
 and deserved to be abandoned. We have no hesitation in agreeing with
                                                                                    F
 that submission, the arguments of M/s. Gangl1ly and Bagaria to the
 contrary notwithstanding.
        66. With the Compensatory Tax Theory no longer found
acceptable, we are left with only two competing view points, one
expressed by Gajendragadkar, J. and the other by B.P. Sinha, CJ. Which
                                                                                   G
one is the conect view is the critical question that falls for our detem1ination
having regard to the Constitutional scheme and the language employed
in Articles 301 to 307 to which we must now turn for a closer look.


                                                                                   H
242             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A           Article 30 I is as under:
            ".Wl. Freedom of trade, commerce and intcrcourse.-
            Suhject ro the other provisions of this Part, trade,
            commerce and intercourse throughout the territorJ' of
            India shall he free"
 B
              A plain reading of the above would show that freedom of trade,
      commerce and intercourse is by no means absolute, the same being
      subject to the other provisions of Part Xlll of the Constitution. Amongst
      those provisions are Articles 302, 303 and 304 which have a direct bearing
      on the nature and the extent of restrictions subject to which only is the
 c    right to freedom of trade, commerce and intercourse refeJTed to in Article
      30 I exercisable. Article 302 reads thus:


              "302. Power of Parliament to impose restrictions 011
             trade, commerce and intercourse.- Parlialnent may hy
 D
             lcni· impose s11ch restrictions on the freedom of trade.
             commerce or intercourse hetween one State and another
             or within any part of the territory of India as may he
             req11ired in the puhlic interest. "

 E
             67. The above leaves no manner of doubt that Parliament is
      empowered to impose such restrictions on the freedom of trade,
      commerce and intercourse between one State and another or within any
      part of the territory of India as may be required in public interest. Reading
      Articles 30 I and 302 together, it is evident, that freedom of trade,
 r
      commerce and intercourse is subject to restrictions which Parliament
      may by law impose in public interest. The absolute character of the
      freedom of trade, commerce and intercourse is thus lost by reason of
      Article 302 itself empowering Parliament to impose such restrictions as
      it may consider necessary in public interest. Article 303, in tum, places
 G    restrictions on the legislative powers of the Parliament and of the States,
      when it says :
             "303. Restrictions on the legislative powers ofthe Union
             and of the States with regard to trade and commerce.-
             (!) Notwithstanding anythinK in article 302, neither
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                  243
                   IT. S. THAKUR, CJI]

      Parliame11t nor the Legislature of a State shall have                       A
      poi1·er to make any lmv giving, or authorising the giving
      of. any preference to one State over anothe1; or making,
      or authorisi11g the making of; any discrimination
      between one State a11d another, hy virtue of any entry
      relating to trade and commerce in any of the Lists in the                   B
      Seventh Schedule.

      (2) Nothing in clause (I) shall prevent Parliament from
      making any law giving, or authorising the giving of.
      any preference or making, or authorising the making
      of," any discrimination if it is declared by such law that                  c
      it is necesswy to do so f(Jr the pwpose of dealing with
      a situation arising fi'om scarcity of good~ in any part of
      the territory   or
                       111dia. ..


                                                                                  D
       68. A carefol reading of the above would show that notwithstanding
the power vested in the Parliament under Article 302, it shall not make
any law giving, or authorising the giving of any preference to one State
over another, or making, or authorising the making of, any discrimination
between one State and another, by virtue of any entry relating to trade
and commerce in any of the Lists in the Seventh Schedule. From Clause              E
(2) of Article 303 (supra) it is manifest that the restriction on the power
vested in Parliament in terms of Clause (1) of Article 303 shall not extend
to Parliament making any law with a vic:w to giving or authorising the
giving ot~ any preference or making, or authorising the making of, any
discrimination if it is declared by such law that it is necessary to do so         F
for the purpose of dealing with a situation arising out of scarcity. A conjoint
reading of Clauses ( 1) and (2) of Article 303 would thus make it clear
that while Parliament/ Legislature of a State shall have no power to
make a law imposing restriction on trade, commerce and intercourse, by
giving or authorizing the giving of any preference to one State over the
other. such limitation on the legislative power of Parliament shall not            G
extend to giving of any preference or making or authorizing any
discrimination if it is declared by law that a situation has arisen out of
scarcity of goods that makes it necessary to do so. In other words,
while the Parliament may impose restrictions in public interest under
                                                                                   H
244             SUPREME COURT REPORTS                          (2016) 10 S.C.R.



A     A11icle 302, the restriction so imposed shall not be in the nature of giving
      preference or discrimination between one State or the other except when
      the law declares that scarcity of goods in any part of India necessitates
      such preference or discrimination.
             69. That brings us to Article 304 of the Constitution which too like
 R    Articles 302 and 303 deals with restrictions on the freedom of trade,
      commerce and intercourse. lt reads:


             ''304. Restrictions on trade, commerce and intercourse
             among States.-Notwithstanding anything in Article 301
 c
             or Article 303, the Legislature of a State mew by law-
             (a) impose on good1· imported.from other States or the
             Union territories any tax to which similar goods
             11wnuf(1ctured or produced in that State are suhject, so,
             however. as not to discriminate hetween goods so
 [)
             imported and good1· so manufactured or produced; and
             (h) impose such reasonable restriction.1· on the ,fi-eedom
             of' trade. commerce or intercourse with or within that
             State as nwy he required in the puhlic interest: Provided
             that no Bill or amendment for the purposes of clause
 E           (h) shall he introduced or moved in the Legislature of a
             State without the previous sanction of' the President."


              The Article starts with a "non-ohstante" clause which has been
      the subject matter of forensic debates in several cases. We do not for
 F    the present propose to address the effect of the non-ohstante clause at
      this stage or the interplay between the expression "subject to" appearing
      in Article 301 and the non obstante clause in Article 304. We shall tum
      to that aspect a little later. What we wish to examine is whether A11icle
      304(a) treats taxes as a 1:estriction so that any such levy may fall foul of
 G    A11icle 301. The answer to that question, we say without any hesitation
      is in the negative. Article 304(a) far from treating taxes as a restriction
      per se, specifically recognises the State legislature's power to impose
      the same on goods imported from other States or Union Territories. The
      expression "the legislature of a State may by law impose on goods
      imported from other States (or Union Territories) any tax" are much too
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               245
                   IT. S. THAKUR, CJl]

clear and specific to be capable of any equivocation or confusion. It is A
true that the source of power available to the State legislature to levy a
tax is found in Articles 245 and 246 of the Constitution but, the availability
of such power for taxing goods imported from other States or Union
Territories is clearly recognised by Article 304 (a). The expression 'may
hy law impose' is certainly not a restriction on the power to tax. That
                                                                               B
does not, however, mean that the power to tax goods imported from
other States or Union Territories is unqualified or unrestricted. There
are, in our opinion, two restrictions on that power. The words "to which
similar goods manufactured or produced in that State are subject" impose
the first restriction on the power of the State legislature to levy any such
tax. These words would imply that a tax on imp01t of goods from other c
States will be justified only if similar goods manufactured or produced in
the State are also taxed. The second restriction comes from the
expression "so. howeve1; as not to discriminate between goods so
imported and goods so nwmifactured or produced". The State
legislature cannot in the matter of levying taxes discriminate between D
goods imported from other States and those manufactured or produced
 within the State levying such a tax. The net effect of Article 304 (a)
therefore is that while levy of taxes on goods imported from others State
and Union territories is clearly recognised as Constitutionally pennissible,
the exercise of such power is subject to the two restrictive conditions
                                                                               E
refe1Ted to above. That does not however detract from the proposition
 that levy of taxes on goods imported from other States is constitutionally
permissible so long as the State legislatures abide by the limitations placed
on the exercise of that power. To put it differently, levy of taxes on
 import of goods from other States is not by itself an impediment under
the scheme of Part Xlll or A1ticle 30 I appearing therein.                     F
       70. That brings us to the question whether Clauses (a) and (b)
have to be read conjunctively. It was contended on behalf of the dealers/
assessees that even when a tax in tenns of Article 304 (a) is not forbidden
being non-discriminatory, it may still constitute a restriction under Clause
(b) thereof. The argument is that just because a tax passes muster             G
under Clause (a) of A1ticle 304 being non-discriminatory does not mean
that the levy of such a tax is not a restriction on the freedom of trade,
commerce and intercourse. It was contended that while a discriminatory
tax must be treated as a restriction by itself the reasonableness of a non-
discriminatory tax will have to be seen by the President in tenns of the       H
246             SUPREME COURT REPORTS                              !2016110 S.C.R.



A     Provjso to Clause (b ). It was argued that Article 304(a) does not exhaust
      the universe in so far as levy of taxes is concerned for even when the
      law complies with the requirement of Clause (a), it may fail to pass the
      test of reasonableness and of public interest under Clause (b) in which
      event the President may decline the sanction for introduction of any Bill
      aimed at levying such a tax.
 B
             71. There is, in our opinion, no merit in any of the contentions
      noted above. Clauses (a) and (b) of A11icle 304 deal with two distinct
      subjects and must, therefore, be understood to be independent of each
      other. While Clause (a) deals entirely with imposition of taxes on goods
      impo1ted from other States, Clause (b) deals with imposition of reasonable
 c
      restriction in public interest. It is trite that levy of a tax in tenns of Article
      304(a) may or may not be accompanied by the imposition of any resh·iction
      whether reasonable or unreasonable. There is, in our opinion, no rationale
      in the contention that the legislature of a State cannot levy a tax without
      imposing one or more reasonable restrictions or that a law that is simply
 D    imposing restrictions in terms of Clause (b) to Article 304 must be
      accompanied by the levy ofa tax on the impo11 of goods. The use of the
      word 'and' between clauses (a) and (b) does not adinit ofan interpretation
      that may impose an obligation upon the legislature to necessarily impose
      a tax and a restriction together. The Jaw may simply impose a tax without
      any restriction reasonable or otherwise or it may simply impose a
      reasonable restriction in public interest without imposing any tax
      whatsoever. It may also levy a tax and impose such reasonable restriction
      as may be considered necessary in public interest. All the three situations
      are fully covered and permissible under Article 304 in view of the
      phraseology used therein. The word 'and' can mean 'or' as well as
 F
      'and' depending upon the context in which the law enacted by the
      legislature uses the same. Suffice it to say that levy of taxes do not
      constitute a restriction under Part XIII except in cases where the same
      are discriminatory in nature. Once Article 304 (a) is understood in that
      fashion, Clause (b) dealing with reasonable restrictions must necessarily
 G    apply to restrictions other than those by way of taxes. It follows that for
      levy of taxes prior Presidential sanction in terms of the proviso under
      Article 304(b) will be wholly unnecessary. This view is reinforced on
      the plain language of proviso to Article 304(b ), which is limited to law
      relating to reasonable restrictions referred to in clause (b ).
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                        247
                   IT. S. THAKUR, CJI]

      72. The sum total of what we have said above regarding Articles   A
301, 302, 303 & 304 may be summarized as under:
      I. freedom of trade, commerce and intercourse in terms
         of Article 301 is not absolute but is subject to the
         Provisions of Part XUI.
                                                                        B
      2. Article 302 which appears in Part Xlll empowers the
         Parliament to impose restrictions on trade, commerce
         and intercourse in public interest.
      3. The restrictions which Parliament may impose in te1111s
         of Article 302 cannot however give any preference to
         one State over another by virtue of any entry relating to
                                                                        c
         trade and commerce in any of the lists in the Seventh
         Schedule.
      4. The restriction that the Parliament may impose in tenns
         of Article 302 may extend to giving of preference or
                                                                        D
         pe1111itting discrimination between one State over another
         only if Parliament by law declares that a situation arising·
         out of scarcity of goods wanants such discrimination or
         preference.
      5. A1ticle 304(a) recognizes the availability of the power to
                                                                        E
         impose taxes on goods impo1ted from other States, the
         legislative power to do so being found in A1ticles 245
         and 246 of the Constitution.
      6. Such power to levy taxes is however subject to the
         condition that similar goods manufactured or produced
                                                                        F
         in the State levying the tax are also subjected to tax and
         that there is no discrimination on that account bet\veen
         goods so imported and goods so manufactured or
         produced.
      7. The limitation on the power to levy taxes is entirely
                                                                        G
         covered by Clause (a) of Article 304 which exhausts the
         universe in so far as the State legislature's power to levy
         of taxes is concerned.
      8. Resultantly a discriminatory tax on the import of goods
         from other States alone will work as an impediment on
                                                                        H
248            SUPREME COURT REPORTS                         [2016] I 0 S.C.R.



A              free trade, commerce and intercourse within the meaning
               of Atiicle 301.
            9. Reasonable restrictions in public interest referred to in
               Clause (b) of Article 304 do not comprehend levy of
               taxes as a restriction especially when taxes are presumed
 B             to be both reasonable and in public interest.
             73. The inferences enumerated above are based on a textual
      interpretation of the provisions of Article :lO l to Article 304. An
      interpretation which is both textual and contextual has always been found
      to be more acceptable. That is so because it is only when both the text
 c    and the context are kept in view that the statutory provisions can be best
      understood. An inte1vretation that makes the textual match the contextual
      meaning of the provision is preferred by Courts over one that prefers
      one at the cost of the other.
         74. In Reserve Bank of India v. Peerless General Finance
 D and Investment Co. Ltd. (1987) I SCC 424 this Court pithily summed
      up the law on the subject in the following words:


            "33. Interpretation must depend on the text and the
            context. 7/1ev are the has is of inte17Jretatio11. One may
 E
            we!l say if the text is the texture, context is what gives .
            the colour. Neither can he ignored. Both are important.
            The i11te1pretatio11 is best which. makes the textual
            interpretation match the contextual... .. . . .. "

 F
            75. We may also refer to the following passage of Co11stit11tio11a/
      Law of India (4' 11 Edition) by H.M. Seervai where the distinguished
      author has adverted to the golden rule of interpretation applicable to
      Constitutional provisions in the following words:
 G
            "2.12. The golden rule of interpretation is that words
            should he read in their ordinary, natural and
            grammatical meaning subject to the rider that in
            construing word1· in a Constitution conferring legislative
 H
       JINDAL STAINLESS lTD. v. STATE OF HARYANA                           249
                   IT. S. THAKUR, CJl]

      power the most liheral constructio11 should be put upon              A
      the word~ so tlwi they may have effect in their widest
      amplitude. "


        76. Let us then see whether the textual interpretation placed on
                                                                             B
Articles 30 I to 304 matches the contextual. The contextual interpretation
of Part XllT must, out of necessity, start with the historical perspective
of that Part. We have with great advantage extracted in the earlier part
of this Judgment the historical backdrop as set out in the decisions of this
Court both in Atiabari and Automobile cases (supra). While it is
unnecessary to recall the said passages over again, we need to remember c
that Part Xlll had a historical precursor in the form of Section 297 of the
Government of India Act, 1935 that governed what was then called the
British India comprising the territory of India subject to British Rule.
The rest of the territories were at that time Princely States who claimed
sovereign rights within the limitations imposed by the paramount power. D
The power to levy taxes was one such power wielded by the Princely
States which led to erection of customs barriers impeding the flow of
trade, commerce and intercourse. Section 297 aimed at removing such
trade barriers. It provided for a prohibition against enactment of any
law or taking of any executive action by the provincial legislature that
restricted the entry into or export from the province goods of any class E
or description.
       77. More importantly, in terms of clause (b) of Section 297(1) of
Government of India Act, 1935 no provincial legislature or Government
could impose any tax, cess, toll or due which discriminated between
goods manufactured or produced in the provinces and goods not so            F
manufactured or produced or between goods manufactured or produced
outside the province discriminated between goods manufactured or
produced in one locality and similar goods manufactured or produced in
another locality. With India attaining its freedom, Part Xlll of the
Constitution adopted by it, was aimed at bringing about economic unity.     G
The object underlying Part Xlll was to make movement and exchange
of goods free throughout the territory of India. This was achieved by
Aiiicle 30 I to Article 304 adopting substantially the scheme underlying
the 1935 Act. The only difference between the said provisions and
Section 297 of the 1935 Act was that the principles enunciated in the
                                                                            H
250            SUPREME COURT REPORTS                         [2016] l 0 S.C.R.



A     latter were extended to the Union Government and the Union Parliament
      and to the territory which had after merger become a part of India.
      Notably, the essence of the freedom of trade commerce and intercourse
      as recognized in the 1935 Act and in the Constitution under Part Xlll
      remained the same. It was for that reason that Justice Venkatarama
 8    Iyer had in M.P.V. Sunderaramier's case (Supra) observed and if we
      may say so rightly that the Constitution of India was not written on a
      tabula rasa. The common feature which the two provisions share is that
      the provincial legislature's power to impose taxes is recognized subject
      only to the limitation that there is no discrimination between goods
      manufactured or produced within the Province or State vis-a-vis those
 c    imported from outside. InAtiabari's case (supra), the majority speaking
      through Gajendragadkar, J. noticed the co-relation between Section 297
      of 1935 Act, and Article 30 l of the Constitution oflndia but concluded
      that Article 30 I did not simply adopt Section 297 of the 1935 Act but
      widened and enriched the same in content. The Court did not, however,
D     elaborate as to how much richer and wider did Attic le 30 I make the
      freedom of trade, commerce and intercourse then what was envisaged
      under Section 297. The Court said:


             "-12 . ......... That is why we are inclined lo hold that the
 E          broad and unambiguous words used i11 Article 301 are
            intended lo emphasize that the freedom of trade,
            commerce and intercourse guaranteed was richer and
            wider in content than was the case under Section 297;
            how much wider and how much richer can be determined
 F          only on a fair and reasonable construction o[Article
            301 read along with the rest o{lhe articles in PartX!ll
            In our opinion therefore, the argument that lax laws are
            outside Part XIII cannot be accepted. "
                                                  (emphasis supplied)
 G

             78. We have with great respect to the distinguished Judges failed
      to persuade ourselves to subscribe to the above view. The argument
      that Article 30 I had enriched and widened the content of trade, commerce
      and intercourse beyond what is evident from a comparison of the language
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                251
                   IT. S. THAKUR, CH]

between the two provisions namely (a) extending the prohibition against         A
dis~rimination to the Union Government and the Parliament and (b)
making the provision applicable to the territory oflndia as defined by the
Constitution, has not impressed us. The textual interpretation placed by
us upon Articles 301-304 instead gets considerable support from the
contextual and the historical perspective of Part XIII.                         B
        79. We may now turn to yet another contextual feature that has a
bearing on the true and correct interpretation of Part Xlll namely the
sovereign character of the power to tax available to the State legislature.
lt is now fairly well settled that the Constitutionally vested power to levy
tax can be regulated or controlled only by specific Constitutional              c
limitations, if any. We have in the earlier part of this judgment elaborated
how the power to levy taxes is a sovereign power with several limitations
specifically stipulated by the Constitution itself. We have also explained
at some length how legislative competence of the State legislatures can
be circumscribed only by express provisions of the Constitution and unless
there is an express limitation on the plenary taxing power of the States,       D
there is no other fetter on the exercise of that power.
       80. Applying the above principle to the case at hand, we do not
see any specific limitation on the State's power to levy taxes on the
import of goods from other States except the one refe1Ted to in Article
304(a) of the Constitution. That limitation we have sufficiently explained      E
is confined to levy of discriminatory taxes within the comprehension of
Article 304(a). So long as taxes are non-discriminatory and, therefore,
consistent withAlticle 304(a), there is no limitation leave alone any express
limitation on the States' legislative power to levy any tax on the import of
goods from another State. The power to levy a tax in terms of Articles          F
245 and 246 read with Entry 52 of list 11 not being in dispute in the cases
at hand, the absence of any specific limitation forbidding the exercise of
such power whether for the sake of free trade, commerce and intercourse
or otherwise simply means that the State legislatures are free to levy
taxes that are non-discriminatory in nature .•
                                                                                G
       81 . That brings us to the third contextual feature relevant to the
interpretation of Part XIII. We have in the earlier part of this judgment
referred to the decisions of this Court in Ku/dip Nayyar 's case and
S.R. Bommai \ case apart from the decisions of this Co mt in Special
Reference No. J of J 964 (supra) to hold that the Indian Constitution if        H
252            SUPREME COURT REPORTS                          (2016] I 0 S.C.R.



 A  not federal in the strict sense of the term is at least quasi federal in
    character. That proposition has not been disputed even by the counsel
    for the assesses/dealers, and must be held to be fairly well settled. Equally
    well settled is the proposition that India's federal strncture is one of the
    basic features of the Constitution. Relying upon the settled legal position
 B Mr. Mukul Rohtagi. Attorney General, followed by Mr. Rakesh Dwivedi,
    Mr. PP Rao, Mr. AK Sinha and Mr. Devdatt Karnath strenuously argued.
    and in our opinion rightly so that the provisions of our Constitution are
    aimed at vesting and maintaining with the States substantial and significant
    powers in the legislative and executive fields so that States enjoy their
    share of autonomy and sovereignty in their sphere of governance. This
 c can in turn be done by interpreting the provisions of the Constitution
    including those found in Part XIII in a manner that preserves and promotes
   ·the federal set-up instead of diluting or undermining the same. In ITC
      Limited v. Agriculturu/Procluce Market Committee and Ors. (2002)
      9 SCC 232 this Court ruled that the Constitution of India must be
 D    interpreted in a manner that does not whittle down the powers of the
      State legislature. An interpretation that supports and promotes federalism
      while upholding the Central supremacy as contemplated by some of the
      Articles must be preferred. To the same etrect is the nine judge Bench
      decision of this Court in S.R. Bommai'~· case (supra) where this Court
      cautioned against adoption of an interpretation that has the effect of
 E
      whittling down the powers reserved to the States. This Court said:


             "276. The fi1ct that under the scheme o(our Constitution.
            greater power is conferred upon the Ce11t1'e vis-a-vis
 F          the States does nut mean that States are mere appendages
            o( the Centre. Within the sphere allotted to them. States
            are supreme. The Centre ca1111ot tamper with their
            powers. Jvlore particularlv. the Courts should not adopt
            an approach. an interpretation, which has the effect of
            or tends to have the effect of whittling down the powers
 G
            reserved to the States. It is a matter ofcommon knowledge
            that over the last several decades, the trend the world
            over is towards strengthening of Central Governments
             be it the result of advances i11 technolugicallscient(fic
            fields or otherwise, and that even in USA the Centre
 H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                      253
                  [T. S. THAKUR, CJI]

     has become far more powe1ful notwithstanding the                A
     obvious bias in that Constitution in favour of the States.
     All !his mus! pul !he cow·/ on guard against anv
     conscious whittling down of the powers of the States.
     Let it be said that the federalism in the Indian
     Constitution is not a mat/er of administrative                   B
     convenience, but one o( principle - the outcome of our
     own historical process and a recognition of the ground
     realities. This aspect has been dealt with elaborately by
     Shri MC. Setalvad in his Tagore Law Lectures "Union
     and State relations under the Indian Constitution"
     (Eastem Law House. Calcutta, 197'1). The nature of               c
     the lndian federation with reference to its historical
     background, the distribution of legislative powers,
     financial and administrative relations, powers <~f
     taxation, provisions rela,ring to trade, commerce and
     industry, have all been dealt with analytically. It is 1101      D
     possible nor is ii necesswy for the present purposes to
     refer to them. It is enough to note that our Comtitution
      has certainly a bias towards Centre vis-a-vis the States:
      Automobile Il·ansporl (Rajastha11) Ltd. v. State of
     Rajastha11. It is equallv necessarv to emphasise that
                                                                      E
      courts should he careful not to upset the delicatelv-
      crafted constitutional scheme bv a orocess o(
      interpretation. "
                                         (emphasis supplied)
       82. Reference may also be made to Kesavananda Bltarati'.\' F
case (supra) where a Bench of thirteen Judges cautioned that the process
of interpretation should not diminish or whittle down the provisions of
the original contract upon which the federation was founded nor is it
legitimate to impose by a process ofjudicial construction a new contract
upon the federating states. To the same effect is the decision of this G
Court in MA. International Tourist Corporation & ors. I'. State of
Haryt1t1a and Ors. (1981) 2 SCC 318 where this Court observed:
       "6A. There is a patent fallacy in the submission of
      Shri Sorabji. Before exclusive legislative competence
                                                                      H
254            SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A           can be claimed for Parliament by resort to the residuary
            power, the legislative incompetence of the State
            legislature must be clearly established. Entry 97 itself
            is .1pecijic that a matter can be brought under that entry
            on(y if it is not enumerated i11 Lisi l1 or List Ill w1d in
 B
            the case of a tax if it is nut me11tio11ed in either of those
            lists. Jn a Federal Constitution like ours where there is
            a division of!egislative subjects but the residuary power
            is vested in Parliamenl, such residuarv power cannot
            be so expansively interpreted. as to whittle down the
            power of the State le<tislature. That mi<,£ht afject and
 c          Jeopardize the veo 1 federal principle. The federal 1wture
            of the Constitution demands that m1 i11ferpretation which
            would allow the exercise of legislative power hv
            Parliament pursuant to t/1e residuarv powers vested in
            it to trench upo11 State legislation and which would
 D          therebv destroy or belittle state autonomv 111ust be
            rejected. "
                                                  (emphasis supplied)


 E          83. An approach which tends to dilute the federal character of
      our Constitutional scheme must, therefore. be avoided and one that
      supports and promotes the concept of federalism pn:ferred by the courts
      while interpreting the provisions of the Constitution.
                   '           .
             84. Dealing in particular with the scope and meaning of Article
 F    304 (b) of the Constitution on a true and correct interpretation Seervai
      in his treatise Constitutional Law of India (.rnpra) sounded a note of
      caution and observed that if Article 304(b) was interpreted in a manner
      that would include levy of taxes as a restriction within the meaning of
      that Article, it wou Id totally dislocate the scheme under our Constitution.
      The celebrated author, in our opinion, was right in saying so for the
 G    taxing power of the Union and the States an: mutually exclusive. While
      the Parliament cannot legislate on the subjects reserved for the States,
      the States cannot similarly trespass onto the taxing powers of the Union.
      If the Constitutional scheme does not allow the Parliament to usurp the
      taxing powers of the State Legislatures, such process of usurpation cannot
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                          255
                   [T. S. THAKUR, CJ!]

also be permitted to take place in the garb of making Union executive's   A
concurrence an essential pre-requisite for any taxing legislation. The
following passage from Seervai 's book (Vol. 3, Page 2607) is in this
regard instructive:

                                                                          B
      "23 .43. Thirdly, the whole scheme of taxation in our
      Constitution ·would be completely dislocated if Article
      304(b) included a tax. The taxing powers of the Union
      and the States have been made mutually exclusive so
      that Parliament cannot deprive the States of their taxing
      powers as has happened in countries where the powers                c
      of taxation are concurrent. It would be surprising if
      the Union legislature. i.e. Parliament could not take
      away the taxing powers of the State legislatures and yet
      it would be open to the Union executive under Article
      304(b) to deprive the State legislatures of their taxing            D
      powers.


     85. To the same effect are the following observations made by
Mathew'.s, J. in GK. Kri.shmm :~ case (supra):
                                                                           E

         "27 ....... ... Article 304(a) prohibits 011/y i111positio11
       of a discri111inato1y tax. It is not clear from the article
       that a tax simpliciter can be treated as a restriction 011
       the freedom of internal trade. Article 304(a) is intended           F
       to prevent discrimination against imported goods by
       imposing on them tax at a higher rate than that borne
       by goods produced in the State. A discriminat01y tax
       against outside goods is not a tax simplicifer but is a
       barrier to trade and commerce. Articled 304 itself
       makes a distinction between tax and restriction. That               G
       apart. taxing powers of the Union and States are
       separate and mutuallv exclusive. It is rather strange
       that power to tax given to states. say. for instance under
       entn' 54 of List II to pass a law imposing tax 011 sale of
                                                                           1-1
256             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A           goods should depend upon the goodwill o[ the Union
            executive. "


             86. Suffice it to say that the interpretation of any provision of the
      Constitution will be true and perfect only when the Court looks at the
 B
      Constitution holistically and keeps in view all important and significant
      features of the Constitutional scheme constantly reminding itself of the
      need for a harmonious construction lest interpretation placed on a given
      provision has the effect of diluting or whittling down the effect or the
      importance of any other provision or feature of the Constitution. So
 c    interpreted Article 301 appearing in Part Xlll does not, in our opinion,
      work as an impediment on the States' taxing powers except in situations
      where such taxes fall foul of Article 304(a) of the Constitution. The
      contextual approach thus fully matches the textual interpretation which
      we have placed on Part XII!.
 D            87. On behalf of the dealcrs/assessecs it was contended with
      considerable amount of tenacity that since Article 304 starts with a
      11011-obstante clause the inference was that the framers of the
      Constitution treated taxes as impediments for free trade, commerce and
      intercourse. The argument was that unless Article 301 was understood
 E    to mean that taxes could also be restrictions on free trade and commerce,
      there was no need for the framers of the Constitution to start Article 304
      with a 11011-ubsta11te clause inasmuch as a 11m1-obstante clause is meant
      to be only an exception to the generality of the provision. Similar
      contentions urged in the past have been noticed by this Court and by
      jurists alike while attempting interpretation of Part XIII. This is evident
 F    from the passages which have dealt with the anomaly arising out of the
      use of the expression 'subject to' in Article 30 l and the 11011-ubsta11/e
      clause in Article 304 of the Constitution. This Court has often found the
      use of the 11011-ubstanle clause in Article 304 to be either confusing or
      an unnecessary surplusage. But the problem with the use of
 G    non-ohstante clauses in Part Xlll has been the subject matter of criticism
      even in the Constituent Assembly as is evident from the following
       passages from the debates:



 H
 JINDAL STAINLESS LID. v. STATE OF HARYANA                        257
             IT. S. THAKUR, CJl]

Constitution Assembly Debates (Vol. IX Page 1131):                A
 "D1: PS Desh11111kh: If we ana~v.~e the new articles that
have hee11 proposed, it is very difficult to understand
them and I 1hink the comment is ahsolutely justified that
this is going to he a lawyers' constitution, a "paradise
for laH'}'ers" where there ·will he so many innumerable           B
loophole.1· that we will he wasting years and years before
 H'e could come to the final and correct interpretation of
 many clauses. lf"we read this article 274, you will.find,
 Sil; that this is one of the most wonder/iii articles in the
 ·whole Constitution. This is not the only one; there are         c
 many others. If we count the use of the word
  'notwithstanding' in this Constitution, I am certain that
 the 1111111/Jer of' times that word is used will far exceed
  the use of' the word 'Parliament' or 'Constitution' in the
 whole Constitution. If' you will permit me, Si1; I will
  descrihe the situation a little graphically. We first of' all   D
 pmvide and say or declare that a certain person is a
  man. Then, we say, notwithstanding this declaration,
 you shall wear a sari and nothing hut a sari.
Shri 1: 1: Krislmamachari : There is no har to that.
                                                                  E
D1: P.S. Deslwmkh : Then, notwithstanding the fact that
you are considered a man, and notwithstanding the fact
that you 1vec1r nothing else hut saris, you will wear a
Gandhi cap also. Then we have another
 'notwithstanding'. Not1vithsta11di11g that you are a man,
notwithstanding that you shall wear nothing hut a sari,            F
11of\vith.1·1andi11g that you shall also wear a Gandhi cap,
you will he at liher(v to describe yourself as a woman.
(/,a11ghter) Something of that sort, as funny and as
amusing, is really the situation so far as this article
2 74 is concerned. If you read through it, you will see           G
that as soon as the first part is ove1~ we start with
 "11otwithsta11ding whatever is said in the .first part, such
and such a thing will happen". In the next clause, we
say not onlv notwithstanding what is contained in the
first clause, together with notwithstanding what is
                                                                  H
258            SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A           contai11ed i11 the other clauses' and then add something
            more. I think there is a better method of drafting. Even
            if it is necessary to cope with complex situations and to
            provide something on the li11es proposed, there should
            he a simpler and more direct WCf;V of drafting and making
 B          a provision which is not so ummderstandable that onlv
            supermen could read this constit11tion, even ass11ming
            that onlv supermen are to be born in India hereafta If
            this Constitution is made for the ai•erage man, if it is
            going to affect the rights and privileges of the ordinary
            common man, it is necessm:v that the drafters of this
c           constitution should he more clear and use phraseology
            which is more easi!v understandahle and simp!e1:
                                  xxx xxx xxx xxx
            I hope therefore that the whole chapter will be made
 D          simp!e1: l11stead Cl( tving the hand\' of both the States as
            well as of Parliament, it would he far better not to
            commit ourselves to any policy, hut to leave the whole
            thi11g to Parliamelll. Otherwise, the situation which has
            arise11 already in respect of article 16 may arise in
            respect of article 274 itself It is, therefore, better to
 E          have simpler provisions and I have given them the
            simplest form. 1 hope that this will appeal to the drafters
            of the Comtitution and if thev accept it, I can tell them
            that they ·will he out of much of the trouble. But !f they
            i11sist upon the draft that they have produced, it will he
 F          Ferv difficult.for trade and commerce llOt only to prvsper
            hut even to exist. ··


             ·88. Jn Automobile Tramport case (supra), SK Das, J. speaking
      for the majority noticed the anomaly arising out of the use of the 11011-
G     ohstallfe clause in Article 304 and described the same to be "somewhat
      inappropriate". The majority judgment in Automobile 7/·ansport case
      (supra) in fact took the view that the mix up of exception upon exception
      in the series of Articles in Part XIII makes a purely textual interpretation
      difficult. The following passage is in this regard apposite:
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             259
                   IT. S. THAKUR, CJI]

      "J 0. Art. 304 agai11 begins with a 11011 obstinate clause             A
      mel1lioning hoth Art. 301 and Article 303, though Article
      301 relates only to the Legislature of a State. Article
      303 relates to hath the State Legislature and Parliament
      and again the non ohstante clause in Article 304 is
      .rnmewlwt inappmpriate. The fact of the matter is that                 B
      there is such a mix up of exception upon exception in
      the series of' articles in Part XJJJ that a purely textual
      i11terpretatio11 may not disclose the true i11te11dment of
      the articles. "

                                                                             c
       89. Subba Rao, J.. as His Lordship then was, in a separate judgment
delivered in A11to111obile Transport case (supra) also found the use of
the 11011-ohstante clause to be a "defect in phraseology''. His Lordship
held that the 11011-ohstante clause has no relevance to Article 303 even
when the Article is mentioned alongwith the 11011-ohstante clause. The       D
importance of the 11011-ohstante clause was then confined to Article
304(b) as is clear from the following paragraph of the judgment :


       "42 . ......... The 11011-ohstante clause vis-a-vis Article
      304(a) may have some relevance so far as Article 301                   E
       is concerned. for it enaMes the Legislature of a State to
      impose an i111pedi111e11t on the fi'ee movement of trade in
      spite of the fi'eedom declared under Article 301. Buf it
       has no relevance to Article 303. which onzv prohibits
       the State f,egislature fi'om making a discriminatory law              F
       and it does not in any way prohihit the State Legislature
      ji·mn imposing a no11-discrimi11atorv tax permitted under
      Art. 304(a). But. with re/ere11ce to Art. 304(/J), the 11011-
       ohswnte clause has significance and meaning even in
       regard to Art. 303. as clause (b) lif'ts the ban imposed
       hy Art. 303, suhject to the limitation mentioned therein.             G
       Therefore. the non-ohstante clause must he deemed to
       applv only to that part of' Art. 304 appropriate to the
       said clause. if' so read. the difficulty in the construction
       disappears. Art. 304(a) lifts the general han imposed
                                                                             H
                SUPREME COURT REPORTS                         [2016] 10 S.C.R.



/\.         hy ,·1rticle 301 in respect of imposition of 11011-
            discriminatory taxes 011 good1· imported, which indicates
            that hut for the said provision the law of taxation in
            that regard v.·ould i11fi'i11ge the fi·eedom declared under
            Art. 301."
B

             90. Hidayatullah, J. also found the 11011-ohstante clause in Article
      304 to be somewhat anomalous and described the same as "inaccurate
      drafiing o/ the Constitution".
              91. Suffice it to say that the use of the non-obstante clause in
c     Article 304 has had its share of criticism from the very inception which
      criticism !ms to an extent been prophetic for the interpretation of Part
      Xlll has indeed been a lawyer's paradise over the past fifty years or so.
      Seervai has in his treatise adverted to this anomaly arising from the use
      of the non-obstante clause and said that the same covers both the clauses
D     (a) and (b) of Article 304. He argues with considerable forensic force
      that reference to A11icle 30 I in the non-obstante clause is meaningless
      having regard to the fact that the freedom granted thereunder is itself
      subject to other provisions of PartXlll including Article 304. This would
      necessarily imply that Article 304 (a) and (b) do not subtract anything
      from Article 30 l. That appears to us to be the correct view on the subject.
      While it is true that legislature does not waste words and that no part of
      a legislation can be rendered a su1vlusage, the only rational meaning that
      can be attributed to the 11011-oh.1·1ante clause appearing in Article 304 is
      that the same was used only as a manner of abundant caution and a
      possible reassurance that A11icle 301 is indeed subordinate to A11icle
F     304 which it was even otherwise without the use of that clause. The net
      effect of the discussion therefore is that the expression 'subject to other
      provisions of this Part' appearing in Article 30 I and the 11011-ohstante
      clause appearing in Article 304 do not traverse in different directions.
      There is no conflict in the two provisions on account of the use of the
G     said expressions. Interpreted individually or conjointly, the said two
      expressions simply mean thatA11icle 304 takes precedence over Article
      JO 1. While Article 304(a) recognizes the power of the State Legislatures
      to tax goods imported from other State, it also imposes limitations on the
      exercise of that power. On the other hand clause (b) to Article 304
      permits imposition of reasonable restrictions subject to the proviso
H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                  261
                    IT. S. THAKUR, CH]

appearing below that clause. We have thus no hesitation in rejecting the           A
argument that the use of the non-ohstante clause in Article 304 is
suggestive of the Constitution recognizing taxes as restrictions under
Article 301 or that the power to impose a reasonable restriction under
Article 304(b) is meant to include the power to levy taxes so that levy of
taxes may be permissible only in case the procedure provided under the             B
proviso is followed.
       92. On behalf of the dealers/assessee it was argued that the State
kgislatures may levy taxes that may operate as fiscal baniers and thereby
prevent or restrict inter State trade, commerce and intercourse. It was
urged that if such statutory fiscal barrier is also held not to be a restriction   c
upon the freedom of trade, commerce and intercourse guaranteed under
Part XIII, a citizen whose right under that Part is affected may have no
redress against such levies. Relying upon the decision of this Court in
Ramiilal v. Jncome 1(i:.; (~[freer, Moliindargarh, AIR 1951 SC 97, it
was contended that a challenge to a fiscal statute shall not be maintainable
even under Part lll of the Constitution, thereby, not only violating the           D
citizen's constitutional rights of free trade and commerce but also denying
them the remedy against such violation. This according to the learned
counsel was one among other reasons why levy of taxes ought to be
treated as restrictions on free trade, commerce and intercourse.
        93. In Ramjilal's case (supra), a petition under A1ticle 32 of the         E
Constitution was filed before this Comt by the petitioner who was canying
on business in the State of Nabha. With the merger of Nabha into the
State of Pepsu, the petitioner was required by the assessing authority to
file return and pay income tax for the income earned by him during the
previous years. AggTieved. the petitioner challenged the proceedings inter          f
alia on the ground that the assessment of tax for previous year violated
his right guaranteed under A1ticle 14. 111is Colllt repelled the contention
founded on Article 14 holding that there was reasonable classification of
assessee under the relevant statute and thatthe petitioner's challenge to
the proceedings under Article 14 was untenable. Having said that, the
                                                                                   G
Court examined the question whether the taxing statute violated Right to
Property guaranteed under A1ticle 3 1 ( 1) of the Constitution. Repelling
the contention this Court held that if collection of taxes amounted to
deprivation of property within the meaning of Article 31 (1), there was

                                                                                   H
262            SUPREME COURT REPORTS                         [2016) 10 S.C.R.



A     no point in making a separate provision regarding the same as is made in
      Article 265. This Court declared that Article 31 ( 1) must be regarded as
      a guarantee against deprivation of property otherwise, than by imposition
      of tax for otherwise Article 265 would become wholly redundant. The
      Court declared that the Constitution had treated taxation as distinct from
      compulsory acquisition of property and has made independent provisions
      giving protection against taxation.
             94. Then came Kunnathat Thatlmnni Moopil Nair v. The State
      ti( Keuzla & Am:, AIR 1961SC552, where again one of the questions
      that fell for consideration was whether Article 265 of the Constitution
 c    was a complete answer to the attack against the Constitutionality of a
      taxing statute. This Court held that in order that a taxing law may be
      valid, the tax proposed to be levied must be within the legislative
      competence of the legislature imposing the tax and authorizing the
      collection thereof and that the tax must be subject to the condition laid
      down under Article 13 of the Constitution. One of such conditions
 D    declared by this Court was that the legislature shall not make any law
      that takes away or abridges the equality clause in Article 14. The Court
      declared that the guarantee of equal protection of la~s must extend
      even to taxing statutes. It clarified that every person may not be taxed
      equally but property of the same character has to be taxed, the taxation
 E    must be by the same standard so that the burden of taxation may fall
      equally on all persons holding that kind and extent of property. If the
      taxation, generally speaking, imposes similar burden on everyone with
      reference to that particular kind and extent of property on the basis of
      such taxation, the law shall not be open to attack on the ground of
      inequality even though the result of taxation may be that the total burden
 F
      on different persons may be unequal. The Court summed up that taxing
      statute is not fully immune from an attack on the ground that it infringes
      equality clause under Article 14, no matter the Courts are not concerned
      with the policy underlying tl1e taxing statute or whether a pa11icular tax
      could have been imposed in a different way or a way that the Court
 G
                                                                .
      might think would have been more equitable in the interest of equity.
         '

             95. To the same effect is the decision in Laxmanappa
      lla1111111a11tappa Jamkhandi v. Union of India, AIR 1955 SC 3.
      Reference may also be made to Smt. Ujjam Bai v. State of Uttar
      Pradesh, AIR 1962 SC 1621 which took note of the pronouncements
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              263
                   [T. S. THAKUR, CJl]

of this Court in the three cases mentioned above to examine wliether          A
there was any conflict between the view taken in Moopil Nair case on
the one hand and Ramiilal and Laxmanappa cases on the other, the
Court found on a closer examination that there was no such conflict and
clarified that the observation made in Ramjilal and Laxmanappa cases
must in the context bear reference to abrogation of A1ticle 31 ( 1) only in   B
so far as the admissibility of a challenge to taxation law with reference
to Part lll is concerned. The Court explained that in Moopil Nair~~
case this Court has held that a taxing statute was not immune from
challenge under A1ticle J 4 just because the legislature that imposed the
tax was competent to levy the tax in tenns of A1ticle 265. This Court
summed up the legal position in the follo~ing words:                          c

       " The result of the authorities may thus he summed up:

       ( l) A tax will he valid only if it is authorized hy a law             D
       enacted hy a competent legislature. That is Article 265.

       (2) A law which is authorized as aforesaid must further
       he not repugnant to any of the provisions of the
       Constitution. 17ms, a law which contravenes Articles
       J4 will he had, Moopil Nair :5 case.                                   E
       (3) A law which is made hy a competent legislature and
       which is not otherwise invalid. is not open to attack
       under Article 3 J (1 ). Ramjilal :5 case and Laxmanappa :5
       case.
                                                                              F
       (4) A lmv which is ultra vires either h.ecause the
       legislature has no competence over it or it contravenes,
       .l'Olne constiflltional inhibition, has no legal exisrence,
       and an1• action taken thereunder will he an i11fi·inge111e111
       ofArticle 19 (1) (~) Himmatlal:s- case and Laxmanappa :1·
                                                                              G
       case. The result will he the same when the law is a
       colourahle piece of legislation.

       (5) Where assessment proceedings are taken without the
       authority of law, or where the proceedings are
       repugnant to rules of natural justice, there is an
                                                                              H
2(,4             SUPREME COURT REPORI'S                          [2016] I 0 S.C.R.



 A            i11fi·inge111ent of the right guara11teed under Article
              19(1)(() a11d Artide 19(l}(g); Tata Iron & Steel Co. Ltd:
              Moo pi! Nair :1 case and Shri Madan Lal Arora '.1 case. "


              96. The above statement of Jaw in our view 1s legally
 11
       unexceptionable. The argument that Ramji!al and Laxmanappa '.1 cases
       place taxing statute beyond the purview of challenge under Part Ill has
       been correctly repelled and fiscal statutes are also held to be open to
       challenge on the touchstone of Article 14 of the Constitution. The
       contention that an aggrieved citizen may have no remedy against a taxing
 c     statute does not, therefore, hold good. · Whether or not a challenge to
       such a statute succeeds is, however, a different matter. It is fairly well
       settled by now that Courts show considerable deference to the legislature
       in the matter of quantum of tax that may be levied as also the subjects
       and individuals upon whom the same may be levied. Just because room
 D     for cha l!enge to a fiscal statute is limited is in our view no reason to hold
       that levy of taxes otherwise within the competence of the legislature
       imposing the same should be seen as a restriction on free trade and
       commerce guaranteed under Article 301 which Article does not either
       textually or contextually recognize levy of taxes as impediments except
       in cases where the same are discriminatory in nature thereby being
       offensive to Article 304 (a) of the Constitution.
              97. On behalf of the States it was argued by the learned Attorney
       General, and M/s. Rao and Dwivedi that the decisions of this Court in
       Atiabari and Automobile Tramport cases had drawn support for their
       conclusion on the Australian and American decisions. It was urged that
 F
       although the view taken by the majority decision in the former had
       recognized that decisions from other jurisdictions may not be helpful
       while interpreting the provisions of our Constitution, yet the Court bad
       referred to and relied upon those decisions to buttress its conclusions.
       The Australian decisions relied upon by the majority have, it was
 G     contended, been reversed by subsequent pronouncements of the
       Australian High Court, which pronouncements are now gravitating
       towards the theory that discriminatory taxes alone will operate as
       restrictions against free trade. commerce and intercourse. It was in that
       view argued that the theoretical basis borrowed from the foreign
       judgments by this Court in Atiabari case stood demolished or atleast
 J-1
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             265
                   [T. S. THAKUR, CJ!]

substantially eroded by the subsequent pronouncements of the Australian      A
High Courts, thereby, rendering the correctness of the view taken by the
majority in Atiabari 's case open to serious doubts.
      98. There is. in our view. considerable merit in that submission. In
Atiabari's case (supra), Gajendragadkar J ., speaking for the majority
while referring to the American and Australian decisions observed:           B


      "59 .... ...... We have deliberately nut referred lo these
      decisions earlier because we thought it would be
      unreasonable to refer to or rely on the said section or
                                                                             c
      the decisions thereon for the purpose of construing the
      relevant Articles of Part Xll! of our Constitution. ft is
      commonplace to sav that the political and historical
      background of the federal politv adopted by the
      Australia11 Com111011wealth. the setting o(the Constitution
      itsell the distribution of powers and the general scheme               D
      o( the Constitution are different. and so it would not be
      safe to seek for guidanc.:e or assistance from the
      Australian decisions when we are called upon to
      construe the provisions of our Co11stitution. 111 this
      connection ·we have already referred to !he note of                    E
      warning struck by Venkalarama Aiyar, J .. against
      indiscriminate reliance being placed 011 Australian and
      American decisions in i11terpreti11g our Constitution in
      the case of M.P. v: Su11darara111ier & Co. The same
      caution was expressed by Uwyer, C.J, as early as 1939
      when he observed in The Central Provinces and Berar                    F
      Sales of Motor Spirit and Lubricants Taxation Act, 1938.
      In the matter of AIR 1939 FC. 1 at P.5: ''there are few
      subjects on which the decisions <!f other Courts require
      to be treated with greater caution than !hat of federal
      and provincial powers, for in the last analysis the                    G
      decision must depend upon the words of the Constitution
      which the Court is interpreting; and since no two
      Constitutions are in identical terms it is extremely unsafe
      to assume that a decision on one of them can be applied
       without qualification to another. This may be so even
                                                                             H
266            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A            where the wvrd1· vr expressivns used are the same in
             both cases. for a word vr a phrase may take a cvlvur
            from its cvntexl and bear dijfere111 senses accordingly. ··
            (emphasis supplied)

 B
             99. Having said that Gajendragadkar J., referred to these decisions
      with a view to supporting his conclusions by reference to Judges in other
      jurisdiction responding to similar challenges posed by interpretation of
      what His Lordship described as "sister constitutions". He said:

c
              "59. ......... When you are dealing wilh the problc!m of
             construing a constitutional provision which is nune-tuo-
             clear or lucid you feel inclined to inquire how other
             judicial minds have responded lo 1he challenge
D            presented by similar provisions in olher sisler
             Constitulions. It is in thal spiril !hat we propose to refer
             to two Privy Council decisions which dealt with the
             construction of Section 92 1~/ the Australian
           · Constitution. "
 E
             I 00. The Court, then, relied upon the decisions of the Australian
      High Court in James 1•. Commonwealth of Australia (1936) A.C.
      578 and Commonwealth ofAustmlia mu/ others 1•. Bank of New
      South Wales and others /1950/ A.C. 235 to hold that the test of direct
 F    and immediate effect evolved by the Australian High Court
      pronouncements. while interpreting Section 92 of the Australian
      Constitution, was the correct test applicable even to our Constitution
      including interpretation of Article 301 thereof. The Court said:


 G
             Commonwealth o(Australia 1•. Bank o(New South Wales
              "61 . ......... !11 deciding the said quesriu11 011e 11( the
             tests which was applied by Lord Porter was: .. Dues the
             act not remotez)I or incidentally (as to which they will
             say something later) bur directly restrict the inter-State
 H
       JINDAL STAINLESS LTD. v. S'fATE OF HARYANA                            267
                        IT. S. THAKUR, CJ!]

      business of banking". and he concluded that "two                       A
      general propositions may be accepted. (1) that
      regulation of trade, commerce and intercourse among
      the States is compatible with its absolute fi·eedom, and
      (2) that Section 92 is violated univ when a legislative
      or executive a<.:/ operates to restrict such trade,                    B
      commerce and intercourse directlv and i111111ediatelv as
      distinct [rum creating some indirect or consequential
      impediment which mav fairly be regarded as remote".
      This decision thus justifies the co11clusion we have
      reached about the scope and effect of' Article 301. ··
                                                                             c
                                             (emphasis supplied)


       I 0 I. In Automobile's case (supra) also Das, J. while speaking for
the majority followed the direct and immediate effect test relying upon
the pronouncements of the High Court of Australia in Commonwealth            D
ofAmtralia and Ors. v. Bank of New South Wales and Ors. /195()/
A.C. 235. This is evident from the following passage:


        "10.    ...... ... In Section 92 c~f the Australian
                                                                             E
      Constitution the expression used was "absolutely free"
      and repeatedly the question was posed as to what this
      freedom meant. We do not propose to recite the
      somewhat chequered history of the Australian decisions
      in re5pect of which Lord Porle1: ajier a review (?f the
      earlier cases, said in Commonwealth of Australia v.                    F
      Bank cif New South 1Yales that in the ::/abyrinlh (?f cases
      decided under Section 92 there was no golden thread".
       What is more important for our purpose is that he
      expressed the view that two general propositions stood
      out from the decisions: (i) that regulation o( trade.                  G
      commerce and intercourse among the Stales is
      compatible with its absolute fi·eedom. and (ii) that
      Section 9? o(/he Australian Co11stit11tio11 is violated onlv
      when a legislative or executive act operates to restrict
      such trade, commerce and intercourse directlv and
                                                                             H
268            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A           irnmediatelv as disti11ct from creating some indirect or
            inconseque11tia/ impedi111e111 which mav fi1irlv be
            regarded as remote . ......... ''


             102. On behalf of the States it was contended and. in our opinion,
 B
      rightly so that the "direct and immediate" effect test evolved by the
      pronouncement of the Australian High Court has itself been watered
      down and diluted. The current view in Australia is that only such taxes
      as are discriminatory introduced by way of a protectionist measure
      operate as restrictions on the freedom of trade. commerce and
c     intercourse. This is evident from the decisions of the Australia High
      Court in Cole v. Whitfield (1988) 165 CLR 360. The Court in that
      case reviewed the case law on the subject and rejected the argument
      that if Section 92 of the Australian Constitution was interpreted to be
      forbidding only discriminatory burdens it would have the effect of denying
 D    the freedom of trade. commerce and intercourse. The Court said:


                  .. .. Plainly. howeve1; the constructi<m which treats
            Sectio11 92 as hei11g concerned to guarantee the.fi·eedom
            of inter-State trade and commerce from discriminatory
 E          burdens does not involve the co11seque11ce Iha! the gm11t
            of legislative power with re.1pect lo inter-State trade and
            commerce is deprived of its essential content. "


             I 03. The Court noticed the evolution of the law on the subject and
 F
      held that it is only discriminatory burdens that are forbidden by Section
      92 and that the question whether a burden is indeed discriminatory is a
      question of fact and degree to be answered upon judicial interpretation
      and impressions. The following passage is, in this regard, instructive.

 G
            " Departing now from the doctrine which has ji1i!ed to
            retain general acceptance. we adopt the inte1pretatio11
            which. as we have shown. is favoured by history and
            context. In doing so. we must say something about the
            resolution of cases in which no impermissible pw1Jose
 H
       JINDAL STAINLESS LTD. v. STA.TE OF HARYANA                               269
                   [T. S. THAKUR, CJ!]

      appears on the face of the impugned law, but its effect                   A
      is discriminatory in that ii discriminates against inler-
      State trade and commerce and thereby protects intra-
      State and commerce of the same kind. We mention first
      Com111onwealth /mi's enacted under Section 51 (i) which
      govern rhe conduct of inter-State trade and commerce.                     B
      Such laws will commonly not appear to discri111i11ate in
      a relevant sense if they apply to all tra11sactio11s c1f a
      given kind within the reach of the Parliament. It is.
      howeve1; possible for a general law enacted under
      Section 51 fi) tu offend Sec/ion 92 if its effect is
      discriminatory and the discrimination is upon                             c
       protectionist grounds.       Whether such a law is
      discrimina/orv in effect and whether the discri111inalio11
       is of a protectionist character are questions raising
       issues of fact and degree. The answer tu those question.1·
       mav. in the ultimate. depend upon judicial impression. "                 D
                                               (emphasis supplied)


       I 04. The Court also held that it is only if the discrimination is ofa
protectionist character that Section 92 of the Australian Constitution would    E
stand violated. The Court said:


      "Jn the case of a Slate law. the reso/11tio11 of the case
      mus/ start with a consideration of the nature of the law
      impugned. I{ ii apvlies to all trade and co111merce. inter-               F
      State and intra-State alike, ii is less likelv lo he
      protectionist than if there is discrimination appearing
      on the face of the law. But where the law in effect. if
      no/ in furm. discriminates in favour ofintra-State trade.
      it will nevertheless offend against Section 92 if !he                     G
      discrimination is of a protectionist characte1: A law
      which has as its real object the prescription of a
      standard for a product or a service or a 11or111 of
      commercial conduct will not ordinarily be grounded in
      protectio111:m1 and will 11ot be pmhibited hv Section 92.
                                                                                !-I
270            SUPREME COURT REPORTS                          (2016] 10 S.C.R.



A           But i( a law, w'1ich mav be otherwise justified b!'
            reference tu an object which is nut prutectiu11ist.
            discriminates against inter-State trade or commerce in
            pursuit of' that object in a wav or to an extent which
            warrants charac:terizatiu11 o( the law as prutectiu11is1. a
            court will be justified in concluding that it 11u11etheless
 B
            offends· Section 92."
                                                  (emp!ta.\·i.\· .rnpplied)


             105. The above passage signifies a paradigm shift in the judicial
 c    opinion in Australia as regards the interpretation of Section 92 of the
      Australian Constitution. The earlier view that any. impediment including
      one in the nature of a tax which directly and immediately affects free
      trade, commerce and intercourse would violate Section 92 has been
      evidently abandoned by the Australian jurists. It follows that whatever
 D    support may have been available from the earlier decisions for the view
      taken in Atiabari (supra) and Automobile(supra) cases as to the true
      test applicable for interpreting Part Xlll, has. if we may use that
      expression, "fizzled out" with the passage of time.
             l 06. We may, at this stage, deal with yet another contention urged
 E    on behalf of the dealers in support of their case that taxes were. in the
      scheme of Part XIII. treated as restrictions. It was argued that the
      presence of Article 306 of the Constitution which now stands repealed
      by Constitution 7'h Amendment Act. 1956 was itself suggestive of the
      fact that taxes were intended to be restrictions on free trade, commerce
 F    and intercourse, for otherwise, there was no reason why a provision Iike
      Article 306 should have been incorporated by the framers of the
      Constitution. Article 306, as it stood, before its deletion, was in the
      following terms:


 G          "Article 306. Power of certain States in Part B of the
            First Schedule to impose restrictions 011 trade and
            commerce. - Notwithstanding anything in the fi1regoing
            provisions of this Par/ or in any other provisions of the
            Constitution, any State specified i11 .Part B of t/Je First
 H
        JJNDAL STAINLESS LJ'D. v. STATE OF HARYANA                                 271
                    [T. S. THAKUR, Cll]

      Schedule which he.fore the commencement of this                              A
      Constitution was levving any tax or duty on the import
      of'good1· into the State fi-om other States or 011 the export
      of' goods from the State to other States may, if an
      agreeme11t in that he half has heen entered into bef\veen
      the Government of' India and the Government of that                          B
      Stale, conti11ue to levy and collect such tax or duty
      suhjecl to the /erms o{ such agreement a11d for such
      period not exceeding ten years fi"om the commencement ·
      of' this Constitution as 111ay he specified in the agreement.
      Provided that the President may at any time after the                        C
      expirntion of fi1•e years from such com111enceme11t
      terminate or modi/.}• any such agreement ij; after
      consideration of the report of the Finance Commission
      constituted under Article 280, he think\- it necessary to
      do so."
                                                                                   D

       107. A careful reading of the above would show that the provision
started with a 11011-ohstante clause and made it constitutionally
permissible for any State specified in Part B of the First Schedule to
continue levying taxes or duties on the import of goods into the State             E
from other States or on the export of goods from the State to other
States. if an agreement in that behalf has been entered into between the
Government of India and the Government of that State for such period
not exceeding ten years as has been stipulated in .the agreement.
        l 08. The historic rationale behind incor1M .1: 1<'11 of Article 306 lay   F
in the fact that some States were imposing taxes/duties on the import of
goods into their territory and on the export of goods from their ten-itory,
which taxes and levies were inconsistent with the Scheme of Part Xlll,
but, since the States were heavily relying upon the revenue so collected,
the tax barriers set-up for such collection could not be completely taken
away in one go. The framers of the Constitution in that view considered            G
it necessary in the interest of stability of revenue to preserve the power
exercised by the States for a limited period subject to the conditions
stipulated in A1ticle 306. The true effect of Article 306, therefore, was
that while the States had no power under the Constitutional Scheme to
                                                                                   H
272            SUPREME COURr REPORl'S                         [2016] 10 S,CR.



A     levy customs duties on the import and export of goods to and from a
      State and even when such taxes and levies were discriminatory vis-a-
      vis goods produced/manufactured from outside the State, the
      discriminatory duties and levies were in larger interest of stability of
      revenue of the concerned States permitted, but, conditionally for a limited
      period. Themarginal note of Article 306, therefore, rightly mentions such
 B
      levies and duties to be restrictions on trade, commerce and intercourse,
      The reason for such description being the discriminatory nature of such
      taxes and levies. Seen in the historical perspective, it is futile to argue
      that Article 306 lends any assistance for determining whether taxes act
      as restrictions on free trade, commerce and intercourse. Seervai has
 c    correctly summed-up the true import of Article 306 in the following
      passage from his treatise (supra):


              "24.42. Again, Article 306 enabled the farmer Native
 D          States, which hecame Part B States, to continue to levy
            any tax or duty on the import of' goodI' imo such States
            jimn nther States and to illlpose a dw1· on the export of
            goods out of such States for a limited period of time.
             771e reasn11 .fi>r enacting this provision is simple. First,
             Part B States claimed to he sovereign States vi.1·-ll-vis
 E           British !11dia, and vis-a-vis other Native States so that
             the provin('es of British India Vl'ere i11 relation to Native
             States, and the Native States were foreign States to one
             another. 17ie duties of import and export levied by Native
             States were thus duties of' cusrom.1· which are vvel! known
            jiJr creating tariff harriers. 77ws a customs duty on the
             import ol !;()()111· creates a tariff wall which the outside
             ,1!,onds mus! surmount since there is no obligation on
             the Native State imposing such duty to impose any
             corresponding d11tv 011 similar gond1' manufacrured and
             produced in the other States. And the same is true of
 G
             duties o{ export for thev can effectiveZ11 prevent goods
             going out ol the State hy making them unsaleable in
             States where goods hear no such tax or hear a very
              much smaller tax. This scheme of taxation is hasical!v
              opposr>d to the scheme of our Constitution hecause the
 H
       JINDAL STAINLESS LrD. v. STATE OF HARYANA                            273
                   JT. S. THAKUR, CH]

      States of India are not foreign States to one another,                A
      and no State can levy a duty or customs on goods
      i111portedfi"Om a11othe1; for no State has power to levy a
      duty of customs. That power he/ongs exclusii·ely to
      Parliamenl in relation to foreig11 countries. Second!)',
      such duties would ordinarily contravene Article 304(a)
                                                                            B
      so far as import ji-om other States is co11cerned.
      Hmveve1; as 1he revenues o/' lhe Native States were to a
      greater or smaller extent depende11t on duties of customs,
      lo have prohihited them al once 1~011/d have dislocated
      the .finawes of those States. So, for a limited period of
      time, these duties \-Vere a/lovl'ed to continue. "                    c

      For all that we have said above we have no hesitation in rejecting
the contention urged on behalf of the dealers.
        I 09. It was next argued on behalf of the dealers that an D
unreasonably high rate of tax could by itself constitute a restriction
otfonsive to Article 30 I of the Constitution. This was according to learned
counsel for the dealers acknowledged even in the minority judgment
delivered by Sinha, CJ in Atiabari's case (supra). If that be so, the only
w:iy such a restriction could meet the constitutional requirements would E
be through the medium of the proviso to Article 304(b) of the Constitution.
There is, in our opinion, no merit in that contention either and we say so
for two precise reasons. Firstly, because taxes whether high or low do
not constitute restrictions on the freedom of trade and commerce. We
have held so in the previous paragraphs of the judgment based on our
textual understanding of the provisions of Part XJ11 which is matched by F
the contextual interpretation. That being so the mere fact that a tax
rnsts a heavy burden is no reason for holding that it is a restriction on the
freedom of trade and commerce. Any such excessive tax burden may
be open to challenge under Part Ill of the Constitution but the extent of
burden would not by itselfjustify the levy being struck down as a restriction G
contrary to Article 30 I of the Constitution.
      110. Secondly because, levy of taxes is both an attribute of
sovereignty and an unavoidable necessity. No responsible government
can do without levying and collecting taxes for it is only through taxes
                                                                             H
274            SUPREME COURT REPORTS                          (2016] l 0 S.C.R.


A     that governments are run and objectives of general public good achieved.
      The conceptual or juristic basis underlying the need for taxation has not,
      therefore, been disputed by learned counsel for the dealers and, in our
      opinion, rightly so. That taxation is essential for fulfilling the needs of
      the government is even otherwise well-settled. A reference to "A
      Treati~·e on the Constit11tio11al Limitations" (8 11' Edn. 1927 - Vol. II
 B
      Page 986) by Thomas M Cooley brings home the point with
      commendable clarity. Dealing with power of taxation Cooley says:


               "Taxes are defined to be burdens or charges imposed
 c          bj1 the legislative power upon persons or property, to
            raise money for public purposes. The power to lax rests
            upon necessity, and is inherent in eve1y sovereignty. The
            legislature of every free Stale will possess it under tlze
            general grant of legislative fHJWe1; whether particularly
 D          specified in the constitution among the powers to be
            exercised by it or not. No constituticmal government
            can exist without it, and no arl!itrarv government without
            regular and steadv taxation could be anything but an
            oppressive and vexatious despotism. since the onlv
            alternative to taxation would be a forced extortion fi;r
 E          the needs o{ government kom such persons or objects
            as the men in power might select as victims. ··


             111. Reference may also be made to the following passage
 F    appearing in McCulloch 1'. Maryland, 17 US 316 (1819) where Chief
      Justice Marshall recognized the power oftaxation and pointed out that
      the only security against the abuse of such power lies in the structure of
      the government itself. The court said:


 G          "43 ...... . .it is admitted that the power of taxing the
            people and their property is essential to the very
            existence of government, and may be legitimately
            exercised on the objects lo which it is applicable to the
            utmost extent to which the gover11111e11t may choose to
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            275
                   [T. S. THAKUR, CJl]

      can:v it. The univ security against the abuse of this                 A
      power is found in the structure of the government itself'
      In imposing a tax. the legislature acts upon its
      constituents. This is. in general, a sufficient securitv
      against erroneous and oppressive taxation.
      44. The people of a State. therefore, give to their                   B
      government a right of taxing themselves and their
      property: and as the exigencies of the government
      cannot be limited, they prescribe 110 limits to the exercise
      of this right, resting contldentlv on the interest o( the
      legislat01; and on the influence ol the constituents over             C
      their representative. to guard them against its abuse."


     112. To the same effect is the decision of this Court in State of
Madras v. N.K. Nataraja Mudaliar (AIR 1969 SC J.17) where this
Court recognized that political and economic forces would operate against   D
the levy of an unduly high rate of tax. The Court said:


      ''16....... ... Again, in a democratic constitution political
      forces would operate against the levv of an undu/1• high
                                                                            E
      rate of tax. The rate of tax on sales of a commoditv
      mav not ordinarilv be based on arbitrary considerations.
      but in the light of the (acilitv ol trade in a particular
      commoditv. the market conditions internal and external
      - and the likelihood of consumers not being scared awav
      hv the price which includes a high rate o(tax. Attention              F
      must also he directed sub-Section (5) <~f Sec ti rm 8 which
      authorizes the State Government, 11otwithsta11di11g
      anything contained in Section 8. in the public interest
      to waive lax or impose tax on sales at a lower rate on
      inter-State trade or commerce. lt is clear that the                   G
      legislature has contemplated that elasticity of rates
      consistent with economic forces is clearly intended lo
      be maintained. "


                                                                            H
276            SUPREME COURT REPORTS                          (2016] 10 S.C.R.



A             I 13. Also apposite is the following passage from the said decision
      where this Court held that free flow of trade does not necessarily depend
      upon the rate of taxes but upon a variety of factors which the Court
      identified in the Jollowing words:


 B
            ··; 4_ ......... The flow of trade does not necessari~v
            depend upon the rates of sales tax: it depe11d1· upon a
            w1riety olfactors, such as the source of supply, place
            o/ consumption, existence of trade, channels, the rates
            o/ji-eight, trading facilities. availahility ol efficient
 c          transport and other facilities for carrving on trade.
            Instances can easily be imagined of cases in ·which
            notwithstanding the lower rate o/ tax in a particular
            part o{ the country goods may be purchased ji-0111
            another part, u·here a higher rate o{ tax prevails.
 D          Suppo.,.ing in a particular State in respect o{ a
            commodity, the rate of tax is 2 per cent hut if"the benefit
            ol that low rate is offvet hy the freight which a merchant
            in another State may have to pay for can:ving that
            conmwdizv over a long distance, the merchant would
            he willing to purchase the good1· .fi'om a nearer State.
            even though the rate of tax in that State mav he higher.
            Existence o{ long standing husiness relations,
            availahilitv of communications, credit facilities and a
            host of other factors - natural and husi11ess - C11ler
            into the mainte11a11ce of trade relatio11s and the .fi'ee flow
 F          of trade ca1111ot necessarilv he deemed to have heen
            ohsrructed merely because in a particular State the rate
            of tax on sales is higher than the rates prevaili11g in
            other States. "


 G           114. Reliance by the counsel for the dealers upon the judgment of
      Sinha, CJ is also, in our opinion, of no avail to them. After holding taxes
      to be outside the purview of Part Xlll of the Constitution, His Lordship
      made the following observations:

 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 277
                   [T. S. THAKUR, CH]

      "'17 . ......... If a !av.· is passed b.v the Legislature                  A
      imposi11g a tax which in its true nature and effect is
      meant to impose an impediment to the.free.flow of trade,
      commerce and intercourse, for example. by imposing a
      high tariff' 1rnll, or hy preventing imports i11to or exports
      out of a State, such a law is outside the significance of                  B
      taxation, as such. hllf assumes the character of a trade
      harrier which it was the intention of the Constitution
      makers to aholish hy Part XIII. "


       115. A careful reading of the above would show that Sinha, CJ             c
had two situations in mind. One, where the State prevents imports into
and exports out of the State and the other where the State imposes the
high tariff wall with a view to imposing an impediment to the free flow
of trade, commerce and intercourse. Insofar as the first category viz.
laws that forbid imports into and exports out of a State are concerned,          D
the same would work as a restriction in terms of restrictions within the
contemplation of Part Xlll and may be permissible in the manner and to
the extent the said Part permits to do so, but, in the second case, viz.
legislature imposing a high tariff wall so as to operate as an impediment
to free flow of trade, commerce and intercourse, there are considerable
difficulties. That is so because the judgment does not elaborate as to            E
what would constitute a high tariff wall for the tax to operate as a
restriction/impediment.
       116. Counsel for the parties were, in the course of arguments,
repeatedly asked whether any objective standards and norms can be
evolved to determine the height and the width of the wall referred to in          F
the passage extracted above. They were, however, unable to suggest
any such no1111s. They fairly conceded that it was difficult if not impossible
to evolve any such norm applicable to myraid situations that would arise
before the courts. This implies that the tariff wall theory actually breaks
down and is not amenable to judicially manageable dimensions. What                G
may sound a high tariff wall or a fiscal barrier to one may not be so to
the other. What may constitute a fiscal wall or barrier for one 'category
of traders may not be so for other categories. So also, the tax' at a given
rate may be high on a particular commodity but reasonable qua another.
Suffice it to say that the fiscal wall theory gets into serious difficulties
                                                                                 H
278             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A      when it comes to enforcement or effectuating the same. The logic
       behind the theory in fact cracks and gives-up. Such being the position,
       we have little hesitation in holding that the fiscal wall theory propounded
       in Sinha, CJ's minority judgment is not really workable and has not
       commended itself to us. It follows that simply because the tax is high is
 B     no reason for it to change its character and take the fonn of a restriction
       within the meaning of Part XI!T, no matter any one aggrieved of such
       heavy burden shall have the liberty to assail the same on all such grounds
       as imy be available to him under Part III of the Constitution. We are
       conscious of the fact that some decisions of this Com1 in Rt!ia Jaga1111ath
       Baksh Singh v. State of UP AIR 1962 SC 1563; Federation of
 c     l/otel & Restaurant Assn. <~f India etc. v. Union of India & ors.
       (1989) 3 SCC 634; J' V Srinivasamurthy and ors. v. State of Mysore
       and Am: AIR 1959 SC 894; D G Gose & Co. (Agellfs) (P) Ltd. v.
       State of Kenda and anr. (1980) 2 SCC 410; A Suresh and others v.
       State of TN and another (1997) 1 SCC 319 have declared that just
 D     because a tax is heavy is no reason for it to be contrary to Part III, but
       we leave that question open to be examined in appropriate cases as and
       when any such challenge is mounted by anyone aggrieved of an unduly
       heavy tax rate.
              117. That brings us to the question whether the use of the
 F     expression "by virtue of any entry relating to trade and commerce"
       appearing in Article 303 are wide enough to include entries relating to
       levy of taxes also. The argument advanced amongst others by Mr.
       Datar is that the expression "relating to trade and commerce" appearing
       in the said Anicle must be interpreted liberally so as to include not only
       E11try 42 in List 1, Entry 26 in List 11 and Entry 33 in List 111 but also
 F
       other entries that empower the Parliament and State Legislatures to
       levy taxes. By that logic it was contended that levy of taxes is also
       treated as a restriction within the contemplation of Part XIIl making it
       necessary for the legislature to resort to Article 304(b) and the proviso
       for doing so. There is in our opinion no merit in that contention also.
 G
              I 18. We say so for two precise reasons. Firstly because entries
       relating to Trade and commerce by themselves are not sufficient to
       empower the legislature to levy taxes. The constitutional scheme is
       such that a taxing entry is distinct from other entries and a levy of tax is
       possible only ifthere is an ent1y which authorizes the competent legislature
 f-1
       HNDAL STAINLESS LTD. v. STATE OF 1-!ARYANA                             279
                  [T. S. THAKUR, CJ!]

to levy the same. This distinction has for long been maintained by judicial   A
pronouncements of this Court. We may in this regard refer to M.P. V.
Sunderaramier's case (supra) where this Cou11 has declared:


      "51. Jn List I. Entries l to 81 mentio11 the several matters
                                                                              B
      over which Parliament has authority tu legislate. Entries
      82 tu Y2 enumerate the laxes which could he imposed
      by a law of Parliame11t. An examination rd· these two
      groups of Entries shows that while the main su~ject of
      legislation .figures in the first group, a flLr in relation
      thereto is separately mentioned in the second. Thus.                    c
      Entry 22 in List I is "Railways". and Entry o9 is
      "Terminal taxes on goods or passengers. carried by
      railway. sea or air: taxes on railway fares and fi"eights ".
      if Entry 22 is to be construed as involving laxes to be
      imposed, then Enny 8Y would be supe1jl11ous. Entry ./ 1                 D
      mentions "Trade and commerce with foreign countries:
      import and export across customs frontiers". lf these
      expressions are to be interpreted as including duties to
      be levied in re:,pect of that trade and commerce, then
      Entry 83 which is "Duties of customs including export
      duties" would be wholly redundant. Entries 43 and 44                    E
      relate to inc01poralion, regulation and winding up of
      corporations. Entry 85 provides separa/ely for
      corporation tax. Turning to List fl, Enlries I lo ././form
      one group mentioning the su~jects on which the Stutes
      could legislate. Entries ./5 tu 63 in that List.form another             F
      group, and they deal with laxes. En11y 18, for example,
      is "Land" and E11t1y 45 is "Land revenue". E111ry 23 is
       "Regula/ion of mines" and Entry 50 is "Tuxes on
      mineral rights". The above analysis - and ii is not
      exhaustive of the Entries in the Lists - leads lo the
                                                                              G
       inference that taxation is not intended to be comprised
       in the main subject in which it might on an extended
      construction be regarded as included. bu/ is treated as
      a distinct matter for purposes of'/egislative competence.
      And this distinclion is also manifest in the language o(
                                                                              H
280             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A           Article 2./8, clauses (1) and 0) and of Entrv 97 i11 List
            I of the Constitution. Construing Emn· ./2 in the light
            of'the above scheme, it is difficult lo resist the c.:om:lusiu11
            that the power of Parliament tu legislate 011 i11ter-Sta/e
            trade and commerce under Entrv ./2 dues not include a
            power to impose a tax un sales i11 the course uf such
 B
            trade and commerce.''
                                     xxx xxx xxx
             55. To sum up: (1) Entry 5./ is successor to E11t1:i: ./8 in
             the Govemment of India Act, and it would be legitimate
C            to construe it as including tax 011 inter-State sales
             unless, there is anything repug11a111 lo it in the
             Co11stitutio11 and there is 11011e wch. (2) Under the
             scheme of the Entries in the Lists, taxation is reRarded
             as a distinct maller and is separatelv set out.
D
             .119. The above pronouncement is, in our opinion, the correct
      enunciation of the legal position in the light whereof it is difficult to
      appreciate how entries relating to trade and commerce could be
      understood to be including levy of taxes also. That apart, once taxes are
 E    held to be outside Part XIII for the reason that we have already set out
      earlier. there is no way we can bring them back into that Part by a
      tenuous interpretation or understanding of Article 303. As explained by
      us earlier, Article 303 is an exception to Article 302. inasmuch as it limits
      the power conceded to the Parliament under Article 302 to impose
 F    restrictions on freedom of Trade. commerce and intercourse in public
      interest. The power exercised by Article 302 cannot be so exercised as
      to give preference to one state over another except under a situation
      covered by Article 303(2) namely situation arising from scarcity of goods
      in any part of the territory of India. We cannot add to this Article any
      artificially extended meaning the ingenuity of the bar in coining any such
 G
      interpretation notwithstanding.
             120. Relying upon the decision in Mudaliar'~· case (supra) it was
      argued on behalf of the assessee that this Court has upheld the
      constitutional validity of the Central State Tax Act on the ground that
      such a tax was in public interest within the contemplation of Article 302
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             281
                   LT. S. THAKUR, CJl]

of the Constitution oflndia, hence, validly leviable. This, according to A
the learned counsel, implied that the tax was recognised as a restriction
which could be levied only if found to be in public interest as stipulated in
Article 302. We have no difficulty in rejecting that contention. ln
Mudaliar 's case, this Court was bound by and followed the
pronouncement of the larger bench inAtiabari's case holding that taxes
                                                                              B
could also be restrictions on free trade and commerce if they directly
and immediately impeded their free flow. We have, in the preceding pa11
of this judgment, held that view to be legally unsustainable on a proper
construction of the provision of Pa11 Xlll and the Constitutional scheme.
Once the premise on which Atiabari '.~ case was decided is held to be
!lawed, Mudaliar that simply followed the ratio of that decision cannot c
stand scrutiny. The argument that Central Sales Tax was valid in terms
of Article 302 as such a tax was in public interest becomes academic if
taxes are held to be outside the purview of Part Xlll. This incidentally
will be true in respect of every other pronouncement where benches of
smaller strength have dealt with similar other legislations and taken a D
view following the ratio in Atiabari'.1· case.
        121. We may at this stage deal with yet another contention urged
on behalf of the assesses who argued that while Article 304(a) forbids
discriminatory fiscal legislation in respect of goods coming from another
state there was no provision which prevented the States from levying         E
discriminatory taxes within its territorial limits. The argument was that
the absence of any provision against discriminatory taxation within a
State must be understood to mean that taxes would generally be
restrictions and unkss the States take recourse to A11icle 304(b) they
cannot levy such ta\ cs upon trade and commerce within their tenitorial
                                                                             F
limits. The argument is, in our view, more in despair than substantial. lt
is true that Part Xlll does not in tenns forbid the levy of discriminatory
taxes on goods produced within the States but the fact that there is no
such prohibition does not necessarily mean that if such discriminatory
taxation does indeed take place the same is constitutionally pennissible.
Whether or not there is hostile discrimination between goods from one        G
part of the State and those from another part is a matter which will have
to be judged on a case to case basis and on the touchstone of Article 14.
Having said that we need to remind ourselves that Patt Xlll of the
Constitution was aimed at addressing the mischief arising from fiscal
and other barriers which the princely states had imposed and which           H
282            SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A     gravely impeded free trade and commerce. The Constituent Assembly
      Debates show that framers of the Constitution were concerned with the
      removal of such barriers. Discrimination intra-State in terms of levy of
      taxes was never considered to be a challenge for presumably the
      Constituent Assembly never considered the same to be a real possibility
      necessitating a specific provision prohibiting levy of discriminatory intra-
 B
      State taxes.
              J 22. On behalf of the assessees-dealers, it was next argued that
      levy of entry tax on import of goods from outside the local area in the
      State will be pl'!' se discriminatory if goods so imported or similar are not
 c    produced or manufactured within the State. That is, argued the learned
      counsel, because the levy will fall unequally thereby violating the guarantee
      against discrimination contained inA11icle 304(a). We have no difficulty
      in rejecting that submission as well. The reason is obvious. Article 304(a),
      in om opinion, strikes at discriminato1y taxation implying thereby that the
      levy falls unequally as between goods produced or manufactured within
 D    the State and those being imported from outside. The essence of the
      guarantee in Article 304(a) lies in the same or similar goods being treated
      similarly in the mntter of taxation. The question, therefore, is whether
      that guarantee is violated if the goods subjected to levy of entry tax are
      not produced or manufactured within the Stnte levying the tax. Our
 E    answer is in tbe negative. This is because there is no question of any
      discrimination if goods from outside the State are not at a disadvantage
      vis-a-i:is goods produced or manufactured within that State. It is true
      that a levy on goods that are not produced or manufactured in the State
      is likely to make such goods costlier but that is not enough for the levy to
      be considered unconstitutional. A responsive Government aware of the
 F
      needs of its constituents will be under tremendous pressure to keep such
      taxes low enough for its constituents to be able to afford the same.
       Democratic processes and pressures within the system of governance
      that we have will itself take care of any abe1Tation in this regard. What
       is absolutely clear, however, is that A11icle 304( a) will not frown at a
 G     levy simply because same or similar goods as are taxed are not produced
      or manufactured in the State. Reliance upon the decision in Kalyani
      Stores AIR 1966 SC 1686 does not, in our opinion, help the assessees.
       The majority judgment in that case looked at Article 304( a) as the source
      of power to levy a tax or duty. We have in the earlier parts of the
      judgment explained that the source of power to levy taxes/duties lies in
 H
        JINDAL STAINLESS ITD. v. STATE OF HARYANA                               283
                          [T. S. THAKUR, CJI]

Articles 245 and 246 of the Constitution read with the entries in the           A
three lists contained in Schedule VII. A1ticle 304(a), in that view, only
places a constitutional restriction on the power to levy taxes or duties
while recognizing the availability of such powers to the State legislatures.
The restrictions as explained by us in the earlier paras to levy taxes/
duties is confined to levy of discriminatory taxes and duties alone. To
                                                                                B
the extent, Kalyani Stores takes the view that the power to levy taxes is
traceable to Article 304(a) the decision, in our opinion. is not sound nor is
it correct to say that since goods being taxed are not produced in the
State, the power to levy a tax gets obliterated.
        123. Appearing for some of the assessees Mr. Venk.atraman argued        c
that the Central Sales Tax Act was a classic example of the Union
exercising its power under A1ticle 302 of Part XIII. He contended that
the restrictions so imposed signify that tax and restrictions are synonymous
within the contemplation of part XIII.
       124. The Central Sales Tax Act, 1956 was enacted pursuant to             D
the Sixth Amendment Act, 1956 whereby taxes on sale and purchase of
goods in the course of inter-state trade and commerce were expressly
brought within the purview of the legislative competence of Parliament.
This included the power to impose restrictions upon the power of the
State legislature insofar as levy of taxes of sale or purchase of goods of
special importance is concerned. Entry 92-A added by the Sixth                  E
Amendment Act 1956 empowered the Parliament to levy taxes on the
sale and purchase of the goods other than newspapers in the course of
trade and commerce. Entry 54 of the State List by the same amendment
was redrawn to make the taxes on the sale and purchase of goods subject
to Entry 92-A of List I. The two entries read as under:


       "'92-A. Taxes 011 the sale or purchase of good1· other
       than newspapers, where such sale or purchase takes
       place in the course of imer-State trade or commerce.
                                                                                G
       54.   Taxes 011 the sale or purchase of goodv other than
       11ev1"spapers, suhjecr to the provisions of Enny 92-A of
       List-I. ..


                                                                                H
284            SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A             125. The States' power it is evident is made subservient to the
      powers of the Parliament under Entry 92-A. Section 15 of the Central
      Sales Tax Act, therefore, has oveniding effect vis-a-vis any State Law
      authorizing imposition of taxes on sale/purchase of declared goods. Seen
      in the above perspective, Parliament has limited the legislative power of
      the State insofar as taxes on declared goods are concerned. We find it
 B
      difficult to read into such restrictions the meaning sought to be drawn by
      the learned counsel that taxes themselves are restrictions within the
      comprehension of Part Xlll. The imposition ofrestrictions on the State's
      power of taxation in regard to declared goods is not, in our opinion,
      suggestive of taxes themselves being restrictions for purposes of Part
 c    Xlll of the Constitution. Not only that, Article 286(3) provides the source
      of power for the Parliament to impose any restriction on the State
      authority to levy a tax on goods of special iniportance declared by
      Parliament. Article 286 (3) reads as :

 ])
               "28().Restriction as to imposition of tax on the sale or
             purchase f~( goods:
                       (I) ... ,

                       (2) ""
 E
                      (3) Any law of a State shall. in so far as it
             imposes. or authorises the imposition of.-
                      (a) a rax 011 the sale or purchase of goods
             declared hy Parliament hy Im;: to he o{ special
             importance in inter-State trade or commerce; or
                      (b) a tax on the sale or purchase of good>,
             !wing a tax o{ the nature referred to in ·sub-clause (h),
             suh clause (c) or suh-clause (d) o{ clause (29A) of artide
             366,
 G           he suhject to such restrictions and conditions in regard
             to the svsrem of levy, rates and other incidents of the
             tax as Parliament made hy law speci{y. "



 H
               JINDAL STAINLESS IJ'D. v. STA!'E OF HARYANA                              285
                           IT. S. THAKUR, CJI]

               126. In the light of what we have said above, we answer Question A
       No. l in the negative and declare that a non-discriminatory tax does not
       per se constitute a restriction on the right to free trade, commerce and
       intercourse guaranteed under Article 301. Decisions taking a contrary
       view in Atiabari'.1· case (supra) followed by a series of later decisions
       shall, therefore, stand overruled including the decision in Automobile
                                                                                 B
       Transport (supra) declaring that taxes generally are restrictions on the
       freedom of trnde, commerce and intercourse but such of them as are
       compensatory in nature do not offend Article 30 I. f,esultantly decisions
       of his Court in Jindal Stainless Limited(2) and anr. v. State of
       llmyana and ors. (2006) 7 sec 241 shall also stand overruled.
                                                                                        c
              127. Re. Question No.2
              ln view of our answer to Question No. I, Question No.2 does not
       arise for consideration.
              128. Re. Question No.3
                                                                                        D
             In tlie light of what we have said in Question Nos. I and 2, this
       question also does not survive for consideration.
              129. Re. Question No.4
               This question touching the constitutional validity of the impugned
       State enactments can be split into two parts. The first part which can be        E
       briefly dealt with at the outset is whether the constitutional validity of the
       impLigncd legislations has to be tested by reference to both Articles 304(a)
       and 304(b) as contended by learned counsel for the asses sees or only by
       reference to Article 304(a) as argued by the States. lu the light of what
       we have said while dealing with question No. I we have no hesitation in          F
       holding that Article 304(b) does not deal with taxes as restrictions. At
       the risk of repetition, we may say that restrictions refe1Ted to in Article
       304(b) are non-fiscal in nature. Constitutional validity of any taxing statute
       has, therefore, to be tested only on the anvil of A1iicle 304(a) and if the
       law is found to be non-discriminatory, it can be declared to be
       constitutionally valid without the legislation having to go through the test     G
       or the process envisaged by Article 304(b ). Should, however, the statute
       fail the test of non-discrimination under Article 304(a) it must be struck
       down for the same caimot be sustained even if it had gone through the
       process stipulated by Article 304(b). That is because what is
                                                                                        H
....
2R6             SUPREME COURT REPORTS                           [20 l 6] JO S.C.R.


      constitutionally impermissible in terms of Article 304(a) cannot be
      validated and sanctioned through the medium of Article 304(b ). Suffice
      i1 to say that a fiscal statute shall be open to challenge only under A1iicle
      304(a) of the Constitution without being subjected to the test of Article
      304(b) either in terms of the existence of public interest orreasonableness
      of the levy.
13
               130. That brings us to the second part of question No.4 viz. whether
      the impugned State enactments violate Article 304(a) of the Constitution.
      That aspect will necessmily involve a careful reading of the impugned
      enactments and a proper appreciation of the scheme underlying the same.
c     While we have at some length heard learned coun~el for the parties on
      th;it ;ispect, we do not propose to deal with all the dimensions of that
      challenge based on Article 304(a) except two of them that were argued
      at great length by learned counsel for the parties. The first of these two
      dimensions touches upon the State's power to promote industrial
      development by granting incentives including those in the nature of
D     exemptions or reduced rates of levy on goods locally produced or
      manufactured. On behalf of the assesses it was contended that grant of
      exemptions and incentives in favour oflocally manufactured/produced
      goods is also one fo1111 of insidious disc1imination which was impe1111issible
      in terms of article 30<l(a) for such exemptions and incentives had the
      effect of putting goods from another State at a disadvantage. Relying
      upon a decision of two-Judge Bench of this Cowi in Slzree A1alzavir
      Oil Mills and Anr. v. State of Ja11111111 and Kashmir and Ors. (1996)
      2 sec     39 it was argued that exemptions in favour of locally produced
      goods from payment of tilxes was constitutionally impermissible and
      offensive to miicle 304(a). That was a case where the State Government
 F
      had totally exempted goods manufactured by small scale indusnies within
      the State from payment of sales tax even when the sales tax payable by
      other industries including manufacturers of goods in adjoining States
      was in the range of8%. This exemption was questioned by manufacturers
      of edible oils from other States on the ground that the same was
 G    discriminatory and violative of Articles 301and304 of the Constitution.
             131. This Court. held that the exemption given to manufacturers
      of edible oil was total and unconditional, while producers of edible oil
      from industries in adjoining states had to pay sales tax@ 8%. Grant of
      exemption to local oil producing units thereby put the former at a
 H
       JINDAL STAJNLESS ITD. v. STATE or HARYANA                               287
                   [T. S. THAKUR. CJ!]

disadvantage. I-laving said that, the Court exercised its powers under         A
Article 142 of the Constitution and struck down the exemption by
moulding the reliefs to suit the exigencies of the situation. The Court no
doubt noticed a three-Judge Bench decision in Video Electronics vs.
State of P1miab (1990) 3 SCC 87 in which notifications issued by the
States of U.P and Punjab providing for exemptions to new units
                                                                               B
established in certain areas for a prescribed period of 3 to 7 years were
assailed as discriminatory. The challenge to the exemption was in that
case also based on the alleged violation of Articles 301 and 304. This
Court however upheld the notifications in question on the ground that
the same related to a specific class of industrial units and the benefit
under the same was admissible for a limited period of time only. The           c
Court observed that if an overwhelmingly large number of local
manufacturers ''ere subject to sales tax, it could not be said that the
local manufactures were favored as a class against outsiders.
       Adverting to the decision in Video Electronics (supra) this Court
in Malrnvir (supra) held the same to be distinguishable on the ground          D
that the Punjab and U .P notifications were qualitatively different from
the one issued by the Government ofJammu and Kashmir in as much as
while the former benefitted only specified u11its and limited the benefit to
a specified period, the latter was not subject to any such limitations. This
declared the Court resulted in discrimination vis-a-vis. outside goods.        E
What is important-- is that in Video Electronics (supra) this Court
recognized the difference between differentiation and discrimination and
held that every differentiation is not discrimination. This Com1 noted
that the word discrimination was not used in Article 14 as it has been
used in Article 16. Article 303 and Article 304 (a). The use of the word
                                                                               f
in .\04 (a) observed this Court involved an element of "intentional and
 unfavorable bias". So long as there was no such bias evident from the
measure adopted by the state, mere grant of exemption-- or incentives
aimed at supporting local industries in their growth, development and
 progress did not constitute discrimination.
                                                                               G
       1:12. We respectfully agree with the line of reasoning adopted in
Video Electronics (supra). The expression "discrimination" has not been
defined in the Constitution though the same has fallen for interpretation
of this Court on several occasions. The earliest of these decisions was
rendered in Kathi Raning Rawat v. The State of Saurashtra AIR
                                                                               H
288             SUPREME COURT REPORTS                         12016] I 0 S.C.R.



A 1952 SC 123, where a seven-Judge Bench of this Court held that all
      legislative differentiation is not necessarily discriminatory. Relying upon
      the meaning of the expression in Oxford Dictionary, Patanjali Sastri, CJ
      (as His Lordship then was) explained :


 n          "7. All legislative differentiation is not necessarily
            discriminatory. Jn fact. the word "discrimination" does
            not occur in Article 11. The expression "discriminate
            against" is used in Article I 5(1) and Article 16(2), and
            it means, according to the Oxford Dictionary, "to make
 c          an adverse distinction with regard to; to distinguish
            unfavourahly fi·om others". Discrimination thus
            involves an element of 1mfavourahle hias and it is in
            that sense that the expression has to be understood in
            this context. If such bias is disclosed and is based on
D           any of the grounds mentioned in Articles I 5 and 16, it
            mav well he that the statute will, without more, incur
            co11de111natio11 as violating a specific 'constitutional
            prohihition unless it is saved by one or other of the
            provisos to those articles. But the position under Article
            I 4 is different. Equal protection claims under that article
 r          are examined with the presumption that the State action
            is reasonable and justified. This presumption of
            constirutionality stems from the wide power of
            classification which the legislature must, of necessit)!.
            possess in making laws operating differentfcv as regard~
 F          different groups olperson.1· in order to give effect to its
            policies ...


              133. Fazl Ali .I. in his concurringjudgment explained the concept
      in the following words:
 G

             "J 9. I think that a distinction should be drawn he tween
            "'discrimination v.-ithout reason" and "discrimination
            1vith reason". The whole doctrine ol classification is
 H                                                                                  ...
                                                                                    '··
        .JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 289
                          [T. S. THAKUR, CJI]

       hased on this distinction and 011 the well-known fact                       A
       that the cirrwnstance.1· which govern one set of persons
       or ohjects may not necessarily be the same as those
       governing another set of persons or objects, so that
       the question of unequal treatment does not really arise
       as hetiveen persons governed by different conditions
                                                                                   B
       and different sets of circumstances. 711e main objection
       to the /Yest Bengal Act was that it permitted
       discri111i11alio11 '\vithout reason" or without any rational
       basis. "

                                                                                   c
        Any challenge to a fiscal enactment on the touchstone of Article
304(a) must in our opinion be tested by the same standard as in Kathi\·
case (supra). The Court ought to examine whether the differentiation
made is intended or inspired by an element of unfavourable bias in favour
of the goods produced or manufactured in the State as against those                D
imported from outside. lf the answer be in the affirmative, the
differentiation would fall foul of Article 304(a) and may tantamount to
discrimination. Conversely, if the Court were to find that there is no such
element of intentional bias favouring the locally produced goods as against
those from outside, it may have to go further and see whether the
differentiation would be suppo1ted by valid reasons. in the words ofFazl           E
Ali, J. discrimination without reason would be unconstitutional whereas
discrimination with reason may be legally acceptable. ln Video
Electro11ic 's case, this Court noted that the differentiation made was
supported by reasons. This Comt held that if economic unity of lndia is
one of the Constitutional aspirations and if attaining and maintaining such        F
unity is a Constitutional goal, such unity and objectives can be achieved
only if all parts of the Country develop equally. There is, if we may say
so, with respect considerable merit in that line of reasoning. A State
which is economically and industrially backward on account of several
factors must have the opportunity and the freedom to pursue and achieve
                                                                                   G
development in a measure equal to other and more fortunate regions of
the country which have for historical reasons, developed faster and
thereby acquired an edge over its less fortunate country cousins. Economic
unity from the point of view of such underdeveloped or developing states
will be an illusion if they do not have the opporttmity or the legal entitlement
                                                                                   1-l
290             SCPREME COURT REPORTS                          [2016] IO S.C.R.



A      to promote industries within their respective territories by granting
       incentives and exemptions necessary for such growth and development.
       The argument that power to grant exemption cannot be used by the
       State even in case where such exemptions are manifestly intended to
       promote industrial growth or promoting industrial activity has not appealed
       to us. The power to grant exemption is a part of the sovereign power to
 B
       levy taxes which cannot be taken away from the States that are otherwise
       competent to impose taxes and duties. The conceptual foundation on
       which such exemptions and incentives have been held permissible and
       upheld by this Court in Video :v case is, in our opinion,juristically sound
       and legally unexceptionable. Video Electronics, therefore, conectly states
 c     the legal position as regards the approach to be adopted by the Courts
       while examining the validity oflevies. So long as the differentiation made
       by the States is not intended to create an unfavourable bias and so long
       as the differentiationis intended to benefit a distinct class of industries
       and the life of the benefit is limited in terms of period. the benefit must
 D     be held to flow from a legitimate desire to promote industries within its
       territory. Grant of exemptions and incentives in such cases must be
       deemed to have been inspired by considerations which in the larger
       context help achieve the Constitutional goal of economic unity.

              134. Seen in the above context the decision in Mahabir Oil'.\·
 E     case is indeed distinguishable in as much as the manufactures of edible
       oil were exempt totally and unconditionally while other manufacturers
       from outside the State were not so exempt. Whether or not the impugned
       enactments in the present batch of cases satisfy the tests referred to
       above and elaborated in Video Electronics case is a matter on which
       we do not propose to express any opinion for that aspect is best left
 F
       open to be considered by the regular benches hearing these matters
       after the reference is disposed off.
              135. The other dimension of what according to the assesses
       amounts to discrimination lies in goods coming from outside the State for
       sale, consumption or use within a local area of another State being
 G
       subjected to an entry tax at a rate different from the one at which goods
       manufactured within the taxing State are taxed. We are not getting into
       the substantive or machinery provisions of the State enactments that
       levy entry tax 011 goods entering a local area. This can be done more
       appropriately by the bench hearing the matter after the reference has
 l-1
        JINDAL STAlNLESS LTD. v. STATE OF HARYANA                                   291
                    IT. S. THAKUR, CJI]


been answered. What we propose to examine is whether grant of                       A
exemption or adjustment/ setoff/ credit to goods produced or
manufactured within the taxing State can vis a vis goods coming from
outside the State constitute discrimination against such outside goods.
According to the assessee it does constitute discrimination against such
outside goods while according to the State any provision which is aimed             B
at equalizing the impact of taxes on goods after their production/
manufacture is legitimate and constitutionally permissible.
       1.36. The States argue that the grant of exemption to indigenous
goods is aimed only at neutralizing the impact of entry tax on those
goods, in cases where YArl Sales Tax payable on such goods is                       c
equivalent to the rate at which entry tax is chargeable. The exemption in
such cases has the effect of rendering the locally produced goods free
from entry tax liability. Jn cases where there is a difference in the rate of
VAT/ Sales Tax and ent1y tax adjustment/credit of the amount paid towards
VAT/ Sales tax has the effect of reducing the entry tax liability
proportionately. It is argued that so long as similar credit/adjustment/            D
setoff is made admissible to goods coming from another state there is no
question of any discrimination qua them. The rate of tax paid on such
goods in the state from where they are brought including the Central
Sales Tax, if any payable on the same may be equal to the entry tax
payable under the relevant statute in which case such outside goods also            E
enjoy the same advantage as goods manufactured in the taxing state,
dispelling any misconceived impression about any discrimination qua such
goods.
        1.37. The legal position as to the approach that courts adopt towards
fiscal measures while examining their constitutional validity is fairly well        F
settled by a long line of decisions of this Court. The Jaw on the su~ject is
so well settled that it calls for no elaborate discussion of the same. Cou1is
have almost universally accepted the principle that keeping in view the
inherent complexities of fiscal adjustments and the diverse elements and
inputs that go into such exercise a greater latitude is due to the legislature
                                                                                    G
in taxation related legislations. It is unnecessaty to refer to all the decisions
in which this Court has conceded such play at the joints to the legislature.
Reference to some of the decision of this Court should in our opinion
suffice. In Mafatlal v. Union of India 1997(5) SCC 536 in a separate
but concurring opinion Paripooman, J. held:
                                                                                    H
292            SUPREME COURT REPORI'S                         [2016] 10 S.C.R.


            "343 ... . Jn the matter of taxation lav.,s, th.e Court permits
            a grear laritude to the discretion to rhe legislature. The
            Srate is allowed to pick and choose districrs, ohjects,
            persons, 111ethod1· and even rate fhr raxation if it does
            so reasonah/\'. The Courts view the laws relating to
 B          economic activities with greater latitude than other
            matters. /See Collector of Customs v. Nat hella Sampathu
            Chell)" and Anr. AIR 1962 SC 316; Khyerhari Tea
            Company Ltd. and Am: i: State of Assam and Ors. AIR
            1961 SC 925; R.K. Garg v. U11io11 of India and Ors.
            AIR 1981 SC 2138; Gauri Shanker and Ors v. Union
 c          o{ India and Ors. ( 1994) 6 SCC 349 a11d Unio11 of
            lndia and A111: v. A. Sanyasi Rao and Ors. (1996) 3
            sec 465Jetc."

 I)         ,I 38. Reference may also be made to the Constitution bench
      decision of this Court in Khandige Sham Bhat v: Agrl. ITO, AlR 1963
      SC 591 where this Court declared that a law may facially appear to be
      non discrimination and yet its impact on persons and property similarly
      situate may operate unequally in which event, the law would offend the
      equity clause. This implies that facial equality is not the only test for
      determining whether the law is constitutionally valid. What is equally
      important is tl1e impact of the legislation. This Court held:


            "7 ... 71zou,f!,h a Im\" ex facie appears to treat all that fall
 F          within a class alike, if in effect it operates uneven!]' 011
            persons or property similarly situated, it may he said
            that the law offend1· the equality clause. Ir will then he
            the duty ol the court to scrutinise the effect of the law
            carefit!I)' to ascertain its real impact on the persons or
            property similarlv sitllated. Conver.1·el-y: a law may treat
 G          persons who appear to he similarly situate differently;
            hut on investigation they may hefound not to be similarlv
            situate. fo state it differently, it is not the phraseology
            of a statute that govems the situation hut the effect of
            the law thar is decisive. I{ there is equality and un!frmnity
 H
       JINDAL S"IAINLESS LTD. v. STATE OF HARYANA                                293
                    [T. S. THAKUR, CJl]

      within each group, the law will not he condemned as                        A
      discriminative, though due to some fortuitous
      circumstance arising out of" a peculiar situation some
      included in a class get an advantage over others, so
      long as they are not singled out for special treatment.
       Taxation law is not an exception to this doctrine vide
                                                                                 B
      Purshottam Govindji v. B.1\!l. Desai, and Kunnathat
       Thathuni Moopil Nair v. State ol Kera/a. But in the
      application of" the principles, the courts, in view of the
       inherent co111plexity of'fiscal adjustment of" diverse
       elements, permit a larger discretion to the legislature in
       the matter of' classification, so long it adheres to the                  c
      fimda111ental principles underlying the said doctrine.
       The power of" the legislature to classi[y is of" "wide range
       andflexihiliy" so that it can adjust its system of taxation
       in all proper and reasonahle ways. "
                                                                                 D

      139. In V. G11r11vial1 Naidu and Sons and ors. v. State of
Tamil Na du and ors, ( 1977) 1 SCC 234 the Court was examining
whether levy of sales tax on hides and skins from within or outside the
State was discriminatory and offensive to Article 304(a) of the
Constitution. Repelling the contention that it was violative ofArticle 304(a),   E
this Cou11 held:


        "8. None of" the circumstances which led this Court to
       strike down the relevant provisions in the                                F
       ahovementioned rn10 cases exists in the present case. In
       111ehtab '.~ case discriminarion was found to exist because
       of' the fact that tax was heing levied at the same rate in
       re.1pect of hoth raw hides and skins as well as dressed
       hides and skins, even though the price of" dressed hides
       and skins was much highe1: The position was worse in                      G
       the case of" Hajee Ahdul Shukoor hecause in that case
       the sales tax wasfound to have heen charged at a higher
       rate in respect of" dressed hides and skins than that on
       the sale of" raw hides and skins in spite of" the fact that
                                                                                 H
294     SUPREME COURT REPORTS                        [2016] 10 S.C.R.


A     the price of dressed hides and skin.1· H'as higher than
      that of mw hides and skins. The position in the present
      case is material!v different, jiH here the rate of sales
      tax fi;r mw hides and skins is 3 per cent, ·while that fi;r
      dressed hides and skins is 1112 per cent. It is plain that
 B    the lower rate of tax in the case of dressed hides and
      skins has heen prescrihed with a view to off1·et the
      difference between the higher price of dressed hides
      and skins and the lower price of raw hides and skins.
      No material has heen hrought on the record to shm1·
      that despite the lower rate of sales tax for dressed hides
 c    and skins, the imported hides and skins are heing
      suhjected to discrimination. 771e onus to show that there
      would he discrimination between the hides and skins
      which were purrhased locally in the ·raw form and
      thereafter tanned and the hides and skins which were
 I)   imported.from other States was upon the appellant. 771e
      appellant, we find, has failed to discharge such onus.
      9. Article 304(a) does not prevent levv of tax on goods:
      what it prohihit.1· is such levy of tax 011 good1· as would
      result in discrimination between goody imported.from
 E    other States and similar goods manufactured or
      produced ·within the State. The ohiect is to preve11t
      discrimi11otio11 against imported goods hy imposing tax
      on such gooc/.1· at a rate higher than that home hy local
      good\' since the difference betv\'een the two rates would
      constiwte a tariff wall or.fiscal harrier and thus impede
 F
      the fi'ee flow of inter-State trade and commerce. The
      question as to when the levy of tax would constitute
      discrimination would depend upon a variety of.factors
      including the rate of tax and the item of' goods in re.1pect
      of rhe sale of which it is levied. The scheme of items
 G    7(a) and 7(h) of the Second Schedule to the State Act is
      that in case of rmv hides and skins which are purchased
      local~)' in the State, the levy of tax would he at the rate
      of 3 per cem ar the point of' last purchase in the State.
      Whe11 those lncal~v purchased raw hides and skins are
 H
      tanned and ure sold locallv as dressed hides and skins.
             JINDAL STAINLESS Ll'D. v. STATE or HARYANA                       295
                         [T. S. THAKUR, CJI]

            no levy ivould he made on such sales as those hides               A
           a11d skins have already been suhjected to local tax at
            the rate of 3 per cent when they were purchased in raw
           form. As agai11st that, in the case of hides and skins
           ivhich have been importedfi'Oln other States in raw.form
           and are Ihereafter tanned and then sold i11side the State
                                                                              B
           as dressed hides and skins, the levv of the tax is at the
           rate of' 1112 per cent at the point of first sale in the
            State of the dressed hides and ski11s. This levy ca1111ot
            lie considered to he discriminat01:v as it takes into
           account the higher price of dressed hides and skins
            compared to the price of raw hides and ski11s. 'It also           c
           fill'ther takes 11ote of the fact that no tax under the State
           !let has heen paid in respect of those hides and skins.
            The legislature, it seems, calculated the price of hides
            and skins i11 dressed condition tri be double the price of
            such hides a11d skins in raw state. To ohviate and                D
           prevent any discrimination or differential treatment in
            the matter of levy of' tax, the legislature there.fore
           prescrihed a rate of tax for sale of dressed hides and
            skins which was half of that levied under Item 7(a) in
            re.1pect of' raw hides and skins. "
                                                                              E

             140. In Malwa Bus Service (Private) Ltd. v. State of Puniah
      mu! others (I 983) 3 SCC 237 this Court held that a difference in the
      rate of tax by itself cannot be considered to be discriminatory and
      offensive to the equality clause:


            "21. The next submission urged 011 hehalf of' the
            petitioners is based 011 hficle 14 of' the Constitution. It
            is contended hy the petitioners that the Act hv levying
            Rs 35, 000 as the annual fax on a motor vehicle used as           G
            a stage carriage hut only Rs 1500 per yem· on a motor
            vehicle used as a goods· carrier suffers .ftnm the vice C?f
            hostile discrimination and is, therefore, liahle to he
            stmck down. There is no dispute that even a fiscal
-,.                                                                           H
          296       SUPREME COURT REPORTS                             [2016] 10 S.C.R.


          A      legislation is suhject to Article 14 o(          .
                                                      . the Constitution.
                                                             .
                   But it is well settled that a legislature in order to tax
                  some need not tax all, It can adopt a. reasonable
                   c;lass(ficatio11 of persons and things in imposing tax
                   liahilities. A law of taxation cannot he tem1ed as being
           B       discriminatory hecause different rates of taxation are
                  prr;scrihed in respect of dif(etellf items, provided it is
                  possihle to hold that the said items belong to di.~tinct
                   and separate groups and that there is a reasonable nexr"
                   between the c/ass(fication and the object to he achieved
           c       hy the imposition of dijferellf rates o.f taxation. 171e mere
                  fact. that a tax falls more heavi~v on certain goodv or
                   persons may not result in its invalidity. As observed hy
                   this Court in Klumdige Sham Bhat v. Agricultural
                   lllcome Tax Officer in respect o.f taxation laws, the
                   power of legislature to dlassify good5, things or persons
           D       are necessarily 11'ide and flexible so as to enahle it to
                   adi11.1·t its svstem of taxation in all proper and reasonahle
                   ways.. The Co11rts lean more readily in favour of
                   upholding the constitutionality of a taxing law in view
                   of' the wmplexities involved in the .1·ocial and economic
           E       life of' the comm11nity. It is one of the duties of a modern
                   legislature to utilise the 111eas11res o.f' taxation i>lfroduced
                .• hy it for the p11rpo.\'e of achieving maximum social good
                   and one has. to tr11st the wisdom of the /egi.,lature ·in
                   this regard. Unless the jiscal law in q11estion is
                   manjf'estly discriminatory the court sho11ld refrain from
           F
                   striking it down on the ground o.f' discrimination. These
                   are some of'the hroad principles laid down hy this Court
                   ill several of' its decisions and it is unnecessary to
                    /Jurden this judgment with· citations. Applying these
                   principle.< it is seen that stage carriages which travel
           G       on an average ahout 260 kilometres every day on a
                   spectfied route or routes with an almost assured quant11m
                   o.l traffic which invariah/y is overcrowded helong to a
                   class distinct and separate from puhlic carriers which
                   earl}· good< on 11ndefined routes. Moreover the puhlic
           II     carrier.\· 111a_\' 1101 he operating eve1:r da)l in the State.


:::: ',
='
'I'.
=~
=I
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               297
                   [T. S. THAKUR, CJI]

      There are also other economic considerations which                       A
      distinguish stage carriages and public carriers from
      each other. The amount of wear and tear caused to the
      roads by any class of motor vehicles may not always be
      a determining factor in class!fYing motor vehicles for
      purposes of taxation. The reasons given by this Court                    B
      in GK. Krishnan case for upholding the classification
      made hetween stage carriages and contract carriages
      both of which are engaged in carrying passengers are
      not relevant to the case of a classification made between
      stage carriages which carry passengers and public
      carriers which transport goods. The petitioners have                     c
      not placed before the court sufficient material to hold
      that the impugned levy suffers from the vice of
      discrim"ination on the above ground. "

                                                                               D
       141. Seen in the context of the above, we are inclined to accept
the submission made on behalf of the State that so long as the intention
behind the grant of exemption/adjustment/credit is to equalize the fall of
the fiscal burden on the goods from within the State and those from
outside the State such exemption or set off will not amount to hostile
discrimination offensive to Article 304(a). Having said that, we leave         E
open for examination by the regular benches hearing the matters whether
the impugned enactment achieve the object of such equalization or lead
to a situation that exposes goods from outside the state to suffer any
disadvantage vis-a-vis those produced or manufactured in the taxing
State.                                                                         F
       142. We must, while parting, mention that learned counsel for the
parties had attempted to raise c,ertain other issues like whether the entire
State can be treated as a local area and whether entry tax can he levied
on goods imported from outside the country. We do not, however, consider
it necessary in the present reference to address all those issues which
are hereby left open to be decided by the regular bench hearing the
matter.
       143. With that observation the reference is answered. The Registry
shall now place the matters before regular benches for an expeditious
disposal of the same in the light of what has been observed by us above.       H
298             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A            S. A. BOBDE, J. 1. I am in respectful agreement with the
      Judgment of the Chief Justice, on the question that taxes are not
      restrictions on the freedom of trade, commerce and intercourse
      guaranteed by Article 301.
            Taxes are not restrictions on Trade
 B
             2. [n addition to the reasons stated in the judgment, it appears that
      there is a more fundamental reason why tax is not liable to be viewed as
      a restriction on the freedom of trade, commerce and intercourse. On
      the contrary it seems that a tax, such as the one we are concerned with
      is predicated on the freedom of trade and commerce. This is particularly
 c    true of an entry tax. [t is an impost levied on transactions which are
      entered into in the course of that freedom. ln fact, but for such freedom
      of trade there would be no transaction and no occasion for the levy of a
      tax. The levy of a tax is a distinct event from the transaction. Trade and
      commerce must take place to attract a tax. lJ ndoubtedly a tax may
 D    make the transaction less profitable to the extent of the tax. But that is
      far from being an impediment on the transaction which is part of trade,
      the freedom which is guaranteed under Article 301. It is not possible to
      readily conceive of a tax, which in itself, restricts or impedes the freedom
      of trade. The circumstances are much like the freedom of movement of
      an individual by a bus and the charge of a bus ticket for such movement.
 E    It can hardly be contended that the charge of a bus ticket impedes the
      freedom of movement.
              3. The other related contentions have been adequately dealt with
      by the Judgment of the Chief Justice and I fully subscribe to the same. I
      would also agree in this regard with the view of Sinha, CJ, in Atiabari
 F    that a tax is not a restriction. Sinha, CJ, observed that" ....... if a law is
      passed by the Legislature imposing a tax which in its true nature and
      effect is meant to impose an impediment to the free flow of trade,
      commerce and intercourse, for example, by imposing a high tariff wall.
      or by preventing imports into or exports out of a State, such a law is
 G    outside the significance of taxation, as such, but assumes the character
      of a trade barrier which it was the intention of the Constitution makers
      to abolish by Part-XIII". However, it is difficult to implement such a
      test since it does not disclose any objective standard for determining:
      when such a law would assume the character of a trade barrier. In
      principle, a tax cannot constitute a restriction on the freedom of trade,
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              299
                    [S. A. BOBDE, J.]

commerce and intercourse as held by Sinha, CJ. Therefore, it would not        A
be possible to construe a tax as a trade barrier merely because the rates
are high. As regards apprehensions expressed regarding high rates of
taxation, it would be apposite to rely on the observations of Marshall, CJ,
in McCul/oclt v. Maryland, 17 US 316 (1819), that the only security
against the abuse of such power lies in the structure of the government
                                                                              B
itself.
      Article 304 (a)
       4. In regard to the question whether the levy ofentry tax on import
of goods from outside the local area in the State will be per se
discriminatory if goods similar to those imported are not produced or         C
manufactured within the State, I find it difficult to agree with the
conclusion that a tax on goods imported into a State can be levied even
if similar goods are not manufactured or produced in the importing State.
I would agree with the conclusion drawn by Ashok Bhushan, J ., in this
regard.                                                                       D
       Article 304 reads as follows:


       "Restrictions 011 trade, commerce and intercourse
       anwng States.- Notwithstanding anything in Article 30 I
                                                                              E
       or Article 303, the Legislature of a State may by law-
       (a) impose on goods imported/ram other States [or the
       Union territories} any tax to which similar goods
       manufactured or produced in that State are su~ject. so,
       however, as not to discriminate between goods so                       F
       imported and goods so manufactured or produced; and
       (b) impose such reasonable restrictions on the freedom
       of trade, commerce or intercourse with or within that
       State as may be required in the public interest:
       Provided that no Bill or amendment for the purposes of                 G
       clause (b) shall be introduced or moved in the
       Legislature of a State without the previous sanction of
       the President. "

                                                                              H
300             SUPREME COURT REPORTS                            [2016] 10 S.C.R.



A            5. The non-discriminatory principle is embedded in two provisions
      of Part Xlll: Article 303 (1) - Parliament cannot impose restrictions
      under Article 302 and make a discriminatory law under any entry relating
      to trade and commerce; the other is Article 304 (a) which (unlike Section
      297 of the erstwhile Government ofindia Act, 1935 which prohibited -
      through a negative mandate, discriminatory treatment) empowers State
B
      Legislatures to impose non-discriminatory taxes on goods. Thus, Article
      3 04 (a) differentiates between discriminatory and non-discriminatory
      taxes. The premise underlying this provision is the paramount aim of
      Part Xlll to establish and foster economic unity of the country. Non-
      discrimination, or parity of treatment is therefore at the core of its purpose,
 c    which Shri T. T Krishnamachari stressed, in his speech in the Constituent
      Assembly. He said that "restrictions by the State have to he prevented
      so that the particular idiosyncrasy of some people in power or
      narrow provincial policies of certain States should not he allowed
      to come into play and affect the general economy of the country. "
 D    [Constituent Assembly Debates, 1139 (1949)].
              6. The Article, therefore, recognizes the power of a Legislature
      to a State to impose the tax on the imported goods so, however, as not to
      discriminate between goods so imported and goods so manufactured or
      produced. While there is no doubt that this Article recognizes the power
 E    to legislate on a State, it equally qualifies that power with the condition
      that such a law must comply with. That condition is that the law which
      imposes a tax on imported goods cannot "discriminate" between goods
      so imported and the goods so manufactured or produced. It also postulates
      that the tax on import is a "tax to which similar goods manufactured or
      produced in that State are subject." The Article thus imposes two
 F
      conditions: firstly, that a law may impose a tax on goods imported from
      other States, 'any tax' to which "similar goods manufactured or produced'
      in that State are subject. This clearly implies that the goods imported
      from other States may be subjected to a tax where similar goods are in
      fact, manufactured or produced in the importing State and are subjected·
 G    to tax. In other words, (a) the goods imported from other States must be
      similar to (b) the goods manufactured or produced in the importing State ·
      and (c) the goods so locally manufactured or produced must be subject
      to tax. The second condition is the tax that is imposed on imported goods
      should not discriminate between the imported goods and goods
 H    manufactured or produced in the importing State.
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                301



       7. The intention of the Article thus, clearly is that where a tax        A
exists on goods imported into a State there should be no discrimination
between such a tax and a tax on similar goods manufactured or produced
in the importing State. The reference point for tax on imported goods is
the tax on locally manufactured goods. lt is not possible to construe the
prohibition against discrimination where there is no tax upon similar goods     B
manufactured or produced in the importing State. Undoubtedly, the effect
of such a construction is that the imported goods cannot be taxed where
similar goods are not manufactured or produced in the importing State
and are therefore, not subjected to similar tax and that seems to be the
clear intention of this Article.
                                                                                c
      8. In the normal course, a State in which certain goods are not
manufactured would rely on the supply of such goods from other States
and the effect of this provision would be to make the goods so imported
available without the additional burden of tax. In sum, the premise on
which tax can be imposed is the existence of not mere taxes on goods
produced or manufactured locally, or the theoretical possibility of taxation,   D
to avoid the prohibition under Article 304 (a), but the actual production
or manufacture of similar goods, that are subject to like or similar tax.
Absent this condition, the levy would fall foul of Article 304 (a) since it
would constitute an additional burden (the goods already having suffered
some form of taxation in the producing state). This interpretation, in my        E
opinion would also further economic progress and the unhindered
availability of goods in states which do not have manufacturing capacities
and may not be able to develop it, having regard to lack of natural
resources or other geographical limitations. It also furthers the aims
underlying Article 301 of the Constitution ofindia.
                                                                                 F
       Conclusion .
      9. I answer Question No. I in the negative and I agree with the
conclusions drawn by the Chief Justice. I would also answer Question
Nos. 2, 3 and 4 in agreement with the Chief Justice.
                                                                                G

       SHIVAKIRTI SINGH,J. I. Since lam in respectful agreement
with the judgment by T.S. Thakur, CJI, I do not propose to go into whole
gamut of documents, materials, relevant constitutional provisions and
the precedents which have already been noticed not only by T.S. Thakur,
                                                                                H
302             SUPREME COURT REPORTS                           [2016) 10 S.C.R.



A     CJI, but also by N.V. Ramana, R. Banumathi, D.Y. Chandrachud, and
      Ashok Bhushan, JJ. in their separate detailed judgments, which I had
      the privilege to go through.
              2. While recording my agreement with judgment ofT.S. Thakur,
      CJI and other similar views, in the light of some of the differing judgments,
B     I feel it necessary to underline my understanding of the core issues and
      why they need to be answered in a particular way.
              3. The basic issue which has generated the present litigation arises
      out of a challenge to various taxing statutes enacted by several States to
      impose Entry Tax on goods in exercise of specific power available to the
 c    State legislature under Entry 52 of List II in the 7'h Schedule of the
      Constitution. If the Constitution Bench judgments in Atiabari's case
      and in Automobile Transport's case were not under doubt, then as
      per majority view in Atiabari's case one was required to apply the test
      of "direct or immediate" effect of Entry Tax. If it restricts freedom of
D     trade and commerce, it had to be struck down. Since such a view did
      not pennit certain levies imposed by the State legislature to provide better
      facilities for interstate trade and commerce, the concept of regulatory
      and compensatory taxation was advanced as a pennissible exception,
      by the majority view in Automobile Transport case. The purpose
      was to reconcile the freedom of trade and commerce stipulated by Article
 E    301 with the need ofresources for the States through imposition of taxes
      on trade and commerce. Such tax was held permissible if it was to
      provide facilities which would improve and help freedom of trade and
      commerce through activities such as construction and upkeep of roads
      and other similar facilities.
 F            4. As discussed in detail in the other judgments, ultimately States
      felt the need to exercise their legislative power to impose taxes even for
      general welfare measures and police duties. Resultantly it became more
      and more difficult to justify such tax as compensatory tax and such
      attempts brought excessive strain on the very concept of regulatory and
G     compensatory tax. On the one side Trade and Industry seriously criticised
      such attempts, inter-alia, on the ground that it blurs the distinction between
      compensatory tax and regular tax. On the other hand, the States
      comprising the Indian Union are clearly unhappy with the law settled in
      Atiabari's case as well as in Automobile Transport case which
 H    permits them·to impose taxes affecting freedom of trade and commerce
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                               303
                  [SHIVA KIRT! SINGH, J.]

but on the condition that it is actually by way of a fee, justified by some     A
sort of quid pro quo.
       5. In the above factual background the heavy burden that has
befallen on this nine Judges Bench is to interpret Articles 301 to 304
comprising Part Xlll of the Indian Constitution in a manner which is
justified both by the text as well as the historical context and also effects   B
the desired balance between the need of the country to have free
movement of trade and commerce on one hand and the sovereign taxing
powers of the States given to them by the Constitution on the other.
Limitation on such power must be explicit in the Constitution. For
 safeguarding freedom of trade and commerce, such limitation is to be           c
 found only in Article 304(a) of Part XIII of the Constitution.
       6. Answering the question No. 1 in the negative or in other words
declaring that levy of a non-discriminatory tax per-se does not violate
Article 301, in my opinion means that the majority view in respect of
limits in imposition of tax through legislation in Atiabari case (supra) as D
well as in Automobile Transport case is no longer a good law. Since,
in the matter oflevy of taxes the compensatory theory is no more relevant,
the State Legislatures are free to exercise their taxing powers without
the need of declaring and showing that taxes imposed by them on outside
goods are for the benefit of concerned traders or manufacturers. But
such tax must be, in essence, non-discriminatory, both, in the ultimate E
tax burden and in machinery provisions. To muster compliance with
Part XIII of the Constitution, the tax must pass the twin tests embodied
in Article 304(a) - (i) Similar goods produced locally must also be
subjected to similar tax and (ii) such state action should not attract the
vice of discrimination between the two varieties of goods.                  F
       7. The entire discussion in my view leads to a fair conclusion that
the views summarized by Sinha, CJI in paragraph 18 of his judgment in
Atiabari case depict the law emanating from Part XIII of the Constitution
in the correct perspective. However same cannot be said of observations
in paragraph 16 where His Lordship used the expression - "If a law is           G
passed by the legislature ....... imposing a high tariff wall--------assumes
the character of a trade barrier which it was the intention of the
Constitution makers to abolish by Part XIII." These observations do
create practical difficulties of insurmountable proportions. Hence these
deserve to be treated as obiter or interpreted ill the. light of the entire
                                                                                H
304              SUPREME COURT REPORTS                                   [2016] 10 S.C.R.


A     passage, to mean such taxes which impose an impediment to the free
      flow of trade, commerce and intercourse by creating discriminatory tariff
      wall/trade barrier (emphasis supplied). For Part XIII there can be no
      real impediment through tax unless the so called wall or barrier is one of
      hostile discrimination between local goods and outside goods.
 B

             N. V. RAMANA, J.
                                           TABLE OF CO:l'TL\1S

        PART-I:I!'iTRODFCTIO:'i                                  P.4R.4 1.1-l.3
 c
        PART-II: CASIIIlSTORY                                    PARA 2.1-2.3


        PART-Ill: ARGl11El\IS CA7\TASED                          P.4R.43.l-3.10

 D
        PART-IV: ~1£D FORRI\1EW                                  P.4RA 4.l-4.2

        PART-V: CO:\STITiiTIO:\•.\l. L\IIRI'RITATIOK             PAR.J 5.1-5.9


        PARr.\l:IXTRODt-CTIOXTOTAXATIOX Al\1HT$n!PORTi\:'iCE     PARA6.H.2
 E
        PART·\lI: FRilDOM OF TRADE, COli\!ERCEAXD
                                                                 PAR.47.l-7.41
        INTIRCOURSE


        PARMID:ARTICLE3040FIHECO:\STITFITO:'i                    P.4R.4 8.1-8.26
 F
        PART-IX:COXCLUSIOXS                                      PAR.J9.l-9.2

                                   PART - 1 : INTRODUCTION
             l. l I have had the privilege of going through the draft judgments
 G    prepared by the learned Chief Justice T.S. Thakur and my brother/sister
      judges. r am broadly in agreement with the conclusion of the learned
      Chief Justice on most of the issues. The erudite draft judgment of learned
      Chief Justice would in the usual course may not have warranted another
      concurring judgment. But when a Bench of nine judges of this Court
      has been assembled to consider the seminal issues that have been
 H
          JINDAL STAINLESS LTD. v. STATE OF HARYANA                                          305
                      [N. V. RAMANA, J.]

 bothering the nation for about fifty years and such issues have been                        A
 debated in the Court over a period of four weeks, many aspects having
 a bearing, canvassed about a constitutional question, a concurring
 judgment cannot be treated as a repetitive burden or a superfluous legal
 exercise.' Therefore I propose to deliver a brief judgment concurring
 with the judgment of the learned Chief Justice, giving my own reasons.
                                                                                             B
        1.2 As a caveat, I may mention that the contentious matter herein
 is important not on!y from the legal point of view but also for a common
 man who ultimately bears the tax burden. Secondly in constitutional
 matters, judgment with clarity is preferable to a judgment of wandering
 complexities. It is appropriate to quote Lord Denning2 He said-                             c

         '... I avoid long sentences like the plague: because
         they lead to obscurity. It is no good ifthe hearers cannot
         follow them ... I refer sometimes to previous authorities. I
         have to do so because I know people are prone not to                                D
         accept my views unless they have support from the books.
         But never at much length. Only a sentence or two ... I
         finish with a conclusion - and epilogue - again as the chorus
         does in Shakespeare. In it, I gather the threads together
         and give the result'.                                                               E
                                                      (emphasis supplied)
       Although I have tried in this Judgment to keep it as simple as
 possible yet sometimes legal jargon becomes unavoidable to keep the
   1
     Journey Started from Atiabari Tea Co., Ltd. Y. The State of Assam and Ors., A.LR        F
  1961 S.C 232 [hereinajier 'Atiahari '];continued in Automobile Transport (Rajasthan)
  Ltd. Y. The State ofRajasthan,A.l.R 1962 S.C 1406 [hereinafter 'Automohilel Doubted
  for first time in G. K. Krishnan v. State of Tamil Nadu, A.1.R 1975 S.C 583 [hereinafter
' 'GK Krishnan l Dilution of compensatory tax took place in Bhagatram Rajeev Kumar
  v. CIT, MP, 1995 Supp.(!) S.C.C 673 [hereinafter 'Baghatram ']and State of Bihar v.
  Bihar Chamber of Commerce and Otr., (1996) 9 S.C.C 136 [hereinafter 'Bihar Chamber
  of Commerce']. Further went back to old fonnulation in Jindal Stainless Ltd. And Anr.      G
  Y. State ofHaryanaand Ors.,A.l.R2006 S.C 2550 [hereinafter Jindal (2)]. Referred to
  larger Bench in JaiprakashAssosiates v. State of MP, 2009 (7) S.C.C 339 [hereinafter
   'Jaiprakash ']; further Constitution Bench has referred the matter before us in Jindal
  Stainless Ltd. And Anr. Y. State ofHaryana, 2010 (4) S.C.C 595 [hereinafter 'Jindal
  (3) '].
  'Lord Denning, Family Story, p. 207 (1999)
                                                                                             H
306                     SUPREME COURT REPORTS                                [2016) 10 S.C.R.



A      essence of the law.
              1.3 As detailed by the learned Chief Justice below the referral
       order formulated as many as twelve (12) questions. Nonetheless on very
       fir~t day with the consent of the learned counsels, we reframed these
       questions as under-
 B
                     !. Can levy of a non-discriminatory tax per se constitute infraction
                        of Article 301 of the Constitution of India?
                     2. If the answer to Question No. I is in the affirmative, can a tax
                        which is compensatory in nature also fall foul of Article 301
                        of the Constitution of India?
 c
                     3. What _are the tests for determining whether the tax or levy is
                        compensatory in nature?
                     4. Is the entry tax levied by the states in the present batch of
                        cases is violative of Article 30 I of the Constitution and in
 D                      particular have the impugned State enactments relating to entry
                        tax to.be tested with reference to Articles 304(a) and 304(b)
                        of the Constitution for determining their validity?
                          ·\
                                        PART II : CASE HISTORY
      If   2.1 Let me take up the first case in the batch of appeals (Civil
 E Appeal No. 3453 of 2002 (Jindal Stainless Steel Ltd. v. State of
    Haryana.). On May 5, 2000, the State of Haryana issued the Haryana
  , Local Area Development Tax Ordinance, 2000 (Ordinance No. 10 of
    2000). The Ordinance was later replaced by the Haryana Local Area
    Development Tax Act, 2000. Therein, a provision was made for levy
 F and collection of tax on entry of goods into local area. The validity of
    the said Act was challenged on the ground that it violated Articles 30 I
    and 304 of the Constitution. C. W.P. No. 6630 of 2000 (Jindal Strips
    Limited v. State of Haryana) and connected petitions were dismissed
    by the High Court on December 21, 2001 3 • Following the judgments of
 G this Court, inter alia, in Bhagatram and Bihar Chamber (~f Commerce,
    the High Court upheld the validity of the said Act. !twas held that the
    entry tax was compensatory as per parameters laid down by this Court
   ·in the said judgments and thus, did not violate Articles 301/304 of the
    Constitution. On appeal to this Court, the matter was referred to the
           3
               Jindal Strips Ltd. v. State ofHaryana, [2003] 129 S.T.C 534
 H
           JINDAL STAINLESS LTD. v. STATE OF HARYANA                                              307
                       [N. V. RAMANA, J.]

Constitution Bench in Civil Appeal No. 3453 of 2002 vide order dated A
September 26, 2003. The said order is reported as Jindal Stripe Ltd. v.
State of Haryana [hereinqfter 'Jindal (1)1 4 • On April 13, 2006, the
Constitution Bench delivered its judgment in Jindal (2), and 'reversed the
earlier judgments in Bhagatram and Bihar Chamber of Commerce.
The Constitution Bench laid down the ingredients of compensatory tax
                                                                           B
as being value of direct, measurable and quantifiable special benefits
provided by the State to tax-payers on the basis of equivalence. The
matter was thereafter placed before a Division Bench of this Court for
decision in the light of judgment of the Constitution Bench. On July 14,
2006, the Division Bench of this court in its order in Jindal Stainless
Ltd. v. State of Haryana5, observed that relevant data had not been c
placed before the High Court for detennining the nature of tax and asked
the High Court to deal. with the basic issue whether the levy was
compensatory in nature. Accordingly, the State filed data by means of
affidavits and vide order dated March 14, 2007 (reported as Jindal
Strips Limited v. State of Haryana, a Division Bench of High Court D
held that the levy was not compensatory in character and amounted to
restriction on free flow of trade and commerce and violated Articles
301 and 304 of the Constitution of India. On April 16, 2008, the State
of Haryana repealed the 2000 Act and enacted the Haryana Tax on
Entry of Goods into Local Areas Act, 2008, impugned in this Appeal.
                                                                           E
The High Court in Indian Oil Corporation v. State of Haryana6, declared
that the provisions of the Haryana Tax on Entry of Goods into Local
Areas Act, 2008 to be unconstitutional and void. The Punjab and Haryana
High Court invalidated the Haryana Act, the matters again came to this
Court in a connected matter being Jaiprakash Associates1 (A two judge
bench) referred ten questions to the constitutional bench. 8               F
 4
   2003 (8) s.c.c 60
 '2006 (7) s.c.c 271
°(2009) 21 V.S.T 10 (P&H)
7
  2009 (7) s.c.c 339.
 R   Questions are-
          1. Whether the State enactments relating to levy of Entry Tax have to be tested
          with reference to both Clauses (a) and (b) of Article 304 of the Constitution for       G
          determining their validity and whether Clause (a) of Article 304 is conjunctive
          with or separate from Clause (b) of Article 304?
          2.Whether imposition of Entry Tax levied in terms of Entry 52 List II of 7th
          Schedule is violative of Article 301 of the Constitution? If the answer is in the
          affirn1ative whether such levy can be protected if Entry Tax is compensatory in
          chara,cter and if the answer to the aforesaid question is in the affinnative what are
          the yardsticks to be applied to determine the compensatory character of the
          Entry Tax.
                                                                                                  H
308             SUPREME COURT REPORTS                                 [2016] 10 S.C.R.


A            2.2 One of the questions is whether State enactment relating to
      levy of entry tax has to be tested with reference to both Articles 304
      (a) and 304(b). When the matter was placed before the constitutional
      bench along with Jindal (3)9 , the constitutional bench was confronted
      with the arguments by the State that the tests propounded by the Atiabari
      and Automobile failed to strike a balance between freedom of trade and
 B
      commerce under Article 301 and taxing power of the State under Article
      246 r/w relevant legislative entries to the Constitution of India. The
      constitutional bench, found merit to refer to suitable larger bench for
      reconsideration of Atiahari and Automobile. For doing so support was

 c           3.Whether Entry 52, List II, 7th Schedule of the Constitution like other taxing
             entries in the Schedule, merely provides a taxing field for exercising the power
             to levy and whether collection of Entry tax which ordinarily would be credited
             to the Consolidated Fund of the State being a revenue received by the
             Government of the State and would have to be appropriated in accordance with
             law and for the purposes and in the manner provided in the Constitution as per
             A11icle 266 and there is nothing express or explicit in Entry 52, List II, 7th
 D           Schedule which would compel the State to spend the tax collected within the
             local area in which it was collected?
             4. Will the principles of quid pro quo relevant to a fee apply in the matter of
             taxes imposed under Part Xlll?.
             5. Whether the Entry Tax may be levied at all where the goods meant for being
             sold, used or consumed come to rest (standstill) after the movement of the
             goods ceases in the 'local area'?
 E           6. Whether the Entry Tax can be termed a tax on the movement of goods when
             there is no bar to the entry of goods at the State border or when it passes
             through a local area within which they are not sold, used or consumed?
             7. Whether interpretation ofArticles 301 to 304 in the context of Tax on vehicles
             (commonly known as 'transport') cases in Atiabari's (supra) and Automobile
             Transport's case (supra) apply to Entry Tax cases and if so, to what extent.
             8. Whether the non discriminatory indirect State Tax which is capable of being
 F           passed on and has been passed on by 'traders to the consumers infringes
             Article 301 of the Constitution?
             9. Whether a tax on goods within the State which directly impedes the trade and_
             thus violates Article 301 of the Constitution can be saved by reference to
             Article 304 of the Constitution alone or can be saved by any other Article?
             10. Whether a levy under Entry 52, List II, even if held to be in the nature of a
             compensatory levy, it must, on the principle of equivalence demonstrate that
 G
             the value of the quantifiable benefit is represented by the costs incurred in
             procuring the facility/services (which costs in turn become the basis of re-
             imbursement/recompense for the provider of the services/facilities) to be
              provided in the concerned 'local area' and whether the entire State or a part
              thereof can be comprehended as local area for the purpose of Entry Tax?
       2010 (4) s.c.c 595
      9


 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              309
                   [N. V. RAMANA, J.]

drawn from Keshav Mills 10, GK Krishnan. Dawoodi Bora 11 • That's             A
how the matter is before us.
       2.3 Entry tax is levied by the State ofHaryana under the provisions
ofHaryana tax on Entry of Goods into Local Areas Act, 2008. Section
3 of the Act contains the charging the provision which states that the
tax is levied 'for the purpose of development of trade, commerce and          B
industry and for creation and maintenance of infrastructure facilities for
free flow of trade and commerce in State'. Section 25 of the Act
provides that the proceeds of the levy shall be appropriated to a fund
notified by the Government and shall be exclusively utilized for the
development or facilitating the trade, commerce and industry in the State     C
and also inter alia provides benefits towards which the proceeds may
be applied. Most of the States in appeal have enacted similar provisions
under the impugned enactments.
           PART-III : ARGUMENTS CANVASSED
       ARGUMENTS OF PETITIONERS/APPELLANTS                                    D
       (ASSESSEE(S))
        3.1 Mr. Harish Salve, learned senior counsel argued as below-
       ~ That taxes generally amount to restriction but it is only such
          taxes that directly and immediately restrict trade that will fall
          within the Article 30 I. Applying this test the court can strike    E
          down the law as violative of Article 30 I unless saved by
          Atiicle 304(b).
       ~The result of reading Article 304(a) and (b) together appears
          to be that a tax can be levied by State on goods manufactured/
          produced or irnpo1ied in the State and thereby reasonable           F
          restrictions can be placed on the freedom of trade either with
          another State or between different areas of the same State.
       ~ The vital federal safeguard provided in the proviso is pervious
          sanction of the President. Article 30 I operates to restrict
          legislative power of State. Lastly, he argues that proviso of       G
          Article 304 can be read down in appropriate cases.
       ~In rejoinder he argues that as Article 304(a) of the Constitution

10A.l.R 1965 S.C 1636
112005 (2) s.c.c 673
                                                                              H
310           SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A envisages the rule of per se violation there is no question of impact
  test or comparative tax burden test under it as the text of the same
  does not accept such imterpretation.
         3.2 Mr. A. K. Ganguli, his main contentions are-
         ~ The Reference Order to a larger bench to 'reconsider' the

B            decisions in Atiahari and Automobile is not warranted and
             nms contrary to the settled law laid down by this Hon'ble Court
             as it constitutes a binding precedent under Article 141 of the
             Constitution.
         ~ Regarding the construction of Article 304 of the Constitution
             he submits that it is inherent in the drafting of the clause (a)
c            itself that both clauses (a) and (b) of article 304 are not
             mutually exclusive. It is submitted that clause (b) acts as a
             gateway to protect those laws which don't satisfy the dual
             conditions laid down in clause (a).
         ~ Further he supported the concept of compensatory tax which
D            has stood the test of time.
         3.3 Mr. T.R. Andhyarujina, learned senior counsel argues as
  follows-
         ~ That there is no requirement of reference to a larger bench
             as there is no public mischief being caused by the prior
E            Judgment. In alternative he submits that the compensatory
             taxes levied by the States would in a large measure negative
             the freedom of trade and commerce guaranteed by Article 301
             because there is no proof that the State will utilize the tax for
            .the improvement of trade facilities etc. Even assuming a State
             in the Act that the tax collected will be used for that particular
F
             purpose. A declaration to that effect would only mean a clever
             device to refute the abridgment of free trade.
         ~ Hence, it i.s his submission that where a State claims to have
             imposed a compensatory tax, it should not be permitted to
             impose a tax without complying with the requirement of Article
G            304(b). Otherwise according to him all taxes would be outside
             the purview of the freedom of trade by mere assertion as is
             done by 22 States that the tax is compensatory.
         3.4 Mr. Arvind P. Datar contends-
         ~That Concept of compensatory tax may be confined to Entry
H            no. 56 and 57 and not applied to any other tax/duty in
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                         311
                   [N. V. RAMANA, J.]

          State List.                                                      A
       > Further the working test contemplated in Automobile Case has
          not worked satisfactorily.
       > Neither the "direct or immediate effect" test of Atiahari nor
          the "working test" of Automobile Case is feasible in practice.
       > He suggested the bench to adopt "Appreciable Adverse Effect B
          on Trade & Commerce [AAETC]" borrowed from section 3
          of the Competition Act, 2002. The difference between
          enactment of AAETC before and after the impugned Law will
           provide the impact on Trade & commerce.
       > The Burden of Proof will be on the petitioner to establish, prima
          facie, to prove actual or potential_ AAETC.
                                                                           c
       3.5 Mr. S.K. Bagaria, learned senior advocate, Mr. J. Dhankar,
learned senior advocate, Mr. N. Venkatraman, learned senior advocate,
Mr. R. Srivastava, learned senior advocates, Mr. Dhruv Aggrawal,
learned senior advocate, Mr. Gopal Jain, learned senior advocate, Mr.
Tushar Mehta, learned Additional Solicitor General, Mr. Dilip Tandon, D
Smt. Suruchi Aggrawal, Mr. V. Lakshmikumaran for assesses have
either adopted the submissions made by the above named advocates or
provided alternative reasons for the conclusions reached by the
abovementioned advocates.
       3.6 Mr. Mukul Rohatgi, learned Attorney General of India E
submits-
       > That that power to tax is an incident of sovereignty provided
           under specific entries in List II. It is to be noted that such
           power cannot be suppressed even by the Parliament of India
           under our Constitution.                                         F
       > Part XIII generally does not deal with Taxes except in so far
           as Article 304(a). Part XIII is only concerned with deliberate
           discrimination. If discrimination is done for alleviation of
           economic condition than such a measure would not be covered
           under the mischief of Article 304(a).
                                                                           G
       >Furthermore 304(a) and 304(b) are disjunctive in which only
           (a) applies to taxes and (b) applied to non-fiscal measures. It
           is always assumed taxes are imposed in public interest and is
           reasonable. Therefore inclusion of taxes under Article 304(b)
           would be an exercise in redundancy which will never be the
                                                                           H
312       SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A         intention of our Constitution framers. Therefore, Sovereign
          power of the State cannot be made a plaything of Executive.
      ~ Federalism is to be disjointed from economic unity. Patt XIII
          and Part 111 are at different pedestal. Part Ill is individualistic
          in nature and has sufficient remedies to cover excessive
 B        taxation and other burdens.
      ~   Moreover, Hon'ble C .J Sinha's View in Atiahari has not
          required any reconsideration and the same should be followed
          even by this court. He submits that any test under attic le 301
          will have to draw a line as to when taxes become Trade
 c        barriers. Such examination by Courts is not warranted.
      »Part XIII has its origin in section 297 of Government of India
        Act 1935. It is to be noticed that earlier Atticle 301 was present
        as Article 16 under Part III of Constitution which was
        subsequently taken out.

 D    ~ The source of Power to tax is present both under Article 245
          as well as Article 246. We should not separate Article 246 and
          read taxing power only under 246. He argues that our
          Constitution is organic and flexible document which was
          considerate about providing level playing field to various States.
          He lastly argues that Video Electronic Case should be upheld.
 E
      ARGUMENTS OF RESPONDENTS (STATES/
      AUTHORITIES)

      3.7 Mr. P. P. Rao, learned senior counsel contends-
 F    ~ that scope of Entry 52 of the Stak List cannot be reduced.
      ~ Discrimination only arises if goods are available. If no tax can
          be imposed on the ground that there is no production that
          consumer state loses their revenue and the same is detrimental
          to the existence of very State itself. Therefore, the
 G        interpretation that sub-serves the intent and autonomy of State
          should be adopted in a Federal Constitution.
      >- that 304 (a) is not a patt of 301 and the only restriction on
          imposition of ta...: is article 304(a) of Constitution.
      ~He argues that inclusion of taxes under article 304(b) was never
 H        argued before the bench of Atiahari. The observation in
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                              313
                  [N. V. RAMANA, J.]

        Atiahari is per in curium as there was no discussion or              A
        deliberation regarding the same.
     3.8 Mr. Rakesh Dwivedi, learned counsel submits-
      >-That Part XllI is not a basic feature of the Constitution and
         every provision of Constitution though important cannot be
         elevated to the pedestal of basic feature. Economic Unity is        B
         not defined and for trade, commerce and intercourse political
         unity is equally important.
      >- If Article 19(1)(g) is explicitly given to citizens, Article 301
         cannot be expanded to give same right to foreigners.
      >-"Free" in Art 301 does not mean free from Taxation.                  C
      >-"Subject to" is the dominant expression inArt 301 and indicates
         subservience to at least Art 302, 303 and 304. Art 302-304
         are mere restatement of powers under Art 246 r/w VII
         schedule with some limitations. Each restated power by itself
         ovetTides the freedom in Art 301.                              D
      >-The equation between compensatory tax and fee is inconsistent
         with the Scheme of our Constitution which specifically draws
         distinction between two concepts.
      >- The judgments of Atiahari and Automobile etTed in reaching
         the concepts of direct and immediate impediment and                 E
         compensatory Tax.
      >- Further subjecting taxing power to executive clearance under
         Article 304(b) will not be justifiable as assent of the President
         cannot be reviewed.
                                                                             F
      3.9 Mr. Shyam Divan, learned senior counsel argues that-
      >- The wordings of Article 301 are free from protectionist barriers.
      >- Tax is obviously a restriction which would require this court
          to examine the height of the batTier on a case to case basis.
      3 .10 Mr. Dinesh Dwivedi, learned senior counsel, Mr. S. V. Giri, G
learned senior counsel, Mr. A. K. Sinha, learned senior advocate, Mr.
J. K. Gilda, learned Advocate General of State of Chhattisgarh, Mrs.
Madhvi Divan, assisting the learned Attorney General of India, Mr.
Devdutt Karnath, learned Additional Advocate General for the State of
                                                                             H
314              SUPREME COURT REPORTS                                  [2016] JO S.C.R.


A     Karnataka, Mr. S. S. Shamshery, learned Additional Advocate General
      for the State of Rajasthan, have either adopted the submissions made
      by the above named advocates or provided alternative reasons for the
      conclusions reached by the abovementioned advocates.
                         PART - IV : NEED FOR REVIEW
B         4.1 The learned counsel for the dealers/assesses argued for
   rejection of the reference itself. Shri T.R. Andhyarujina and Shri A.K.
   Ganguli, Learned Senior Counsel submitted that the doctrine of direct
   and immediate effect as well as compensatory tax which furnish a
   workable test vis-a-vis validity of a tax law in the context of inter-State
 c trade are sound. Therefore, there is no need to review the decisions in
   Atiabari and Automobile. They would urge that these two decisions
   have been followed by this Court in half a dozen judgments and by
   various High Courts, and therefore, the ratio therein acquired the status
   of stare decisis. According to them, in the absence of any compelling
   changes in the Constitution or the law, the reference may not be
 D
   necessary. They would point out that after the decision in Automobile,
   every State which made law for the levy of tax on entry of goods,
   declaring such tax to be compensatory so as to save such law from the
   effect of Articles 301 and 304 of the Constitution. We have given our
   earnest and anxious consideration to these submissions and arc not able
 E to agree with any of these contentions.
           4.2 This Cou11 has over-ruled approximately 60 Constitutional
      judgments in its 60 years of existence", which is an impressive rate in
      itself, considering the fact that our nation is comparatively young and is
      developing jurisprudence in many aspects. Fmther it is interesting to note
 F    that there are only Seventeen Judgments of this Com1 with nine or higher
      beneh strength. 13 [t is further important to note that most of the times
         A. Lakshminalh. Precedent in lndia (3rd Ed.) p. 178 (2009)
      "Jn re Sea Customs Act. A.LR l 963 S.C 1760 (9 judge bcrn;h): State Trnding Corp. of
      India Ltd. v. C"l'O, A.LR l 963 S.C 181 l (9 judge bench): Golaknath v. State of Punjab.
      A.LR 1967 S.C 1643 (hereinafier '(iolak Nath') (l l judge bench): Naresh
 G    ShridharMin\jkar v. State ofMaharastra. A.LR 1967 S.C I (9judgc bench): Suptd. And
      Remembrancer of Legal Affair v. Corp. of Calcutta. A.LR 1967 S.C 997 (9 judge
      bench); RC Cooper v. UOl. ( l 970) l S.C.C 248 (I I judge bench); Madho Rao Jiv;\jiScindia
      v. Union oflndia. ( 197 l) I S.C.C 85 ( 11 judge bench): Kcsavananda Bharti v. State of
      Kerala, 1973 4 S.C.C 225 (hereinafter Keshdvananda Bharti) ( 13 Judge
      bench): Ahmedabad St. Xavier Collage Society v. Stale of Gujarat, ( 1974) l S.C.C 7 l 7
      (9 judge bench); Indira Sawhncy '" Uol, 1992 Supp. (3) S.C.C 215 (9 judge
 H    bcnd1): Supreme Court Advocates on Record Association v. Uol. ( 1993) 4 S.C.C 441
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                     315
                    [N. V. RAMANA, J.]

nine judge bench decisions have led to change in law by legislative A
measure like Madhav Rao Scindia 14 , R.C. Cooper 15 etc. All this points
out that the exercise of constituting higher bench strength has taken place
where there is grave need for settling the issue which caused grave
mischief to the general-public at large. These numbers speak ofrestraint
in over-ruling its own decisions. When Atiahari was decided, States B
sovereign power to levy tax within its permissible Constitutional
competence stood curtailed. Probably, for this reason, two years after
the decision in Atiabari came the decision in Automobile on the premise
that the ruling in Atiabari was insufficient. Indeed, Automobile added
new dimension to the tax by introducing the doctrine of compensatory
tax which is very conspicuous in the Constitutional scheme by its c
absence. The judicial innovation of compensatory tax was seemingly
to unfetter the State's power to some extent the levy of taxes on entry
of goods. There is no gainsaying that Part Xlll nowhere, much less
Article 301 either expressly or impliedly contemplate compensatory tax.
The workable test of compensatory tax to comply with the Constitutional D
principle was doubted within a decade of the decision in GK. Krishnan
(1974), followed by the decisions in Bhagat Ram and Bihar Chamber
of Commerce. From 1960 to 1996, there remained uncertainty with
regard to the power of the State to levy tax as per entry 52 of the State
List and principle of compensatory tax to immunize such entry tax from
                                                                            E
the perceived injunctive rigor of Articles 301 and 304(a). Thus, it would
not be sound to argue that the principle laid down in Atiabari that is
 "direct and immediate effect" and doctrine of "compensatory tax"
 evolved in Automobile attained any finality. Further even in Jindal (2),
 the aspect of compensatory tax was doubted by Justice S. H. Kapadia
 also (as his lordship then was). Therefore, this cannot be a ground to F
 doubt the sound reasoning in the referral order of five Judges Bench of
 this Court in Jindal (3). Thus there is a need for review.


(9 judge bench); SR Bommai v. Uol, (I 994) 3 S.C.C I (hereinaper 'S.R. BonmaiJ(9
judge bench); Attorney General of India v. AmritlalPrajvandas (1994) 5 S.C.C 54 (9
                                                                                      G
judge bench); Mafatlal Industries v. Uol, 1997 (5) S.C.C 536 (9 judge bench); NMDC
v. State of Punjab, (I 997) 7 S.C.C 339 (9 judge bench); TMA Pai Foundation Case,
(2002) 8 S.C.C 481 (II judge bench); LR. Coelho v. State of TN, (2007) 2 S.C.C 1 (9
judge bench).
 14
    A.LR 1971 S.C 530
 i; A.LR 1970 S.C 564
                                                                                      H
316               SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A              PART-V: CONSTITUTIONAL INTERPRETATION
             5.1 The resolution of constitutional litigation ultimately rests upon
      the plain language of the text. In the event of vagueness in the language
      or when the language is capable of two different meanings it is not a
      bar to analyze the context"'. In interpreting the constitutional text the
 B    court may not feel shy of using all the tools and employing all the aids
      of construction. The Learned Chief Justice has elaborately analyzed
      various provisions in Pa11 Xlll and dealt with contextual aspects to see
      whether the contextual aspects match the textual. I am in respectful
      agreement with the nine postulations summarized by the Learned Chief
 c    Justice regarding the purport of Article 30 I, 302, 303 and 304.
              5.2 Apart from the general principles of interpretations in my
      considered opinion, the relevant provisions of the Constitution especially
      those relating to legislative powers, the provisions limiting those powers.
      the external aids like Constituent Assembly Debates, other documents
 D    and the pi:.ecedents are required to be considered. Be that as it is, it is
      a settled proposition that generally the construction of the Constitution
      must be most beneficial and widest possible amplitude. The court must
      gather from the spirit of the Constitution and the language must not be
      construed in a narrow and pedantic manner. In re CP and Berar Act,
      1938' 7 , Gwayer CJ., summed up this principle in the following manner-
 E

               ... the Court should seek to ascertain the meaning and
               intention of Parliament from the language of the statute
               itself; but with the motives of Parliament it has no
 F             concern .... The Constitution is not to be construed in any
               narrow and pedantic sense .... A broad and liberal spirit
               should inspire those whose duty it is to interpret it; but I
               do not imply by this that they are free to stretch or pervert
               the language of the enactment in the interests of any legal
               or constitutional theory, or even for the purpose of supplying
 G             omissions or of correcting supposed errors.
            5.3 Equally important point is that legislative powers especially
      taxing powers cannot be tested by implication. Unless there is express
      "RBI v. Pearless General Finance, A.LR 1987 S.C l 023
      17
           1939 F.C.R 18
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                             317
                    [N. V. RAMANA, J.]

 limitation on the power of the State to enact the State law, it is not the   A
 province of the court to curtail the power of the state by interpretative
·process. We have reached a stage that every law must be tested with
 reference to preamble and Directive Principles of State Policy. As held
 in Atam Prakash v. State of Haryana [herein after 'Atam PrakashT 8
 , if preamble is the guiding light Directive Principles of State Policy is   B
 the book of interpretation, this was lucidly explained in A tam Prakash.


       'The Preamble embodies and expresses the hopes and
       aspirations of the people. The Directive Principles set out
       proximate goals. When we go about the task of examining                c
       statutes against the Constitution, it is through these glasses
       that we must look, 'distant vision' or 'near vision'. The
       Constitution being sui-generis, where Constitutional issues
       are under consideration, narrow interpretative rules which
       may have relevance when legislative enactments are                     D
        interpreted may be misplaced. Originally the Preamble to
       the Constitution proclaimed the resolution of the people of
       India to constitute India into 'a Sovereign Democratic
       Republic' and set forth 'Justice, Liberty, Equality and
       Fraternity', the very rights mentioned in the French
        Declarations of the Rights of Man as our hopes and                    E
        aspirations. That was in 1950 when we had just emerged
        from the colonial-feudal rule. Time passed. The people's
        hopes and aspirations grew. In 1977 the 42nd amendment
       proclaimed India as a Socialist Republic. The word
        'socialist' was introduced into the Preamble to the                   F
        Constitution. The implication of the introduction of the word
        'socialist', which has now become the center of the hopes
        and aspirations of the people a beacon to guide and inspire
        all that is enshrined in the articles of the Constitution, is
        clearly to set up a "vibrant throbbing socialist welfare
                                                                              G
        society" in the place of a "Feudal exploited society".
        Whatever article of the Constitution it is that we seek to
        interpret, whatever statute it is whose constitutional validity

 " (1986) 2 s.c.c 249
                                                                              H
318               SUPREME COURT REPORTS                                   [2016] 10 S.C.R.



A             is sought to be questioned, we must strive to give such an
              interpretation as will promote the march and progress
              towards a Socialistic Democratic State.' 19
             5.4 Our constitutional history shows that we at one point had
      rigorously defended individualistic rights rror ex. Right to Property].
 B    Slowly we have moved towards community rights by invoking Directive
      Principles of State Policy as a tool to judicially interpret Part Ill of the
      Constitution. Directive Principles of State Policy is a normative goal in
      the Constitution. Such important part cannot be restricted to only Part
      III interpretation and reduced to two wheels of Chariot20 rather it is
 c    like a bright sun which should shine in every part of the Constitution.
             5.5 Before consideration of legal aspects, we need to passingly
      refer to certain factual scenarios which may be pertinent to the issues
      of economic unity, balanced growth and development of all regions of
      India. India that is Bharath is said to be a Country with economic unity.
 D    But such asse1iion cannot be sustained for the reason that 82.5° Meridian
      or Indian Standard Time line seems to starkly divide India broadly as
      atTiuent West and destitute East. Top 5 states share 44.87% of India's
      total economy. 2 ' Five states of South India share 25.98%. 22 Eight States
      of North-East India share only 2.64% ofeconomy.23 13 States/UTs have
      Gross State Domestic Product less than Rs. I lakh Crore?' While the
 E    gro\\ih in 2013-14 in Maharashtra was pegged at 8. 71 % while Rajasthan
      recorded mere 4.6% gro\\ih at 2004-2005 prices. 25 As per Tendulkar
      formulation Bihar has 54.4% population below poverty line while Jarnmu
      Kashmir has only 13.2%."' Population in Uttar Pradesh was pegged at

 F    19
           Ibid.
      "'Minerva Mills v. Union of India. A.LR 1980 S.C' 1789
      21
          NIT! A:iyog (last visited on 15.10.2016): http://niti.gov.in/statc-statistics. Relevant
      table is http://niti.gov. in/content/gsJp-constant-2004-05 priccs-2004-05-20 14-15
      "Ibid.
      13
          Ibid.
      " Ibid.
G     2
        ; NitiAayog, GSDP and at constant prices, percent growth available at table (last

      visited on 15. l 0.2016): http://niti.gov.in/content/gsdp-constant2004-05prin:s-perccnt-
      growth-2004-05-2014-15
       "' Tendulkar committee report. The table is available at PRS website (last visited on
      15. l 0.2016 ), http://www.prsindia.org/theprsblog/?tag=tendulkar-eommittec


H
           JINDAL STAINLESS LTD. v. STATE OF HARYANA                                         319
                       [N. V. RAMANA, J.]

199,812,341 while Kerala is 33,406,061, as per Census 2011. 27 Literacy A
Rate in Kerala is 94% while in Bihar its 61 %. 28 Sex ratio in Kerala is
1084 while in Haryana is 879.' 9 In Andhra Pradesh 12.04% live in slums
whereas in Assam only 0.63% live in slums."' The Utility of the Union
to attain political and economic prosperity does not reflect in the figures
or statistics so portrayed above. All is not lost in what we have achieved. B
We have stood with each other and for what is right? We have enacted
laws and struck them down for right reasons. We have been beaten
down but never gave up. We have braved poverty and hunger. We have
cared about neighbors and have strived to be a welfare State. We have
constructed great many things and achieved many more. We have
advanced on scientific fronts and reached distances in universe which c
were unfathomable five decades back. We have earned a respectable
name in the international scenario. We have produced great artists, many
 leaders and great men. We were not scared so easily by any adverse
situation. First step in solving any problem troubling the present is
recognizing that there is one India but India as a union of States. States D
 being independent entities under the Constitution require resource to
 perform their duties under the Constitution.
        5.6 Before a detailed discussion on legal fronts of this Case it is
 necessary to consider certain Constitutional principles and ethos. On
considering the scheme of the Constitution, the power of Union and State
                                                                            E
 are parallel. The Parliament as a super-legislature over State assemblies
cannot be accepted. On legislative front, demarcation of power is
 apparent from the language of Article 246 read with VII Schedule of
the Constitution. People have vested the power in States to administer
 and provide welfare measures. For this process it is the State
27
     Uttar Pradesh. Census of111dia (last visited 011 15. I0.20 16)                          F
http://c~nsusindia.gov. i n/20 11 census/ccnsusi nfodashboard/slock/pro fi Ics/en/
IND009 Uttar%20Pradcsh.pdf
Kerala
http:/ /censusind ia. gov. in/2011 census!ccnsusin fodashboard/stock/profi !cs/en/
!ND032 Keraln.pdf
"(last visited on 15.10.2016) http://ccnsusindia.gov.i11/201 l-prov-rcsulls/data Jiles/
india/Final PPT 2011 chapter6.pdf                                                            G
29
    Kcrala Slate Profile. Census of India (last visited 011 15.10.2016)
http:// census ind i a. gov. i n/20 I I census/census in fodash board/stock/pro fi ks/ en/
IND032 Kcrala.pdf
Haryana state profile, Census of India
http://censusindia.gov. in/20 11 ccnsusiccnsusin fodash board/stock/profi ks/en/
IND006 Haryana.pdf
 30                                                                                          H
    (Last visited on 15.10.2016) htlp://www.ccnsus2011.co.in/slums.php.
320                SUPREME .COURT REPORTS                             [2016) 10 S.C.R.



A     Government which has been elected by the people to administer by
      taking into consideration priorities and peculiarities of that particul.ar
      region.
              5. 7 This Constitutional principle should not be ignored while
      imposing restrictions on the State. While feeling happy that we are one
 B    nation, we must not ignore the State rights. The facts and realities cannot
      be forgotten in the first place. The Union does not exist in isolation
      rather it is a co-operative association of the States. Taking into
      consideration of various problems faced and differences which exists
      between the States, importance of State's power to tax cannot be
      ignored or stifled. Poverty, unemployment, backwardness and adverse
 c    climate etc. are running amok within our Country. Natural calamities,
      insurgencies and extremism are confronted by certain States. Over-
      growth and industriallzation have taken place only in some places whereas
      rest of the country is reeling under under-development because of
      various facts such as geographical positioning, colonial establishments
 D    and discriminatory policies that have resulted in concentration of wealth
      in only certain affluent areas. No State, in this grand Union, should be
      made to feel discriminated and embarrassed because of the mere fact
      that history has not been congenial to them and have remained under-
      developed. Any restriction imposed should not come in the way of natural
 E    development of a State on the ground that it creates barriers for free
      movement of the goods and trade. All States must be provided an equal
      level playing field for development and opportunities. This was the grand
      intention of the framers of our Constitution to not make a lassiezfaire
      State. 31 Detem1ined to make our Country a co-operative federalist, our
      framers set definite rules to achieve the objective. Through
 F    interpretation, Constitution cannot be re-constructed so that the goal
      envisaged by our framers will be more fully achieved by such
      construction. Such measure would not be justified in light of clear
      demarcation of functions bequeathed by our Constitution.
             5.8 The Union and the States are co-equal in the Indian Federal
 G    structure. Our framers created a unique federal structure which cannot
      be abridged in a sentence or two. The nature of our federalism can
      only be studied having a thorough understanding of all the provisions of
      the Constitution. Confinnation that the Union and States are co-equals

H
      31   Constituent Assembly Debate, Vol. IX, September 8, 1949.
            JINDAL STAINLESS LTD. v. STATE OF HARYANA                                            321
                        [N. V. RAMANA, J.]

in the Indian federal structure. can beJ:Ound in the speeches of Hon'blc                         A
P.S. Deshmukh, Shri. ...T.... -T. Krishnamachari and Hon'ble Dr. B. R .
                              ~   ;

Ambedkar32 before the Constituent Assembly. Common philosophy
which runs through our Constitution is that both Center and States have
been vested with the substantial powers which are necessary to
preserve our unique federation wit~ clear demarcation of power. Calling                          B
India as quasi-federal might not be advisable as our features are unique
and quite different from other Countries like United States of America
etc. Courts in India should strive to preserve this unique balance which
our framers envisaged, any interference into this balancing act would
be detrimental for grand vision proscribed by our makers. 33 Amphibious
nature of our federalism has been even noted by the Sarkaria                                     c
Commission Report on Center-State relationship. Co-operative
federalism envisaged under our Constitution is a result of pick and choose
policy which our framers abstracted from the wisdom of working
experience of other Constitutions. Some Judgments which are illustrative
of nature of federalism in India are (i)West Bengal (6 Judge Bench), a                           D
case relating to the power of Union to acquire land and right in and
over the land, which are vested in State. This case produced two
     There is on~v one point ofConstitutional import to which I propose to make a rejerence.
32

A serious co1nplaint is nlade on the ground that there is too niuch ofcentralization and
that the States have been reduced to Mu11ic1j1alities. ft is clear that this view is not only
an exaggeration. but is also founded on a misunderstanding of what exoctly the                   E
Constitution contrives to do. As to the relation belll'een the center and the States. it is
necessary to bear in mind the fundamental principle on which it rests. The bf/sic principle
o(Federa/ism is that the legislative and executive a11tlwritv is partitioned betwee11
the center 111111 the States not bv 1111r law to be made hi' the center but the Co11stitutio11
itself.This is wit at the Constitution does. Tlte States, under our Co11stitutio11. are i11
no wav dependent upon the center for tlteir legislative or executive authoritr. The
center mu/ t/Je States are CO·EOUAI. in this matter.It is difficult to see !tow such a
                                                                                                 F
Co11stit11tio11 can be called centralism. It may be that the Constitution assigns to the
center too large afield/or the operation ofit.1· legislative and executive authority than is
to befotmd in any other Federal Constitution. ft may be that the residua~v po1,.ers are
given to the center and 110/ to the States. But these features do not form the essence
ojfederalism. The chi~f'mark offederalism, as I said lies in the partition a/the legislative
and executive authority benveen the centre and the Units by the Constitution This is tl1e        G
principle embodied in our Constitution.
(Emphasis Supplied)
 13
 • State of West Bengal v. Union of India. [1964[ I S.C.R 371 [herei1111/ter 'fl'est

Bengal'), S. R. Bommai, State of Karnataka v. Union of India and Anr.. [1978) 2
S.C.RI. (Special Reference No. l of 1964) AIR I 965 SC 745. ITC Ltd. v. Agricultural
Produce Market Committee and Ors, (2002) I S.C.R 441 [hereinajier 'ITC'].
                                                                                                 H
322               SUPREME COURT REPORTS                      [2016] IO S.C.R.


A     opinions, one by"t. J. B.P. Sinha (majority opinion) and other by K.
      Subba Rao J. (dissenting opinion). As per the majority, there is
      undoubtedly distribution of powers between the Union and the States
      in matters legislative and executive; but distribution of powers is not
      always an index of political sovereignty. The exercise of powers
      legislative and executive in the allotted fields is hedged in by numerous
 B
      restrictions, so that the powers of the States are not coordinate with
      the Union and are not in many respects independent. Minority Judgment
      held that the Indian Constitution accepts the federal concept and
      distributes the sovereign powers between the co-ordinate constitutional
      entities, namely, the Union and the States. This concept implies that one
 c    cannot encroach upon the governmental functions or instrumentalities
      of the other, unless the Constitution expressly provides for such
      interference. ln (ii) Kesavanada Bharathi v. State of Kera/a
      [hereinafter 'Keshvanada Bharathi']34, majority held that the power
      conferred under Article 368 of the Constitution was not absolute. They
 D    took the view that by an amendment, the basic structure of the
      Constitution cannot be damaged or destroyed. And, as to what are the
      basic structures of the Constitution, illustrations were given by each of
      these Judges. They include supremacy of the Constitution, democratic,
      republican fonn of Government, secular character of the Constitution,
      separation of powers among the legislature, executive and judiciary, the
 E
      federal character of the Constitution, Rule of Law, equality of status
      and of opportunity; justice, social, economic and political; unity and
      integrity of the nation and the dignity of the individual secured by the
      various provisions of the Constitution. ln (iii) S.R. Bommai, this Court
      while detennining the constitutional validity of emergency proclamations
 F    issued by the Centre in various States observed that federalism, as
      understood by the American Scholars is absent in Indian Constitution
      which is more of a hybrid of pure federalist character and pure unitary
      character. However, the distribution of powers must not be rubbished
      out as being absent. It was observed by Ahmadi J. that in order to
 G    maintain the unity and integrity of the nation our founding fathers appear
      to have leaned in favour of a strong Centre while distributing the powers
      and functions between Centre and the States. But the essential
      characteristics can be understood by knowing the "effects" of such a
      system. As per Sawant and Kuldip Singh JJ: The features in the
      14   1973 (4) S.C.C 225
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             323
                   [N. V. RAMANA, J.]

Constitution which provide the Centre with overriding powers A
over the states is only an exception and are not normal features
of the Constitution. K. Ramaswamy J., observed that Indian
Federalism places the nation as a whole under control of a national
Government, while States are allowed to exercise their sovereign power
within their legislative sphere. As per Jeevan Reddy and Agrawal, JJ.
                                                                             B
the bias in favour of the Centre does not make the states mere
appendages of the Centre. States are supreme in the sphere allotted
to them. The ultimate conclusion reached by this Court was that the
fundamental feature of federalism being that irrespective of each list,
each legislature is supreme. In (iv) ITC, the majority led by Justice Ruma
Pal held that the Constitution of India deserves to be interpreted in a c
manner that· it does not whittle down the powers of State Legislatures
and preserves the federalism while also upholding the central supremacy
as contemplated by some of the Articles. In (v) State of West Bengal
v. Kesoram Industries Ltd. 35 , it was concerned with Entries 52, 54 and
97 in List I and Entries 23, 49, 50 and 66 in List II of the Seventh D
Schedule to the Constitution of India as also the extent and purport of
the residuary power of legislation vested in the Union of India. Wherein
it was observed therein that federalism is one of the basic pillars of the
Indian Constitution and that having regard to Articles 245, 248, 250, 256,
257, 356 and Entry 97 in list I of the seventh Schedule of the Constitution,
                                                                             E
it is not possible to say that India is not a subscriber to federalism but
although having unique federal character it can, be said to be quasi-
federal or hybrid federal State. Thus constitutional courts have
interpreted that India has a federal polity and that each State has
independent constitutional existence assigned with important role of
Constitutional governance.                                                   F
      5. 9 In view of these aspects, we need to consider the
controversies in these cases and interpret relevant provisions of the
Constitution in light of following rules and principles, which are-
       1. That Directive Principles of State Policy should be utilized for
                                                                             G
          interpreting every part of the Constitution. and
       2. In a federal Constitution, an interpretation which preserves the
          State's power should be preferred.

"A.LR 2005 S.C 1646
                                                                             H
324             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A          PART-VI: INTRODUCTION TO TAXATION AND ITS
                          IMPORTANCE


         6.1 The States in the modern era are not strictly confined to
  political activities and law making functions. They function in a welfare
B
  society. Such working of States was visualized by our framers also, who
  were aware of responsibilities a State must shoulder and discharge. This
  is the ve1y reason for existence of Directive Principles of State Policy
  and which sets normative and positive standards for the Government.
  When the State is burdened with such normative goals as its primary
 crespo11sibility, such activities are inevitably dependent on availability of
  monitory resources. The definition of Sovereignty has acquired a new
  flavor in the recent past, 'Sovereignty is responsibilitv'. In a
  democratic system the elected Governments are always responsible for
  its people. If there is any high taxation which is affecting their life. this
D puts pressure on the Governments to reduce taxes and e leckd
  Governments are answerable to public every five years. No Government
  can raise tax which would cause public inconvenience. In this context,
  Sovereignty is no more endless power, rather it is responsibility. A
  responsible government in a democracy should always strive to keep
  taxes as low as possible, so that no heavy burden is placed on the
E individuals. Although States are empowered to tax under the Constitution,
  it does not necessarily mean that they should tax at exorbitant rates.
  Tax is a way of apportioning the cost of government among those who
  in some measure are privileged to enjoy the benefits and must therefore
  bear its burdens. Fundamentally the exercise of sovereignty also includes
F lawful taxation as its incident. Assesses/dealer on the other hand stated
  that all powers exercised by the state such as police powers, power of
  eminent domain and power to tax are also incidents of sovereignty.'"
  There is nothing which mandates this Court to deny latitude in use of
  taxing powers in comparison to other similar powers. Although all
  powers exercised by State are incidents of sovereignty, there is need
G
  to treat taxation on a different pedestal to sustain the Government at
  the current level and to achieve the Constitutional goals set by our
  framers.
       "·Jaganathbaksh Singh v. State of UP. (1963) I S.C.R 220: Dena Bank v.
       BhikhabhaiPrabhudas Parekh & Co .. (2000) 5 S.C.C 694: Commissioner of Income
 I-I   Tax, Udaipur, Rajasthan v. McDowell and co. Ltd .. (2009) I 0 S.C.C 755.
           JINDAL STAINLESS LTD. v. STATE OF HARYANA                          325
                                [N. V. RAMANA, J.]

       6.2 A tax is a burden or charge imposed by a competent                 A
legislature upon persons or property, to raise money for public
purposes. 37 Important elements of a tax may be said to be first, that it
is a compulso1y exaction; secondly, it is payable to the State or to some
public authority on its behalf; and thirdly, that it is an exaction for
purposes of public interest. Our Constitution has demarcated the taxing
                                                                              B
powers between the Center and States. Taxing power of the Union as
well as the States resides in Article 245 read with 246 of the Indian
Constitution. The Article 246 of the Constitution, lays down that
Parliament has exclusive power to make laws with respect to any matter
enumerated in Union List (List [ of schedule Vil). The States have
complete power to make laws with respect to any matter enumerated             c
in the State List (List II of schedule Vil) and both Parliament and State
Legislature have power to make laws with respect to any matter
enumerated in the Concurrent List (List III of schedule VII). As per
Article 265, no taxes shall be levied or collected except by the authority
oflaw. It is important to note that taxation entries are to be found only     D
in lists I and II, indicating that in our Constitutional scheme, taxation
powers of the Centre and the States are mutually exclusive. There are
no Entries in the Concurrent List which gives power of taxation. This
being the case, the moment the levy contained in a taxing statute
transgresses into a prohibited field, it is liable to be struck down.
                                                                              E
      PART-Vil: FREEDOM OF TRADE, COMMERCE AND
                     INTERCOURSE
      7. I To consider the question as to whether the tax laws come
under the ambit of Article 301 vis-a-vis freedom of trade, commerce
and intercourse, it is necessa1y to refer to the constitutional provisions,   F
Constituent Assembly Debates and precedents. To begin with, I will first
consider the relevant Articles, by extracting Part XIII verbatim.


                                      PART XIII
                                                                              G
             TRADE, COMMERCE AND INTERCOURSE
               WITHIN THE TERRITORY OF INDIA


 i;   Cooley on taxation-volume l. 4'" ed ... Ch. 2.
                                                                              H
326      SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     301.Freedom of trade, commerce and intercourse.-
      Subject to the other provisions of this Part, trade,
      commerce and intercourse throughout the territory of India
      shall be free.
      302. Power of Parliament to impose restrictions on
B
      trade, commerce and intercourse.-
      Parliament may by law impose such restrictions on the
      freedom of trade, commerce or intercourse between one
      State and another or within any part of the territory of India
      as may be required in the public interest.
 c
      303. Restrictions on the legislative powers of the
      Union and of the States with regard to trade and
      commerce.-
      (1) Notwithstanding anything in article 302, neither
 D    Parliament nor the Legislature of a State shall have power
      to make any law giving, or authorising the giving of, any
      preference to one State over another, or making, or
      authorizing the making of, any discrimination between one
      State and another, by virtue of any entry relating to trade
      and commerce in any of the Lists in the Seventh Schedule.
 E
      (2) Nothing in clause (1) shall prevent Parliament from
      making any law giving, or authorizing the giving of, any
      preference or making, or authorizing the making of, any
      discrimination if it is declared by such law that it is
      necessary to do so for the purpose of dealing with a
 F
      situation arising from scarcity of goods in any part of the
      territory of India.
      304. Restrictions on trade, commerce and
      intercourse among States.-notwithstanding anything in
      article 301 or article 303, the Legislature of a State may
 G
      by law-
      (a) impose on goods imported from other States or the Union
      territories any tax to which similar goods manufactured or
      produced in that State are subject, so, however, as not to
      discriminate between goods so imported and goods so
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                          327
                    [N. V. RAMANA, J.]

       manufactured or produced; and                                                       A
       (b) impose such reasonable restrictions on the freedom of
       trade, commerce or intercourse with or within that State
       as may be required in the public interest:
       Provided that no Bill or amendment for the purposes of
                                                                                           B
       clause (b) shall be introduced or moved in the Legislature
       of a State without the previous sanction of the President.
       305. Saving of existing laws and laws providing for
       State monopolies.-
       Nothing in articles 301 and 303 shall affect the provisions                         c
       of any existing law except in so far as the. President may
       by order otherwise direct; and nothing in article 301 shall
       affect the operation of any law made before the
       commencement of the Constitution (Fourth Amendment)
       Act, 1955, in so far as it relates to, or prevent Parliament
                                                                                           D
       or the Legislature of a State from making any law relating
       to, any such matter as is referred to in sub-clause (ii) of
       clause (6) of article 19.
       306.[Power of certain States in Part B of the First
       Schedule to impose restrictions on trade and
                                                                                           E
       commerce.)38
        Rep. by the Constitution (Seventh Amendment) Act, 1956,
        s. 29 and Sch.


                                                                                           F
" Repealed Article 306-
"Notwithstanding anything in the foregoing provisions of this Part or in any other
provisions of this Constitution, any State specified in Part B of the First Schedule
which before the commencement of this Constitution was levying any tax or duty on
the import of goods into the State from other States or on the export of goods from the
State to other States may, if an agreement in that behalf has been entered into between
the Government oflndia and the Government of that State, continue to levy and collect      G
such tax or duty subject to the tem1s of such agreement and for such period not
exceeding ten years from the commencement of this Constitution as may be specified
in the agreement :
Provided that the President may at any time after the expiration of five years from such
commencement tenninate or modify any such agreement if, after consideration of the
report of the Finance Commission constituted under article 280, he thinks it necessary
to do so."                                                                                 H
328            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A           307. Appointment of authority for carrying out the
            purposes of articles 301 to 304.-
            Parliament may by law appoint such authority as it
            considers appropriate for carrying out the purposes of
            articles 301, 302, 303 and 304, and confer on the authority
 8          so appointed such powers and such duties as it thinks
            necessary.


             7.2 Needless to mention that when the language of the provision
      is clear and unambiguous that, the intention of the law makers should
 c    be inferred from a plain reading of the provision itself. Ordinarily, we
      need not go beyond the clear language of the provision to interpret the
      Statute.
             7.3 The freedom of trade, commerce and intercourse throughout
      the territory of India is assured, but such freedom of trade is subject to
 D
      Part Xlll of the Constitution. When we evaluate the impact of Article
      301 on the plenary taxing power of the Sovereign State, the opening
      words become significant. Be that as it may, Article 301 only guarantees
      throughoutness of trade and commerce, the freedom, however, is not
      absolute freedom nor is it free from regulations.
 E
             7.4The dissection of Article 301 shows that it has three significant
      parts or phrases. These are, 'subject to other provisions of this part',
      and 'Trade, Commerce and Intercourse throughout territory of
      India', 'shall be.free'. Which everway one reads, the plain meaning of
      this is that trade, commerce and intercourse, shall be free, subject to
 F    Articles 302 to 307 of the Constitution. The two sets of the provisions
      which are mainly contemplated in the phrase 'subject to other provisions'
      are Articles 302, 303 and 304 (a) and (b). Article 303. The Parliament
      may by law restrict the freedom of trade in public interest and such
      law would be free from Article 301.
 G          7 .5 Article 301 of the Constitution begins with the phrase 'Subject
      to other provisions of this Part'. This phrase gives an initial indication
      as to what to expect? The position of this phrase should be taken into
      consideration. Even before the declaration of freedom of Trade,
      Commerce and Intercourse, it is being subjected to limitations. Further
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              329
                   [N. V. RAMANA, J.]

the opening words of Article 301, namely, 'subject to the provisions of A
this part' require that all the Articles of the Part Xlll have to be read
together so as to understand the width and meaning of the Part XIII.
'Subject to' is the dominant expression so far as Article 30 I is concerned.
It indicates subservience to at least Articles 302, 303 and 304. Articles
302 to 304 embody a restatement of powers under Article 246 r/w the
                                                                             B
State List under the VII Schedule. Each restated power by itself
overrides the freedom of trade in Article 301.
      7.6 Article 301 loses its prime place, if States make laws under
any of the taxing entries, erecting reasonable restrictions or imposing
tax on the free trade. Such power over-rides freedom of trade and             c
commerce. Thus, the general declaration by A1iicle 301 is relaxed in
favor of Parliament by Article 302 and in favor of the States by Articles
303 and 304. It is interesting to note that Article 304 starts with a non-
ohstante clause whereas Article 302 does not have a non-ohstante
clause. As the freedom of trade in Article 301 is itself subject to 302
and 304, the intention of the framers, to my mind, appears to be clear.       D
The Constitution guards and protects the State legislations under Article
304(a) and (b) from overemphasized effect on freedom of trade under
Article 301.
       7.7 It is a sound principle of jurisprudence that entire statute has
to be construed as a whole and not in isolation. While doing so, no clause    E
in any provision can be ignored especially when we interpret the
Constitution which is '.rnprema lex'. The difference between the power
of the Union and the States vis-a-vis Article 301 is that Article 302 does
not have application to tax laws like Article 304(a), but under Article
304(a), tax can be imposed on the goods imported from other States.           F
From the understanding of the Articles 301, 302, 303 and 304, what
emerges is summarized below-
       1. Article 302 is an exception to Article 301.

       2. The limitation under Article 302 is again subject to Article 303.   G

       3. Articles 302 and 303 do not refer to laws under taxing entries.

       4. Article 304 can be an exception to be generally construed as
          dealing with non-tax discriminatory tax and restrictions.
                                                                              H
330             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A            7 .8 In addition to plain reading, an analysis of the relevant
      provisions and the legislative history of Article 301, is also relevant, in
      understanding the free trade clause in our Constitution. This can be
      considered also with reference to Constituent Assembly Debates and
      the legislative history which are equally important external aids.
 B

             7 .9 In this connection, it has to be remembered that before the
      conunencement of the Constitution, about two-thirds of India was directly
      under the British rule and was called 'British India' and the remaining
      about one third was being directly ruled by the native Princes and was
 c    known as 'Native States'. There were a large number of them with
      varying degrees of sovereignty vested in them. Those rulers had, broadly
      speaking, the trappings of a Sovereign State with power to impose taxes
      and to regulate· inter-State trade. It is well known fact that many of
      them had erected trade barriers seriously impeding the free flow of trade,
 D    commerce and intercourse, thereby not only shutting out but also shutting
      in commodities meant for mass consumption. Between the years 1947
      and 1950, almost all the Indian States entered into agreements with the
      Government of India and merged into India as one political unit, with
      the result that what was called British India, broadly speaking, came
 E    under the Constitution. The native States became Part 'B' States. These
      Part 'B' States, in tum, were some sort of unions of small States or
      individual princely States. They erected, more often than not, trade
      barriers and customs posts even amongst themselves. lt was in this
      background, India for the first time, was constituted as one political unit.
      Hence, it was necessary to abolish all those trade barriers and custom
 F    posts in the interest of national solidarity, economic and cultural unity
      as also of freedom of trade.



             7.10 One of the early tasks to engage the attention of the
 G    Constituent Assembly in 1947 was freedom of trade and commerce
      within territories of the Union. It is important to note that in the Draft
      Constitution, the freedom of trade, commerce and intercourse which was
      a part of fundamental right, was dropped as such. Basic principles were
      fonnulated in the notes submitted to the sub-committee on Fundamental
 H
         JINDAL STAINLESS LTD. v. STATE OF HARYANA                                             331
                     [N. V. RAMANA, J.]

Rights by Dr. K.M. Munshi 39 and Sir Alladi Krishnaswami Iyer'0 • The                          A
Sub-Committee discussed Sir B.N. Rau's draft provision on the subject
on March 29, 1947 and was adopted in the following form:


       Subject to regulation by the law of the Union, trade,                                   B·
       commerce, and intercourse among the units, whether by
       means of internal carriage or by ocean navigation, shall be
       free:
       Provided that any unit may by law impose reasonable
       restrictions thereon in the interest of public order, morality                          c
       or health.


       7 .11 Commenting on the Clause when the draft of the sub-
committee's report was under Consideration. Sir Alladi Krishnaswami
Iyer suggested that goods entering a particular unit from other units of D
the Union should not escape duties and taxes to which goods produced
in the concerned unit itself were subjected to. These suggestions were
accepted by the Sub-committee and incorporated in the report submitted
to the Advisory Committee on April 16, 1947. On April 21, 1947 the
clause came up for debate before the Advisory Committee. Shri C. E
Rajgopalchari expressed his view that the units must be allowed to raise
some kind of custom duties for genuine revenue purposes, for which
the reply of Shri K. M. Panikkar is relevant for our discussion:
        K. M. Panikkar: Rajaji (C. Rajgopalchari) has raised the
        question of the right of the units to raise taxes, and to say                           F
39
   B. Shiva Rao, The Framing oflndia 's Constitution, Vol.II, p. 69 (1967). [hereinafte,.
'B. Shiva Rao ']
Extract from the Note and draft Articles on Fundamental Rights by Dr. K. M. Munshi,
dt. March 17, 1947 -
          Article V- (I) Every Citizen within the limits of the law of the Union and in
          accordance therewith has :
           (i)The right of free movement and trade within the ten-itories of the Union.
                                                                                               G
40
   B. Shiva Rao, p. 68
Extract from the Note on Fundamental Rights by Alladi Krishnaswami Iyer, dt. March
14, 1947-
         'The Union powers being restricted in scope, care will have to be taken to
         bring in (a) the freedom oflnter-state and inter-provincial trade, (b.) inter-state
         and inter-provincial movement. .. '                                                   H
332                 SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A               this right should not be denied. I, however, think this is
                dangerous power to be given to the units. This may result
                in creation of competing units. We have allowed two things.
                We have allowed the unit to tax its own industries. We also
                allow things brought in to be taxed, for sake of parity. But
                our friend wants go little further and say that the right to
 B
                impose taxes or transit duty or some kind of duty must be
                given to the units. That, I am afraid, will be a negation of
                the clause. 41
            7 .12 In the interim report of the Advisory Committee
 c    dt.23.04.194 7 placed by Shri Sardar Vallabhai Patel, the fol1owing
      recommendations were made :


                 "While agreeing in principle with this clause we reconunend
                 that instead of being included in Fundamental Rights, it
 D               should find a place in some other part of the Constitution."


             7.13 Taking into consideration above deliberations and decisions
      of the Assembly, Sir B.N. Rau incorporated the following clause in his
      draft Constitution of October, 1947 under Part Ill-Fundamental Rights
 E
      including Directive Principles of State Policy":-
                  17. Provided that nothing in      Freedom of trade,
                  this section shall prevent any    commerce and
                  unit from imposing on goods       intercourse among the
                  manufactured or produced in       units.
 F                that unit are subject, so,        [Cf. Common wealth
                  however, as not to discriminate   of Australia
                  between goods so imported         Constitution Act. Ss.
                  and goods so manufactured or      92 and 99,
                  produced:                         Government oflndia
                  Provided further that no          Act, 1935, s. 297
 G                preference shall be given by
                  any regulation of trade,
                  commerce or revenue to one
                  unit over another:
      41
            B. Shiva Rao, p. 253
      4:!         •
 H          B. Sluva Rao, p. 70 I
          JINDAL STAINLESS LTD. v. STATE OF HARYANA                                       333
                              [N. V. RAMANA, J.]

                                                                                          A
        Provided also that nothing in
        this section shall preclude the
        Federal     Parliament     from
        imposing by Act restnct1ons
        Oil the freedom of trade,
        commerce and intercourse                                                          B
        among the units in the interests
        of public order, morality or
        hea Ith or in cases of
        emergency.

                                                                                          c
      7 .14 With some modifications, this clause was retained in the
Fundamental Rights chapter in the draft Constitution of February 21,
1948. The proviso was redrafted and included as an independent Article
under a separate heading, namely, "Inter-state trade and commerce" in
Part IX of the Draft Constitution pertaining to relations between the
Union and the States. 43                                                                  D
       7 .15 Further when the draft Constitution was published and
circulated for suggestions and opinions, Sir Alladi Krishnaswami Iyer
commented in the following manner:-


       "Comments of AlladiKrishnaswamiAyyar: In this regard to         •                  E

interstate trade there are three main provisions in the Draft Constitution :
          I. The freedom of inter-state trade secured by Article 16:
          II. Subject to an interference by federal law :.
                                                                                           F
          !II. An interference by a provision or state law to the extent
               provided in item 33, 44 List II.
          The power of interference under Sub-clause (b) of the
          Article 244 is too drastic and much wider than that
          provided in the Original Draft. Would not this                                  G
          provision practically nullify the freedom of trade
43
     B. Shiva Rao, p. 524 and p. 610

" Draft of Constitution, Fcbruarv 21. 1948-Scventh Schedule. List 11- State List
   33. Regulation of trade, commerce and intercourse with other states for the purposes
   of the provisions of Article 244 of this Constitution.
                                                                                           H
334            SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A           secured by the Article 16 as the expression 'interests
            of public is vague and uncertain and cannot be
            subject to judicial review."


             7.16 Draft Articles relating to trade and commerce were scattered
 B
      in different parts of the draft Constitution (i.e., Clause 16 and Articles
      243 to 245) and the purpose was to string together all these scattered
      provisions under one head. Dr. Ambedkar stated before the Constituent
      Assembly that.:

 c
            Sir, all that I need do at this stage is to inform the House
            that originally the articles dealing with freedom of trade and
            commerce were scattered in different parts of the Draft
            Constitution. One article found its place in the list of
            Fundamental Rights, namely, article 16, which said that
 D
            trade and commerce, subject to any law made by
            Parliament, shall be free throughout the territory of India.
            The other articles, namely, 243, 244 and 245 were included
            in some other part of the Draft Constitution. it was found
            in the course of discussion that a large number of members
 E          of the House were not in a position to understand the
            implications of articles 243, 244 and 245, because these
            articles were dissociated from article 16. In order,
            therefore, to give the House a complete picture of
            all the provisions. relating to freedom of trade and
 F          commerce the Drafting Committee felt that it was
            much better to assemble all these different articles
            scattered in the different parts of the Draft
            Constitution into one single part and to set them out
            seriatim, so that at one glance it would be possible
            to know what are the provisions with regard to the
 G          freedom of trade and commerce throughout India. [
            should also like, to say that according to the provisions
            contained in this part it is not the intention to make trade
            and commerce absolutely free, that is to say, deprive both
            Parliament as well as the States of any power to depart
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                             335
                    [N. V. RAMANA, J.]

       from the fundamental provision that trade and commerce                 A
       shall be free throughout India. 45
                                             (Emphasis Supplied)


     7.17 From the above legislative history and Constituent Assembly         B
Debates, four propositions would emerge:-


       a. It is clear from a comparison of Clause 16, 243, 244 and 245
          of the draft Constitution with Articles in Part XA (now Part
          XIII) that they were not merely arranged in seriatim but were       c
          substantially altered.
       b. That freedom of trade, commerce and intercourse is not a
          fundamental right.
       c. That trade, commerce and intercourse in India is not absolutely     D
          free.
       d. That the discriminatory tax (like erstwhile custom duties
          imposed by certain independent states) is harmful for the
          federation.
                                                                              E

     PLAINS OF GANGES CAN NEVER BE FERTILIZED BY
         WATER OF MURRAY OR POTMAC RIVERS


        7.18 The precedents as well support the view that tax laws are        F
not contemplated in Article 301. Before considering the relevant
precedents, a brief reference to the extent and scope of right to free
trade as enforced in Australia, USA and Canada may be refereed to.
It is to be kept in mind that the plains of Ganges can never be fertilized
by waters ofMurray46 or Potmac 47 • But it is important to see the course     G
which they have sailed and taken their countries to glory. It is imperative
45
46
   Constituent Assembly Debate, Vol. IX, gth September 1949
   Longest River of Australia
47
   River in United States of America
                                                                              H
336            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     to mention that during the drafting process of Article 301, foot note for
      the same had reference to Australian Constitution. It is no gainsaying
      that our framers were learned men who drew our Constitution having ·
      hindsight of the wisdom of these great federations.
             7. 19 The main inspiration for Part Xlll has been American and
 B    Australian models. These models present before the Constituent
      Assembly were re-designed and expanded by the framers of the
      Constitution in India according to the needs of Indians. It is important
      to note that the interpretation provided by other countries are just
      indicative. They may have persuasive value because the context and
 c    history has been quite different as compared to India. At least in relation
      to Part XIII of the Constitution an indigenous interpretation should be
      provided without placing heavy reliance on the foreign cases as they
      may be subject to change which will inevitably stir the matter once again.
      Moreover, our constitutional structure is quite different from those
      provided under Australian and American Constitutions.
 D
            7 .20 In Australia and the United States of America, giving textual
     meaning to the applicable Constitutional provisions, the Courts interpreted
     the 'commerce clause' or 'free trade clause' in such a manner that the
     (federal units) were completely barred to levy any taxes on inter-state
     trade and commerce, Fortunately offlate, in these jurisdictions, the law
 E . has been diluted to enable the federal units to regulate inter-state trade
     and commerce even by imposing levies. This would be clear by brief
     reference to the case law governing inter-state trade in Australia,
     Canada and the United States of America.

 F
                    COMMONWEALTH OF AUSTRALIA
             7.21 Section 92 of the Australian Constitution declares 'that 'on
      the imposition of uniform duties of customs, trade, commerce and
      intercourse among the States, whether by means of internal carriage
 G    or ocean navigation, shall be absolutely free. ln Cole v Whiffield[Herein
      after 'Cole'} 48 , and later in CastlemaineTooheys Ltd v South
      Australia 49 and, most recently, in Bet.fair Pty Ltd v Western
      Australiti 50 , the Court observed that Section 92 of the Australian
      "(1988) 165 C.L.R 360
      49
         (1990) 169 C.L.R 436 .
 H    50
         (2008) 234 C.L.R 418
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           337
                   [N. V. RAMANA, J.]

Constitution only meant that Australia was free from those measures        A
which were discriminatory and protectionist burdens. Cole insisted that
Section 92 proscribes both direct and indirect protectionist
discrimination: -


                                                                           B
      'The concept of discrimination in its application to interstate
      trade and commerce necessarily embraces factual
      discrimination as well as legal operation. A law will
      discriminate against interstate trade or commerce if the law
      on its face subjects that trade or commerce to a disability
      or disadvantage or if the factual operation of the law               c
      produces such a result'. 51


       7.22 Earlier to this, Australian Courts have grappled to achieve
unifonnity until 1988 [Cole]. Earlier Judgments had taken a right based
                                                                        D
approach, wherein a single trader who was burdened, could claim
violation of Section 92 of the Australian Constitution.51 Such wide
interpretation given in the earlier case laws led to development of
narrower test by the High Court in Cole. Earlier Case laws were
available and were cited in the Atiabari and Automobile also. It is
interesting to note that our framers drawing experience of Bank E
Nationalization Case 53 , were concerned about stifling the natural
growth of the Country by broad law such as Section 92 of Australian
Constitution. 54
                  UNITED STATES OF AMERICA
                                                                           F
       7.23 Article 1 Section 8 Clause 3 of the U.S. Constitution states
that "The Congress shall have the legislative power to regulate
commerce, with foreign nations and among several States, and with
Indian Tribes. " This Clause also known as the 'Commerce Clause' has
been under judicial scmtiny for a long time. The plain reading of this
Article means that the Federal Legislature is empowered to regulate        G
the inter-state trade.

 " Ibid, p. 399
 " Common wealth v. Bank of new South Wales, (1949) 79 C.L.R 497.
 53
    Ibid.
  " Constituent Assembly Debate, Vol. IX, gth September 1949               H
338            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A            7.24 In Brown v. Marylancf'5, a case involving the constitutionality
      of a Maryland law requiring all importers and wholesalers of foreign
      articles to obtain a license, Chief Justice Marshall reasoned that the
      rationale of McCulloch 56 was "entirely applicable" to state taxation of
      private enterprises engaged in inter-state commerce. Thus, holding the
 B    Maryland statute unconstitutional, Justice Marshall stated:


            'We admit this power (of a State to tax its own citizens on
            their property within its territory) to be sacred.... We cannot
            admit that it may be used so as to obstruct or defeat
 c          (Congress') power to regulate commerce. It has been
            observed that the powers remaining with the States may
            be so exercised as to come in conflict with those vested in
            Congress. When this happens, that which is not supreme
            must yield to that which is supreme'.
 D

            7.25 The Supreme Court in Freeman v. HewitP, put a bar on
      the States to tax such activities which directly affected inter-state
      commerce as federal government was the sole authority to regulate these
      matters. Following extract may be relevant-
 E

             'The Commerce Clause was not. merely an authorization
             to Congress to enact laws for the protection and
             encouragement of commerce among the States, but by its
             own force created an area of trade free from interference
 F
             by the States. In short, the Commerce Clause even without
             implementing legislation by Congress is a limitation upon
             the power of the States .... This limitation on State power
             .. . does not merely forbid a State to single out interstate
             commerce for hostile action. A State is also precluded from
 G           taking any action which may fairly be deemed to have the
             effect of impeding the free flow of trade between States.

      "25 U.S. (12 Wheat.) 419 (1827)
      56
         4 Wheat. 316 (1819)
      "329 U.S. 249 (1946)
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                             339
                    (N. V. RAMANA, J.]

       It is immaterial that local commerce is subjected to a                 A
       similar encumbrance'.


        7 .26 In 1977 in a landmark judgment in Cumplete Auto Transit
vs. Brady5 8 , the Supreme Court went back on the above approach and
                                                                              B
adopted practical effects approach, according to \Vhich, a State law
which is "applied to an activity with a substantial nexus with the taxing
state, fairly apportioned, non-discriminatory against inter-state commerce,
and fairly related to the services provided by the State" shall not be
invalidated on the ground that States lack legislative competence.
Subsequently the Supreme Cowt has further empowered the States to             c
adopt legislations and it now only requires that there should be a fair
relation or connection between the tax imposed and the general benefits
provided to the taxpayers which include civic services as maintenance
of public roads and running of mass transits (refer D.J!. Holmes
Company Ltd. vs. Shirley 1\1cNamara 59 ). In the Commonwealth                 D
Edison Company vs. State of Montana 60 the Supreme Court has
observed that-


       'when a general revenue tax does not discriminate against
       interstate commerce and is apportioned to activities                   E
       occurring within the State. the State is free to pursue its
       own fiscal policies unembarrassed by the Constitution.'
       It is obvious from the line of cases that America has been moving
towards empowering States to develop their own fiscal policy under the
Commerce Clause. Our Constitution, on the other hand, has achieved            F
directly what the US Coutts are trying to achieve by way of judicial
interpretation.
                               CANADA
      7 .27 Canadian Constitution envisages freedom of trade under
                                                                              G
Section 121 as follows 'All Articles of the Growth, Produce, or


"430 U.S. 274(1977)
"'486 U.S. 24 (1988)
'"453 u .s. 609 ( 1981)
                                                                              H
340              SUPREME COURT REPORTS                                 [2016] I0 S.C.R.


A     Manufacture of any one of the Provinces shall, from and after the Union,
      be admitted free into each of the other Provinces'. It is important to
      note the federal scheme before referring to interpretation provided by
      the Courts in Canada. Under Section 92(2) provincial power to tax is
      restricted by three limitations i. The tax must be 'direct' ii. The tax must
      be 'within the province' iii. The tax must be for 'provincial purposes'. 01
 B
      Federal and Provincial powers overlap in the field of direct taxation.
      which includes the two most lucrative taxes, namely, income tax and
      the sales tax. Section 121 has been interpreted by the Supreme Court
      in Gold Seal Case ( 1921 )6', In this Case the Supreme Court of Canada
      speaking through Duff J. observed that:
 c
             'The capacity of the Parliament of Canada to enact the
             amendment of 1919 is denied. With this I do not agree. And.
             first, I am unable to accept the contention founded upon
 D           Section 121 of the B.N.A. Act; the phraseology adopted,
             when the context is considered in which this section is
             found, shews, I think, that the real object of the clause is
             to prohibit the establishment of customs duties affecting
             interprovincial trade in the products of any province of the
              Union.''' 3
 E
      Similarly, Mignault J. stated:
             'I think that like the enactment I have just quoted. the object
             of section 121 was not to decree that all articles of the
             growth, produce or manufacture of any of the provinces
 F           should be admitted into the others, but merely to secure
             that they should be admitted "free," that is to say without
             any tax or duty imposed as a condition of their admission.
             The essential word here is "free" and what is prohibited is
             the levying of custom duties or other charges of a like
             nature in matters of interprovincial trade.'""
 G


       '''Constitutional Law of Canada, Peter \V. Hogg, Vol. 1. pg. 857.
       "'Gold Seal Ltd. V. Alberta AG ( 1921 l 62 S.C.R 424.
      '" Ibid. at 456
 H     "Ibid. at 470.
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              341
                   [N. V. RAMANA, J.]

       7.28 The Conspectus of law in Australia and the United States          A
of America which have federal Constitutions would show that initially
the highest courts in those countries interpreted their respective
constitutional provisions as totally prohibiting the States (federal Units)
from levying any tax or regulating on inter-State trade and commerce,
but subsequently there is a paradigm shift even in these jurisdictions and    B
currently the existing provisions have been interpreted so as not to deny
such powers to States.


                         INDIAN CASE LAW
       7 .29 Returning to the main controversy in the case, it may be
                                                                              c
noted that apart from the two leading judgments on the entry tax and
compensatory tax in the context of transportation Cases, we have large
number of cases decided by the various High courts and this Court. It
is however not necessary to refer to all cases. It would be suffice to
refer to a few.                                                               D
      7.30 In Atiahari, the validity of Assam Taxation (on Goods
Carried by Roads and Inland Waterways) Act, 1954, which squarely
comes under Entry 56 of List II fell for consideration. It was assailed
as violating Article 301, and as not saved by Article 304(b ). The
challenge was upheld. It is necessary to extract the following from the       E
Atiahari.:
       ' ... It is obvious that whatever may be the content of the
       said freedom it is not intended to be an absolute freedom;
       absolute freedom in matters of trade, commerce and
       intercourse would lead to economic confusion, if not chaos             F
       and anarchy; and so the freedom guaranteed by A1ticle 301
       is made subject to the exceptions provided by the other
       Articles in Part XIII. The freedom guaranteed is limited in
       the manner specified by the said Articles but it is not limited
       by any other provisions of the Constitution outside Part               G
       Xlll. That is why it seems to us that Article 301, read in
       its proper context and subject to the limitations prescribed
       by the other relevant Articles in Part Xlll, must be regarded
       as imposing a constitutional limitation on the legislative

                                                                              H
342       SUPREME COURT REPORTS                            [2016] 10 S.C.R.


A      power of Parliament and the Legislatures of the States.
       What entries in the legislative lists will attract the provisions
       of Article 30 I is another matter; that will depend upon the
       content of the freedom guaranteed; but wherever it is held
       that Atiicle 30 I applies the legislative competence of the
       Legislature in question will have to be judged in the light
 8
       of the relevant Articles of Part XIII; this position appears
       to us to be inescapable.
       50. Let us now revert to Article 301 and asce1tain the width
       and amplitude of its scope. On a careful examination of
 c     the relevant provisions of Part XIII as a whole as well as
       the principle of economic unity which it is intended to
       safeguard by making the said provisions, the conclusion
       appears to us to be inevitable that the content of freedom
       provided for by Article 30 I ....

 D     51. certainly includes movenie.nt of free trade which is of
       the very essence of all trade and is its integral part. If the
       transport or the movement of goods is taxed solely on the
       basis that the goods are thus carried or transported that in
       our opinion, directly affects the freedom of trade as
       contemplated by Article 30 I. If the movement, transpoti
 E     or the carrying of goods is allowed to be impeded,
       obstructed or hampered by taxation without satisfying the
       requirements of Paii Xlll the freedom of trade on which
       so much emphasis is laid by A1iicle 30 I would turn to be
       illusory. When Article 301 provides that trade shall be free
 F     throughout the territory of India. primarily it is the
       movement part of the trade that it has in mind and the
       movement or the transport part of trade must be free
       subject of course to the limitations and exceptions provided
       by the other Articles of Part Xlll.. .. Besides, it is not
       irrelevant to remember in this connection that the
 G
       Article we are construing imposes a constitutional
       limitation on the power of the Parliament and State
       Legislatures to levy taxes, and generally, but for such
       limitation, the power of taxation would be presumed
       to be for public good and would not be subject to
 1-1
       JINDAL STAINLESS LTD. v. S'IATE OF HARYANA                              343
                   IN. V. RAMANA, J.]

      judicial review or scrutinv. Thus considered we think                    A
      it would be reasonable and proper to hold that
      restrictions freedom from which is guaranteed by
      Article 301, would be such restrictions as directly
      and immcdiatelv restrict or impede the free flow or
      movement of trade. Taxes may and do amount to
                                                                               B
      restrictions; but it is onlv such taxes as directly and
      immediately restrict trade that would fall within the
      purview of Article 301.'
                                            (Emphasis Supplied)
                                                                               c
       7.31 Tn Atiabari, Chief Justice B. P. Sinha wrote a dissenting
opinion holding that any inference that the taxation simpliciter is within
the terms of Article 30 I cannot be justified under the Constitution.
Indeed, it is observed that, it is only such taxes which directly and
immediately affect trade would fall within the purview of Article 301,         [)
though both the Learned Judges used different languages. the purports
appears to be same. It is only such laws which operate in a restrictive
manner, right to free trade that are prohibited. Be that as it is, rejecting
the submission that Article 30 l must be construed as freedom from all
kinds of impediments, restraints and trade barriers including freedom          E
from all taxation, the Learned Chief Justice said as follows:


       'In my opinion, there is no warrant for such an extreme
       position. It has to be rem.:mbcrcd that trade, commerce
       an intercourse include individual freedom of movement of                F
       every citizen of India from State to State, which is also
       guaranteed by Art.19( I)( d) of the Constitution. The three
       terms used in Art. 30 I include not only free buying and
       selling, but also the freedom of bargain and contract and
       transmission of information relating to such bargains and               G
       contract as also transport of goods and commodities for
       the purposes of production, distribution and consumption in
       all their aspects, that is to say, transportation by land, air
       or water. They must also include commerce not only in
       goods and commodities, but also transportation of men and
                                                                               H
344            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A           animals by all means of transportation. Commerce would
            thus include dealings over the telegraph, telephone or
            wireless and every kind of contract relating to sale,
            purchase, exchange etc. of goods and commodities.
            15. Viewed in this, all comprehensive sense, taxation on
 B          trade, commerce and intercourse would have many
            ramifications and would cover almost the entire field of
            public taxation, both in the Union and in the State Lists. It
            is almost impossible to think that the makers of the
            Constitution intended to make trade, commerce and
 c          intercourse free from taxation in that comprehensive sense.
            If that were so, all laws of taxation relating to sale and
            purchase of goods on can-iage of goods and commodities,
            men and animals, from one place to another, both inter-State
            and intra-State, would come within the purview of Art. 30 I
            and the proviso to Art. 304(b) would make it necessary that
 D          all bills or Amendments or pre-existing Jaws shall have to
            go thereof the gamut prescribed by that proviso. That will
            be putting too great an impediment to the power of taxation
            vested in the States and reduce the States' limited
            sovereignty under the Constitution to a mere fiction. That
 E          extreme position has, therefore, to be rejected as unsound.'


             7.32 Dealing with the importance of taxing power of the State to
      raise money the learned Chief Justice. opined thus :-

 F
            'Jn my opinion, another very cogent reason for holding that
            taxation simpliciter is not within the tenns of Art. 301 of
            the Constitution is that the very connotation of taxation is
            the power of the State to raise money for public purposes
 G          by compelling the payment by persons, both natural and
            juristic, of monies earned or possessed by them, by virtue
            of the facilities and protection afforded by the State. Such
            burdens or imposts, either direct or indirect, are in the
            ultimate analysis meant as a contribution by the citizens or
            persons residing in the State or dealing with the citizens of
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                345
                   [N. V. RAMANA, J.]

      the State, for the support of the Government, with particular             A
      reference to their respective abilities to make such
      contributions. Thus public purpose is implicit in every
      taxation, as such. Therefore, when Part XIII of the
      Constitution speaks of imposition of reasonable restrictions
      in public interest, it could not have intended to include                 B
      taxation within the generic term "reasonable restrictions"'


       7.33 In Automobile, the challenge was to the Rajasthan Motor
Vehicles Taxation Act, 1951. The Appellants were unsuccessful before
the Rajasthan High Court, which upheld the said Act. By majority of             C
4:3 this Court affinned the judgment of the High Court. Justice S.K.Das
who wrote the lead judgment observed that Part Xlll is intended to
achieve the federal economic and fiscal integration and addresses the
questions of economic unity. He held that, "regulatory measures or
measures imposing compensatory taxes for the use of trading facilities          D
do not come within the purview of the restrictions contemplated by
Article 301 and such measures need not comply with the requirements
of the proviso to Article 304(b) of the Constitution, (and) that the relevant
Articles in Part Xlll apply only to legislation in respect of the entries
relating to trade and commerce in any of the lists of the Seventh
Schedule. But we must advert here to one exception which we have                E
already indicated in an earlier part of this Judgment. Such regulatory
measures do not impede the freedom of trade, commerce and
intercourse and compensatory taxes for the use of trading facilities are
not hit by the freedom declared by Article 301. They are excluded from
the purview of the provisions of Part Xlll of the Constitution for the          F
simple reason that they do not hamper trade, commerce and intercourse
but rather facilitate them".
      7.34 Justice K .• Subba Rao (as his lordship then was) in a
separate opinion concurred with the majority and summarized the
following principles that are to be applied while testing a law under           G
challenge as violating Article 301 of the Constitution (1) Article 301
declares a right of free movement of trade without any obstructions by
way of barriers, inter-State or intra-State, or other impediments operating
as such bal1'iers. (2) The said freedom is not impeded, but, on the other
hand, promoted, by Regulations creating conditions for the free movement        H
346             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     of trade, such as, police Regulations, provision for services, maintenance
      of roads, provision for aerodromes, wharfs etc., with or without
      compensation. (3) Parliament, may by law, impose restrictions on such
      freedom in the public interest; and the said law can be made by virtue
      of any entry with respect whereof Parliament has power to make a
      law.(4) The State also, in exercise of its legislative power, may impose
 B
      similar restrictions, subject to the two conditions laid down in Article
      304(b) and subject to the proviso mentioned therein. (5) Neither
      Parliament nor the State Legislature can make a law giving preference
      to one State over another or making discrimination between one State
      and another, by virtue of any entry in the Lists, infringing the said
 c    freedom. (6) This ban is lifted in the case of Parliament for the purpose
      of dealing with situations arising out of scarcity of goods in any part of
      the territory of India and also in the case of a State under Article 304(b),
      subject to the conditions mentioned therein; and (7) The State can
      impose a non-discriminatory tax on goods i111p01ted from other States
 D    or the Union te1Titory to which similar goods manufactured or produced
      in that State are subject.
          7.35 As discussed above, a Constitution Bench of this Court in
   Atiahari had struck down the Assam Act levying the tax on goods
   carried by road or inland waterways. Making certain additional
 E provisions, Assam Assembly enacted the Assam Act No. 10 of 1961,
   coming under Entry 56 of the State List, with the previous sanction of
   the President with the same nomenclature, which was impeached as
   unreasonable under Article 32 of the Constitution, in Khyerhari Tea
   Company v. State ofAssam65 • By the time, this Court took up the case,
   the scope and effect of provisions contained in Part XIII of the
 F
   Constitution came to be considered in Automohile. Rejecting the
   challenge this Court observed that the freedom can be restricted by a
   law satisfying the two conditions in Article 304. ln examining the
   constitutionality of the statute, it must be assumed that the legislature
   understands and appreciates the needs of the people and the laws it
 G enacts are directed to problems which are made manifest by experience
   and that the legislature enacts the laws which the people's
   representatives consider to be reasonable for the purpose for which they
   are enacted. The presumption is in favor of the constitutionality of

      "(1964) 5 SCR 975: AIR 1964 SC 925
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           347
                   [N. V. RAMANA, J.)

enactment. However, when it is shown that an Act invades the freedom       A
of trade, it is necessary to enquire whether the State has proved that
the restrictions imposed by way of taxation are reasonable and in public
interest within the meaning of Article 304(b ). It was also held that a
law passed under Article 304(b) can be made to have retrospective
effect.                                                                    B


     7.36 In Jindal (2), the law was summarized by the Constitutional
Bench as under:

                                                                           c
      'Aliicle 30 I is binding upon the Union Legislature and the
      State Legislatures, but Parliament can get rid of the
      limitation imposed by Article 301 by enacting a law under
      Article 302. Similarly, a law made by the State Legislature
      in compliance with the conditions imposed by Article 304
                                                                           D
       shall not be hit by Article 301. Article 301 thus provides
      for freedom of inter-State as well as intra-State trade and
      commerce subject to other provisions of Part XIII and
      correspondingly it imposes a general limitation on the
       legislative powers, which is relaxed under the following
      circumstances:                                                       E
          (a) Limitation is relaxed in favour of Parliament under
          Article 302, in which case Parliament can impose
          restrictions in public interest. Although the fetter is
          limited enabling Parliament to impose by Jaw restrictions
          on the freedom of trade in public interest under Article         F
          302, nonetheless, it is clarified in Clause (I) of Article
          303 that notwithstanding anything contained in Article
          302, Parliament is not authorised even in public interest,
          in the making of any law, to give preference to one State
          over another. However, the said clarification is subject         G
          to one exception and that too only in favour of
          Parliament, where discrimination or preference is
          admissible to Parliament in making of laws in case of
          scarcity. This is provided in Clause (2) of Article 303.

                                                                           H
348            SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A              (b) As regards the State Legislatures, apart from the
               limitation imposed by Article 301, Clause (I) of Article
               303 imposes additional limitation, namely, that it must not
               give preference or make discrimination between one
               State or another in exercise of its powers relating to
 B             trade and commerce under Entry 26 of List 11 or List
               III. However, this limitation on the State Legislatures
               is lifted in two cases, namely, it may impose on goods
               imported from sister State(s) or Union Territories any
               tax to which similar goods manufactured in its own State
               are subjected but not so as to discriminate between the
 c             imported goods and the goods manufactured in the State
               [see Clause (a) of Article 304]. In other words, Clause
               (a) of Article 304 authorises a State Legislature to
               impose a non-discriminatory tax on goods imported from
               sister State(s), even though it interferes with the
 D             freedom of trade and commerce guaranteed by Article
               301. Secondly, the ban under Article 303(1) shall stand
               lifted even if discriminatory restrictions are imposed by
               the State Legislature provided they fulfil the following
               three conditions, namely, that such restrictions shall be
               in public interest; they shall be reasonable; and lastly,
 E
               they shall be subject to the procurement of prior sanction
               of the President before introduction of the Bill.'


            7.37 One need to note that Atiabari dealt with the challenge to
 F    an enactment which squarely comes under Entry 56 whereas
      Automobile is a case concerned with the challenge to Rajasthan Motor
      Vehicle Taxation Act. Taxes on motor vehicles is a subject which falls
      under Enny 57. The cases which were subsequently decided by this
      court in relation to Part Xlll, were decided by this Court were not
      concerned with Entries 56 and 57. Be that as it may, deviating a little,
 G
      Jet me now examine the scope of Entry 52 and the nature of the tax
      contemplated there under. Entry 52 of the State list deals with 'taxes
      on the entry of the goods for consumption use or sale therein'. A
      law made under this entry like various Acts which are impugned in these
      appeals levy tax on entry of goods from one State to other. The taxable
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             349
                           [N. V. RAMANA, J.]

event is the entry into local area in another State. As defined in Concise   A
Oxford Dictionary the verb 'enter' means 'to come or go into and entry
as a noun is act of coming or going'. "There is a palpable difference
between the entiy of goods and sale of goods. Many enactments levying
tax on sale define the sale as 'transfer of property from one person to
another in course of business for cash or defen-ed payment.' When            B
goods enter the State it may be for consumption, use or sale. The factum
of entry and sale may not happen at the same time and, therefore, entry
of goods is one thing and consumption, use or sale is another thing.
Therefore, the mere fact that the goods are intended for sale is no
significance to the taxable event in law on the entry of goods.
                                                                             c
      7.38 In Han.rn Corp. 67 , the Constitutional validity of Kamataka
Tax on Entry of Goods into Local Areas for Consumption, Use or Sale
Therein Act, 1979 was challenged before this Court. This Court upheld
the validity of the Act and pointed out that the fonnulation in Atiahari
and Automobile was even applicable for Entry Tax under Entry 52 of
the State List. This Court summed up the position of law as below-       D


       'Entry 52 in State List read with Article 246 of the
       Constitution confers power on the State legislature to enact
       a law to levy tax on the entry of goods into a local area             E
       for consumption, use or sale therein. This tax in common
       parlance is known as 'octroi'. Octroi was leviable by the
       municipality under the power delegated to it under various
       laws providing for setting up of and administration of
       municipal corporations and municipalities. Octroi thus
       understood was being levied by various municipalities and             F
       municipal corporations in Kamataka State. Since some time
       a feeling had grown that octroi was obnoxious in character
       and impeded the development of trade and commerce and
       there was a clamour for its abolition. Taking note of the
       resentment of the business community, Kamataka State                  G
       abolished octroi with effect from April 1, 1979. However,
       no one was in doubt that octroi was a major source of

"'Concise Oxford Dictionary, p. 474 (10•" Ed.)
"' 1980 (4) s.c.c 463
                                                                             H
350      SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A     revenue to municipalities and its abolition would cause such
      a dent on municipal finances that compensation for the loss
      would be inevitable. Accordingly, the State Government
      undertook a policy of compensating the municipalities year
      by year. For generating funds for this compensation, rates
 B    of sales tax were raised and in some cases a surcharge
      was levied. The amount so collected was not sufficient to
      bridge the gap in municipal budget. To further augment the
      fmances for compensating the municipalities, additional fund
      was sought to be generated by levy of tax under the
      impugned legislation. No doubt, the tax levied was one on
 c    entry of scheduled goods in local areas meaning thereby it
      had an the broad features of octroi, yet the manner of levy,
      the method of collection and the persons liable to pay the
      same were so devised by the impugned Act as to remove
      the obnoxious features of octroi. As the charging section
 D    shows, the tax was to be levied on entry of scheduled goods
      in a local area at a rate to be specified by the Government
      not exceeding 2% ad valorem. The taxing event would be
      the entry of scheduled goods in a local area. In fact, octroi
      was being levied on almost all conceivable goods entering
      into a local area for consumption, use or sale therein. There
 E
      appears to be a discernible policy in selecting the goods
      set out in the schedule, the entry of which in a local area
      would provide the taxing event. The goods selected for levy
      are textiles, tobacco and sugar. Way back in 1957 there
      was a demand for abolition of sales tax on the scheduled
 F    goods and at the instance of the Union Government the
      State Gove1m11ents agreed to forego their right to levy sales
      tax on the aforementioned scheduled goods on the condition
      that the Union Government would levy additional excise
      duty on them and distribute the net proceeds of such duty
 G    amongst the consenting States. Parliament accordingly has
      enacted the Additional Duties on Goods (Goods of Special
      Importance) Act, 1957. Therefore, while raising rates of
       sales tax and levying surcharge in respect of some other
       items the State Government could not have levied sales tax
       on the scheduled goods. They were, therefore, selected for
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               351
                   [N. V. RAMANA, J.]

      the levy of the tax under the impugned Act on their entry                A
      into a local area'.
                                  xxx
      'On a conspectus of these decisions it appears well settled
      that if a tax is compensatory in character it would be
                                                                               B
      immune from the challenge under Article 301. If on the
      other hand the tax is not shown to be compensatory in
      character it would be necessary for the party seeking to
      sustain the validity of the tax law to show that the
      requirements of Article 304 have been satisfied'.
                                                                               c
       7.39 In Atiahari, majority held that the legislative competence
of the legislature will have to be judged in the light of relevant Articles
of Part Xlll and that what entries will attract Article 301 will depend
on the content of freedom guaranteed. In Jaiprakash, this Court ruled
                                                                               D
that concept of compensatory tax evolved in Automobile does not apply
to general notion of entry tax. As pointed out earlier Atiahari is a case
dealing with tax under Entry 56, whereas Automobile is a case under
Entry 57. In view of this it would not be safe to apply the majority opinion
in Atiahari and Automobile while dealing with entry tax. I am therefore
compelled to hold that tax law simpliciter is not contemplated in Article      E
30 I of the Constitution.
       7.40 There is no gainsaying that the law made by Parliament or
State legislature is subject to Constitutional limitations. A law which
abridges fundamental rights is rendered void by reason of Article 13. A
law by the Union or the States relating to a subject matter outside the         F
powers assigned under Articles 245 read with Article 246 and relevant
legislative entries in the Seventh Schedule would be ultra vires as
legislatively incompetent. Apart from these limitations, the law of the
Union or the States is also subject to other Constitutional limitations.
The provisions of Part XIII, especially, Article 304(a) and (b) also act       G
as a limitation on the legislative jurisdiction of the Union and the States.
The power endowed under Articles 245 and Article 246 to a competent
legislature to make laws is 'subject to the provisions of the Constitution.
Nonetheless, if a State makes law under Article 245(1) r/w. Article
246(3) in respect of the subjects enumerated in Entries 45 to 63 of List
                                                                               H
352              SUPREME COURT REPORTS                           (2016] 10 S.C.R.



A II in the Seventh Schedule, it is doubtful whether it can be invalidated
       only on the ground that it does not comply with Articles 301 and 304(a).
       Indeed various provisions of the Constitution dealing with fiscal measures
       in Part XII, for instance Articles 265, 269, 276 and 286, specifically deal
       with taxes, but in Part XIII, except Article 304(a), no other Article deals
 B     with taxes. Further Chapter I of Part XII of the Constitution specifically
       deals with provisions regarding 'Finance', whereas Part XIII deals with
       'Trade, Commerce and Intercourse' within the ten-itory of India. Thus,
       these two Parts are kept distinctly separate. Though every law is made
       subject to all provisions of the Constitution, it does not mean that every
       tax law made by the State must be made answerable to the general
 c     provisions relating to trade, commerce and intercourse. The provisions
       of the Constitution, the Constituent Assembly Debates and the
       precedents, lead us to such a conclusion. The reasons for this conclusion
       are summarized as below-

 D
             First, Taxation is an incident of sovereignty, which cannot
             be curtailed by any implied limitations. 68
              Secondly, It is part of any sovereign government to ensure
              a welfare State. To achieve the same, tax is the only course
 E            available to the government to generate revenue for
              purposes of welfare activities. Courts, therefore, cannot
              abridge the taxing power of the sovereign State.
              Thirdly, the very conception of Part Xlll was only to
              prevent discriminatory taxes under Article 304(a).
 F            Fourthly, argument of inconvenience cannot affect the
              interpretation of Article 30 I to bring in new tests and
              expand the provision beyond what was imagined by the
              framers of our Constitution. Article 304 (a) is an isolated
              provision which only deals with the discriminatory taxes.
 G            Existence of such provision cannot furnish evidence to say
              that Article 301 is not subject to taxing power of the State.
              Fifthly, the taxing entries are specifically provided for in
              the Seventh Schedule. lt is settled principle under our

       " Maharaj Umeg Singh v. State of Bombay, A.LR 1955 S.C 540.
 I-I
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 353
                    [N. V. RAMANA, J.]

       Constitution that taxing power cannot be derived from a                    A
       general entry. 69 In light of this principle the Constituent
       Assembly passed the Articles and Entries in the following
       time line: On 13 June, 1949 present Article 245 which was
       Article 217 (in the draft Constitution) was passed. On
       September 02, 1949 Entry 52 of State List (which was entry
                                                                                  B
       61 in the draft Constitution) was passed. On September
       08, 1949 PART Xlll (which was PART XA in the draft
       Constitution) was passed. This shows that our Constitution
       framers are presumed to be aware of the inter-play of
       taxing provisions. Therefore, the only explicit limitation
       imposed on the taxing power of the State is Article 304(a)                 c
       of the Constitution.
       Sixthly, we cannot ignore the legislative journey of Article
       301 in Part Xlll. At the stage of drafting, free trade,
       commerce and intercourse was in fact sought to be made
       a fundamental right but it was not accepted. Ultimately it                 D
       was resolved to bring all the provisions relating to free
       trade, commerce and intercourse at one place. What started
       as a fundamental right came to be enacted as a
       constitutional right? Thus, there is abundant guidance from
       the legislative history in regard to incorporation of Article              E
       301 only as a constitutional right.
       Seventhly, That Article 306 cannot have an impact on the
       interpretation of Article 301, as it only saved certain
       discriminatory taxes. Since the framers wanted to preserve
       the imposition of such discriminatory taxes for a limited                  F
       period, which otherwise would have been beyond the
       competence of State legislature to impose tax on import
       or on export of goods. Therefore taxes are not covered
       under the Article 301 only inter-state discriminatory taxes
       are barred under Article 304(a) of the Indian Constitution.
                                                                                  G
       Eighthly, Tax management is a province of political sphere.
       Judiciary should provide certain latitude for the government
       as taxes are lifeline of the Governments.
" M.P.V. Sundararamier & Co. vs. The State ofAndhra Pradesh andAnr.,AIR 1958 SC
  %8                                                                              H
354             SUPREME COURT REPORTS                             [2016] 10 S.C.R.



A           Ninthly, Article 301 of the Indian Constitution uses the tem1
            'free'. The word 'free' means 'which is not confined or
            restricted'. Either the trade is 'free or not free'. To state
            that trade, commerce and intercourse throughout the
            territory in India is free and then qualify this Article 301
 B          with subsequent Articles under 302, 303 and 304 only
            portrays that Article 301 is merely clarificatory in nature.
            If trade was, indeed, free then majority of Articles in the
            Constitution would have been redundant. From the history,
            context and interpretation it is clear that Article 301 is just
            a fonn to be understood subject to other provisions of Part
 c          Xlll. If no other motive for its insertion can be suggested,
            a sufficient one is found in the desire to remove all doubts
            i.e., the wordings of Article 301 is beyond any doubt a
            clarificatory provision and the extent of freedom is limited
            to those discriminatory taxes, restrictions (other than
 D          taxation simpliciter) and prohibitions provided explicitly under
            Articles 302, 303 and 304.


             7.41 In Atiahari and Automobile this Court relied on a 11011-
      obsta11te clause in Article 304 to hold that, by necessary implication,
 E    tax law come within the purview of Article 301. This view is not sound
      because one has to read the text and context while interpreting the
      constitutional provisions. In this regard, I respectfully agree with the
      reasoning and conclusions reached by Hon'ble the Chief Justice that
      non-obstante clause in Article 304 (a) is not determinative in the
 F    interpretation of Article 30 I.


          PART-VIII: ARTICLE 304 OF THE CONSTITUTION
              8.1 Whether a law levying tax on entry of goods needs to be
 G    tested with reference to Article 304(a) and (b) of the Constitution? In
      order to appreciate the implication of Article 304 of the Constitution, it
      is necessary to bear in mind that historical background of these
      provisions. The Government of India Act, 1935 envisaged a federal
      Constitution for the whole of British India. The Government imposed
      restriction on the legislature of the States to legislate in relation to internal
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                  355
                    [N. V. RAMANA, J.]

trade under Section 297 in the following tem1s:-                                   A


       '297. (!)No Provincial Legislature or Government shall.
      (a) by virtue of the entry in the Provincial Legislative List
      relation to trade and commerce within the Province, or the                   B
      entry in that list relating to the production, supply, and
      distribution of commodities, have power to pass any law
      or take any executive action prohibiting or restricting the
      entry into or export from, the Province of goods of any class
      or description; or
                                                                                   c
       (b) by virtue of anything in this Act have power to impose
       any tax, cess, toll, or due which, as between goods
       manufactured, or produced in the Province and similar
       goods not so manufactured or produced, discriminates in
       favour of the former or which, in the case of goods
                                                                                   D
       manufactured or produced outside that Province,
       discriminates between goods manufactured or produced in
       another locality.
       (2)Any law passed in contravention of this section shall,
       to the extent of the contravention, be invalid.'
                                                                                   E


       8 .2 It may be noticed that prohibition contained in the section
quoted above applied only to Provincial Governments and Provincial
legislatures with reference to entries in the legislative list relating to trade
and c01m11erce and to production, supply and distribution of c01mnodities.         F
This section dealt with prohibitions or restrictions in respect of import
into or export from a Province, of goods generally. It also dealt with
the power to impose taxes etc. and prohibited discrimination against
goods manufactured or produced outside a Province or goods produced
in different localities.                                                           G
       8.3 The Sub Committee on Fundamental Rights comprising of
Shri. K. M. Munshi, Sir Alladi Krishnaswami Iyer and Sir. B. N. Rau
on March, 29 1947 introduced Clause 13 in the following form:-


                                                                                   H
356              SUPREME COURT REPORTS                                [2016] l 0 S.C.R.



A            'Subject to regulation by the law of the Union, trade,
             commerce and intercourse among the units, whether by
             means of internal carriage or by Ocean Navigation, shall
             be free:
             Provided that anv unit may bv law impose reasonable
 B           restrictions thereon in the interest of public order. moralitv
             or health.''"
                                                                   (Emphasis supplied)



 c            8.4 The proviso herein above empowered the 'Unit' to impose
      by law, reasonable restrictions in the interest of the public order, morality
      or health. Sir B. N. Rau in his comments to the aforesaid draft discussed
      by the Sub Committee stated that 'the first paragraph of Clause 13 is
      adopted from the Australian Constitution (Sec. 92) while the proviso was
      ne\\1. Further, Sir Alladi Krishnaswami Iyer in his comments on Draft
 D
      Report of 10'", 14"'& 15'" April, 1947, in relation to Clause 13 suggested
      that it must be made clear that :


             '( l) Goods from other parts of India than in the units'
 E           concerned coming into the units cannot escape duties and
             taxes to which the goods produced in the units in themselves
             are subject.
             (2) lt must also be open to the unit in an emergency to
             place restrictions on the rights declared by the clause"''
 F

            8.5 The suggestions of Sir. Alladi Krishnaswami Iyer were
      accepted and the Clause was accordingly modified and incorporated as
      Clause 14 as below:
 G           14. (1) Subject to regulation by the law of the Union trade,
             commerce and intercourse among the units by and between
             the citizens shall be free:

      "'B. Shiva Rao. Framing. of India's Constitution. A Study (2"' Ed.), p. 699 to 707
      "fbid .. p. 157-161
 H
         JINDAL STAINLESS LTD. v. STATE OF HARYANA                         357
                           [N. V. RAMANA, J.]

        Provided that any unit may by law impose reasonable                A
        restrictions in the interest of public order, morality or health
        or in an emergency:
        Provided that nothing in this Section shall prevent any unit
        from imposing on goods imported from other units the same
        duties and taxes to which the goods produced in the unit           B
        are subject:
        Provided further that no preference shall be given by any
        regulation of commerce or revenue by unit to one unit over
        another. 72
                                                                           c
        8.6 It may be relevant to note that while imposing reasonable
restriction in the first Proviso, the imposition of non-discriminatory tax
was· in the second Proviso. The third Proviso was a pre-cursor of
Article 303. On 21.04.1947, the aforesaid Clause 14 came up for D
consideration of the Advisory Committee. Explaining the purpose of
enabling a State to impose reasonable restr·iction in the interest of public
order, morality, health or in emergency, Sir Alladi Krishnaswamy Iyer
said:

                                                                           E
        'Suppose there is a general famine and people are starved
        that is what is meant here to be dealt with'
        The advisory Committee accepted the recommendation of
        the Sub-Committee in relation to Clause 14 with 'one
        change; the sub-clause providing for central regulation of         F
        trade by or with non-citizens was dropped as being vague
        and unnecessary. 73
      8.7 The Advisory Committee submitted its report on 23.04.1947
wherein Clause 10 provided as under:
                                                                           G

        '10. Subject to regulation by the law of the Union, trade,
        commerce and intercourse among the units by and between
"Ibid.
 73 Ibid., p. 253
                                                                           H
358              SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A            the citizens shall be free:
             Provided that any unit may by law impose reasonable
             restrictions in the interest of public order, morality or health
             or in any emergency:
             Provided that nothing in this section shall prevent any unit
 B
             from imposing on goods imported from other units the same
             duties and taxes to which the goods produced in the unit
             are subject:
             Provided further that no preference shall be given by any
             regulation of commerce or revenue by a unit to one unit
 c
             over the another'. 74


            8.8 On 01.05.1947 certain amendments were suggested which
      were adopted by the Constituent Assembly. Clause 10, as amended,
 D    reads as follows:


             '10. Subject to regulation by the law of the Union, trade,
             commerce, and intercourse among the units by and between
             the citizens shall be free:
 E
             Provided that any unit may by law impose reasonable
             restrictions in the interest of public order, morality or health
             or m any emergency:
             Provided that nothing in this section shall prevent any unit
 f           from imposing on goods imported from other units the same
             duties and taxes to which the goods produced in the unit
             are subject:
             Provided further that no preference shall be given by any
             regulation of commerce or revenue by a unit to one unit
 G           over another.


            8. 9 In the first Draft Constitution of October, 194 7, Clause 17
      reads as follows:
       " Ibid., P. 297
 H
           JINDAL STAINLESS LTD. v. STATE OF HARYANA                          359
                       [N. V. RAMANA, J.]

          '17. Subject to the provisions of any Federal Law, trade,           A
          commerce and intercourse among the units shall, if between
          the citizens of the federation, be free:
          Provided that nothing in this section shall prevent ny unit
          from imposing goods imported from other unit from imposing
          goods imported from other units any tax to which similar            B
         .goods manufactured or produced in that unit are subject,
          so, however, as not to discriminate between goods so
          imported and goods so manufactured or produced:
          Provided further that no preference shall be given by any
          regulation of trade, commerce or revenue to one unit over           c
          another:
          Provided also that nothing in this section shall preclude the
          Federal Parliament from imposing by Act restrictions on
          the freedom of trade, commerce and intercourse among
          the units in the interests of public order, morality or health      D
          or in cases of emergency'. 75


       8.10 On 01.11.1947, the Drafting Committee considered Clause
17 and was of the opinion that 'the first and second provisos to this
                                                                              E
clause should be transfeJTed as independent clauses in the chapter dealing
with relations between the different States and the third proviso was
unnecessary. 76


       8.11 On 28.01.1948, the Drafting Committee decided to introduce        F
three new clauses, namely Clause 192 E, 192 F & 192 G, relating to
trade, commerce and intercourse. Clause 192 E, 192 F and 192 G as
introduced by the Drafting Committee on 28.01.1948, reads as follows:


                                                                              G
          'l 92E. No Preference shall be given by any regulation of
          trade, commerce or revenue to one State or any part

7;   B. Shiva Rao, Framing oflndia's Constitution, Vol. III, p. 9 (2"' Ed.)
"Ibid, p. 330
                                                                              H
360      SUPREME COURT REPORTS                          [2016) 10 S.C.R.



A     thereof over another State or any part thereof.
      192-F. Notwithstanding anything contained in Article 17 or
      in the last preceding Article of this Constitution, it shall be
      lawful for any state-
      To impose on goods imported from other State any tax to
 B
      which similar goods manufactured or produced in that State
      are subject, so, however, as not to discriminate between
      goods so imported and goods so manufactured or produced:
      and
      To impose by law any restrictions on the freedom of trade,
 c    commerce or intercourse with that State in the interests
      of public order, morality and health or in cases of
      emergency.
      *The committee is of opinion that the provisions contained
      in Articles 192-E and 192-F should more appropriately be
 D
      included in this Chapter than in Part Ill dealing with
      fundamental rights.
      192-G (1) there shall be an Inter-State Commerce
      Commission consisting of such members as the president
      may think fit to appoint for the execution and maintenance
 E
      within the territory of India of the provisions of this
      Constitution relating to Trade and Commerce.
      (2) The term of the office of the members of the
      commission, and the remuneration to be paid to them shall
      be such as the President may by Order detennine.
 F
      (3) The procedure of the commission shall be defined by
      the President by the Order and the Commission shall have
      such powers including the power of adjudication as the
      President may, from time to time, by Order, confer on it.
 G    (4) It shall be the duty of the Commission to decide any
      dispute relating to Trade or Commerce between the States
      referred to it by the President for adjudication and the
      decision of the Commission shall be final and shall not be
      questioned in any Court'.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           361
                   [N. V. RAMANA, J.]

      On 29.01.1948, the said clause was further revised and the revised   A
clause reads as follows:


      '*192-E. No preference shall be given to nor shall any
      discrimination be made between one state or any part
                                                                           B
      thereof and another State or any part thereof by ay
      regulation of trade or commerce, whether by means of
      internal carriage through roads, railways or rivers or by
      means of navigation through seas.
      * 192-F Notwithstanding anything contained in Article 17 or
      in the last preceding Article of this Constitution, it shall be
                                                                           c
      lawful for any State-
      (a) to impose on goods imported from other State any tax
      to which similar goods manufactured or produced in that
      State are subject, so, however, as not to discriminate
                                                                           D
      between goods so imported and goods so manufactured or
      produced; and
      (b) To impose by law such reasonable restrictions on the
      freedom of trade, commerce or intercourse with that State
      as may be required in the public interests.
                                                                           E
      *The committee is of opinion that the provisions contained
      in Articles 192-E and 192-F should more appropriately be
      included in this Chapter than in Part-III dealing with the
      fundamental rights.
      * 192-G. Parliament shall by law appoint such authority as           F
      it considers appropriate for the carrying out of the
      provisions of Article 192-E and 192-F of this Constitution
      and confer on the authority so appointed such powers and
      such duties as it thinks necessary.
                                                                           G
      In the Draft Constitution of 1948, Clause 16 was incorporated in
the Fundamental rights Chapter which reads as under:


                                                                           H
362                SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A               '16. Subject to the provisions of Article 244 of this
                Constitution and of any law made by the Parliament, trade;
                commerce and intercourse throughout the ten'itory of India
                shall be free.


 B
             Inter-State trade and Commerce was dealt with in Article 243,
      Article 244 and Article 245 which reads as below:


                '*243. No preference shall be given to one State over
 c              another nor shall any discrimination be made between one
                state and another by any law or regulation relating to trade
                or commerce, whether carried by land, water or air.
                *244. Notwithstanding anything contained in Article 16 or
                in the last preceding Article of this Constitution, it shall be
 D              lawful for any State-
                ( a) to impose on goods impmted from other States any tax
                to which similar goods manufactured or produced in that
                State are subject, so, however, as not to discriminate
                between goods so imported and goods so manufactured or
 E              produced: and
                (b) To impose by land such reasonable restrictions on the
                freedom of trade, commerce or intercourse with that State
                as may be required in public interests:
                Provided that during a period of five years from the
 F
                commencement of this Constitution the provisions of Clause
                (b) of this Article shall not apply to trade or commerce in
                any of the Commodities mentioned in Clause (a) of Article
                306 of this Constitution.
                245. Parliament shall by law appoint such authority as it
 G
                considers appropriate for the carrying out of the provisions
                of Articles 243 and 244 of this Constitution and confer on
                the authority so appointed such powers and such duties as
                it thinks necessary. 77
      77   Ibid., p. 453 to 454
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                            363
                    [N. V. RAMANA, J.]

       8.12 In the comments and suggestions to the Draft Constitution        A
of February, 1948, the note to the comment of the Ministry of Industry
and Supply is relevant. The Ministry of Industry and Supply has
expressed the view that Clause (b) of Article 244 is open to serious
objection on principle and should be deleted altogether. The Ministry has
pointed out that it is not possible to foresee the circumstances in which
                                                                             B
the freedom of trade, commerce or intercourse with a State will need
to be interfered with by the State in the Public interest, unless it be on
the basis of discrimination between the residents of one State and
another, and this would be wholly contrary to the spirit of the
Constitution. 78
                                                                             c
       8.13 On 08.09.1949, Hon'ble Dr. Ambedkar moved for the
deletion of these Articles and the motion was adopted by the Constituent
Assembly without any opposition. The substance of these Articles was
however, embodied in another amendment moved by Hon'ble Dr.
Ambedkar inunediately thereafter on the same day. All these Articles
were added in Part XA. The events at the stage of drafting the               D
Constitution, especially Pru1 XIII would show the following which I may
summarize at the cost of repetition:


       First, initially the right to free trade was a Fundamental Right,     E
       but it was not accepted by the Advisory Committee and not even
       moved in the Constituent Assembly for adoption.
       Second, though the precursor clause to Article 304 underwent
       repeated changes before the Advisory Committee and the Drafting
       Committee, never it was suggested that freedom of trade was           F
       meant to be freedom from payment of taxes.
       Third, the power offederal unit to levy tax on the goods imported
       from other units was specifically adumbrated to dispel any doubt
       about taxing power of the State. The logical conclusion is that
       the power of the State to levy any tax on goods imported is           G
       specifically saved and declared in the final clause, therefore it
       would be impennissible to test a law imposing entry tax with
       reference to Article 304(b).

"B. Shiva Rao, The Framing of India's Constitution, Vol. IV, pg. 329
                                                                             H
364            SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A           Fourth, taxes were never intended to be a restriction on freedom
            of trade.


             8.14 Another important question which needs to be answered as
      a part of this reference is whether State enactments relating to levy of
 B
      entry tax have to be tested with reference to both clauses (a) and (b)
      of Article 304 or only with reference to clause (a) of Article 304 of the
      Constitution? In other words is Clause (a) and (b) of Article 304 is
      conjunctive or disjunctive? The answer must be that the history, the
      context and the plain words indicate that Article 304 (a) and (b) are
 c    disjunctive in nature. A levy of tax need not be tested with reference to
      Article 304 (b) of the Constitution. Following are the reasons for reading
      Article 304 (a) and (b) of the Indian Constitution disjunctively.


            First, the legislative history and the intention of the framers as
 D
            elucidated above clearly point out that taxes were never treated
            as restrictions in the first place.
            Secondly, Article 304(a) does not bar or limit State power to levy
            non-discriminatory taxes on the goods imported from other States.
            What is restricted is levy of discriminatory tax only, so to say,
 E
            similar goods manufactured or produced in that State are also
            subjected to tax, so as not to discriminate between the goods
            imported and goods manufactured or produced in the State.
            Thirdly, the two clauses of Article 304 are connected by the word
 F          'and'. Sub-clause (a) puts a restriction on the State to not impose
            a discriminatory tax, whereas sub-clause (b) deals with other
            restrictions relating to trade, commerce and intercourse.
            Fourthly, Article 304 (a) and (b), on a careful reading would show
            that Article 304 (a) and (b) are disjunctive. This is made clear
 G          by the proviso, which is to the effect that a Bill for the purpose
            of Article 304 (b) can be moved by the Legislature of the States,
            only by the previous sanction of the President. If Clauses (a)
            and (b) are not disjunctive, then the language of the proviso would
            have been certainly different and the Bill for the purpose for
            Clause (a) would have been mentioned. Conspicuous absence of
 H
       JINDAL STAINLESS LrD. v. STATE OF HARYANA                                 365
                   [N. V. RAMANA, J.]

      reference to 304(a) in the proviso would certainly lend support            A
      to the view that Clause (a) and (b) of Article 304 are distinct
      and disjunctive. The proviso, it is well settled, is intended to explain
      the main operating part of the Article. It is never used or
      interpreted as expanding the operative part of the provision.
      Fifthly, if one reads Clauses (a) and (b) of Article 304                   B
      conjunctively, then it would not subserve the federal nature of the
      Constitution which is a basic structure.


       8.15 I will now deal with the purport and scope of the word
"discrimination" used in Article 304(a) by making some general
                                                                                 c
observations. Article 304(a) should be interpreted keeping in mind the
balanced development of the country, which is an important part of
economic integration. To achieve the economic unity of the country,
allowing trade and commerce without imposing taxes is not the only
solution but it can also be achieved by bringing in overall prosperity. Part     D
XIII of the Constituti0n permits some forms of differentiation, for
example, to encourage a backward region or to create a level playing
field for parts of the Country that may not have reached the desired
level of economic development. Therefore, Part Xlll envisions a twofold
object: (i) facilitation of a common market through ease of trade,               E
commerce and intercourse by erasing barriers; and (ii) regulations (or
restrictions) which may be necessary for development of backward
regions or in public interest. A brief reference to the Constituent
Assembly debates would amply demonstrate the same. Hon'ble Member
Shri P. S. Deshmukh said:
                                                                                 F

       'How pompously did we decide that there shall be "free
       trade" everywhere! It is not such an easy thing as that and
       [ hope advancement and progress of the various units of
       the Union varies considerably. Some of them are backward                  G
        like Assam or Orissa where there are very few industries
       and very little trade is in the hands, at least of the indigenous
       population. We may have probably to give them some
       protection in order that they mav rapidlv come on par
       with other units. It may be necessary also from time
                                                                                 H
366            SUPREME COURT REPORTS                         [2016] l 0 S.C.R.



A           to time to varv our provisions so far as aid and
            concessions to industries and other things are
            concerned. I therefore do not think that is right to
            bar all discrimination, as it is called (in fact it is
            not),barring all possibility of help to those who are
 B
            backward and who are unabk to compete with the
            more advanced, and who therefore stand in need of
            assistance. From that point of view, my amendment seeks
            to give Parliament a blank cheque and leave to it entirely
            the determination of the policy with regard to trade and
            commerce not only of the whole Union or in regard to any
 c          particular State or States, but so far as all States and their
            trade and commerce inter se is concerned. Therefore, 1
            have proposed a very simple provision as has been
            embodied in my amendment No. 340'.
                                                    (emphasis supplied)
 D

      Sir Alladi Krishnaswami lyer stated:
            'My friend Mr. Krishnamachari has pointed out that this
            freedom clause in the Australian Constitution has given rise
 E          to considerable trouble and to conflicting decisions of the
            highest Court. There has been a foeling in those paiis of
            Australia which depend for their well-being on agricultural
            conditions that their interests are being sacrificed to
            manufacturing regions, and there has been rivalry between
 F          manufacturing and agricultural interests. Therefore, in a
            federation what you have to do is. first, you will have to
            take into account the larger interests of India and permit
            freedom of trade and intercourse as far as possible.
            Secondly, you cannot ignore altogether regional interests.
            Thirdly, there must be the power intervention of the Centre
 G          in any case of crisis to deal with peculiar problems that
            might arise in any part of India. All these three factors are
            taken into account in the scheme that has been placed
            before you'.

 H
         JINDAL STAINLESS LTD. v. STATE OF HARYANA                              367
                     [N. V. RAMANA, J.]

       8 .16 To what extent economic unity in India and regional interests      A
has to be kept in mind while meaningfully implementing free trade clause
in Article 301? In Video Electronics 79 this Court had an occasion to
delve into these aspects. This Court even suggested that there could
be differentiation among regions and among the goods exchanged
between the regions without attracting the tag of discrimination. The           B
following passage from Video Electronics is apposite:
        'Economic unity is a desired goal, economic equilibrium and
        prosperity is also the goal. Development on parity is one
        of the commitments of the Constitution. Directive principles
        enshrined in Articles 38 and 39 must be hannonized with                 c
        economic unity as well as economic development of
        developed and under developed areas. In that light on
        Article 14 of the Constitution, it is necessary that the
        prohibitions in Article 301 and the scope of Article 304(a)
        and (b) should be understood and construed. Constitution
        is a living organism and the latent meaning of the                      D
        expressions used can be given effect to only if a particular
        situation arises. It is not that with changing times the
        meaning changes but changing times illustrate and illuminate
         the meaning of the expressions used. The connotation of
         the expressions used takes its shape and color in evolving             E
        dynamic situations. A backward State or a disturbed State
        cannot with parity engage in competition with advanced or
        developed States. Even within a State, there are often
         backward areas which can be developed only if some
         special incentives are granted. If the incentives in the fonn
                                                                                F
        of subsidies or grant are given to any part of units of a
         State so that it may come out of its limping or infancy to
         compete as equals with others, that, in our opinion, does
         not and cannot contravene the spirit and the letter of Part
         Xlll of the Constitution. However, this is pennissible only
         if there is a valid reason, that is to say, if there are justifiable   G
         and rational reasons for differentiation. lfthere is none, it
         will amount to hostile discrimination'. 80

"Video Electronics v. State of Punjab, (l 990) 3 SCC 87.
'° Ibid. p. 113                                                                 H
368              SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A            8.17 There is a vital difference between mere 'differentiation' and
      'discrimination. It is discrimination not differentiation that is sought to
      be prevented through Part XIII. Again reference to certain observations
      of this Court in Video Electronics would be pertinent:


 B
                  very differentiation is not discrimination. The word
             'discrimination' is not used in art. 14 but is used in Articles
             16, 303 & 304(a). When used in Article 304(a), it involves
             an element of intentional and purposeful differentiation
             thereby creating economic barrier and involves an element
 c           of an unfavorable bias. Discrimination implies an unfair
             classification. Reference may be made to the observations
             of this Court in Kathi Raning Rawat v. The State of
             Saurashtra, [1952] SCR 435 where Chief Justice Shastri
             at p. 442 of the report reiterated that all legislative
D            differentiation is not necessarily discriminatory. At p. 448
             of the report, Justice Fazal Ali noticed the distinction
             between 'discrimination without reason' and 'discrimination
             with reason'. The whole doctrine of classification is based
             on this and on the well-known fact that the circumstances
             covering one set of provisions or objects may not
 E           necessarily be the same as these covering another set of
             provisions and objects so that the question of unequal
             treatment does not arise as between the provisions covered
             by different sets of circumstances'. 81

 F
             8.18 In the above case exemption and incentive granted by one
      State to its inhabitants was challenged as being violative of Article of
      304 (a). Recognizing the concept of economic equality, this Court held:


 G           'Concept of economic barrier must be adopted in a dynamic
             sense with changing conditions. What constitutes an
             economic barrier at one point of time often cease to be so
             at another point of time. It will be wrong to denude the
      " Ibid, p. I 06-107.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              369
                         [N. V. RAMANA, J.]

      people of the State of the right to grant exemptions which              A
      flow from the plenary powers oflegislative heads in list II
      of the 7th Schedule of the Constitution. In a federal polity,
      all the States having powers to grant exemption to specified
      class for limited period, such granting of exemption cannot
      be held to be contrary to the concept of economic unity.                B
      The contents of economic unity by the people of India
      would necessarily include the power to grant exemption or
      to reduce the rate of tax in special cases for achieving the
      industrial development or to provide tax incentives to attain
      economic equality in growth and development. When all
      the States have such provisions to exempt or reduce rates               c
      the question of economic war between the States inter se
      or economic disintegration of the country as such does not
      arise. It is not open to any party to say that this should be
      done and this should not be done by either one way or the
      other. It cannot be disputed that it is open to the                     D
      States to realize tax and thereafter remit the same
      or pay back to the local manufacturers in the shape
      of subsidies and that would neither discriminate nor
      be hit by art.304(a) of the Constitution. In this case
      and as in all constitutional adjudications the substance of
                                                                              E
      the matter has to be looked into to find out whether there
       is any discrimination in violation of the constitutional
      mandate'.
                                              (emphasis supplied)
                                                                              F
        8. 19 Thus stated, the principle laid down in Video Electronics is
that, if a backward area in a State needs impetus for the development,
and in such circumstances incentives are given for the industry to develop
whether by way of subsidies or tax exemptions for a certain period of
time as desired by the competent legislature, the same would be               G
pennissible and would fall outside the scope of Article 304 (a). Such
State enactment is not inherently discriminatory, but rather aims to ensure
economic equality which is a facet of economic unity.
       8.20 A State law directed towards development of a pa1ticular
                                                                              H
370              SUPREME COURT REPORTS                                  [2016] 10 S.C.R.



A     region is pennissible under Part XIII. In support, we may again refer
      to the discussion in the Constituent Assembly debates dealing with the
      concepts of "public interest" and "interest of general public". Clause 13
      was introduced in Chapter dealing with Fundamental Rights making the
      right to free trade, commerce and intercourse as a Fundamental Right
      subject to reasonable restriction. Pandit Thakur Das Bhargava sought
 B
      to move an amendment81 to substitute the words, 'public interest' for
      'interests of the general public' he said :


             'I maintain that there is great difference between the two
 c           expressions. 'Public interest' in regard to a State would only
             include the interests of the inhabitants of that State at the
             most though the word 'public' includes portions of the public.
             Therefore, the interests of a part of the inhabitants of a
             State would also mean 'public interest', whereas if you use
 D           the words "interests of the general public" they would have
             reference to the interests, of the. general public of India
             as a whole. It may be that on many occasions a conflict
             may arise. between the public interest as understood in the
             amendment of Dr. Ambedkar and 'the interests of the
             general public' as used in article 13. When that conflict
 E           arises it would be encouraging provincialism and the
             interests of a few as against the general interest if we
             accept the words 'public interest' in the place of the words
              "in the interests of the general public' 83 •

 r
             8.21 This amendment was negatived. The fact that this amendment
      did not go through would indicate that 'public interest' could imply a
      regional interest that needs to be protected which may not be 'in the
      interests of the general public' but specific to a smaller region. Such an
      interpretation is supported by the manner in which the word
 G
      " Constituent Assembly Debates, 1949, vol. IX, Page 1145.
      <That is amendment No. 269 of List IV (Seventh Week), in clause (b) of the proposed
      new Article 274-D, for the words 'in the public interest', the words 'interests of the
      general public and are not inconsistent with the provision ofArticle 13 be substituted.'
      "Constituent Assembly debates, 1949, Vol. IX, p. 1125.
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                               371
                    [N. V. RAMANA, J.]

'discrimination' has been interpreted by a three Judge bench of this Court      A
in Video Electronics. Thus it can be said that the common thread in
Part XIII is the achievement of economic unity and parity which does
not altogether preclude differentiation for justifiable and rational reasons
wherever necessary. The heart and soul of Part XIII is to dissolve hostile
discrimination within the territ01y of India.                                   B
       8.22 The second facet is that Article 304 (a) is a limitation to
impose any tax on goods imp01ted from other States. This power is
subject to the condition that the goods manufactured or produced within
the State are also subjected to tax, so as not to discriminate between
the goods imported from outside the State. Article 304(a) is not a              c
limitation on the legislature of a State to impose such tax on goods
imported. The only condition envisaged under Article 304 (a) is, same
tax is imposable on the goods imported from other States as well as
goods if manufactured in that State.
       8.23 The contention that the taxing power lies in Article 304 (a)        D
and not in Article 245 r/w 246 is not correct. The words "may by law"
appearing in Article 304 is not source oflegislative power. It is an option
given to the States in case it decides to levy any tax on the goods
imp01ted from other States. The source of legislative power resides in
Article 245 r/w. Article 246 which is indisputable. This power is not
subject to any implied limitation. The plain reading would show that in         E
a given situation, the State may by choice decide not to levy any tax
imported from other States or opt to levy taxes on certain goods imported
from other States. Indeed in all the entry tax laws, the charging section
enables the levy of entry tax only on the scheduled goods. The
scheduled goods are goods declared as attracting entry tax.                     F
       8.24 Discrimination is a relative concept; in order to discriminate
a reference point is required. Article 304(a) rather than being an enabling
provision to allow the State to impose tax, is a restricting provision, which
prevents such levy of tax on goods as would result in discrimination
between goods imported from other States and similar goods                      G
manufactured or produced within the State. The object is to prevent
discrimination against imported goods by imposing tax on such goods at
a rate higher than that home by local goods since the difference between
the two rates would constitute a tariff wall or fiscal barrier and thus
                                                                                H
372             SUPREME COURT REPORTS                         [2016] IO S.C.R.



A     impede the free flow of inter-State trade and commerce. It does not
      prohibit levy of tax as such in the situation wherein the goods are not
      produced or manufactured in the State itself and does not affect the
      authority of the State to tax the imported goods. It only bars
      discrimination on the basis of taxing the products manufactured within
B
      the State vis-a-vis imported goods which will only occur if the
      precondition of manufacturing in the taxing State is satisfied.
            8.25 I agree with the conclusions and reasons given by the learned
      Chief Justice regarding the exemption/set otl/credit with respect to Sales
      tax.
C            8.26 There was good amount of debate on the doctrine of
      compensatory tax evolved by this Court in Automobile. I am in
      respectful agreement with the consideration, reasoning and conclusion
      in the judgment of the learned Chief Justice, who held that concept of
      compensatory tax has neither any juristic basis nor a part of Indian
D     Constitutional law. It is interesting and glaring to note that at the stage
      of drafting, at the stage of consideration by the Sub-Committee as well
      as Advisory Committee and when the Part XA (now Part Xlll) was
      adopted by the Constituent Assembly, never even for a moment, the
      principle of compensatory tax was thought of.

 E
                           PART-IX:CONCLUSIONS


            9. l On an analysis and reasoning as herein above the following
      conclusions would emerge-
 F
             a. Part XIII does not contemplate tax laws within its ambit except
               .to the extent of Article 304(a) of the Constitution.
             b. A11icle 304 (a) and (b) are disjunctive.
             c. Restrictions mentioned under A11icle 304(b) of the Constitution
 G
                do not include tax.
             d. It is not correct to say that since goods being taxed are not
                produced in the State the power to levy a tax gets obliterated,
                that is to say, that Atiicle 304 (a) does not bar levy of tax if
                the goods are not manufactured or produced within the State.
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               373



      e. A1ticle 304(a) of the Constitution protects from discrimination       A
         (for protectionism) and not mere differentiation.
       9.2 Before parting with this case, I would like to express my
appreciation for the way the hearing of the case took place before the
Court. Attorney General needs to be specially mentioned and thanked,
who had appeared and assisted the Court. Lastly, it was a wonderful            B
sight to see young practitioners ably assisting their seniors which only
goes on to reflect vibrancy of Indian Supreme Cou1t Bar.


      R. BANUMATHI .J. I. I have perused the judgment of                       C
Hon'ble the Chief Justice. I agree with the views taken by Hon'ble
the Chief Justice on Question Nos. I and 4 with certain additions. On
Question Nos. 2 and 3, while agreeing with the views of the Chief
Justice over-ruling Jindal Stainless Ltd. (2), on the question of
'Compensatory tax', I have recorded my reasonings which in my view
is necessary to be clarified.                                                  D
        Since substantial questions of law arise for determination which
is of considerable impottance from the point of view of trade, commerce
and intercourse and economic unity of the nation, l would like to give my
own reasonings for my conclusions.
                                                                               E

       I (a). Question No. 1 :- I agree with the conclusion of the Chief
Justice holding that anon-discriminatory tax does not per se constitute a
restriction on the right to free trade, commerce and intercourse
guaranteed under Article 301 of the Constitution. I also agree with the        F
view over-ruling the decisions inAtiabari and Automobile Transport to
the extent they declare that taxes generally are restrictions on the freedom
of trade, commerce and intercourse. l also agree with the view taken by
the Chief Justice over-ruling Jindal Stai11/es.\· Ltd. (2) & A11r. 11. State
o( Harva11a & Ors. (2006) 7 SCC 24 l. Insofar as the concept of
compensatory taxes evolved in Automobile Transport. I am of the                G
view, abandoning compensatory tax in the subsequent judicial
pronouncement like the present one, might prejudice the interest of the
concerned States.
       l(b). Question No. 4:- I agree with the view taken by the
                                                                               H
374            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     Chief Justice on question No. 4 however, with the following additions:-

            (i) When the entry tax is levied by the Entry Tax Act enacted
            by the State Legislature, the term ·a local area'
            contemplated by Entry 52 may cover the 'Whale State' or
             'a local area' as notified in the legislutio11. l agree with
 B          the view taken in Bihar Cit amber of Commerce that from
            the point of view of entry tax that the Stak is a compendium
            of local areas and where the local areas contemplated by
            the Act cover the entire State, the difference between the
            State and ·a local area· practically disappears.
 c          (ii) States have legislative competence to levy entry tax on
            the goods imported from other countries when those goods
            imported from other countries enter a local area for use,
            consumption or sale therein.

            (iii) Tax concessions/benefits/subsidies granted by the Stale
D
            for locally manufactured goods need not necessarily be
            limited for a specific period of time.



             l(c). Questions Nos. 2 and 3:-
 E
             lnsofar as compensatory taxes are concerned in the light of the
      conclusions on question No. l, I hold that the nomenclature of
      'compensatory' ascribed to the taxes levied by the State Government
      under Entry 52, List II pursuant to Automobile is unwarranted. The
      concept of compensatory tax was evolved fifty years back through judicial
 F    pronouncements. It has withstood the test of time and thus, any subsequent
      judicial pronouncement like the present one should not prejudice the
      interest of the parties involved. The State Governments should not suffer
      any loss of revenue solely because of judicial interpretations and
      innovations in Automobile and the case subsequent to it. Subject to
 G    passing the muster of Art. 304(a), entry tax levied by the States under
      entry 52, List II even though termed as compensatory tax does not fall
       foul of Art. 301. In my view, Jindal Stainle.\-.~ Ltd. (2) & Anr. v. State
      o{Harva11a & Ors. (2006) 7 SCC 241 is not a correct view in adopting
      quantifiable data apprqach: for a tax, there is no requirement of proximate
      quid pro quo and Jindal Stainless Ltd. (2) is overruled. I agree with
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             375
                   [R. BANUMATHI, J.]

the view taken in Bhagatram and Bihm· Chamber of Commerce as                 A
the same is in harmony with the original design of compensatory tax laid
down inAutomobile.


      l(d). For the above conclusions, I have put forth my views and
                                                                             B
reasonings under the following heads of discussions:-
      > Introduction                              ..... (Para Nos. 1-l(d)]
      > Background to the reference               ..... (Para Nos. 2-7]
      > Scheme of the Constitution/
                                                                             c
        distribution of legislative powers ·       ..... (Para Nos. 8-14]
      > Freedom of trade commerce and
         intercourse                              ..... [Para Nos. 15-27]
      > Freedom under Atiick 301 is subject to                               D
         Pati Xlll and other parts of the Constitution
         viz. Part Ill, IV. Xll etc.              ..... [Para Nos. 28-35]
      > Question No. 1 with incidental
         questions                              ..... (Para Nos. 36-103]     E
       >Question No.4 with incidental
         questions                             ..... [Para Nos. 104-177]
       > Question Nos. 2 and 3                 ..... [Para Nos. 178-191]
       > Unjust Enrichment                     ..... [Para Nos. 192-198 ]    F
       >Conclusions                            ..... [Para Nos. 199]


      BACKGROUND TO THE REFERENCE:
                                                                             G
       2. In Automobile the concept of compensatory tax has been
judicially evolved as an exception to the provisions of Art. 301. Pre-
1995 decisions have held that the entry tax imposed on the entry of
goods into a local area for consumption, use or sale therein is in the
nature of a compensation. to which, the cost of an existing facility made
                                                                             H
376             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     available to the traders, or the cost of the specific facility planned to be
      provided to the traders, more or less, is to be commensurate with. Pre-
      1995 decisions further emphasized that the imposition of tax is must for
      the definite purpose of meeting the expenses on account of providing or
      adding to the trading facilities, either immediately or in future; provided
      the tax sought to be generated is based on a reasonable relation to the
 B
      actual or the projected expenditure on the cost of the service or facility.
      But the decisions in Bltagatram Rajeevkumar v. Commissioner o(
      Sales Tax, M.P. & Ors. 1995 Suppl. ( 1) SCC 673 a1id State ofBihar &
      Ors. v. Bi/1ar Chamber o( Commerce a11d Ors. ( 1996) 9 SCC 136
      held that even if the purpose of imposition of the tax is not to confer a
 c    special advantage on the traders, but to benefit the public in general
      including the traders, the levy can still be considered compensatory. In
      Bi/tar Chamber of Commerce, this Court reiterated the position that
      "some connection'' between the tax and the trading facilities is sufficient
      to characterize it as compensatory tax. The Court went on further to
 D    hold that an indirect or incidental benefit to traders by reason of stepping
      up the developmental activities in various local areas of the State can be
      legitimately brought within the concept of compensatory tax and the
      nexus between the compensatory tax and the trading facility need not
      necessarily be either direct or specific. In Jindal Stripe Ltd. a11d Anr.
      v. State o(Harvana and Ors. (2003) 8 SCC 60, this Court referred the
 E
      matter to the Constitution Bench to authoritatively lay down the principles
      vis-a-vis compensatory tax.
            3. In Jindal Stainless Ltd. (2) & Anr. v. State of Harvana &
      Ors. (2006) 7 SCC 241, Constitution Bench considered the various
      decisions relating to compensatory tax and held that whenever a law
 F
      levying compensatory tax is impugned as violative of Art. 30 l of the
      Constitution, the Court has to see whether the impugned enactment
      facially indicates the proportionality to the quantifiable data on the basis
      of which the compensatory tax is sought to be levied. lt was further
      held:
 G

             "46. ... it must broadly indicate proportional it)! to the
             quantifiable benefit. If the provisions are ambiguous
             or even if the Act does not indicate facially the
             quantifiable benefit. the burden will be on the S~ate as
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              377
                   [R. BANUMATHI, J.]

      a service/facility provider to show by placing the                      A
      material before the Court, that the payment of
      compensatory tax is a reimbursement/recompense for
      the quant(fiab!el measurable benefit provided or to be
      provided to its payer(.~). As soon as it is shown that the
      Act invades Feedom of trade it is necesswy to enquire                   B
      whether the State has proved that the restrictions
      imposed by it by way of taxation are reasonable and in
      public interest within the meaning of Article 30./ (b) . ..


      4. The Constitution Bench further held that the test of "some           c
connection'' enunciated in Blwgatram was not only contrary to the
working test propounded in Automobile but obliterated the very basis of
compensatory tax. It was, therefore, held that the test of "some
connection" as propounded in Blwgatram was not a correct view and
the judgments in Blwgatram and Bihar Chamber of Commerce were                 D
overruled.
       5. After the judgment of Constitution Bench in Ji11tlal Stainless
(2) dated 13.04.2006, the matter went to a Division Bench which in turn
by their order dated 14.07.2006, reported in Jindal Stai11le~·s Lttl. (3)
am/Anr. I'. State o(Harvana & Ors. (2006) 7 sec 271, directed the             E
High Courts to re-examine the challenge in the light of the principles laid
down by the Constitution Bench. While doing so, this Court retained
seisin of the appeals by directing the appeals to be listed in January,
2007 and in the meantime requested the High Courts to dispose of the
challenge to the Act after granting opportunities to the respective parties
to place materials on record. After the matter was so remanded, in            F
pursuance of the parameters laid down by the Constitution Bench in
Jindal Stainless Ltd. (2), the Punjab and Haryana High Court by
judgment dated 14.03.2007, took the view that the levy under Haryana
Local Area Development Act, 2000 was riot compensatory. The State
ofHaryana challenged the aforesaid judgment dated 14.03.2007 in Civil         G
Appeal No.4715 of2008 and filed certain other appeals challenging orders
in separate cases.
       6. Considering the importance of the issues relating to Articles

                                                                              H
378            SUPREME COURT REPORTS                          [2016] I 0 S.C.R.



A     301, 304 and other provisions of Part XIII of the Constitution, in
      Jaiprakasli Associates Ltd. vs. State of Madliva Pradesh and Ors
      (2009) 7 sec 339 [two Judges], the matter was referred to a larger
      Bench in terms of Art. 145(3) of the Constitution stating that the concept
      of compensatory tax is a judicially evolved concept and in a way provides
 B    a balancing factor between federal control and the State Taxing Board.
      It was observed that the concept had its matrix in transportation cases
      and did not apply to the general notion ofentry tax. The Cou1t considered
      it necessary to refer the batch of appeals to a larger Bench in terms of
      Art. 145(3) of the Constitution and framed ten questions for reference.
      Subsequently, in Jindal Stainless Ltd. & Am: v. State o(Jlarvana &
 c    Ors. (20 l 0) 4 SCC 595, after referring to the reference made in
      Jaiprakaslt Associates, the matter was referred to a larger Bench.
      Accordingly, the matters are now befrlre this larger Bench.



 D           7. Even though ten questions were framed for reference, when
      the matters came up for consideration before this larger Bench, the
      issues for consideration were abridged to four questions as under:-



 E          ( 1) Can the levy of a non-discriminatory tax per se constitute
                infraction of Article 30 I of the Constitution oflndia?

            (2) If answer to Question No. l is in the affirmative, can a
               tax which is compensatory in nature also fall foul ofA1ticle
               30 I of the Constitution oflndia?
 F
            (3) What are the tests for determining whether the tax or
               levy is compensatory in nature?

            (4) ls the entry tax levied by the States in the present batch
               of cases violative of Article 301 of the Constitution and
 G
               in paiticular have the impugned State enactments relating
               to entry tax to be tested with reference to both Articles
               304(a) and 304(b) of the Constitution for determining
               their validity?

 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                379
                   [R. BANUMATHI, J.]

      SCHEME OF THE CONSTITUTION/DISTRIBUTION OF                                A
      LEGISLATIVE POWERS:


      8. Art: l of the Constitution describes India as a Union of States,
thereby implying the indestructible nature of its unity. The country is
                                                                                B
divided into several units, known as States or Union Territories and the
Constitution lays down not only structure of the Union Government but
also the structure of the State Governments.
       9. Art. 245 of the Constitution deals with "Extent of laws made
by Parliament and by the Legislators of State··. Art. 245( I) provides
that the Parliament may make laws for the whole or any part of the
                                                                                c
territory of India, and the legislature of a State may make laws for the
whole or any part of the State. As per subjects of legislation, all the
conceivable subjects have been distributed between the Union and the
States with reference to three Lists contained in the Seventh Schedule
to the Constitution. The three Lists are exhaustive, yet as a matter of         D
principle and also to meet unforeseen circumstances, Art. 248 and entry
97, List I stipulate that the residuary power vests in the Union i.e.,
Parliament has exclusive power to make any law with respect to any
matter not enumerated in the Concurrent or State List.
        I 0. Art. 246 stipulates that with respect to the matters enumerated    E
in List I, Parliament has the cxclusivejurisdiction; with respect to those
in List II, State Legislatures have exclusive jurisdiction; and with respect
to those in List III, both of them can legislate subject to the discipline
enjoined in Art. 254. But the power of Parliament with respect to matters
in List I is "notwithstanding anything in clauses (2) and (3)'" of A11. 246.    F
In other words, List I has priority over Lists Ill and II; and List Ill has
priority over List II. The Scheme of legislative relations between the
Union and the State is inviolable. [A.K. Gopala11 v. State of Madras
AIR 1950 SC 27]
       11. As the opening words ofArt. 245(1) state, the legislative powers     G
of both Union and State Legislatures are subject to other provisions of
the Constitution even though their powers are plenary within the spheres
assigned to them respectively by the Constitution. Legislative competence
of State Legislature can only be circumscribed by express prohibition
contained in the Constitution itself. Unless and until there is any provision
                                                                                H
380             SUPREME COURT REPORTS                          (2016] 10 S.C.R.



A     in the Constitution expressly prohibiting legislation on the subject either
      absolutely or conditionally, there is no fetter or limitation on the plenary
      powers which the State Legislatures enjoy to legislate on the topics
      enumerated in List II and List Ill of the Seventh Schedule to the
      Constitution. It is noteworthy that though Art. 245 is pre-fixed by the
      words 'Subject to the provisions of this Constitution ... '; Art. 246 is not.
 B
      But because Art. 246 only provides for distribution of the legislative
      powers conferred under Art. 245, the words 'subject to the provisions of
      the Constitution' apply equally to Art. 246.
             12. The power of the Parliament and State Legislature to enact
 c    laws flows from Articles 245 and 246. Considering the source of
      legislative powers of the Union and the State in Maharaj Umeg Singh
      and Others v. Tiie State o{Bombav and Other.\', 1955 (2) SCR 164, it
      was held as under:-


 D           "Under Article 246 the State Legislature was invested
             with the power to legislate on the topics enumerated in
             Lists II & III of the Seventh Schedule to the Constitution
             and this power was by virtue of Article 245(/) subject
             to the provisions of the Constitution. "
 E
            13. A Constitution Bench of this Court in K. T. Pla11tatio11 Prfrate
      Limited and Another v. State of Kamataka (20 l l) 9 SCC I (Five
      Judges) observed as under:

 F
             "186. A Constitution Bench of this Court in Hoechst
             Pharmaceuticals Ltd. case. held that !he various entries in
             List III are not "powers" of legislation but "fields" of
             legislation. Later, a Constitution Bench <?f this Court in State
             of W.B. v. Kesoram lndustries Ltd. (2004) 1 SCC l 0 held that
 G
             Article 245 of the Constitution is the fountain source of
             legislative powe1: It provides that subject to the provisions
             of this Constitution, Parliament may make laws for the whole
             or any part of the territory of India. and the legislature of a
             State may make laws for the whole or any part of the State. "
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                      381
                   [R. BANUMATHI, J.]

     14. While interpreting Articles 245 and 246, in State o(Kera/a   A
and Ors. v. Mar Appraem Kuri Compa11v Limited and A11r. (2012) 7
SCC 106, this Court observed as under:-


      "35. Article 245 deals with extent of laws made by
                                                                      B
      Parliament and by the legislatures of States. The verb
      "made", in past tense, finds place in the Head Note to
      Article 245. The verb "make'", in the present tense, exists
      in Article 245 (I) whereas the verb "made", in the past
      tense, finds place in Article 245 (2). While the legislative
      power is derived from Article 245, the entries in the           c
      Seventh Schedule of the Constitution 011lv demarcate
      the legislati1•e fields of the respective legislatures and
      do not confer legislative power as such. While
      Parliament has power lo make laws for the whole or
      any part of the territory of India, the legislature of a        D
      State can make laws only for the State or part there(~(
      Thus, Article 245 inter alia indicates the extent of laws
      made by Parliament and by the State Legislatures.


      37. Article 246, thus. provides for distribution, as between    E
      Union and the States, of the legislative powers which are
      conferred by Article 245. Article 245 begins with the
      expression "su~iect to the provisions of this Constitution".
      Therefore, Article 246 must be read as "subject .to other
      provisions of the Constitution".                                 F
      38. For the p1117Jose.1· of this decision, the point which needs
      to be emphasized is that Article 245 deals with conferment of
      legislative powers whereas Article 246 provides for
      distribution of the legislative powers. Article 245 deals with
      extent of!aws whereas Article 246 deals with distribution of G
      legislative powers. Jn these articles. the Co11stitution Framers
      have used the word "make" and not "commencement" which
      has a specific legal connotation. [See Section 3(13) of the
      General Clauses Act, 1897.] [Emphasis Supplied]

                                                                      H
382             SUPREME COURT REPORTS                          [2016) 10 S.C.R.


A           FREEDOM    OF               TRADE,         COMMERCE             AND
            INTERCOURSE:
             15. Art. 30 I of the Constitution provides for freedom of trade,
      commerce and intercourse throughout the territory of India, subject to
      the other provisions of Part Xlll, Articles 302-305 which pennit the
 B    imposition of reasonable restrictions on this freedom by Parliament and
      the State Legislatures. The underlining idea in making trade, commerce
      and intercourse throughout the territory oflndia free is to emphasize on
      the economic unity oflndia and to ensure that unity of the country may
      not be broken by internal barriers.
 c           16. The Constitution-makers desired free flow of trade and
      commerce in India as they realized that economic unity and integration
      of the country provided the main sustaining force for the stability and
      progress of the political and economic unity of the nation, and that the
      country should function as one single economic unity without barriers on
 D    internal trade. In order to ensure that the State Legislatures subjected
      to local and regional pulls did not create trade bairiers in future, Art. 301
      was incorporated in the Constitution. Art. 30 I in general enacts that
      "subject to the other provisions of this Part, trade, commerce. and
      intercourse throughout the territory of India shall be free". After
      having declared the general nature of the freedom of trade and
 E    commerce, Part Xlll of the Constitution sets out the limitations to this
      freedom, in Articles 302 to 304 which re-state the powers of the
      Parliament and the State Legislatures in imposing restrictions on the
      freedom of trade, commerce and intercourse. Articles 302 to 304 are
      not exceptions to Art. 30 !. Articles 302 to 304 embody a statement of
 F    powers under Art. 246 and the Seventh Schedule with some limitations.
      Each re-stated power by itself overrides the freedom in Art. 301.
             17. Art.302 empowers the Parliament to impose restrictions on
      the freedom of trade, commerce and intercourse provided they are
      required in public interest. The purpose of this provision is to allow the
 G    Government oflndia to restrict the movement of goods so as to safeguard
      a well-balanced economy and for proper organization or supply of goods
      and services. Famine may be raging in one part of the country while
      there is plenty in another part, as has been the past experience of the
      country in regard to food. If Parliament has no effective powers to
      impose restrictions in such situations on freedom of trade and commerce,
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            383
                   [R. BANUMATHI, J.]

then it will undem1ine the unity of nation. It is reasonable to presume     A
that the Parliament, people's representative is a better judge of public
interest and that its judgment must have primacy over any other judgment,
including that of the courts.
       18. Although Parliament is empowered to restrict the free
movement of articles in trade and commerce, nonnally the laws passed B
by Parliament in this context ought to be non-discriminatory in character.
Art. 303(1) of the Constitution prohibits Parliament and the State
Legislature from making "any law giving or authorizing the giving
of, any preference to one State over another, or making or authorizing
the making or, any discrimination between State and another, by c
virtue of any entry relating to trade and commerce in any of the
Lists in Seventh Schedule". Preference or discrimination amounts to a
restriction on the freedom guaranteed under Art. 301 of the Constitution
only if it is a law made by the virtue of any entry relating to trade and
commerce in any of the Lists in the Seventh Schedule. Application of
Art. 303(1) is to specific entries on trade and commerce and not to be D
confused with the general application of Art. 301 to all the legislative
entries other than the entries relating to trade and commerce. But when
any part of the country is suffering from scarcity of goods, Parliament
may, to meet such a situation; pass even a discriminatory law [Art.
303(2)]. Art. 303(2) is an exception to Art. 303(1) inasmuch that the E
limitations of Art. 303 (I) lose operation when aforesaid preference and
discrimination is made for the purpose of dealing with situation arising
from scarcity of goods, and the Parliament may in these situations enact
a law that gives or authorises giving preference or makes or authorises
making of any discrimination.
                                                                           F
        19. As per Art. 304( a), a State Legislature may impose any tax on
goods imported from other States or Union Territories to which similar
goods produced in that State are also subject, so as not to discriminate
between the goods so imported and goods so manufactured or produced
within the State. A State Legislature is also authorised to impose
                                                                           G
reasonable restrictions on the freedom of trade and commerce with or
within that State as may be required in public interest, subject to the
condition that no Bill or Amendment shall be moved in the Legislature of
a State without previous sanction of the President [Art. 304(b)]. Art.
304 begins with non-obstante clause and is intended to override both
                                                                           H
384            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A     Art. 301 and Art. 303. Art. 304(a) does not preventtaxation of goods; it
      only prohibits taxes that discriminate between the goods imported from
      other States and similar goods that are manufactured or produced within
      the taxing State.
             20. Under Art. 305, tax laws existing at the time of the
 B    commencement of the Constitution were safeguarded even if they
      violated the freedom of inter-State trade and commerce along with the
      power of Parliament to regulate them. At the same time, the President
      was empowered to make any changes to those laws as he thought fit.
      This Article in its present fom1 was added by the Fourth Amendment of
 c    the Constitution, 1955, and it saves all the existing laws providing for
      State monopolies which were passed before coming into effect of the
      Fourth Amendment. Under Art. 307, Parliament is empowered to appoint
      such authority as it considers appropriate for carrying out the purposes
      of Articles 30 I to 304 and to confer on that authority such powers and
      duties as it thinks necessary.
 D
          21. Part XII and Part XIII of the Constitution lay down the
   parameters within which State Governments can exercise their right to
   enact laws/impose tax, restricting the freedom of trade, commerce and
   intercourse. Purpose of including Part Xlll (as it stands today) in the
   Constitution as emerges from Section 297 of the Government oflndia
 E Act, 1935 was to confer a freedom of trade, commerce and intercourse,
   subject to restrictions and non-discriminatory tax laws. In this respect,
   Art. 301 does not confer any higher right. Even the Constitutional
   Assembly Debates show that the framers did not intend to confer any
   absolute freedom of trade, commerce and intercourse. Be it noted that
 F they did not adopt the expression "absolutely free" as found in the
   Australian Constitution. Reference to "Constituent Assembly Debates
   30.07.1949 to 18.09.1949" shows that Dr. B.R. Ambedkar while
   introducing Part XA: Trade, Commerce and Intercourse within the
   territory of India Articles 274A to 274D (which corresponds to Articles
   301to304 and 307) before the Constituent Assembly specifically noted
 G
   that it is not the intention to make trade, commerce and intercourse
   absolutely free in India. Relevant extracts from the debate are as under:-




 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           385
                   [R. BANUMATHI, J.]

      " .... /should also like, to say that according to the               A
     provisions contained in this part it is not the intention to
     make ~rade and commerce absolutely free, that is to
     say, deprive both Parliament as well as the States of
     any power to depart from the fundamental provisions
     that trade and commerce shall be free throughout India.               B
      The freedom of trade and commerce has been made
     subject to certain limitations which may be imposed by
     Parliament or which may he imposed by the Legislatures
     of various states, subject to the fact that the limitation
      contained in the power of Parliament to invade the
     freedom of trade and commerce is confined to cases                    c
      arising from scarcity ofgoods in any part of the territory
      of India and in the case of. the States it must he justified
      on the ground ofpublic interest. The action of the States
      in invading the freedom of trade and commerce in the
     public interest is also made subject to a condition that              D
      any Bill affecting the freedom of trade and commerce
      shall have the previous sanction of the President;
      otherwise, the State would not be in a position to
      undertake such legislation ..... " (Constituent Assembly
      Debates (CAD) 30.07.1949 to 18.09.1949 page 1126)
                                                                           E

       22. In fact, Shri T.T. Krishnamachari, while opposing to the idea
of debarring States from imposing any kind of restriction on freedom of
trade and commerce emphasized subjecting 'trade and commerce' to
State's direct regulation, so that the economic progress of the country    F
was not hindered. Relevant extract is as under:-


       "Shri T.T. Krishnamachari: .... Let me tell the House
      that so far as I am concerned I think this is about the
      maximum amount of liberty that we can give for trade                 G
      and commerce, the maximum amount of concession that
      we can give to trade and commerce consistent with the
      future econpmic improvement of this country. Even as

                                                                           H
386            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A           it was originally suggested, that we should make it a
            matter of fundamental right, and even without the
            restriction that have been put in article 16, I am afraid
            the economic progress of the country will become
            well-nigh impossible. There is absolutely no use in the
 B          honourable Member trying to confuse a matter of civil
            liberty with a mater of rights in respect of trade and
            commerce. The world has well-nigh come to a position
            when trade and commerce cannot be run without control
            and somekind of direction by the Government. If my
            honorable friends think that we are in the days of the
 c          nineteenth celltury when the laissez faire enthusiast had
            practically the ordering of everything in the world I am
            afraid they are mistaken. "{CAD Page No.1140 dated
            08.09.1949/

 D
             23. Reiterating the views ofShri T.T. Krishnamachari, ShriAlladi
      Krishnaswami Ayyar pointed out that the Scheme as evolved has taken
      into account larger interest oflndia along with the interests of particular
      State, wide geography of the country where the interest of one region
      differs from the interest of another region, and future prosperity of our
 E    country. Relevant extract is as under:-


            "Shri Alladi Krishnaswami Ayyar: .... It may be that
            manure and other things are required in one part of the
 F          country while profiteers from another part of the
            country may try to transport the goods from the part
            affected. At the same time, in the interests of the larger
            economy and the filfure prosperity of our country, a
            certain degree of freedom of trade must be guaranteed.

 G          My Friend, Mr. Krishnamachari has pointed out that
            this freedom clause in the Australian Constitution has
            given rise to considerable trouble and to conflicting
            decisions of the highest Court. There has been a feeling
            in those parts of Australia which depend for their
            well-being on agricultural conditions that their interests
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              387
                        [R. BANUMATHI, J.]

      are being sacrificed to manufacturing regions, and there                A
      has been rivalry between manufacturing and
      agricultural interests. Therefore, in a federation what
      you have to do is first, you will have to take into account
      the larger interests of India and permit freedom of trade
      and intercourse as far as possible. Secondly, you cannot                B
      ignore altogether regional interests. Thirdly, there must
      be the power intervention of the Centre in any case of
      crisis to deal with peculiar problems that might arise in
      any part of India. All these three factors are taken into
      account in the Scheme that has been placed before
      you. "{CAD Page No.JJ43 dated 08.09.1949/                               c
       24. Referring to reasonable restrictions that may be imposed by
the States and the necessity to obtain sanction from the President, Shri
Alladi Krishnaswami Ayyar further observed as under:-

                                                                              D
      Shri Alladi Krishnaswami Ayyar: .... "Therefore, if on
      account of parochial patriotism or separatism, without
      consulting the larger interests of India as a whole if
      any Bill or amendment is introduced, it will be open to
      the President, namely, the Cabinet of India to withhold                 E
      sanction. This is therefore a very restricted power that
      is conferred on the legislature of a State. After all what
      is the nature of the power given? The power is co1ifined
      to imposing such reasonable, restrictions on the freedom
      of trade, commerce or intercourse with or within that
      State as may be required in the public interest therefore               F
      the President who has to grant sanction will have the
      opportunity to see that the legislation is in the public
      interest and that the restriction imposed is reasonable.
      It is not possible to devise a water tight formula for the
      purpose of de.fining these restrictions. " [CAD Page                    G
      No.II44 dated 08.09.1949/


      25. The purpose of including Part XIII in the Constitution as emerges
from the Constituent Assembly Debates was to ensure the interest of
                                                                              H
388             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A the larger economy of the nation and to prevent unreasonable trade
      barriers in the free flow of trade, commerce and intercourse, impeding
      economic growth. Framers of the Constitution considered flow of trade,
      commerce and intercourse throughout the territory oflndia as important
      for economic unity, but they did not deify trade, conunerce and intercourse
 B    nor they entertained any fetish for it. In fact, freedom of trade, commerce
      and intercourse was initially meant to be a fundamental right but was
      removed from the part pertaining to 'Fundamental Rights' as it was
      considered that it did not have any great content as a fundamental right.
             26. It was considered that freedom of trade, commerce and
 c    intercourse need not be kept at such a high pedestal. It is apposite to
      refer to the following relevant Debates of the Constituent Assembly.


            "Atul Chandra Gupta (Advocate, Calcutta High Court)
            has suggested that clause (b) of article 244 should be
 D          deleted as this clause negatives articles 16 and 243 by
            its vague generality.

            Note: Clause (b) of article 244 is based on the
            recommendation of the Advisory Committee as adopted
            by the Constituent Assembly. The Drafting Committee
 E
            has considered it necessary to substitute for the words
            "in the interest ofpublic order, morality or health" which
            occur in the said recommendation, the words "in the
            public interests". [The Framing of India's Constitution
            (Vol. 4) (Page 328)]
 F
             Shri C. Subramanian (Madras : General): " .... There
             are three.Articles 243, 244 and 245 which deal with
             this subject 'inter-state trade and commerce' in the body
             of the Dra,ft. Then in the list of legislative powers in
             the Union list, we find in entry 73 "inter-state trade
 G           and commerce subject to the provisions of entry 23 of
             List No. II". Then item 32 in List II is "trade and
             commerce within the state; markets and.fairs "; and item
             33 refers to the "regulation of trade, commerce and

 H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                     389
             [R. BANUMATHI, J.]

intercourse with other States for the purposes of the          A
provisions of article 244 of this Constitution." Therefore,
you will find inter-state trade and commerce, subject to
article 244, is a Union subject. Parliament can deal
with it. Trade and commerce within the state and inter-
state commerce as provided in article 244 are given to         B
the State Legislatures. You will .find, Sir, that in article
244, even though it might be inter-state trade and
commerce, the State Legislature is given certain powers
to impose certain taxes and impose certain restrictions.
Having this in mind. if we come to Article 16, we .find
the words, "subject to the provisions of article 244 of        c
this Constitution", that is, even in respect of inter-state
trade and commerce, the State Legislature has been given
certain powers and that is not touched by this article.
Therefore leaving that, the article would read "subject
to the provisions of any law made by Parliament, trade         D
and commerce and intercourse through the territory of
lndia shall be free". I really fail to 11nderstand how
this can be a f11ndamental right and whether there is
any right at all reserved. The very conception of a
fundamental right is that there is a certain right taken
                                                               E
out of the province of the legislat11re either of the Union
or of the State. To put it in other words, the sovereignty
vests in the public, hut that sovereignty is delegated to
the legislatures or the sovereignty is expressed through
the legislatures in respect of certain subjects. {CAD Page
No. 798, 30.07.1949-18.09.1949]                                F

The Honourable Dr. B.R. Ambedkar: ... .Now, I quite
appreciate the ar~ument that this article 16 is out of
place in the list of fimdamental rights, and to some
extent, I agree with Mr. Subramaniam. But I shall
explain to him why it was found necessary to include           G
this matter in the fundamental rights. My Friend. Mr.
SUbramaniam will remember that when the Constituent
Assembly began, we began under certain limitations.
One of the limitations was that the Indian States would
                                                               H
390      SUPREME COURT REPORTS                        [2016] 10 S.C.R.


A     join the Union only on three subjects- foreign affairs,
       defence and communications. On no other matter they
       would agree to permit the Union Parliament to extend
       its legislative and executive jurisdiction ..... Or to put it
       briefly and in a different language, they were not
B     prepared to allow trade and commerce to be included
       as an entry in List No.I. If it was possible for us to
       include trade and commerce in List I, which means that
       Parliament will have the executive authority to make
       laws with regard to trade and commerce throughout
       India, we would not have found it necessmy to bring
 c     trade and commerce under article 16, in the.fundamental
       rights. But as that door was blocked, on account of the
       basic considerations which operated at the beginning
       of the Constituent Assembly, we had to find some place,
      for the purpose of uniformity in the matter of trade and
D      commerce throughout India, under some head. After
       exercising considerable amount of ingenuity, the only
       method we found of giving effect to the desire of a large
       majority of our people that trade and commerce should
       be free throughout India, was to hring it under
      .fimdamental rights. That is the reason why, awkward
 E
       as it may seem, we thought that there was no other way .
       left to us, except to bring trade and commerce under
      fundamental rights. I think that will satis.fY my friend
       Mr. Suhramaniam why we gave this place to trade and
       commerce in the list of fundamental rights, although
 F     theoretically, I agree that the subject is not germane to
       the subject-matter of.fundamental rights.
      With regard to the other argument, that since trade and
      commerce have heen made subject to article 244, we
      have practically destroyed the fundamental right, I
 G    think I may fairly say that my friend Mr. Subramaniam
      has either not read article 244, or has misread that
      artic(e.. Article 244 has a very limited scope. All that it
      does is to give powers to the provincial legislatures in
      dealing with inter-state commerce and trade, to impose
 H
          JINDAL STAINLESS LTD. v. STATE OF HARYANA                               391
                      [R. BANUMATHI, J.]

      certain restrictions on the entry of goods manufactured                     A
      or transported from another State, provided the
      legislation is such that it does not impose any disparity,
      discrimination between the good~ manufactured within
      the State and the good~ imported from outside the State.
      Now, I am sure he will agree that that is a very limited                    B
      law. It certainly does not take away the right of trade
      and commerce and intercourse throughout India which
      is required to be free." [CAD Page No. 1125,
      30.07.1949 to 18.09.1949/

                                                                                  c
        27. After this discussion in the Constituent Assembly, Part XA,
(presently Part Xlll of the Constitution) was moved and adopted in the
present fonn. The fact that free trade and commerce in Part Xlll was
initially introduced as a Fundamental Right and then shifted from the
Part pertaining to Fundamental Rights indicates that the framers of the           D
Constitution considered that freedom of trade and commerce need not
be exalted on par with Fundamental Rights.


          FREEDOM UNDER ART. 301 JS SUBJECT TO PART XIII
          AND OTHER PARTS OF THE CONSTITUTION PARTS III,                          E
          JV AND Xll ETC.:


       28. An argument was advanced that Art. 301 is "subject only" to
Part Xlll and the same cannot be restricted by general and special powers
                                                                                  F
of the Constitution. In this regard, reliance was placed upon Constituent
Assembly Debates where an amendment to Art. 274A was moved by
Pandit Thakur Das Bhargav:"J want the word 'Part' to be substituted
by the word 'Constitution '", which was not approved. Freedom under
Art. 301 in the constitutional context does not mean freedom from all
laws, it is subject to restrictions in Part XIII and also to other parts of the   G
Constitution.
       29. Art. 301 provides for freedom of trade, commerce and
intercourse throughout the territory of India. It strikes an eco-political
balance required for the working of a federal structure. Art. 301 cannot
      I
                                                                                  H
392            SUPREME COURT REPORTS                          [2016] l 0 S.C.R.



A     be interpreted as to mean a restriction on the plenary power of the State
      to impose tax in respect of the relevant "fields" in List II of the Seventh
      Schedule·ofthe Constitution. What it means is that such plenaty power
      of taxation shall not be used to create trade barriers or to discriminate
      between "goods manufactured within the State'· and "goods imported''.
      The expression in Art. 30 I "subject to" is a dominant expression. It
 B
      indicates subservience of the freedom to Articles 302, 303 and 304.
             30. Considering the scope of the expression "subject to" this Court
      in K. T. Pla11tatio11 (P) Ltd v. State o( /(amataka (20 I l) 9 SCC I,
      observed:
 c
             "Section 110 of the Land Reforms Act empowers the
            State Government to withdraw the exemption granted
            to any land referred to in Sections 107 and 108. Section
            I 07 itself has been made "su~iect to" Section 110 of
 D          the Act. The words "subject lo " conveys the idea of a
            provision yielding place to another provision or other
            provisions to which it is made subiect.
             65. In Black :1· Law Dictionary, 5'" Edn. At p. 12 78. the
             expression "subject to" has been defined as under:
 E
            "Subject to - Liable, subordinate, subservient, i11feri01~
            obedient to: governed or effected by: provided that:
            provided; answerable for. "
             66. Since Section 107 is made su~ject to Section 110,
            the former section conveys the idea of yielding to the
 F
            provision to which it is made su~ject that is Section 110
            which is the will of the legislature .... "


             31. Interpretation of the Constitution should emerge from a reading
 G    of the whole of the Constitution to ensure that the overall objectives are
      achieved. Part XIII as a whole is based on a balanced scheme and it
      should be interpreted with reference to other parts of the Constitution
      including Part III, Part XII and Articles 3 8 and 39 of the Directive
      Principles of State Policy. Each of these Parts must be read not in
      isolation or as water tight compartments but harmoniously as a logical
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            393
                   [R. BANUMATHI, J.]

whole. The Constitution must be treated as a logical whole and provisions   A
arc not to be read in isolation. In Kesava11a11da Bharti v. State of
Kera/a, (I 973) 4 SCC 225, the Court stated: ·


      "56 . .... It is not right to construe words in vacuum and
                                                                            B
      then insert the meaning into an article. Lord Green
      observed in Bidie v. General Accident. Fire and Life
      Assurance Corporation (1948) [All E.R. 995, 998]


      61. I may also refer to the observation of Gwye1: CJ.,                c
      and Lord Wright:
      ''A grant of the power in general terms, standing by
      itselj; would no doubt be construed in the wider sense:
      but it may be qualified by other express provisions in
      the same enactment, by the implications of the co/1/ext,              D
      and even by considerations arising out of what appears
      to be the general scheme of the Act. " (Per Giiye1: C.J.
      - The Central Provinces and Berar Act. 1939, FCR 18
      at 42 MR).
       "The question, then, is one of constructio11 and in the              E
      ultimate resort must be determined upon the actual words
      used, read not in vacua hut as occurring in a single
      complex instrument, in which one part may throw light
      on another. The Constitution has been described as the
      federal compact, and the Construction must hold a
                                                                            F
      balance between all its parts. " (Per Lord Wright -
      James· v. Co111111011wealth ofAuS'tralia, 1936 AC 578 at
      613.)
     See also Kilwto Holloha11 v. Zachil/1111 and Ors. ( 1992) Supp 2
SCC 651 [Paras 26 and 27].
                                                                            G


       32. In T.M.A. Pai Fou11datio11 v. State of Karnataka, (2002) 8
SCC 481, the Supreme Court stated:-

                                                                            1-1
394             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A           "148 . .... When constitutional provisions are interpreted,
            it has to he borne in mind that the interpretation should
            be such as to further the object of their incorporation.
            They cannot be read in isolation and have to be read
            harmoniously to provide meaning and purpose. They
            cannot be interpreted in a manner that renders another
 B
            provision redundant. If necessary, a purposive and
            harmonious interpretation should be given. "


             It follows from the above decisions that while interpreting the
 c    Constitution the emphasis must be on reading· it as a whole, and in a
      manner that the intent and object ofno part of the Constitution is defeated.
      In this regard, there must be a holistic approach towards the provisions
      of the Constitution.
           33. Object of Part XIII is not to make inter-State trade, commerce
 D  and intercourse absolutely free. Part XIII will have to be read along
    with other Parts of the Constitution namely, Parts III, IV and XII along
    with the basic features of sovereignty and federalism. Free trade,
    commerce and intercourse is subject to the other provisions of Part XIII
    as well as other constitutional provisions. Art. 301 does not use the
 E word subject 'only' to Part Xlll. The word "free" in Art. 301 is to be
    read not in isolation or in the limited context of Part XIII, but has to be
    read as part of the Constitution as a whole. The word "free" cannot be
    given a meaning which renders the legislative powers of the State
  " ineffective. For instance, Art. 301 cannot be held to employ freedom
    from giving minimum wage, gratuity, providentfund etc. to the workers
 F employed.

             34. Articles 302 to 304 are neither exceptions nor provisos to Art.
      301 and therefore, the principles of interpreting a proviso cannot be applied
      to them. But both Atiabari and Automobile proceeded on the footing
      that Art. 302 is in the nature of exception to Art. 301.
 G
             Gajendragdkar J. inAtiabariheld:
             "Thus, the effect of Art. 302 is to provide for an
             exception to the general rule prescribed by Article
             301 .... " [Pages 853-854]
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                395
                   [R. BANUMATHI, J.]

      Similarly, Das J. in Automobile held:                                     A
      " .... The fact of the matter is that there is such a mix up
      of exception upon exception in the series of articles in
      Part XIII that a purely textual interpretation may not
      disclose the true intendment of Articles .... " [Page 520]
                                                                                B
       " ... It seems to us that so far as Parliament is concerned,
       Art. 303(1) carves out an exception from the relaxation
       given in favour of Parliament by Art. 302; the relation
       given by Art. 302 is itself in the nature of exception of
       the general terms of Art. 301. It would be against the
       ordinary canons of construction to treat an exception                    c
       or proviso as having such a repercussion on the
       interpretation of the main enactment so as to exclude
      .fi·om it by implication what clearly falls within its express
       term .... " [Page 528]
                                                                                D
       The above view inAtiabari and Automobile is not correct. Articles
302 to 304 embody re-statement of powers under Art. 246 and the Seventh
Schedule. Each re-stated power by itself overrides the freedom in Art.
301.
                                                                                E

       35. Further the majority inAtiabari held that:
       " ... The doctrine of freedom of trade, commerce and
      intercourse enunciated in Art. 301 is not subject to the
      other provisions of the Constitution, but is made subject                 F
      only to the other provision of Part XIII, that means, once
      the width and amplitude o,ffreedom enshrined in Art.
      301 are determined, they cannot be controlled by any
      provision outside Part XIII ... " [Page 848]
                                                                                G
       The majority appears to have read Art. 301 as "subject only to
Part Xlll". In the opinion ofleamed author H.M. Seervai too, the majority
view in Atiabari that Art. 301 is subject "only to Part III" was not correct.
It is apposite to quote the relevant passage from H.M. Seervai 's book
                                                                                H
396            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A     on Constitutional Law of India, 4'h Edition, Volui:ne 3:
             " ..... The reasons are - (1) It read into Art. 301 after
            the word~ "subject" the word "only" which is not there
            and this is contrary to well-settled principles of
            interpretation. Further, the power to make rules, referred
            to in Arts. 302 to 305 is governed by Articles 245 and
            246, and, therefore, subject to the provisions of our
            Constitution. (2) The proviso to Art. 304(h) which
            requires the previous consent of the President to a bill
            for the purpose of clause (h), necessarily takes us out
 c          of Part Xlll to Part XI, since Art. 255 in that part
            provide that the failure to obtain the previous sanction
             of the President to the introduction of the hill can he
            made good by his subsequent assent. It follows
             therefore that the freedom guaranteed by Art. 301 is
            not limited to restriction permitted only by Art. 304(h)
D           for the proviso to it is overridden by Art.255 (3). Trade
             is dealt with not only in Art. 301 hut also in Art.19(l)(g)
            and the relation of that Article is necessary for a proper
             interpretation of Part XIII. Article l 9(l)(g) guarantees
             to every citizen the right to carry on any trade or
 E           business. But trade cannot he carried on without goods
             or property and the right to acquire, hold and dispose
             of property which is guaranteed under Art; 19(1) (f).
            Again, it is not only Art.303 which speaks of
             discrimination "Arts. 14 and 15 do likewise and the
             relation o.f this Article to 303 must he considered. " [Page
 F
             2591]


          The States are right in submitting that the majority view, both in
   Atiabari and Automobile, is not correct. Part Xlll and Freedom of
 G Trade, Commerce and Intercourse will have to be read with other Parts
   of the Constitution, particularly, Part UI, IV and Xll and basic features
   of sovereignty and federalism.



 H
       JINDAL STAINLESS LfD. v. STATE OF HARYANA                              397
                   [R. BANUMATHI, J.]

      QUESTION NO.I: CAN THE LEVY OF A NON- A
      DISCRIMINATORY TAX PER SE CONSTITUTE
      INFRACTION OF ARTICLE 301 OF THE CONSTITUTION_.
      OF INDIA?
      Power to Tax is a11 illcide11t of State Sovereig11(v:-
                                                                              B
       36. Entries relating to taxation and levy of duty under the State
List, Seventh Schedule are Entries 46-62 and under the Concurrent List,
Seventh Schedule are Entries 35, 43 and 44. The power to tax is a
sovereign right of the State and is essential to the very existence of a
Government. Any fetters on the power of the State to generate revenue
through taxes have a direct impact on the autonomy and governance of          C
the State.
       37. The term 'tax· is ordinarily used to express the exercise of the
sovereign power to raise revenue for the expenses of the Government.
Judge Cooley in his memorable work on the "Law of Taxation" stated
that taxation is a mode of raising revenue for a public purpose; and the       D
power of taxation is an essential and inherent attribute of sovereignty,
belonging as a matter of r.ight to every independent Government. He
defined the power of taxation as the power inherent in the sovereign
State to recover a contribution of money or other property in accordance
with some reasonable rule of apportionment from the property or                E
occupations within its jurisdiction for the purpose of defraying the public
expenses: -


       " ... It is obvious that it is an incident of sovereignty. and
       is co-extensive with that to which it is an incident. Alf               F
       subjects over which the sovereign power of a State
       extends are objects of taxation, but those over which it
       does not extend are, upon the soundest principles,
       exempt tram taxation. This proposition mav almost be
       pronounced self-evident.                                                G
       The power of taxation is an essential and inherent
       attribute of sovereigntv, belonging as a matter o( right
       to everv independent Government. It is possessed bv
       the Government without being expressly conferred by
                                                                               H
398            SUPREME COURT REPORTS                      [2016] IO S.C.R.



A           the people. The power is inherent in the people because
            the sustenance of the government requires contributions
            ti-om them. In fact the power of taxation mav be defined
            as "the power inherent in the sovereign state to recover
            a contribution of money or other propertv, in
 B
            accordance with some rea.1·01wbfr rule or
            apportionment, fi-oin the propertv or occupation within
            its jurisdiction for the purpose of Jefi·aving the public
            expenses". ''
            (Cooley, Taxation (4'h Edition) Pages. 72, 149.. 150;
 c          Referred to i11 the Article Power to Tax by Herman M.
            Knoeller reported in Market Law Review Volume 22
            15-sue 3 April, 1938. )


            38. This Hon'ble Court has held in a catena of cases that power
 D to levy tax is a sovereign power of the State starting from Raia
   Jagannatlt Baksh Singh 1•. Tlte State of U.P. and Anr., ( 1963) I SCR
      220, where this Hon'ble Court observed that:-


                    The power of taxation is, no doubt, the sovereign
 E
            right of the State; as was observed bv Chie( Justice
            Marshall in M'Culloch v. Marv/and [.I Law Edn. 579
            p. 6071 : "The power o( taxing the people and their
            property is essential to the verv existence of Government,
            and mav be legitimatelv exercised 011 the objects to which
 F          it is applicable to the utmost extent to which the
            Government may choose to carrv it. " In that sense. it is
            not the .fimctio11 of the Court to enquire whether the
            power of taxation has been reasonably exercised either
            in respect of the amount taxed or in respect of the
 G          property which is made the o~jec/ of the tax. Article
            265 of the Constitution provides that no tax shall be
            levied or collected, except by authority of law; and so,
            for deciding whether a tax has been validly levied or
            not, it would be necessary first to enquire whether the
            legislature which passes the Act was competent to pass
 H
       JINDAL STAINLESS LfD. v. STATE OF 1-IARYANA                             399
                   [R. BANUMATI-ll. J.]

      it or not. " [Emphasis Supplied] [Page 232-233]                          A
       39. Power to tax is a sovereign powerand is legislative in character
and it has to be exercised within the constitutiondl limitation. In State o(
W.B. v. Kesoram Industries Ltd. and Others (2004) 10 SCC 20 I, it
was held as under:-
                                                                               B

      "109. The primary purpose of taxation is to co/lee/
      revenue. Power to tax may be exercised/or the purpose
      of regulating an industry, commerce or any other
      activity; the purpose of levying such tax, an impost to
      be more correct, is the exercise of sovereign power for
                                                                               c
      the purpose of eflectuating regulation though
      incidentally the le1y may contribute to the revenue .... "


       Power of taxation has been regarded as an inherent attribute of         D
sovereignty emanating from necessity. Same view was reiterated in
Yadlapati Veukateswarlu v. State ofA.P. (1992) Suppl. (I) SCC 74
[Para 9], State o( U.P. & Anr. v. Synthetics and Chemicals Ltd. &
Anr. ( 1991) 4 SCC 139 [Para 44],Amrit Banaspati Co. Ltd. andA11r.
v. State o(Punjah and A11r. ( 1992) 2 SCC 411 [Para 1O]. Dena Bank
                                                                               E
v. Bhikhahltai Prahhutlas Parekh & Co. anti Ors. (2000) 5 SCC 694
[Para 8].
        40. Subject to the Constitution and its inherent restrictions, the
power of taxation is regarded as political and supreme. Power to levy
tax is indispensable for the existence of any civilized Government as it is
                                                                               F
a necessity for its support and maintenance. Without taxes, for lack of
source of revenue, the Government would become paralyzed. !-low much
revenue is to be drawn and from which source is a matter of fiscal
policy and wholly depends on the needs of a State. In order to support
the existence of the State and its welfare activities, as mandated by the
Directive Principles of the State Policy, the State is empowered to raise      G
revenue through, (i) taxes and duties: (ii) loans raised by the issue of
treasury ~ills, loans or ways and means ofadvances; (iii) fees for licenses;
(iv) fees for services rendered; and (v) fines or other pecuniary penalties
(Articles 199, 207 and 266). On behalf of the State, it was submitted
                                                                               H
400             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     that there are fiscal limitations against taking loans in view of debt
      servicing; even otherwise tax is preferable as it is a mode ofre-distributing
      wealth in the form of public welfare.
            41. In Elel Hotels & l11vestme11ts Ltd. and Otlters 1'. Union of
      India ( 1989) 3 SCC 698, it was held:-
 B

             "20 .... Tax at ion is no! now a mere source of raising
             money to defray expenses of Government. It is a
             recognized fiscal tool to achieve fiscal and social
             objectives ... ··
 c

              42. Parts XI and XII of the Constitution deal with "Relations
      between the Union and the States'' and "Finance, Property,
      Contracts and Suits" respectively. Part XII dealing with finance etc.
 D    has been treated as Part dealing with the sovereign power of the States
      to impose taxes, which must always mean imposing burden on citizens
      and others in public interest. The power of taxation is vested in a sovereign
      State to carry on with the affairs of the Government. Our Constitution
      had laid the foundation of a Welfare State, very much extending the
      activities of the Government and the administration thus making it
 E
      necessary for the State to impose taxes on a large scale and in much
      wider fields. The legislative competence of the Parliament or of the
      State Legislatures can only be circumscribed by express prohibition
      contained in the Constitution itself. The plenary powers of legislation
      vested in the Union and State Legislatures by the Constitution are not
 F    subject to any limitations other than those imposed by the Constitution
      itself.
             43. In Maharaj Umeg Singh and Ors. '" The State o( Bomhav
      and Ors. AIR 1955 SC 540, this Court held that since the power of the
      State to legislate within its legislative competence is plenary and the
 G    same cannot be curtailed in the absence of an express limitation placed
      on such power in the Constitution itself, there is no express prohibition
      on the legislative powers of the State to levy taxes on the goods entering
      into a local area for consumption, use or sale thereon. Taxes being the
      lifeblood of the State, they cannot be decimated by implication.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               401
                   [R. BANUMATHI, J.]

       44. The power to tax is a sovereign power and is legislative in A
character. In a federal system, the legislative power is exercised by
distribution of powers between the Union and the States; both are
supreme in their respective spheres. State's power despite the limited
width of its field is plenary in nature. Except where the constitutional
intent is express and clear, the State's plenary power ought not to be B
whittled down by interpretation. In the present reference, we are
concerned with entry 52, List II "Taxes on the entry of good~ into a
local area for consumption, use or sale therein". Entry tax is a tax
levied on 'Entry of goods into a local area' for the purpose of consumption,
use or sale therein. States within their spheres are autonomous entities
and have the competence to enact legislation in the fields enumerated in c
List II of Seventh Schedule.
       45. In the State List, there are eighteen entries on which the State
Legislature has the power to levy taxes. States and only States have
power to enact legislation in the above fields levying taxes and raise
revenue. The above entries in List II relating to the imposition of taxes      D
by the States, despite the limited width of its field are plenary in nature.
States must have revenue to cany out their administration and the States
are entitled to raise revenue by exercising its power to tax. Such an
important power of taxation expressly granted under the Constitution
cannot be allowed to be whittled down and made subservient to trade,           E
commerce and intercourse.
       46. Tax has always been treated as a distinct entity and is kept on
a pedestal separate from all the other legislative fields of the Seventh
Schedule. It is worth repeating that the power of taxation is an inherent
attribute of sovereignty emanating from necessity. As noted earlier, the       F
exaction is not merely fundamental for existence of the State but also to
support the welfare activities, therefore, it fonns a pre-condition for
exercise of other legislative power. The special status conferred on taxing
statutes is evident from the following special provisions: Article 265
provides that no tax shall be levied or collected except by the authority      G
of law; therefore there can be no levy or collection by exercise of
executive power. Tax legislations are given the status of Money Bills
under Articles 110 and 199 of the Constitution and, therefore, have a
different laying procedure. They can originate only in the lower houses
of the Parliament and the State Legislature as per Articles 109 and 198.
                                                                               H
402            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A · Being a Money Bill, all the revenue is sent to the Consolidated Fund and
    can only be taken out through Appropriation Bills (Articles 114 and 204).


            Freedom in Art. 301 does not mean freedom from taxation:-
 B           47. Historically, Art. 301 was meant to do away with barriers
      between 'Native States' and the rest oflndia. Thus, Art. 301 should be
      interpreted in the light of the object i.e. "economic integration of the
      nation", as opposed to being aimed at any or every action which can
      possibly have an impact on trade, commerce and intercourse. "Free" in
      Art. 301 does not mean freedom from taxation; taxation simpliciter is
 c
      not within the purview of Art. 301. In a sense, every tax imposed~by a
      State Legislature may have an indirect effect on the flow of trade,
      commerce and intercourse. If the power of the State Legislature to
      enact any tax laws is held to be subject to the limitation under Art. 301,
      the legislative power of the State to levy taxes under various entries in
 D    List II would be rendered ineffective.
          48. In various provisions in Part XII of the Constitution certain
   restrictions have specifically been incorporated on State's power to levy
   tax. Restrictions as to imposition of tax on the sale or purchase of
   goods [Art. 286]; Taxes on professions, trades, callings and
 E employments, in tenns of which power of the State Legislature is limited
   to levy tax on professions where the total amount payable is not exceeding
   rupees two thousand and five hundred per annum [Art. 276(2)]; the
   limitation on State's taxing power imposed by the Constitution itself or
   power is given to Parliament to provide the limitations by a law [Art.286
 F (2) and (3)]; Exemption from taxation hy States in respect of water
   or electricity in certain cases and the power of the State Legislature
   to levy such tax after obtaining assent of the President [Articles 288,
   288 (1) and (2)]; Identically, there are at least five entries in List II
   [entries 50, 51, 54, 55 and 57] which specifically provide that they are
   subject to the limitations/principles prescribed by Parliament by law made
 G under List I and List III.

            49. In the Constitution, wherever exemption from taxes were
      contemplated, they were expressly provided for-Exemption ofproperty
      of the Union from State taxation [Art. 285]; Exemption from taxes
      on electricity [Art. 287]; Exemption.from taxation hy States in respect
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             403
                   [R. BANUMATHl, J.]

of water or electricity in certain cases [Art. 288]: Exemption of A
property and income of a State from Union taxation [Art. 289].
Exemption from tax power of Parliament/State Legislature must thus be
provided expressly and unambiguously. Art. 289(2) shows that the trade
or business carried on by, or on behalf of, the Government of the State,
can also be subjected to tax and the tax could be "to such extent", if
                                                                             B
any, as Parliament may by law provide. When even the trade or business
carried on by or on behalf of the Government of the State can also be
subjected to tax, it would be erroneous to hold trade, commerce and
intercourse carried on by private individuals and companies in the country
free from tax; and that too, by implication.
                                                                             c
       50. It is well-settled that even Fundamental Rights in Part III of
the Constitution are not immune from taxation and taxation has been
held to be "not a restriction''. In Indian Express Newspapers
(Bombay) Pl't. Ltd. am/ Ors. etc. "· U11io11 of India and Ors. etc.
( 1985) I SCC 641, levy of indirect tax on newspaper industry, through
levies on imported newsprints was challenged as violative of Art.            D
 19(l)(a). Holding that press is not immune from taxes it was held:-


      "49 • .... Yet the American courts have recognized the
      power of the State to levy taxes on newspaper                          E
      establishments, of course, su~ject to judicial review by
      courts by the application of the due process of law
      principle .... Taxation is the legal capacity of sovereignty
      or one of its governmental agents to exact or impose a
      charge upon persons or their property for the support
      of the government and for the payment for any other                    F
      public purposes which it may constitutionalf-v carry out.


      65. Newspaper industry enjoys two of the fundamental
      rights, namely the freedom of speech and expression                    G
      guaranteed under Article 19(1) (a) and the ji·eedom to
      engage in any profession. occupation. trade. industry
      or business guaranteed under Art. 19(1) (g) of the
      Constitution, the first because it is concerned ·with the
      field of expression and communication and the second
                                                                             H
404            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A           because communication has become a11 occupation or
            profession and because there is an invasion of trade,
            business and industry into that field where fi'eedo111 of
            expression is being exercised. While there cu11 be no
            tax on the right to exercise (i-eedom of expression. tax
 B
            is leviahle on profession, occupation. trade, business
            and industrv. Hence tax is /eviable on newspaper
            imiustrv. But when such tax transgresses into the field
            of freedom o( expression and stifles that freedom, it
            becomes unconstitutional. As long as it is with in reasonable
            limits and does not impede freedom of expression it will
 c          not he contravening the limitation o(Art.19(2). The
            delicate task of determining when it crosses ti-om the
            area ofprofession, occupation, trade. business or industry
            into the area of freedom of expression and interferes with
            that freedom is entrusted to the courts.
 D

            69. In the case of ordinarv. taxing.. statutes, the laws mar
                                                                       .
            be questioned on~v !f they are either openly co1?fiscato1:r
            or a colourable device to confiscate. 011 the other hand.
            in the case of a tax on newsprint. it may be sufficient to
 E          show a distinct and noticeable burdensomeness, clearly
            and directly attributable to the tax. " [Emphasis added]


             51. In All Bihar Schools Association anti A11r. v. State o(Bilwr
 F    and Ors. (1988) l SCC 206, it was held that religious minority institutions
      are not immune from general laws including tax measures and social
      welfare legislations. Similarly, in Printer.\· (Mrsore) Ltd. and Am. 1•.
      Asstt. Commercial Tax Officer and Ors. ( 1994) 2 SCC 434, after
      referring to Express Newspapers case, it was held that press is not
      immune from taxation or general law. Thus when even Fundamental
 G    Rights are not free from taxation, trade, commerce and intercourse cannot
      claim immunity from taxation.
             52. A1i. 304(a) allows levy of tax on goods impo1ied from other
      States, any tax, to which similar goods manufactured or produced in that
      State are subject so as not to discriminate between goods so impmied
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                  405
                   [R. BANUMATHI, J.]

and goods so manufactured or produced within the State. Art. ·304(a)              A
states non-discriminatory tax does not impede the flow of trade,
commerce and intercourse. A1t. 304(a) applies where the following
conditions are cumulatively satisfied:-

      (a) the State Legislature by law imposes a tax;
                                                                                  B
      (b) tax is imposed on goods imported into that State from other
         States or Union Territories;

      ( c) a tax is also imposed on similar goods manufactured or
          produced in that State; and
                                                                                  c
      (d) there is no discrimination between goods imported and goods
         manufactured or produced in that State.
       When these four conditions are fulfilled, A1t. 304(a) provides a
constitutional route to levy non-discriminatory tax. Under Art. 304(b),
the ban under Art.301 stands lifted even if discriminatory restrictions           D
are imposed by the State Legislatures, provided they fulfill the following
conditions-(a) such restrictions are in public interest; (b) they are
reasonable; and (c) they are subject to obtaining of prior sanction of the
President before introduction of the Bill or amendment.
        53. While the States have legislative power to levy taxes on goods        E
imported from other States, Art. 304(a) imposes restrictions on this power
of the States to levy a tax on goods that would result in discrimination
between goods imported from other States and similar goods
manufactured or produced within the States. The non-obstante clause
in Art. 304 with respect to Art. 301, actually indicates that since tax does
                                                                                  F
not fall within the purview of Art. 301, therefore, Art. 304(a) was brought
in to provide against discrimination based on source or destination of
goods. Art. 304(a) is thus a restriction on the tax powers of the States,
not to discriminate between the goods imported into the State with similar
goods manufactured or produced within the taxing State.
                                                                                  G
       54. Constituent Assembly Debates indicate that the framers of
the Constitution while intending to guarantee free flow of trade, commerce
and intercourse did not deify it. As discussed earlier, at the time of drafting
Constitution, provision containing freedom of trade, commerce and
intercourse which was initially shown as Fundamental Rights; but after
                                                                                  H
406            SUPREME COURT REPORTS                       [2016] l 0 S.C.R.



A     debates, it was shifted to a separate Part [Part XIII]. The framers of
      the Constitution did not intend that trade, commerce and intercourse is
      free from taxation. Art. 304 provides for the power of the States to
      impose taxes, subject of course, the levy is not discriminatory. Hence,
      Art. 3 0 I ought not to be read as freedom from tax laws.
 B         55. In this regard, we may usefully refer to Constituent Assembly
      Debates/Framing oflndia 's Constitution:


            Sliri Alladi Krishna.nvami Arvar
 c           "And then. "Provided that nothing in this section shall
            prevent any unit jiYJm imposing on good~ imported from
            other units the same duties and taxes to which goods
            produced in the unit are su/1ject". That is to say we
            ought not to differentiate; hut at the same time, goods
 D          coming in should not go scot free: they should be su~ject
            to the same duty as goods produced in the area" (The
            framing of lndia:s Constitution,. Select Documents by
             Universal Law, Law Publishing PJJt. Co. Pvt. Ltd. Vol.2
            Page.253)
 E          Gobind Ballabh Pant

            "There is unanimizy about the body- of this clause and it
            is clear that there should not be any discrimination
            against one unit by another unit. Otherwise we will be
            going against the very sense of a Union r4 Federal
 F          Constitution. If the units are to be discriminated against
            we will come to blows more often than otherwise.
            Therefore this should he avoided. "(The framing of
            India's Constitution, Select Documents by Unil•ersal
            Law, Law Publishing Pvt. Co. Pvt. Ltd. Vol.2 Page.254)
 G
            Sltri Krislwaswami Avvar
             "So far as article I 6 is concerned, the substance of the
            freedom of trade guarantee is preserved. We have
            prohibited the States and the Centre fi·om passing
 H
        JINDAL STALNLESS LTD. v. STATE OF HARYANA                               407
                    [R. BANUMATlH, J.]

      discriminatorv laws·· [Constituent Assemb(v Debates                       A
      dated 30.07.1949 to 18.09.1949 (Page 1144)]
        56. A tax legislation could be challenged on the ground oflegislative
competence as well as violation of Fundamental Rights guaranteed under
-Part Ill of the Constitution. In Rai Ramkrisltna and Ors. v. Tile State
o(Bilwr (1964) l SCR 897, this Court while holding that tax Statutes            B
were not beyond the constitutional limitation prescribed by Articles 14
and 19 held that the challenge must however be dealt with caution and
circumspection:


                                                                                c
       "13 ..... .that taxing statutes are not bevond the pale of
       the constitutional limitations prescribed by Articles 19
       and I 4. and he also concedes that the test of'
       reasonableness prescribed by Ari. 304(bJ is justiciable.
       fl is, of course. true that the power of taxing the people
       and their property is an essential attribute of the                      D
       Government and Government may legitimately exercise
       the said power by reference to the obiects to 1vhich it is
       applicable to the utmost extl'nt to which Government
       thinks it expedient to do so. The obiects to bl' taxed so
       long as they happen to be Within !he !egislalii"<'                        E
       competence of the legislalure can be /axed by the
       {egislature according to the exigencies of its needs.
       because there can be no doubt that the State is e11tit!ed
       to raise revenue by taxation. The quantum of tax levied
       by the taxing statute, the conditions subject to which it
                                                                                 F
       is levied, the 111u1111er in whiclt it is sought to be
       recm•ered, are a/I matters within the competence <~(the
       legislature, and ill dealing witlt the contention raised
       by a citizen that tile taxing statute co11traw11es Art. 19,
       courts would naturally be circumspect and cautious.
        Where for instance, it appear,\' that tlte taxing statute is            G
       plainly discriminato1~v, or provides 1w procedural
       machinery for asses.~ment and le1'Y of the tax, or tllat it
        is confiscatory, Courts would be just(fled in striking
       down the impugned statute as 1mco11stitutio11al. In such
       cases, the character of the material pro11i~·io11s of the
                                                                                H
408            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A           impugned statute is such that the Court would feel
            justified in taking the view that, in substance, the taxing
            statute is a cloak adopted by tlte legislature for achieving
            its confiscatory purposes. This is illustrated by the
            decision of this Court in the case of K11n11athet
             Tlwthunni Moopil Nair v. State of Kera/a [1961) 3 SCR
 B
             77, where a taxing statute was struck down because it
             suffered from several fatal il?flrmities. On the other hand,
             we may refer to the case of Raja Jagannath Baksh
             Singh v. State of Uttar Pradesh [1962) 46 ITR 169 (SC)
            , ·ivhere a challenge to the taxing statute on the ground
 c           that its provisions were unreasonable was rejected and
             it was observed that unless the infit·mities in the
             impugned statute were of such a serious nature as to
            justify its description as a co!ourable exercise of
             legislative power; the Court would uphold a taxing
 D           statute. " [Emphasis supplied]


             57. In Hari Krishna Blwrgav v. Union o{lmfia and A11r. AIR
      !966 SC 619, the Bench noting the effect the series of decisions has had
      on Ramjilal, concluded that although the power to tax is not a power
 E    that transcends fundamental rights, a taxing Statute cannot merely be
      challenged on the ground that it is harsh and excessive. It was observed
      as under:-



 F           "l 0. it was urged that even if the exercise of the powers
            to compel deposits be regarded as not unconstitutional,
             its exercise is harsh and the demand~ made by the State
             are excessive. Exercise of the taxing power by the State
             has undoubtedly to be tested in the light of the
            fundamental freedoms guaranteed by Ch. III of the
 G           Constitution. It is llOt a power wltic/1 tra11sce11ds· the
            f u11dame11tal rights, as was assumed in certa ill earlier
             decisions : Ramjila/ v. Income-tax Officer (1951) 19
             !TR 174 (SC) ; Laxmanappa Hanumantappa v. Union
             of India (UOI) (1954) 26 !TR 754 (.S'C) ; and the view
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              409
                   [R. BANUMATHI, J.]

     expressed by Venkatarama Ayyar J .. in S. Anantha                        A
     Krishnan v. State of Madras I.L.R. [1952] Mad. 933.
     But it is now settled by decisions of this Court (e.g.)
     Kunnathat Thathunni Moopil Nair v. The State of Kera/a
     and Another (1961) 3 SCR 77 that a taxing statute is
     subject to the "conditions laid down in Art. 13 of the                   B
     Constitution ". A taxing statute may accordingly by open
     to challenge on the ground that it is expropriatory; or
     that the statute prescribes no procedure or machine1y
     for assessing tax, but it is not open to challenge merely
     011 the ground that the tax is harsh or excessive. "
      [Emphasis supplied]                                                     c

       Consistent view taken in the above series of decisions and other
decisions is that tax legislations can be challenged on the ground that
they infringe the Fundamental Rights under Part III but that does not         D
however mean that there is freedom from taxation or that tax is per se
a restriction on Fundamental Rights or freedom of trade, commerce and
intercourse.


      Tax is not a restriction per se:                                         E
       58. The above Constituent Assembly Debates and the history of
Art. 301 show that freedom envisaged in Art. 301 is not freedom from
taxation but only freedom from trade barriers. So long as the tax remains
non-discriminat01y, its validity cannot be judged under Art. 301. Under
Art. 246(3) of the Constitution, a State has exclusive power to make           F
laws for such State or any part thereof with respect to any of the matters
enumerated in List II of the Seventh Schedule. Art. 246(3) is subject to
clauses ( 1) and (2) of Art. 246 i.e. matters enumerated in Lists I and Ill
of the Seventh Schedule. As per Art. 265, a tax can be imposed only
under authority of law and there is no role of the Executive. Taxation         G
includes the imposition of any tax as defined under Art. 366(28):
"taxation" includes the imposition of any tax or impost, whether
general or local or special, and "tax·· shall be construed
accordingly. It is a sovereign power of compulsory exaction as a part
of any burden by public authority for public purposes enforceable by
                                                                               H
410            SUPREME COURT REPORTS                           (2016] 10 S.C.R.



 A    law. Imposing a tax is a compulsory exaction made for a public purpose
      without reference to any special benefit to the taxpayers.
             59. The taxing power of the State stands independently fortified
      by Parts XI and XII of the Constitution oflndia and can only be challenged
      on the ground of reasonableness. It needs no reiteration that power of
 B    States to levy taxes for the purpose of governance and carrying out its
      welfare activities is a necessary attribute of State's sovereignty and in
      that sense it is a power of supreme attribute. It is well-settled that taxes
      are levied in public interest and hence, cannot be considered a restriction
      per se on the enjoyment ofany freedom contemplated by the Constitution.
 c    It would be highly unjustified to view a taxing Statute as a restriction on
      individual freedoms.
             60. The essential characteristics of a tax are that: (i) it is imposed
      under a statutory power without the taxpayer's consent and the payment
      is enforced by law: (ii) it is an imposition made for public purpose without
 D    reference to any special benefit to be conferred on the payer of the tax;
      and (iii) it is part of the common burden. In Commis.\'ioner Hindu
      Religious Endowment.\·, 1lfadras v. Sri Laksltmi11dra Tltirtlta
      Swamiar o(Sri Shirur Afutt 1954 SCR l 005, the Constitution Bench
      has laid down the characteristics ofa tax which has since been consistently
      followed and it is as under:-
 E

              " .... A tax is a compulsory exaction of money bv a public
             authority for pub/ ic purposes <?1?/iJrceab/e by law and
             is 11ot payment ".for services rrndered''. This defi'11itio11
 F           brings out, i11 all opinion. the essrntia/ characteristics
             of a tax as distinguished ji-r1111 utherjim11s of imposition
             ·which, in a 7eneral sense. are i11cluded within it. ft is
             said that the essence of taxation is comp11lsio11, that is
             to say, it is imposed under statuto1y power 11'ithoul the
             taxpayer :1· consent a11d the payment is e1?fiJrced by law.
 G           The second characteristic of tax is that it is a11 i111positio11
             made for puhlic purpose without reference to any .1pecia/
             benefit to be conferred on the paver of the lax. This is
             expressed by saying that the levy of tax is for the
             purposes of general revenue. which when collected
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              411
                   [R. BANUMATHI, J.]

      revenues of the State. As the o~ject ol a tax is not to                 A
      confer any special benefit upon anv particular
      individual there is as it is said, no element of "quid pro
      quo" between the taxpayer and the public authority.
      Another feature of taxation is that as it is a par/ of the
      common burden, the quantum of imposition upon the                       B
      taxpayer depends generally upon his capacity to pay. "


        The above decision was followed in Indian Medica/Associatio11
v. V.P. Stmtlw and Ors. ( 1995) 6 SCC 651 and also in State of Gujarat
and Ors. 1•. Akhil Gujarat Pravas·i V.S. Mahamanda/ and Ors. (2004)           c
5 sec J55.
       61. A five Judges _Bench of this Court in Federation of Hotel
and Restaurant Association of J11dia, Etc. v. Union of India and
Ors. ( 1989) 3 SCC 634 has held that mere excessiveness of a tax or
even the circumstance that its imposition might tend towards diminution       D
of the earnings or profits oft he persons of incidence does not per se and
without more, constitute violation of Art. 19( I )(g). The relevant extract
from the judgment is as under:


                                                                              E
       "62. A taxing statute is not, per se, a restriction of the
      fi'eedom under Article 19(J){g!. The policv of a tax, in
       its effectuation, mig/11, of course, bring in some hards· hip
       in some individual cases. But that is inevitable, so long
       as law represents a process of abstract ion from the
      generality <~f cases and reflects the highest common                     F
      fact01: Every cause, it is said, has its martyrs. Then
       again. the mere excessiveness of a tax or eve11 the
       circumstance that its imposition might tend towards the
       diminution of the earnings or profits of the persons of
       incidence does 1101, per se, and without more. constitute              G
       violation of the rights under Article J 9(l)(g;."


      62. Similar view was expressed in Express Hotels Private
Limited v. State of Gujarat and A11r. (1989) 3 SCC 677. A taxing
                                                                               1-1
412             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



 A    Statute is not per se restriction of the freedom under A1t. 19( I )(g):


            "28. So far as the argument
                                   .       that Fundamental Rights
                                                                .
            under Article 19(l)(g) are violated by a levy on a mere
            provision for luxury. without its actual utilisation. is
 B
            concerned ii is settled lcnv that the mere excessiveness
            of a tax or that it affects the earnings cannot. per se.
            be held to violate Article 19(l}(g) .... ''


 c           63. A1i. 304(a) authorizes a State Legislature to impose a non-
      discriminatory tax on goods imported from other States. Art. 304(a)
      does not prevent levy of tax on goods; what it prohibits is such levy of
      tax on goods as would result in discrimination between goods imported
      from other States and similar goods manufactured or produced within
      the State. The object is to prevent imported goods from being
 D
      discriminated by imposition of a higher tax thereon than the local goods.
      Under Art. 304(b), States can impose reasonable restrictions on the
      freedom of trade, commerce and intercourse with or within that State as
      may be required in public interest; provided they obtain prior sanction of
      the President before introduction of the Bill. As taxes are levied for the
 E    purpose of raising revenue, they are not restrictions and are presumed
      to be in public interest. Thus, tax simpliciter is not a restriction ori the
      freedom of trade and commerce and is outside the purview of Art. 301.


            Majority l'iew in Atiabari and Automobile: Need of re-
 F
      appreciatio11:-
             64. In Atiabari Tea Co. Ltd. v. The State o(Assam and Ors.,
      1961 SCR 809, Assam Legislature enacted the Assam Taxation (On
      Goods Carried by Roads or Inland Waterways) Act, 1954 acting on
      entry 56 of the State List and imposed tax at a rate of one anna per
 G
      pound of tea in chest box, carried through the State of Assam by any
      means other than the railways and the air. The appellant who carried
      their tea to Calcutta in the State of West Bengal through the State of
      Assam assailed the validity of the Act inter alia on the ground that it
      violated Art. 30 I of the Constitution. Contention of the appellant was
 H
         JINDAL STAINLESS LTD. v. STATE OF HARYANA                            413
                     [R. BANUMATHI, J.]

that words of Art. 301 are very wide and unambiguous and that it would        A
be unreasonable to exclude from its ambit a taxing law which restricted
trade, commerce or intercourse either directly or indirectly. The
respondent-State of Assam urged that the provisions of sovereign power
of the State to levy tax under Parts XI and Xll of the Constitution stood
by themselves and that the tax would not fall foul of Part XIII.              B
       65. After discussing various provisions of Part Xlll and after
tracing the constitutional background, speaking for the majority, Justice
Gajendragadkar held as under:-


         " ........ Thus considered we think it would be reasonable
                                                                              c
         and proper to hold that restrictions ji-eedom from which
         is guaranteed by Art. 301 would be such restrictions as
         directly and immediately restrict or impede the free flow
         or movement of trade. Taxes mav and do amount to
         restrictions: but it is onlv such taxes as directlv and              D
         immediately restrict trade that would fall within the
         purview o(Art.301. The argument that all taxes should
         he governed by Article 301 whether or not their impact
         on trade is immediate or mediate. direct or remote.
         adopts. in our opinion. an extreme approach which                    E
         cannot he upheld. If the said argument is· accepted it
         would mean, for instance, that even a legislative
         enactment prescribing the minimum wages to industrial
         employees may fall under Part XIII because in an
         economic sense an additional wage bill may indirectly
         affect trade or commerce. We are. therefore, satisfied                F
         that in determining the limits of the width and amplitude
         of the freedom guaranteed bv Art. 301 a rational and
         workable test to apply would be: Does the impugned
         restriction operate directly or immediately on trade or
         its movement?" [Page 860] [Emphasis Supplied]                        G


       The majority based its opinion on the reasoning that any legislation
whether taxing or otherwise which imposed any restrictions that had 'the
effect of directly offending the movement or transport of goods would
     fl                                                                       H
     f
414             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A ·attract the provisions of Art. 30 I and its validity could be sustained only
   ifit satisfied Art. 302 or Art. 304(b) of the Constitution.
             66. Sinha, C.J. in his dissenting judgment referred to the integration
      of"Native States" with the Government ofindia and how the "Native
      States" ultimately merged their individualities into India to emerge as
 B    one political unit with the result that what was called British India became
      under the Constitution' Part-A States', and the "Native States" became
      'Pai1-B States'. Sinha, C.J. pointed out that most of the "Native States'',
      big or small had their own taxes, cesses, tolls and other imposts and
      duties meant not only for raising revenue but also as trade barriers and
 c    tariff walls. In the background of those circumstances, it was necessary
      to abolish all those trade barriers and custom posts as also in the interest
      of national solidarity, economic and cultural unity and freedom of trade
      and commerce guaranteed in the Constitution by Art. 301. Observing
      that the power to tax is inherentin sovereignty, public purpose is inherent
      in every taxation and tax simpliciter is not an impediment to the freedom
 D    of trade, commerce and intercourse, Sinha C.J. held as under:-


             " .... If that were so, all laws of taxation relating to sale
             and purchase of goods on carriage of goods and
 E           commodities, men and animals, from one place to
             another, hoth inter-State and intra-State would come
             within the purview of Art.301 and the proviso to Art.
             304(h) would make it necessary that all .Bills or
             Amendments of pre-existing laws shall have to go
             through the gamut prescribed by that proviso. That will
 F
             he putting too great an impediment to the power of
             taxation vested in the States and reduce the States' limited
             sovereignty under the Constitution to a mere fiction.
             That extreme position has, therefore, to be rejected as
             unsound. " [Page 827]
 G

             Jn my opinion, another very cogent reason for holding
             that taxation simpliciter is not within the terms of Art.
             301 of the constitution is that the very connotation of
 H
 JINDAL STAINLESS LTD. v. SlATE OF HARYANA                     415
             [R. BANUMATH.I, J.]

taxation is the power of the Stale to raise monev for          A
public purposes by compelling the payment by' persons,
both natural and juristic. of monies earned or possessed
by the1ri, by virtue of the facilities and protection
afforded by· the State. Such burdens or imposts. either
direct or indirect, are in the ultimate analvsis meant as      B
a contribution by the citizens or persons residing in the
State or dealing ivith the citizens of the State. for the
support of the Government, with particular reference
to their respective abilities lo make such contributions.
Thus public purpose is implicit in even· taxation, as
such. Therefore. when Part Xlll of the Constitution            c
speaks of imposition of reasonable restrictions in public
 interest it could not have intended lo include taxation
within       the        generic    term     "reasonable
restrictions" ......... [Page 828]
                                                               D

 .... The obiections against the contention that taxulion
 was included within the prohibition contained in Part
Xll! may thus be summarized: (/) Taxation. as such,
 always implies that it is i11 public interest. Hence. it      E
would be outside particular restrictions. which may be
characterized by the Courts as reasonable and in public
 interest. (2) The power is vested in a sovere1~~11 State to
carry on Governme11t. Our Co11stit11tio11 has laid the
foundations of a welfare State, which means very much
 expanding the scope of the activities of Government            F
 and administration, thus making it necessary for the
State to impose taxes 011 a much larger scale and in
 much wider flelcl.s. The legislative entries in the three
 lists referred lo above e111poweri11g the Union
Government and the State Governments to impose                 G
certain taxations with reference to movemems (~f gooi.l.1
and passengers would be rendered ineffective, if 110/
 otiose, if ii were held that taxation simpliciter is within
 the terms of Art. 301. (3) {f the argument on behalf of
 the appellants were accepted, many taxes. for example,
                                                               1-1
416      SUPREME COURT REPORTS                         [2016) 10 S.C.R.


A     sales tax by the Union and by the States, would have to
      go through the gamut prescribed in Articles 303 and
       304, thus very much detracting from the limited
      sovereignty of the States, as envisaged by the
      Constitution. (4) Laws relating to taxation, which is
 B    essentialZv a legislative function of the 5iate. will become
      justiciable and ever:v time a taxation law is challenged
      as unconstitutional, the State will have to satisfy the
      courts - a course which will seriously affect the division
      of powers on which modern constitutions. including
      ours. are based. (5) Taxation 011 movement <~f' goods
 c    and passengers is not necessariZv an impediment. "[Page
      829]


      Article 301, with which Part Xlll commences. contains
 D     the crucial words "shall be free" and provides the key
       to the solution of the problems posed by the whole Part.
      The freedom declared by this Article is not an absolute
       freedom from all legislation. As alreadJ' indicated, the
      several entries in the three Lists would suggest that both
      Parliament and State Legislatures have been given the
 E    power to legislate in respect of trade, commerce and
       intercourse, but it is equally clear that legislation should
      not have the effect of putting impediments in the way of
      free flow of trade and commerce. In my opinion, it is
      equally clear that the freedom envisaged by the Article
F      is not an absolute freedom from the incidence of taxation
       in respect of trade. commerce and intercourse. as shown
      by Entries 89 and 92 A in List I, Entries 52, 54 and 56
       to 60 in List II and Entr:v 35 in List III. All these entries
       in terms .1peak of taxation in relation to different aspects
      of trade, commerce and intercourse. The Union and Slate
G
      Legislature, therefore, have the power to legislate bv
      way of taxation in respect of trade, commerce and
       intercourse, so as not to erect trade barriers, tariff walls
       or imposts. which have a deleterious effect 011 the free
       flow of trade, commerce and intercourse. That fi-eedom
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                          417
                   [R. BANUMATHI. J.]

      has further bee11 circumscribed bv the power vested i11             A
      Parliament or i11 the Legislature of a State to impose
      restrictions in the public interest. Parliament has further
      been authorised to legislate in the way of giving
      preference or making discrimi11ation in certain strictlv
      limited circumsta11ces indicated in cl. (2! of Art. 303.
                                                                          B
      Thus, 011 a (air construction of the provisions of Part
      XIII, the following propositions emerge: (!) trade,
      commerce and intercourse throughout the territorp of
      India are not abso!utelv free, but are subject to certain
      powers of legislation hv Parliament or the Legislature
      ofa State: (2) the fi·eedom declared bv Art.301 does not            c
      mean freedom fi·o111 taxation si111p/icite1; but does mean
      fi·eedom fi·om taxation which has the effect o( directly
      impeding the free Oow of trade, commerce and
      intercourse: (3) the freedom envisaged in Art. 301 is
      subject to 11011-discriminatorv restrictio11s imposed by            D
      Parliament i11 public interest (Art.302): (4) eve11
      discriminatory or preferential legislation may be made
      by Parliament for the purpose of dealing with a11
      emergency like a scarcity (d' goods i11 any part of India
      [Art. 303(2)]; (5) reasonable restrictions may he
                                                                          E
      imposed by the Legislature of a State i11 the public
      interest [Art. 304(b)j; (6) non-discriminatory taxes may
      be imposed by the Legislature of a State on goods
      imported from another State or other States. if similar
      taxes are imposed on goods produced or manufactured
      i11 that State [Art. 304(a)]: and lastly (7) restrictions           F
      imposed by existing laws have been continued. except
      insofar as the President may by order otherwise direct
      (Art. 305). [Page 831-832] [Emphasis added]


                                                                          G
       67. A larger Bench of seven Judges was constituted in Automobile
Transport (Rajastha11) Ltd. v. The State o(Raja.1·tfum and Ors. ( 1963)
1 SCR 491, in which the validity of Rajasthan Motor Vehicles Taxation
Act, 1951 and the Rules made thereunder was under challenge. Section
4 of the Rajasthan Act required every owner of motor vehicle "used in
                                                                          H
418            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     any public place or kept for use in Rajasthan" to pay tax at the
      appropriate rate specified in the Schedule to the Act. The appellants
      therein who were stage carriage operators challenged the validity of the
      Rajasthan Act on the ground that such levy contravened Art. 301 of the
      Constitution and was not saved by Art. 304(b) thereof. The validity of
 B    the Rajasthan Act was upheld by a majority of 4:3. Justice S.K. Das
      who spoke for the majority, agreed with the majority view of Atiabari
      that only those restrictions which directly and immediately restrict or
      impede the free flow of trade, commerce and intercourse would be in
      violation of Art. 301. But the majority in Automobile added a clarification
      that a regulatory measure or measures imposing compensatory taxes
 c    for the use of trading facilities would not come within the purview of
      reshictions contemplated by Art. 301 and such measures need not comply
      with the requirements of Art. 304(b ).
             68. While concurring with the majority view that the provisions of
      the Rajasthan Motor Vehicles Taxation Act 1951, are regulatory in
 D    character, delivering a separate judgment. Justice Subba Rao widely
      referred to Section 92 of the Australian Constitution to hold that the
      Court will have to ascertain whether the impugned law in a given case
      affects the movement directly or indirectly. It was held that "only if a
      tax directly and immediately affects the movement of trade, it would be
 E    violating the freedom; on the other hand if the impact is indirect and
      remote it would be unobjectionable.
             69. On behalf of the assessees, it has been argued before us that
      the majority judgments in Atiabari and Automobile held that State tax
      legislation must confonn to Art. 304(b) in addition to Art. 304(a). The
 F    thrust of the submissions made is that entry tax falls within the expression
      'restriction' under Art. 304(b ). They submit that the State legislation
      levying tax on the goods imported into the State may have to be justified
      under Art. 304(b), if they are challenged as excessive in amount, to such
      an extent that they operate as a restriction on the movement of goods or
 G    persons and impose a burden on_the freedom of trade and commerce.
            70. Mr. P.P. Rao, Mr. Rakesh Dwivedi, Mr. V. Giri, Mr. Shyam
      Divan and Mr. Ajit Kumar Sinha learned Senior Counsel and other counsel
      appearing for the States advanced meticulous arguments that there is
      erroneous approach in the judgments of Atiabari and Automobile and
      they made the following submissions to fortify their contentions that the
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                         4I9
                   [R. BANUMATHI, J.]

majority views in Atiabari and Automobile are to be re-visited:-         A

      (i) Even though the majority refen-ed to Section 297 of the
         Government of India Act, 1935 and referred to the
         economic unity of the nation, no detailed discussion was
         done on the history of Part XIII and Constituent
         Assembly Debates which threw considerable light on              B
          Part Xlll and consequently erred in holding that Art. 301
         read in its proper context imposes constitutional limitations
          on the legislative powers of the Parliament and the State.
          [Page 848] Majority in Atiabari held that :-
                                                                         c
         " .... the freedom of the movement of trade cannot
         he suhject to any restrictions in the form of taxes
         imposed on the carriage of goods or their
         movement, all that is meant is that the said                    D
         restrictions can he imposed by the State
         Legislatures on~v after satisfying the requirement
         of Art. 304(b) .... " [Page 861}.


                                                                         E
      Ii the said view of Atiabari is to be adopted then for each
      and every legislation, the State Legislatures will have to
      undergo the process of Art. 304(b). Tax is one important
      mode of raising revenue to enable the States to discharge
      its obligations as a Welfare State. Such plenary powers of
      the State legislature to impose taxes cannot be whittled down      F
      or made subservient to Ai1. 301.

      (ii) The majority read Art. 301 as subject only to the
         provisions of Part XIII. [Page 848]

      (iii) Majority drew support from the Constitutions of              G
         Australia and USA however one does not find any
         provision comparable to Part XIII in Australian and
         American Constitution. Even Australia and USA now
         reject the "direct and immediate test" and have adopted
         "discrimination theory".
                                                                         H
420             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A            71. Learned Attorney General for India, Mr. Mukul Rohatgi has
      additionally submitted that bringing taxes within the purview ofArt. 304(b)
      is completely foreign to the constitutional scheme of federalism as it
      wouid empower the President to, by virtue of proviso to Art. 304(b),
      super-adjudicate over the sovereign power of the State and that the
      sovereign power of the State cannot be subjected to an implied limitation
 B
      as it would destroy sovereignty, federalism and economic unity of the
      country.
              72. Art. 30 I guarantees freedom of trade and commerce from
      "restrictions" and not freedom from all "laws". With due respect, in
 C    Atiabari, by application of "direct and immediate test", rather than
      examining the powers of the State Legislature to enact legislation with
      reference to the entries in List II, the majority has gone into the effects
      of the legislation. As per majority view ofAtiabari,Art. 301 is a limitation
      upon the exercise oflegislative powers of the State, which, in my view
      negates or limits the legislative power of the States expressly granted
 D    under various entries in List II of the Seventh Schedule. As rightly
      contended by the counsel for the States, in Atiabari and Automobile,
      there was no detailed reference to Constituent Assembly Debates which
      throw considerable light on the scope of Part XIII.
             73. The view taken in Atiabari and Automobile that taxes may
 E    and do amount to restriction, is flawed. Taxing power of the State stands
      independently fortified by Part XII of the Constitution and can be
      challenged only on the ground ofreasonableness. Through a series of
      judicial pronouncements, it is accepted that even a challenge to the taxing
      Statute under Articles l 9(l)(g), 14 and under Part lII of the Constitution
 F    has to be dealt with caution and only after great circumspection should
      the Statute be struck down.


            Freedom in Art. 301 is not freedom from taxation-
      non-discriminatory taxes are outside the purview of Art. 301:
 G
            74. In Atiabari, Sinha, C.J. took a different view of Art. 301 than
      the one taken by the majority and concluded as under:-

              " ..... (2) the freedom declared by Art. 301 does not mean
             freedom from taxation simpliciter, hut does mean freedom
 H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                            421
                       [R. BANUMATHI, J.]

     from taxation which has the effect of directly impeding               A
      the free .flow of trade, commerce and intercourse; ... ... "
      [Page 831]
     "Jn my opinion, another very cogent reason for holding
     that taxation simpliciter is not within the terms of Article
     301 of the Constitution is that the very connotation of               B
     taxation is the power of the State to raise money for
     public purposes by compelling the payment by persons,
     both natural and juristic, of monies earned or possessed
     by them, by virtue of the facilities and protection
     afforded by the State. Such burdens or imposts, either                c
     direct or indirect, are in the ultimate analysis meant as
      a contribution by the citizens or persons residing in the
      State or dealing with the citizens of the State, for the
      support of the Government, with particular reference
      to their respective abilities to make such contributions.
                                                                           D
      Thus public purpose is implicit in every taxation, as
      such. Therefore, when Part XIII of the Constitution
      speaks of imposition of reasonable restrictions in public
      interest, it could not have intended to include taxation
      within the generic term "reasonable restrictions .... "
      [Page 828]                                                            E



       According to Sinha C.J., every tax including a tax on 'movement
ofgoods or passengers' was not necessarily an impediment or restraint
in the matter of trade, commerce and intercourse. As per Sinha C.J.,        F
taxation by its very nature could not be included within the tenn
"reasonable restriction" used in Part XIII. The view of Sinha C.J. is a
correct view and is in consonance with the consistent view taken by this
Court that taxing statutes are not per se a 'restriction'.

                                                                            G
     Atiabari and Automobile: Reference to Australian and
American cases:
       75. The Commonwealth of Australia Constitution Act came into
being in 1900. Chapter I, Part V lays down the powers of the Parliament
                                                                            H
422            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     wherein, by virtue of Section 51 (i), Parliament is empowered to legislate
      with respect to 'trade and commerce with other countries, and among
      the States'. Chapter IV, Sections 81-105Adeal with 'Finance and Trade'.
      The most relevant provision in this Chapter, for our purpose is Section
      92 which has been consistently mooted upon and has evolved through
      several judicial pronouncements. Section 92 declares trade, commerce
 B
      and intercourse to be absolutely free, subject only to imposition of custom
      duties. Further, Section 99 mandates that the Commonwealth shall not
      give preference to one State or any part thereof over another State or
      any part thereof while making any law or regulation with respect to
      trade, commerce or revenue. Under Section 102, the Parliament is
 c    authorised to make a law forbidding the States from making any
      preference or discrimination insofar as Railways are concerned, but with
      due regard to financial responsibilities incurred by States in connection
      with construction and maintenance of Railways.
             76. The Constitution framers while ascertaining the scope of
 D    freedom of inter-State trade and commerce in India deliberated upon
      Section 92 of the Austrnlian Constitution. Pandit Thakur Das Bhargav
      was in favour of making trade and commerce absolutely free in India.
      However, Shri T.T. Krishnamachari speaking for the Draft Committee
      brought out the difficulties which could have been faced by guaranteeing
 E    absolute freedom of trade and commerce in India on par with Section 92
      of the Australian Constitution.
            77. The following observations of Shri T.T. Krishnamachari are
      relevant to be noted:

 F
             " ... .I do not know if he realises that an ombnibus right
             such as the one that we recognise should not be given
             so far as freedom of trade and commerce is concerned,
             wl1ich perhaps has an echo in article 92 of the
             Australian Constitution, which has made the economic
 G           position of Australia a very difficult one today. They in
             Australia find that by reason of the fact that their
             provisions for amendment of the Constitution are so
             difficult that they are not able to amend the Constitution,
             and article 92 stands as a bar to any progressive
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              423
                   [R. BANUMATHI, J.]

      legislation which they have u11dertake11. It may be right               A
      or it may be wrong - the people ofA11stralia are behind
      the Government bu! when they wanted to nationalise
      banking, article 9:! of the Australian Constitution has
      been held as a bar to the Government '.1· power to
      nationalise the banks. There is no point in shutting the                B
      hands of the ftlfure Government in operating this
      Constitution."
      [Constitutional Assembly Debates, Volume IX, Page.1142,
      dated 30.07.1949-18.09.1949)
                                                                              c
      78. Shri T.T. Krishnamachari highlighted how Section 92 stood in
between the nationalisation of private banks in Australia. This observation
was probably made taking note of the view taken by Australian High
Court, which was later affirmed by Privy Council in Commonwealth of
Australia v. BaIlk o(New South Wales ( 1949) 79 CLR 497:[ 1950) AC D
235, (famously known as Bank Natio11alisatio11 Case). In 1947, the
Australian Government decided to nationalise private banks in Australia.
In line of this process, the Banking Act, 194 7, was enacted. However,
the policy faced several controversies and was ultimately challenged
before the courts. The Bank of New South Wales challenged the E
constitutional validity of Banking Act, 194 7. The High Court ofAustralia
found certain provisions of the Act to be invalid and thus, struck them
down. The Commonwealth Government appealed against the decision
in the Privy Council, however, the Privy Council affirmed the decision of
the Australian High Court.
       79. Our Constitution framers noticed the problems which had
emerged in relation to Hie trade and commerce provisions of the
Australian Constitution. After deliberations, the phrase ''absolutely free"
occurring in Section 92 of the Australian Constitution was not borrowed
and incorporated in the Indian Constitution. While the framers oflndian
Constitution took great caution to avoid the state of ambiguity faced in      G
Australia with regard to freedom of trade and commerce, due to the
judicial development in Atiabari and Automobile, confusions were sown
in Indian scenario also.

                                                                              H
424             SUPREME COURT REPORTS                         [2016] 10 S:C.R.


A             80. Atiabari and Automobile adopted the ·Direct and Immediate
       test' which had evolved in Australia through a series of pronouncements
       [James v. State o(South Australia ( 1927) 40 CLR I; James v. Cowan
       (1932) A.C. 542; James v. Commo11wealth o(Australia ( 1936) A.C.
       578] and was dominantly relied upon in the Bank Natio11alisatio11 Ca.ve.
       In the Bank Natio11alisatio11 Case, it was held that Section 92 would be
 B
       breached only where the law under challenge restricted trade and
       commerce directly and immediatelv. The Court observed that where
       the restriction is indirect or remote, the freedom provided by Section 92
       would not be impaired. The test on which every impugned legislation
       ought to be examined was formulated in the following terms: Does the
 c     law under challenge directly and immedialely, as opposed to incidentally,
       restrict the trade and commt!rce in which the individual was engagt!d?
       Atiabari and Automobile fundamentally concurred with the Australian
       cases to hold 'tax' as a r.:striction for the purposes of Part XIII of the
       Constitution of India. Gajendragadkar, J. in Atiabari observed:
 D

             "It is commo11place to say that the political and historical
             background of the federal polity adopted by the
             A ustra/ian Com111011wealth, the setting ofthe Conslitution
             itself, the distribution of powers and the general scheme
 E           of the Constitution are differe11t, and so it would to be
             safe to seek j(n· guidance or assistance from the
             Australian decisions when we are called upon lo
             co11strue the provisions of our Co11stitulio11. ".

 F
               Gajendragadkar, J. further relied on the Bank N11tio11ali.rntio11
      · Case to borrow the concept of 'direct a11d immediate impediment on
        the freedom of trade and commerce' from the Australian system.
        Relevant extract from Gajendragadkar J. 's judgment is as under:

 G
              "111 the case lJ( Commonwealth of .1 us/ralia v. Ba11k of
              New South Wales (1927! 40 C.L.R. I to which reference
              has already been made in connection with the /es/ of
              pith and substance the Privy Council was examining
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               425
                   [R. BANUMATHI, J.]

      the validity of s. 46 of Banking Act (Commonwealth)                      A
      (No. 57 of 1947) in the light of the provisions of s. 92 of
      the Australian Constitution. In deciding the said question
      one of the tests which was applied by Lord Porter was :
       "Does the act not remotely or incidentally (as to which
      they will say something later) hut directly restrict the                 B
      inter-State business of Banking", and he concluded that
      "two general propositions may he accepted, (1) that
      regulation of trade, commerce and intercourse among
      the States is compatible with its absolute freedom, and
      (2) that s. 92 is violated only when a legislative or                    c
      executive act operates to restrict such trade, commerce
      and intercourse directly and immediately as distinct.from
      creating some indirect or consequential impediment
      which may fairly he regarded as remote". "[Page 870
      of SCR]
                                                                               D

       81. Again in Automobile, reliance was placed on Australian and
American cases, in particular on Commonwealth ofAustralia v. Bank
of New South Wales and James v. Commonwealth of Australia to
finally hold that 'tax' is a restriction for the purpose of Part Xlll of the   E
Constitution. Subba Rao J. concurring with the majority view pointed
out thar Art. 301 was borrowed from Section 92 of the Australian
Constitution, and after referring to the differences in the language of
both the provisions and evolution of federation in both the countries,
Subba Rao J. chose to concur with "doctrine of direct and immediate
effect". Following observations ofSubba Rao J. clearly show that heavy         F
reliance was placed by him on American and Australian decisions:-


      "In this context, the principles evolved by American and
      Australian decision in their attempt to reconcile the                    G
      commerce power and the State police power or the
      freedom of commerce and the Commonwealth power to
       make laws affecting that freedom can usefully be
       invoked with suitable modifications and adjustments.

                                                                               H
426            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A           Of all the doctrines evolved, in my view, the doctrine of
            "direct and immediate effect" on the freedom would he
            a reasonahle solvent to the difficult situation that might
            arise under our Constitution. {fa law, whatever may
            have heen its source, direct~v and immediately affects
 B          the free movement of trade, it would he restriction on
            the said.freedom. But a law which may have only indirect
            and remote repercussion on the said freedom cannot he
            considered to be a restriction on it. "


 c           82. The above views taken in Atiabari and Automobile in the
      light of the Australian cases represent a mechanical implantation of a
      foreign concept into the Indian legal system, not keeping in view the
      distinct features ofindian Polity and the Constituent Assembly Debates.
      Majority view in Atiabari and Automobile do not appear to have taken
 D    note of the historical background of merger of'Native States' with their
      individualities, with British India, and the federal nature of the Indian
      Constitution while discussing the fundamental question as to whether
      'Freedom' in Art. 301 meant freedom from tax. The majority appears to
      have: begun with the presumption of tax laws being subservient to Art.
      301 and later concluded that if all the tax laws are brought in Art. 301,
 E    State's legislative power to tax would be destroyed. Thereafter, in an
      attempt to save the taxing power of the State, they borrowed the concepts
      of 'direct and immediate test' and 'compensatory tax' from the
      Australian and American Cases.
           83. ln this regard, learned author H.M. Seervai in Constitutional
 F    Law of India, 4•h Edition, Volume 3 has observed as under:


             "It is suhmitted that the principles of interpretation
             adopted by the majority judgment in the Atiahari case
 G           and hy all the judgments in the Automohile case depart
             widely from well settled principles of construction. They
            .first try to ascertain the intention of the framers of the
             Constitution, by reference to 'history' and then proceed
             to consider what construction would best effectuate that
             intention. But if an intention is to be first assumed, it is
 H
       JfNDAL STAINLESS LTD. v. STATE OF HARYANA                               427
                   [R. BANUMATHI, J.]

      not difficult to read ii into the words to be interpreted.               A
      It is submitted that words have to be interpreted
      according to I heir terms, or according to well known
      extrinsic aids to construction" [Page 2598]

                                                                               B
       Mr. Seervai has a !so pointed out that the very observation that the
Australian scenario is akin to the Indian scenario was flawed. It is obscure
how the comparative study of the Australian and Indian Constitutions
undertaken by this Court inAtiabari and Automobile lead to a conclusion
that interpretation of Section 92 as done in .Bank Nationalisation Case
can be suitably adopted in Indian set-up. Mr. Seervai at Page 2599             c
observed as under:-


       " ... provisions of part Xlll of our Constitution are
       radically different. The judges who cite the Australian
                                                                               D
       decisions repeat the warning that ii is not safe to interpret
       the provisions of the Constitution by reference to
       decisions on other Constitutions, nevertheless those
       decisions are not only referred to but are found to
       support the interpretation that a tax may amount to a
       restriction under Article 301. But it is submitted that the              E
       decision in James v. Commonwealth of Australia. that a
       tax may amount to a 'restriction' cannot support the
       conclusion that a tax is included in Article 301 ... " [Page
       2599]
                                                                                F
       84. Interestingly,.the Australian cases relied upon inAtiabari and
Automobile failed to withstand the test of time. As of today, by virtue of
a seven Judges Bench, judgment of the High Court of Australia, the
decisions in James v. Common Wealth and Bank Natirnwli.mtirm Cm·e
stand overruled. In Cole v. Whitfield ( 1988) 78 ALR 42, the High Court         G
of Australia considered Section 92 and other ancillary provisions relating
to freedom of trade and commerce and found the test of "direct and
immediate effect" to be insignificant; the Court held as under:-


                                                                                H
428            SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A           "48. Departing now from the doctrine which has failed
            to retain general acceptance, we adopt the
            interpretation which, as we have shown, is favoured by
            history and context. Jn doing so, we must say something
            about the resolution of cases in which no impermissible
 B          purpose appears on the face of the impugned law, but
            its effect is discriminatory in that it discriminates against
            inter-State trade and commerce and thereby protects
            intra-State trade and commerce of the same kind .... "


 c           85. In Cole v. Whitfield, the High Court while disapproving of
      the "individual rights" approach authoritatively adopted in Bank
      Nationalisation Case held that Section 92 guarantees freedom ofinter-
      State trade and commerce only against the discriminatory protectionist
      burdens. This decision brouglit to an end the "quite unacceptable state
 D    of affairs" then attending Section 92 of the Constitution, as the preceding
      eighty years of judicial development concerning freedom of inter-State
      trade, commerce and intercourse in Australia "had yielded neither
      clarity of meaning nor certainty of operation". Cole v. Whitfield
      laid down that for a burden to be 'protectionist' it must 'discriminate'
      against inter-State trade or commerce in a 'protectionist sense'. The
 E    Court observed as under:


            "A law which has as its real object the prescription of a
            standard for a product or a service or a norm of
 F          commercial conduct will not ordinarily be grounded in
            protectionism and will not be prohibited by s 92. But if
            a law, which may be otherwise justified by reference to
            an object which is not protectionist, discriminates
            against interstate trade or commerce in pursuit of that
            object in a way or to an extent which warrants
 G          characterization of the law as protectionist, a court will
            be justified in concluding that it nonetheless offends s
            92. ·· [Page 66]


 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               429
                   [R. BANUMATHI, J.]

      86. This requirement was based on an appraisal of the history of         A
Section 92, which showed that its purpose was the achievement of inter-
colonial free trade. As was observed in Bet(air Ptv Ltd v Western
Australia (2008) 244 ALR 32:

                                                                               B
      "S. 92 was not designed to create "'a laissezji1ire
      economy in Australia'"; rather, it had a more limited
      operation, to prevent the use of State boundaries as
      trade borders or barriers for the protection (~l intrastate
      players in a market from competition from inlerstate
      players in that market. " [Page 45) [Emphasis added]                     ('




       While the reasoning in Cole~·. Whitfield has been explained and
developed in subsequent cases, fundamentally the judgment has withstood
the test of time.
                                                                               D
      87. From the above it clearly emerge~ that the ramshackle cottage
on which the decision in Atiabari and Automobile was based has itself
fallen down. Even the idea of "freedom" in respect of trade and
commerce inAustralia has considerably changed to suit the dynamics of
the present day trade and commerce.
                                                                               E
       88. Similarly, Article I, Section 8, Clause 3 of the \JS Constitution
empowers the Congress "To regulate commerce with foreign nations,
and among several sla/es, and with the Indian Tribes". The power
of the Congress is not restricted to regulation of trade between the States
only, rather it can regulate international trade as well. So far as inter-
                                                                                F
state trade is concerned, Congress under the Commerce Clause is
empowered to regulate broad areas of activities such as use of the
channels of inter-State commerce, the protection of the instrumentalities
of inter-State commerce, or persons or things in inter-State commerce,
and activities that substantially affect inter-State commerce; whereas in
the Indian Constitution, States have plenary power to legislate on the         G
subjects enumerated in List II subject to the. Constitutional limitations.
Atiabari and Automobile erred in relying on Freeman 11• J/ewit 329
U.S. 249 (1946), which has been discarded by the US Supreme Court
itself in Complete Auto Trmuit, inc. v. Charle.\· R. Bradv [1977]
                                                                               l-1
430             SUPREME COURT REPORTS                          [2016] IO S.C.R.


A     U..'')SC 54: (1977) 430 US 274. In Complete Auto Transit, the US
      Supreme Court while dealing with an inter-State levy purported to be
      compensatory, formulated a four-part test to determine if a State tax
      violates the Commerce Clause: (i) Nexus: there must be a sufficient
      connection between the taxpayer and the State to warrant the imposition
      of State Tax Authority; (ii) Fair Apportionment: the State must not tax
 B
      more than its fair share of the income ofa taxpayer; (iii) No discrimination:
      the State must not treat out-of-State taxpayers differently than in-State
      taxpayers; and (iv) Related to services: the tax must be fairly related to
      services provided to the taxpayer by the State.

 c           89. In view of the above, the position which stands good today is
      that the judgments of US Supreme Court, Privy Council and Australian
      High Court relied upon inAtiabari and Automobile have been overruled
      in Complete Auto Transit in USA and Cole v. Whitfield in Australia.
      The principle of'direct and immediate effect on the trade and commerce'
      has been rejected and it has been held that the norms of commercial
 D    conduct shall not be 'protectionist' or 'discriminatory'. The principles of
      'direct and immediate test' laid down in Atiabari and 'Compensatory
      Taxes' enunciated in Automobile arc to be overruled and minority
      judgment of Sinha, C .J. that' tax simpliciter' is not violative of Art. 30 I
      is to be affirmed.
 E

             Art.304 (a) and (b) must be read di.\j1111ctive(p:
             90. As the word "restrictions" in the marginal note of Art. 304
      suggests plurality of powers and indicates that Clauses (a) and (b) of
 F    Art. 304 confer distinct powers. Art. 304(a) deals with tax; Art. 304(b)
      deals with restrictions that are reasonable and in public interest.
      Constitution framers could not have intended to include tax in A rt. 304(b );
      since the elements of "reasonableness" and "public interest'' are
      inherent in a tax. The use of the word "and" does not assist the
      interpretation that the provisions arc conjunctive. It only means that:-
 G
             (i) the State can impose taxes on goods coming from outside
             so as not to discriminate between the goods impotied and
             goods manufactured or produced within the State [Art. 304
             (a)]

 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 431
                    [R. BANUMATHI, J.]

                                    -and-                                         A
      (ii) It can also in addition impose other restrictions that are
      reasonable and in public interest [Art. 304 (b)] subject to
      the assent of the President. [Emphasis added]

                                                                                  B
        That Articles 304(a) and (b) are disjunctive, is also clear from the
factthat the proviso to Art. 304(b) i.e. the presidential sanction is referable
to A1i. 304(b) only and not to a law imposing tax on goods imported from
other States contemplated under Art. 304(a). This is because, Art. 304(a)
has an inbuilt safeguard, inasmuch the taxes imposed on the goods coming
from another State cannot be discriminatory and, therefore, no presidential
                                                                                  c
sanction is required.
        91. It is relevant to note that the word "and"' is used after semi
colon in Art. 304(a). While it is correct to say that the word "and"
normally is conjunctive, it is also often construed as disjunctive on the
                                                                                  D
basis of the legislative intent as gathered from the words of the proviso
under context in which it was used. Considering whether the word
''and"' is co1tjunctive or disjunctive, in relation to Section 4(i) ofMaharishi
Mahesh Yogi Vedic Vislnvavidyalaya Adhiniyam, 1995, in Maltari.\·hi
Ma/1esl1 Yogi Vedic Vi.~ltwavitlvalava v. State o( Mtufltva Prades/1
anti Others (2013) 15 SCC 677 and observing that the word "and" is                E
used as disjunctive, this Cowi held as under:-


       93. .... we also refer to the following decisions rendered
       by this Court in lshwar Singh Bindra v.State of UP.,
                                                                                   F
       AIR 1968 SC 1./50. wherein in para JI it has been held
       as under: (AIR p. 1454)
           "11 . ... It ·would be much more appropriate in the
          context to read it disconjunctively. Jn Stroud '.s
          Judicial Dictionarv, 3rd Ed11.. it is stated at p. 135                  G
          that 'and' has generallv a cumulative sense, requiring
          the fulfilment of' all the conditions that it joins
          together, and herein it is the antithesis o( or.
          Sometimes, however, even in such a connection, it
          is. bv force o{ a context. read as 'or'. Similarlv in
                                                                                  H
432     SUPREME COURT REPORTS                        [2016) I 0 S.C.R.


A        Maxwell 011 Interpretation of Statutes. 1111!. Edn .. it
         has been accepted !hat 'to carry out the i11tention of
         the legislature ii is occasionallv found necessary to
         read the conjunctions "or" and "and" one f'or the
         other'. "[Emphasis supplied]
 B    94. We may also refer to pare/ 4 of the decision rendered
      by this Court in Director of Mines Safety v. Tandur and
      Nayandgi Stone Quarries (P) Ltd. (1987) 3 SCC 208
      (SCC p. 211, para 4)

         "4. According to the plain meaning, the exclusionl11:v
 c       clause in sub-section (1) of Section 3 of the Act read
         with the two provisos beneath clauses (a) and (b),
         the word 'and' at the end of para (b) of sub-clause
         (ii) of the proviso to clause (a) o,f Section 3(1) must
         in the context in which ii appears. be construed as
 D        'or'; and if so construed, the existence <d' a11y one
         of the three conditions stipulated in paras (a), (b)
         and (l) would al once attract the proviso lo clauses
         (a) and (b) of sub-section (1) o,f Section 3 and thereby
         make the mine subject to the provisio11s of the Act.
 E       The High Court overlooked the fact that the use of
         the negative language in each of the three clauses
         implied that the word ·and' used at the end of clause
         (b) had to be read disjunctively. 17wt construction
         of ours is in keepii1g with the legislative intent
         manifested by the scheme of the Act which is primariZv
 F       meant for ensuring the safety o,f workmen employed
         in the mines." [Emphasis supplied)

      95. ..... we are not inclined to hold that the expression
      "and" used in the Preamble. as well as in Section 4
      should be read conjunctively as con/ended by the
 G
      learned counsel for the State. On the other hand, in the
      context in which the said expression is used, it will have
      to be .read as "or" creating a disjunctive reading of the
      provision. "

 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              433
                        [R. BANUMATHl, J.]

      92. In A.K. Gopalan v. State o(Madra.\' AIR 1950 SC 27, in the          A
context of Art. 22(7)(a) of the Constitution oflndia. Constitution Bench
observed that since it is an enabling provision the word ·and' should be
read disjunctively and held as under:-

                                                                              B
      "248 . .... . In fact clause (4) (b) contemplates the
      detention itse{f to be in accordance with 1he provisions
      of any law made by Parliament under sub-clause (a)
      and (b) of clause (7). Therefore, the detention can well
      be under the verv law which the Parliament makes
      under sub-clause (a) and (b) of clause (7). As lo the                   c
      second point the arg11menl is that Parliament has a
      discretion under clause (7) to make u law and ii is not
      obliged to make any law but when our Parliament
      chooses to make a law it must prescribe both the
      circumstances under which, and the class or classes of                  [)
      cases in tvhich, a person may be detained for a period
      longer than three months. I am unable to construe
      clause (7) (a) in the way suggested by teamed counsel
      for the petitioner. It is an enabling provision
      empowering Parliament to prescribe two things.
      Parliament may prescribe either or both. If' a father                    E
      tells his. delicate child that he mav plav tahle tennis and
       badminton but not the strenuous game of football, it
       obviouslv does not mean that the child, i( he chooses to
       plav at all, must play both table tennis and badminton.
       It is an option given to the child. Likewise, the                       F
       Constitution gives to Parliament the power of
       prescribing two things. Parliament is not obliged to
      prescribe at all but il it chooses to prescribe it mav
      prescribe either or both ...... " [Emphasis added]
                                                                               G
       Applying the ratio in the above decisions since th,e expression
'and' is used in A1t. 304 after semi-colon, it will have to be read as 'or'
creating a disjunctive reading of Art. 304(a) and Art. 304(b) indicating
that the State Legislature can exercise its power either under Art.304
(a) or Art. 304 (b) or both.                                                   H
434             SUPREME COURT REPORTS                         [2016] IO S.C.R.



A            Whether Art. 304(b) coupled with the proviso is applicable to
      tax laws-Judicial Approach:
             93. In Atiabari, majority held that "tax laws" fall within the
      comprehension of Art. 301 and, therefore, any legislation whether taxing
      or otherwise which imposes any direct restriction on the movement or
 B    transpo1i of goods attracts the provisions of Art. 301, and its validity can
      be sustained only if it satisfies the requirements of Art. 302 or Art. 304.
      According to the above view in Atiabari, it is not possible for the State
      Legislature to pass any law at all with respect to some of the tax entries
      viz. sales tax (entry 54, List II); law relating to gambling (entry 34, List
 c    11) or tax on betting and gambling (entry 62, List II); and tax on the
      carriage of goods or passengers by road or inland waterways (entry 56,
      List II). lfthe legislations under the above entries are challenged on the
      ground that they operate as a direct restriction on the freedom of trade,
      commetce and intercourse, as per the view in Atiabari, these legislations
      may have to be justified under Art. 304(b). Atiabari approach would
 D    totally take away the sovereign powers of the State Legislature to enact
      laws in exercise of its powers under various taxing entries of List II,
      which could not have been the intention of the framers of the Constitution.



 E          ART. 304(b) JS APPLICABLE ONLY TO NON-FISCAL
            LAWS AND NOT TO TAX LAWS:-
             94. Art. 304(a) and Art. 304(b) are two distinct powers and freedom
      of trade, commerce and intercourse is subject to them. Art. 304(b) relates
      to reasonable restrictions imposed in public interest. Art. 304(b) deals
 F    with non-fiscal legislation imposing reasonable restrictions in public
      interest and tax laws are not included under Art. 304(b). In this regard,
      reliance has been placed on 'Interim Report ofthe Advisory Committee
      on the Subject ofFundamental Rights' dated 23.04.1947, as published
      in "The Framing of India's Constitution Select Documents-The
      Project Committee" by Universal Law Publishing Co. Pvt. Ltd. Learned
 G    Senior Counsel Mr. Rakesh Dwivedi has taken us through the chain of
      events leading to Art. 304(b) and the proviso's present form in Art. 304(b).
      Draft Article 10 of the "Justiciable Fundamental Rights"(page No.297
      of the said book) presently Part XIII as 'originally proposed' read as
      under:-
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            435
                   [R. BANUMATHI, J.]

      "I 0. Subject to regulation by the law of the Union,                  A
      trade, commerce, and intercourse among the units by
      and between the citizens shall be free:
      Provided that any unit may by law impose reasonable
      restrictions in the interest of public order, morality or
      health or in an emergency:                                            B
      Provided that nothing in this section shall prevent any
      unit from imposing on goods imported from other units
      the same duties and taxes to which the good~ produced
      in t~e unit are subject:
      Provided further that no preference shall he given by
                                                                            c
      any regulation of commerce or revenue by a unit to one
      unit over another." [Emphasis added]


        95. The first proviso to Draft Art. 10 corresponds to Art. 304(b)   D
and second proviso relates to Art. 304(a). That first proviso to Draft
Art. l 0 [Art. 304(b)] relates only to "public order, morality or health
or in an emergency" is also made clear from the Constituent
Assembly Debates/Advisory Committee Proceedings. In this
regard, we may refer to the speech of Shri Alladi Krishnaswami Ayyar
                                                                            E
in the Constituent Assembly Debates, which is as under:-


        "A/ladi Krislmaswami Ayyar: "Subject to regulation
      by the law of the Union, trade, commerce, and
      intercourse among the units by and between the citizens               F
      shall he free. " That is the general principle. Then come
      the exceptions, "Provided that any unit may by law
      impose reasonable restrictions in the interest of public
      order, morality or health or in an emergency." Suppose
      there is a general famine, and people are starved, that               G
      is what is meant here to be dealt with.
        And then "Provided that nothing in this section shall
      prevent any unit from imposing on goods imported from
      other units the same duties and taxes to which the goods
      produced in the unit are subject. '·' That is to say, we              H
436            SUPREME COURT REPORTS                       [2016] 10 S.C.R.


A           ought not to differentiate; but at the same time, goods
            coming in should not go scot-free; they should be subject
            to the same duty as goods produced in the area."
            [Emphasis Added] (Page. 253 of the said book of Select
            Documents-Project Committee)
 B

            96. In October 194 7, the Draft presented by the Drafting
      Committee shifted the then Art. 10 outside the Part on Fundamental
      Rights (Right of Freedom) to Articles 243 and 244 and the power under
      Art. 244(b) was kept within the States. A1t. 244(b) as adopted reads as
 c    under:-


            "244. Notwithstanding anything contained in article 16
            or in the last preceding article of this Constitution, it
            shall be lawful for any State-
 D
            (a) to impose on goody imported.from other States any
            tax to which similar good~ manufactured or produced
            in that State are subject, so, however, as not to
            discriminate between goods so imported and goody so
 E
            mam1factured or produced; and
              (b) to impose by law such reasonable restrictions on
            the freedom of trade, commerce or intercourse with that
            State as may be required in the public interest. "

 F
           97. In this regard "Note to Art. 244 (b)" as referred to in Page
      328 of the said book Framing of India's Constitution Select
      Documents-Project Committee reads as under:-
             "'Note: Clause (b) of article 244 is based on the
            recommendation of the Advisory Committee as adopted
 G
            by the Constituent Assembly. The Drafting Committee
            has considered it necessary to substitute for the words
            "in the interest ofpublic order, morality or health" which
            occur in the said recommendation, the words "in the
            public interests". [Page 328]
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                              437
                    [R. BANUMATHI, J.]

      The above note clearly shows that after Debate, based on the             A
recommendations of Advisory Committee the phrase "public order,
morality or health or in an emergency" was substituted with the
word "public interest". This clearly shows that the framers of the
Constitution never intended to bring tax laws within the fold ofArt. 304(b).
       98. After Debate, first proviso to Draft A1t. 10 was adopted as         B
Art. 274(D)(b) [present Art. 304(b)]. As seen from page 330 of the first
Draft Constitution, the Committee was of the opinion that the first and
second proviso should be transferred as independent clauses in the
Chapter dealing with relation between the different States and the third
proviso was found unnecessary in view of the opening words "subject to         c
the regtilation by the law of the Union and, accordingly, the same was
adopted in Art. 274(D)(b) [Present Art. 304(b)] which reads as under:-


         "(b) impose such reasonable restrictions on the
      freedom of trade, commerce or intercourse with or within                 D
       that State as may be required in the public interest.
         Provided that no Bill or amendment for the purposes
       of clause (b) of this article shall be introduced or moved
       in the legislat{1re of a State nor shall any Ordinance be
       promulgated for the purpose by the Governor or Ruler                    E
       of the State without the previous sanction of the
       President. "


        99. If Art. 304(b) is also held to cover tax laws, it would amount
                                                                               F
to empowering the States to make laws imposing tax even on the freedom
of trade, commerce and intercourse. As such there is no such entry in
List II of Seventh Schedule of the Constitution so empowering the States.
Commenting on this, learned author H.M. Seervai in his Constitutional
                                                          •
Law of India 4'h Edition, Volume 3 observed as under:-..
                                                                               G

       "24.43. There are other reasons supporting the conclusion
       that a tax simpliciter is not a restriction on the freedom of
       trade. Article 304 itse(f makes a distinction between taxes
       and restrictions and the correct conclusion to draw from this
                                                                               H
438            SUPREME COURT REPORTS                         [2016) 10 S.C.R.



A           fact is that restrictions in Art.304 (b) do not include a tax.
            Secondly, by virtue of the non obstante clause, Art.304 (b)
            enables even discriminatory restrictions to be imposed which
            are forbidden by Art. 303 (1). We have seen that Art. 303(1)
             cannot possibly refer to taxes. Thirdly, the whole scheme of
 B
             taxation in our Constitution would be complete~y dislocated
             if Art.304 (b) included a tax. The taxing powers of the Union
             and the States have been made mutually exclusive so that
             Parliament cannot deprive the States of their taxing powers
             as has happened in countries where the powers of taxation
             are concurrent. It would be swprising if the Union legislature,
 c           i.e. Parliament could not take away the taxing powers of the
             State legislatures and yet it would be open to the Union
             executive under Art.304 (b) to deprive the State legislatures
             of their taxing powers. Again, if restrictions include a tax,
             two questions would arise. As a matter of language, Art.302
 D           would then run: "Parliament may, by law, impose such
             restrictions, including a tax, on the freedom of trade and
             commerce or intercourse ... " The Article would then become
             a source ofpower because there is no legislative entry relating
             to a tax "on the freedom of trade" unless the residuary entry
             is resorted to, Art. 304 (b) would raise the same question,
 E
             and there would be no residuary entry to resort to, and it
             would raise the .fi1rther question whether the reasonableness
             of taxes is made justiciable under our Constitution. " [Page
            2607)

 F
            Levy of taxes is the economic lifeline of the State. Framers of the
      Constitution never intended to include tax within the fold of Art. 304(b).
      To give the Centre a veto over the plenary power of the State to levy the
      tax would completely distort the Centre-State balance and cooperative
      federalism. Such an interpretation bas no basis in the Constitutional
 G
      Assembly Debates and is liable to be rejected.
             I 00. The rationale for the sanction of President contemplated by
      proviso to Art. 304(b) is apparent from the fact that trade and commerce
      with foreign countries and inter-State trade and commerce are subject
      matters in List I of the Seventh Schedule (entries 41 and 42, List I).
 H
       JINDAL STAINLESS LTD. v. STATE OF 1-IARYANA                                 439
                   [R. 13ANUMATHI. J.]

Further, trade and commerce in production, supply and distribution of A
industry controlled by the Union, food stuff>, including edible oils, seeds
and oils; cattle fodder; raw cotton, cotton seed; and raw jute arc subject
matters in entry 33. List Ill. Entry 34, List III deals with price control.
Only intra-State trade and commerce is in List II (entry 26, List ll)
subject to entry 33, List Ill, as stated therein. Parliament has thus B
occupied an overwhelming space with respect to trade and commerce
within the State also. It is in this backdrop that the State has been given
power to impose reasonable restrictions on the freedom of trade,
commerce and intercourse with or within that State with the proviso
requiring presidential assent before the Bill is introduced. The rationale,
therefore, is that a non-fiscal law of the State with respect to freedom of C
trade, commerce and intercourse would be entrenching upon either the
exclusive legislative field of the Parliament in List I or the occupied field
of the Parliament in List lll. It follows that Art. 304(b) relates to non-
fiscal laws of the States. In the above context, the assent of the President
envisaged in proviso to Art.304(b) would be somewhat akin to the assent D
contemplated in Art. 254. Such assents are not judicially reviewabie.
 [vi de Kaiser-i-Hind (P) Ltd. and Anr. 1•. National Textile Corpn.
 (Ma//{/rashtra Nortlt) Ltd. and Otlters (2002) 8 SCC 182. (Paras 23
 to 27))
       l 0 I. If the framers of the Constitution intended that State legislation   E
required sanction of the President for tax laws pertaining to inter-State
trade, commerce and intercourse, the Constitution would have made an
express provision in the Constitution. Art.274 says that no Bill or
Amendment which imposes or varies any tax or duty in which States
arc interested; or which alters meaning of·'agricultural income" under
                                                                                   F
Income Tax Act or principles of distribution; or, imposes surcharge for
Union purpose shall be introduced or moved in either House of Parliament
except on the recommendation of the President''. This indicates the
signifo:ance of revenue for States and also the limits on Union. If framers
intended to have an identical framework in Art. 304 for State Tax Laws
they would have expressly said so. Art. 288 also provides for the role of          G
President in the context of imposition of tax by States in respect of
water and electricity. Under A1t. 288( I), the tax imposed by existing
State laws would continue only subject to order passed by the President.
Under Art. 288(2) the legislature of a State could impose a tax in respect
of water or electricity stored, generated, consumed, distributed or sold
                                                                                   H
440             SUPREME COURT REPORTS                           [2016] JO S.C.R.



A     by an authority established under any existing law or any law made by
      Parliament for regulating or developing any inter-State river or river
      valley unless the law has been reserwd for the consideration of the
      President and has received his assent. This again shows that Presidential
      assent with respect to tax has to be specifically provided for.
 B           I 02. In the light of the;: above disi:ussion, the majority view in
      Atiabari, at Page 861 that the freedom of movement of trade cannot
      be subject to any restriction in the form of taxes and that such a legislation
      can be passed only after specifying the requirements of Art. 304(b), is
      not a correct view. I find merit in the submission made by Mr. Rakesh
      Dwivedi, Senior Advocate, that the Parliament has occupied an
 c
      overwhelming space with respect to trade and commerce both with in
      and outside. the State and it is in this backdrop. that the State has been
      given power to impose such reasonable restrictions in "public i11teri:s(·
      on the trade, commerce and intercourst! with or within that State subject
      to the satisfaction of the proviso under Art. 304(b ). It follows, therefore,
 D    that Art. 304(b) relates to non-fiscal laws of the States. To subject the
      State's sovereign legislative levying tax to Presidential assent would in
      effect erode the pillar of federalism which this country is built on. In the
      absence of an express provision in the Constitution, such presidential
      sanction for taxing laws cannot be read into the provision.
 E

             Conclusion on Question No.l:
              103. Non-discriminatory taxes do not constitute infraction of Art.
      30 I of the Constitution. With due respect, the view taken in Atiabari
 F    and approved in Automobile Transport declaring that taxes do amount
      to restriction and that freedom of trade, commerce and intercourse cannot
      be subject to restriction in the form of taxes is not a correct view and are
      to be over-ruled. However, I am agreeing with the concept of
      compensatory tax evolved in the Automobile ca~·e for the reasons
      indicated while answering question Nos. 2 and 3.
 G


             QUESTION NO. 4: IS THE ENTRY 1/l.X LEVIED BY THE
             STATES IN THE PRES~ENT BATCH OF CASES VIOLATIVE
             OF ART. 301 OF THE CONSTJTUTION AND IN
 H           PARTJCULAR HAVE THE IMPUGNED STATE
        TINDAL STAINLESS LTD. v. STATE OF HARYANA·                              441
                    [R. BANUMATHI, J.]

      ENACTMENTS RELATING TO ENTRY TAX TO BE                                    A
      TESTED WITH REFERENCE TO BOTH ARTICLES 304(a)
      AND 304(b) OF THE CONSTITUTION FOR
      DETERMINING THEIR VALIDITY?
       104. The core question which needs to be addressed is whether
the tax levied under entry 52, List II would impinge upon Article 301.          B
Entry 52, List 11 reads as: "Tax on the entry of goods into a local area
or consumption or sale therein". A bare reading of the entry would
show that entry tax can be levied only on the satisfaction of the conditions
in entJy 52 of List II namely: (i) the tax to be levied on the entry of goods
into local area; (ii) entry of goods into the local area is for consumption,    C
use or sale therein.
       105. There are two other entries in the Constitution which also
authorize the levy of taxes which fall essentially on the movement of
tradables within the country, viz., entry 56 of the State List and entry 89
of the Union List. Entry 56 of the State List empowers the State to levy        D
"taxes on goods and passengers carried by road or inland
waterways"; while entry 89 of the Union List contemplates the levy of
"terminal taxes on good~ or passengers carried by railway, sea or
ail; taxes on railway fares and freights". While there are variations
in the operational fonn of taxes under entry 52, essentially these constitute
a levy on entry of goods into a local area for sale, consumption or use         E
therein. Under an entry tax regime, a company, trading firm or an individual
would be liable to pay entry tax on goods brought into a local area for
consumption, use or sale therein. The core question which needs to be
addressed in respect of entry 52, List II of Seventh Schedule is whether
the tax levied under the said entry would impinge upon Art. 301.                F


       History and Purpose of Entry Tax:
        106. The tenn "Entry Tax" traces its history back to a particular
tax called "Octroi". The word "Octroi" comes from the French word               G
'octroyer' which means 'to grant' and in its original use meant 'an import'
or 'a toll' or 'a town duty' on goods brought into a town. At first, octroi
were collected at ports but being highly productive, towns began to collect
them by creating octroi limits. They came to be known as "town duties".
The term "octroi" appeared in the Scheduled Tax Rules framed under
                                                                                H
442             SUPREME COURT REPORTS                             [2016] 10 S.C.R.



 A    the Government oflndiaAct, 1919. The expression signified a tax levied
      on entry into an area of a unit of local administration. The entry was re-
      fashioned and enacted as item 49 of the Provincial Legislative List under
      the Government of India Act, 1935. Item 49 reads as "Cesses on the
      entry of good5 into a local area for consumption, use or sale therein".
 B    In B11rmah Shell Oil Storage and Dist11rbi11g Co. of India Ltd.
      Belgaum v. Belgaum Borough Municipality Belga11m Cell, 1963 SCR
      Suppl. (2) 216, the Supreme Court of India while distinguishing tenninal
      tax and Octroi held that the Octroi's leviable in respect of goods brought
      into a municipal area for consumption or use of sale.            ·

 c           107. When Government oflndiaAct, 1935 was enacted, terminal
      taxes were separated from octroi and were included in the Union List
      while octroi was allocated to the provinces. The term "octroi" was
      avoided because terminal taxes are also 'octroi' in a sense. This scheme
      has been adopted in the Constitution with the difference that in the entry
      relating to 'octroi' the word 'tax' replaces the word 'cess'. Levy of
 D    octroi was also criticized for being an obsolete method of the collection,
      involving stoppage of vehicles at the check posts outside the city limits,
      thereby obstructing flow of vehicular traffic, and causing wastage of
      business hours, loss of fuel etc.
              108. Entry tax like 'octroi' is a tax on entry of goods into a local
 E    area for consumption, use or sale therein. However, entry tax is different
      from octroi, inter alia, in the following respects:- Firstly, it is not collected
      at the checkpost; but is payable by furnishing returns of the purchases
      from outside the local area or the details of the goods entered into the
      local area. Entry tax is easier to administer as returns are filed on self-
 F    assessment and it avoids the harassment associated with octroi. Secondly,
      it is !mposed as an ad valorem tax as against octroi, which is generally
      a combination of specific and ad valorem levies. Thirdly, entry tax is a
      State-level levy while octroi is a local levy; entry tax revenue is treated
      as State revenue and is spent on local bodies for their development and
      the State in general.
 G
            109. On behalf of the assessees, it was contended that proper
      meaning attached to the words "local area" in Entry 52 is an area
      admmistered by a local body like a municipality, a district Board, a local
      Board, a Union Board, a Panchayat or the like. In this regard, reliance
      has been placed upon Diamond Sugar Mills Limited v. State of U.P.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                443
                   [R. BANUMATHI, J.]

[1961] 3 SCR 242, wherein this Court held as under:-                            A


       "Whether the entire area of the State, as an area
      administered hy the State Government, was also
      intended to he included in the phrase "local area", we
                                                                                B
      need not consider in the present case.
      " ... We are of the opinion that the proper meaning to he
      attached to the word~ "local area" in Entry 52 of the
      Constitution, (when the area is a part of the State
      imposing the law) is an area administered hy a local
      body like a municipality, a district hoard, a local board,
                                                                                c
      a union. board, a Panchayat or the like. The premises
      of a faetory is therefore not a "local area"."


       This Court in M.O. Shamsudhin v. State of Kerala (1995) 3                D
sec 351 has also held that:

      "the expression local area has been used in various
      Articles of the Constitution nameZv 3(b) 12, 245(1). 246,
                                                                                E
      277, 321, 323-A and 371-D. They indicate that the
      constitutional intention was to understand the 'local
      area' in the sense of any area which is administered by
      a local body. may be corporation, municipal board,
      district board etc. The High Court on this aspect held
      and in our opinion rightZv that the definition does not                   F
      comprehend entire State as local area as the use of word
      'a' hefore 'local area' in the section is significant. "


       110. As discussed above, entry tax is not collected at the behest
                                                                                G
of municipality or a panchayat attached to a checkpost. It is payable by
the assesses by filing their returns. Entry tax is a State level levy, levied
by State Legislature upon entry of goods into a local area for consumption,
use or sale therein. The local authorities themselves cannot le•;y the
tax. The power is that of State Legislature and of no one. In Bihar
                                                                                H
444            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A    Chamber of Commerce, this Court was faced with the task of
   . interpreting the tenn "local area" in the context of entry 52, List IL The
     Court observed that where State Legislature has levied a tax covering
     the entire State and proceeds of such tax are spent for common welfare
     activities of the State, the distinction between the State and the local
     areas practically disappears. In Bihar Chamber of Commerce, it was
 B
     held as under:-


             "12. .... Where the local areas contemplated hy the Act
            cover the entire States the distinction between the State
 c          and the local areas practically disappears. (The
            situation would, no doubts he different if the local areas
            are co1?fined to a few cities or towns in the State and
            the levy is upon the entry of goods into those local areas
            alone. This is an important distinction which should he
 D          kept in mind while appreciating the aspect and also
            while examining the decisions of this Court rendered in
            fifties and sixties). The facilities provided in the State
             are the facilities provided in the local areas as well.
            Interests of the State and the interests of the local
             authorities are, in essence, no different ....
 E
            36.... Entry 52 empowers the State Legislature to levy
            this tax. The local authorities cannot themselves levy
            this tax. The power is that of the State Legislature and
            of none else. So long as the tax is levied upon the entry·
            of goods into a local area for the purpose of
 F          consumption, use or sale therein, the requirement of
            Entry 52 is sati.~fied. The character of the tax so levied
            is that of entry tax - by whatever name it is
            called ........ From the point of view of the entry tax, one
            may say that the State is a compendium of local areas.
 G          Spending for the purposes of the State is thus spending
            for the purposes of local areas. Situation may perhaps
            be different where the local areas are confined to a few
            cities or towns in the State. But where the local areas
            span the entire State. it cannot be argued that money
            spent for welfare schemes for improvement of roads,
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              445
                   [R. BANUMATHI, J.]

      rivers and other means of transport and communication                   A
      is not spent on or for the purposes of local areas. The
      purposes and need~ of local areas are no different from
      the purposes and need~ of the State - not at any rate to
      any appreciahle degree ..... "
                                                                              B
        The Entry tax is a State level levy and the entry tax revenue is
treated as the State Revenue. As held in Bihar Chamber of Commerce,
"the State is a compendium oflocal areas .... the purposes and needs of
local areas are no different from the purposes and needs of the State."
As entry tax levy being a State-level entry, it is spent on the development   C
oflocal bodies and the State in general. When the entry tax is levied by
the Entry Tax Act enacted by the State Legislature, the term 'a local
area' contemplated by Entry 52 may cover the 'whole State' or 'a local
area' as notified in the legislation. I agree with the views taken in Bihar
Chamber of Commerce that from the view of Entry Tax, the State is a           D
compendium of local areas and where the local areas cover the entire
 State, the difference between the 'State' and 'a local area' practically
 disappears.
       111. Counsel appearing for the States contend that the burden of
entry tax, if any, on the trader cannot by itself constitute a restriction on E
the inter-State movement of goods. To constitute a restriction per se on
the freedom of trade, commerce and intercourse, levy of tax, in
conjunction with other factors should actually create a substantial
advantage in favour of the persons who indigenously manufacture or
produce goods as compared to the similar goods which are imported
from outside the State. The sovereign power available to the State F
Legislature to levy tax cannot be decimated by every inconvenience
that may be caused to a trader. If the tax is of such a character, that the
burden, if any, borne by the dealer, can be absorbed by him as a part of
his trade and business, then the trader will have to bear the same. It
does not then make the tax discriminatory or create a restriction on the G
flow of goods from one State to another.
      112. Imposition of enfry tax is not merely "on movement or
transport of good~"; consideration of entry 52, List II of Seventh
Schedu:e shows that taxable event in the case of entry tax is entry of
                                                                              H
446             SUPREME COURT REPORTS                         (2016] 10 S.C.R.



A     goods into the local area where it is to be used, consumed or sold therein.
      If the goods mere]y enter into a local area and then move to another
      destination beyond that local area, no tax can be levied under entry 52.
      To attract a levy under entry 52, List IL the goods must come to rest in
      the local area where they are taxed in the sense that their further
      movement and transport stands terminated and the goods are supposed
 B
      to be used, consumed or sold in that local area. Since the taxable event
      under entry 52 is not the mere entry of the goods into the local area, but
      the fact that the goods are also to be used, consumed or sold, the necessary
      sequiter is that the movement of goods is tenninated in that local area.
      Power to levy entry tax lies within the competence of a State Legislature.
 c    Since entry tax is leviable at the tennination of the movement of trade
      and 'the goods have entered the local area for the purpose of use,
      consrnnption or sale, the levy of entry tax does not restrict flow of trade,
      commerce or intercourse and is not violative of Arti. 301 of the
      Constitution.
 D            113. Taking us through various States' legislations, Senio:- Counsel
      Mr. Harish Salve on behalf of the assessees contended that the entry
      tax li:vied by State legislations are discriminatory and broadly classified
      the Entry Tax Statutes on discrimination into four different categories as
      undtr:-
 E                       States                   Alleged discrimination
              Tamil Nadu/Andhra Pradesh/        En try tax levied only on
              Kerala/Jharkhand                  goods imported from other
                                                States; no levy of entry tax
                                                on the goods manufactured
                                                inside the State which is
                                                discriminatory.
 F
              Assam/B ih ar/H aryan a/Kera la   Facially. the      legislations
              (Post)Jharkhand/West              state that all goods are taxed;
              Bengal/Tamil                      but grant exemption to the
              N adu/M izoram/ Arunachal         locally produced goods
              Pradesh/ Andhra Pradesh
 G            Orissa/M adhya Pradesh            Local    manufacturers      are
                                                given the set- off of entry tax
                                                paid on raw materials and
                                                thus preferential treatment
                                                given to locally produced
                                                goods.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              447
                   [R. BANUMATHI, J.]

                                                                              A
    Chhattisgarh                       Excessive delegation to the
                                       executive to levy entry taxes
                                       up to 50% who in turn levy
                                       higher rate of entry tax on
                                       certain goods and lesser rate
                                       for similar goods which is             B
                                       discriminatory.



      Entry Tax levied only 011 goods imported from other States:
      No levy of EntlJ' Tax 011 the goods ma1111fact11red inside the          c
      State-Whether discriminatory.


       114. Contention of the assessees is that entry tax is levied only on
goods entering the local area from other States and there is no levy of       D
entry tax on the locally produced goods when they move from one local
area to another; as goods imported from other States are being
discriminated against, such levy is not saved under Art. 304(a). It is
their contention that entry tax only on goods coming from outside the
State and not intra-State entry of goods from one local area to another
local ar~a or on movement of goods is a clear case of discrimination,         E
offending Att. 304(a).
       115. The assessees seek to nan-ow down the wide purport of the
tenn ·any tax' used in Art. 304(a) by contending that equivalence should
be brought about in the imposition of entry tax itself. By contending so,
the appellants have become oblivious of the fact that the State Legislature   F
is always free to provide for equivalence in the Entry Tax Act, and
alternately make provisions for adjustments and set-offs in other
enactments of Sales Tax or Value Added Tax Acts.
       116. The tem1 'any tax' means any exaction by any impost or
levy. The effect of all the taxes levied on the goods imported from other     G
States and the ones manufactured within the State must be such that no
discrimination is caused either to the imported goods or locally
manufactured goods. Unlike Section 92 of the Australian Constitution,
Ati. 304(a) does not talk of unifotmity. Section 92 of the Australian
                                                                              H
448            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     Constitution reads as follows:- "On the imposition of uniform duties
      of customs, trade, commerce, and intercourse among the States.
      whether by means of internal carriage or ocean navigation, shall
      he absolutely free." No such restriction is imposed on the legislative
      pow~r of the States in India to ensure uniformity in levy of a particular

 B    tax. The raison d ·etre for use of the expression "so, however, as not to
      discriminate" is to prohibit protectionism. Moreover, Constitution oflndia
      does not contain a provision similar to Section 55 of the Australian
      Constitution which mandates one tax law on one subject. In India, the
      State Legislature is nowhere obligated by the Constitution to ensure that
      the law imposing tax deals with one subject of taxation only.
 c
             117. The chargeable event in the case of entry tax is entry of
      goods into a local area. By its very nature, entry tax does not contemplate
      impost on indigenous goods. Goods imported into a local area from
      another State are subjected to entry tax but goods entering into a local
      area from another local area of the same State do not attract entry tax.
 D    In this way, it may appear that goods imported from outside the State
      are put to a disadvantageous position but in tenns of tax treatment there
      is no discrimination. The essence of Art. 304(a) lies in ensuring equality
      of fiscal burden and absence of discrimination. In terms of Art. 304(a),
      the only requirement is that the goods imported into the local area should
 E    not be discriminated against. As discussed infra, in tax treatment there
      is no discrimination between the goods.
             118. The expression 'any tax' used in Art. 304(a) is generic in
      nature and covers all taxes on goods which a State is competent to
      impose by virtue of Articles 245 and 246 read with List II of Seventh
 F    Schc,dule. A Scheme adopted by a State Legislature whereby several
      taxes are levied on the goods (either locally produced or imported from
      other States) under different heads, cannot be faulted with if it confom1s
      to the principle of equivalence and non-discrimination. For e.g., both
      sales tax levied under entry 54, List 11 and entry tax levied under entry
      52, List II are taxes on goods. lt is the burden of the tax which can
 G
      discriminate and not the fonn. States are free to equalise the burden of
      entry tax on the goods imported from other States by giving them set-off
      against the sales tax paid by them in the exporting State. In such a
      manner, equivalence can be brought about in the tax burden borne by
      the goods imported from other States and the locally manufactured/
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               449
                   [R. BANUMATHI, J.]

produced goods. The contention of the assessees that the term 'any tax'        A
used in A1i. 304(a) refers to every tax distinctly, thereby prohibiting
imposition of entry tax on imported goods unless, entry tax is imposed on
locally manufactured/produced goods, does not lead to just and reasonable
interpretation of Art. 304(a). The wholesome effect of the taxes levied
under distinct heads needs to be taken into account. The tax burden
                                                                               B
borne by the goods fonn a part of the price of the goods and if both,
locally manufactured/produced goods and imported goods are subjected
to similar tax burdens, irrespective of the heads under which the taxes
are levied, say entry tax or sales tax etc., then no discrimination can be
said to have been caused.
                                                                               c
       119. In case if entry tax not levied to equalize tax burden ori the
local goods and goods imported from outside, there will be huge trade
diversion to low-rate tax State, causing loss ofrevenue to the high-rate
tax States, where the goods are used or consumed. Let us take an
example of entry tax in the case of motor vehicles. System of sales tax
on motor vehicles varies from one State to another. Rates of tax also D
vary ac;:ording to the category of the vehicles viz., car, jeep, scooter,
motorcycle, truck, tractor etc. Inter-State sales tax differential is large
enough to induce trade diversions from high-rate tax States to low-rate
tax States. These trade diversions have their impact on the collection of
sales tax and results in loss of tax revenue to the State and the local area E
where the vehicles are used; but there is tax gain to the exchequer of
the low-rate tax State where the vehicles are shown to have been
purcha~ed. Thus levy of entry tax by the importing State where the
vehicles are used is justified to accord equal treatment to vehicles
purchased within the State and those purchased from outside.
                                                                               F
       l20. Often the diversion occurs merely on paper; for instance,
manufacturers of vehicles in Tamil Nadu may employ local dealers in
low-rate tax State/Union territories to sell their products to consumers
all over the country. Where the tax rates differ widely in adjoining States/
Union Territories, dealers located in low-rate tax territories act as agents
                                                                               G
for purchasers from the State with high-rate tax areas/territories. The
vehicles do not move physically but the sales are shown to have taken
place outside the high-rate tax State. The State where sale is said to
have taken place stands to gain but the State where the vehicle is used
loses the revenue of its sales tax. The extent of differentiation in tax
                                                                               H
450            SUPREME COURT REPORTS                          [2016)-10 S.C.R.



A     rates is evidently large enough to induce trade diversion from high-rate
      tax States to low-rate tax territories. In such cases, levy of entry tax
      equalizes the revenue loss to the State where the vehicle is used, and at
      the same time prevents discrimination between the locally purchased
      vehicles and vehicles purchased in other States/Union Territories.
 B            121. Entry of goods into a local area from another local area of
      the State can be effected either by a dealer who purchased the goods
      from the manufacturer or by an individual. A dealer who effects entry
      of goods into a local area from another local area in the same State
      would be taxed in the fonn of sales tax/VAT; so also the individual would
 C    have already paid the sales tax in another local area, where he bought
      the goods. In case of entry tax levied on goods imported from other
      State, set-off like in the cases of State enactments of Tamil Nadu and
      Andhra Pradesh is given to the extent of the sales tax/VAT paid in the
      purchasing State; in few of the States like Kerala, after levy of entry
      tax, to the extent entry tax paid, input credit is given from the sales tax/
 D    VAT payable in the State where the goods are imported. Tax burden is
      more or less the same, for both indigenous goods and outside goods.
      This is because, where an entry tax is imposed on goods brought from
      outside, the benefit of credit of the amount already paid as entry tax is
      given as input credit for the purpose of payment of VAT. Moreover, if a
 E    State enactment provides for set-off and statutory exemptions to goods
      paying local sales tax, thereby equalising the net tax burden on the
      imported goods and local goods, it does not fall foul under Art. 304(a), so
      long as it is balancing sales tax against the entry tax.
             122. The question as to whether entry tax in a particular case
 F    constitutes an impediment will always have to be decided with reference
      to the comparison of burdens that are cast on persons who bring the
      goods into the taxing State and that which is suffered by the persons
      who manufacture or produce the goods within the State. A1i. 304(a)
      does not prevent levy of tax on goods imported from other States. The
      expression used is 'any tax'; what is prohibited is such levy of tax on
 G
      goods as would result in discrimination between goods imported from
      other States and similar goods manufactured or produced within the
      State. The object is to prevent imported goods from being discriminated
      against by imposing a higher tax thereon than on local goods. If the tax
      burden on both the categories are almost the same, then the entry tax
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             451
                        [R. BANUMAfHl, J.]

obviously cannot constitute an impediment to the very flow of trade and      A
commerce across the borders of the State. There is no merit in the
contention of the asscssees that the levy of entry tax only on goods
imported from other States and not on indigenous goods is discriminatory
and violative of Art. 304(a).
       123. ln a catena of decisions. this Cou1i has struck down the levy B
of entry tax on the imported goods holding that the levy is discriminatory
and not saved by Art. 304(a). In Indian Cement and Ors. v. State o(
A11dhra Pradesh and Or.~. (1988) 1 SCC 743, the Government of
Andhra Pradesh issued a Notification reducing the rate of sales tax on
sale of locally produced cement to bulk consumers to 4%, on the other c
hand, the sales tax imposed on sale of cement imported from the other
States was levied at 13. 75%. Thus, the indigenous cement producers
had a benefit of 9.75%. Levy of sales tax imposed on sale of cement
imported from other States was challenged as impeding free flow of
trade and commerce. The Supreme Court held the Notification invalid
as it was hit by Art. 304(a) affecting inter-State trade and commerce.     D

       124. ln We.\·tern Electronic and Anr. v.\·, State of Gujarat and
Ors. (1988) 2 SCC 568, State of Gujarat imposed sales tax at 15% on all
electronic goods whether locally manufactured or imported from outside.
After sometime, the State reduced the tax to I 0% on goods imported
from outside and to I% on locally manufactured goods with a view to          E
give incentive to encourage local manufacturing units. The Supreme
Court held that by applying different rates of tax. between goods imported
into the State of Gujarat and goods manufactured within that State is
discriminatory and violative of Art. 304(a) and, accordingly, quashed the
Notification.                                                                 F
       125. ln State o( U.P. and Anr. 1'. laxmi Paper Mart am/ Ors.
( 1997) 2 SCC 697, State Government had exempted the exercise-books
made from paper purchases within Uttar Pradesh from the levy of sales
tax. Whereas, exercise-books produced outside the State of Uttar
Pradesh were subjected to sales tax at the rate of 5%. The said              G
exemption granted to indigenously manufactured exen.:ise-books was
challenged. The challenge was upheld by this Court and the exemption
granted to locally manufactured exercise-books was held to be
discriminatory within the meaning of Art. 304(a) of the Constitution of
India.
                                                                              1-1
452             SUPREME COURT REPORTS                          [2016] JO S.C.R.



A           Preferential treatment for /ocal(v produced goods by grant of
            exemption or set-off etc. and no11-gra11t of suclt exemption or
            set-off to goods imported from other States - Not-
             di~·criminatory:



 B
             126. While States have the sovereign power to levy taxes to raise
      revenue, difference in rates of taxes by itself or granting tax incentive or
      concession to local manufacturer by itself, cannot amount to
      discrimination. The word "discrimination'' involves an element of
      "intentional and purposeful differentiation". It creates economic and
c     regional imbalances in India and is an area of concern.
             127. Contention of States is that apart from legislative power to
      levy taxes, States also have the power to grant exemptions, tax
      concessions or incentives to the goods manufactured within the State so
      as to encourage the manufacturing units and traders within the State,
 D    and also to attain economic growth and development. Reiterating the
      same, the learned Attorney General has submitted that such fiscal
      measures are necessary for economic parity as also for further
      strengthening of the economic unity of the nation which the assessees
      themselves desire. Placing reliance upon Video E/ectro11ics Pl't. Ltd.
 E    a11dA11r. v. State ofPunjab andAnr. ( 1990) 3 SCC 87, it was submitted
      that every differentiation in the tax rebate, exemption or tax concession
      granted to indigenous goods which may result in differentiation in the
      rate of tax on goods imported into the State, would not amount to
      discrimination falling foul under A1t.304(a). The States submit that every
      differentiation is not discrimination, and only those restrictions which
 F    impede the flow of trade, commerce and intercourse would fall foul
      under Art.304 (a). The above contention of the States has been favourably
      considered by the Supreme Court over the years. The Supreme Court
      has taken note of the differentiation on consideration of natural or
      economic factors prevailing in different regions which need to be
 G    encouraged by providing tax incentives to attain economic equality in
      growth and development.
            128. Part XIII envisages a two-fold object:- (i) facilitation of a
      common market through case of trade, commerce and intercourse by
      removal of barriers; and (ii) development of economically backward
 H    regions through regulations or restrictions which may incidentally
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             453
                   [R. BANUMATH!, J.]

differentiate between States or regions. Part XIII is not abour'freedom"     A
alone but is a code of checks and balances on inter-State trade, commerce
and intercourse intended to achieve economic integrntion of the country
and parity. Balanced development of the country is an equally vital facet
of economic integration. The "freedom"' referred to in Art. 30 l must
take flavour from the expression "throughout the territory oflndia"; the
                                                                             B
Union was envisaged not only as a political union but also an economic
union. The grand vision was to unify the country, not only politically but
also by creation of an economic union of hitherto disparate Provinces
and Princely States. Freedom of movement of goods and services and
the creation of a common market must be understood in this context.
Thus. the spirit of Part Xlll must be seen in the context of achieving a     c
balance between a cohesive economic union having due regard for the
federal character of the Constitution and not in the sense of a handicap
for State ·s individual development.
       129. We may usefully refer to the following passage authored by
Prof. D.D. Basu in Comparatfre Federalism, Prentice Hall of India,           D
1987, which reads as under:


       "The great problem of any federal structure is to prevent
       the growth of sectional and local interests which are                 E
       inimical to the interests of the nation as a whole. The
       strength of the Union may be achieved 011ly by
       minimizing inter-State barriers as much as possible. so
       that the people may feel that they are the members of
       one nation. though they may, for the time being, be
       residents of particular geographical divisions of the                 F
       country. One of the means to achieve this obiect is to
       guarantee to every citizen the freedom of movement
       throughout the territory of the Union. and also lo reside
       and settle in any part thereof
                                                                             G

       While a federation is formed to preserve or secure
       regional autonomy, that is not done at the sacrifice of
       notional interests. Unless the national interests are
       safeguarded. the countrv would be divided into pieces.
                                                                             1-1
454            SUPREME COURT REPORTS                         (2016] 10 S.C.R.



A            resulting in a weak government unable to maintain itself
            from foreign aggression, and would also create
             economic chaos in an age when apparently local
             disturbances have a wide repercussion. It is this last
             mentioned economic strength of the federation which is
B            intended to he ensured hy the safeguard.for maintaining
            .fi'eedom of' trade, commerce and intercourse throughout
             the federal territory, which safeguard the Union and
             the States are hoth enjoined not to violate. " [Page 613]


 c           Part XlII and the provisions therein are to be interpreted in a
      manner that encourages a backward region or creates a level playing
      field for those parts of the countTy that may not have reached the desired
      level of development.
              130. Historically, regional imbalances in India started from the
D     British regime. During that time, industrialists started development in a
      few earmarked regions of the country like the metropolitan cities of
      Kolkata, Mumbai, Chennai that possessed rich potential for manufacturing,
      trading and transport facilities. This resulted in an uneven growth
      amongst the States, keeping few States less developed. The regional
 E    imbalances and general economy of the country were taken note of by
      the f;·amers of the Constitution. The Constituent Assembly was conscious
      of the uneven development in different parts of the country and the need
      to create a level playing field by removal of trade barriers as well as by
      affording avenues for economic opportunity and economic equality for
      less developed parts of the country. Significant observations have been
 F
      made in Constituent Assembly Debates justifying certain amount of
      flexibility to the States. ln this regard, reference to Constituent
      Assembly Debates dated 30.07.1949 to 18.09.1949 whereby Dr.
      P.S. Deshmukh proposed a series of amendments in Part Xlll granting
      powers to the States, is relevant to be noted:-
 G

            Dr. P.S. Deshmukh: "Trade and commerce are not things
            which are decided once, for all; they are things that
            arise and grown .from day to day. . They may he varied;
            there may he circumstances and situations when the
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                          455
                   [R. BANUMATHI, J.]

     whole thing will have to he revised. This may arise so               A
     far as a particular State is concerned or in respect of
     more than one State. How pompously did we decide
     that there shall be 'free trade" everywhere. It is not
     such an easy thing as that and I hope that this is now
      hmadly realized. For instance, we know that the stage,              B
      of advancement and progress of the various units of
      the Union varies considerably. Some of them are
      backward like Assam or Orissa where there are, very
     ft:w industries and very little trade is in the hands, at
      least of the indigenous population. We may have
     prohahly to give them some protection in order that they             c
      may rapidly come on par with other units. It may he
      necessmy also from time to time to vary our provisions
      so far as aid and concessions to industries and other
      things are concerned. I therefore do not think that is
      right to bar all discrimination, as it is called (in fact it        D
      is not), barring all possibility of help to those who are
      hackward and who are unable to compete with the more
      advanced, and who therefore, stand in need of
       'assistance. ' From that point of view, my amendment
      seeks to give Parliament a blank cheque and leave to it
                                                                          E
      entire~v the determination of the policy. With regard to
      tlze trade and commerce not only of the whole Union or
      in regard to any particular State or States, but so far as
      all States and their trade and commerce inter se is
      concerned. Therefore, I have proposed a very simple
      provision as has been embodied in my amendment No.                  F
      340." [Page No. 1133)


       While the proposed amendments were not accepted, the debate
acknowledged that flexibility to allow certain amount ofleverage to the
                                                                          G
States was necessary and also desirable. It is apposite to refer to the
following observation by Shri Alladi Krishnaswami Ayyar in Constituent
Assembly Debates dated 30.07.1949 to 18.09.1949:-


                                                                          H
456            SUPREME COURT' REPORTS                        [2016) JO S.C.R.


A          Sltri Al/adi Kris/111aswami Ayyar: ".... .ivfy Friend D1:
           Ambedkar, in the sche111e he has evolved. has taken into
           account the larger interests of India ({S well as the
            interests of particular Sla/e and the wide geography of
            this country in which the inrerests of one region differ
           fi·om the interests of another region..... Mv Friend Mr.
 B
            Kris/111a111achari has pointed oul that this freedom clause
            in the Australian Constitution has given rise to
            considerable trouble and to co1?flicting decisions qf !he
            highest Court. There has been a feeling in those parts
            of Australia which de/Jend for their well-being on
 c          agricultural conditions that their interests are being
            sacrificed to manufacturing regions. and there has been
            rivalry between manufacturing and agricullural
            interests. Therefore. in a federation what !'(Ill have to
            do is, first, vou will have to take i11to account the larger
 D          interests of India and permit freedom o( trade and
            intercourse as far as possible. Secondh'. vou cmmot
            ignore altogether regional interests. 171irdly, there must
             be the power intervention of the Centre in any case <~(
            crises to deal with peculiar problems that might arise in
            any part of India. All these three factors are taken into
 E
             account in the scheme that has been placed before you. "
             [Emphasis added] [Page No. 1143]


              13 I. Similar was the concern expressed by Shri C. Rajagopalachari
 F    in his observations on the proposed draft Article I 0:


             "C. Rajagopalachari: I would request members who
            have given thought to this subiect to please inform 111e
            how the units will raise !heir revenue. As it is, the Union
 G          does not contemplate !he distribution of subsidies to
            the provinces. The provinces or groups differ among
            themselves. some are rich and so111e are pom: Some are
            capable of managing with their existing resources; but
            others may have to increase their revenue for managing
 H
       HNDAL STAINLESS LTD. v. STATE OF HARYANA                                  457
                  [R. BANUMAfHI, J.]

      their affairs. ([you impose so many limitatio11s on them,                  A
      how can they do that? It is all very well to say free
      trade is necessary; but how are the provinces lo live?''
      [Page No.254 of the Framing of India's Constitution
      Select Documents-The Project Committee, Volume
      2 by the Indian Institute of Public Administration                         B
      Universal Law Publishing Co. Pvt. Ltd.]


        132. There are considerable regional disparities in India attributable
to a variety of reasons. Economically speaking, of these reasons, the
ones that are most apparent are geography and consequent economic
                                                                                 c
inadequacy. States with access to seacoasts and natural resources
including mineral wealth, water resources have a definite edge over the
other States. Whereas States that have terrains that make access to a
region difficult, including hills, rivers and dense forests, show lesser signs
of economic development. Lack of perennial sources of water or water             D
scarcity due to lower precipitation cai1 also constrain the development
ofa region. Historically, more development opportunities have been made
available to already forward States that had the initial geographic
advantage. It is the natural tendency of the private sector to set up
 industries in already developed regions, which provide infrastructural          E
 support required to maintain those industries. This has accelerated the
 development in these forward States; and the backward regions, unable
 to attract significant investment have not seen much gr0\~1h. To counter-
 balance this tendency, various incentive and disincentive schemes have
.been introduced to direct investments to backward regions. However,
 the success of these policies has been limited because often the States          F
 with these backward regions are unable to meet their expenses and
 provide economic overheads, such as transport, communication, power,
 banking & insurance etc. This has widened the gaps between the States
 where investments of the past have created adequate social and
 economic infrastructure to attract private investments and the States           G
 that were neglected in the past and are unable to attract investments
 due to lack of infrastructure. [Reference: N J Kur,ian, "Regional
 Disparities in India", Planning Commission oflndia, 200 l available at:
  http://planni ngcomm iss ion .n ic. in/reports/sercport/ser/vision-
 2025/regdsprty.
                                                                                  II
458            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A             133. A recent news article published in 'The Hindu', titled "The
      gap between rich and poor States", delineates this economic disparity
      between the States. The authors propose that since contrary to global
      experiences, India continues to show trends of divergence among its
      large States, it is time to accept the country's economic diversity. Amid
      such economic disparity among States with varying future needs and
 B
      priorities, the way forward is greater devolution of fiscal and legislative
      powers on the States to create a level playing field. Relevant portion of
      this article reads as under:-


 c          " ... per capita net domestic productfiwn I960 to 20I4
            of India:~ I 2 largest States, that accounted for 85 per
            cent of the total population, shows that economic
            disparity within India :1· States is among the largest in
            the world. ..
 D
            This gap of.four times between the richest and the
            poorest large State in India is among the highest in the
            world. A similar ratio in other federal polities such as
            the U.S., European Union and China is between two
            and three times. Our convergence analysis shows that
 E          this economic disparity among States is only widening
            and not narrowing. India is the only large country in
            the world today that is experiencing an economic
            divergence among its States am/ not convergence, as
            economic theory would posit. "
 F          " ... .. Pre-1990 and post-I 990 look like al must two
            different eras in India s history of economic diversity
            among States. Economic themy would suggest that the
            poorer regions grow faster to catch up with the richer
            States to cause an eventual convergence, as is
 G          happening globally. Contrary to global experiences of
            narrowing disparity, hath across and within nations,
            India actually shows trends of an exacerbating
            divergence among its large States, implying the richer
            States will continue to grow faster. "
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              459
                   [R. BANUMATHI, J.]

      "Whatever he the reasons, it is quite evident that the                  A
      priorities of a more prosperous State will he quite
      different from those that are still very pom: /lldia 's
      cultural and political diversity is a well-entrenched fact.
      It is time to accept its economic diversity too. Amid such
      economic disparity among States with varying future                     B
      needs and priorities, a Delhi-based one-size-fits-all
      policy regime for all of India is entirely
      anachronistics . ..... the struggles of the European Union
      in balancing common market policies for economicalZv
      diverse nations should serve as a gentle reminder for
      an even more diverse India. " [emphasis added}                          c
     [By Pravee11 Chakravarty and Vivek Dehejia /New Delhi
     Edition dated 5'" September, 2016]


        134. Since economic unity of the nation is the underlying object
                                                                              D
for freedom in Art. 301, it would be necessaty to define the concept of
economic unity adopted by the Constitution of India. Firstly, economic
unity cannot but be federal in nature; it must involve the even development
of all the States. All States, particularly, the underdeveloped and far-
flung border-States have a right to develop themselves so as to secure        E
the welfare of their residents. Secondly, the object of freedom of trade,
commerce and intercourse is to foster economic unity by contribution to
the development of all the States. Thirdly, as per the Directive Principles
of State Policy, the States are to sub-serve common good; secure and
protect a social order which stands for the welfare of the people;             F
endeavour to provide an adequate means oflivelihood; and also secure,
within the limits of its economic capacity the right to work, education
and public assistance.
        135. Re-organisation of States is yet another factor which has to
be borne in mind. Creation of State ofUttarakhand from the undeveloped G
hilly area ofUttar Pradesh; State of Jharkhand from the predominantly
tribal areas of the State of Bihar, State of Chhattisgarh from the State of
Madhy~ Pradesh and the recent bifurcation of the State of Telangana
from the State of Andhra Pradesh comes to mind. The newly bifurcated
States have to develop their new capitals, create new State infrastructure
                                                                            H
460             SUPREME COURT REPORTS                           [20 I 6] 10 S.C .R.


A     including High Courts in due course. They have to develop their own
      industrial bases for manufacture and production and for creating job
      opportunities. To attract capital investment, they have to provide
      infrastructure like transport, communication, power and technology. Re-
      organisation of States apart. as a Welfare State, a State is under an
 B    obligation to create job oppo1tunities and promote welfare of the people
      by securing standard of living and economic justice. Having regard to
      the multifarious activities of a Welfare State, it is necessary that the
      States must have leverage/flexibility in exercise of their power to levy
      taxes and, therefore, steps taken by the States that result in differentiation
      cannot amount to discrimination that impedes the free flow of trade.
 c    commerce and intercourse.
              136. Manufacturing activities within the State involve several
      activities right from sourcing of raw-materials. manul:idure of goods,
      marketing of the manufactured goods, and export of the manufactured
      goods. Manufacturing activities convert the State from a mere trade
D     hub to a manufacturing hub, creating employment opportunities for the
      locals, thereby giving impetus to the growth of the State. Manufacturing
      is a giant step for boosting the economy of the State: it brings in
      opportunities and socio-economic benefits to the residents of the
      respective States. Per contra, goods coming in from outside the State
 E    only tap the market potential of the State without creating any employment
      opportunities or boosting the economy of the State. Titus gra11ti11g
      e.xemptiom/set-offltax incentive.\' to locally produced good~· and not
      gra11ti11g .melt exemption to goods coming from outside ca11110t be
      said to be discriminatory.
 F           137. Furthermore, every differentiation is not necessarily
      discriminatory. The word 'discrimination' used in Art. 304(a) requires
      an element of intentional and purposeful differentiation that creates an
      economic barrier. It involves an element of an intentional difference
      between the treatment of locally produced goods and goods imported
      from other States. The distinction between "differentiation and
 G
      discrimination" has been culled out in Kathi Ra11i11g Rawat"· The State
      o(Saura~11tra ( 1952) SCR 435, wherein the Constitution Bench held as
      under:-


 H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                    461
             [R. BANUMATHI, J.]

"Patan.iali Shastri J: ....                                   A

All legislative differentiation is not necessarily
discriminatory. In fact, the word "discrimination'·' does
not occur in Article 14. The expression "discriminate
against" is used in Article 15(1) and Article 16(2), and
it means, according to the Oxford Dictionary, "to make        B
an adverse distinction with regard to; to distinguish
unfavourably from others··. Discrimination thus
involves an element of 11nfavo11rable bias and it is in
that sense that the expression has to be 11nderstood in
this context. If such bias is disclosed and is based on       c
any of the grounds mentioned in Articles I 5 and 16, it
may well be that the stat11e will, without more, incur
condemnation as violating a ~pecific constitutional
prohibition 11nless it is saved by one or other of the
provisos to those article~~ But the position under Article
                                                              D
 14 is different. Equal protection claims under that
Article are examined with the presumption that the State
action is reasonable and justified. This presumption of
 constitutionality stems from the wide power of
 classification which the legislature must, of necessity,
possess in making laws operating d/fferent~v as regards        E
 different groups of persons in order to give effect to its
policies. The power of the State to regulate criminal
 trials by constituting different courts with different
procedures according to the need~ of different parts of
 its territory is an essential part of its police power -      F
 (cf Missouri v. Lewis)(3). Though the differing (I)
 [1950] SCR 88 (3) 101 US 22 (92) AIR 1951
 Hyderabad II. "

 "Fazl Ali, J.:
                                                               G
... / think that a distinction should be drawn between
"discrimination without reason" and "discrimination
with reason". The whole doctrine of classification is
based on this distinction and on the well-known fact
that the circumstances which govern one set of persons
                                                               H
462            SUPREME COURT REPORTS                        (2016] 10 S.C.R.



A           or ohjects may not necessarily he the same as those
            governing another set of persons or ohjects, so that
            the question o{ unequal treatment does not rea!Zy arise
            as between persons governed by d(fferent conditions
            and different sets of circumstances .... " [Emphasis
 B          added]


             138. The desired objective of economic integration through checks
      and balances to encourage less developed parts of the country, so that
      they may compete as equals with others, does not contravene Part Xlll
 c    of the Constitution. In Video Electronics, the three Judges Bench held
      as under:


             "20. The question as we see is, how to harmonise the
 D          construction of the several provisions of the
            Constitution, It is true that if a particular provision heing
            taxing provision or otherwise impedes directly or
            immediately the free flow of trade within the Union of
            India then it will he violative of Article 301 of the
            Constitution. It has further to he horne in mind that
 E          Article 301 enjoins that trade, commerce and intercourse
            throughout the territory of India shall he free. The .first
            question, therefore, which one has to examine in this
            case is, whether the sales tax provisio11s (exemption etc.)
             in these cases directly and immediate~v restrict the free
 F          flow of trade and commerce within the meaning ofArticle
            301 of the Constitution. We have examined the scheme
             of Article 301 of the Constitution read with Article 304
            and the observations of this Court in A tiabari :1· case
            [1961} I SCR 809 (supra), as also the observations
            made hy this Court in Automohile Transport, Rajasthan :S
 G
             case [ 1963} 1 SCR 491 (.rnpra). Jn our opinion Part
            XIII ofthe Constitution cannot be read in isolation. It is
            part and parcel of a single constitutional instrument
            envisaging a federal scheme and containing general
            scheme conferring legislative powers in respect of the
 H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                    463
                 [R. BANUMATHI, J.]

matters relating to list II of the 7th Schedule on the        A
States. It also confers plenary powers on States to raise
revenue.for its purposes and does not require that every
legislation of the State must obtain assent of the
President. Constitution of India is an organic document.
It must be so construed that it lives and adapts itself to    B
the exigencies of the situation, in a growing and
evolving society, economically, politically and socially.
The meaning of the expressions used there must,
therefore, be so .interpreted that it attempts to solve the
present problem of distribution of power and rights of
the d!IJ'erent States in the Union of India, and anticipate   c
the .fi1ture contingencies that might arise in a developing
organism. Constitution must be able to comprehend the
present at the relevant time and anticipate the future
which is natural and necessary corollmy for a growing
and living organism. That must be part of the                 D
constitutional adjudication. Hence, the economic
development of States to bring these into equality with
 all other States and thereby develop the economic unity
of India i~· one of the major commitments or goals of
the constitutional aspirations of this land. For working
                                                              E
 of an orderzy society economic equality of all the States
 is as much vital as economic unity.


22. It has to be examined whether difference in rates
per se discriminates so as to come within Articles 301        F
and 304(a) of the Constitution. It is manifest that free
flow of trade between two States does not necessari(y
or generally depend upon the rate of tax alone. Many
factors including the cost of goods play an important
rnle in the movement of good~ from one State to another.      G
Hence the mere fact that there is a difference in the
rate of tax on goods locally manufactured and those
 imported would not amount to hampering of trade
between the two States within the meaning of Article
301 of the Constitution. As is manifest, Article 304 is an
                                                              H
464      SUPREME COURT REPORTS                       [2016] JO S.C.R.


A     exception to Article 301 of the Constitution. The need
      of taking resort to exception will arise only !f the tax
      impugned is hit hy Articles 301 and 303 of the
      Constitution. if it is not then Article 304 of the
       Constitution will not come into picture at all. See the
      observations in Nataraja Mudaliad· case [1968} 3 SCR
 B
      829 of the report. It has to be borne in mind that there
      may be differentiatiom based on comideration of
      natural or business factors which are more or less in
      force in different localities. A State might be allowed to
      impose a higher rate of tax on a commodity either when
 c    it is not consumed at all within the State or if it is felt
      that the burden falling 011 co11s111ners within the State,
      will be more than that and large benefit is derived by
      the revenue. The imposition of a rate of sales tax is
       influenced hy various political, economic and social
 D    factors. Prevalence of differential rate of tax on sales
      of the same commodity cannot he regarded in isolation
      as determinative of the ohject to discriminate between
       one State and another. Under the Constitution originally
      fi"amed revenue from sales tax was reserved for the
       Stales.
 E

      24. The object is to prevent discrimination against the
      imported goods hy imposing tax on such goods at a
      rate higher than that horne hy local good~. The question
 F    as to when the levy of tax would constitute
      discrimination would depend upon a variety of factors
      including the rate of tax and the item of goods in respect
      of the sale on which it is levied. Every differentiation is
      not discrimination. The word 'discrimination' is not med
      in Article 14 but is used bi Articles 16, 303 & 304(a).
 G
      When used in Article 304(a), it involves an element of
      intentional and purposeful differeutiation thereby
      creating economic barrier and involves an element of
      an unfavourable bias. Discrimination implies an unfair
      classification. Reference may he made to the
 H    observations of this Court in Kathi Raning Rawat v.
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                   465
             [R. BANUMATHI, J.]

State of Saurashtra.1952 SCR 435 where Chief Justice         A
Shastri at p. 442 of the report reiterated that all
legislative differentiation is not necessarily
discriminatory. At p. 448 of AIR) of the report, Justice
F azal Ali noticed the, distinction between
'discrimination without reason' and 'discrimination with     B
reason'. The whole doctrine of classification is based
on this and on the well-known fact that the
circumstances covering one set of provisions or objects
may not necessarily he the same as these covering
another set of provisions and objects so that the
question of unequal treatment does not arise as between      c
the provisions covered by different sets of circumstances.


28. Concept of economic barrier must be adopted in a
dynamic sense with changing conditions. What                 D
constitutes an economic barrier at one point of time
often cease to be so at another point of time. It will be
wrong to denude the people of the State of the right to
grant exemptions which flow from the plenary powers
of legislative heads in List II of the 7rh Schedule of the   E
Constitution. Jn a federal polity, all the States having
powers to grant exemption to specified class for limited
period, such granting of exemption cannot be held to
be contrary to the concept of economic unity. The
contents of economic unity by the people of India would
necessarily include the power to grant exemption or to       F
reduce the rate of tax in special cases/or achieving the
industrial development or to provide tax incentives to
attain economic equality in growth and development.
When all the States have such provisions to exempt or
reduce rates the question of economic war between the        G
States inter se or economic disintegration of the country
as such does not arise. It is not open to any party to say
that this should be done and this should not be done by
either one way or the other. It cannot be disputed that it
is open to the States to realise tax and thereafter remit
                                                             H
466            SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A           tile same or pay back to the local ma1111fact11rer.s in tile
            shape of sub.sidies and that would neither discriminate
            nor be //it by Article 304(a) of tile Constitution. 111 this
            case and as in all co11stitutional udiudicatio11s the
            substance of the matter has to be looked into to }ind
 B          out whether there is any discri111inatio11 in violation of
            the constitutional mandate." [Emphasis added)


             Thus while considering the scope of"discrimination .. under Art.
      304(a) in Video Electro11ics, this Court has carved out an exception that
 c    States have powers to grant exemption to specific class for limited period
      and that such grant of exemption cannot be held to be discriminatory. To
      reduce the rate of tax in special cases or to provide tax incentives is for
      achieving the industrial development and attainment ofeconomic equality
      in growth and development.
 D
             139. In S//ri Ma//al'ir Oil Mills and Anr. v. State o(J&K and
      Others ( 1996) l I SCC 39, a Division Bench of this Court, however,
      struck a contrary note. The State of Jammu and Kashmir granted
      exemption to the edible oil produced by small scale industries within the
 E    State of Jammu and Kashmir from sales tax while subjecting the edible
      oil produced in other States to sales tax at 8 per cent. A subsequent
      Notification was issued on 20.12.1993 as a result of which the general
      rate of sales tax payable on edible oil became 8%. The manufacturers
      of edible oil from the adjoining States claimed that the exemption granted
 F    from payment of tax to the local industries was discriminatory. The
      exemption given by the Government of Jammu and Kashmir to the
      manufacturers of the edible oil was absolute and the period of exemption
      was five years - which was later extended by another five years. The
      said legislation was struck down on the ground that the State has brought
      about discrimination prohibited by Art. 304(a) of the Constitution. The
 G
      Court declined to apply the limited exception carved out in Video
      Electro11ics and observed that the said exception in Video Electro11ic.\·
      cannot be widened or expanded to cover cases of a different kind. This
      Court held that the unconditional exemption granted to edible oil industries
      within the State of Jammu and Kashmir for a period of ten years and at
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            467
                   [R. BANUMAT'Hl, J.]

the same time subjecting edible oil imported from other States to sales     A
tax at 8% was discriminatory and violative of Art. 304(a) of the
Constitution.
       140. The decision in Vtdeo Electronics was, however. approvingly
referred to by the ConstitutionBeneh in Sri Digvijav Cement Compa11r
Limited and Ors. v. State of Rajast!tan and Others ('.WOO) I SCC            B
688. In Digl'ijay, Section 8 of the Central Sales Tax Act came up for
consideration. Section 8 of the Central Sales Tax Act stipulates that the
State Governments were empowered to either exempt any goods from
Central Sales Tax or to prescribe a lower rate of tax. The State of
Rajasthan had redu~ed the rate to seven percent though stipulated local     c
sales tax was sixteen per cent. In consequence, cement in Rajasthan
became cheaper in comparison to Gujarat and that increased the flow of
cement from Rajasthan to other States. After referring to the cases
Firm ATB Mehtab Majid & Co v. State of Madras & Anr. AIR 1963
SC 928 and State of Madras '" N.K. Nataraja Mudaliar ( 1968) 3
SCR 829, this Court held as under:-                                         D


       "24. We are unable to agree with the contention of the
       learned counsel for the petitioners that the impugned
       11otificatio11 had the effect of prevc11ti11g or hinderi11g          E
       the free movement of goods from one State to another.
       As far as the State of Rajasthan is concerned, ii had
       the opposite effect. Mere(1' because local rate of tax i11
       the State of Gu}arat 011 the sale of cement was higher
       than the inter-State .mies tax 011 the cement sold from
       Ra}astltllll ct111110t lead to the co11clusio11 that the              F
       impugned notification prevented or hindered the free
       11101•ement of goods from one State to 1111othe1: In fact
       the impugned notification had the opposite effect,
       namely, it increased the mo11eme11t of cement from
       Ra}astlum to other States. It is not as if the im1111g11ed           G
       notification created a barrier which may have had the
       effect of hindering free movement of goods but 011 the
       other hand, the sales tax barrier was lowered resulting
       in increased volume of inter-siate trade. "
                                                                            H
468            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A            141. It follows from the Constituent Assembly Debates and the
      decisions in Video Electronics and Digvijay that historical, cultural,
      geographical and other factors have an impact on trade and commerce.
      While insisting on economic integration of the nation, Courts are to keep
      in view the regional requirements so as to cater to the need of economic
      development of the nation as a whole. Government incentives to invest
B
      in backward areas granting subsidies or tax concessions for a certain
      period of time would be permissible and would fall outside the scope of
      Part XIII and Art. 304(a). Such action of the State Government is not
      discriminatory; rather it aims at ensuring economic equality.

 c           142. In Video Electronics and Digvijay, this Court held that it is
      constitutionally permissible for a State Legislature to make laws that
      promote and encourage local trade; a form of affinnative action to move
      beyond the concept of discrimination towards true and a stronger union
      which is the underlining objective of the Constitution. Although balanced
      growth and economic integration of the nation as a whole has been
D     accepted as one of the major objectives of economic planning, it is to
      make a headway in achieving the object. The growing regional disparities
      have become a reality and hence may pose a barrier to India's future
      economic growth.
              143. India is a union of States with federalism as a basic feature
 E    of the Constitution. However, revenue-wise Union has an edge over
      the States. All major taxes like income tax, wealth tax, service tax,
      excise duty etc. are with the Union. Taxes raised by the States are
      insufficient to discharge their mandate as a Welfare State. India still
      exists in villages and countryside. Substantial number of population is
 F    still below poverty level. Subjects like public order (entry 1, List II);
      public health and sanitation, hospital and dispensaries (entry 6, List II);
      Education (entry 25, List III); providing employment opportunities; roads,
      bridges etc. and other infrastructure (entry 30, List II) inter alia are
      subject matters for the State; and States have limited resources to provide
      for education, healthcare, civic amenities, infrastructure, communications,
 G
      village industries, mral employment and technology and to ensure dignified
      human living of the people of the State, without access to an adequate
      source of revenue.
            144. As discussed earlier, development of the country is seemingly
      unbalanced and unequal. Despite the economic reforms initiated in the
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                          469
                        [R. BANUMATHI, J.]

country about twenty five years ago, entrepreneurs are hesitant to invest A
in backward States because of varied reasons like inadequacy of power,
lack of infrastructure and transportation, quality of human resources
etc. Resultantly, few States continue to be backward States. In order to
have a planned development for the benefit of the people and overall
growth of the country as a nation, regional imbalances are to be removed.
                                                                            B
While trade, commerce and intercourse is important for the economic
unity of the nation, the Courts cannot be oblivious of the responsibilities
of a Welfare State in raising its resources by levy of taxes to meet the
challenges. Incentives to invest in backward areas, subsidies and tax
concessions are some of the measures used by the State to guide the
location of the industries in backward areas and to generate employment c
opportunities for the people of the State. While power of taxation is
indispensable, State also has the power to grant tax concessions or
incentives to indigenous manufacturers/producers. Such incentives/tax
concessions would certainly create differentiation between the locally
produced goods and the goods that are imported into the State from the D
sister States; but the same cannot be said to be discriminatory and
falling foul of Art.304( a).
       145. I summarise my conclusion on this point as under:-
While I agree with the views of the Constitution Bench in Digvijay
and Video Electronics, I do not endorse the views of Mahavir Oil           E
Mills. Accordingly, the law laid down in Laxmi Paper Mart which
relies upon Mahavir Oils is also held bad in law. Moreover, Indian
Cement needs no consideration as it has been specifically overruled in
Digvijay. The conclusions in this regard could be summarized as
under:-
                                                                           F

       • Any difference in the rate of tax on goods locally
         manufactured and those imported, such difference
         not being discriminatory does not fall foul of Art.
         304(a);                                                           G
       • Any incentive/benefits of concession in the rate of
         tax given to the indigenous manufacturers in order
         to encourage the manufacture/produc_tion in the
         State cannot be said to be discriminatory.
                                                                           H
470            SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A           Repercussions of Art. 304(a) wlte11 110 local goods are
      pro(/ueed:


              146. The State may by law impose any tax on imported goods to
      which similar goods manufactured or produced in the State arc subject.
 B
      It is the submission of the assessees that when a State does not produce
      or manufacture goods within its territory then it cannot resort to the
      power conferred on it by Art.304(a) to impose a tax on similar imported
      goods. In support of their contentions, the assessees placed reliance
      upon Kal11ani Store.~· v. State o( Ori.\·sa ( 1966) I SCR 865, where no
c     foreign liquor was produced or manufactured in the State of Orissa but
      tax was levied on foreign liquor imported into the State ofOrissa. When
      the levy was challenged as violative of Art.30 I. it was held that:-


             ''7..... The notification levJ'ing duty at the enhanced rate
D
            is purely a fiscal measure and cannot be said to be a
            reasonable restriction on. the freedom of trade in the
            public interest. Article 301 has declared freedom of
            trade, commerce and intercourse throughout the
            territory of India, anti restriction on that freedom may
 E          only be justified if ii falls wilhin Article 30-1.
            Reasonableness of the restriclio11 would have lo be
            adjudged i11 the light of the purpose for irhic/1 the
            restriction is imposed, that is. "a.1· may he rey11ired in
            the public interest". Without entering upon an exhaustive
 F          categorization of what may he deemed "required in the
            public interest", ii may be said that restrictions which
            may validly be imposed under Article 304(b) are those
            which seek lo protect public health. safety, morals and
            property within the territorv. Exercise of/he power under
            Article 304(a) can only be effective if the tax or dulv
G           imposed on goods imporled ti-om other States a11d the
            tax or dutv imposed on similar goods ma11uf(1ct11red or
            produced in that State are such that thae is 110
            discrimination against imported goods. As 1io foreign
            liquor is produced or manuf'acrured in !he State of
H
        JINDAL STAINLESS Ll'D. v. STATE OF HARYANA                              471
                    [R. BANUMATHI, J.]

      Orissa the power lo legislate given bv Arlicle 304 is 1101                A
      available and !he restriction which is declared on the
      freedom of trade. commerce or intercourse by Article
      301 of/he Constitution remains unfettered." [Emphasis
      supplied]
                                                                                B
        Learned Counsel for the assesses have relied on Ka/yani Stores
to contend that Art. 304(a) is the only avenue for the State to impose
entry tax and the same can be availed of only when there are similar
goods being manufactured within the State so as to prevent discrimi11ation.
However, the law laid down in Kalyani Stores cannot be applied in the           C
case of entry tax levied under entry 52, List II. The dictum of Ka/yani
Stores has a limited application to counterveiling duties imposed on sale
ofliquor levied under entry 51, List II and that too to the limited extent it
is actually in force as of now. Power to impose counterveiling duties of
excise on alcoholic beverages etc. manufactured or produced in the              D
State and counterveiling duties at the same or higher rates on similar
goods manufactured or produced elsewhere in India, under entry 51,
 List II is materially distinct from a levy under entry 52, List II and thus,
an interpretation of the law relating to the former cannot be applied to
the latter.
                                                                                E
       14 7. Furthermore, Kalyani Stores does not appear to have noticed
the non-obstante clause in Art. 304 ''Notwithsta11di11g anything in
Article 301 or Article 303 .... ". The non obs/ante clause should be
understood in a manner appropriate to the substance of Articles 302 to
304. The true source of power of the State Legislature remains in Part
XI, in Atticle 245 read with Article 246 and entries of List II. Art.304 is     F
not a source of power; it embodies a re-statement of powers conferred
under Articles 245 and 246 read with the entries of List JI of Seventh
Schedule with some limitations.
       148. The rigorous view taken in Ka(l'lini Stores was diluted in
State of Kera/a '" Abdul Qadir mu/ Others· ( 1969) 2 SCC 363. The               G
State of Kerala levied a tax on tobacco which was imported into the
State from outside. No tobacco was manufactured or produced within
the State of Kerala. The Court, upon a challenge to the tax law, upheld
the levy of tax on tobacco and observed that the correct approach was
                                                                                H
472            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     to see whether the impugned tax impeded the free flow of trade and
      commerce under Art.301. The Court stated that levy of tax on tobacco
      did not impede the free flow of trade and commerce.
             149. The first part of Art. 304(a) re-states the power of the State
      to impose a tax on goods imported from the other States. Second part of
 B    Art. 304(a) places a limitation on the power of the State Legislature. It
      provides that a State may only tax imported goods so as not to discriminate
      them with the locally produced or manufactured similar goods i.e. the
      limitation ofnon-discrimination vis-a-vis similar internal goods. When a
      situation arises where no similar goods are manufactured or produced in
 c    that State, the tax merely does not fall within the scope of Art.304(a);
      the limitation is taken away but the power to tax remains. The sovereign
      and plenary power of the State to tax cannot be emasculated and made
      subject to a limitation that a State can only tax those goods which are
      produced within its teJTitory also.

 D           150. This is better explained by way of an example: Zinc is an
      important mineral resource used in galvanization of iron and steel. It is
      also used in automotive, electrical and machinery industries. Haryana
      does not have zinc ore, however, it does have the industries mentioned
      above. If zinc is imported from Odisha or Rajasthan, then State of
      Haryana can impose a tax on it, even though there is no local production
 E    of zinc. This does not mean that there is a discrimination against the
      imported zinc. Discrimination involves an element of intentional and
      purposeful differentiation; without a comparable good there cannot be a
      disparate treatment or discrimination of the imported zinc. Thus, a State
      law that imposes a tax on imported goods where similar goods are not
 F    manufactured or produced in that State, will meet the requirement of
      Art.304(a) and there would not arise any question of discrimination.
             151. It is true that when similar goods are not manufactured inside
      the State, there are chances of a higher rate of tax on such goods brought
      into the taxing State from other States but that does not mean that there
 G    should be a blanket protection of such goods from tax. Power of the
      State to tax the goods imported cannot be whittled down on the ground
      that there are no similar goods manufactured or produced within the
      taxing State. Exorbitant taxation of such goods will remain open to
      challenge under Part III in Art. 19(1 )(g) read with Art. 19(6) and Art.
      14. With these observations, I hold that the power to impose a tax on
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                               473
                         [R. BANUMATHI, J.]

imported goods is not taken away when no similar local goods are                A
manufactured within the State and thus, the law laid down in Kalyani
Stores is not a good law.


      Levy of Entry Tax on Imported Goods
                                                                                B
       152. Most of the States levy entry tax on the goods imported from
outside the country when they enter into a local area for consumption,
use or sale therein. The issue that arises is as to whether State Legislature
is competent to levy entry tax on the goods imported from other countries
when they enter into a local area for consumption, use or sale therein.
                                                                                c
         153. Contention of the assessees is that import and export across
the customs frontiers are covered by entry 41, List I; duties of customs
 including export duties are covered by entry 83, List I of the Seventh
Schedule and thus transactions relating to "import/export across customs
frontiers including duties of customs including export duties" fall
                                                                                D
 within the exclusive domain of the Parliament. It is further contended
 that the mandate of Clause 1(d) of Art. 286 of the Constitution prevents
 the State from levying sales tax so as not to interfere with the Union's
 legislative power with respect to import and export across frontiers
 (entry 41, List I) and "the duties of customs including export duty"
 (entry 83, List I). It is contended that ifthe State is pennitted to levy      E
 entry tax under entry 52, List II on goods imported from outside the
 country, the same would amount to levy of 'tax on imported goods' which
 is a clear transgression of powers of the Parliament under entry 41 and
 entry 83 of List I.
       154. Per contra, the States contend that once the imported goods         F
are cleared on payment of customs duty, the goods are mixed with the
mass of goods in India and when such imported goods enter into the
local area, the States are well within their legislative competence to levy
entry tax in exercise of their legislative power under entry 52, List II.
Counsel for the States have submitted before us that the taxable event          G
under entry 83, List I and that under entry 52, List II are distinct;
taxable event with respect to entry 83, List I, is the act of import i.e.
bringing of goods from a foreign country to India, whereas, the taxable
event under entry 52, List 11 is the entry of goods into local area for
consumption, use or sale therein. It was further argued that entry 41,
                                                                                H
474            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A     List I which deals with trade and commerce with foreign countries, import
      and export across custom frontiers, and definition of custom frontiers
      has to be read along with entry 83, List I.
            Meaning of the word "Import":
             155. "Import" means bringing or taking by sea or air across any
 B
      customs frontier. Import is defined in Section 2(23) and imported goods
      in Section 2(25) of the Customs Act as under:-


             "(23) "import", with its grammatical variations and
 c          cognate expressions, means bringing into India from a
            place outside India;


              (25) "imported goods" means any goods brought into
            India from a place outside India but does not include
 D          goods which have been cleared/or home consumption;


            156. The meaning of the word "import" has been explained in P.
      Ramanatha Aiyar's "The Major Law Lexicon", 4'h Edition 2010
 E    as under:-


            "The term "import" means to bring into a country
            merchandise from abroad and is the direct converse of
            the term "export" which means to. carry from a state or
 F          country, as wares in commerce. The term "export"
            sign/fies etymological~v "to carry out" and "import"
            means to "bring in". Its commercial meaning is directly
            contrary to the term "export". Goods brought into the
            country from abroad. The importation of certain goods,
 G          as authorized reprints of copyright books, false coin
            and indecent or obscene prints, is express~y forbidden
            and with regard to certain other goods, such as wine,
            spirits and tobacco, restrictions are imposed as to the
            place and manner of their importation. Goods or
            services brought into a country for sale, from abroad,
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               475
                   [R. BANUMATHI, J.]

      or to bring in such goods or services. " (Trade Finance                  A
      & Banking) [Page 3207]


       157. Similarly, as per Section 2(e) of the Foreign Trade
(Development and Regulation) Act (22of1992), "Import" and "export"
                                                                               B
means respectively bringing into, or taking out of India, any goods by
land, sea or air.
       158. "Import" and "export" across customs frontiers and definition
of 'customs frontiers' are covered by entry 41, List I and "duties of
customs including export duties" are covered by entry 83, List I of C
the Seventh Schedule. Entry 41 and entry 83 of List I of the Seventh
Schedule read as under:-


      "41. Trade and commerce with foreign countries; import
      and export across customs frontiers; definition of                       D
      customs frontiers.
      83. Duties of customs including export duties. "


        159. As per Section 2(28) of the Customs Act, 1962 read with           E
Section 5(1) of the Territorial Waters Continental Shelf, Exclusive
Economic Zone and other Maritime Zones Act, 1976, 'Indian Custo1ns
Waters' mean water extending in sea upto the limit of contiguous zone,
i.e., a line, every point of which is at a distance of 24 Nautical Miles
from the nearest point of the base line. These definitions define the
customs frontier.
                                                                               F

       160. Goods imported in a vessel/aircraft require payment of
customs duty before they are cleared into the country. Unless these are
not meant for customs clearance at the port/airport of arrival by particular
vessel/aircraft and are intended for transit by the same vessel/aircraft
                                                                               G
or trans-shipment to another customs station or to any place outside
India, detailed customs clearance fonnalities of the landed goods have
to be followed by the importers. In respect of goods which are off-
loaded, importers have the option to clear them for home consumption
after payment of the duties leviable or to clear them for warehousing
                                                                               H
476             SUPREME COURT REPORTS                           (2016] IO S.C.R.



A     without immediate discharge of the duties leviable in terms of the
      warehousing provisions as provided in the Customs Act. Sections 45 to
      48 deal with clearance of imported goods for home consumption. In
      terms of Section 46. every impo1ier is required to file Bill of Entry for
      clearance of goods for home consumption or warehousing in the form
      as prescribed by regulations. In terms of Section 47 of the Customs Act,
 B
      proper officer on being satisfied that the goods entered for home
      consumption are not prohibited goods and the importer has paid the imprni
      duty and on being satisfied that the prescribed formalities have been
      duly completed, passes an order for clearance of goods for home
      consumption. Evidently Chapter IX of the Customs Act is a facility for
 c    warehousing, deposit of imported goods and their clearance. Section 68
      provides for clearance of warehoused goods for home consumption by
      the importer. Under Section 68, the warehoused goods can be cleared
      for home consumption by presenting Bill of Entry, paying import duty
      etc. and obtaining an order for cleararn.:e.                           ·
 D           161. The moment imported goods are cleared for home
      consumption either under Section 47 of the Act or under Section 68 of
      the Customs Act, the imported goods mix up with the mass of goods in
      the country and enter into the local area. Import of goods into the territory
      oflndia and transit of goods within the country arc not integral. Import
 E    of goods and customs clearance and the entry of goods into the local
      areas are two distinct events. In the. case of customs duty, the taxable
      event is entry of goods into the territory of India. The taxable event
      under ent1y 52, List II is the entry of goods into local area for consumption,
      use or sale therein. Two taxable events are distinct in law and there is no
      overlap.
 F
             162. Under the Indian Constitution, the distribution of power with
      regard to tax has been done in a mutually exclusive manner and in great
      detail with reference to different aspects of property or goods.
      Considering an issue with regard to excise duty and sales tax payable by
      a manufacturer upon manufacture and sale in Province o(Madra.\' v.
 G
      Mis Boddu Paidamw and Sons AIR 1942 FC 33 = 1942 FCR 90, the
      Federal Court has held that:-
             "'If the taxpayer who pays a sales tax is also a
             manufacturer or producer of commodities subject lo a
             central dutv of excise, there may no doubt be an
 H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                      477
                  [R. BANUMATHl, J.]

     overlapping in one sense: but there is no overlapping           A
     in law. The n+·o taxes which he is called on to pc~v are
     economically /wo separate and dis/incl imposts. There
     is in theory nothing to prevenl the Central Legislature
     from imposing a duty (!f excise on a commodity us soon
     as if comes into existence, no matter what happens lo ii        B
     afterwards, whether it be sold, consumed. destroyed,
      or given away ... It is the fact of manufacture which
      attracts the duty, even though it may be collected later ...
     Jn the case of a sales tax. the liability to tax arises on
      the occasion of a sale. and a sale has no necessary
      connection with manufacture or production."                    c
     .... there are two comjJlementary powers, each expressed
     in precise and definite terms then there is no reason for
     extending the meaning of the expression 'duties of
     excise' at the expense of the provincial power to levy
     taxes on sale of goods. " [Page 101]                            D



      163. Bod du Paidanna has been affirmed in Goveruor General
of Co1111cil 11. Province of Madras AIR 1945 PC 98 = 58 LW 228 in
following words:-                                                    E


     "Here again their Lordships.find themselves in complete
     accord with the reasoning and ocnslusions of !he
     Federal Court in the Boddu Paidanna Case (1). The
     tlvo laxes, the one levied upon a manufacturer in respect        F
     of his goods, the other upon a vendor in respect· of his
     sales. may, as is there pointed out, in 011e sense overlap.
     But in law there is no overlapping. The taxes are
     separate and distinct imposts. If in fact they overlap,
     that may be because the taxing authority. imposi11g a           G
     duty of excise. finds it convenient to impose that duzv at
     the moment when the exciseable article leaves the factory
     or workshop for the first time upon the occasion of its
     sale. But that method of collecting the tax is an accident
     (~f administration, it is not of the essence of the duty (Jf
                                                                     H
478            SUPREME COURT REPORTS                          [2016) 10 S.C.R.



A           excise which is attracted by the manufacturer itself' "


             164. In Ram Krislwn Ram Natlt Agarwal v. Secretarv,
      Municipal Committee, Kamptee, Union of India A IR 1950 SC 11, a
      case relating to bidi manufacturer who was required to pay excise duty
 B
      and octroi, the Supreme Court approved the Federal Court judgment
      and held that the 'excise duty' was tax on the 'manufacturer' while
      'octroi duty' was a 'tax' on the 'entry of goods' within a particular area.
      Tobacco becomes subject to excise duty when it reaches the stage of
      manufacture and it does not conflict with a levy on the entry of goods
 c    within a certain area. It was observed that "it is wrong to think that
      two independent impost arising from two different sets of
      circumstances were not permitted i11 law".
              165. In GujaratAmhuja Cement Ltd. v. Union oflndia (2005)
      4 sec 214, the levy of service tax on carriage of goods by transport
 D    operators was challenged as being legislatively beyond the competence
      of Parliament. This Court held that there is a distinction between the
      object of tax, the incidence of tax as well as collection machinery. The
      legislative competence is to be determined with reference to object of
      the levy. It was held that the service tax and the tax under entry 56, List
 E    II are distinct.
             166. As already noted, under our Constitution, there is no
      overlapping in the taxing power. The Constitution gives independent
      powers of taxation to the Union and the States. The taxing power of
      the Union and of the States are mutually exclusive. This avoids the
 F    difficulties which have arisen underother Federal Constitutions as rightly
      observed in Hoechst Pltt1r111aceutica/5· v. State o(Bi//ar ( 1983) 4 SCC
      45 and State of West Bengal r. Kesoram Industries (2004) I 0 SCC
      201.
             167. The other contention of the appellants is that the doctrine of
 G    'Unbroken Package' should be applied in the context of entry 83, List
      I as was initially applied by US courts. Doctrine of' Unbroken Package·
      postulates that import of goods continues even after crossing customs
      barrier until the package imported is broken up at the importer's
      destination and the goods are taken out. This argument was pressed
      upon mainly to save the foreign goods from suffering entry tax at the
 H
       JfNDAL STAINLESS LTD. v. SlATE OF HARYANA                              479
                   [R. BANUMATHL J.]

instance of State authorities. The appellants contended that no entry         A
tax can be levied under entry 52, List II by the State authorities before
the package is broken.
       t 68. Such a contention does not find force in the light of the fact
that doctrine of' Unbroken Package' has not only been discredited by
Indian Couits, but also by the American Courts. In the American context,      B
reference can be made to Prof. Tribe on American Constitutional
Law States, in which the learned Professor has criticized the doctrine
of 'Unbroken Package· in the following words:


       '"in the dormant commerce clause context. the court long
                                                                              c
       ago disparaged the 'unbroken-package doctrine as
       applied to interstate commerce ........ as more artificial
       than sound· and·the court has concluded that taxes
        imposed on goods while in transit through the taxing
        state are in effect potentially repeatable taxes on                   D
        interstate commerce itself and are thus barred by the
        commerce clause. But non-discriminatory taxes imposed
        on goods prior to their movement into interstate transit,
        or subsequent to the completion of such transit, are taxes
        incapable of multiple application and are thus                         E
        s11jficientll' local to survive jurisdiction scrutiny."
        [Page. 1162-1163]


       169. Learned counsel on behalf of the States rightly contended
that the 'original package doctrine' or 'unbroken package doctrine'            F
as propounded in Brown v. State ofMaryland by Chief Justice M·arshall
has been expressly disapproved by Indian courts as well. In this regard,
reliance has been placed upon Province ofMadras v. Bot/du Paidt11111a
& Sons AIR 1942 FC 33 = 1942 FCR 90; State o[Bombav 1•. F.N.
Balsara (CB) AIR I 95 l SC 318; State of Trava11core-Cocl1in 1•.               G
S/1a11mugha Vilas Cashew Nut Factor!' (1954) SCR 53.
      170. In Gramophone Companv of India Ltd. v. Bire11dra
Baltadur Pandev ( l 984) 2 SCC 534, this Court while interpreting the
word "import" in Section 53 of the Copyright Act 1957, discredited the
                                                                               H
480            SUPREME COURT REPORTS                      [2016] 10 S.C.R.



A     'Doctrine of Unbroken/original Package' in the following tenns:


            "37. The Calcutta High Court thought that goods may
            be said to he imported into the country onzv if there is
            an incorporation or mixing up of the good~ imported
 B
            with the mass of the property in the local area. In other
            words the High Court relied on the 'original package
            doctrine' as enunciated by the American Court. Reliance
            was placed by the High Court upon the decision of this
            Court in the Central India Spinning and Weaving and
 c          Manufacturing Co. Ltd. The Empress Mills, Nagpur v.
            Municipal Committee, Wardha [1958]1SCRJJ02. That
            was a case which arose under the C.P. and Berar
            Municipalities Act and the question was whether the
            power to impose 'a terminal tax on goods or animals
 D          imported into or exported from the limits of a
            municipali~v' included the right to levy tax on goods
            which 'were neither loaded or unloaded at Wardha hut
            were mere~)' carried across through the municipal area'.
            This Court said that it did not. The word 'import', it was
            thought meant not merely the bringing into hut
 E          comprised something more, that is 'i11co1porating and
            mixing up of the goods with the mass of the property in
            local area', thus accepting the enunciation of the
             'Original Package Doctrine' by Chief Justice Marshall
            in Brown v. State of Maryland 6 L. Ed. 78. Another
 F          reason given hy the learned Judges to arrive at the
            conclusion that they did, was that the very levy was a
             'terminal tax' and, therefore the words 'import and
            export', in the given context, had something to do with
            the idea of a terminus and not an intermediate stage of
            a journey. We are afraid the case is realZv not of any
 G
            guidance to us since in the context of a 'terminal tax'
            the word1· 'imported and exported' could he construed
            in no other manner than was done hy the Court. We
            must however say that the 'original package doctrine'
            as enunciated by Chief Justice Marshall on which
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             481
                   [R. BANUMATHI, J.]

      reliance was placed was expressly disapproved first by                 A
      the Federal Court in the Province of Madras v. Boddu
      Paidanna:l942 FCR 90 and again by the Supreme
      Court in State of Bombay v. F.N. Balsara,. Apparently
      these decisions were not hrought to the notice of the
      Court which decided the case of Central India Spinning                 B
      and Weaving and Manufacturing Co. Ltd., The Empress
      Mills, Nagpur v. Municipal Committee, Wardha. So we
      derive no help .fi-om this case. As we said, we prefer to
      interpret the word 'import' as it is.found in the Copyright
      Act rather than search for its meaning by referring to
      other statutes where it has been used. "                               c

       171. Chapter Vlll of Customs Act deals with goods in Transit.
Section 54 deals with trans-shipment of goods without payment of duty
upon presentation of bill of trans-shipment. The inland container depot      D
and land custom station are creatures of Statute. They are not
detenninative of the taxable event for imposition of custom duty on
imports. Many of the provisions are facilitative and/or intended for
purposes of valuation and fixation of rates. The crucial aspect is that
according to entry 83, List I as well as the Customs Act, 1962 the taxable
event is 'import' or 'hringing of the goods into India' and it is distinct   E
from the taxable event of entry 52, List II.
     172. The assessees contended that a factory unit may have a
warehouse where goods are deposited and are kept under a bond which
may even pennit sale or manufacture. It was even contended that the
warehouse itself may be in the same local area, illustratively in Delhi/     F
Mumbai.
       173. Sections 2(43), 2(44) and 2(45) deal with warehouse,
warehoused goods and warehousing station. Section 9 requires the Board
to issue a Notification in the Official Gazette declaring places to be
warehousing stations at which alone public warehouses may be appointed       G
and private warehouses may be licensed. The public warehouses are
appointed under Section 57 and private warehouses are licensed under
Section 58.

                                                                             H
482             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



 A           174. On behalf of the States, it was submitted that there is no
      submission by any of the assessees that there is a warehousing station in
      their factory units or in the local area where they are located or that
      there is any public warehouse or private warehouse so located. Our
      attention was drawn to SLPs pertaining to Indian Oil Corporation, Vedanta
      and NALCO to contend that the assessees have not produced any
 B
      evidence nor is there any pleading that the Bill of Entry is filed in the
      factory units or in a land custom station which is located in the same
      local area as the assessees' unit. Hence, it is submitted that the warehouse
      and warehouse bond based contentions have been advanced without
      any basis in pleadings and facts.
 c
             175. A comparison of Sections 58 and 57 shows that a licensed
      private warehouse is different from a public warehouse. Section 58
      deploys the expression "dutiable goods imported by or on behalf of the
      licensee, or any other imported goods". Similar expression is not used in
      Section 57 with respect to public warehouses wherein dutiable goods
 D    may be deposited. It is clear that the goods deposited in private
      warehouses are considered to be goods which have already been
      imported. Further, 'warehousing bond' is dealt with in Section 59 which
      is issued where the goods have been entered for warehousing and after
      assessment of the duty, the bond is executed for a sum twice the amount
 E    of the duty assessed. When the requirements in Section 59 are complied
      with then pennission to deposit the goods in warehouse is granted. This
      indicates that both in public warehouses and private warehouses the
      deposits are pennitted only for goods which are already imported.
      Stringent provision is made in Section 59(2) to pay all duties or interest
      on or before the date of demand. Under Section 62, the proper custom
 F
      officer exercises control over all the warehoused goods and he may
      cause any warehouse to be locked. The owner of the goods can with
      the sanction of the proper officer deal with the goods, show the goods
      for sale and even carry on any manufacturing process or other operations
      in the warehouse in relation to such goods.
 G
            176. Such warehousing or warehousing bond cannot prevent the
      levy of entry tax, especially where warehouse is established in a factory
      unit. On the basis of the law laid down above, I hold that the taxable
      events under entry 83, List I and entry 52, List II are distinct; any
      movement of the imported goods to the warehouse in the factory· unit
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             483
                       [R. BANUMATHl, J.]

would not prevent the State from levying and collecting entry tax when       A
such goods enter a local area of the State for consumption, use or sale
therein.
     177. Summarily, the conclusion on question No.4 is as
under:-
                                                                             8
      •Entry tax with reference to entry 52, List II of Seventh Schedule
        is not violative of A1i. 30 I subject to the levy being non-
        discriminatory i.e. passing the muster of Art. 304(a). A levy
        sustainable under Art. 304(a), being non-discriminatory would
        ipso facto be out of the purview of Art. 30 I.
                                                                             c
      • When the entry tax is levied by the Entry Tax Act enacted by
        the State Legislature, the term 'a local area' contemplated by
        Entry 52 may cover the 'Whole State' or ·a local area· as
        notified in the legislation. l agree with the view taken in
        Bihm· Cit amber of Commerce that from the point of view of
                                                                             D
        entry tax that the State is a compendium of local areas and
        where the local areas contemplated by the Act cover the entire
        State, the difference between the State and 'a local area'
        practically disappears.

      • Articles 304(a) and. 304(b) are to be read disjunctively; both       E
        apply to different subject matters; while Art. 304(a) deals with
        tax, A1i. 304(b) deals only with non-fiscal matters.
Conclusions on the incidental questions arising under Question
No.4:-
      • Where there is equivalence in terms of tax treatment between         F
        the locally produced goods and the ones imported from other
        States, levy of entry tax on the goods imported from other States
        when there is no such levy on the locally produced goods is not
        discriminatory.
                                                                             G
      • Every differentiation is not discrimination. Any difference in
         the rate of tax on goods locally manufactured and those imported,
         such difference hot being discriminatory does not fall foul under
         Art.304(a). Any incentive/benefits of concession in the rate of
         tax given to the local manufacturers/producers in order to
                                                                             H
484            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A              encourage the local manufacturers/production in the State
               cannot be said to be discriminatory. Digvijay and Video
               Electronics have laid down the correct law. Mahavir Oil
               Mills is not a con-ect view.
            • Levy of ent1y tax on the goods imported from the other States is
B              not discriminatory merely on the ground that there are no similar
               goods manufactured or produced within the taxing State. The
               law laid down in Kalyani Stores is not a good law.
            • Levy of entry tax on the goods imported from outside India
               which enter into local area for consumption, use or sale therein
c              is within the legislative competence of the State.


            QUESTION NO. 2: IF ANSWER TO QUESTION N0.1 IS
            IN THE AFFIRMATIVE, CAN A TAX WHICH IS
D           COMPENSATORY IN NATURE ALSO FALL FOUL OF
            ARTICLE 301 OF THE CONSTITUTION OF INDIA?


            QUESTION NO. 3: WHAT ARE THE TESTS FOR
            DETERMINING WHETHER THE TAX OR LEVY IS
 E          COMPENSATORY IN NATURE?
              178. The concept of 'compensatory tax' is a judicially evolved
      concept. Majority in Atiabari held that taxes may and do amount to
      restrictions and hence tax legislation is subject to scrutiny under Art.
      301. In Atiabari, the test of "direct and immediate effect on trade,
 F    commerce and intercourse" was evolved. The majority in Atiabari had
      thus completely read down State's taxing power under entry 52, List II
      thereby holding that State's legislative power is subject to the freedom
      clause in Art. 301. This had an adverse effect on the legislative power
      of the State to levy tax and its financial autonomy.
G            179. lnAutomobile, while the Supreme Court affinned the views
      of Atiabari, compensatory taxes were carved out as an exception to
      Art. 301. In Automobile, this Court evolved the concept ofcompensatory
      taxes and held that "regulatory measures or measures imposing
      compe11sat01:v taxes for the use of trading facilities do not come
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              485
                   [R. BANUMATHI, J.]

within the purview of the restrictions contemplated by Article 301".          A
Compensatory taxes were held to be ones which did not hinder the·
freedom of trade, commerce and intercourse, instead facilitated the same.
Further, the Court laid down a "working test" to ascertain whether a tax
is compensatory or not in the following tenns:-
                                                                              B

      "27 .... It seems to us that a working test for deciding
      whether a tax is compensatory or not is to enquire
      whether the trades people are having the use of certain
      facilities for the better conduct of their business and
      paying not patently much more than what is required                     C
      for providing the facilities. It would be impossible to
      judge the compensatmy nature of a tax by a meticulous
       test, and in the nature of things that cannot be done."

                                                                              D
       180. InAutomobile, the Bench negating the requirement of setting
up a separate fund for the taxes collected in the name of compensatory
tax, held that the State need not maintain a separate fund for the
compensatory taxes so collected from the traders enjoying the benefit
of the services provided by the State; rather it is sufficient if the State
provides certain facilities for better conduct of traders' business. This     E
Court held as under:-


      "28. Nor do we think that it will make anv difference
      that the money collected from the tax is not put into a                 F
      separate fund so long as facilities for the trades people
      who pay the tax are provided and the expenses incurred
      in providing them are borne by the State out of whatever
      source it may he ... "

                                                                              G
       Having observed so, in Automobile itself, this Court had ruled out
the element of quid pro quo from the ambit of compensatory tax. While
stressing on the need for ensuring that the assessees are not 'paying
much more than what is required for providing the facilities', the
Court merely intended to prohibit levy of an exorbitant tax. It was nowhere
                                                                              H
486            SUPREME COURT REPORTS                        [2016] 10 S.C.R.


A     intended by the Court to authorise levy of 'fee' in the name of
      'compensatory tax'.
               181. In various cases, this Court has repeatedly held that
      regulatory measures like licensing or price control or compensatory
      measures cannot be treated as violative of freedom of trade, commerce
B     and intercourse within the territory of India. While upholding the
      enhancement of the motor vehicles tax, in GK. Kris/man 1>. State of
      Tamil Nadu (1975) I SCC 375, this Court held that a compensatory tax
      is not a restriction upon the movement part of trade and commerce.
      Neither should the tax go beyond a proper recompense to the State for
.C    the actual use made of the physical facilities provided in the shape of a
      road nor it is necessary that there should be a separate fund or express
      allocation of money for the maintenance of roads to prove the
      compensatory purpose, when such purpose is proved by alternative
      evidence.

D            182. The decision in Krishnan 's case was reiterated in
   l11ter11ational Tourists Corporation and Or.~-. v. State of H arva11t1
   and Ors.. ( 1981) 2 SCC 318, in which levy of tax on passengers and
   goods under The Punjab Passengers and Goods Taxation Act, 1952 and
   similar other enactments of other States were under challenge. State of
   Haryana levied a tax on transporters plying motor vehicles between
 E Delhi and Jammu and Kashmir. The transporters would use national
   highway, pass through Haryana, without picking up or setting down
   passengers in the State. Since, the responsibility to construct and maintain
   the highways is with the National Highways Authority of India, it was
   contended by the transporters that the tax could hardly be regarded as
 F compensatory. But the Court rejected this contention and held that if the
   taxes were to be proportionate to the expenditure on regulation and
    service, it would not be a tax but a fee. It was pointed out that in the
   case of a fee, it may be possible to precisely identify and measure the
    benefits received from the Government and in the case of regulatory
   and compensatory tax, it would be well-nigh impossible to identify and
 G
   measure the benefits received and the expenditure incurred and to levy
   the tax in accordance with such benefits. It was held as under:-
            "9. While in the case of a fee it may be possible to
            precisely identifji and measure the benefits received fi'om
            the Government and levy the fee according to the
 H
       HNDAL STAINLESS LTD. v. STATE OF HARYANA                              487
                  [R. BANUMATHI. J.]

      benefits received and the expenditure incurred, in the                 A
      case of a regulatory and compensatory tax it would
      ordinarily be wellnigh impossible to identify and
      measure, with any exactitude, the benefits received and
      the expenditure incurred and levy the tax according to
      the benefits received and the expenditure incurred. What               B
      is necessary to uphold a regulatory and compensatorv
      tax is the existence of a specific. identifiable object
      behind the levy and a nexus between the subject and
      the object o( the levv. If the object behind the levy is
      identifiable and i( there is su{ficient nexus between the
      subject and the object of the levy. it is not necessarv                c
      that the monev realised bv the levv should be put into a
      separate fund or that the levv should he proportionate
      to the expenditure. There can he no bar to an
      intermingling of the revenue realised ti-om regulatiwv
      and compensatorv taxes and from other taxes o( a                       D
      general nature nor can there be anv objection to more
      or less expenditure being incurred on the object behind
      the compensatory and regulaton• levv than the
      realisation (rom the levv." [Emphasis added]
                                                                             E
        183. In Mis. Bltagatram Rajeevkumar v. Commissioner of
Sales Tax, M.P. and Ors. 1995 Supp ( 1) SCC 673, it was held that
even if there is some link or some connection between the tax and the
facilities extended to the trade directly or indirectly the levy cannot be
challenged as invalid.                                                       F
       184. The same dictum was followed in State o{Bilwr and Ors.
v. Bilwr Chamber of Commerce and Ors. ( 1996) 9 SCC 136, wherein
this Court considered the challenge to a legislation in which the State of
Bihar levied entry tax on the goods entering into a local area for
consumption, use or sale therein. The Act was challenged as violative of     G
Art.301 of the Constitution. After referring to Blwgatram. it was held
as under:-



                                                                             H
488            SUPREME COURT REPORTS                      [2016] I0 S.C.R.


A           "18. In this connection. it is necessarr to notice a few
            decisions brought to our notice. Jn Bhagatram
            Rajeevkumar (1995) Suppl. 1 SCC 673. a three-judge
            Bench of this Court has rejected the argumem that to
            be compensatory, the tax must j(1cilitate the trade. The
            reason is obvious: (fa measure facilitates the trade, it
 B
            would not be a restriction on trade but an
            encouragement to it. It was observed: [SCC Page 678,
            Para 8]

            " ... The submission of Shri As/10k Sen, leamed Senior
 c          Counsel that compensation is that which fi1cilitates the
            trade only does not appear to be so1111d. The concept <~f
            compensatO!y nature of tax has been widened and         u·
            there is substantial or even some link between the tax
            and the facilities extended to such dealers directlv or
            indirectly the levy cannot be impugned as invalid. The
 D
            stand of the State that the revenue earned is being made
            over to the local bodies to compensate them for the loss
            caused, makes the impost compensatory in nature, as
            augmentation of their finance would enable them to
            provide mu11icipal services more efficiently, which would
 E          help or ease free flow of trade and commerce. because
            <!/which the impost has to be regarded as compensarory
            in nature, in view of what has been stated in the
            aforesaid decisions, more particularly in Hansa Corpn.
            Case (1980) 4 SCC 697". [Emphasis supplied)
 F
             185. The Constitution Bench in Jindal Stainle.\·s Ltd. (2) after
      placing reliance on A11to111obile concluded that there is difference
      between a taxing Statute whose purpose is collection ofrevenue, and a
      taxing Statute whose purpose is regulation. The Court formulated a
 G    working test to determine whether the impugned law is a product of the
      exercise of regulatory power or taxing power: "if the impugned law
      seeks to control the conditions under which an activity like trade is
      to take place then such law is regulatory.,. The Bench concluded that
      the only way to reconcile a compensatory tax Statute that chooses
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 489
                    [R. BANUMATHI, J.]

movement of trade and commerce as a criterion and in effect impedes               A
it, is by holding it as regulatory and, therefore, outside the scope ofArticles
301, 302 & 304.


       "38 .... If the impugned law seeks to control the
                                                                                  B
       conditions under which an activity like trade is to take
       place then such law is regulatory. Payment for
       regulation is different fi"om payment for revenue. If the
       impugned taxing or non-taxing law chooses an activity,
       say, movement of trade and commerce as the criterion
       of its operation and if the effect of the operation of such                c
       a law is to impede the activity, then the law is a restriction
       under Article 301. However, if the law enacted is to
       enforce discipline or conduct under which the trade has
       to per/orm or if the payment is for regulation of
       conditions or incidents of trade or manufacture then                       D
       the levy is regulatory. This is the way of reconciling the
       concept of compensatory tax with the scheme ofArticles
       301, 302 and 304. ... "


The Bench further held:                                                           E


       "45. To sum up. the has is of every levy is the controlling
       factor. Jn the case of "a tax", the levy is a part of
        common hurden hased on the principle of abili~y or                        F
        capacity to pay. In the case of "a fee", the basis is the
        special benefit to the payer (individual as such) based
        on the principle of equivalence. When the tax is imposed
        as a part of regulation or as a part of regulatory
        measure, its basis shifts from the concept of "burden"
        to the concept of measurable/ quantifiable benefit and                    G
        then it becomes "a compensatory tax" and its payment
        is then not for revenue but as reimbursement/
        recompense to the service/facility provider. It is then a
        tax on recompense. Compensatory tax is by nature
                                                                                  H
490             SUPREME COURT REPORTS                            [2016] 10 S.C.R.


A           hybrid but it is more closer to fees than to tax as both
            fees and compensatory taxes are based on the principle
             of equivalence and on the basis of reimbursement/
             recompense. If the impugned law chooses an activi(Y
             like trade and commerce as the criterion o.f its operation
 B          and {f the effect o.f the operation of the enactment is to
             impede trade and commerce then Article 301 is violated.
            46. Burden on the State: Applying the above tests/
            parameters, whenever a law is impugned as violative
            of Article 301 o.f the Constitution, the Court has to see
 c          whether the impugned enactment facially or patently
            indicates quantifiable data on the basis of which the
            compensato1:y tax is sought to be levied. The Act must
            facial~y indicate the benefit which is quantifiable or
             measurable. It must broadly indicate proportionaliry to
            the quantifiable benefit. If the provisions are ambiguous
 D          or even !f the Act does not indicate facially the
            quantifiable bene.fit, the burden will be on the State as
            a service(facility provider to show by placing the
            material before the Court, that the payment of
            compensatory tax is a reimbursement/recompense for
 E          the q11antifiable!meas11rable benefit provided or to be
            provided to its payer(s). As soon as it is shown that the
            Act invades freedom of trade it is necessary to enquire
             whether the State has proved that the restrictions
            imposed by it by way of taxation are reasonable and in
            public interest within the meaning of Article 304(b) [see
 F
            para 35 (o.f AIR) of the decision in Khyerbari Tea Co.
            Ltd. and Am: v. State of Assam]."


              For compensatory tax, Jindal Stainless Ltd. (2) thus ingrained
 G    the tests of(i) facial declaration; and (ii) proportionality to the quantifiable
      benefits provided to its payers, as an essential element. It was held that
      compensatory taxes like fees always have to be proportionate to the
      benefits and the decisions rendered in Bhagatram and Bihar Chamber
      of Commerce were declared bad in law.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                         491
                   [R. BANUMATHI, J.]

        I 86. Until Jindal Stainless Ltd. (2) compensatory taxes were A
dealt as taxes and only Jindal Stainless Ltd. (2) equated compensatory
tax to 'a fee' and held that compensatory tax is based on the principle of
"pay for the value" and that it is a sub-class of 'fee'. It was further
held that compensatory tax is a recompense/reimbursement. The
distinction between a 'tax' and a 'fee' lies primarily in the fact that a
                                                                           B
'tax' is levied as a part of common burden, while a ·fee' is for payment
of a specific benefit or privilege rendered by some governmental agency.
The distinction between 'tax' and 'fee' has been elucidated in Gujarat
Ambuja Exports Limited amt Another v. State o( Uttaraklumd and
Others (2016) 3 SCC 60 l as under:
                                                                          c
       ·-. ... it is necessm:v to consider the d(fference between
      the concept of tax and that of a fee. The neat and terse
      definition <i tax which has been given by Latham. C.J..
       in Matthews v. Chicory Marketing Board (1938) 60                   D
      C.L.R. 263 is <!ffen cited as a classic 011 this su~iect.
       "A tax". said Latham, C..!., .. is a c:o111p11lsory exaction
      of money by public authority for public purposes
      enforceable by law. and is not pavmenl .for serviced
      rendered". Jn bringing out the essential femures of a
       tax this dejlnition also assists in distinguishing a tax           E
      from a fee. It is true that hetween a tax and a fee there
       is no generic difference. Both are co111p11lso1J' exactions
       of 111011ey hy puhlic authorities; bw whereas a tax is
       imposed for public purposes and is 1101. and need not,
       be supported by any considera1io11 of service rendered             F
       in return. a fee is levied essenliall.i•.for services rendered
       and as such there is an element of quid pro quo between
       the person who pays the fee mzd the public authority
       which imposes ii .... In regard to fees there is, and mus/
       always he, co-relation between !he fee collected a11d
                                                                          G
       the service intended to he rendered .... The distinction
       between a lax and a fee is. howeve1; important. and it is
       recognized by the Constitution. Several Elnries in the
        Three Lists empower the appropriate Legislatures lo levy

                                                                          H
492            SUPREME COURT REPORTS                          [20 I6] l 0 S.C.R.


A           taxes: but apart fi·om !he power ro /evv taxes thus
            conferred each List spec(ficallv refers lo the power to
            levy fee:,; in respect <!f any of the matters covered in the
            said Lisi excluding of course the fees taken i11 u11y
            Court."
 B
            The same view was reiterated in State o( Tamil Nadu 1·. TVL
      South Indian Sugar MillsAsmciatio11(2015) 13 SCC 748, Kris/ti Upaj
      Mandi Samiti and Otlter.v 1'. Orient Paper & Industries Ltd. ( 1995)
      I SCC 65 5 and .Krislt11a Da.v v. Town Area Committee, C/1irgao11
c     (1990) 3 sec 645.
           187. It must be reiterate.cl that all the taxes are intended for public
   purpose and are levied in public interest. Levy of tax is not to fi II the
   State coffers but to perform various functions including public welfare
   for which said funds are required. Taxation is not a profit-making ext:rcise
 D for the States; as stated earlier, the States perform several functions for
   which they require fonds and have the power to levy tax to raise revenues
   and thus virtually all taxes are monies paid for services or facilities
   provided by the State. Art. 266( I) provides that all revenue including
   that from taxes received by a State Government shall form one
 E consolidated     fund-the Consolidated Fund of the State. This fund is a
   reservoir and resources placed in it are a part of the whole. All revenue
   is subsumed in it and cannot be delineated. The Consolidated Fund of a
   State is a single unified account for the Stat<:: and withdrawal of money
   from the same is protected by th·· :quirement of passing an Appropriation
   Act. Further, Art. 266(3) by stating that ·110 mo11ey out of any
 F Consolidated Fund shall be appropriated except in accordance with
   law -- for the purposes and in the manner provided in the
   Co11stit11tio11 'provides another safeguard in lieu of ensuring legitimate
   use of public money. The manner of appropriation of money collected in
   the Consolidated Fund of the State falls under Part VI. Chapter Ill.
 G ranging from Articles 202 to 206 of the Constitution. There are sufficient
   constitutional safeguards for the appropriation of money collected in
   Consolidated Fund. The revenue generated by the States in the form of
   entry tax has to necessarily form pa1t of th is Fund, and once it so
   subsumed, States cannot be asked to show a 'proximate quid pro quo'
   by furnishing 'quantifiable data' as to their expenditure. It may not be
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 493
                          [R. BANUMATHI, J.)

possible for the States to show with mathematical precision a direct link         A
between the expenditure incurred in individual cases and the
corresponding levy imposed.
        188. I hold that the entry tax levied by various States, falling within
the domain of entry 52, List 11, is a tax simpliciter, even though by
nomenclature it is tenned as a 'compensatory tax'. Subject to passing             B
the muster of Art. 304(a), entry tax levied by the States under entry 52,
List 11 even though tem1ed as compensatory tax does not fall foul of Art.
301. The ratio laid down in Jindal Stainless Ltd. (2) equating
compensatory taxes to fee had wide ramifications. Some High Courts
viz., Orissa, Chhattisgarh and Madhya Pradesh upheld the levy of entry            c
tax as compensatory. Many other High Courts struck down the levy
applying the test laid down in Jindal Stainless Ltd. (2). In those cases
where the levy was struck down, High Courts held that the State could
not show what were the benefits provided to the traders who imported
goods from outside the States to recompense the tax payer.
                                                                                  D
        189. I disagree with the narrow approach in Jindal Stainless
Ltd. (2) equating compensatory taxes to 'fee' and mandating the States
to prove 'proximate quid pro quo' by 'quantifiable data approach'.
Since now we have held that taxes are outside the purview of Art. 301,
taxes in the name of' compensatory taxes' are also outside the purview
of Art. 30 I. To uphold a regulatory or compensatory tax, comprehensive           E
parameters cannot be laid down as they may vary depending upon the
nature of the levy. Automobile case itself has laid down parameters of
compensatory taxes (Das J. at Pages 536-537). It is not necessary that
the money so collected should be put into a separate fund or that the
levy should be proportionate to the expenditure.                                  F
        190. Insofar as levy of entry tax is concerned, enactments of
some States facially declare that they are compensatory. The
compensatory tax so levied is subsumed in the Consolidated Fund of the
State. Once there is intenningling in the Fund and money is spent for
public purposes of development of various local areas like construction,          G
maintenance of roads and bridges, and for other amenities which facilitate
trade, there will always be a link between the liability of the tax bome by
the traders and benefits enjoyed by them either directly or indirectly.


                                                                                  H
494          SUPREME COURT REPORTS                      [2016] I 0 S.C.R.



A            191. To summarise the conclusions on question Nos. 2
      ancl 3:-
           • In so far as compensatory taxes are concerned in the
             light of the conclusion on question No.1, I holcl that the
             nomenclature of 'compensatory' ascribed to the taxes
 B           levied by the State Government under Entry 52, List II
             pursuant to Automobile is unwarranted. The concept of
             compensatory tax was evolved fifty years back through
             judicial pronouncements. It has withstood the test of
             time and thus, any subsequent juclicial pronouncement
 c           like the present one should not prejudice the interest of
             the parties involved. The State Governments should not
             suffer any loss of revenue solely because of judicial
             interpretations and innovations in Automobile and the
             cases subsequent to it.

 D         • Subject to passing the muster of Art. 304(a), entry tax
              levied by the States under entry 52, List II even though
              termed as compensatory tax docs not fall foul of Art. 301.
              It is not necessary that the money realized by the levy
              should be put into a separate .Fund or that the levy should
              be proportionate to the expenditure. There is no bar to
 E
              subsumption of the revenue realized from regulatory/
              compensatory taxes into the Consolidated Fund of the
              State as they arc no different from other taxes of a general
              nature. Moreover, the quantum of expenditure incurred
              in achieving the object behind a compensatory levy
 F            cannot be inquired into.

           •Jindal Stainless Ltd. (2) & A11r. v. State o(Harvmw & Ors.
             (2006) 7 sec 241 is not a correct view in adopting
             quantifiable data approach; for a tax, there is no
             requirement of proximate quid pro quo an cl Jilulal Stainless
 G
             Ltd. (2) is overruled. The view taken in Blwgatram and
             Billar Chamber of Commerce is correct as the same is in
              harmony with the original design of compensatory tax
             laid clown in Automobile.

 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             495
                         [R. BANUMAnH. J.]

      REFUND AND UNJUST ENRICHMENT:-                                         A



       192. Lastly, it is necessary to consider an important issue raised
by the asscssees on the payment of tax/refund of tax in case the validity
of the legislations is upheld or otherwise as the case may be. It has
                                                                             B
come on record that many Entry Tax legislations of the State arc t'tiacted
pursuant to Blwgatram and Bi/tar Cltamber of Commerce. But Jindal
Stai11less Ltd. (2) which we have now over-ruled, has led to a scenario
of discordant judicial pronouncements, whereby some High Courts have
struck down the impugned legislation as being non-compensatory, while
the others have upheld the laws declaring them compensatory. In some         c
States, the High Courts have passed interim orders directing petitioners
to pay 33'% of the demand and in some cases 50% of the demand.
When the matters were admitted by the Court, interim orders were passed
directing the assessees to pay 50% of the demand. But, this Court
cannot lose sight of the fact that assessees have not pleaded and produced   [)
evidence to establish that they have not passed on the tax burdens to the
consumers. In absence of sui.:h a submission, the normal presumption is
that they have passed on the tax burden. Had they contended otherwise,
burden would have been on them to allege and establish the same. In the
absence of any such allegation and proof, the claim of refund is not
called for.                                                                  E

       193. Learned Senior Counsel Mr. Giri has argued that the payment
effected under the Entry Tax Act can be legitimately taken into account
for the purpose of fixing the price of goods that can be collected by the
same person as a dealer under the Sales Tax Act, just as in the case of
Sales Tax. It is thus submitted that the burden suffered by the goods in     F
question have actually been passed on to the consumer and that at any
rate the assesses would not be entitled to any refund.
       194. Learned Senior Counsel Mr. Rakcsh Dwiwdi has submitted
that the doctrine of unjust enrichment is invoked in cases where the
States have acted on the basis of earlier Supreme Court judgments or         G
where the laws have been operating for a very long time and the rights
and liabilities of the people have crystallised on the basis of such laws,
and where the laws are subsequently declared ultra vires and previous
judgments are over-ruled. It is futther submitted that in such cases,
                                                                             H
496            SUPREME COURT REPORTS                        [2016] 10 S.C.R.


A     particularly in tax matters, law is declared prospectively and the reason
      behind such prospective application is to save the taxes which has been
      already collected. In order to support his contentions, he relied on the
      decisions of this Court in Sy11tlietics & Chemicals v. State of U.P.
      (1990) 1SCC109; Bel.rnnd Sugar Co. Ltd. "·State <dBi/tar (1999)
 B    9 SCC 620; Ma/at/al illdustries Ltd vs U11io11 of l11dit1 (1997) 5
      sec   536 etc.
             195. By catena of judicial pronouncements, this Court has fairly
      laid down the concept of'unjust enrichmenf in respect of tax laws. The
      doctrine of'unjust enrichment' is that no person can be allowed to enrich
 c    inequitably at the expense of another. A right of recovery/payment under
      the doctrine of'unjust enrichment' arises where retention ofa bent:fit is
      considered contrary to justice or against equity. The concept of' unjust
      enrichment' is applicable for the purpose of grant of refund. The concept
      provides that if a person pays tax/duty to the Government in terms of the
      prevailing tax Statutes and passes it on to the consumers and,
 D    subsequently, the tax/duty is found not payable. refund cannot be claimed
      from the Government authorities, as whatever liability he had incurred
      has already been recovered. And, if he gets the refund, he would be
      unjustly enriched.
             196. In Mafatlal l11d11Mries Ltd v. Union of India ( 1997) 5 SCC
 E    536. a nine-judge Bench of this Court considered the scopt: and ambit of
      the s~ud doctrine in detail. The Court held that Central Excise and Salt
      Act is a self-contained Code which also provides for determination of
      claim of refund. The Act was found to have expressly declared that no
      refund shall be made except in accordance there\vith. The Court further
 F    held that even in regard to exercise ofjurisdiction under Articles 32 and
      226, Court would certainly take note of the legislative intent manifested
      in the provision in the Act. The Court further dealt extensively with the
      scope of refund in a case where the burden of tax has been passed on to
      the consumers. An excerpt from the majority view reads as under:
 G
             "108. A claim for refund. whether made under the
            provisions of the Act as contemplated in proposition ...
            (i) above or in a suit or writ petition in the situations
            contemplated by proposition (ii) ahove. can succeed
 H
      JINDAL STAINLESS LfD. v. STATE OF HARYANA                              497
                  [R. BANUMATHI. J.]

     u11/J' (f the petitioner/plaintiff' alleges an d establishes            A
     that he has not passed on the burden of duty to another
     person/other persons. His refund claim shall be a/1owed1
     decreed only when he establishes that he has 1101 passed
     011 the burden <i the duly or the extent he has not so

     passed on. as the case may be. Whether the cfaim for                    B
     restitution is treated as a co11stitutional imperath'e or
     us a statutory requirement, it is neither m1 absolute right
     nor an unconditional obligation but is su~ject lo the
     ahove requirement. as explained in the body of' I he
     judgment. Where the burden of the duty has been possed
      on, the claimant ca1111ot .wv that he has s14Jer.;d any                c
      r.;al loss or prejudice. The real loss or prejudice is
     suffered in such a case by the persrm who has ultimately
      borne the burden and it is only that person who cm1
      legitimate~v claim its refund. But where such person does
      not come forward or where ii is 1101 possible to reji111d              D
      the amount to him jar one or the other reason. it is just
      a11d appropriate that amount is retained by the State,
      that is, by the people. There is no immorality or
      impropriety involved in such o proposition.
                                                                             E
       The doctrine of unjust enrichment is a just and salutary
      doctrine. No person ca11 seek to collect the duty from
      both ends. In other words, he cannot collect the duty
      from the purchaser at one end and also collect the same
      duty from the State on the ground that it has been                     F
      collected from him contrary to !cm: The power of the
      court is 11ot 111ea111 to be exercised for u11j11stly enriching
       a person. The doctrine of unjust enrichment is, hou•eve1;
       inapplicable to the State. State represents the people <if
       the co11nt1:v. No one can speak of the people being
                                                                             G
       unjustly enriched. "


      197. In Godfrey Philips India Ltd. r. State of U.P. (2005) 2
sec 515, the constitutional validity of the Uttar Pradesh Tax Oil Luxuries
                                                                             H
498            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     Act, 1995 as also other State Acts was challenged inter alia on the
      ground of legislative competence of the State Legislatures. The Court
      allowed the petition and held that the State Legislatures were not
      competent to impose luxury tax on tobacco and tobacco products and
      the Acts were declared ultra vires and unconstitutional. In the intervening
      period, however, tax was collected by the appellants from consumers
 B
      and also paid to the State Governments. The Court held as under:


             "94. It was stated on beha(f of the State Governments
             that after obtaining interim orders from this Court
 c           against recovery of luxury tax, the appellants continued
             to charge such tax from consumers/customers. It is
             alleged that they did not pay such tax to respective State
             Governments. It was, therefore, submitted that if the
             appellants are allov.·ed to retain the amounts collected
 D           by them towards luxury tax from consumers, it would
             amount to "unjust enrichment" by them.
             95. In our opinion, the submission is well founded and
             deserves to be upheld. If the appellants have collected
             any amount towards luxury tax from consumers/
 E           customers after obtaining interim orders.from this Court,
             they will pay the said amounts to the respective State
             Governments."


             From the above decision in Godfrey Philips India Ltd., it is clear
 F    that even when the legality of a tax has been challenged successfully,
      there can be no question of the State tax being retained by the
      dealer/manufacturer notwithstanding its illegality.
              198. It is well-settled that a claim of refund can be allowed only
      when the claimant establishes that he has not passed on the tax burden
 G    to the consumers. No refund can be granted so as to cause windfall gain
      to any person when he has not suffered the burden of tax. The possibility
      of the tax burden having been passed on to the consumers by the
      assessees cannot be ruled out in the present case. Applying the law laid
      down above to the present case, it emerges that the assessees cannot
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               499
                   [R. BANUMAlTH, J.]

claim refund irrespective of whether the impugned legislations arc             A
declared valid or unconstitutional. Unless the asscssees establish that
they have not passed on the tax burden to the consumers, they cannot
make a claim for refund and unjustly enrich the111selws.
      199. Summary of the conclusions on Question Nos. 1 to 4
are as under:-                                                                 B


      Question No. 1:
       Non-discriminatory taxes do not constitute infraction of Art. 30 I
of the Constitution. With due respect, the view taken in Atiabari and          c
approved in Automobile Transport that taxes do amount to restriction
and that freedom of trade, commerce and intercourse cannot be subject
to restriction in the form of taxes is not a correct view and are to be over
ruled. However, I am agreeing with the theory of compensatory tax
evolved in the Automobile case for the reasons indicated hereunder
                                                                               D
while answering Question Nos. 2 and 3.


       Question No.4:-
       • Entry tax with reference to entry 52, List II of Seventh Schedule
          is not violative of Art. 30 I subject to the lt!vy bt!ing non-       E
         discriminatory i.e. passing the muster of Art. 304(a). A levy
          sustainable under Art. 304(a), being non-discriminatory would
          ipso facto be out of the purview of Art. 30 I.
       • When the entry tax is levied by the Entry Tax Act enacted by
                                                                               F
         the State Legislature, the term 'a local area' contemplated by
         Entry 52 may cover the 'Whole State' or ·a local area' as
         not/fled in the legislation. I agree with the view taken in
         Bilmr Chamber of Commerce that from the point of view of
         entry tax that the State is a compendium of local areas and
         where the local areas contemplated by the Act cover the entire        G
         State, the difference between the State and 'a local area'
         practically disappears.
       •Articles 304(a) and 304(b) are to be read disjunctively: both
         apply to different subject matters; while Art. 304(a) deals with
                                                                               H
500      SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A       tax, Art. 304(b) deals only with non-fisca I matters.
      •Where there is equivalence in terms of tax treatment between
        the locally produced goods and the ones imported from other
        States, levy ofcntry tax on the goods imported from other States
        when there is no such levy on the locally produced goods is not
 B      discriminatory.
      •Every differentiation is not discrimination. Any difference in
        the rate of tax on goods locally manufactured and those imported,
        such difference not being discriminatory docs not fall foul under
        Art.304(a). Any incentive/benefits of concession in the rate of
 C      tax given to the local manufacturers/producers in order to
        encourage the local manufacturers/production in the State
        cannot be said to be discriminatory. Digvijay and Video
        Electronics have laid down the correct law. Mal1t1vir Oil
        Mills is not a correct view.
 D    • Levy of entry tax on the goods imported from the other States is
        not discriminatory merely on the ground that there are no similar
        goods manufactured or produced within the taxing State. The
        law laid down in Kalyani Stores is not a good law.
      • Levy of entry tax on the goods imported from outside India
 E       which enter into local area for consumption. use or sale therein
         is within the legislative competence of the State.


      Question Nos. 2 and 3:-
 f    • In so far as compensatory taxes are concerned in the light of
         the conclusion on question No.1. I hold that the nomenclature
         of 'compensatory' ascribed to the taxes levied by the State
         Government under Entry 52, List II pursuant to A11to111ohile is
         unwarranted. The concept of compensatory tax was evolved
         fifty years back through judicial pronouncements. It has
 G
         withstood the test of time and tlrns. any subsequent judicial
         pronouncement like the present one should not prejudice the
         interest of the parties involved. The States should not suffer
         any loss of revenue solely because of judicial interpretations
         and innovations inAutonwhile and the decisions subsequent to
 H       it.
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           501



     • Subject to passing the muster of Art. 304(a), entry tax levied by A
        the States under entry 52, List 11 even though termed as
        compensatory tax does not fall foul of Art. 3 0 l. It is not
        necessary that the money realized by the levy should be put
        into a separate Fund or that the kvy should be proportionate to
        the expenditure. There is no bar to subsumption of the revenue
                                                                         B
        realized from regulatory/compensatory taxes into the
        Consolidated Fund of the State as they are no different from
        other taxes of a general nature. Moreover, the quantum of
        expenditure incurred in achieving the object behind a
        compensatory levy cannot be inquired into.
                                                                           c
      •Jindal Stai11les·s Ltd. (2) & Anr. v. State o(Harpana & Ors.
        (2006) 7 sec 241 is not a correct view in adopting quantifiable
        data approach; for a tax, there is no requirement of proximate
        quid pro quo and Jindal Stainless Ltd. (2) is overruled. The
        view taken in Bhagatram and Bihar Chamber of Commerce
        is correct as the same is in harmony with the original design of   D
        compensatory tax laid down in Automobile.


      Unjust Enrichment:
      The concept of unjust enrichment is applicable for considering       E
the question of refond. Unless the assessees establish that they have
not passed on the tax burden to the consumers, they cannot make a
claim for refund and unjustly enrich themselves.


                                                                           F
DR. D. Y. CHANDRACHUD, J.
      This judgment is structured to consist of the following parts:
       A Introduction;
        B Part XIII of the Constitution: text and context;
                                                                           G
        C Constitutional history as a guide;
        D The trend-setting decisions : Atiabari and Automobile
         Transport;

                                                                           H
502     SUPREME COURT REPORTS                          [2016) 10 S.C.R.



A     D.1 Atiabari: Article 30 I and taxation
                D.2 Automobile Transport
      E Compensatory taxes;
                E.1 Original understanding
B               E.2 Khyerbari
                E.3 Subsequent applications
                E.4 The breaking point
                E.5 Doctrinal concerns and inconsistencies
 c     F The content of freedom : goods, services, persons and capital;
       G Taxation and Federalism;
       H Taxing powers;
                H.1 Article 245 and constitutional limitations
 D
                H.2 Sovereignty and constitutional limitations
                H.3 Part XIII and taxation
                         H.3.1 All taxes are not impediments

 E                       H.3.2 A1ticles 302, 303 and 304
                         H.3.3 ConstruingA1ticle 304
                         H.3.4 Conjunctive or disjunctive: 'may'; 'and'
                         H.3.5 Article 304(a) not the universe of taxation
 F      I Tax legislation : Judicial review and Part XIII;
                I. I Taxation and Part XII
                I.2 The standard ofjudicial review
                1.3 Limitations of Sinha CJ's view·inAtiabari
 G
                1.4 Presidential Sanction: the proviso to Article 304(b)
        J Article 304(a): the principle of non-discrimination;
                J.1 Precedent - 1963 to 1980
                J.2 Exemptions and incentives: Video Electronics and
 H                  Mahavir
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                         503
               [DR. D. Y. Cl-IANDRACHUD. J.]

                   J.3 Artick; 304(a) and reasonable classification                       A
                       J .3. I Formal and substantive equality
                   J.4 Production and manufacture within the home state
         K Entry tax;
                   K. I Octrois and terminal taxes                                        B

                   K.2 Entry taxes and Article 304(a)
                   K.3 Meaning of 'Local area'
                   K.4 Severability
                                                                                          c
                   K.5 Equalising tax burdens
                   K.6 Entry tax and imported goods
         M Direct and inevitable effect test:
         N Conclusion.
                                                                                          D


         A Introduction
         I. References to Benches of nine Judges, or at any rate decisions
by nine, are a comparative rarity. Despite a prolific tradition of precedent
                                                                                          E
in our judicial institutions, there have been only eight reported decisions
by a Bench of nine Judges since the adoption of the Constitution'. The
present reference traverses an area of constitutional law which is fraught
with unresolved complexity. The draft-persons of the Constitution
perceived the freedom of trade, commerce and intercourse to Iie at the
heart of the economic unity of the nation. They were keenly aware that                    F
parochial pressures emanating from within the states could pose real

1
 l) Judg_es decisions: Ahmedabad St. Xavicrs College Sockty '. State ol"Gujarat ( 1974)
I SCC 717: Indra Sawhncy v. Union of India 1992 Supp (3) sec 217: Supreme Court
Advocate.s-on-Rccord Association V, Union of India ( 1993) 4 sec 441: S.R.Btimmai         G
v. Union of India (1994) 3 SCC !:Attorney General of India v. Amratlal Prajivandas
( 1994) 5 SCC 54: Mafatlal Industries Ltd v. Union oflndia ( 1997) 5 SCC 536: Special
Rcfrrcncc No. I of 1998 ( 1998) 7 SCC 739: I. R. Coelho versus State of"fomil Nadu
12001) 2 sec 1.

                                                                                          H
504               SUPREME COURT REPORTS                             [2016] 10 S.C.R.



A     challenges to the creation of a pan- India common market. The dangers
      of protectionist policies within the states had nonetheless to be balanced
      with the need to meet the aspirations for develooment of all areas within
      the country. Levels of economic attainment in the provinces and erstwhile
      princdy states were far from uniform at the eve oflndependence. Many
 B    of the erstwhile princely states had concerns about ceding their control
      over trade and commerce to a national entity. Part XIII was formulated
      in this background. lt represents the balancing vision of the framers and
      seeks to create an equilibrium between free trade and regulation, state
      and federal control and between provincial autonomy and national interests
      in an area closely related to economic growth and development.
 c
               2. Yet, the semantics of the provisions adopted in framing all of
      six constitutional articles which comprised Part XIII-Articles 30 I to 306
      - attracted criticism within the Constituent Assembly. One member
      complained of several provisions threatening to become a "paradise
      for lawyers where there will be so many innumerable loopholes that we
D     will be wasting years and years before we could come to the final and
      correct interpretation of many clauses'". Many years later, a distinguished
      Judge of this court spoke of the "mix up of exception upon exception in
      the series of articles in Part XIII that a purely textual interpretation may
      not disclose the true intendment of the articles 3".Those remarks continue
 E    to be relevant even now. The law in the area of free trade and commerce
      has remained in a state of flux despite successive decisions by Constitution
      benches of this cou1t. A similar judicial cri de coeur has found expression
      in Australia4 .That this is so should not seem surprising: this is an area
      of the Constitution which cuts across major concerns about the federal
      structure, the states' power to tax and, the relationship between growth.
 F
      development and free trade.
              3. Each of those concerns has a pointed contemporary
      relevance with the adoption of the constitutional amendment providing
      2
       P.S. Dcshrnukh: Constituent Assembly Debates. Vol. IX. pp. 1131: sec also: B.
 G    Shiva Rao. The Framing of India's Constitution -A study. p. 704 ( 1978)
      3
          Justice SK Das: ( 1963) I SCR 491. Para 10. pg. 520
      j   Cri De Coeur: (iJ According to Merriam-Webster: passionate outcry (as of
                             appeal or protest)
                        (ii) According to Oxford Dictionary: t\ passionate appeal.
                            complaint or prokst.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           505
              [DR. D. Y. CHANDRACHUD, J.]

for a Goods and Services Tax. When the hearings began, many of the A
counsel had reservations on the continued relevance of the reference.
With the passage of the one hundred and first constitutional amendment,
the distribution of the legislative power to tax goods and services has
undergone a significant change. The taxing entry for the levy of Entry
tax (Entry 52 of List II of the Seventh Schedule), which lies at the core B
of the dispute in the present reference, stands deleted as part of a
constitutional process by which several taxes are being subsumed under
the GST. Yet, the reference has to be answered, not the least of the
reasons for which is the detennination of past liabilities and entitlements.
But more fundamentally, the reference raises important issues of
constitutional principle about the relationship of the freedom of trade C
and commerce· with the fiscal and regulatory concerns of the states
over the need to bring growth and development within. The issues raised
have a vital bearing on the intersection of the Constitution with free
trade one hand and growth and development on the other.
         4. This judgment will explore the socio-economic and political D
compulsions which led the founding fathers of the Constitution to adopt
the guarantee under Article 301. The political backdrop of partition with
its attendant social suffering provided a powerful rationale for a
constitutional structure which would knit the nation together as a cohesive
unit. The instrumentalities of trade and commerce were conceived, in E
the vision of the draftsmen of the Constitution, as a means for bringing
about economic integration. The economic integration of India into a
common market was to be achieved by guaranting the freedom of trade
throughout the te1Tit01y oflndia. Yet, at its birth the new nation comprised
of different regions, with disparate social attainments and economic
                                                                             F
development. They had their own concerns, be they the erstwhile princely
states or the states which fonned part of British India. Part Xlll reflected
an attempt by the framers to draw a balance between freedom on one
hand and the need to regulate to protect diverse aspects of public interest
both of a national and regional character, on the other. The regulatory
power under Article 302 would enable the national legislative body to G
perceive and regulate aspects of public interest of a national character.
Within the area ofregulation a distribution was envisaged between the
Centre and the States to preserve the balance within the newly created
federation. The attention that was bestowed to the regulatory
requirements of the states in relation to trade and commerce reflected H
506             SUPREME COURT REPORTS                            [2016] 10 S.C.R.



A     the need for bringing the states on board for producing a viable and
      acceptable social compact that the constitutional document embodies.
             5. Part Xlll of the Constitution reflects a consciously crafted
      constitutional superstructure which looks upon the freedom to trade and
      to engage in commerce not merely from the perspective of trade and
 B    commerce itself, but from a wider national perspective that incorporates
      both the needs of the nation as reflected in regulatory powers of the
      centre and the concerns of the federating states to preserve their interests
      and obligations as well as their commitments to their people.
              6. The debates of the Constituent Assembly provide a valuable
 c    insight, grounded in history, which helps us in illuminating the meaning
      and content of the text of Part Xlll. History constitutes a seminal value
      in interpreting the words of the Constitution since the events which were
      a forerunner to the adoption of the Constitution shed light on the concerns
      which led to the adoption of the text. Yet, as our contemporary
 0    jurisprudence recognises, the text of the Constitution cannot be frozen
      by the context of history which produced the language of the text. The
      concerns that motivated the framers provide a historical context which
      is an aid to constitutional interpretation. But, it is important to realise that
      the Constitution as an organic document has to evolve with societal
      change. The challenges to governance which India has faced over the
 E    last seven decades cannot be ignored in giving present meaning to the
      constitutional text. The words of the Constitution cannot be frozen in
      their content with reference to the intent of its framers. To succeeding
      generations lies the task of imparting a meaning that would, while ensuring
      a sense of continuity, infuse the constitutional document with the ability
 F    to meet the challenges of the present and foreseeable future.
             7. I have had the privilege of reading the draft of the judgment of
      the learned and distinguished Chief Justice. My judgment has been
      necessitated by my inability to agree with some of the crucial issues
      raised there, especially on its conclusion that taxes( except for
 G    discriminatory taxes) can never be restrictions within the meaning of
      Part XIII. On the aspects on which we agree, I have adduced my own
      reasons.
             B Part XIIJ of the Constitution : Text and Context
             8. Part XIII of the Constitution has more than an abundant share
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                507
                    [DR. D. Y. CHANDRACHUD, J.]

of constitutional intricacies. Despite a judicial discourse of more than         A
five decades, the debate on the true meaning of its provisions continues
to be devil academics, lawyers and judges who have had occasion to
visit its provisions.
         9. The ambit of Part Xlll is trade, commerce and intercourse
within the territory of India. Article 301 5 mandates that trade, commerce       B
and intercourse throughout the territory of India shall be free, "subject to
the other provisions" of Part XIII. The freedom thus conferred is subject
to the restrictions that are contemplated in the provisions of Part XIII
that follow. The sources of the restrictions, the extent of the restrictions
and the limitations or qualifications upon the power to restr·ict are defined    c
in Part XIII.
         10. In framing Article 301, the framers of the Constitution made
a deliberate departure from the text of the Australian and US
Constitutions. Article 1 Section 8 of the US Constitution confers upon
Congress the power "to regulate commerce with foreign nations and                D
among the several states" (besides the Indian tribes). Section 92 of the
Australian Constitution stipulates that "on the imposition of unifonn duties
of customs, trade, commerce and intercourse among the states whether
by means of internal carriage or ocean navigation shall be absolutely
free". The expression 'absolutely free' occurring in the Australian
Constitution was consciously not adopted in the framing of India's               E
Constitution. A simpler expression, "free", was preferred to "absolutely
free".
        11. Dr B R Ambeclkar while moving the introduction of draft
Part XA of the Constitution (c01Tesponding to Part XIII) emphasised
the impact of the deletion of the qualification "absolutely" in defining the     F
extent of the freedom. Dr Ambedkar observed that:


       "I should also like to say that according to the provisions
       contained in this part, it is not the intention to make trade             G
       and commerce absolutely free, that is to say, deprive both
       Parliament as well as the States of any power to depart
'Article 301: Freedom of trade, commerce and intercourse :
 Subject to the other provisions of this Part, trade, commerce and intercourse
throughout the ten-it01y oflndia shall be free.                                  H
508              SUPREME COURT REPORTS                               [2016] 10 S.C.R.



A            from the fundamental provision that trade and commerce
             shall be free throughout India."


             At a certain level, the expression"absolutely free" adds little by
      way of substantive content to 'free'. However, in the context of
B
      comparative constitutional history, the deletion of the word 'absolute'
      ca1Tied significance. Absolute freedom may carry the meaning that the
      freedom is not subject to restrictions. The use of the word 'absolute'
      was liable to give rise to an inference that the freedom was unqualified.
      The observations of Dr Ambedkar indicate that while trade, commerce
 c    and intercourse are to be free, that freedom is not unqualified but that it
      is subject to the provisions of Part Xlll. While conferring the freedom,
      the Constitution recognises expressly that the freedom which it confers
      would be subject to the provisions of Part Xlll.
             12. The second aspect of Article 301 in which a conscious
D     departure was made from the US and Australian Constitutions is that
      the freedom of trade, commerce and intercourse extends, in our
      Constitution, throughout the territory ofindia and not merely among the
      states. The expression 'among the states' would cover a movement
      inter-State or across State boundaries. In discarding the expression
 E    "among the states" (which is used in Section 92 of the Australian
      Constitution) and "among several states"(which is used in Article I
      Section 8 of the US Constitution), Article 301 guarantees a more
      comprehensive coverage to the freedom to include both inter-State and
      intra-State trade, commerce and intercourse. 'Throughout the territory
      of India', means in every part of India. In other words, the freedom that
 F    is conferred by Article 301 extends over but is not confined to inter-State
      movement across State boundaries.
            13. The Constitution, while recognising the freedom of trade,
      commerce and intercourse throughout the territory of India makes that
      freedom subject to the provisions of Part XIII. Article 3026 empowers
 G
      "Article 302 : Power of Parliament to impose restrictions on trade, commerce and
      intercourse :
      Parliament may by law impose such restrictions on the freedom of trade, commerce or
      intercourse between one State and another or within any part or the tenitory of India
 H    as may be required in the public interest.
         JINDAL STAINLESS LTD. v. STATE OF HARYANA                                           509
                [DR. D. Y. CHANDRACHUD, J.]

Parliament to impose restrictions on the freedom of trade, commerce A
and intercourse between one state and another or within any pa11 of the
territory ofindia. This is subject to qualifications. First, restrictions have
to be imposed by law. Second, they must be such as may be required in
the public interest. However, the empowem1ent of Parliament under
Atiicle 302 to impose restrictions on the freedom guaranteed by Article
                                                                               B
301 is subject to constitutional limitations prescribed in clause I ofArticle
303. Under clause 1 of Atticle 303 7, there is an absolute prohibition upon
Parliament making any law giving or authorising the giving of preferences
to one state over another or making a discrimination between one state
and another, by vi11ue of any entry relating to trade and commerce in
any of the lists of the Seventh Schedule. A similar limitation is imposed c
on the state legislatures. The non-obstante provision in clause I of Article
303 is somewhat inapposite in its application to the legislature of a state.
In its application to Parliament, the non-obstante provision which operates
over Article 302 was intended to impose a constitutional limitation upon
Parliament while legislating to impose a restriction in the public interest. D
Since Article 302 applies only to Parliament and not to the state
legislatures, the non-obstante provision contained in Article 303 is to that
extent in artistic. Be that it is may, clause I of Article 303 imposes a
constitutional limitation upon the law making power of Parliament and
the state legislatures while enacting a law by virtue of any entry relating
                                                                               E
to trade and commerce in the lists of the Seventh Schedule. The
constitutional limitation prevents the grant of preferences or the making
of discrimination between one state and another while enacting a law by
virtue of any of the entries relating to trade and commerce in the lists of
the Seventh Schedule. However, the constitutional limitation upon the
1                                                                                            F
 Article 303: Restrictions on the legislative powers of the Union and of the States with
regard to trade and commerce : (i) Notwithstanding anything in article 302, neither
Parliament nor the Legislature of a State shall have power to make any law giving, or
authorizing the giving of, any preference to one State over another, or making, or
authoring the making of, any discrimination between one State and another, by virtue of
any entry relating to trade and commerce in any of the Lists in the Seventh Schedule.        G

(ii) Nothing in clause (I) shall prevent Parliament from making any law giving, or
authorizing the giving of, any preference or making, or authorizing the making of, any
discrimination if it is declared by such law that it is necessary to do so for the purpose
of dealing with a situation arising from scarcity of goods in any part of the territory of
India.
                                                                                             H
510              SUPREME COURT REPORTS                                  [2016] 10 S.C.R.



A     power of Parliament under clause 1 of Article 303 is lifted in clause 2
      where Parliament enacts a law for dealing with a situation arising from
      the scarcity of the goods in any part of the territory oflndia. The freedom
      under Article 301 is thus subject to Parliamentary restrictions under Article
      302. The power to impose restrictions is subject to the limitations in
B     clause I of A1iicle 303. However, those limitations can be relaxed in the
      situation contemplated by clause 2 of Article 303. The prohibition on the
      enactment oflaw which has the effect of granting preferences or making
      discrimination between states is, in relation to Parliament, lifted by clause
      2 when it is necessary to deal with a situation of the scarcity of goods in
      any part of India.
 c
              14. Article 304' commences with a non-obstante provision,
      "notwithstanding anything in Article 301 or Article 303". Under clause
      (a), a state legislature may by law impose on goods impo1ied from other
      states, a tax to which similar goods manufactured or produced in that
      state are subject. This has to be done in a manner that does not discriminate
D     between the goods so imported and goods so manufactured or produced
      in the state which imposes the tax. Clause (a) of Article 304 subjects the
      taxing power of a state with reference to goods imported from other
      states to a constitutional limitation of non-discrimination. The prohibition
      of non-discrimination is in regard to the tax which is imposed on goods
 E    imported from another state. The equality of treatment is with reference
      to the tax imposed on goods manufactured or produced in the state. The
      non-obstante provision which refers to Article 301 carries the clear
      intendment that a tax of the nature within the contemplation of clause
      (a) of Article 304 would, but for that provision have fallen within the
      ambit of Article 30 l. The effect of the non-obstante provision is that
 F
      notwithstanding Article 301 (which would otherwise bring within its

      'Article 304 : Restrictions on trade commerce and intercourse among states :

      Notwithstanding anything in article 301 or article 303, the Legislature of a State may by
      law-(a) impose on goods imported from other States [or the Union ten-itories] any tax
 G    to which similar goods manufactured or produced in that State are subject, so, however,
      as not to discriminate between goods so imported and goods so manufactured or
      produced; and (b) impose such reasonable restrictions on the freedom of trade, commerce
      or intercourse with or within that State as may be required in the public interest:
      provided that no Bill or amendment for the purposes of clause (b) shall be introduced
      or moved in the Legislature or a State without the previous sanction of the President.
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 511
               [DR. D. Y. CHANDRACHUD, J.]

purview a tax of this nature),clause (a) of Article 304 enables the               A
imposition by a state of a tax on imported goods subject to the constitutional
limitation of non-discrimination between the goods that are imported into
the state with goods that are manufactured or produced within the state.
Both clause (1) of Article 303 and clause (a) of A1ticle 304 embody
principles of non-discrimination, though with different facets.                   B
       15. Clause (1) of Article 303 deals with preferences or
discrimination between one state and another. Article 304 (a) deals with
a non-discriminatory tax imposed on goods imported into a state when a
similar tax is imposed on goods produced or manufactured in the state.
Article 302 refers to restrictions in general without any qualification as        c
regards the fiscal or non-fiscal nature of the restrictions. The
constitutional limitation imposed by A1ticle 303 on the power to impose a
restriction under Article 302 is also not defined with reference to a fiscal
or non-fiscal provision. Article 304 (a) is a species ofrestriction namely,
a non-discriminatory levy of tax. Clause (b) of Article 304 enables the
legislature of a state to impose by law reasonable restrictions as may be         D
required in the public interest on the freedom of trade, commerce or
intercourse with or within that state. The expression "with or within that
state" indicates that the state legislature in exercise of its power can
impose restrictions both in regard to inter-State as well as intra-State
trade, commerce and intercourse. The power of the state to do so is,              E
however, conditioned by three limitations: the first is that the restriction
must be reasonable; the second is that the restriction should be required
in the public interest; and the third which is spelt out in the proviso, is
that the Bill or an amendment for the purpose of clause (b) shall not be
introduced or moved in the legislature of a state without the previous
                                                                                  F
sanction of the President.
       16. A plain construction of the provisions of clause (a) and clause
(b) of Article 304 would indicate that clause (a) is not exhaustive of the
universe of taxing legislation insofar as the state legislatures are concerned.
Clause (a) of Article 304 embodies the principle of non-discrimination
                                                                                  G
and prescribes it as a limitation subject to which a state may by law
impose a tax on goods which are imported into the state. Clause (a) lifts
the embargo arising from Article 301 on the power of a state to impose
a tax on goods imported from other states subject to a condition: the
State may impose any tax to which similar goods manufactured or
                                                                                  H
512             SUPREME COURT REPORTS                            [2016] 10 S.C.R.



A     produced in that state are subject. Clause( a), in other words deals only
      with the taxation of goods which are imported from other states or union
      territories.
              17. Clause (b) of Article 304 refers to reasonable restrictions on
      the freedom of trade, commerce or intercourse with or within the state.
B     An intra-State restriction is within the purview of clause (b) but not
      within clause (a). Clauses (a) and (b) are separated by the conjunctive
      'and'. The use of the expression 'and' must however be read together
      with the prefatory part of Article 304. Article 304 provides that the
      legislature ofa state 'may' by Jaw impose a tax on goods imported from
 c    other states, subject to the principle ofnon-discrimination [embodied in
      clause (a)]. The state legislature may also impose such reasonable
      resttictions as are required in the public interest [under clause (b )]. Clause
      (b) is, however, subject to the proviso.
              18. The provisions of Part XIII of the Constitution contain an
 D    elaboration of the freedom of trade, commerce and intercourse and the
      restrictions which the Constitution contemplates as being within the
      legislative powers of Parliament and the state legislatures. The legislative
      power conferred upon Parliament can restrict the ambit of the freedom
      to the extent that is specified in Articles 302 and 303. Similarly, the state
      legislatures are subject to the limitations contained in Article 303 ( 1) and
 E    Article 304. Parliament as well as the state legislatures are subject to
      constitutional limitations on the exercise of their law making power in
      restricting the freedom of trade, commerce and intercourse.
             19. The extent of the freedom under Article 301 has in this manner
      been made subject to the provisions of Part XIII. Those provisions of
 F    Part XIII define the extent to which a restriction can be imposed by law
      as well as the limitations on the power of Parliament and the state
      legislatures while presc1ibing a restriction.
             C Constitutional history as a guide

 G          20. The Constitution was enacted in a historical and comparative
      framework. Historically, there was the presence in India prior to
      independence of the British Indian territories on the one hand and the
      princely states on the other. The founding fathers intended while enacting
      Part Xlll to wield India into an economically integrated entity. In adopting
      Part XIII, the founding fathers did not intend to elaborate as much on
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                              513
                   [DR. D. Y. CHANDRACHUD, J.]

the notion of lassiez~/Crire as on the integration oflndia into an economic    A
entity.
        21. The Constitution was framed in the context of a social,
economic and political.upheaval. The Constituent Assembly debates
provide an enrichir g insight into the problems and concerns that were
present to the mimb of the draftsmen of the Constitution, as they adopted      B
what became Part XIII. Dr B Shiva Rao in his seminal work titled 'The
Framing oflndia's Constitution ' 9 explains the historical perspective which
led to the attention of the Constituent Assembly being engaged towards
the freedom of trade and commerce within the territories of the Union:
                                                                               c
      "Under the British Rule, freedom of trade was the
      established practice in British India, with no inter-provincial
      duties or other trade barriers. With the advent of provincial
      autonomy in April, 1937. it was considered necessary to
      place this mater on a statutory basis. Accordingly, section              D
      297 of the Government of India Act, 1935, prohibited
      Provincial Governments from imposing barriers on trade
      within the country; nor could they levy any tax, cess, toll or
      other due wl1ich discriminated between goods manufactured
      in one locality and similar goods manufactured elsewhere.                E
      But this was far from ensuring freedom of internal trade
      throughout the sub-continent. Indian States could, and very
      often did, levy export and impoti duties at their frontiers
      and some of them derived considerable revenue from this
      source."
                                                                               F
      22. On 29 March 1947, the Sub-committee on Fundamental Rights
discussed and adopted the draft provisions submitted by B N Rau on the
freedom of trade and commerce, which read thus:
      ''Subject to regulation by the law of the Union, trade,
      commerce and intercourse among the units, whether by                     G
      means of internal carriage or by ocean navigation, shall be
      free: Provided that any unit may by law impose reasonable


' (Chapter 22 Part 699)
                                                                               H
514            SUPREME COURT REPORTS                          [2016] IO S.C.R.



A           restrictions thereon in the interest of public order, morality
            or health." (Id. at p.699)
             23. While discussing the report of the Sub-committee Alladi
      Krishnaswami Ayvar opined that: (i) goods which enter a particular unit
      from other units of the of the union should not escape duties and taxes to
 B    which goods produced in the concerned unit itself were subject; (ii) in an
      emergency a unit should be able to place restrictions on inter-State trade
      and commerce; (iii) the right should extend to non-citizens; and (iv) the
      freedom of trade should cover coastal trade specifically. After these
      suggestions were accepted, the Advisory Committee took up the issue
      for discussion. Commenting on these developments. B Shiva Rao (supra)
 c
      specifically adverts to the view of l:;_Rajagopalachari which was that
      the units of the Union must have the power to impose customs duties
      and other taxes for raising revenue. A contrary view was, however,
      expressed inter-alia by Alladi Krishnaswami Avvar. Shiva Rao·s
      statement of what transpired is extracted below:
 D

             "During the discussions, Rajagopalachari expressed the
             view that units should be given power to impose customs
             duties and other taxes for genuine revenue purposes; if this
 E           was not conceded, the clause would wrest from them a
             substantial means of increasing their revenues and hamper
             the progress of the comparatively poorer ones amongst them.
             Alladi Krishnaswami Ayyar and K M Panikkar feared, on
             the other hand, that the grant of such taxing power to the
           . Provinces or States might encourage competition between
 F           them and thus weaken the federal idea and should. therefore,
             be prevented. The committee accepted the provisions as
             recommended by the sub-committee with one change; the
             sub-clause providing for central regulation of trade by or
             with non-citizens was dropped as being vague and
 G           unnecessary.''                                 (Id. at p.700)


            24. The clause was debated in the Constituent Assembly. B N
      Rau incorporated the following clauses in the draft constitution of October
      1947:
 H
       JINDAL STAINLESS LfD. v. STATE OF HARYANA                                515
              [DR. D. Y. CHANDRACHUD, J.]

      "Subject to the provisions of any Federal law. trade,                     A
      commerce and intercourse among the units shall, if between
      the citizens of the Federation, be free: Provided that nothing
      in this section shall prevent any unit from imposing on goods
      imported from other units any tax to which similar goods
      manufactured or produced in that unit are subject, so,
                                                                                B
      however, as not to discriminate between goods so
      manufactured or produced: Provided further that no
      preference shall be given by any regulation of trade,
      commerce or revenue to one unit over another: Prvvided
      also that nothing in this section shall predude the Federal
      Parliament from imposing by Act restrictions on tht! freedom              c
      of trade, commerce and intercourse among the units in the
      interests of public order, morality or health or in cases of
      emergency.··                                  (Id. at p.70 I)


                                                                                D
      25. The Drafting Committee thereafter redrafted the above
provisos which came to be included as ind~pendent articles under the
heading of "Inter-State Trade and Commerce'' in Part IX of the draft
constitution. Article 16 (which formed a part of the Chapter on
Fundamental Rights) provided that subject to the provisions of Article
244 and of any law made by Parliament. trade, commerce and intercourse          E
throughout the territory of India would be free. Article 243 prohibited
preferences and discrimination between one state and another. Articles
244 permitted the imposition of a non-discriminatory tax by a state on
goods imported from another state similar to a tax which goods
manufactured in the state arc subject.                                          F
       26. A lladi Krishnaswami ;\\var had strong reservations to allowing
the imposition of reasonable restrictions on inter-State trade, on the ground
that this \\'Ould practically nullify the freedom of trade secured under
draft Article 16, the expression ·•in the public interest" being vague. When
draft Article 16 was taken up in the Constituent Assembly, objections           G
were raised to it being adopted as an A1iicle under the Fundamental
Rights. Subjecting the freedom of trade under Article 16 to a law made
by Parliament and to the power of the state to impose taxes and restrictions
was in this view destroying the fundamental character of the freedom
conferred and no residue would be left which could not be curtailed by
                                                                                H
516             SUPREME COURT REPORTS                             [2016] 10 S.C.R.



A     Parliament or the states.
             27. Dr B R Ambedkar while responding to the inclusion of Article
      16 drew attention to the history surrounding the article. The Indian states
      had initially agreed to join the Union only in respect of foreign affairs,
      defence and communications. They were unwilling to allow the Union
 B    Parliament to have legislative authority over trade and commerce by its
      inclusion in the Union List of the Seventh Schedule. Shiva Rao"' states
      that on the other hand it was believed that the formation of an All-India
      Union would be without meaning if trade and commerce throughout the
      Union was not free. After the speech by Dr Ambedkar, draft Article 16
 c    was adopted to be added to the Constitution.
          28. Subsequently, the Constituent Assembly accepted the view of
   Dr Ambedkar that a separate part, Part XA, exclusively devoted to trade.
   commerce and intercourse within the territory oflndia be adopted. Part
   XA was to consist of Articles 274A to 274E. Eventually, A1iicle 16 was
 D deleted  from the Chapter on Fundamental Rights on the ground that
   with the inclusion of the right in Article 274A (corresponding to present
   Article 30 I), the retention of A1iicle 16 was rendered superfluous. Dr
   Ambedkar explained that different articles which were scattered in various
   parts were brought together in one part dealing with the freedom of
   trade, commerce and intercourse. Shiva Rao adverts to the observations
 E ofAlladi Krishnaswami Ayyar, which are significant:


             "Alladi Krishnaswami Ayyar replied that the transfer of a
             provision in regard to freedom of inter-State trade from
 F           one part of the Constitution to another did not alter or affect
             the nature of the right embodied in it: the mere placing of a
             provision in the chapter on fundamental rights did not carry
             with it any patticular sanctity, nor did its j usticiability depend
             on such placement."                                  (Id. at p.706)

 G
            Moreover, with the integration of the Indian states and with the
      strong federation having materialised there was no need felt to retain
      the provision for freedom of inter-State trade in the chapter on

      '" (supra at page 703)
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                517
                   [DR. D. Y. CHANDRACHUD, J.]

Fundamental Rights.                                                              A
       29. Partition and the immense human suffering inflicted upon large
segments of the population provided a strident political backdrop for the
need to preserve the unity of the nation. In assigning the role of a strong
centre in the federal polity, the founding fathers had a constitutional vision
for preserving the political unity of free and democratic India. The             B
economic history of both the British and Indian states was marred by
famines and scarcity. Present to the minds of the founding fathers were
the inequalities of resources and disparities in development between
various provinces, including those that constituted British India on one
hand and Indian states on the other. The framers of the Constitution             c
contemplated that the provisions of draft Part XA (present Part XIII)
should be an instrument for achieving economic progress under the rubric
of one nation. Part XIII was the comer stone for fostering the economic
development of the nation. In the vision of the founding fathers, India
had to be· knit together in terms of an economic and fiscal union.
                                                                                 D
        30. In the social and political milieu that preceded the adoption of
the Constitution, the emphasis in Part Xlll was not as much upon creating
a market economy: laissez.faire was not an attractive political doctrine.
In fact, responding to an amendment that was proposed by Pandit Thakur
Das Bhargava that the freedom of trade should be absolute, T T
Krishnamachari, responded by stating that the extent of freedom which            E
was allowed "is about the maximum amount ofliberty that we can give
for trade and commerce, the maximum amount of concession that we
can give to trade and commerce consistent with the future economic
improvement of this country". He observed:
                                                                                 F

       "Even as it was originally suggested, that we should make
       it a matter of fundamental right, and even without the
       restrictions that have been put in Article 16, I am afraid the
       economic progress of the country will become well-nigh
       impossible. There is absolutely no use in the honourable                  G
       Member trying to confuse a matter of civil liberty with a
       matter or rights in respect of trade and commerce. The
       world has well-nigh come to a position when trade and
       commerce cannot be run without control and some kind of
                                                                                 H
518             SUPREME COURT REPORTS                        [2016] I 0 S.C.R.


A            direction by the Government. lfmy honourable friends think
             that we are in the days of the nineteenth century when the
             laissez faire enthusiast had practically the ordering of
             everything in the world. I am afraid they are mistaken.''


 B
             In his address to the Constituent Assembiy, TT Krishnamachari
       emphasised the need to restrain the exen:ise of state powers which, it
       was apprehended. may be deployed to pursue narrow provincial interests:


 c           "A certain amount of freedom of trade and commerce has
             to be permitted. No doubt, restrictions by the State have to
             be prevented so that the particular idiosyncrasy of some
             people in power or narrow provincial policies of certain
             States should not be allowed to come into play and affect
             the general economy of the country.''
 D

              31. Yet regional concerns could not be ignored. Addressing the
       Constituent Assembly, Alladi Krishnaswami Avvar spoke about the
       diversity of interests, geographical position and economic attainments of
 E     various regions of the country. They required attention as well:


             "My friend, Dr Ambedkar in the scheme has evolved and
             has taken into account the larger interests of India as well
             as the interest of particular states and the wide geography
 F
             of this country in which the interests of one region differ
             from the interests of another region. There is no need to
             mention that famine may be raging in one part of the country
             while there is plenty in another part. It may be that manurt!
             and other things are required in one part of the country
 G           while profiteers from another part of the country may try
             to transport the goods from the part affected. At the same
             time, in the interests of the larger ecomm1y and the future
             prosperity of our country, a certain degree of freedom of
             trade must be guaranteed."
 1-1
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 519
               [DR. D. Y. CHANDRACHLJD. J.]

      Consistent with the concern about enabling the country to achieve           A
economic prosperity, he spelt out the following priorities underlying Pait
Xlll:


      "Therefore in a federation what you have to do is, first you
                                                                                  13
      will have to take into account the larger interests of India
      and permit freedom of trade and intercourse as far as
      possible. Secondly, you cannot ignore altogether regional
      interests. Thirdly, there must be the power of intervention
      of the Centre in any case of crisis to deal with peculiar
      problems that might arise in any part of India. All these                   c
      three factors are taken into account in the scheme that has
      been pl·aced before you."


       32. The introduction of the proviso to draft Article 274 (D)
                                                                                  D
[corresponding to the proviso to the present Artide 304 (b )] was justified
as being necessary "if on a..:count of parochial patriotism or separntism
without consulting the larger interest of India as a whole,'' a bill or
amendment was introduced by a state legislature. This was regarded by
Alladi Krishnaswami Avyar as "a very restricted power that is conferred
on the legislation of a state'' to impose reasonable restrictions on the          E
freedom of trade, commerce and intercourse with or within that state as
may be required in the public interest. Therefore, it was envisaged that
the President who had to grant sanction will have the opportunity to see
that the legislation is in the public interest and that the restriction imposed
is reasonable. Moreover,hc observed "it is not possible to devise a               F
watertight formula for defining these restrictions.''
        33. The deliberations in the Constituent Assembly surrounding
                                                   .
the. introduction of Pait Xlll leave little ambiguitv about the constitutional
                                               ~




philosophy underlying the introduction of the guarantee of free trade,
commerce and intercourse. The guarantee of that freedom was guided                G
by the object of fostering economic development. Towards achieving
that goal, the founding fathers recognised the need to weave the nation
 into one e..:onomic entity. At the same time. regional interests representing
the diversity prevalent within the states had to be recognised by allowing
a regulatory role for the states. While recognising the impoitance of the
                                                                                  H
520               SUPREME COURT REPORTS                       [2016] IO S.C.R.


A     state legislatures in relation to trade, commerce and intercourse, the
      founding fathers had evident concerns about what they described as
      parochial interests or naiww provincial policies posing a danger to the
      economic development of the nation. Hence, the Union Government
      was conferred with a power of intervention which was qualitatively
B     different from the regulatory power conferred upon the states.To the
      Union Government was assigned the role of ensuring that the goal of
      pursuing economic development of the nation as one economic entity
      was not destroyed by the pursuit of parochial interests. It was in that
      background that the proviso to Alticle 304 (b) mandated the prior sanction
      of the President to a bill or amendment introduced in the state legislature
 c    for imposing reasonable restrictions in the public interest on the freedom
      that was guaranteed by Pait XIII.
            34. The founding fathers were careful when they noted that it
      was not possible to elucidate by a watertight fonnula,the fom1 in which
      such restrictions may take. The nature of the Indian economy on the
 D    eve of the adoption of the Indian Constitution was radically different
      from the economy which has emerged in the era of trade liberalism and
      beyond. I shall deal with the impact of those changes in a subsequent
      part of this judgment. At this stage, it would suffice to note that the
      guarantee of freedom for trade, commerce and intercourse which the
 E    Constitution adopted in Pait XIII was an instrument of fostering economic
      progress as an important facet of national policy.


                D. The trend-setting decisions : Atiabari and Automobile
                   Transport
 F           35. Two decisions rendered over five decades ago have shaped
      constitutional jurisprudence under Part XIII. They form the fulcrum of
      the reference in these proceedings. The first is the decision of a
      Constitution Bench in Atiabari Tea Company Ltd. v. The State of
      Assam 11 • The second is a decision of seven Judges in the The
 G    Automobile Transport (Rajasthan) Ltd. v. The State ofRajasthan 12 .



      II   (1961) I SCR 809
      '°(1963) 1 SCR 491
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                               521
               [DR. D. Y. CHANDRACHUD, J.]

      36. In Atiabari, the Assam Taxation (on goods carried by roads            A
and inland waters ways) Act,1954 was enacted by the state legislature
under entry 56 of the State List to the Seventh Schedule. The law
provided for the levy of a tax on manufactured tea in chests carried by
motor vehicles (except by railways and airways) at a specified rate per
pound.                                                                          B
       37. A Special Bench of the High Court dismissed the petitions
challenging the validity of the Act. By a judgment of the Supreme Court
rendered by a majority, the appeals and petitions filed under A1iicle 32
by producers of tea were allowed. The majority held the Act to Qe ultra-
vires.                                                                          c
       38. Justice P B Gajendragadkar delivered the leading majority
judgment on behalf of Justices KN Wanchoo and KC Dasgupta, while
Justice JC Shah delivered a separate judgment. Justice Gajendragadkar
held that the Act imposed a direct restriction on the freedom of trade
and in the absence of compliance with the provisions of Article 304(b), it      D
was unconstitutional. Justice Shah held that Part Xlll imposes restrictions
on the legislative powers of Parliament and state legislatures under Articles
245, 246 and 248 read with the lists of the Seventh Schedule. According
to this view, restrictions on freedom of trade and commerce include
burdens in the nature of taxation. The Act was held as having infringed
A1iicle 301 and failing compliance with the proviso to Article 304 (b ), it     E
was found to be unconstitutional. Chief Justice BP Sinha differed with
the majority on the grou.nd that Part Xlll of the Constitution did not
justify the inference that taxation simpliciter is within Article 301 of the
 Constitution.
       39. The c01Tectness of the view in Atiabari was reconsidered by          F
a larger bench of seven Judges in Automobile Transport (supra). The
Rajasthan Motor Vehicles Taxation Act, 1951 provided for the levy of a
tax on motor vehicles used in any public places or kept for use in
Rajasthan. The Rajasthan High Court, in view of a judgment rendered
by its Full Bench negatived a challenge to the provisions of the Act. The       G
decision of the Rajasthan High Court had been. rendered before the
judgment in Atiabari was pronounced.When a Bench of seven Judges
considered the matter in this Court, Justice SK Das, delivered the leading
majority judgment on behalf of himself and Justices Kapoor and Sarkar.
                                                                                H
522             SUPREME COURT REPORTS                          (2016] 10 S.C.R.



A            40. The view of the three judges was that the Act did not violate
      the provisions of Article 301 because the taxes imposed were
      compensatory in nature which did not hinder the freedom of trade,
      commerce and intercourse. The interpretation placed by the majority in
      Atiabari was held to be "correct, but subject to this clarification" that
 B    regulatory measures or measures imposing compensatory taxes for the
      use of trading facilities do not fall within the purview of the restrictions
      contemplated by Article 30 I and need not comply with the requirements
      of the proviso to Article 304(b) of the Constitution. Justice B Subba Rao
      agreed with the view of Justice S K Das, in a concurring judgment.

 c            41. Justice M Hidayatullah delivered a dissenting judgment for
      and on behalf of himself and Justices Rajagopala Ayyangar and
      Mudholkar. In the view of the minority a tax which is made a condition
      precedent to the right to enter upon and carry on business is a restriction
      on the right to caITy on trade and commerce. The tax, it was held, was
      not a fee for administrative purposes, its object being to raise revenue.The
 D    judgment of the minority held that the tax was directly upon trade and on
      its movement.
             42. In order to facilitate an analysis of the varying and divergent
      lines of thought in the three judgments in Atiabari and the three judgments
      in Automobile Transport (supra), it would be necessary to consider
 E    the views expressed under the following heads:


             D.1 Atiabari : Article 301 and taxation
            43. Chief Justice Sinha in his judgment inAtiabari held that freedom
 F    under Article 301 could not be constrned in such a comprehensive manner
      asto include freedom from all impediments, restraints and barriers,
      including freedom from all taxes:


 G           "I 3. Learned counsel for the appellants vehem.:ntly argued
             that the freedom contemplated by Article 30 I must be
             construed in its most comprehensive sense of freedom from
             all kinds of impediments, restraints and trade barriers,
             including freedom from all taxation. In my opinion, there is
             no warrant for such an extreme position." (Id. at p. 826)
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                523
              [DR. D. Y. C'HANDRACHUD. J.]

       Defining the expressions trade, commerce and intercourse. Chief          A
Justice Sinha held that:


      '' 13 ..... The three terms used in Article 30 I include not only
      free buying and selling, but also the freedom ofbargainand
                                                                                B
      contract and transmission of information relating to such
      bargains and contracts as also transport of goods and
      commodities for the purposes of production, distribution and
      consumption in all their aspects, that is to say, transpo1iation
      by land, air or water. They must also include commerce not
      only in goods and commodities, but also transportation of                 c
       men and animals by all means of transportation. Commerce
      would thus include dealings over the telegraph, telephone
      or wireless and every kind of contract relating to sale.
       purchase, exchange etc. of goods and commodities.''
                                                    (Id. at p. 826-827)         D


       44. In the view of Chief Justice Sinha, in this comprehensive sense,
taxation of trade, commerce and intercourse would cover almost the
entire field of public taxation both in the Union and in the State lists.
Hence, ''it is almost impossible to think that the makers of the Constitution   E
intended to make trade, commerce and intercourse free from taxation in
that comprehensive sensc".(emphasis supplied)
       45. The first reason adduced in Chief Justice Sinha"s judgment
for not adopting such a comprehensive definition of the freedom under
Article 30 I is that the power to tax in order to raise revt:nue is a           F
manifestation of sovereignty. Being a sovereign power, it is not ordinarily
justiciable. Second, the power of the states to raise finances for the
purpose of government is elucidated in Part XII of the Constitution.
Article 265 imposes a prohibition on the levy or collection of a tax except
by authority of law. Pati XII of the Constitution which deals with finances     G
and Part Xlll are self-contained provisions, one not being subject to the
other:
        "Hence, both Parts Xll and XIII arc meant to be self~
      . contained in their respective fields. It cannot. therefore, be
                                                                                H
524            SUPREME COURT REPORTS                           (2016] 10 S.C.R.



A           said that the one is subject to the other."     (Id. at p. 824)


             The third reason adduced in the judgment of Chief Justice Sinha
      for not adopting such a comprehensive definition of the freedom conferred
      by Article 301 is the dilution of the power of the states to impose taxes,
 8
      which would result from adopting such a construction :


            "14 .. .It is almost impossible to think that the makers of the
            Constitution intended to make trade, commerce and
 c          intercourse free from taxation in that comprehensive sense.
            If that were so, all laws of taxation relating to sale and
            purchase of goods on carriage of goods and commodities,
            men and animals, from one place to another, both inter-
            State and intra-State, would come within the purview of
            Article 30 I and the proviso to A1ticle 304(b) would make it
D
            necessary that all Bills or Amendments of pre-existing laws
            shall have to go through the gamut prescribed by that proviso.
            That will be putting too great an impediment to the power
            of taxation vested in the States and reduce the States' limited
            sovereignty under the Constitution to a mere fiction. That
 E          extreme position has, therefore, to be rejected as unsound."
                                                             (Id. at p. 827)


             Fourthly, Chief Justice Sinha held that Article 304 is divided into
      two parts:(i) clause( a) which deals with the imposition of discriminatory
 F
      taxes by a state legislature; and (ii) clause(b) which relates to the
      imposition ofreasonable restrictions. This, in the view of the Chief Justice,
      indicates that the imposition of taxes is not within the fold of reasonable
      restrictions on the freedom of trade, commerce and intercourse:

 G
             "12 ..... But a close examination of the provisions of A1ticle
             304 would show that it is divided into two parts viz. (1)
             dealing with imposition of discriminatory taxes by a State
             Legislature; and (2) relating to imposition of reasonable
             restrictions, thus showing that imposition of taxes,
 H
       JfNDAL STAINLESS LT'D. v. STATE OF HARYANA                          525
                 [DR. D. Y. CHANDRACHUD, J.]

      discriminatory or otherwise, is a class apart from imposition        A
      of reasonable restrictions on freedom of trade, commerce
      and intercourse.''                              (Id. at p. 824)


      Fifthly, Chief Justice Sinha opined that "not all taxes constitute
                                                                           B
necessarily an impediment or restraint in the matter of trade, commerce
and intercourse'':


      "15 ..... all taxation is not necessarily an impediment or a
      restraint in the matter of trade, commerce and intercourse.          c
      Instead of being such impediments or restraints, they may,
      on the other hand, provide the wherewithals to improve
      different kinds of means of transport, for example, in cane
      growing areas, unless there are good roads, facility for
      transport of sugarcane from sugarcane fields to sugar mills
                                                                           D
      may be wholly lacking or insufficient. In order to make new
      roads as also to improve old ones, cess on the grower of
      cane or others interested in the transport of this commodity
      has to be imposed, and has been known in some parts of
      India to have been imposed at a certain rate per maund or
      ton of sugarcane transported to sugar factories. Such an             E
      imposition is a tax on transport of sugarcane from one place
      to another, either intra-State or inter-State. It is the tax thus
      realised that makes it feasible for opening new means of
      communication or for improving old ones. It cannot,
      therefore, be said that taxation in every case must mean an          F
       impediment or restraint against free flow of trade and
      commerce. Similarly. forthe facility of passengers and goods
       by motor transport or by railway, a surcharge on usual fares
      or freights is levied, or may be levied in future. But for such
      a surcharge, improvement in the means of communication
       may not be available at all. Hence, in my opinion, it is not        G
      correct to characterise a tax on movement of goods or
       passengers as necessarily connoting an impediment, or a
       restraint, in the matter of trade and commerce. That is
       another good reason in support of the conclusion that
                                                                           H
526             SUPREME COURT REPORTS                           [2016) 10 S.C.R.



A           taxation is not ordinarily included within the tenns ofArticle
            301 of the Constitution."                  (ld. at p. 827-828)
             Sixthly, in the view of the Chief Justice Sinha "taxation simpliciter"
      is not within the terms of Article 301 since the very purpose underlying
      the taxing power is the ability of the state to raise money for public
 8    purposes by compelling the payment by those who are taxed of moneys
      earned or possessed by them, by virtue of the facilities and protection
      offered by the state. A public purpose is implicit in every taxation. Part
      Xlll when it refers to 'reasonable restrictions in the public interest' could
      not have intended to include taxation within the ambit of the expression.
 C            46. At the same time, Chief Justice Sinha rejected the 'extreme
      proposition' that taxation would be wholly outside the purview of Article
      30 I. That position was rejected on the ground that firstly, Article 304
      contains a specific reference to taxation and secondly, Article 305 prior
      to its repeal made a specific reference to taxation for certain purposes.
 D    Chief Justice Sinha made a distinction in the following observations:


             "17 ..... The Article thus brings out the clear distinction
             between taxation as such for the purpose of revenue and
             taxation for the purpose of making discrimination or giving
 E           preference, both of which are treated by the C~mstitution
             as impediments to free trade and commerce. In other
             words, so long as the impost was not in the nature of an
             impediment to the free flow of goods and commodities
             between one State and another, including in this expression
 F           Union tenitories also, its legality was not subject to an attack
             based on the provisions of Part XIII."
                                                            (Id. at p. 830)


            4 7. In this view, a Jaw which imposes an impediment to the free
 G    flow of trade, commerce and intercourse such as by a high tariff wall is
      not a measure of taxation but assumes a character of a h·ade banier :
              "16 .... .If a Jaw is passed by the Legislature imposing a tax
             which in its true nature and effect is meant to impose an
             impediment to the free flow of trade, commerce and
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           527
              [DR. D. Y. CHANDRACHUD, J.]

      intercourse, for example, by imposing a high tariff wall, or         A
      by preventing imports into or exports out of a State, such a
      law is outside the significance of taxation, as such, but
      assumes the character of a trade barrier which it was the
      intention of the Constitution-makers to abolish by Pait XIII."
                                                    (Id. at p. 829)
                                                                           B


      The conclusions of the Chief Justice are restated in the following
propositions :

                                                                           c
      "16 .... The objections against the contention that taxation
      was included within the prohibition contained in Part Xlll
      may thus be summarised: (1) Taxation, as such, always
      implies that it is in public interest. Hence, it would be the
      outside particular restrictions, which may be characterised
                                                                           D
      by the courts as reasonable and in public interest. (2) The
      power is vested in a sovereign State to carry on Government.
      Our Constitution has laid the foundations of a welfare State,
      which means very much expanding the scope of the activities
      of Government and administration, thus making it necessary
      for the State to impose taxes on a much larger scale and in          E
      much wider fields. The legislative entries in the three Lists
      referred to above empowering the Union Government and
      the State Governments to impose ce1tain taxations with
      reference to the movement of goods and passengers would
      be rendered ineffective, if not otiose, if it were held that         F
      taxation simpliciter is within the terms ofArticle 301. (3) If
      the argument on behalf of the appellants were accepted,
      many taxes, for example, sales tax by the Union and by the
      States, would have to go through the gamut prescribed in
      Articles 303 and 304, thus very much detracting from the
      limited sovereignty of the States, as envisaged by the               G
      Constitution. ( 4) Laws relating to taxation, which is
      essentially a legislative function of the State, will become
      justiciable and every time a taxation law is challenged as
      unconstitutional, the State will have to satisfy the courts -
                                                                           H
528             SUPREME COURT REPORTS                           [2016] 10 S.C.R.


A           a course which will seriously affect the division of powers
            on which modern constitutions, including ours, are based.
            (:i) Taxation on movement of goods and passengers is not
            necessarily an impediment."           (Id. at p. 829-830)

 B
            The basic principle which is enunciated in the judgment of the
      Chief Justice Sinha is that:


             "I 8 ..... (2) the freedom declared by Article 30 I does not
 c           mean freedom from taxation simpliciter, but does mean
             freedom from taxation which has the effect of directly
             impeding the free flow of trade. commerce and
             intercours<~."                               (Id. at p. 83 I)


 D
             48. The test, in the view of Chief Justice Sinha, is whether a tax
      has the effect of directly impeding the free flow of trade, commerce and
      intercourse. If it does. it falls within the ambit of Article 30 l. The test is
      of the true nature and effect of the tax. Does it impose an impediment
      to the free flow of trade, commerce & intercourse? An illustration of
 E    such an impediment is a high tariff wall which then assumes the character
      of a trade barrier. A high tariff wall is an example of an impediment
      under taxing laws to the freedom of trade, not an exhaustive elaboration.
      Those taxes which impede the free flow of trade and commerce are
      within Article 30 l.
 F           49. The judgment of Justice Gajcndragadkar, for the majority holds
      that the power of taxation is subject to constitutional provisions:


             "35 ... Basing himself on this character of the taxing power
             of the State. the learned Attorney General has asked us to
 G
             hold that Part XIII that can have no application to any statute
             imposing a tax. In our opinion, this contention is 'not' well-
             founded .... .''therefore. the true position appears to be that,
             though the power of levying tax is essential for the very
             existence of the government, its exercise must inevitably
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               529
                  [DR. D. Y. CHANDRACHUD, J.]

      be controlled by the constitutional provisions made in that              A
      behalf. It cannot be said that the power of taxation per se is
      outside the purview of any constitutional limitations."
                                                     (ld. at p. 846)


                                                                               B
      50. Justice Gajendragadkar noted first, that the power under Article
265 of the Constitution to levy a tax under the authority oflaw is referable
to Article 245 read with the corresponding legislative entries in the
Seventh Schedule. Since Article 245 is subject to the provisions of the
Constitution, the power of Parliament and of the state legislatures to
impose taxes is subject to the application of constitutional provisions,       c
which must include Pa11 Xlll:


       "37 .... Now, if we look atArticle 245 which deals with the
       extent of laws made by Parliament and by the Legislatures
                                                                               D
       of States, it begins with the words "subject to the provisions
       of this Constitution"; in other words, the power of
       Parliament and the Legislatures of the States to make laws
       including laws imposing taxes is subject to the provisions of
       this Constitution and that must bring in the application of
       the provisions of Part Xlll."             (ld. at p. 847-848)           E


       Second, in this view, the freedom of trade, commerce and
intercourse under A11icle 301 is subject only to the provisions of Part
Xlll which means that the amplitude of the freedom cannot be controlled
                                                                               F
outside Pai1 Xlll. Thirdly, in the view of Justice Gajendragadkar,the
freedom guaranteed by A11icle 301 is a freedom from all restrictions
except those which are contemplated under Part Xlll:


       "42 .... Stated briefly trade even in a narrow sense would              G
       include all activities in relation to buying and selling, or the
       interchange or exchange of commodities and that movement
       from place to place is the very soul of such trading activities.
       When Article 301 refers to the freedom of trade, it is
       necessary to enquire what freedom means. Freedom from                   H
530            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A           what? is the obvious question which falls to be dete1111ined
            in the context. At this stage, we would content ourselves
            with the statement that the freedom of trade guaranteed by
            Article 30 l is freedom from all restrictions except those
            which are provided by the other Articles in Part XIII."
                                                        (Id. at p. 853)
 B


            Fourthly, Justice Gajendragadkar adverts to the effect of the non-
      obstante clause in Article 304 which enables the imposition of a tax
      notwithstanding the provisions of Article 30 l:
 c
            "46 ..... How a tax can be levied on internal goods is,
            however, provided by Article 304(b ). The non-obstante
            clause referring to Article 301 would go with A11icle 304(a),
            and that indicates that tax on goods would not have been
            permissible but for Article 304(a) with the non-obstante
            clause. This incidentally helps to determine the scope and
            width of the freedom guaranteed under Article 30 l; in other
            words, Article 304(a) is another exception to Article 301."
                                                         (Id. at p. 856)
 E

             In this view, Article 304(a) and Article 304(b) have to be read
      together.That tax legislation is included in A1iicle 301 is an inference
      from the use of the non-obstante clause in Article 304. Finally, Justice
      Gajendragadkar held that movement of trade is the essence of the
 F
      freedom guaranteed by Article 301. If transport or movement of goods
      is taxed solely on the basis that goods are carried or transported, that
      would affect directly the freedom of trade under Article 30 I:


 G          "49 ..... it certainly includes movement of trade which is of
            the very essence of all trade and its integral part. If the
            transport or the movement of goods is taxed solely on the
            basis that the goods are thus caiTied or transported that, in
            our opinion, directly affects the freedom of trade as
            contemplated by Article 301. lfthe movement, transport or
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              531
                  [DR. D. Y. CHANDRACHUD, J.]

      the carrying of goods is allowed to be impeded, obstructed              A
      or hampered by taxation without satisfying the requirements
      of Part XIII, the freedom of trade on which so much
      emphasis is laid by Article 301 would tum to be illusory.
      When Article 301 provides that trade shall be free
      throughout the territory of India, primarily it is the movement         B
      part of the trade that it has in mind and the movement or
      the transport pa11 of trade must be free subject of course to
      the limitations and exceptions provided by the other Articles
      of Part Xlll."                                     (Id. at p. 859)

                                                                              c
       51. Justice Gajendragadkar did notice the need to draw a balance
for preserving the powers of the states in a federal constitution. The test
which he fommlated is that the restrictions which fall within Article 301
are those which directly and immediately restrict or impede the free
flow or movement of trade:                                                    D


      "50 ..... Thus considered we think it would be reasonable
      and proper to hold that restrictions freedom from which is
      guaranteed by Article 301, would be such restrictions as
      directly and immediately restrict or impede the free flow or            E
      movement of trade. Taxes may and do amount to
      restrictions; but it is only such taxes as directly and
      immediately restrict trade that would fall within the purview
      of Article 301. The argument that all taxes should be
      governed by Article 301 whether or not their impact on                  F
      trade is immediate or mediate, direct or remote, adopts, in
      our opinion, an extreme approach which cannot be upheld."
                                                    (ld. at p. 860)


       52. Justice Gajendragadkar, in the ultimate analysis also shuns an     G
interpretation under which all taxes would be brought within the ambit of
Article 301. The principle which the learned judge adopts is that taxing
laws are not excluded from the operation of Article 301 and that they
can and do amount to restrictions on freedom. Yet, tax laws which directly
and immediately restrict trade or its movement are alone within the ambit     H
532             SUPREME COURT REPORTS                            [2016] 10 S.C.R.



A     of Article 301.
             53. Justice Shah joined the conclusion of the majority in holding
      that the Assam enactment violated the guarantee of freedom under Article
      30 I and had not passed muster under the proviso to Article 304(b ). But
      Justice Shah agreed with the conclusion oflhe majority on a much wider
 B    premise that all laws of taxation fall within the purview of Article 30 I. In
      his view, trade and commerce comprehends traffic in goods and much
      more. In this view, while movement of goods may be an important
      ingredient of effective commerce, movement itself is not an essential
       ingredient of commerce. In his view:
 c
             "66 ..... What is guaranteed is freedom in its widest am pl itudc
             -freedom fron1 prohibition, control, burden or impedirncntin
             commercial intercourse. Not merely discriminative tariffs
             restricting movement of goods which arc included in the
 D           restrictions and are hit by Article 30 I, but all taxation on
             commercial intercourse, even imposed as a measure for
             collection ofrevenue is so hit. Between discriminatory tariffs
             and trade barriers on the one hand and taxation for raising
             revenue on commercial intercourse, the difference is one
 E           of purpose and not of quality. Both these forms of burden
             on commercial intercourse trench upon the freedom
             guaranteed by Article 30 I."                 (Id. at p. 874-875)


            The freedom under Article 30 I, in the judgment of Justice Shah,
 F    connotes freedom from tax burdens as well as other impediments but is
      subject to Part Xlll of the Constitution.
             54. The distinction between the judgment of the miijority and the
      view of Justice Shah is precisely in the extent to which tax laws are held
      to fall within the ambit of Article 30 I. For the majority, movement
 G    constitutes the soul of trade whereas for Justice Shah, it is not an essential
      ingredient in all situations. For the majority, it is the movement or the
      transport part of trade that must be free subjcet to thc limitations in Part
      Xlll. However, it was only such taxes as directly and immediately impede
      trade that fall within the purview of Article 30 I. Justice Gajendragadkar
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                533
                   [DR. D. Y. CHANDRACHUD, J.]

rejected the contention that all taxes should be governed by Article 301         A
whether or not their impact on trade is immediate and direct on the one
hand or whether it is remote and "mediate "on the other. For Justice
Shah every law of taxation of commercial intercourse, even when it is a
measure for the collection of revenue is hit by Article 301.
       55. Having said this, it is necessary also to note that there was at      B
the same time an agreement on principle on certain crucial aspects of
Part Xlll between the views expressed in the judgment of the majority
and the views of Justice Shah. Firstly, the majority (as noted earlier)
spoke of constitutional restrictions and limitations on the legislative powers
of Parliament and the state legislatures, a11d emphasised that Part Xlll         c
is a source of such a limitation. Justice Shah agreed with this premise in
the following observations:


       ''64 .... On the exercise of the legislative power to tax trade,
       commerce and intercourse, restrictions are prescribed by                  D
       certain provisions contained in Part Xll, e.g., Articles 276,
       286, 287, 288 and 289: but these restrictions do not
       exhaustively delimit the periphery of that power. The
       legislative power to tax is restricted also by the fundamental
       freedoms contained in Part III, e.g., Articles 14, 15(1),                 E
        19( 1)(g) and 31 (I) and is further restricted by Part Xlll.
       Article 245, clause (1 ), of the Constitution expressly
       provides that the legislative powers of the Parliament and
       the State Legislatures to make laws are subject to the
       provisions of the Constitution; andArticle 301 is undoubtedly
       one of the provisions to which the legislative powers are                 F
       subject."                                        (ld. at p. 873)


       Secondly, Justice Shah like the majority emphasized the non-
obstante provision of Article 304 which operates with reference to Article       G
301. In his view, if Article 301 did not deal with the burdens of taxation,
there was no reason to incorporate a non-obstante provision in Article
304:


                                                                                 H
534            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A           "74 .... If Article 301 and Article 303 did not deal with the
            restrictions or burdens in the nature of tax, the reason for
            incorporating the non-obstante clause to which Article 304,
            clause (1 ), is subject, cannot be appreciated. Undoubtedly,
            the provisions of Part XIII of the Constitution do not impose
            additional or independent powers of taxation; the powers
 B
            of taxation are to be found conferred by Articles 245, 246
            and 248 read with the Lists in the Seventh Schedule, and
            the provisions of Part XIII are !imitative of the exercise of
            legislative power. The circumstance that the Constitution
            has chosen to deal with a specific field of taxation as an
 c          exception to Articles 301 and 303 (which should really be
            Article 303(1 )) strongly supports the inference that taxation
            was one of the restrictions from the imposition of which by
            the guarantee of Article 301, trade, commerce and
            intercourse are declared free."                 (Id at p. 881)
 D

             Thirdly, Justice Shah adopts the same position as the majority did
      in holding that the expression 'restrictions' in clause (b) of Article 304
      includes a restriction in the nature of a tax:

 E
             "75 ..... Clause (b) deals with a general restriction which
             includes a restriction by the imposition of a burden in the
             nature of tax. Clause (a) deals with a specific burden of
             taxation in a limited field."       (ld. at p. 881)
 F

             56. The basic difference between the judgment of the majority
      and the decision of Justice Shah lies in the extent to which the taxing
      power is regarded as being within or outside the purview of Article 301.
      For the majority every taxing legislation is not within the ambit ofArticle
 G    301. The guarantee under Article 301 is against such restrictions as
      directly and immediately restrict or impede the free flow or movement
      of trade. Only those taxes which directly and immediately restrict trade
      would fall within Article 301. For Justice Shah all taxation on c01m11ercial
      intercourse would attract the provisions of Article 30 I.
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                             535
               [DR. D. Y. CHANDRACHUD, J.]

       57. A comparison of the view that was adopted by the majority A
with the judgment of ChiefJustice Sinha would indicate differences of
substance on some issues and essentially of degree on other aspects.
Chief J usticc Sinha prefaced his discussion with the premise that taxation
is governed by Part XII and that Part XII and Part XIII are self-contained
and independent provisions. Moreover, Chief Justice Sinha held that
                                                                                B
taxation being an essential attribute of sovereignty, it would not be
appropriate in a federal structure to make the state power of taxation
subservient by the application of Article 304 (b) to all taxing legislation.
However, Chief Justice Sinha ultimately accepts the position that not all
but some tax legislation is subject to the mandate of Article 30 l. In his
view, so long as a tax imposition is not an impediment to the free flow of c
trade, commerce and intercourse, it must pass muster and would not fall
within Article 301. Justice Gajendragadkar also held (speaking for the
majority) that a tax law which directly and immediately restricts trade
will fall within the ambit of Article 30 I. The test in the judgment of Chief
Justice Sinha is whether a tax law "has the effect of directly imposing D
the free flow of trade". The test adopted by the majority of"such taxes
as directly and immediately restrict trade" find a broad co-relation to the
test adopted by Chief Justice Sinha. The difference in the view of the
majority from that of the learned Chief Justice on this aspect was
essentially a difference of degree. Chief Justice Sinha noted that he
                                                                                E
differed with the majority on the ground that the Constitution does not
justify the inference that taxation simpliciter is with in the terms ofA1tic le
30 l. In his view, the Assam legislation in that case was a taxing statute
simpliciter without any discrimination against dealers or producers outside
the state. The majority held the tax to be unconstitutional since its object
was to collect taxes on goods solely on the ground that they are carried F
 by road or by inland waterways within the area of the state. This,for the
majority, was a restriction within the ambit of Article 301 which could
 have been achieved lawfully only by satisfying the requirements ofArticle
304 (b). On the other hand, Chief Justice Sinha would regard only a
discriminatory tax as a restriction on trade.                                   G


       D.2 Automobile Transport
       58. The seven Judge bench in Automobile Transport dealt, in
the three judgments which were delivered, with: (i) the nature and extent
                                                                               H
536             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A     of the freedom guaranteed by A1ticle 301; (ii) the power to impose taxes;
      (iii) constitutional limitations or restrictions on the power to tax; (iv) the
      necessity of interpreting the provisions of Pait XIII so as not to eviscerate
      the sovereignty of the states; and(v) whether, and if so, the extent to
      which Part XIII controls fiscal legislation.
 B
             D.2.1 Freedom and regulation
             59. Justice SK Das, in the leading judgment of the majority held
      that though Article 301 "runs unqualified", the freedom must necessarily
      be delimited by considerations of social orderliness :
 c

             "10 .... As the language employed in Article 301 runs
             unqualified the Court, bearing in mind the fact that that
             provision has to be applied in the working of an orderly
 D           society, has necessarily to add ce1tain qualifications subject
             to which alone that freedom may be exercised."
                                                             (Id. atp. 521)


            60. Justice Subba Rao in a concurring judgment held that the
 E
      freedom conferred by Article 30 l is a freedom of trade across borders.
      The freedom is to trade unrestricted by barriers :


             "35 ..... the said composite expression means trade across
 F           the borders: what is free is that trade. It is implicit in the
             concept of freedom that there will be obstructions to it.
             Such obsh·uctions or ba1Tiers may be, in the present context,
             to the freedom to trade across the borders. Article 301
             provides for freedom from the said barriers or impediments
             in effect operating as barriers. This freedom from barriers
 G
             cannot operate in vacuum and must be limited by space. A
             barrier may be put up between two States at the boundary
             of the States or between two districts, two taluks, two towns
             or between two parts of a town. The barrier may be at a
             paiticular point, at a boundary or might take the form of a
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             537
              [DR. D. Y. CHANDRACHUD, J.]

      continuous impediment till the boundary is crossed. It may             A
      take different fon11S. The restrictions may be before or after
      movement. It may be a prior restraint or a subsequent
      burden. But the essential idea is that a barrier is an obstacle
      put across trade in motion at a particular point or different
      points. The expression "shall be free" declares in a                   B
      mandatory fonn a freedom of such transport or movement
      from such barriers."                       (Id. at p. 547-548)


       61. Freedom under Article 301, being throughout the territory of
India, Justice Subba Rao held that Article 301 removes both inter-State      c
and intra-State barriers, making the country as a whole into one unit :


      "36 ..... The freedom declared under Article 301 may be
      defined as a right to free movement of persons or things,
                                                                             D
      tangible or intangible, commercial or non-commercial,
      unobstructed by barriers, inter-State or intra-State or any
      other impediment operating as such barriers. "(Id. at p. 548)


       62. Yet, the judgment of the majority posits that freedom under       E
Article 301 is not impaired by facilitative regulations. Such regulations
are facilitative because they promote trade and are not restrictive of it.
The concept of facilitative regulations is in tandem with the view that
the right under Article 301 is capable of regulation so as to preserve an
orderly society. Regulations such as those defining limits of speed for
                                                                             F
transport vehicles, permissible loads or requiring the registration of
vehicles do not impede trade. Adverting to these examples Justice S K
Das held:


      "10 ..... that the application of rules like the above does not        G
      really affect the freedom of trade and commerce; on the
      contrary they facilitate the free flow of trade and c01m11erce.
      The reason is that these rules cannot fairly be said to impose
      a burden on a trader or deter him from trading: it would be
      absurd, for example, to suggest that freedom of trade is               H
538            SUPREME COURT REPORTS                        [2016) 10 S.C.R.



A           impaired or hindered by laws which require a motor vehicle
            to keep to the left of the road and not drive in a manner
            dangerous to the public. If the word "free" in Article 301
            means "freedom to do whatever one wants to do", then
            chaos may be the result."
 B                                                      (Id. at p. 522)


            Justice Subba Rao adopted the same position. Facilitative
      regulations, in his view, do not restrict trade :

 c
            "37 ... Before a particular law can be said to infringe the
            said freedom, it must be ascertained whether the impugned
            provision operates as a restriction impeding the free
            movement of trade or only as a regulation facilitating the
            same. Restrictions obstruct the freedom, whereas
 D
            regulations promote it. Police regulations, though they may
            superficially appear to restrict the freedom of movement,
            in fact provide the necessary conditions for the free
            movement. Regulations such as provision for lighting, speed,
            good condition of vehicles, timings, rule of the road and
 E          similar others, really facilitate the freedom of movement
            rather than retard it. So too, licensing system with
            compensatory fees would not be restrictions but regulatory
            provisions; for without it, the necessary lines of
            communication, such as roads, water-ways and air-ways,
 F          cannot effectively be maintained and the freedom declared
            may in practice turn out to be an empty one. So too,
            regulations providing for necessary services to enable the
            free movement of traffic, whether charged or not, cannot
            also be described as restrictions impeding the freedom."
                                                          (Id. at p. 549)
 G


              Significantly, these observations of Justice Subba Rao indicate
      that fees for the use of facilities or as charges for regulations which
      facilitate trade do not hinder or obstruct the free flow of trade. For,
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               539
                  [DR. D. Y. CHANDRACHUD, J.]

without those facilities, trade would be rendered difficult.                   A
      D.2.2 Taxation and constitutional limitations
        63. Justice S K Das held that the power to impose taxes is essential
for the existence of government. Yet, in his view, it can be controlled by
constitutional provisions. Part XII of the Constitution controls the power
                                                                               B
to levy taxes. But, Part XII does not exhaust the limitations on the power
to tax:


      "13 .... though the power of levying tax is essential for the
      very existence of government, its exerdse may be controlled              c
      by constitutional provisions made in that behalf. It cannot
      be laid down as a general proposition that the power to tax
      is outside the purview of any constitutional limitations. We
      have carefully examined the provisions in Part Xll of the
      Constitution and are unable to agree that those provisions
                                                                               D
      exhaust all the limitations on the power to impose a tax."
                                                     (Id. at p. 527)


      64. Justice Subba Rao dealt with the issue from the perspective
of whether the power of taxation is subject to limitation. Justice Subba       E
Rao analysed the legal presumption that taxation is in the public interest
and that it is not possible for a court to detennine whether a particular
rate of tax is reasonable. Considering the matter, Justice Subba Rao
observed thus:
                                                                               F
       "39 ..... A law of taxation is made by Parliament or the
       Legislature of a State, as the case may be, in exercise of
       the power conferred under the Constitution by virtue of the
       entries found therein. Ihs a law just like any other law
       made under the Constitution. This Court, in K. Thathunni                G
       Moopil Nairv. State ofKerala [AIR (1962) SC 552] and
       in Balaji v. LT. Officer [AIR (1962) SC 123] , held that a
       law of taxation would be void if it infringed the fundamental
       right guaranteed under Article 19 of the Constitution.
       'Therefore, the law of taxation also should satisfy the two             H
540                SUPREME COURT REPORTS                             [2016] 10 S.C.R.



A               tests laid down inArticle 19(6) of the Constitution. It is said
                that a law of taxation is always in public interest. Ordinarily,
                it may be so, but it cannot be posited that there cannot be
                any exceptions to it. A taxing law may be in public interest
                in the sense that the income realised may be used for public
B               good, but there may be occasions, when the rate or the
                mode of taxation may be so abhorrent to the principles of
                natural justice or even to the well settled principles of taxation
                that it may cause irremediable hann to the public rather
                than promote public good, that the court may have to hold
                that it is not in public interest. Nor can I agree with the
 c              contention that it is impossible for a court to hold in any
                case that a rate of taxation is reasonable or not".
                                                                  (Id. at p. 553)



D            In this view, no restriction, if it is unreasonable, can be more
      deleterious to freedom than the imposition of a fiscal burden on it, which
      may in certain circumstances destroy the very freedom. Consequently,
      Justice Subba Rao rejected the notion that laws of taxation are outside
      the scope of the freedom guaranteed by Article 30 I. The presumption
      of the fiscal law being in the public interest does not exclude judicial
 E    review where the law has transgressed those boundaries.
            65. Justice Hidayatullah was explicit in holding that "taxation is
      within the prohibition contained in Part XIII 13 ."
             66. The basic premise of the majority is that tax legislation is
 F    subject to constitutional limitations or restrictions. Under Article 265, a
      tax can be levied only with the authority of law. Article 245 which
      empowers Parliament to enact legislation for the territory of India and
      the state legislatures, for the territories of the respective states, is "subject
      to the provisions of this Constitution." This expression would include
      Parts XII and XIII. Justice S K Das held thus :
 G
                "13 .... Article 245 which deals with the extentoflaws made
                by Parliament and by the Legislatures of States expressly
                states that the power of Parliament and of the State

       13
            Id. at p-637
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 541
                  [DR. D. Y. CHANDRACHUD, J.]

      Legislatures to make laws is "subject to the provisions of                 A
      this Constitution". The expression "subject to the provisions
      of this Constitution" is surely wide enough to take in the
      provisions of both Part XII and Part Xlll. In view of the
      provisions of Article 245, we find it difficult to accept the
      argument that the restrictions in Part XIII of the Constitution            B
      do not apply to the taxation laws."
                                                  (Id. at p. 527-528)


       67. Having held that the power of taxation is subject to constitutional
                                                                                 c
limitations which include Part XIII, Justice S K Das rejected what he
described as a "narrow interpretation" which postulates that save and
except for Article 304(a), none of the other provisions of Part XIII extend
to taxing statutes. That submission was also not accepted by Justice
Subba Rao.
                                                                                 D

       D.2.3 State sovereignty
      68. The majority was conscious of the need to preserve the
sovereignty of the states. State autonomy would be impaired by an
extensive construction of Article 301 and if all measures of taxation were       E
brought within its ambit. Adopting such a view would lead to a situation
where every law passed by the state legislature would be subject to the
proviso to Article 304(b ). Justice S K Das observed that a construction
which would bring about such a result must be avoided :
                                                                                 F
       "11 ..... Such an interpretation would, in our opinion, seriously
       affect the legislative power of the State Legislatures which
       power has been held to be plenary with regard to subjects
       in List II. The States must also have revenue to carry out
       their administration and there are several items relating to              G
       the imposition of taxes in List II. The Constitution-makers
       must have intended that under those items, the States will
       be entitled to raise revenue for their own purposes. If the
       widest view is accepted, then there would be for all practical
       purposes, an end of State autonomy even within the fields                 H
542             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A           allotted to them under the distribution of powers envisaged
            by our Constitution. An examination of the entries in the
            Lists of the Seventh Schedule to the Constitution would
            show that there are a large number of entries in the State
            List (List II) and the Concurrent List (List III) under which
B           a State Legislature has power to make laws. Under some
            of these entries, the State Legislature may impose different
            kinds of taxes and duties, such as property tax, profession
            tax, sales tax, excise duty etc., and legislation in respect of
            any one of these items may have an indirect effect on trade
            and commerce. Even laws other than taxation laws, made
c           under different entries in the Lists referred to above, may
            indirectly or remotely affect trade and commerce. If it be
            held that every law made by the Legislature of a State which
            has a repercussion on tariffs, licencing, marketing regulations,
            price-control etc. must have the previous sanction of the
D           President, then the Constitution insofar as it gives plenary
            power to the States and State Legislatures in the fields
            allocated to them would be meaningless".
                                                        (Id. at p. 524-525)


 E           69. Justice Subba Rao in the concurring judgment also noted that
      conceivably,every law enacted by a state legislature in pursuance of its
      legislative power may remotely affect trade. If every Bill introducing
      such a legislation were to be subjected to the prior sanction of the President
      under the proviso to Article 304 (b) that would result in a serious dilution
 F    of the autonomy of the states:


             "38. The Constitution confers on the Parliament and the
             State Legislatures extensive powers to make laws in respect
             of various matters. A glance at the entries in the Lists of
 G           the Seventh Schedule to the Constitution would show that
             every law so made may have some repercussion on the
             declared freedom. Property tax, profession tax, sales tax,
             excise duty and other taxes may all have an indirect effect
             on the free flow of trade. So too, laws, other than those of
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           543
              [DR. D. Y. CHANDRACHUD, J.]

      taxation, made by virtue of different entries in the Lists,          A
      may remotely affect trade. Should it be held that any law
      which may have such repercussion must either be passed
      by the Parliament or by the State Legislature with the
      previous consent of the President, there would be an end
      of provincial autonomy, for in that event, with some
                                                                           B
      exceptions, all the said laws should either be made by the
      Parliament or by the State Legislature with the consent of
      the Central Executive Government. By so construing, we
      would be making the Legislature of a State elected on adult
      franchise the handmaid of the Central executive."
                                                   (Id. at p. 550)         c

       70. Justice Hidayatullah was also concerned about the consequence
on state autonomy of the adoption of a view which subjugated all state
legislations having a conceivable, if even remote, impact upon trade to    D
Presidential sanction :


      "124 ... the financial independence of the States was
      secured by an elaborate division of heads of taxation, which
      were well thoughtout to provide the States with the means            E
      of independent existence and the wherewithal of nation-
      building activities. There is hardly any tax which the States
      are authorised to collect which could not be said to fall on
      traders. Property tax, sales tax, municipal taxes, electricity
      taxes (to mention only a few) are paid by traders as well as         F
      by non-traders. To say that all these taxes are so many,
      restrictions upon the freedom of trade, commerce and
      intercourse is to make the entire Constitutional document
      subordinate to trade and commerce. Since it is axiomatic
      that all taxes which a tradesman pays must burden him,
      any tax which touches him must fall within Article 304, if           G
      the word "restriction" is given such a wide meaning, every
      such legislation will then be within the pleasure of the
      President, and this could not have been intended.
      "Restriction" must, therefore, mean something more than
      a mere tax burden."                       (Id. at p. 633-634)        H
544              SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A           Every burden of tax, in this view would not be a restriction of
      trade and commerce.
              Justice Hidayatullah too shared this concern when he observed :


B             "125 ... To bring all taxes within the reach of Article 301
              and thus to bring them also within the reach of Article 304
              is to overlook the concept of a Federation, which allows
              freedom of action to the States, subject, however, to the
              needs of the unity of India. Just as unity cannot be allowed
              to be frittered away by insular action. The existence of
 c            separate States is not to be sacrificed by a fusion beyond
              what the Constitution envisages."         (Id. at p. 634-635)


              E.Compensatory Taxes
D
              E.1 Original understanding
             71. The judgment of the majority evolved the concept of
      compensatory taxes in response to its felt concern to preserve state
      autonomy. Compensatory taxes which are in the nature of a charge for
      the use of trading facilities would not be regarded as being a hindrance
 E
      to the freedom of trade, so long as they are reasonable. By first devising
      the concept and then placing it beyond the pale of Article 301, the Court
      in Automobile Transport ensured that compensatory taxes would not
      be subject to the constitutional grind of A11icle 304(a). A class of tax
      legislation bearing a compensatory character was carved out of Part
 F    Xlll.
           72. What are compensatory taxes? Explaining the concept, Justice
      S K Das in the judgment of the majority held that :


 G              "10 ... Another class of examples relates to making a charge
                for the use of trading facilities, such as, roads, bridges,
              · aerodromes etc. The collection of a toll or a tax for the use
                of a road or for the use of a bridge or for the use of an
                aerodrome is no ba1Tier or burden or deterrent to traders
                who, in their absence, may have to take a longer or less
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               545
                  [DR. D. Y. CHANDRACHUD, J.]

      convenient or more expensive route. Such compensatory                    A
      taxes are no hindrance to anybody's freedom so long as
      they remain reasonable; but they could of course be
      converted into a hindrance to the freedom of trade."
                                                 (Id. at p. 522)
                                                                               B
       In this view, for a tax to become prohibited, it has to be a tax, the
effect of which is to directly hinder "the movement part oftrade"14 . So
long as a tax remains compensatory or regulatory, it does not operate as
a hindrance. Again, this was elaborated in the following observations :
                                                                               c
       "14 .... But we must advert here to one exception which we
       have already indicated in an earlier part of this judgment.
       Such regulatory measures as do not impede the freedom of
       trade, commerce and intercourse and compensatory taxes
                                                                               D
       for the use of trading facilities are not hit by the freedom
       declared by A1ticle 301."                      (Id. at p. 528)
       In the view of the majority :
       "17 .... Regulatory measures or measures imposing
       compensatory taxes for the use of trading facilities do not             E
       come within the purview of the restrictions contemplated
       by Article 30 I and such measures need not comply with
       the requirements of the proviso to Article 304 (b) of the
       Constitution."                              (Id. at p. 533)
                                                                               F
       Compensatory taxes were held to lie outside Article 301. Not
being 'restrictions' which hamper the freedom of trade, compensatory
taxes would not fall within the ambit of Article 30 I and were not subject
to the rigours of the proviso to Article 304(b ).
                                                                               G
     73. The tax imposed by the State of Rajasthan was held to be
compensatory since it facilitated trade and commerce :



 "Id. at p-523
                                                                               H
546             SUPREME COURT REPORTS                          [2016) 10 S.C.R.



A           "19 .... The taxes are compensatory taxes which instead of
            hindering trade, commerce and intercourse facilitate them
            by providing roads and maintaining the roads in a good state
            of repairs."                                (ld. at p. 536)


B
            A tax would not cease to be compensatory merely because the
      precise or specific amount which is calculated is not actually used to
      provide facilities. TI1e test on whether a tax is compensatory is fonnulated
      thus:

 c
            "19 ... It seems to us that a working test for deciding whether
            a tax is compensatory or not is to enquire whether the trades
            people are having the use of certain facilities for the better
            conduct of their business and paying not patently much more
            than what is required for providing the facilities."
D
                                                          (ld. at p. 536)


             Even if the proceeds from the tax are not credited to a separate
      fund that would make no difference so long as facilities are provided for
 E    trades' people who pay the tax. In his concurring judgment, Justice Subba
      Rao also adopted the 'direct and immediate effect' test. Justice Subba
      Rao held that :


             "38 .. .If a law directly and immediately imposes a tax for
 F
             general revenue purposes on the movement of trade, it would
             be violating the freedom. On the other hand, ifthe impact is
             indirect and remote, it would be unobjectionable. The Court
             will have to ascertain whether the impugned law in a given
             case affects directly the said movement or indirectly and
 G           remotely affects it."                    (ld. at p. 550-551)


             A law which directly and immediately affects the free movement
      of trade in this view is a restriction on freedom. However, a measure

 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           547
              [DR. D. Y. CHANDRACHUD, J.]

which is compensatory or regulatory does not hinder trade :                A


      "40 .... Of all the doctrines evolved, in my view, the doctrine
      of "direct and immediate effect" on the freedom would be
      a reasonable solvent to the difficult situation that might arise
                                                                           B
      under our Constitution. If a law, whatever may have been
      its source, directly and immediately affects the free
      movement of trade, it would be restriction on the said
      freedom. But a law which may have only indirect and remote
      repercussions on the said freedom cannot be considered to
      be a restriction on it. Taking the illustration from taxation        c
      law, a law may impose a tax on the movement of goods or
      persons by a motor-vehicle; it directly operates as a
      restriction on the free movement of trade, except when it is
      compensatory or regulatory. On the other hand, a law may
      tax a vehicle as property, or the garage wherein the vehicle         D
       used for conveyance is kept. The said law may have indirect
      repercussions on the movement, but the said law is not one
       directly imposing restrictions on the free movement."


       74. Justice Hidayatullah adopted the position that a tax would      E
amount to a restriction when it is placed upon trade directly and
immediately. But, in his view, a distinction would have to be drawn
between a tax which is paid by tradesmen in common with non-tradesmen
and a tax upon trade. A tax which is imposed upon trade, as such, must
be distinguished from general taxes imposed for the purposes of revenue.   F
The latter are nomrnlly not within the reach of Part Xlll :


       "125. That a tax is a restriction when it is placed upon a
       trade directly and immediately may be admitted. But there
       is difference between a tax which burdens a trader in this          G
       manner and a tax, which being general, is paid by tradesmen
       in common with others. The first is a levy from the trade by
       reason of its being trade, the other is levied from all, and
       tradesmen pay it because everyone has to pay it. There is
                                                                           H
548             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A           a vital difference between the two, viewed from the angle
            of freedom of trade and commerce. The first is an impost
            on trade as such, and may be said to restrict it; the second
            may burden the trader, but it is not a restriction' of the trade.
            To refuse to draw such a distinction would mean that there
            is no taxing entry in Lists I and II which is not subject to
B
            Articles 301 and 304, however general the tax and
            however non-discriminatory its imposition."


              75. Justice Hidayatullah accepted the notion of facilitative
 C    regulations such as traffic rules and rules of the road. Such regulatory
      provisions, in his view, are not restrictions at all since they do not hamper
      trade or impair its freedom. Consequently, a fee for rendering services
      to the trade would not hamper or restrict it. Similarly, an administrative
      fee may also be viewed as a part of regulation and would not fall to be
 D    classified as a restriction. A tax however, which is a condition precedent
      to the right to enter upon and carry on business stands on a different
      footing:


             "131. Let us now see whether the validity of taxation laws
 E           directly impinging on trade and commerce can be upheld
             on the ground that they are regulatory. Here, a distinction
             must be made between fees and taxes. Fees charged
             as quid pro quo for services rendered or as representing
             administrative charges are quite different from taxes, pure
 F           and simple. Fees may partake of regulation when they are
             demanded to enable Government to meet the cost of
             administration. But the tax, with which we are concerned,
             is hardly a fee in that narrow sense. It is a tax for raising
             revenue."


             Justice Hidayatullah dissented from the judgment of the majority
      on the ground that the tax in question was evidently not a fee for
      administrative purposes nor could it be justified as representing a payment
      for services. The object of the tax was to raise revenue, which
 H    distinguished it from a fee.
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            549
              [DR. D. Y. CHANDRACHUD, J.]

       76. The correctness of the decision in Automobile Transport - A
as indeed of the earlier decision in Atiabari - lies at the heart of this
reference. At this stage, it would be necessary to recapitulate the basic
principles which emerged from Automobile Transport. The decision
and the principles which it proceeds to fommlate have their own logic.
First, Automobile Transport enunciates that the freedom under Article
                                                                              B
301 is consistent with facilitative regulations which enhance, rather than
hinder trade. Second, though the power to tax is an essential attribute of
government, it is subject to constitutional limitations including amongst
them Part Xlll of the Constitution. As a consequence, tax laws are not
as a matter of principle outside the ambit of Article 301. Third, the test to
be applied in detem1ining whether a law infringes the freedom guaranteed c
by Article 30 I is whether the direct and immediate effect is to hinder the
movement of trade. A law which has that effect, including a tax law
must, where it has been enacted by the state legislature be subject to the
provisions of A1ticle 304. Fourth, compensatory taxes which are imposed
in consideration of the facilities which are provided by the state to trade D
and commerce are outside the ambit ofA1ticle 30 I. Fifth, a compensatory
tax does not hinder the freedom of trade and commerce and need not
comply with the requirements of the proviso to A1ticle 304(b) of the
Constitution.

                                                                             E
       E.2 Khyerbari
       77. In Atiabari, an enactment of 1954 legislated by the State of
Assam was found to be invalid. The state legislature then obtained the
previous sanction of the President under A1ticle 304(b) and proceeded
to enact the Assam Taxation (on goods carried by road or on inland           F
wate1ways) Act - 1961. A Constitution Bench dealt with the challenge
to the new law in Khyerbari Tea Co. Ltd. v. State of Assam".
       78. Justice Gajendragadkar who delivered the judgment of the
maj01ity held that the judgment in Automobile Transport introduced a
"clarificatory rider" to the majority view in Atiabari 16 and that it had    G
"substantially accepted" the earlier decision 17 •

 "(1964) 5 SCR 975
 "' Id. at p-985
 17
    Id. at p. 986
                                                                             H
550            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A            79. The opinion of Justice Gajendragadkar in Khyerbari seems
      to indicate an element of reservation in regard to the concept of
      compensat01y taxes. Compensatory taxes, the judge noted, were evolved
      in conceptual tenns in Australia in the context of Section 92 which is
      "absolute in terms" and on its "literal construction, admits of no
      exceptions". Justice Gajendragadkar indicated that the constitutional
 B
      compulsions which led to the notion of compensatory taxes not being a
      hindrance to freedom being adopted in Australia were absent in India.
      Articles 302 to 304 specifically provide for the imposition of restrictions
      on the freedom guaranteed by Article 301. Justice Gajendragadkar
      adverted to the minority view of Justice Hidayatullah in Automobile
 c    Transport on this aspect. His observations on the concept of
      compensatory taxes are as follows :


             "13... Section 92 is absolute in tenns and on its literal
 D           construction, admits of no exceptions. The Australian
             decisions, therefore, had to introduce distinctions, such as
             compensatory or regulatory tax laws in order to take laws
             answering the said description out of the purview of Section
             92. In our Constitution, however, though Article 30 I is
             worded substantially in the same way as Section 92,Articles
 E           302 and 304 provide for reasonable restrictions being
             imposed on the freedom of trade subject to the requirements
             of the said two articles, and so, the problem facing judicial
             decisions in Aush·a!ia and in this country in regard to the
             freedom of trade and the restrictions which it may be
 F           permissible to impose on it, is not exactly the same. The
             minority view expressed by Hidayatullah, J. has pointedly
             refe1Ted to this aspect of the matter."


             80. In Khyerbari, the judgment of the Supreme Court noted in
 G    more than one place that the tax in question had not been supported by
      the State of Assam on the ground that it was compensatory. Justice
      Gajendragadkar held that ifthe enactment had been claimed by the state
      to be compensatory, it would have been necessary to constitute a larger
      Bench to reconsider the position. This was because the state law of
 H     1954 was enacted as a consequence of the earlier law having been
       HNDAL STAINLESS LTD. v. STATE OF HARYANA                              551
             [DR. D. Y. CHANDRACHUD, J.]


invalidated in Atiabari. In Atiabari, the view of the majority was that      A
such a tax (even if compensato1y) could be sustained only after complying
with Article 304(b). The earlier law had been struck down 'though it
was compensatory'. Justice Gajendragadkar found that it would be unfair
to preclude the petitioners from contending that the compensatory
character of the levy was not material to its validity under Part XIII.      B
Justice Gajendragadkar accordingly held as follows:


      "14 .... If in the present case, it had been urged before us
      that the tax levied by the Act is compensatory in character,
      it would have been necessary to consider the question once             c
      again by constituting a larger Bench. It will be recalled that
      the Act with which we are concerned has been passed by
      the Assam Legislature directly as a result of the decision of
      this Court in Atiabari Tea Co. case [( 196 l) 1 SCR 809] ;
      that decision was that if the tax imposed by the Act was               D
      compensatory in character, then the Act could be sustained
      only if it was passed afrer complying with the provisions of
      Article 304(b ). The Assam Legislature has accordingly
      adopted the said procedure and passed the Act. If the Act
      had been compensatory in character, it would have become
      m:..:essary for us to consider the whole position once again,          E
       because it would obviously be unfair and unjust that the
      earlier Act should have been struck down though it was
      compensatory in character and in testing the validity of the
       present Act, it should be open to the petitioners to contend
       that its compensatory character is irrelevant to the enquiry           F
       under Article 304(b).''


       81. A reference to the larger bench was however obviated since
the High Court had held that Act not to be compensatory and no submission
to the contrary was urged by the state. The new enactment of the Assam       G
Legislature was upheld against the challenge that it violated A1iicles 14,
 l9and301:

       "45. It is, of course. true that the validity of tax laws can be
       questioned the light of the provisions of Articles 14. 19 and
                                                                             H
552            SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A           301 if the said tax direct and immediately imposes a
            restriction on the freedom of trade; but the power conferred
            on this Court to strike down a taxing statute if it contravenes
            the provisions of Articles 14, 19 or 301 has to be exercised
            with circumspection bearing in mind that the power of the
            State to levy taxes for the purpose, governance and for
 B
            carrying out its welfare activities is a necessary attribute
            sovereignty and in that sense it is a power of paramount
            character. In what case a taxing statute can be struck down
            as being unconstitutional is illustrated in the decision of this
            Court in K.T. Moopil Nair v. State ofKerala. [(1961) 3 SCR
 c          77] ....... It is in regard to such a taxing statute which can
            properly be regarded a purely confiscatory that the power
            of the court can be legitimately invoked and exercised".



 D          The law enacted by the state legislature was upheld in Khyerbari
      not on the ground that it was compensatory- such a justification having
      not been pressed by the state - but on the ground that its provisions were
      not violative of Articles 14, 19 and 301. The Act was not confiscatory
      and was held to pass muster under Articles 14, 19 and 301.

 E
            E.3 Subsequent applications
            82. Between 1962 and 1995, the working test adopted in
      Automobile Transport for detem1ining whether a tax is compensatory
      was adopted largely in the context of motor vehicle taxes. See in this
 F    context the decisions in S K Madar Saheb v. State of A P 18 ; Boiani
      Ores Ltd v. State of Orissa 19 ; G K. Krishnan v. State of T N20 ;
      International Tourist Corpn. v. State of Haryana 21 ; Malwa Bus
      Service (P) Ltd. v. State of Punjab 22 ; Meenakshi v. State of
      Karnataka 23 ; B.A. Jayaram v. Union of lndia 24 and State of
 G    "[1972] 4 sec 635
      "[1974] 2 sec 777
      '°[1975J 1 sec 375
      "(1981] 2 sec 318, 1981 sec (Tax) 103
      "(1983] 3 sec 237, 1983 sec (Tax) 162
      "AIR (1983) sc 1283. (1984) Supp sec 326, (1984) sec (Tax) 206
 H    "(1984] I sec !68
          JINDAL STAINLESS LTD. v. STATE OF HARYANA                           553
                 [DR. D. Y. CHANDRACHUD, J.]


Maharashtra v. Madhukar Balkrishna Badiya 25.                                 A
       83. In International Tourist Corporation v. State of Haryana26 ,
Justice 0. Chinnappa Reddy speaking for a Bench of two Judges of this
Court refined the test of a regulatory and compensatory tax by stipulating
that there must exist a specific or identifiable object behind the levy and
a nexus between the subject and the object. This Court held:                  B


         "9. While in the case of a fee it may be possible to precisely
         identify and measure the benefits received from the
         Government and levy the fee according to the benefits
         received and the expenditure incun-ed, in the case of a
                                                                              c
         regulatory and compensatory tax it would ordinarily be well
         nigh impossible to identify and measure, with any exactitude,
         the benefits received and the expenditure incmTed and levy
         the tax according to the benefits received and the
         expenditure incurred. What is necessary to uphold a                  D
         regulatory and compensatory tax is the existence of a
         specific, identifiable object behind the levy and a nexus
         between the subject and the object of the levy. If the object
         behind the levy is identifiable and ifthere is sufficient nexus
         between the subject and the object of the levy, it is not            E
         necessary that the money realised by the levy should be
         put into a separate fund or that the levy should be
         proportionate to the expenditure."
                                                          (Id. at p. 328)

                                                                              F
       Reading the nexus requirement into a compensatory tax
r,epresented the effo11 of this Court to bring clarity to the otherwise
vague and uncertain core of a judicially evolved doctrine.
       84. In GK Krishnan v. State of Tamil Nadu 27 , a tax on motor
vehicles under the Motor Vehicle Taxation Act, 1931 was under challenge       G
on the ground of a violation of Article 301. By a notification, the rate of

"(1988] 4 sec 290. ( 1988) sec (Tax) 506
"(1981) 2 sec 318
21   (1975] 1 sec 375
                                                                              H
      554            SUPREME COURT REPORTS                            [2016] 10 S.C.R.



      A     tax which was imposed on a quarterly basis was enhanced. Justice K K
            Mathew who delivered the judgment of a Bench of three Judges of this
            Court observed that the judgment in AutomolJile Transport ·'practically
            overruled" the decision in Atiabari:


       B
                  "13 .... .insofar as it held that if a State Legislature wanted
                  to impose tax to raise moneys necessnry in order to maintain
                  roads, that could only be done after obtaining the sanction
                  of the President as provided in Article 304(b)".
                                                                    (Id. at p. 380)
       c
                  Justice Mathew held that there is a clear distinction between a
            Jaw which interferes with the freedom to trade and a law which merely
            regulates:
       D
                  "14 .... The word "free" in Article 30 I docs not mean
                  freedom from regulation. There is a clear distinction
                  between Jaws interfering with freedom to carry out the
                  activities constituting trade and laws imposing on those
       E          engaged therein rules of proper conduct or other restraints
                  directed to the due and orderly manner of carrying out the
                  activities. This distinction is described as regulation. The
                  word "regulation" has no fixed connotation. Its mening
                  differs according to the nature of the thing to which it is
                  applied. The true solution, perhaps, in any given case, could
       F
                  be found by distinguishing between features of the
                  transaction or activity in vi11ue of which it fell within the
                  category of trade, commerce and intercourse and those
                  features which, though invariably found to occur in some
                  form or another in the transaction or action are not essential
       G          to the conception. What is relevant is the contrast between
                  the essential attribute of trade and commerce and the
                  incidents of the transaction which do not give it necessarily
                  the character of trade and commerce. Such matters relating
• I               to hours, equipment, weight/size of load, lights, which form
       H
       JINDAL STAINLESS LTD. v. SlATE OF HARYANA                           555
              [DR. D. Y. CHANDRACHUD, J.]


      the incidents of transportation, even if inseparable, do not         A
      give the transaction its essential character of trade or
      commerce. Laws for Government of such incidents
      "regulate".                                  (Id. at p. 381)


                                                                           B
       85. The Bench of three Judges, following the line of precedent in
Automobile Transport held that for a law to become a prohibited tax,
it has to be a direct tax, the effect of which is to hinder the movement
part of trade. A tax which is compensatory or regulatory does not
however operate as a restriction on the freedom under Atiicle 301. The
nature of a compensatory tax was considered in the following               c
observations :


      "17. Strictly speaking, a compensatory tax is based on the
      nature and the extent of the use made of the roads, as for
                                                                           D
      example, a mileage or ton-mileage charge or the like, and if
      the proceeds are devoted to the repair, upkeep, maintenance
      and depreciation of relevant roads and the collection of the
      exaction involves no substantial interference with the
      movement. The expression "reasonable compensation" is
      convenient but vague. The standard of reasonableness can             E
      only lie in the severity with which it bears on traffic and
      such evidence of extravagance in its assessment as comes
      from general considerations. What is essential for the
      purpose of securing freedom of movement by road is that
      no pecuniary burden should be placed upon it which goes              F
      beyond a proper recompense to the State for the actual use
      made of the physical facilities provided in the shape of a
      road. The difficulties are very great in defining this
      conception. But the conception appears to be based on a
      real distinction between remuneration for the provision of a
      specific physical service of which patiicular use is made            G
      and a burden placed upon transpmiation in aid of the general
      expenditure of the State. It is clear that the motor vehicles
      require, for their safe, efficient and economical use, roads
      of considerable width, hardness and durability: the
                                                                           H
556            SUPREME COURT REPORTS                           [2016] 10 S.C.R.


A           maintenance of such roads will cost the government money.
            But, because the users of vehicles generally, and of public
            motor vehicles in particular, stand in a special and direct
            relation to such roads, and may be said to derive a special
            and direct benefit from them, it seems not unreasonable
B           that they should be called upon to make a special contribution
            to their maintenance over and above their general
            contribution as taxpayers of the State. If, however, a charge
            is imposed, not for the purpose of obtaining a proper
            contribution to the maintenance and upkeep of the road,
            but for the purpose of adversely affecting trade or
c           c0111111erce, then it would be a restriction on the freedom of
            trade, commerce or intercourse."                 (Id. at p. 382)


             86. The Bench of three Judges in G K Krishnan (supra) was
D     bound by the view which was taken by a larger Bench of seven Judges
      in Automobile Transport. The above extract however, indicates the
      difficulties which the Court noticed in applying concepts such as
      "reasonable compensation", an expression, which however convenient,
      is but vague. The Court noticed the rationale for the doctrine of
      compensatory taxes: providing recompense to the state for the provision
 E    of services which facilitate trade. A compensatory tax is distinguished
      from a general measure of taxation. The state may impose the tax as a
      part of raising revenues in aid of the general expenditure of the state.
      Though, all revenues of the state in the ultimate analysis are expended
      for public purposes, a burden imposed as a part of raising resources for
 F    meeting general expenditure is not compensatory. A compensatory tax
      in terms of the concept evolved by the Supreme Court in Automobile
      Transport is to provide a proper recompense to the state for the provision
      or use of all facilities made available to trade and commerce.
          87. Justice Mathew, observed that in such matters, a rough
 G approximation rather than a mathematically accuracy is what is required.
   The law imposed by the state legislature was held to pass muster of
   judicial review.
            88. The judgment in GK Krishnan (supra) is also noteworthy
      because it raises the issue as to whether the restrictions contemplated
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            557
              [DR. D. Y. CHANDRACHUD, J.]


by Article 304(b) would include the levy of a non-discriminatory tax.       A
Justice Mathew held that it was strange that the power to impose a tax
conferred upon the states should yet depend upon the sanction of the
President under the proviso to Article 304(b) :
      "27. Whether the restrictions visualized by Article 304(b)
      would include the levy of a non-discriminatory tax is a matter        B
      on which there is scope for difference of opinion. Article
      304(a) prohibits only imposition of a discriminatory tax. It is
      not clear from the article that a tax simpliciter can be treated
      as a restriction on the freedom of internal trade. Article
      304(a) is intended to prevent disc1imination against imported         c
      goods by imposing on them tax at a higher rate than that
      borne by goods produced in the State. A discriminatory tax
      against outside goods is not a tax simpliciter but is a barrier
      to trade and commerce. Article 304 itself makes a distinction
      between tax and restriction. That apart, taxing powers of
      the Union and States are separate and mutually exclusive.             D
      It is rather strange that power to tax given to States, say,
      for instance, under Entry 54 of List II to pass a law imposing
      tax on sale of goods should depend upon the goodwill of the
       Union Executive. It is said that a tax on sale does not impede
      the movement of goods. But Shah, J. said                              E
      in State v. Nataraja [AIR 1969 SC 147: (1968) 3 SCR 829
       : (1968) 22 STC 3 76] : "that tax under Central sales tax on
       inter-State sale, it must be noticed, is in its essence a tax
       which encumbers movement of trade and commerce."
                                                        (Id. at p. 385)
                                                                            F
       Justice Mathew also observed that the Court was not called upon
to make any pronouncement on whether there was any warrant to restrict
Article 301 to the movement part of trade and commerce. However, as
the court held, it was unnecessary to pursue the matter any further as
the tax imposed under the notification of the state in that case was held
                                                                            G
to be compensatory in character and hence not restrictive of the freedom.
       E.4   The breaking point
     89. The judgment in Automobile Transport held that
compensatory taxes lie outside the purview of Article 301. Justice
                                                                            H
558              SUPREME COURT REPORTS                         (2016] 10 S.C.R.



A      Mathew while upholding that the Madras Motor Vehicles Taxation Act,
       l 931 had cautioned in G K Krishnan (supra) that the concept of
       reasonable compensation is "convenient but vague" and emphasized "very
       great" difficulties in defining it. The issue came to the fore in M/s
       Bhagatram Rajeev Kumar v. Commissioner of Sales Tax, M.
       P28 .An entry tax was imposed on goods such as sugar on which no sales
 B
       tax is leviable, under the Madhya Pradesh Sthaniya Kshetra Me Mal Ke
       Pravesh Par Kar Adhiniyam, 1976. No sales tax could be levied on
       sugar since it is one of the goods on which additional excise duty is
       leviable under the Additional Duties of Excise Act, 1957. This Court
       held that though sugar was a commodity on which no sales tax is leviable
 c     because additional excise duty is payable, it was within the taxing
       provisions of the entry tax legislation. There was a challenge to the
       entry tax law on the ground that it violated A1iicle 301 and that it was not
       regulatory or compensatory. A Bench of three Judges of this Court held
       that the figures which had been disclosed by the state as justification for
 D     the levy as a compensatory tax were not disputed. However, the Bench
       reformulated the test of what constitutes a compensatory tax in the
       following observations :
              "8 ..... The concept of compensatory nature of tax has been
              widened and if there is substantial or even some link between
 E            the tax and the facilities extended to such dealers directly
              or indirectly, the levy cannot be impugned as invalid. The
              stand of the State that the revenue earned is being made
              over to the local bodies to compensate them for the loss
              caused, makes the impost compensatory in nature, as
              augmentation of their finance would enable them to provide
 F
              municipal services more efficiently, which would help or
              ease free flow of trade and commerce, because of which
              the impost has to be regarded as compensatory in nature,
              in view of what has been stated in the aforesaid decisions,
              more particularly in Hansa Corpn. Case." (Id. at p. 678)
 G

            90. These observations made a marked departure from the test
       which was adopted in the judgment of seven Judges in Automobile

       "[1995 Supp (IJ sec 673)
 1-1
        JINDAL STAINLESS LTD. v. STATE OF l-IARYANA                                559
               [DR. D. Y. Cl-IANDRACl-IUD, J.]


Transport. The test of a compensatory tax as formulated in Automobile              A
Transport is whether the trade has the use of facilities for the conduct
of its business and is required to pay not patently much more than what
is required for providing the facilities. In a substantially watered down
redefinition of the test, Bhagatram required a "substantial or even some
link" between the tax and the facilities extended "directly or indirectly".        B
The underlying basis or foundation for regarding a tax as compensatory
was almost obliterated. The reference in Bhagatram to the earlier
decision in State of Karnataka v. Hansa Corporation 29 , clearly
overlooks that in that case the state had made no effort to sustain the
validity of the tax on the ground that it was compensatory in character.
Hence, the Bench in Hansa Corporation expressly clarified that it                  c
was not necessary for the Court to examine whether the tax was
compensatory. Yet, the decision in Hansa Corporation was construed
in Bhagatram to be an authority for the proposition that even some link
between the facilities provided and the payment demanded, whether
direct or indirect, would suffice.                                                 D
       91. The decision in Bhagatram was followed by another Bench
of two judges in State of Bihar v. Bihar Chamber of Commerce"'.
At issue was an entry tax imposed by the Bihar (Tax on Entry of Goods
into Local Areas for Consumption, Use or Sale therein), 1993. The
High Court had held the Act to be invalid on the ground that the state             E
had not disclosed material to justify that it was compensatory or
regulatory nor had the state fulfilled the requirements of Article 304(b).
The submission of the state in appeal was that the enactment was
intended by the state legislature to offset at least in pa1t the loss of revenue
caused to it, as a result of a decision of this Court in India Cement
                                                                                   F
Ltd. v. State ofTamil Nadu". The state submitted that due to a loss of
revenue from the cess on minerals, it was necessary for the state to find
alternative sources ofrevenue to support its welfare schemes. The money
raised would, it was asserted, be spent for the welfare of the state,
which was divided into local areas. Moreover, it was urged that even if
the levy was not compensatory, the assent of the President had been                G
obtained under Article 304(b) read with Article 255. The enactment

"(J980J 4 sec 697
'" (!9'16) 9 sec 136
" (l 990) 1 sec 12
                                                                                   H
560                SUPREME COURT REPORTS                              [2016] 10 S.C.R.



A     was held to be compensatory. The following tests were laid down:


               "12 ... .It is not and it cannot be stipulated that for the purpose
               of establishing the compensatory character of the tax, it is
               necessary to establish that every rupee collected on account
B
               of the entry tax should be shown to be spent on providing
               the trading facilities. It is enough if some connection is
               established between the tax and the trading facilities
               provided. The connection can be a direct one or indirect
               one, as held by this Court in Bhagatram
 c             Rajeevkumar v. CST [1995 Supp (1) SCC 673: (1995) 96
               STC 654] : (SCC p. 678, para 8) ...... " The concept of
               compensatory nature of tax has been widened and ifthere
               is substantial or even some link between the tax and the
               facilities extended to such dealers directly or indirectly the
D              levy cannot be impugned as invalid" ..... Though not stated
               in the counter-affidavit, we can take notice of the fact that
               the State does provide several facilities to the trade including
               laying and maintenance of roads, waterways and markets,
               etc. As a matter of fact, since the levy is by the State, we
               must also look to the facilities provided by the State for
 E             ascertaining whether the State has established the
               compensatory character of the tax."                  (Id. at p. 14 7)


              The Court in Bihar Chamber of Commerce held that so long
 F    as "some connection is established between the tax and the trading
      facilities provided" the levy would be held to be compensatory in
      character.
            92. These decisions were doubted by a Bench of two-Judges in
      Jindal Stripe Ltd. v. State of Haryana 32 .
 G            93. Jindal Stripe involved a batch of appeals raising a challenge
      to the Haryana Local Area Development Tax Act, 2000 on the ground
      that it was "violative" of Article 301 and was not saved by Article 304.
      A Bench of two judges held that the decisions in Bhagatram and Bihar

      32   c2003 l 8 sec 60
 H
           JINDAL STAINLESS LTD. v. STATE OF HARYANA                           561
                  [DR. D. Y. CHANDRACHUD, J.]

Chamber of Commerce seem to have deviated from the principles A
underlying the imposition of a compensatory tax which had held the field
from 1962 to 1995. ln the view of the refening Bench, if the test
enunciated in the above two cases was to be accepted as the position in
law, any tax could pass the test of a compensatory tax without infringing
upon the freedom ordained by Article 301. The reference was heard by B
a Constitution Bench in Jindal Stainless Ltd. (2) v. State of Haryana 33 ,
The Constitution Bench in Jindal Stainless elucidated the difference
between regulatory and taxing powers. Taxing legislation, the Court
ruled, is based on the concept of burden and on the principle of ability to
pay. On the other hand, regulatory charges are a recompense for the
costs or expenses incuned by the state for the provision of services or c
facilities:


       "31 ... Suffice it to state at this stage that the basis of special
       assessments, bettem1ent charges, fees, regulatory charges               D
       is "recompense/reimbursement" of the cost or expenses
       incuned or inclllTable for providing services/facilities based
       on the principle of equivalence unlike taxes whose basis is
       the concept of"burden" based on the principle of ability to
       pay. At this stage, we may clarify that in the above case
       of Automobile Transport[(l 963) 1 SCR 491 : AIR 1962 SC                 E
       1406], this Court has equated regulatory charges with
       compensatory taxes and since it is the view expressed by a
       Bench of seven Judges, we have to proceed on that basis.
       The fallout is that compensatory tax becomes a sub-class
       of fees".                                           (Id. at p. 264)     F


       Based on this distinction, the Constitution Bench held that if a law,
fiscal or otherwise, operates upon the movement of trade or commerce
and its effect is to impede that activity, the law would constitute a
restriction under A1ticle 301. However, if the law seeks to enforce a          G
payment for regulation of conditions or incidents of trade, it is regulatory
in character:

.u (2006   J 7 sec 241
                                                                               H


                                                     •
562            SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A           "38 ..... Jfthe impugned law seeks to control the conditions
            under which an activity like trade is to take place then such
            law is regulatory. Payment for regulation is different from
            payment for revenue. If the impugned taxing or non-taxing
            law chooses an activity, say, movement of trade and
            commerce as the criterion of its operation and if the effect
 B
            of the operation of such a law is to impede the activity, then
            the law is a restriction under Article 30 I. However, if the
            law enacted is to enforce discipline or conduct under which
            the trade has to perform or if the payment is for regulation
            of conditions or incidents of trade or manufacture then the
 c          levy is regulatory."                           (Id. at p. 266)


             94. The Constitution Bench held that taxes are levied as a part of
      the common burden. While the foundation ofa fee is "the principle C)f
 D    equivalence", the basis of a tax is ability to pay. The main basis of a fee
      or a compensatory tax is an equivalence and a "quantifiable measurable
      benefit". A compensatory tax has to be broadly proportional:



 E           "42 ... Compensatory tax is based on the principle of''pay
            for the value''. It is a sub-class of "a fee". From tile point
            of view of the Government, a compensatory tax is a charge
            for offering trading facilities. It adds to the value of trade
            and commerce which does not happen in the case of a tax
 F          as such. A tax may be progressive or proportional to income,
            property, expenditure or any other test of ability or capacity
            (principle of ability). Taxes may be progressive rather than
            proportional. Compensatory taxes, like fees, arc always
            proportional to benefits. They are based on the principle of
            equivalence. However, a compensatory tax is levied on an
 G          individual as a member of a class, whereas a fee is levied
            on an individual as such. If one keeps in mind the "principle
            of ability" vis-a-vis the "principle ofequivalence'', then the
            difference between a tax on one hand and a fee or a
            compensatory tax on the other hand can be easily spelt
 H          out."                                           (Id. at p. 267)
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           563
              [DR. D. Y. CHANDRACHUD, J.]

      95. The Constitution Bench held that a compensatory tax is a A
compulsory contribution levied broadly in proportion to the special benefits
derived to meet the costs ofregulation or an outlay which is incurred to
provide a special advantage to trade, commerce and intercourse.
Whenever a law is impugned as being violative of Article 301, the Court
must detem1ine whether the enactment facially or patently indicates
                                                                             B
quantifiable data on the basis of which the compensatory tax is sought to
be levied. The statute must broadly indicate a proportionality to a
quantifiable benefit. Even if the statute were not to indicate this, the
state may discharge the burden cast upon it by producing material to
indicate that the payment of the compensatory tax is a reimbursement
or recompense for a quantifiable/measurable benefit provided or to be c
provided to the payer of the tax. The reference was answered by the
Constitution Bench by holding that the test of what constitutes a
compensatory tax had been substantially altered by the decisions in
Bhagatram and Bihar Chamber of Commerce in a manner which
was inconsistent with the judgment of seven Judges in Automobile D
Transport. In holding that 'some connection' or 'some link' between
the tax and the facilities extended would suffice, 'whether direct or
indirect', the judgments in the Bhagatram and Bihar Chamber of
 Commerce were held to have deviated from the settled concept of
compensatory taxes and were hence overruled.
                                                                             E


       E.5 Doctrinal concerns and inconsistencies
       96. The theory of compensatory taxes was evolved in Automobile
Transport to assimilate doctrinal concerns at several levels. Freedom
of trade and commerce under Article 301 of the Constitution is expressly F
made subject to the provisions of Part Xlll. The deliberate use of the
expression 'free' instead of"absolutely free" (the latter expression being
adopted in the Australian Constitution) coupled with the language of
A1ticle 301 which subjects its provisions to Part Xlll is indicative of the
fact that the freedom which is guaranteed is subject to legislative control. G
Articles 302, 303 and 304 are a part of the constitutional scheme which,
while defining the ambit of the freedom in Article 301 subjects it to
restrictions under Articles 302 and 304. The nature of the restrictions
and the limitations on the power of Parliament and of the state legislatures
while legislating to impose restrictions is conditioned by constitutional
                                                                             H
564             SUPREME COURT REPORTS                           [2016] I0 S.C.R.


A     parameters. The conditions arc based on the fulfilment of substantive
      and procedural norms: substantive such as the principle of non-
      discrimination, the element of publk intaest and reasonableness; and
      proeedural (if it ean be regarded as a matter of procedure) by requiring
      the sanction of the President prior to the introduction of a Bill in the state
      legislature.
 B
              97. At a doctrinal level, the Court in Automobile Transport was
      cognizant of the fact that regulation of trade and commerce may, in fact
      facilitate trade rather than impede its freedom. As the Court postulated,
      the freedom to trade does not mean a freedom to trade in chaos.
      Conditions of chaos are destructive of an orderly society. Conditions
 c
      which ensure a disciplined and orderly conduct of trade and commerce
      facilitate trade. Trade also pre-su pposcs the existence of infrastructure
      and the provision of facilities for pursuing the avenues of commerce and
      trade. The state which pr1wides those facilities has a legitimate interest
      in recovering the costs which it incurs. In the absence of resources
 D    generated by charges levied for the use of facilities, the state may not
      have the wherewithal to provide the facilities in the first place. Hence,
      when the concept of compensatory taxes was devised. Justice SK Das,
      in Automobile Transport adverted to collections made for the use of
      trading facilities, such as roads, bridges and airports. ''Such
 E    compensato1y taxes" as the judgment held, were not a hindrance to
      anyone 'sfreedom so long as they remain reasonable. So long as the tax
      was compensatory or regulatory, it did not operate as a hindrance. In
      another part of the judgment, Justice Das held that a regulatory measure
      or measures imposing compensatory tax.es for the use of trading facilities
      did not fall within the purview of restrictions contemplated by Article
 F
      30 l and did not have to comply with the requirements of the proviso to
      Article 304(b).
              98. The judgment in Automobile Transport indicates that a
      second doctrinal concern which weighed with the Court was a dilution
      of the sovereign power to tax conferred upon the states if all fiscal
 G
      legislation was required to pass muster of a Presidential sanction under
      the proviso to Atiicle 304(b). This concern was present to the mind of
      the Court in Automobile Transport, when Justice Das observed that
      if all legislation of the state legislatures which has a repercussion on
      tariffs, licensing. marketing regulation and price control was required to
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                   ~65
              [DR. D. Y. CHANDRACHUD, J.]

proceed through a prior Presidential sanction, the plenary power of the            A
states in the fields oflegislation allocated to them would be meaningless.
The theory of compensatory taxes was an answer to this conundrum.
So long as the tax retained a compensatory character, it did not fall
within the fold of Article 30 I. If a compensatory tax does not offend
Article 301, the provisions of Article 304(b) are not attracted. In the            B
same vein, Justice Subba Rao cautioned against a construction of Part
Xlll that would render the states as ·'the handmade of the central
executive". Besides the ·direct and immediate' test which the karned
judge considered to be a "reasonable solvent", Justice Subba Rao also
adverted to a tax which is compensatory or regulatory not operating as
a restriction on the free movement of trade.                                       C
       99. Compensatory taxes were envisaged as a doctrinal concept
to preserve an area where the sovereignty of the state legislatures in
fiscal matters could operate without the constraining influence of a prior
Presidential sanction. Such taxes would not fall within the ambit of
Article 30 l. Their position was reconciled with freedom on the ground             D
that a compensatory tax for the use of facilities is not a hindrance to
trade but facilitates it.
         I 00. The difficulties that the concept of compensatory taxes would
encounter had their seeds in the formulation in Automobile Transport
itself. The judgment of Justice Das used the concept in varying contexts           E
as a tax for the use of facilities and, in other places, as a tax to provide
facilities. Use relates to the availment of a facility. Providing for facilities
emphasises the role of the state in terms of the investment which it
incurs and the expenditure required for upkeep and maintenance. Use
and provision may be two shades of the same coin but they have their               F
own distinctions. The concept of compensatory taxes was by its very
nature formulated in terms which were vague and not capable of precise
definition. The judgment of the majority in Automobile Transport
speaks of compensatory taxes not being a hindrance, so long as they are
reasonable. Moreover, the working test that was adopted in the judgment
                                                                                   G
made it clear that it was not the precise or specific amount that is collected
that is required to be expended for providing facilities. The working test
 is that the trade which has the use of facilities for the better conduct of
 business does not pay ·patently much more' than what is rcqui1·ed for
 providing the facilities. ·Paying not patently much more' is a concept
                                                                                   H
566             SUPREME COURT REPORTS                          [1016] J 0 S.C.R.


A  which suffers from vagueness. How much more is within the ambit of
   the phrase 'not patently much more' introduces an element of subjectivity.
   A standard which is subjective becomes uncertain and indefinite in its
   practical application. The lack of precision about what constitutes a
   compensatoty tax undoubtedly did furnish to the Court and to the process
   ofjudicial review a measure of flexibility to preserve the sovereignty of
 B
   the state legislatures. The difficulties which would be encountered
   however became evident, when the three judge Bench in Bhagatram
   and the two judge Bench in Bihar Chamber of Commerce rested the
   decision on a "some connection'' or ''some link" requirement. If some
   connection or some link were to suffice, the whole notion of compensatory
 c taxes being a means of recouping the states for the cost of providing
   facilities to the trade would tend to disappear. ln fact, as the decision in
   Bhagatram indicated, the compensatory aspect of the tax which was
   upheld in that case was a loss which was sustained by the state as a
   result of sugar not being amenable to sales tax (being a commodity on
 D which an additional duty of excise was leviable). Similarly, in Bihar
   Chamber of Commerce, the state had sought to sustain the tax as
   compensatoty on the ground that the loss of revenue sustained from the
   cess upon minerals, as a result of a judgment of the Supreme Court, had
   to be made up by tapping an alternative source of revenue. These two
   decisions showed that the concept ofcompensatoty ta,'\.es was understood
 E
    by the states not as a method of compensating a state for the provision
   of infrastructure and facilities to the trade but as a measure to recover a
    loss of revenue under another head. If compensatory taxes were to
    mean compensation for the loss of state revenue under some other head,
    the theory which found acceptance in the two decisions of this Court
 F had travelled far beyond the domain that was contemplated in
    Automobile Transport. Correctly, therefore. both the decisions in
    Bhagatram and in Bihar Chamber of Commerce were ovt:rruled in
   .Jindal Stainless. However, both the decisions led to subjectivity,
    uncertainty and vagueness.
 G            I 0 I. A close reading of the decision in .Jindal Stainless indicates
       that while the earlier decisions in Bhagatram and in Bihar Chamber
       of Commerce were overruled, the pendulum had swung to the other
       extreme. The Constitution Bench in Jindal Stainless proceeded to
       explain the basis of the ·~udicially evolvt:d concept" of compensatory
       taxes by distinguishing a tax which is based on the principle of ability to
 1-1
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            567
              [DR. D. Y. CHANDRACHUD. J.]

pay from a fee which is based on the principle of equivalence. A
Compensatory taxes, the Constitution Bench held, constitute a sub-class
of a fee and are based on the principle of "pay for value". In holding
that the collection on account of a compensatory tax must be "broadly in
proportion" to the special benefits derived to defray the costs of regulation
or to meet the outlay incurred, the Constitution Bench was restating the B
working test of Automobile Transport. But the subsequent
observations in .Jindal Stainless make it evident that the Constitution
Bench introduced a near mathematical formulation which would not be
consistent with the test which was propounded in Automobile
Transport. The judgment of the Constitution Bench requires that the
enactment which imposes a compensatory tax must facially or patently, c
indicate quantifiable data and a benefit which is quantifiable or
measurable. The Court held that however, where a statute did not to do
so, the burden would lie on the state as a service provider to produce
material indicating that the payment of the tax is a reimbursement or
recompense for a quantifiable/measurable benefit. These observations D
 bring the concept of a compensatory tax in line with a fairly strict
application of a quid pro quo principle which had not been accepted in
Automobile Transport. In fact, the Bench of seven Judges in
Automobile Transport had specifically clarified that the precise amount
that is realized need not be spent on the provision of facilities and the
                                                                              E
only requirement is that the trade should not be made to pay patently
much more than what is incurred for the provision of the facilities. The
observations in Jindal Stainless requiring the establishment ofa nexus
 or relationship between a quantifiable or measurable benefit and a
 reimbursement/recompense to the state are contrary to and inconsistent
with the law which was laid down in Automobile Transport.                     F
       l 02. Evidently, both Justice Gajendragadkar in Khycrbari and
Justice Mathew in GK. Krishnan had reservations about the concept
of compensatory taxes. Justice G<\iendragadkar recorded his reservations
because the predecessor of the enactment of the state legislature of
Assam in issue in Khyerbari had been struck down in the decision in          G
Atiabari. The majority in Atiabari had held the tax to be invalid for
want of compliance with the proviso to Article 304(b) despite its
compensatory character. Justice Gajendragadkar held that if the new
enactment, which had been brought into force after complying with the
proviso to Article 304(b) was to be supported by the state as being          H
568            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     compensatory in character, a reference to a larger Bench would have
      been necessitated. That, however, did not become necessary because
      the State of Assam did not support the enactment as being compensatory
      before the Supreme Court. These observations of Justice Gajendragadkar
      were in the decision rendered in 1964 in Khyerbari. Eleven years later,
B     Justice Mathew in an eloquent judgment in G.K. Krishnan spoke about
      the expression 'reasonable' being convenient but vague. The judge
      stressed th~t that were very difficulties in defining this conception. The
      Constitution Bench in Jindal Stainless was bound by the doctrine of
      compensatory taxes which had been fomrnlated by a larger Bench of
      seven Judges in Automobile Transport. The validity of the
 c    compensatory tax theory was not under challenge.
              103. The judicially evolved concept of compensatory taxes has
      created in its wake new problems in its search for solutions. If a strict
      reading of the doctrine of compensatory taxes in tenns of the 'quantifiable/
      measurable benefits' approach is adopted (as did the Constitution Bench
 D    in Jindal Stainless) the formulation assumes the character of a strict
      application of a quid pro quo test. A compensatory tax is then a fee
      properly so called. The Constitution, in the legislative entries contained
      in the Lists in the Seventh Schedule classifies taxes and fees under
      distinct heads. If a compensatory tax were to assume the character of
 E    a fee, that raises the question as to whether the concept has any utility in
      the first place. lf, on the other hand, the concept of compensatory taxes
      were to have a loose and undefined ambit, by the application of the
      'some link' or 'some connection' test (as was adopted in Bhagatram
      and Bihar Chamber of Commerce), then any connection would suffice
      for a tax to be called compensatory. Both these approachc<> which are
 F
      extreme in their own way are contrary to the law laid down by seven
      Judges in Automobile Transport. Bhagatram and Bihar Chamber
      of Commerce render the conceptso loose and undefined as to denude
      it of its rationale. Jindal Stainless while overruling these decisions
      adopted a strict standard which was not contemplated by Automobile
 G    Transport. Bhagatram and Bihar Chamber of Commerce were
      overruled in Jindal Stainless as being contrary to the test laid down in
      Automobile Transport. But as we have seen, the quantifiable/
      measurable benefit test laid down in Jindal Stainless by the Constitution
      Bench is itself replete with doctrinal problems, besides its patent
 H    inconsistency with Automobile Transport. lfboth these extremes are
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                             569
               [DR. D. Y. CHANDRACHUD, J.]

to be avoided, we are left with the middle ground which the decision in A
Automobile Transport sought to adopt. However, the basic conception
of compensat01y taxes as propounded in Automobile Transport is vague
and indefinite and has produced a maze of doctrinal uncertainty, if not
chaos in constitutional litigation. As this batch of appeals indicates, the
state legislatures have amended their entry tax legislation to incorporate .
                                                                                8
specific statutory provisions indicating the manner in which the proceeds
of the tax would be utilized so as to enable the tax to approximate a
compensatory tax. Once the state legislature has done so, by adopting
statutory provisions, would the Court have either the expertise or the
competence to second guess the basis which has been made by the
state legislature? The answer to that would necessarily have to be in c
the negative. The Court cannot assume the character of an accountant
overseeing the balance sheets of income and expenditure and enquiring
 into capital account investments made by the states. Such matters do
 not lie within the competence or ken of judicial review. More
 fundamentally, all tax revenues are utilised by the state for public purposes. D
 All taxation being in aid of the creation of conditions of social order, a
 compensatory element can never be disassociated from taxation. Equally
 insofar as fees are concerned, the payment which is required to be made
 is not always voluntary. The contribution exacted from trade and
 commerce may not always be for the actual use of a facility but may be
                                                                                E
 for the provision of the facility which trade and commerce is entitled to
 use. The state expends large budgets on providing expenditure to maintain
 law and order and security. The distinction between a tax and a fee has
 become blmTed in our jurisprndence and Courts have found it difficult to
 find a clear dividing line.
                                                                                F
         104. A doctrinal irrationality which the theory of compensatory
 taxes fails to meet is a discriminatory compensatory tax. Discriminatory
 taxes which single out goods originating in other states to hostile
 discrimination violate Article 304(a). lf compensatory taxes as a class
 fall outside Part Xlll, this would include even those compensatory taxes
 which are discriminatory. While holding that compensatory taxes fall G
 outside Part Xlll, the theory propounded by this Court did not account
 for the position that discriminatory compensatory taxes constitute an
 impediment to trade and commerce, thereby violating Article 301.
       105. Hence, the notion of compensatory taxes is beset with
                                                                               H
570             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     doctrinal problems. The concept has led to uncertainty and vagueness
      and has produced inconsistencies in constitutional adjudication.
      Constitutional adjudication must avoid these uncertainties which result
      in a multiplication of litigation and uncertainty both to the revenue and to
      the tax payer. Unce11ainty in the application of fiscal legislation leads to
 B    a situation where tax compliance is beset with interpretational and
      practical difficulties.A concept which is replete with such evident
      problems is best eschewed.


            F The content of freedom :goods, services, persons and
 c    capital
              106. A11icle 301 has guaranteed the freedom of trade, commerce
      and intercourse (subject to the provisions of Pai1 XIII). Article 19(1 )(g)
      guarantees to every citizen the right to carry on any occupation trade or
      business. At a certain level, a distinction can be drawn between the two
D     sets of freedoms. A11icle 19( 1)(g) guarantees individual freedom. Article
      301, on the other hand, looks at trade, commerce and intercourse as a
      whole. Such a distinction however may have its own limitations. Individual
      rights of all citizens protected by Article 19 lead to the establishment of
      a constitutional democratic order governed by the rule oflaw and based
 E    on human freedom. The dichotomy that A11icle 301 in its perspective
      looks at trade and commerce as a whole (as distinguished from an
      individual right) may also have its own limitations. The freedom
      recognised by Article 301 is enforceable. Enforceability is at the behest
      of an individual. In the constitutional recognition of freedom dwells the
      constitutional right of the individual to enforce it and to secure remedies
 F    for enforcing wrongs. The real content of freedom lies in the right which
      inheres in it and in the protection of the individual to enforce the right.
      The freedoms guaranteed by Article 301 are enforceable at the instance
      of individuals who are aggrieved by state action. Thus, a distinction
      between Article 19( I )(g) and Article 301 on the basis of the fom1er
 G    reflecting an individual right as opposed to a collective entitlement under
      the latter may not be completely accurate. Though, one is an enforceable
      fundamental right of a citizen while the other is a recognition of the free
      flow of trade, commerce and intercourse, both in essence are enforceable,
      and enforceable at the behest of aggrieved individuals. A more nuanced
      perspective with regard to both sets ofrights recognises that both reflect
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             571
                 [DR. D. Y. CHANDRACHUD, J.]

shades of the same universe of freedom.                                      A
       107. Indian society and the economy have evolved between the
advent of the Constitution and the present in a manner that would appear
unrecognisable between 1950 and now. The entrepreneurial spirit of the
nation has resulted in a diversification of the economy. A predominantly
agricultural economy at the birth of the Constitution has increasingly B
found change in the last seven decades with the enhancement of the
manufacturing base, and in more recent times to the diversification into
services, especially financial services. The age of the internet was yet
to dawn when the Constitution was adopted. The internet with its
powerful tools for the dissemination of knowledge and infornrntion has       c
provided new avenues for business, trade and commerce. The ambit of
A11icle 301 must in a contemporary context incorporate all avenues of
trade, commerce and intercourse and the instrumentalities by which they
flourish.
        108. Trade and commerce do not exist in a vacuum. The channels       D
of trade and commerce require a stable social order for business
transactions to be concluded, for contracts to be fulfilled and for
commercial dealings to be enforced in law. The sanctity of contracts,
secure conditions for trade and commerce and conditions which ensure
an ease of doing business are supported by the state which has a vital
role in the preservation of the rule oflaw. The meaning of the guarantee     E
under Article 301 must in a modem context accommodate the needs
and aspirations of business that would allow for economic development
and growth to take place in the nation. Fundamentally the creation of a
common market for goods and services requires the removal of obstacles
to the free movement of goods, persons, services and capital between         F
the states which constitute the Union of India. These four fundamental
freedoms are the foundation of Article 301. The free movement of goods
constitutes the traditional domain of trade and commerce. Our
Constitution in its recognition of the freedom of intercourse protects the
movement of persons engaging in commercial intercourse. Trade and
                                                                             G
commerce has diversified into services which constitute a vital element
in the economic life of the nation. The movement of capital is the
foundation for trade and commerce. Capital provides the foundation for
business. These four freedoms guaranteeing the free movement of goods,
services, persons and capital between the states, form the basis of the
                                                                             H
572             SUPREME COURT REPORTS                          [2016) 10 S.C.R.



A     guarantee under Article 301. Commercial transactions by which the free
      movement of each constituent element takes place fall within the ambit
      of the freedom.


            G Taxation and Federalism
 B
              109. In detennining an interpretation that would bring a balance
      between the diverse strands of Part Xlll, it is necessary for the Court
      equally to bear in mind the needs of the federal structure. The doctrine
      of the basic structure of the Indian Constitution has evolved to incorporate
      federalism as one of its integral features.
 c
             110. The guarantee that trade, commerce and intercourse shall
      be free throughout the territory of India is subject to the provisions of
      Part XIII. The meaning of the expression "throughout the territory of
      India" is elucidated by Article 1 of the Constitution which stipulates that
      "India, that is Bharat, shall be a Union of States". The Union which the
 D
      Constitution postulates is defined in terms of a political union and an
      economic union which brought together the erstwhile provinces of British
      India and the princely states. The freedom under Article 301
      comprehends, as we have seen, the free movement of goods, services,
      persons and capital. These are essential ingredients in the creation of a
 E    common market as an incident of an economic union. The freedom under
      Article 301 is not absolute for, the constitutional guarantee is subject to
      the provisions of Part XIII. The provisions of Article 302 to Article 304
      bring about a balance between the guarantee of freedom on one hand
      and legislative control over trade and commerce on the other hand. While
 F    doing so, those articles define the powers of Parliament and the state
      legislatures, while subjecting them to restraints that are intended to
      preserve the power of regulating trade and commerce.
             111. While the Constitution does in that sense subordinate the
      freedom under Article 301 to the provisions of Part Xlll, it would not be
 G    c01Tect to read the provisions of Part Xlll in isolation. Part Xlll is an
      integral element of the Constitution, but so are the other Parts under
      which executive and legislative powers are constitutionally conferred
      upon the structures of governance in the Union and the States. While
      construing the provisions of the Constitution it is necessary to construe
      the text in the context of the organic nature of the constitutional document.
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                             573
               [DR. D. Y. Cl-IANDRACHUD. J.]

The linkages between various Parts of the Constitution contribute to the      A
creation of a composite whole. No segment of the Constitution can be
read in isolation. The scheme of the Constitution must hence be
understood having regard to its history, text and context.
        112. A Constitution Bench of this Court in Kihoto Hollohan v.
Zachillhu1", emphasised the essential oneness of the Constitution when        B
it held that:


       "26. In expounding the processes of the fundamental law,
       the Constitution must be treated as a logical whole. Westel
                                                                              c
       Woodbury Willoughby in The Constitutional Law o/ the
       United Stales (2nd Edn. Vol. I, p.65) states:
       "The Constitution is a logical whole, each provision of which
       is an integral part thereof; and it is, therefore. logically prope1~
       and indeed imperative, to construe one part in the light of
                                                                              D
       the provisions of the oth..:r parts" .....
       27. A constitutional document outlines only broad and general
       principles meant to endure and be capable of flexible
       application to changing circumstances- a distinction which
       differentiates a statute from a Charter under which all
                                                                              E
       statutes are made ..... "                      (Id. at p.676)


      Words of the Constitution '·cannot be read in isolation and have to
be read harmoniously to provide meaning and purpose" (T.M.A Pai
Foundation v. State of Karnataka 35 ).                                        F
       113. The judgment of Justice Gajendragadkar, speaking for the
majority in Atiabari, however construed the language of Article 30 I to
mean that the guarantee of freedom was subject onlv to the provisions
of Part XIH. With respect, this does not constitute an appropriate
approach to constitutional interpretation since it leads to a construction    G
of Part X[[l in isolation from other provisions which have a significant
bearing on the nature of the freedom and its relationship with the

 "(1992) Supp 2 sec 651
 u (2002)   s sec 481
                                                                              H
574            SUPREME COURT REPORTS                            [2016] 10 S.C.R.



A     structures of governance. To consider the guarantee under Article 301
      as being subject only to Article 302 to 304 overlooks the relationship of
      Part XIII with other provisions of the Constitution. Freedom is integral
      to that relationship.
             114. The issue as to whether the Constitution creates a federal
 B    structure was debated upon in the Constituent Assembly. When the Draft
      Constitution was being discussed, TT Krishnamachari while supporting
      the view that the Constitution was to establish a federal structure
      observed thus:


 c
            "the first criterion is that the State must exercise compulsive
            power in the enforcement of a given political order, the
            second is that these powers must be regularly exercised
            over all the inhabitants of a given territory, and the third is
            the most impo11ant and that is that the activity of the State
 D          must not be completely circumscribed by orders handed
            down for execution by the superior unit. The important words
            are 'must not be completely circumscribed', which envisage
            some powers of the State are bound to be circumscribed
            by the exercise of federal authority. Having all these factors
 E          in view, I will urge that our Constitution is a federal
            Constitution."                                      (Id. at p.21)


            Dr. Ambedkar gave expression to the same thought in the following
      observations:
 F

            "The basic principle of federalism is that the legislative and
            executive authority is partitioned between the Centre and
            the States not by any law to be made by the Centre but by
            the Constitution itself. This is what the Constitution does.
 G
            The States under our Constitution are in no way dependent
            upon the Centre for their legislative or executive authority.
            The Centre and the States are coequal in this matter. It is
            difficult to see how such a Constitution can be called
            centralism. It may be that the Constitution assigns to the
 H
          JINDAL STAINLESS LTD. v. STATE OF HARYANA                            575
                 [DR. D. Y. CHANDRACHUD, J.]

         Centre too large a field for the operation of its legislative         A
         and executive authority than is to be found in any other
         federal Constitution. It may be that the residuary powers
         are given to the Centre and not to the States. But these
         features do not form the essence of federalism. The chief
         mark of federalism as I said lies in the partition of the
                                                                               B
         legislative and executive authority between the Centre and
         the units by the Constitution. This is the principle embodied
         in our Constitution." (Id. at p.22)


       115. A Bench of six Judges of this Court in State of West Bengal        c
v. Union of lndia 36 dealt with whether the property of a state in coal
bearing areas is immune from acquisition by the Union. This Court held
that in the structures of constitutional governance that are created by
the Constitution full sovereignty does not reside in the states. Moreover,
the Constitution contains a marked tilt in favour of the powers of the         D
Union. Chief Justice BP Sinha adverted to the provisions of Part Xlll
"which seek to make India a single economic unit for purposes of trade
and commerce under the overall control of the Union Parliament and
the Union Executive 37 " Our Constitution, the Court held "was not true
to any traditional pattern offederalism 38 ." Legal sovereignty is vested in
the people oflndia while political sovereignty is distributed between the      E
Union and the States, with greater weightage in favour of the Union. In
that context, this Court held that:


         "35. The non11al corporate existence of States entitles them          F
         to enter into contracts and invests them with power to carry
         on trade or business and the States have the right to hold
         property. But having regard to certain basic features of the
         Constitution, the restrictions on the exercise of their powers
         executive and legislative and on the powers of taxation,
         and dependence for finances upon the Union Government,                G
         it would not be correct to maintain that absolute sovereignty
36   (1964) 1 SCR 371
"(Id at p. 396)
" (Id at p.396)
                                                                               H
576            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A           remains vested in the States .....
            36. The Parliamentary power of legislation to acquire
            property is, subject to the express provisions of the
            Constitution, unrestricted. To imply limitations on that power
            on the assumption of that degree of political sovereignty
 B          which makes the States coordinate with and independent
            of the union, is to envisage a Constitutional scheme which
            does not exist in law or in practice. On a review of the
            diverse provisions of the Constitution, the inference is
            inevitable that the distribution of powers-both legislative
 c          and executive does not support the theory of full sovereignty
            in the States so as to render it immune from the exercise of
            legislative power of the Union Parliament particularly in
            relation to acquisition of property of the States."


 D           116. The evolution of constitutional doctrine in the five decades
      that have elapsed since the judgmentin State of West Bengal (supra)
      indicates a recognition that the Constitution does indeed create a federal
      structure. Though the federal structure is asymmetric in the powers
      assigned to the states as compared to those assigned to the Centre ·this
 E    does not render the Constitution unitary. The Constitution is federal and
      in the working of a democratic Constitution, judicial review has stepped
      in to restore the balance despite the asymmetries of distribution and
      powers. The provisions of the Constitution which indicate a tilt in favour
      of the Union do not detract from the principle that in the fields which are
      assigned to them, the states are intended to be integral elements of a
 F    federal structure. They are sovereign within their competence, subject
      to constitutional limitations.
            117. This principle was set forth in the following terms in Special
      Reference 1 of 1964 30 under A1iicle 143 of the Constitution:

 G
             "The supremacy of the Constitution is fundamental to the
             existence of a federal State in order to prevent either the
             legislature of the federal unit or those of the member States

      "(1%1) I SCR 413
 H
       JINDAL STAINLESS LTD. v. STATE OF 1-IARYANA                           577
              [DR. D. Y. CHANDRACHUD, J.]

      from destroying or impairing that delicate balance of power            A
      which satisfies the particular requirements of States which
      are desirous of union, but not prepared to merge their
      individuality in a unity. This supremacy of the Constitution
      is protected by the authority of an independent judicial body
      to act as the interpreter of a scheme of distribution of               B
      powers. Nor is any change possible in the Constitution by
      the ordinary process of federal or State legislation. "(para
      38)
      118. The constitutional position is authoritatively set forth in the
judgment in S. R. Bommai v. Union of India'". Justice K. Ramaswami           c
construed federalism to be a basic feature, in the following observations:
      "247. Federalism envisaged in the Constitution of India is a
      basic feature in which the Union oflndia is pennanent within
      the territorial limits set in Article 1 of the Constitution and is
      indestructible ...... Neither the relative importance of the           D
      legislative entries in Schedule Vil, Lists I and II of the
      Constitution, nor the fiscal control by the Union per se are
      decisive to conclude that the Constitution is unitary. The
      respective legislative powers are traceable to Articles 245
      to 254 of the Constitution. The Srate qua the Constitution is
      federal in structure and independent in its exercise of                E
      legislative and executive power. However, being the
      creature of the Constitution the State has no right to secede
      or claim sovereignty. Qua the Union, State is quasi-federal.
      Both are coordinating institutions and ought to exercise their
      respective powers with adjustment, understanding and                   F
      accommodation to render socio-economic and political
      justice to the people, to preserve and elongate the
      constitutional goals including secularism. "(Id. at p. 205)
        Justice B. P. Jeevan Reddy accepted the same doctrinal position
in the following tenns:                                                      G
       "276. The fact that under the scheme of our Constitution,
       greater power is confened upon the Centre vis-a-vis the
       States does not mean that States are mere appendages of
----
'" (1994) J sec 1
                                                                             I-I
578            SUPREME COURT REPORTS                          (2016] 10 S.C.R.



A           the Centre. Within the sphere allotted to them, States are
            supreme. The Centre cannot tamper with their powers.
            More particularly, the courts should not adopt an approach,
            an interpretation, which has the effect of or tends to have
            the effect of whittling down the powers reserved to the
 B          States ...... must put the Court on guard against any
            conscious whittling down of the powers of the States."
                                                     (Id. at p. 216-217)
             Justice P. B. Sawant, similarly held that though there are provisions
      under which the Centre has overriding powers over the states, our
 c    Constitution does create a federal structure. The states are sovereign in
      the fields which are left to them.
              119. In ITC v. Agricultural Produce Market Committee 41 ,
      this Court emphasised that in interpreting the text of the Constitution the
      Court should ensure, where the language pem1its that the powers of the
 D    state legislatures are not diluted and that the principles offederalism are
      preserved (See also in this context Kuldip Nayar v. Union of India 41 )
           120. The federal constitutional doctrine has consequences for
   interpretation. In interpreting the text of the Constitution, the Court must
   construe the text in a manner that would preserve the carefully crafted
 E balance between the Union and the states. Where the language of the
   text pem1its, the effort of constitutional interpretation should be to ensure
   that the states are not subordinated to the Union in areas reserved to
   them. Yet it is equally a matter of constitutional doctrine that where a
   particular provision (such as the proviso to Article 304(b) imposes a
   specific requirement (assent of the President before a Bill is introduced
 F in the state legislature) which subjects the legislative power of the states
   to constitutional limitations, it would not be open to the Court to ignore
   the plain meaning and effect of such a provision. The text of the
   Constitution cannot be subverted on the basis of an abstract notion or
   hypothesis. While creating a federal structure, the draftsmen of the
 G Constitution were conscious of the need for preserving a political and
   economic Union. If, as a part of that constitutional scheme, the text of
   the document has incorporated specific provisions, they must be given

      " c2002) 9 sec n2
 H    " c2006 l 1 sec 1
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                579
               [DR. D. Y. CHANDRACHUD, J.]

their plain meaning and effect. It would not be open to the Court to             A
dilute the meaning of the text on the basis of a priuri considerations.
      H Taxing powers
      H. l Article 245 and constitutional limitations
       12 l. Article 245 of the Constitution provides for the extent of          B
laws made by Parliament and the legislatures of the states. Clause l of
Article 245 enables Parliament "subject to the provisions of this
Constitution" to make laws for the whole or any part of the territory of
India and for the legislature of a state to make laws for the whole or any
part of the state. Implicit in Article 245, which defines the territorial
extent of laws enacted by Par Iiament and the state legislatures, is the
                                                                                 c
power to enact laws. Defining the extent of the law making power with
reference to territorial coverage presupposes the existence of a power
to frame legislation in the first place. Hence Article 245 is the fountainhead
of legislative power.lt makes legislative powers subject to constitutional
limitations. The distribution oflegislative powers is embodied in Article        D
246 which deals with the subject matter of laws made by the Parliament
and by the state legislatures. Parliament has exclusive powers to make
laws with respect to matters enumerated in List I of the Seventh
Schedule. Subject to the law making powers of Parliament in List I, the
legislature of a state has exclusive power to enact law for the state with       E
respect to any of the matters enumerated in List II. Parliament and the
state legislatures have concurrent powers to enact legislation in respect
of matters enumerated in List Ill. Article 245 is the source of legislative
power. Article 246 distributes legislative powers between Parliament
and the state legislatures on the basis of the Lists in the Seventh Schedule.
Article 245, in the conferment of legislative powers upon Parliament             F
and the state legislatures makes them subject to the provisions of the
Constitution.
       122. The power to enact laws is a manifestation ofsovcreignty.The
Constitution while conferring legislative powers upon the Union and the
states makes them subject to constitutional limitations. The sovereignty         G
of the legislalun: is subject to the norms of the written constitution. The
power to tax is subsumed in legislative power. Like all legislative power,
fiscal legislation is subject to the mandate of the written constitution.
This is the plain consequence of the opening words of Article 245( 1)
                                                                                 H
580             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A     under which the conferment of legislative powers is made subject to the
      provisions of the Constitution.
              123. The entries in the legislative lists of the Seventh Schedule
      are not sources of legislative power but only define the subjects or heads
      of legislation entrusted to th.: law making competence of Parliament and
B     the state legislatures. Read together, Articles 245 and 246 confer legislative
      power upon the Union and the states in the first place and distribute that
      power between them to enact legislation on the fields of legislation
      entrusted to their competence. Though Article 245 is made expressly
      subject to the provisions of the Constitution while there are no such
c     similar words in Article 246, both Articles arc subject to the other
      provisions of the Constitution. The language of Article 245 which subjects
      the conferment of legislative power to constitutional provisions is
      arecognition of the doctrinal principle that all constitutional power vesting
      in the organs of the state is subject to constitutional limitations. The
      Constitution which entrusts power conditions the entrustrnent to the
 D    observance of constitutional safeguards and limitations. All legislative
      power is subject to constitutional limitations.
             124. ln State of Kera la v. Mar Appraem Kuri Co. Ltd'3, th is
      Court construed the relationship between Articles 245 and 246 in the
      following observations:
 E

             "35 ... While the legislative power is derived from Article
             245, the entries in the Seventh Schedule of the Constitution
             only demarcate the legislative fields of the respective
 F           legislatures and do not confer legislative power as such ..... .
             36. A1iicle 246 deals with the subject-matter of laws made
             by Parliament and by the legislatures of States. The verb
             "made" once again finds place in the Head Note to Article
             246. This article deals with distribution of legislative
 G           powers as between the Union and the State Legislatures,
             with reference to the different Lists in the Seventh
             Schedule.



      " (201 2 J 7 sec 106
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                  581
                   [DR. D. Y. CHANDRACl-IUD, J.]

       37.Article 246. thus. provides for distribution. as between                 A
       Union and the States. of the legislative powers which are
       conferred by Article 245. Article 245 be!!ins with the
       expression "subject to the provisions of this Constitution".
       ·1"11ercfore, Article 246_ must be read as "subject to other
       provisions of the Constitution".              (Id. at p. 128)
                                                                                   B
        125. The limitations on the exercise of legislative power emanate
from(i) guarantees of freedom under Part Ill of the Constitution
co11tai11i11g fundamental rights; (ii) the requirement that the law making
authority must possess legislative competence to enact a law on the
subjl'ct on which it legislates; and (iii) other constitutional Iimitations.Part   c
XIII of the Constitution is one of those constitutional limitations. The
constitutional limitation emanating from Part XIII arises from the
recognition which it contains of the guarantee of free trade, commerce
and intercourse. Hence the first premise upon which legislative powers
are conferred upon and distributed between the Centre and the states is
that though the enactment of law is a manifestation of sovereignty, law            D
making authority under the Indian Constitution is subject to constitutional
restraints. Absolute power does not dwell in any constitutional authority
which is subject to a written constitution.
        126. The legislative entries in the Lists of the Seventh Schedule to
the Constitution delineate general fields of legislation separately from           E
taxing heads. In the Union List taxing entries are contained from Entries
82 to 92C. The residual entry, Entry 97 deals with matters not enumerated
in the state or concurrent lists, including any tax not mentioned in either
of those lists. In the state list taxes are comprised in Entries 46 to 62.
Fees are dealt with under separate heads: in Entry 96 of List I, Ent1y 66          F
of List II and Entry 4 7 of List III.
       H.2    Sovereignty and constitutional limitations
       127. The power to tax has been considered to be an essential
attribute of government and a sovereign pO\ver vesting in the state.
Thomas Cooley in his "Treatise on the Constitutional Limitations which             G
rest upon the Legislative power of the States of the American Union"'"
provides a jurisprudential foundation to the taxing power in the following
observations:

''(Indian Rerrinl 2005)
                                                                                   1-1
582            SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A           "Taxes are defined to be burdens or charges imposed by
            the legislative power upon persons or property, to raise
            money for public purposes. The power to tax rests upon
            necessity, and is inherent in every sovereignty. The
            legislature of every free State will possess it under the
            general grant of legislative power, whether particularly
 B
            specified in the constitution among the powers to be
            exercised by it or not. No constitutional government can
            exist without it, and no arbitrary government without regular
            and steady taxation could be anything but an oppressive
            and vexatious despotism, since the only alternative to taxation
 c          would be a forced extortion for the needs of government
            from such persons or objects as the men in power might
            select as victims. In the language of Chief Justice Marshall:
            "The power of taxing the people and their property is
            essential to the very existence of government, and may be
 D          legitimately exercised on the objects to which it is applicable
            to the utmost extent to which the government may choose
            to caITy it. The only security against the abuse of this power
            is found in the strncture of the govenunent itself. In imposing
            a tax, the legislature acts upon its constituents. This is, in
            general, a sufficient security against erroneous and
 E
            oppressive taxation. The people of a State, therefore, give
             to thdr government a right of taxing themselves and their
             property; and as the exigencies of the government cannot
             be limited, they prescribe no limits to the exercise of this
             right, resting confidently on the interest of the legislator,
 F           and on the influence of the constituents over their
             representative, to guard them against its abuse."
                                                              (Id. at p.2-3)


             Under the Indian Constitution the confem1ent oflegislative power
 G
      to impose, collect and enforce the realization of taxes is specifically
      spelt out from and enumerated under constitutional provisions. Taxing
      entries in Lists I and 11 are specifically enumerated and their ambit
      defined. Article 366(28) of the Constitution defines the expression taxation
      to include "the imposition of any tax or impost, whether general or local
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                          583
               [DR. D. Y. CHANDRACHUD, J.]

or special" and provides that the expression tax ''shall be construed      A
accordingly".
      128. Several decisions of this Court have regarded the taxing
power as an essential attribute of government and sovereignty. In Rai
Ramkrislma v. State of Bihar45, it was held that :
                                                                           B
      "It is, of course, true that the power of taxing the people
      and their property is an essential attribute of the Government
      and Government mav legitimately exercise the said power
      by reference to the objects to which it is applicable to the
      utmost extent to which Government thinks it expedient to
      do so. The objects to be taxed so long as they happen to be          c
      within the legislative competence of the legislature can be
      taxt.::d by the legislature according to the exigencies of its
      needs, because there can be no doubt that the State is
      entitled to raise revenue by taxation."
      In Raja Jagannath Baksh Singh v. State of U.P.4 6 , this principle   D
was stated as follows:


      "15 ... The power of taxation is, no doubt, the sovereign right
      of the State; as was observed by Chief Justice Marshall
                                                                           E
      in M"Culloch v. Maryland [ 4 Law Edn. 579 p. 607]: "The
      power of taxing the people and their property is essential to
      the very existence of Government, and may be legitimately
      exercised on the objects to which it is applicable to the
      utmost extent to which the Government may choose to carry
      it."                                                                 F



       In Amrit Banaspati Co. Ltd. v. State of Punjab", this Court
held that:
       "10 .... taxation is a sovereign power exercised by the State       G
       to realise revenue to enable it to discharge its obligations.''
                                                  (Id. at page 424 ).
,; AIR (!963) SC 1667
"' ( 1963) l SCR 220
n (1992) 2   sec 411                                                       H
584             SUPREME COURT REPORTS                             [2016] 10 S.C.R.



A           ln Dena Bank v. Bhikhabhai Prabhudas Parekh & Co. 4\ this
      Court held thus:


             "8 .... .the State is entitled to raise money by taxation because
             unless adequate revenue is received by the State, it would
 B
             not be able to function as a sovereign Government at all. It
             is essential that as a sovereign, the State should be able to
             discharge its primary governmental functions and in order
             to be able to discharge such functions efficiently, it must be
             in possession of necessary funds and this consideration
 c           emphasises the necessity and the wisdom of conceding to
             the State, the right to claim priority in respect of its tax
             dues."                                             (Id. at p. 702)


             129. The limitation on the states' power to tax must as a
 D
      consequence be found in constitutional limitations.This follows the
      constitutional principle that all legislative powers conferred upon the Union
      Parliament and the state legislatures are an attribute of sovereignty.
      Hence the limitations on the exercise of those powers are such as have
      been crafted by the Constitution. These limitations which impose a fetter
 E    on the exercise of legislative powers may arise as a result of the
      guarantees of freedom in Part IIl; restraints arising from legislative
      competence and constitutional limitations imposed by other provisions of
      the Constitution. Hence in Maharaj Umeg Singh v. State ofBombay49 ,
      this Court held that the power of legislation that is vested in the state is
 F    plenary and the fetters or limitations on the exercise oflegislative powers
      could only be imposed by the Constitution itself. The Court recognized
      that the Constitution may itself lay down fetters or limitations on the
      exercise of the power such as in Article 303 or Article 286(2). The
      fetter or limitation must however be traceable to the Constitution. In
      Firm Bansidhar Premsukhdas v. State of Rajasthan 50 , this Com1
 G    adverted to the decision in Thakur Jagannath Baksh Singh v. United
      Provinces 51 , and held that the limitation on the plenary powers of the
      " c20ooi 5 sec 694
      "AIR (1955) SC 540
      '° (1966) Supp SCR 81
 H    "(1946) FCR 111
       JINDAL STAINLESS LTD. v .. STATE OF HARYANA                                 585
                  [DR. D. Y. CHANDRACHUD, J.]

legislature to enact law must be traced to an express provision in the             A
Constitution:


      ·' ... It is well-established that Parliament or the State
      Legislatures are competent to enact a law altering the terms
                                                                                   B
      and conditions of a previous contract or of a grant under
      which the liability of the Government oflndia or of the State
      Governments arises.The legislative competence of
      Parliament or of the State Legislatures can only be
      circumscribed by express prohibition contained in the
      Constitution itself and unless and until there is any provision              c
      in the Constitution expressly prohibiting legislation on the
      subject either absolutely or conditionally, there is no fetter
      or limitation on the plenary powers which the legislature is
      endowed with for legislating on the topics enumerated in
      the relevant lists. This view is borne out by the decision of                D
      the Judicial Committee in Thakur Jagannath Baksh Singh
       v. United Provinces."'                         (Id. at p. 19)


        130. The legislative power of the states to impose taxes is subject
in general, to the same constitutional parameters which govern the                 E
exercise of all legislative power. The containment of legislative power
follows from three constitutional precepts. First, legislation is valid if it is
enacted by a legislature which has competence to enact law on the
subject. This is the consequence of the distribution of legislative power
between the Union and the States under Articles 245 and 246 read with              F
the lists contained in the Seventh Schedule. The legislatures, whether at
the national or the state level, are entrusted with the power of legislation
in exercise of which they must confine themselves to the boundaries
allocated by the Constitution. These boundaries are defined wfrh
reference to the competence to enact law governing a particular subject
matter. Parliamentary legislative power has a residuary or catch all area:         G
subjects not enunciated elsewhere fall in its ambit. Second, the
enumeration offundamental rightsby Part !II of the Constitution operates
as a restraint on the sovereign power vesting in the legislatures to enact
 law. Article 13 of the Constitution stipulates that the state shall not
                                                                                   H
586               SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     enact law which violates the freedoms guaranteed by the Chapter on
      fundamental rights. A law whether made before or after the advent of
      the Constitution is void to the extent of its inconsistency with Part XIII.
      Third, other constitutional limitations or restrictions may condition or
      contain the law making power including in the field of taxation. These
 B    constitutional provisions are a manifestation of the doctrine of
      constitutional limitations under which every organ of the state which is a
      creation of the Constitution operates in the field assigned to it.
             131. In the field of taxation, the containment of legislative powers
      vesting in the states may take place through provisions which are in the
 c    nature of: (i) abstraction; (ii) eclipse; and (iii) limitationsor restrictions.
      These categories, it must be noted are convenient reference points for
      understanding the source of constitutional restrictions. An illustration of
      an abstraction of legislative power is contained in Entry 54 of the State
      List which provides for taxes on the sale or purchase of goods other
      than newspapers, subject to the provisions of Entry 92(A) of the Union
 D    List. Entry 92(A) of the Union List was introduced by the Sixth
      amendment to the Constitution in 1956 to provide for taxes on the sale or
      purchase of goods other than newspapers, where such sale or purchase
      takes place in the course of inter-state trade or commerce. Under Entry
      54 of the State List as it originally stood, the states possessed an unfettered
 E    area for imposing taxes on the sale or purchase of goods other than
      newspapers. Arguably, this could extend to the exercise of taxing powers
      on inter-state trade on the strength of the explanation to Article 286. For
      the purposes of this judgment, it is not necessary to burden the record by
      refe1Ting to the judgment in The Bengal Immunity Company v The
      State of Bihar 5 ~. As a result of the sixth amendment, the ambit of Entry
 F
      54 is now expressly subject to the power of the Union under Entry 92(A)
      of List I.
             132. Article 286 stipulates that a state law shall not impose or
      authorize the imposition of a tax on the sale or purchase of goods, where
 G    the sale or purchase takes place outside the state or in the course of
      import or export from or outside the territory of India. Article 286(1)
      provides an express bar. Article 269(3) empowers Parliament by law to
      formulate principles for determining when a sale or purchase or
      consignment of goods takes place in the course of inter-state trade or
      ;2   (1953) I BLJR 48
 H
        JINDAL STAINLESS LTD. v. S"IATE OF HARYANA                              587
               [DR. D. Y. Cl-IANDRACHUD. J.]

commerce. Parliament, in exercise of its powers under Article 269(3)            A
enacted the Central Sales Tax Act 1956. Sections 14 and 15 of that Act
provide a list of goods of special importance, the manner of imposing
taxes and the restrictions on the power of imposing taxes.
        133. The second source of containment on the legislative powers
of the states in the area of taxation is A1ticle 253 of the Constitution        B
under which Parliament, notwithstanding anything contained in the earlier
provisions of Chapter I of Part XI is entrusted with the power to enact
legislation for the entire territory of India for implementing a treaty,
agreement or convention with one or more countries or to implement a
decision at an international conference association or other body. The          c
non-obstante provision of Article 253 operates in relation to A1ticles 245
to 252. Hence, the legislative powers of the states including in the area
of taxation may be ioclipsed where Parliament has enacted a law to
effe<.:tuate India ·s international obligations in pursuance of Article 253.
        134. The third source of constitutional containment on the kgislative   D
power of a state is in the form oflimitations of which Clause 3 of Article
286 provides an illustration. Under Clause 3, Parliament provides the
restrictions and conditions in regard to ''the system of levy, rates and
other incidents of tax'' upon which a law enacted by a state providing
for a tax of the nature specified in sub-clause (a) and (b) is subject. Sub-
clause (a) deals with a tax on the sale or purchase of goods declared to        E
be of special importance in inter-state trade or commerce by a law
enacted by Parliament. Sub-clause (b) deals with a tax on the sale or
purchase of goods falling under sub-clauses ( b), ( c). and ( d) of Article
366(29A). Among other things, a tax on contracts for hire purchase and
involving transfer of the right to use goods is subject to the restrictions     F
and conditions which are provided by a law enacted by Parliament in
regard to the system of levy rates and other incidents of tax.
       135. The constitutional-,;ontainment of the legislative powers of
the states also originates in the provisions of Part XIII which enable
Parliament and the state legislatures to impose restrictions on inter-state     G
trade or commerce subject to defining parameters. Whether, and if so,
the extent to which taxes arc within the purview of Part XIII is bei112
dealt with separately below.


                                                                                H
588               SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A              H.3 Part XIII and taxation
             136. The basic submission on the part of the states is that freedom
      under Article 301 is not freedom from taxation. This submission has
      been adduced primarily on the foundation that the Indian Constitution
      contemplates the position of the states as constitutional units of a federal
B     structure, each of whom is sovereign within the fields allotted. Taxation,
      it has been urged is a manifestation of sovereign power which is
      foundational to the existence of government. Tax revenues are required
      for welfare and developmental activities. Hence, it has been submitted
      that these are st·ong reasons for not construing the freedom under Article
 c    301 as freedom from taxation.
              137. The next limb of the submission is that under Article 265,
      taxes can only be imposed under a law enacted by the competent
      legislature and the executive has no role to play in the levy and collection
      of tax, except under delegated legislative power. Under various A11icles
D     of Part Xll [for instance Articles 276(2), 286(1) and 288(2)] the
      Constitution provides for limitations on the taxing powers of the states or
      powers are conferred upon Parliament to provide for limitations by law
      (Clauses 2 and 3 of Article 286). There are atleast five entries in the
      State List of the C:cventh Schedule (Entries 50, 51, 54, 55 and 57) which
      are specifically subject to limitations or principles presc1ibed by Parliament
 E    by a law made under List 1 and List Ill. In other words, it has been
      urged that wherever an exemption from taxes or a limitation on states'
      taxing powers is contemplated by the Constitution, this has been expressly
      provided under Articles 285, 287, 288 and 289. Consequently, it has been
      urged that exemption from the taxing power cannot be a matter of
 F    inference or implication and must be provided expressly and
      unambiguously. Moreover, under A1ticle 289(2), a trade or business carried
      on by or on behalf of the government of a state can be subjected to tax
      "to such extent" as Parliament may by law provide.
             Based on this and the judgment of a nine Judge Bench of this
 G    Court in NDMC v. State of Punjab 53 , it has been urged that in a situation
      where the Constitution subjects even the trade or business of a state to
      tax, an exemption in favour of trade, commerce and intercourse carried


      s1   (1997) 7 sec 339
 H
       JINDAL STAlNLESS LTD. v. STATE or HARYANA                               589
              [DR. D. Y. CHANDRACHUD, J.]

on by private individuals cannot be contemplated particularly by               A
implication.
       138. While evaluating this submission, it would at the outset be
necessary to notice that there are two extreme positions which lie at
opposing ends of the spectrum. The first is the position adopted by Justice
JC Shah in Atiabari that all taxation falls within the ambit and purview       B
of Part Xlll. This submission postulates that every tax constitutes a
restraint on the freedom of trade, commerce and intercourse. The
opposing end of the spectrum is that taxes per se can never be a restraint
on free trade since it is through the raising of revenues that a state
provides ordered conditions for the safe, secure and efficient means for       c
transacting trade and commerce. In this view, only a discriminatory tax
would run afoul of Part Xlll [being violative of Article 304(a)] and, so
long as a tax is non-discriminatory, it cannot be contrary to the provisions
of Pa1tXlll. This position would broadly cotrespond to the view espoused
by Chief Justice Sinha. The middle ground which was sought to be
advanced in the decision in Automobile Transport was that                      D
compensatory taxes would lie outside Part XIII since they facilitate rather
than restrict trade. Taxes which are not compensatory and which in
their direct and immediate effect restrict trade would be subject to the
rigours of A1ticle 304(b) of the Constitution.
       H.3.1 All taxes are not impediments                                     E

       139. While evaluating the merits of the rival viewpoints, it cannot
be gainsaid that an orderly society is a condition precedent for an
environment in which trade, commerce and intercourse can flourish.
Trade and commerce survive and flourish on the foundation of the rule
of law. The sanctity of contracts must be recognized, protected and            f'
enforced through a legal system which creates rights and provides
remedies for redressal. Again, the free movement of goods, services,
persons and capital requires the existence of public order and conditions
which allow for trade and commerce to take place unhindered. Neither
trade nor commerce can flourish amidst violence, unrest and social             G
disorder. Taxes provide revenue forthe state to sustain manifold activities
which are geared to providing conditions of social order. The state
provides infrastructure both tangible and intangible. Tax revenues form
an essential part of the requirements necessary f01: states to govern.
                                                                               H
590              SUPREME COURT REPORTS                         [:?.016J JO S.C.R.


A      Taxes are required by Article 265 to be imposed by a lg}cv enacted by
       Parliament or the state legislatures. Without the power to raise revenues,
       the ability of the state to create conditions requisite for trade and
       commerce to exist would be denuded. Hence. as a matter of first principle
       it cannot be postulated that taxation in whatever form is a burden on
 B     trade, commerce and intercourse and that every tax necessarily hinders
       trade. Such a wide construction cannot be accepted simply because by
       raising revenues through the means of taxation, the state provides a
       political and legal order based on the rule of law where contractual
       transactions can be executed effectively. The extreme position that every
       law which imposes a tax is to be regarded as a hindrance to trade.
c      commerce and intercourse is unsustainable.
              140. In the context of the relationship between the freedom
       guaranteed by Part Ill of the Constitution and the taxing power, it has
       been the consistent position of this Court that fundamental rights
       [particularly, the freedom of trade and business under Article 19( 1)(g)]
 D     do not confer an immunity from taxation. In Indian Express
       Newspapers v. Union of India 54 , this Court held that the rights
       guaranteed by Article 19( l )(a) and Article 19( I)(glare subject to clauses
       (2) and (6) and the newspaper industry has not been granted an exemption
       from taxation in express terms. On the other hand, Entry 92 of the
 E     Union List of the Seventh Schedule empowers Parliament to make laws
       for levying taxes on sale or purchase of newspapers and on
       advettisements published therein. The police power, taxation and eminent
       domain were held to be a form of social control essential for peace and
       good governance. Newspapers were held not to be free from the
       requirement of bearing a common fiscal burden, like others:
 F
             ·'43 .... Their newspapers have to be transported by roads,
             railways and air services. Arrangements for security of their
             property have to be made. The Government has to provide
             many other services to them. All these result in a big drain
             on the financial resources of the State as many of these
 G
             services are heavily subsidized. Naturally such big
             newspaper organizations have to contribute their due share
             to the pub! ic exchequer. They have to bear the common
             fiscal burden like all others."              (Id. at p. 671)
       "{1985J 1 sec 641
 1-1
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                              591
               [DR. D. Y. CHANDRACHUD, J.]

       This Court held that in the case of an ordinary taxing statute, a       A
law may be questioned ifit is openly confiscatory or a colourable device
to confiscate. On the other hand, in the case of a tax on newsprint, it
would be sufficient to show a "distinct and noticeable burdensomeness,
clearly and directly attributable to the tax". While therefore holding that
it was <ejecting the submission that no tax could be levied on the
                                                                               B
newspaper industry, this Court held that any such levy was subject to
judicial review under the provisions of the Constitution.
       141. In Government of Tamil Nadu v. Ahobila Matam 55 , this
Court held that the imposition of an assessment on lands held by a religious
denominational institution would not attract the right guaranteed by Article   c
26 of the Constitution. Jn All Bihar Christian Schools' Association
v. State ofBihar"', this Court held that an unaided minority institution is
not immune from the operation of the general laws of the land and cannot
claim an immunity, inter alia, from measures of taxation. Apart from
these decisions, there are judgments of this Court holding that a taxing
statute is not per se a restriction on the freedom under Article 19( 1)(g).    D
In Federation of Hotel & Restaurant Association of India v. Union
of lndia 57 , this Court while laying down the above principle held that the
mere excessiveness of a tax or a diminution of profit earnings does not
per se without more constitute a violation ofrights under Article 19(1 )(g).
(See also in this context :Express Hotels (P) Ltd. v. State ofGujarat 58 ,     E
and Pankaj Jain Agencies v. Union of lndia 59).
       142. In Vrajlal Manila! & Co. v. State of M. PM', this Court held
that an increase in the rate of tax on a particular commodity cannot per
se be said to impede free trade and commerce in that commodity. The
Court reaffirmed the principle that in order to be a restriction or            F
impediment a legislative measure must directly or immediately impede
the free flow of trade, commerce and intercourse so as to fall within the
prohibition of Article 30 I. A tax may in certain cases directly and
immediately restrict or hamper the flow of trade. Whether the imposition
                                                                               G
,, (1987) 1 sec 38
 " (1988) 1 sec 266
 "(1989) 3 sec 634
 "(1989) 3 sec 677
 "(1994) s sec 198
 ''" (1986) Supp. 1 sec 201                                                    H
592            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     of a tax does so in each case has to be judged on its own facts and in its
      own setting of time and circumstance.


            H.3.2 Articles 302, 303 and 304
 B           143. Articles 302, 303 and 304 provide for restrictions on trade
      and commerce. The marginal note to each of the three articles specifically
      contemplates restrictions on or with regard to trade and commerce. The
      marginal note to Article 302 refers to the power of Parliament to impose
      restrictions on trade, commerce and intercourse. Under Article 302
      Parliament is empowered by law to impose restrictions in the public
 c    interest on the freedom of h·ade, commerce and intercourse between
      one state and another or within any part of the te1Titory of the India.
      Consequently, Parliamentary power under Article 302 to impose
      restrictions is not only confined to inter-state trade but extends to
      restrictions within any part of the tetTitory of India. However, Article
 D    303 imposes a limitation both on Parliament and the state legislatures.
      Under Article 303, neither Parliament nor the legislature of a state can
      enact a law giving or authoring the giving of a preference to one state
      over another or making or authorising the making of discrimination
      between one state and another, by virtue of any entry relating to trade
 E    and commerce in any of the lists in the Seventh Schedule. A11icle 303
      has a non-obstante provision which overrides Article 302. The non-
      obstante clause in Article 303 is evidently inapposite in relation to the
      legislature of a state because Article 302 does not apply to a state
      legislature in the first instance. Evidently the non-obstante provision can
      have meaning only in relation to Parliament because it has the effect of
 F    stipulating that the power of Parliament to impose restrictions in the
      public interest under Article 302 is subject to the principle of non-
      discrimination and non-grant of preferences to one state over another
      under Article 303.
           144. Be that it is may, the effect of the nonn which Article 303
 G  enunciates is that neither Parliament nor the legislature of a state can
  - grant preferences while enacting law to one state over another or make
    any discrimination. Article 303 concludes with the words "by virtue of
    any entry relating to trade and commerce in any of the lists in the Seventh
    Schedule." These words were held by Justice Subba Rao in Automobile
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            593
                  [DR. D. Y. CHANDRACHUD, J.]

Transport to have the widest import. The entries which specifically         A
refer to trade arid commerce in the Seventh Schedule are entries 41 and
42 of the Union List, entries 26 and 27 of the State List and Entry 33 of
the Concurrent list. Entries 41 and 42 of the Union List are as follows :


                                                                            B
      41. Trade and Commerce with foreign countries; import
      and export across customs frontiers; definition of customs
      frontiers ..... .
      42. Inter-State trade and Commerce.
Ent1y 26 of the State List is as follows :                                  c
      26. Trade and commerce within the State subject to the
      provisions of Entry 33 of List III.
      27. Production, supply and distribution of goods subject to
      the provisions of Entry 33 of List Ill.
                                                                            D
Entry 33 of the Concurrent list is as follows:
       33. Trade and commerce in and the production, supply and
       distribution of -
       (a) the products of any industry where the control of such
          industry by the Union is declared by Parliament by law            E
          to be expedient in the public interest, and imported goods
          of the same kind as such products;
       (b) foodstuffs, including edible oilseeds and oils;
       (c) cattle fodder, including oilcakes and other concentrates;        F
       (d) raw cotton, whether ginned or unginned, and cotton seed;
          and
       ( e) raw jute.

                                                                            G
        145. In Automobile Transport it was urged that the expression
"by virtue of the entries relating to trade and commerce in any of the
lists in the Seventh Schedule" are of wider import than the words "by
virtue of the said entries". Therefore, any law under Article 303 made
by virtue of any entry in any of the lists in the Seventh Schedule, if it
                                                                            H
594             SUPREME COURT REPORTS                             [2016] IO S.C.R.


A     relates to trade and commerce, would be covered by the exception.
      Accepting the submission, Justice Subba Raoheld as follows :


            "42 .... The words "any entry relating to trade and commerce
            in any of the Lists" are of the widest import and they yield
 B
            to a very liberal interpretation. The phraseology used
            suppo1is this interpretation. The reason of the exception
            also sustains it. There cannot be any distinction on principles,
            from the standpoint of the mischief sought to be averted,
            between a law made by virtue of an entry ex-facie referring
c           to trade and commerce and that made by virtue of any
            entry affecting trade and commerce. For instance, a law
            may be made by Parliament under entries relating to
            railways, highways, shipping etc. These entries do not
            expressly refer to trade and commerce, though they may
 D          directly affect trade a.nd commerce. If a law made under
            entJy 26 of List II giving preference or making discrimination
            among the states is objectionable, it should also be
            objectionable, if made by virtue of any other entry. I would,
            therefore, hold that any law made by Parliament by virtue
            of any entry imposing the said discrimination restrictions
 E          would be under the said article."           (Id. at p. 559- 560)


             146. Justice Hidayatullah who delivered a dissenting judgment for
      and on behalf ofhimself and Justices RajagopalaAyyangar and Mudholkar
 F    adopted a similar interpretation of the language ofArticle 303. The learned
      Judge held that in the Seventh Schedule there are many other entries
      aparc from entries 41 and 42 of List 1, entries 26 and 27 of List II and
      Entry 33 oflist III regulating inter-state trade. In that context, he observed
      that:

 G           "103 .... By the words of Article 303 'by virtue ofany entry
             relating to trade and commerce' is meant not the five Entries
             last named by us but others also, e.g., Entry 8 of List II,
             Entries 29, 30, 81 of List I, Entry 29, 15 of List III (to mention
             only a few from each List). Thus, is achieved one purpose
             which is paramount viz., that the exercise of the commerce
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              595
              [DR. D. Y. CHANDRACHUD, J.]

      powers, however derived is not to be exercised to create                A
      preferences and discrimination between one state and other
      State Legislature or both acting in union. No question of
      the content of the power or its source can arise in this
      context, because the prohibition is absolute. The article
      makes a great advance upon Section 297 of the Government
                                                                              B
      of India Act 1935. In the section, the inhibition was only
      against a Provincial Legislature or Government. Here the
      inhibition embraces not only these but is also against
      Parliament and the Central executive. The executive limb
      has been made powerless, because the source ofrestrictions
      must be 'law' and if a law cannot be made, executive action             c
      per se would be ineffective without more. Further, Section
      297 was concerned only with goods and their taxation
      differentially. The Article takes in its stride not only the
      passage of goods or their taxation but all other matters
       inherent in free trade, commerce and intercourse."                     D


       14 7. However, it has been urged that this interpretation would be
contrary to the position which has been adopted since the judgment in
MPV Sundararamier v. State of Andhra Pradesh 61 : In support, it has
been submitted that the taxing entries in the lists of the Seventh Schedule   E
are indicated separately from non-taxing entries. Hence, it is urged, the
words of Article 303 cannot be interpreted to include taxing entries. This
submission cannot be accepted as a matter of first principle. What the
judgment in MPV Sundararamier lays down is that in the lists of the
Seventh Schedule, the subjects of taxation are dealt with under distinct      F
heads. Hence, the subject of a tax cannot be traced to a non-taxing
entry. It was held that :


       "51. In List I, Entries I to 81 mention the several matters
       over which Parliament has authority to legislate. Entries 82           G
       to 92 enumerate the taxes which could be imposed by a
       law of Parliament. An examination of these two groups of

" AIR (I 950) SC 468
                                                                              H
596             SUPREME COURT REPORTS                              [2016] l 0 S.C.R.



A            Entries shows that while the main subject of legislation
             figures in the first group, a tax in relation thereto is separately
             mentioned in the second ..... Construing Entry 42 in the light
             of the above scheme, it is difficult to resist the conclusion
             that the power of Parliament to legislate on inter-State trade
             and commerce under Ently 42 does not include a power to
 B
             impose a tax 011 sales in the course of such trade and
             commerce."


              148. This principle would have no bearing on the interpretation of
 c    the words in Article 303 which restrain Parliament and the state
      legislatures from granting preferences to one state over another and
      from discriminating between one state and another "by virtue of any
      entry relating to trade and commerce" in any of the lists in the Seventh
      Schedule. These words namely "entry relating to trade and commerce''
 D    are of the widest import. The expression "relating to"' has a well-known
      connotation in law extending its ambit to all 111atters which are reasonably
      proximate or connected to the subject. While the constitution mandates
      the principle ofnon-<liscrimination between one state over another and
      the non-grant of preferences under Attic le 303, there is 110 basis to confine
      those words merely to the entries noted earlier (entries 41 and 42 of List
 E    I, entries 26 and 27 of List II and entry 33 of List Ill).
              149. To recapitulate, the submission that the scope ofArticle 303
      is restricted only to the four entries noted above cannot conummd itself
      for acceptance of the following reasons :
 F          (i) the key expressions in Article 303 are ·'shall have the power
      to make any law" 111aki11g any discrimination between one state and
      another and "by virtue of any entry relating to trade and commerce";
             (ii) the expression ''power to make any law'' would on its plain
      and literal meaning include tax laws. There is no justification to read this
 G    as "any law other than a tax legislation;
             (iii) the expression "any entry relating to trade and commerce has
      a comprehensive significance, meaning something that is associated with
      or having a nexus to. The words ·any entry relating to trade and
      commerce· are words of amp! itude and cannot be construed in a
 H    restrictive sense.
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                          597
              [DR. D. Y. CHANDRACHUD, J.]

       150. In State of Madras v. N K Nataraja Mudaliar 6 \ a A
Constitution Bench of this Court, while construing the provisions of the
Central Sales Tax Act, 1956 dealt with the submission that entries relating
to trade and commerce in the legislative lists, within the meaning of
A11icle 303 would not include entries with respect to the levy of a tax on
trade and commerce. It was also urged that the words in A11icle 303
                                                                            B
must be confined to entries 41 and 42 of List I, entries 26 and 27 of List
11 and ent1y 33 of List Ill. This issue was however kept open by the
Constitution Bench, as is evident from the following extracts :
      "12. It was contended on behalf of the State that the power
      under Article 303 could only be exercised so as to restrict          c
      the authority of the Parliament which arises by vi11ue of an
      entry relating to trade and commerce in the legislative lists
      and it was urged that an entry with respect to the levy of
      tax on trade and commerce and is not an entry relating to
      trade and commerce and therefore there is no prohibition
      against the Parliament exercising power or authorising the           D
      giving of any preference to one State over another or making
      or authorising the making of any discrimination between on
       State and another by exercise of taxing power. Reliance in
       support of that contention was placed upon the judgment in
       Sundararamier and Company v. State of Andhra Pradesh                E
      MANU/SC/0151/1958: [1958] 1 SCR 1422 in which
      Venkatarama Aiyar, J., pointed out that under the scheme
       of entries in List I & II of the Seventh Schedule, the power
      of taxation exercisable in respect of any matter is a power
       distinct from the power to legislate in respect of that matter.
                                                                           F
       It was also urged that the expression "an entry relating to
       trade and commerce in any of the Lists in the Seventh
       Schedule i.e. entries 41 & 42 of List I, entries 26 & 27 of
       List Ill and entry 33 of List Ill in the Seventh Schedule,
       and extended to no others. On the other hand, it was
       contended that all legislative entries which directly affect        G
       trade and commerce are also within the expression "entry
       relating to trade and commerce ......

"(1968) 3 SCR 829

                                                                           H
598             SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A           13. We need to express no opinion on the two questions
            argued before us. The question whether entries relating to
            trade and commerce in the Lists in the Seventh Schedule
            are restricted to entries 41 & 42 of List I, entries 26 & 27
            of List II and entry 33 of List III, or relate to all general
            entries which affect trade and commerce, is academic in
 B
            the present case. Nor do we think it necessary to decide
            whether for the purpose of Article 303 entries relating to
            tax on sale or purchase of goods i.e, entry 92A of List I,
            and entry 54 of List II are entries relating to trade and
            commerce, for, in our opinion, an Act which is merely
 c          enacted for the purpose of imposing tax which is to be
            collected and to be retained by the State does not amount
            to law giving, or authorising the giving of any preference to
            one State over another, or making, or authorising the making
            of, any discrimination between one State and another, merely
 D          because of varying rates of tax prevail in different States."


             151. In a subsequent judgment of a Constitution Bench in State
      of Tamil Nadu v. Sitolakshmi Mills 63 , the assesse had claimed before
      the Madras High Court that it was not liable to be taxed at the higher
 E    rate under Section 8(2)(b) of the Central Sales Tax Act, 1956 on the
      turnover of sales in the course of inter-state trade to government or to
      unregistered dealers even though they had not obtained the C and D
      fonns because Section 2(B) violates Articles 301 and 303(1) of the
      Constitution. The High Court accepted those claims. In appeal, the
 F    Constitution Bench observed:


             "8 .... Nonnally, a tax on sale of goods does not directly
             interfere with the free flow or movement of trade. But a
             tax can be such that because of its rate or other features, it
 G
             might operate to impede the free movement of goods. The
             majority judgment delivered by Shah, J., in State of
             Madras v. N. K. Nataraja Mudaliar proceeds on the basis


      " (1974 J 4 sec 408
 H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                         599
        [DR. D. Y. CHANDRACHUD, J.]

that tax under the Central Sales Tax Act is in its essence a       A
tax which encumbers movement of trade and commerce,
but the tax imposed in the case in question was saved by
the other provisions of Part XIII. The Court then said that
the.exercise of the power to tax would nonnally be presumed
to be in the public interest and as Parliament is competent        B
under Article 302 to impose restrictions on the freedom of
trade, commerce and intercourse between one State and
another or within any part of the territory oflndia as may
be required in the public interest, the tax was saved ....

9. Bachawat, J., in his judgment in the case said that if a        c
tax on intra-State sales does not offend Article 301, logically,
a tax on inter-State sales also cannot do so, that a tax does
not operate directly or immediately on the free flow of trade
or the free movement or transport of goods from one part
of the country to the other, that the tax is on the sale, and
                                                                   D
that the movement is incidental and a consequence of the
sale. He observed further that even assuming that the
Central Sales Tax is within the mischief of Article 301, it is
certainly a law made by Parliament in the public interest
and is saved by Article 302 ..... .
                                                                   E
10. As already stated, Section 8(2)(b) deals with sale of
goods other than declared goods and it is confined to inter-
State sale of goods to persons other than registered dealers
or governments. The rate of tax prescribed is 10 per cent
or the rate of tax imposed on sale or purchase of goods
inside the appropriate State, whichever is higher. The report       F
of the Taxation Inquiry Committee would indicate that the
main reason for enacting the provision was to canalize inter-
State trade through registered dealers, over whom the
appropriate government has a great deal of control and thus
to prevent evasion of tax:                                         G
"Where transactions take place between registered dealers
in one State and unregistered dealers or consumers in
another, this low rate of levy will not be suitable, as it is

                                                                   H
600            SUPREME COURT REPORTS                          [2016] IO S.C.R.



A           likely to encourage avoidance of tax on more or less the
            same scale as the present provisions of Article 286 have
            done. If this is to be prevented, it is necessary that
            transactions of this type should be taxable at the same rates
            which exporting States impose on similar transactions within
            their own territories. The unregistered dealers and
 B
            consumers in the importing State will then find themselves
            be unable to secure any advantage over the consumers of
            locally purchased aiiicles, nor of course will they, under
            this system, be able to escape the taxation altogether, as
            many of them do at present." [See Report of the Taxation
 c          Enquiry Commission, 1953-54, Vol. 3, p. 57] .......
            In other words, it was to discourage inter-State sale to un-
            registered dealers that Parliament provided a high rate of
            tax, namely I 0 per cent. But even that might not serve the
            purpose if the rate applicable to intra-State sales of such
 D          goods was more than I 0 per cent. The rate of I 0 per cent
            would then be favourable and they would be at an advantage
            compared to local consumers. It is because of this that
            Parliament provided, as a matter oflegislative policy that
            the rate of tax shall be I 0 per cent or the rate applicable to
 E          intra-State sales whichever is higher. ....
            11.lf prevention of evasion of tax is a measure in the public
            interest, there can be no doubt that Parliament is competent
            to make a provision for that purpose under Article 302, even
            if the p,rovision would impose restrictions on the inter-State
 F          trade or commerce."                         (Id. at 413-414)
             The statutory provision was consequently upheld on the ground
      that as a measure for preventing the evasion of tax in the public interest,
      Parliament was competent to enact it under Article 302 even if it restricted
      inter-state trade and commerce.
 G

             H.3.3 Construing Article 304
            152. The area which assumes a great deal of importance in the
      present case is whether it would be correct to postulate that taxes, save
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                      601
               [DR. D. Y. CHANDRACHUD, J.]

and except for discriminatory taxes under Article 304( a) would lie outside            A
the pale and purview of Part Xlll. lfthis submission was to be accepted,
the necessary consequence would be that only a discriminatory tax of
the nature contemplated by Article 304(a) would offend the guarantee
of freedom under A1iicle 301. A non-discriminatory tax would lie outside
the purview of Part Xlll. Once a tax meets the parameters of A1iicle
                                                                                       B
304(a), it would not breach the freedom of trade and commerce. Clauses
a and b of Article 304 would- in the line of argument have to be treated
in a disjunctive manner and a tax which is consistent with Clause (a)
would not need to meet the requirements of Clause (b ).
       153. Justice G P Singh in his seminal treatise, 'Principles of                  C
Statutory interpretation ' 04 states that marginal notes to constitutional
provisions are, as a matter of interpretation, treated as being a part of
the Constitution and as providing some guidance as to the meaning of a
provision:

                                                                                       D
       "Marginal notes appended to Articles of the Constitution
       have been held to constitute pait of the Constitution as passed
       by the Constituent Assembly and therefore they have been
       made use of in construing the A1ticles, e.g. A1ticle 286, as
       furnishing 'prima facie', 'some clue as to the meaning and                      E
       purpose of the A1ticle'."


       While Article 301 stipulates that trade, commerce and intercourse
throughout the territory of India shall be free, this guarantee is made
subject to the other provisions of Part Xlll. Part Xlll has employed                   F
both the expressions "subject to" on the one hand and "notwithstanding
anything" on the other. The expression "subject to" has a well-known
legal connotation which conveys the idea of a provision yielding place to
another provision or to other provisions to which it is made subject. This
principle has been enunciated in the judgment of this Court in South                   G
Indian Corporation (P) Ltd. v Board of Revenue 65 .
"14•" Edition, page 190- in foot note 91. Bengal Immunity Co.Ltd.v. State of Bihar,
    AIR 1955 SC 661, p.676: (1955) 2 SCR 603. See also Golaknath v. State of Punjab,
    AIR 1967 SC 1643, p. 1658: 1967 (2) SCR 762, where marginal note to Article 368
    was refen-ed.
,,, (1964) 4 SCR 280                                                                   H
602               SUPREME COURT REPORTS                             [2016) 10 S.C.R.



A            154. In State of Bombay v. The United Motors (India) Ltd 66 ,
      Chief Justice Patanjali Sastri, speaking for a Constitution Bench spoke
      of the subordination of the freedom under Article 301 to the powers of
      the states to levy non-discriminatory taxes. The learned Judge held :


 B
               "11 ... .It will be seen that the principle of freedom ofinter-
               State trade and commerce declared in Article 301 is
               expressly subordinated to the State power of taxing goods
               imported from sister States, provided only no discrimination
               is made in favour of similar goods oflocal origin. Thus the
 c             states in India have full power ofimposing what in American
               State Legislation is called the use tax, gross receipts tax,
               etc. not to speak of the familiar property tax, subject only
               to the condition that such tax is imposed on all goods of the
               same kind produced or manufactured in the taxing State,
 D             although such taxation is undoubtedly calculated to fetter
               inter-State trade and commerce. In other words, the
               commercial unity oflndia is made to give way before the
               State-power of imposing "any" non-discriminatory tax on
               goods imported from sister Sates."               (Id. at p. I 081)

 E
             155. Article 304 begins with a non-obstante provision which takes
      effect notwithstanding what is contained in Articles 301 or 303. A non-
      obstante provision of this nature has a distinctive meaning. In
      Chandavarkar Sita Ratna Rao v. Ashalata S. Guram6 7, this Court
 F    held that:


               "68 .. .It is well settled that the expression 'notwithstanding'
               is in contradistinction to the phrase 'subject to', the latter
               conveying the idea of a provision yielding place to another
 G             provision or other provisions to which it is made subject."
                                                                  (Id. at p. 478)

      "(1953) 4 SCR 1069

      07   (1986) 4 sec 447
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                              603
               [DR. D. Y. CHANDRACHUD, J.]

        In South India Corporation v. Board of Revenue 68 , while              A
interpreting Articles 372 and 278 of the Constitution, this Court emphasised
that the phrase "notwithstanding anything in the Constitution" is equivalent
to stating 'inspite of the other articles of the Constitution' or that the
other articles shall not to be an impediment to the operation of that
particular article.
                                                                               B
       156. The use of the non-obstante clause in Article 304 in its
application to Article 301 has been debated. That is because while Article
301 makes the guarantee of freedom of trade and commerce subject to
the other provisions of Part Xlll, Article 304 commences with a non-
obstante provision which operates notwithstanding what is contained in c
Article 301. A reasonable construction or meaning would have to be
attributed to these two provisions. So construed, Article 304, in its non-
obstante provision, must mean that it would permit what is contemplated
by Clauses (a) and (b) even though it would otherwise be within the
ambit of the freedom guaranteed by Article 301. Similarly, in its application
to Article 303, the non-obstante clause in Article 304 indiCates that despite D
the prohibition that is contained in Article 303, the state legislature is
empowered to do something of the nature that falls within the ambit of
the provision. The non-obstante provision of Article 304 governs both
Clauses (a) and (b) that follow. By virtue of Clause (a), the legislature of
a State can, despite the provisions of Article 301, impose a non- E
discriminatory tax. The power to impose a tax, it must be noted, is not
conferred by Clause (a) of Article 304 but is a power which is traceable
to the legislative power of the states under Articles 245 and 246 of the
Constitution read with the legislative entries in the State List. Article
304(a) is a clear indication that though a tax may constitute a restriction
                                                                              F
 within the meaning of Article 30 I, the imposition of a non-discriminatory
tax is pennissible to the state legislature. Article 304(a) lifts an embargo
that would otherwise have existed but for the non-obstante provision.
Article 304(a), however, mandates that a tax which is being imposed on
goods imported from other States or Union territories must be a tax to
 which similar goods manufactured or produced in that state are subject. G
 Moreover, the tax shall not discriminate between goods that are imported
 and goods so manufactured and produced.

" (1964) 4 SCR 280
                                                                               H
604             SUPREME COURT REPORTS                             [2016] 10 S.C.R.



A            H.3.4 Conjunctive or disjunctive: 'may'; 'and'


              157. Clauses (a) and (b) of Article 304 are separated by the use
      of the expression "and". The issue is whether the expression "and" is to
      be construed as conjunctive or disjunctive. Clause (b) contemplates
 B
      reasonable restrictions being imposed under a law enacted by the state
      legislature on the freedom of trade, commerce and intercourse with or
      within that state as are required in the public interest. The proviso operates
      only in relation to clause (b) and not clause (a). It stipulates that no bill or
      amendment for the purposes of clause (b) shall be introduced or moved
 c    in the legislature of a state without the previous sanction of the President.
      The mandate of the proviso can however be cured under Article 255
      which provides as follows :


             "Article 255 : No Act of Parliament or of the Legislature of
 D
             a State and no provision in any such Act, shall be invalid by
             reason only that some recommendation or previous sanction
             required by this Constitution was not given, if assent to that
             Act was given-
             (a) where the recommendation required was that of the Governor,
 E
                either by the Governor or by the President;
             (b) where the recommendation or previous sanction required was
                that of the President, by the President."


 F
             Hence even though the previous sanction which is required under
      the proviso to Article 304(b) before the introduction of a bill has not been
      obtained, this deficiency can be cured if assent to the Act passed by a
      legislature is given by the President.
             158. Article 304 provides that the legislature of a state may by
 G
      law (a) impose a non-discriminatory tax as provided in clause (a); and
      (b) impose reasonable restrictions on the freedom .of trade, commerce
      or intercourse. The expression 'may' in the prefatory part of Article
      304 has to be read together with the expression 'and' which separates
      clause~ (a) and (b). The use of the expression 'may' is indicative of the
 H
             JINDAL STAINLESS LTD. v. STATE OF HARYANA                         605
                    [DR. D. Y. CHANDRACHUD, J.]

intent that the legislature of a state is not bound to levy an impost on       A
goods imported from other states ( thot.gh if it does so, the tax has to be
non-discriminatory). Similarly, the state legislature has an enabling power
to impose restrictions under clause (b). The legislature ·may' do so. It
has the discretion whether to impose a tax or to impose a restriction and
is not bound to do so.
                                                                               B
       159. The word 'and' is normally used in the conjunctive sense (G
P Singh 011 Interpretation of Statutes 00 ). However, this is not always the
case. Coupled with the use of the expression 'may, the expression ·and'
in Article 304 should be construed to mean and/or. In other words, the
legislature of a state may take recourse to both clauses (a) and (b) of        C
Article 304 or either of them.
       160. The nuances of statutory interpretation when the expressions
'may' and 'and' are used together, have been succinctly summarised in
"Statutory Interpretation" by Ruth Sullivan. The statement of legal
position is thus:                                                              D
            "2) ''And" and "Or"
            a) Joint or Joint and Several "'and"
            Both "and'' and "or" are inherently ambiguous. "And" is
            always conjunctive in the sense that it always signals the
                                                                               E
            cumulation of the possibilities listed before and after the
            "and". However, ''and" is ambiguous in that it may be joint
            or joint and several. In the case of a joint ''and", every
            listed possibility must be included: both (a) and (b); all of
            (a), (b), and (c). In the case of a joint and several "and", all
            the possibilities may be, but need not be, included: (a) or (b)    F
            or both; (a) or (b) or (c), or any two, or all three. In other
            words, the joint and several "and'' is equivalent to "and/
            or" .....
            Which meaning is appropriate depends on the context. When
            "and" is used before ihe final item in a list of powers, for       G
            example, it is joint and s.:1 era!:
            To carry out the purposes of this Act, the Governor in Council
    9
"       ld. at p. 530
                                                                               H
606             SUPREME COURT REPORTS                         (2016] 10 S.C.R.



A           may make regulations respecting
                (a) the conditions on which licences may be issued;
                (b) the infonnation and fees that fireann vendors may
                be required to furnish; and
 B              ( c) the annual fees that firearm owners may be
                charged ...... .
            In this provision the Governor in Council is empowered to
            make regulations on any one or more of the listed subjects.
            However, notice what happens if "may" is replaced by
 c          "shall". If the Governor in Council is obliged to make
            regulations respecting (a) conditions (b) information and
            (c) fees, the joint and several "and" becomes joint".


            In the context of Article 304(a) the use of the expression 'may' in
 D the prefatory part together with 'and' which separates clauses (a) and
      (b) indicates that the true meaning and intent is conveyed by the joint
      and several and/or. The state legislature may impose a tax falling under
      clause (a) as well as a reasonable restriction falling under clause (b).
      Alternately it may impose one of them. These being enabling provisions,
 E    the legislature may not take recourse to either. However, when it imposes
      a tax and/or a restriction, the state legislature has to abide by the
      conditions of clauses (a) and (b) respectively.


            H.3.S Article 304(a) not the universe of taxation
 F
              161. The submission of the states is that Article 304(a) is the only
      provision which deals expressly with a tax measure and that clause (b)
      can never be construed to cover the imposition of a tax. This submission
      has been founded on more than one rationale. First, it has been submitted
 G    that when Article 304 uses separate expressions, taxes and restrictions,
      there is no reason or justification to bring taxes within the ambit of
      restrictions. Second, it has been submitted that clause (b) of Article
      304(a) contemplates the imposition of a reasonable restriction in the
      public interest. Taxation, it has been urged is presumed to be in the
      public interest. Third, it has been submitted that in the context of Article
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                607
              [DR. D. Y. CHANDRACHUD. J.]

19, judgments of this Court which have held that the guarantee under            A
Article 19( l )(g) does not confer an immunity from taxation.
        162. A discriminatory tax is prohibited by Artie le 304(a). There is
intrinsic material in the constitutional text to indicate that Article 304(a)
does not exhaust the universe of taxation for the purposes of Part Xlll.
First, Article 304(a) provides that the legislature of a state may by law       B
impose on goods imported from other states or union territories any tax
to which similar goods manufactured or produced in that state are subject.
The ambit of clause (a) is a tax on goods, the origin of the goods being a
state other than the state which is imposing the tax. Article 30 I (over
vvhich the non-obstante clause contained in Article 304 operates) has a         c
geographical coverage which extends throughout the territory of India.
Article 3 0 I guarantees the freedom of trade and commerce not only
across state boundaries but equally freedom within any part of the territory
of India. If the freedom of trade and commerce is restricted by a
discriminatory tax-as Article 304(a) postulates is the case-the imposition
of a discriminatory tax on internal movement within a state must by the         D
same logic breach the freedom guaranteed by Article 301. Since Article
 304(a) covers only a tax on goods imported from other states, a
discriminatory tax on goods which do not traverse state boundaries would
 not fall within the ~mbit of Article 304(a). Yet it would offend Article
 30 l. A state may conceivably have a justification in the public interest in   E
 doing so or for imposing such a tax and if it were to do so, it must meet
 the requirements of Article 304(b). If Article 304 (b) were to be construed
 to not include taxes, such a course of action would be barred, however
 legitimate be the state interest.
        163. There is a second reason why the language and scheme of            F
Part XIll must lead to the conclusion that it is not only discriminatory
taxes of the nature contemplated by Article 304(a) which fall within the
ambit of the Part. Article 304(a) only covers a tax on goods (goods
imported from other states as seen above). A tax imposed by the state
legislature otherwise than on goods, does not fall within the ambit of          G
Article 304(a). The taxing entries of List ll of the Seventh Schedule
include various taxes that fall within the legislative competence of the
state legislatures other than a tax on goods. Among the -taxing entries of
List II (entries 46 to 62) are several which deal with aspects of taxation
of goods. They include Entry 51 (providing for duties of excise on (i)
                                                                                I-I
608              SUPREME COURT REPORTS                            [2016J 10 S.C.R.



A      alcoholic liquors for human consumption: and (ii) opium. hemp and oth.:r
       narcotics drugs and narcotic manufactured and prndueed in the state
       and countervailing duties on similar goods manufactun:d or produced
       elsewhere in India): Entry 52 (taxes on the entry of goods into a local
       area for consumption, use or sale); Entry 53 (taxes on the consumption
       and sale of electricity); Entry 54 (taxes on the sale or purchase of goods
 B
       other than newspapers subject to Entry 92A of List I); Entry 56 (taxes
       on goods carried by road or on inland waterways); Entry 57 (taxes on
       vehicles, whether mechanically propelled or not, suitable for use on
       roads subject to Entry 35 of List Ill) and Entry 58 (taxes on boats).
       Entries which deal with taxes other than on goods arc Entry 56 (taxes
 c     inter alia on passengers carried by road or on inland waterways): Entry
       59 (tolls): Entry 60 (tax on profe;,sions, trades, callings and employments):
       Entry 61 (capitation taxes) and Entry 62 (taxes on luxuries. including:
       taxes on entertainments. arnu~:ernents, betting and gambling). Artide
       304(a) applies only to taxes on goods. A tax which is not on goods or on
 D     aspects bearing on goods is not governed by Article 304(a). A
       discriminatory tax which is not on goods is not within the prohibition of
       that article. For instance, a discriminatory tax on luxuries. entertainments,
       amusements, betting and gambling will not be governed by Article 304(a).
       Similarly, Article 304(a) will not apply to a tax on passengers carried on
       roads or inland wakrways under Entry 56. Since the ambit of Article
 E
       304(a) is a non-discriminatory tax on goods imported from other states,
       it is evident that !his provision is not exhaustive even of those discriminatory
       taxes which will olfend Article 301. There are taxes which fall within
       the legislative competence of the states, other than on goods, which are
       outside the purview of Article 304(a). lfthose taxes impede the freedom
 F     of trade, commerce and intercourse they would infringe Article 30 I
       though they do not fall within Article 304(a).
               164. Third, Article 302 has been held to enable Parliament to
       impose Central Sales 'fox (Sitolakshmi Mills) (supra). The expression
       "restrictions'' in Article 302 has been construed not to exclude a restriction
 G     by way of a taxing measure. If the expression ·restriction' for the
       purposes ofA1ticle 302 does not exclude a legislative measure by way
       of a fiscal imposition, it cannot evidently be excluded from the ambit of
       the phrase 'restrictions· in Article 304.


 1-1
        JINDAL STAINLESS LT'D. v. S"TATE OF HARYANA                              609
               [DR. D. Y. CHANDRACHUD, J.]

       165. Fourth, this condusion is buttressed by the non-obstante             A
provision contained in Article 304. The plain meaning of the non-obstante
provision is that state legislal.urc.; m.·.i cn~1ct legislation in exercise of
their law making authority u:1der Articles 245 and 246, of the nature
contemplated by clauses (a) and (b) of Article 304, despite the fact that
such a legislative measure \r<iuld otherwise fall within the ambit and
                                                                                 B
purview of Atticle 301. The non-obstante provision in Article 304(a)
refers to Article 30 I. Obviously, unless something falls within the ambit
of Article 30 I, there is no reason to incorporate the non-obstante clause
in Article 304(a). In other words, what Article 304(a) does is to indicate
that despite the fact that a legislative measure falls under Article 30 I, it
is permissible if it adheres to Article 304. Despite Article 30 I, it is         c
permissible in view of Article 304(a). Artide 304(a) lifts the embargo.
        166. The use of the dause ofsubjection in Artick 30 l and the
non-obstante provision in Article 304 liavl: been criticised as a case of
inartistic draftsmanship. A clause which makes a constitutional provision
or, for that matter, a statutory provision subject to another makes the          D
provision in which that clause is contained subordinate to the provision
to which it is subjected. On the other hand, a non-obstante provision
commencing with the word 'notwithstanding' is intended to indicate that
the text in which the provision is contained overrides another. The criticism
is that the expressions "subject to the other provisions of this Part'' in       E
Article 301 and "notwithstanding anything in Article 30 \ '' in Article 304(a)
are incongruous. For, the former expression subjects Article 30 I to the
other provisions of Part XIII [including Article 304(a)]. Hence, it was
unnecessary to use a non-obstante clause in Article 304(a).
       167. Having noticed this er;ticism, it is necessary to harmonise          F
the text of Article 301 with Article 304. The guarantee of freedom
under Article 30 I is subject to Part XIII. Attic le 304 enables a state
legislature in the exercise of its legislatiYe power (under Articles 245
and 246) to enact a law despite the fact that it may otherwise fall within
the ambit of Articles 30 I or 303. Article 303 contains the mandate that
                                                                                 G
neither Parliament nor the legislature of the state can grant preferences
to one state over another or discriminate between one state and another
by virtue of the entries relating to trade and commerce in the lists of the
Seventh Schedule. Article 303 postulates (in relation to Parliament) that

                                                                                 H
610             SUPREME COURT REPORTS                         (2016] 10 S.C.R.



A     the power conferred upon Parliament under Article 302 to impose
      restrictions on the freedom of trade, commerce or intercourse, in the
      public interest between one state and another or over any part of the
      territory of India cannot be exercised so as to grant preferences or to
      discriminate between one state and another. However, this embargo is
      lifted by clause (2) of Article 303 when Parliament is dealing with a
B
      situation of scarcity of goods in any part of the territory of India. In
      relation to the legislature of the state, Article 303(1) imposes the same
      mandate against the grant of preferences between states or the making
      of any discrimination. However, clause (2) ofArticle 303 does not apply
      to the state legislatures. Clause (1) of Article 303 is a restraint on
c     discriminating between one state over another or from granting
      preferences between them. In other words, the treatment which is
      extended to one state has to be extended to every other state. The grant
      of preferences or the making of discrimination is proscribed. Article
      303(1) is akin to a provision in international trade parlance conferring a
D     'most favoured nation' treatment. Under such an 'mfn 'clause, treatment
      extended to one nation state has to be extended to the other. Article
      303(1) embodies a similar principle inter se between the states so as to
      ensure a unifonnity of treatment between states when Parliament or the
      state legislatures enact a law in exercise of their law making power. A
      state legislature which enacts a law is required to confer a parity of
 E
      treatment to other states and is prevented from granting preferences to
      one state over another or from making discrimination between one state
      and another, by the operation of Article 303(1). Article 304(a), however,
      allows the legislature of a state to impose a tax on goods imported from
      other states or union territories so long as the tax is one which is imposed
 F    on similar goods manufactured or produced in that state. Article 304 (a)
      in other words has the effect of lifting an embargo which would arise
      under Article 30 I. The clause of subjection in Article 30 I and the non-
      obstante clause of A11icle 304 can hence be hannonised.
             168. Article 306 of the Constitution (prior to its repeal by the
 G    Constitution (Seventh Amendment) Act, 1956) dealt with the power of
      certain states in Part B of the First Schedule to impose restrictions on
      trade and commerce. Article 306 before its deletion provided as follows:
             "306. Notwithstanding anything in the foregoing provisions
             of this Part or in any other provisions of this Constitution,
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               611
              [DR. D. Y. CHANDRACHUD. J.]

      any State specified in Part B of the First Schedule which                A
      before the commencement of this Constitution was levying
      any tax or dutv on the import of goods into the State from
      other States or on the export of goods from the State to
      other States may, if an agreement in that behalf has been
      entered into between the Government of India and the
                                                                               B
      Government of that State, continue to levy and collect such
      tax or duty subject to the terms of such agreement and for
      such period not exceeding ten years as may be specified in
      the agreement :Provided that the President may at any time
      after the expiration of five years from such eomrneneernent
      terminate or modify any such agreement if, after                         c
      consideration of the report of the Finance Commission
      constituted under Article 280, he thinks it necessary to do
      so.. r

                                                                               D
       The above provision clearly envisages that taxes and duties which
were being levied on imports into and exports from Patt B states were
restrictions. Hence, a specific provision was incorporated, to provide
for their continuance for a stipulated period. That such taxes and duties
would otherwise have infringed Article 301 is evident from the non-
obstante provision permitting their continuance.                               E



       169. Article 306 as it was originally incorporated into the
Constitution provided a clear indicator that the founding fathers did not
intend to use the expression ·restrictions· in contradistinction to taxes or   F
duties on the import or export of goods between states.
       170. Article 304(a) elaborates that a particular form of taxation-.
a non-discriminatory tax on goods - shall not be construed to violate
Article 301. But Article 304(a) is not exhaustive of the universe of
taxation. Article 304(a) has three defining characteristics. The first is      G
that the tax is a tax on goods. The second is that it is a tax on goods
imported from other states. The third is the non-discrimination norm in
relation to similar goods produced or manufactured in the state. A tax.
which fails to meet the yardstick embodied in Atticle 304(a) will violate
Article 301. But Article 304(a) cannot be a basis for holding that every
                                                                               H
612             SUPREME COURT REPORTS                              (2016] 10 S.C.R.



A     fiscal measure (apait from a discriminatory tax) lies outside the purview
      of Part XIII. For one thing, the rate of tax is but one element of taxation.
      There are other elements in a fiscal exaction including assessment, the
      machinery for collection and set offs and exemptions which can have an
      important bearing on whether the tax operates in a manner that impedes
      the freedom of interstate trade and commerce. Moreover, as we have
 B
      noticed earlier, a discriminatory tax otherwise than on goods, does not
      attract the provisions of Article 304(a). Finally, a non-discriminatory tax
      may also become an impediment on the freedom of trade and commerce
      where the tax is so high as to render it confiscatory. Hence, a
      discriminatory fiscal imposition of the nature which offondsArticle 304(a)
 c    is illustrative of but not exhaustive of fiscal impediments on the freedom
      of trade and commerce.
               171. The Constituent Assembly, while adopting Article 304
      incorporated a marginal note which describes the ambit of the provision
      as : ;'restrictions on trade, commerce and intercourse amongst states".
 D    The marginal note is a broad indicator of constitutional intent. lt is a
      constitutional indicator of the position that a restriction on the freedom
      of trade and commerce can be fiscal or non-fiscal in origin. The marginal
      note evidently utilizes the expression ';restrictions" in relation to the entirety
      of the article. Though a marginal note cannot override constitutional
 E    text nor can it control the specific meaning of the words used in the text,
      it is a broad indicator or pointer to the meaning intended.
            l 72. For these reasons, it would be untenable to postulate as a
      general principle that it is only a discriminatory tax falling within the
      ambit of Article 304(a) that is subject to Part XIII of the Constitution.
 F

             I Tax legislation - Judicial review and Part XIII
             1.1 Taxation and Part XII
             173. In early decisions of this Court, the issue as to whether the
 G    legislative power to tax was subject to constitutional control independent
      of Article 265 was analysed. The initial view was that the power of
      taxation was subject to exclusively to Article 265 under which a tax can
      be imposed only with the authority of law. Consequently, a Constitution
      Bench of this Court in Ramjilal v. Income Tax Officer,
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              613
                   [DR. D. Y. CHANDRACHUD, J.]

Mohindargarh 70 , held that the protection against imposition and             A
collection of taxes save by authority of law directly comes from Article
265 and is not secured by clause (I) of Article 31:
      "l l ... If collection of taxes amounts to deprivation of
      property within the meaning of Article 31 (I), then there
      was no point in making a separate provision again as has                B
      been made in Article 265. It, therefore, follows that clause
      ( l) of Article 31 must be regarded as concerned with
      deprivation of property otherwise than by the imposition or
      collection of tax, for otherwise Article 265 becomes wholly
      redundant. In the United States of America, the power of                C
      taxation is regarded as distinct from the exercise of police
      power or eminent domain. Our Constitution evidently has
      also treated taxation as distinct from compulsory acquisition
      of prope1ty and has made independent provision giving
      protection against taxation save by authority of law.''
                                                                              D
       l 74. However, in Kunnathat Thathunni Moopil Nair v. The
State ofKerala 71 , Chief Justice Sinha speaking for a Constitution Bench
rejected the submission that Article 265 of the Constitution was "a
complete answer" to the validity of a state taxing law (The Travanc.ore-
Cochin Land Tax, 1955).The Constitution Bench held that Article 265
imposes a limitation by which a tax cannot be levied or collected by a        E
mere executive fiat. Under Article 265, a tax can be imposed only with
the authority oflaw which, it was held, must mean a valid law. For a law
to be valid, it must be enacted by a legislature which possesseslegislative
competence and the tax must accord with Article 13. Hence, the
Constitution Bench ruled that if the enactment imposing a tax violates         F
Article 14, it would have to be struck down since the guarantee of equal
protection of law must extend even to taxing statutes. Another
Constitution Bench in Balaji v. Income Tax Officer, Special
Investigation Officer 72 , rejected the submission that taxing legislation
was immune to a challenge on the ground ofa violation of Article 19. In
                                                                              G
Chhotabhai Jethabhai Patel & Co. v. Union ofindia 73 , a Constitution
 Bench ruled that the judgment in Ramjilal could not have meant that if
70(1951)2 SCR 127
11 1961 (3) SCR 77

" 1962 (2) SCR 983
1.1 (1962) Supp. (2) SCR I                                                    H
614             SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A     a law imposing a tax is outside the legislative competence of the legislature
      enacting it, it could be a law under which a person could be deprived of
      property under A11icle 31 or regarding which the Supreme Court could
      not be approached for relief under Article 32. The Constitution Bench
      held that it was also not possible to accept a more limited proposition
      that once a tax law is covered by an entry in the legislative lists and does
 B
      not contravene a direct prohibition such as Article 276(2) or Article 286,
      such a law is immune from a challenge under Part lll of the Constitution.
      A taxing legislation could be impugned on the ground of: (i) lack of
      legislative competence; (ii) violation of a prohibition under a specific
      article of the Constitution; or (iii) repugnancy to the fundamental rights
 c    guaranteed by Pai1 JJl.
             175. In Raja Jagannath Baksh Singh v. State of U. P. 74 ,the
      Constitution Bench held that though inRamjilal (supra) there were general
      observations which indicated that the fundamental rights guaranteed in
      Part 1Il could not be invoked in respect of a taxing statute, a consensus
 D    had emerged in subsequent decisions of this Court that a law imposing a
      tax could be challenged not only for want oflegislative competence but
      also on the ground of its violating the freedoms contained in Part Ill.
             176. A law which imposes a tax is not immune from constitutional
      challenge merely because taxation is a manifestation of the sovereign
 E    power of the state or because there is a presumption that a tax is imposed
      by the legislature in public interest. Taxing legislation is subject to
      constitutional restraints originating in the legislative competence of the
      legislature to enact the law, the guarantees of fundamental freedoms
      contained in Part Ill and constitutional limitations originating in the
 F    provisions of the Constitution.


             1.2 The standard of judicial review
             177. The standard of judicial review in relation to taxing legislation
 G    however recognizes that there inheres in the legislature the power to
      determine the objects on which a tax should be levied and to classify
      persons or properties for the purposes of the levy. If the classification is
      rational, a taxing statute cannot be challenged merely because different

      " (I 963) I SCR 220
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                            615
                   [DR. D. Y. CHANDRACHUD, J.]

rates of taxation are prescribed for different categories of persons or      A
objects. The validity of a taxing statute cannot be challenged merely on
the ground that the rate of taxation is excessive. However, if the statute
is a colourable piece of legislation or a fraud on legislative power, it
would be open to challenge on the ground that while enacting the law,
the legislature has adopted a cloak or devise to confiscate the property     B
of a citizen who is taxed. But such a conclusion cannot be reached
merely on a finding that the tax which is imposed is unreasonably high or
excessive.
       178. Conceptually, the availability of judicial review in regard to
taxing legislation is distinct from the standard ofjudicial review. Taxing   C
legislation is not immune from constitutional challenges based on a lack
oflegislative competence, a breach of fundamental rights or a violation
of a constitutional limitation or provision. But the standard of judicial
review in relation to fiscal statutes recognizes that the legislature must
possess a wide latitude to classify person§ or objects for the purposes of
ilie~~                                                                       D
       179. ln Federation of Hotel and Restaurant Association of
India v. Union of India 75, the Constitution Bench applied the test of
palpable arbitrariness when a fiscal statute is challenged on the ground
of Article 14. The Court held:
                                                                             E

       "46. It is now well settled though taxing laws are not outside
       Article 14, however, having regard to the wide variety of
       diverse economic criteria that go into the formulation of a
       fiscal policy,the legislature enjoys a wide latitude in the matter    F
       of selection of persons, subjectmatter, events, etc., for
       taxation. The tests of the vice of discrimination in a taxing
       law are, accordingly, less rigorous. In examining the
       allegations of a hostile, discriminatory treatment what is
       looked into is not its phraseology, but the real effect of its
       provisions. A legislature does not, as an old saying goes,            G
       have to tax everything in order to be able to tax something.
       If there is equality and uniformity within each group, the

 " (I 989) 3 sec 634
                                                                             H
616             SUPREME COURT REPORTS                           [20 l 6) l 0 S.C.R.



A            law would not be discriminatory. Decisions of this Court on
             the matter have permitted the legislatures to exercise an
             extremely wide discretion in classifying items for tax
             purposes, so long as it refrains from clear and hostile
             discrimination against particular persons or classes.··
                                                     (Id. at p. 658-659)
 B

             1.3 Limitations of Sinha CJ's view in Atiabari
             l 80. Part XIII of the Constitution uses the expression '"law"' in
      Articles 302, 303 and 304, among others. There is no reasonable basis
 c    for holding that Pat1 Xlll includes all laws enacted by Parliament or the
      State legislatures except laws falling under Entries 82 to 96C of the
      Union List and Entries 46 to 62 of the State List. The judgment of Chief
      Justice Sinha in Atiabari broadly enunciated four reasons for excluding
      taxes from Part XIII of the Constitution:
 D

             i) imposition of taxes is a manifestation of the sovereign power of
                 the state which possess the inherent power to impose taxes to
                 raise revenues;
 E           ii) taxation is specifically governed by Part XII which is a self-
                 contained code and the validity of a taxing statute cannot be
                 assessed with reference to a provision outside Pat1 XII;
             iii) taxes provide for resources to improve facilities for trade and
                  do not constitute a restriction on the movement of trade; and
 F
             iv) the concept of public purpose being implicit in every tax law, it
                 cannot form a part of Article 30 I.


             With the greatest of deference to the view of the learned Chief
 G    Justice, it is difficult to subscribe to the general proposition that tax laws
      per se lie outside the ambit of Pm1 XIII. Taxation is indeed a manifestation
      of the sovereign power of the state to raise revenues for public purposes.
      But the exercise of sovereignty is subject to the constitutional limitations
      of a written constitution. Enactment of law by a law making body which
      possess a legislative competence over the subject matter upon which it
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                  617
                   [DR. D. Y. CHANDRACHUD, J.]

legislates is one of the constitutional limitations. The Constitution distributes A
legislative powers between the Union and States. While doing so it carves
out fields oflegislation which are reserved to the Union and the States
respectively. Legislative powers in relation to taxation are also distributed
between the Union and the States. Hence, all legislative power (of
which the legislative power to impose a tax is a part) is subject to the
                                                                                  B
distribution provided in the Constitution. Exercise of sovereign power is
governed by the norms of a written Constitution. Taxing statutes, like
other legislation, are subject to constitutional limitations including those
contained in Part XIII. Hence, the general notion that taxation is a
manifestation of sovereign powers must also comprehend within that
conceptualisation, the limitations which the Constitution imposes upon             c
all legislative power of which the taxing power is a part.
       181. The second ground which weighed in the decision of Chief
Justice Sinha in Atiabari has been considered earlier. Article 245
mandates that all laws are subject to the provisions of the Constitution.
From that basic premise, it must follow that the limitations on the taxing D
power are not only those which are referable to Pait Xll.Asubject such
as taxation may be referable to a specific part of the Constitution, such
as Part XII. This does not mean that its validity must be assessed only
with reference to the provisions of that Part. The provisions of the
Constitution are not isolated or watertight compartments. Constitutional E
provisions do not rest in silos.
       182. As regards the third rationale undoubtedly, the revenues which
the state raises from fiscal exactions generate resources which are also
utilized to augment trade and commerce. This, however, does not confer
an immunity from a challenge that a law which is enacted in pursuance              F
of the taxing power breaches specific provisions of the Constitution.
       183. While the concept of public purpose is implicit in tax law, it IS
also implicit in all legislation which is presumed to be in the public interest.
Yet the presumption of constitutionality or oflegislation being in the public
interest does not confer a protection or immunity against a specific               G
challenge on the ground that it violates a constitutional limitation such as
that originating in legislative competence, the fundamental rights or
constitutional provisions.


                                                                                   H
618             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A            1.4 Presidential sanction : the proviso to Article 304(b)


             184. There is an aspect of the submission of the states bearing on
      the impact of the requirement of Presidential sanction under the proviso
      to Article 304(b), which requires close scrutiny. The submission is that
 B
      if "reasonable restrictions" on the freedom of trade, commerce or
      intercourse with or within a state are construed to include a legislative
      measure imposing a tax, this would constitute a substantial encroachment
      on the power of the states to impose taxes. The requirement of obtaining
      prior Presidential sanction to a bill which is to be introduced or moved in
 c    the legislature of a state it is urged will, it is urged dilute the sovereign
      power of the states to impose taxes in the fields reserved for them and
      make them subservient to the Union.
             185. While evaluating this submission, it must be emphasised.that
      the proviso attaches to clause b of Article 304. Article 303 prohibits
D     both Parliament and the legislature of a state from enacting laws granting
      preferences to one state over another or making discrimination between
      one state over another.
             186. Article 303(2) makes an exception in respect of Union
      legislation enacted to deal with a situation of scarcity of goods in any
 E    part of the territory of India. The prohibition contained in clause l of
      Article 303 is, hence, lifted in the case of Parliament by clause 2. In the
      case of a state legislature, Article 303(1) is attracted where it grants
      preferences or makes adiscrimination between one state and another.
      Article 304 in its non-obstante clause refers inter alia to Article 303.
 F    Consequently, where a state legislature seeks to enact legislation granting
      a preference to one state over another or to make a discrimination of the
      nature referred to in Article 303(1 ), it must comply with the requirements
      of a Presidential sanction under the proviso to Article 304(b). Where the
      law enacted by the state legislature would result in a preference or
      discrimination prohibited under Article 303(1 ), the embargo can be lifted
 G    upon obtaining the previous sanction of the President under the proviso
      to Article 304(b ).
             J Article 304(a) ; The principle of non-discrimination
             187. Article 304(a) has been analysed and applied in judicial
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               619
              [DR. D. Y. CHANDRACHUD, J.]

precedent over the last six decades. The context in which each of the A
decided cases arose for decision has undoubtedly shaped and refined
the jurisprudence on the subject. Successive Benches have fleshed out
the content of its language. While understanding Article 304 (a), this
Court has to analyse the meaning of the expressions (i) 'goods imported
from other states'; (ii) 'any tax to which similar goods manufactured or
                                                                            B
produced in that state are subject'; and (iii) 'so, however, as not to
discriminate between goods so imported and goods so manufactured'.
While defining the meaning of these expressions, judicial review is
confronted with the basic question of when Article 304(a) would apply
and the situations in which the requirement of a non-discriminatory tax
is fulfilled. An important aspect of Aiticle 304(a) is whether it pem1its a c
classification by the state legislature based on the need to achieve the
economic development of the state. If development is a legitimate
priority, to what extent does A1ticle 304(a) condition the power of the
state legislature to encourage the growth of its own industries by the
grant of incentives, rebates and exemptions through fiscal legislation?     D


      J.1 Precedent : 1963 to 1980
      188. An early decision arose in State of Madhya Pradesh v.
Abdeali 76 . The state government issued a notification under the Madhya       E
Bharat Sales Tax Act, 1950, exempting the sale of footwear from the
payment of sales tax subject to three conditions:
       (i)The foot-wear had to be hand-made and not manufactured on
       a power machine;
       (ii) The sale price should not exceed a stipulated amount; and          F
       (iii)The sale must be by a manufacturer or a member of his family.


        189. A Constitution Bench of this Court held that the notification
did not discriminate between foot-wear manufactured or produced in             G
the state and that which was imported from other states since the three
conditions of the notification equally applied to all foot-wear irrespective
of its origin. A notification granting an exemption for the benefit of small
"AIR (1963) SC 1237
                                                                               H
620               SUPREME COURT REPORTS                         [2016) IO S.C.R.



A     manufacturers making hand-made shoes of a small value who may be
      unable to compete with large manufacturers was valid. Sigi1ificantly, in
      relation to Article 304(a) it was held that the exemption notification made
      no discrimination between out-of state manufacturers and in-state
      manufacturers since its conditions applied equally to both. A manufacturer
 B    situated outside the state could also claim the benefit of the exemption
      upon fulfilling the conditions of the exemption. Hence Article 304(a)
      was held not to have been breached.
             190. In Firm A.T.B. Mehtab Majid v. State of Madras 77 , the
      validity of Rule 16 of the rules framed under the Madras General Sales
 c    Tax Act, 1939 was challenged by the petitioner who was a dealer in
      hides and skins. The petitioner sold material which was tanned outside
      the state as well as what was tanned inside. The contention was that
      tanned hides and skins imported from outside the state and sold within
      were subject to a higher rate of tax than the tax imposed on hides and
      skins tanned and sold within the state. Moreover, hides or skins imported
 D    from outside the state after purchase in a raw condition and then tanned
      inside the state were subject to higher taxes than those purchased in a
      raw condition within the state and tanned there. The Constitution Bench
      rejected the submission that Article 304(a) is attracted only when the
      goods enter the state while crossing its border. In other words, the
 E    imposition provided under clause (a) must not be only at the point of
      entry. The plea of discrimination was upheld by this Court since the
      sale of hides or skins which had been purchased in the state and then
      tanned within the state was not subject to any further tax. This Court
      found that there was a breach ofArticle 304(a) for the following reasons:
 F
               "17 .... .If the dealer has purchased the raw hide or skin in
               the State; he does not pay on the sale price of the tanned
               hides or skins; he pays on the purchase price only. If the
               dealer purchases raw hides or skins from outside the State
               and tans them within the State, he will be liable to pay sales
 G
               tax on the sale price of the tanned hides or skins. He too
               will have to pay more for tax even though the hides and
               skins are tanned within the State, merely on account of his


      11   (1963) Suppl.(2) SCR 435
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              621
              [DR. D. Y. CHANDRACHUD, J.]

      having imported the hides and skins from outside and having             A
      not therefore paid any tax under sub-rule (1 ). "
       Significantly, the Constitution Bench also dealt with the submission
of the state that the circumstance of hides or skins tanned within the
state and on which tax had been paid earlier at the time of their purchase
in a raw condition was sufficient to consider them to be different from       B
hides or skins tanned outside the state. This Court held that:
      "18 ... The similarity contemplated by Article 304(a) is in
      the nature of the quality and kind of the goods and not with
      respect to whether they were subject of a tax already or
      not."                                                                   c
       191. In a subsequent decision in A Hajce Abdul Shakoor v.
State of Madras 78 , this Court held that Section 2(1) of the Madras
General Sales Tax (Special Provisions) Act, 1953 discriminated against
imported hides and skins sold upto 1August1957. The rate of tax on the
sale of tanned hides and skins was:                                           D


       "10 ..... 2 per cent on the purchase price of those hides and
       skins in the untanned condition, while the rate of tax on the
       sale of raw hides and skins in the State during 1955 to 1957
                                                                              E
       is 3 pies per rupee."
       Referring to the judgment in Mehtab Majid, this Court held that:


       "10. In the earlier case, discrimination was brought about
                                                                              F
       on account of sale price of tanned hides and skins to be
       higher than the sale price of untanned hides arid skins, though
       the rate of tax was the same, while in the present case, the
       discrimination does not arise on account of difference of
       the price on which the tax is levied as the tax on the tanned
       hides and skins is levied on the amount for which those                G
       hides and skins were last purchased in the untanned
       condition, but on account of the fact that the rate of tax on
       the sale of tanned hides and skins is higher than that on the

"AIR (1964) SC l 729
                                                                              H
622             SUPREME COURT REPORTS                          (2016] 10 S.C.R.



A           sale of untanned hides and skins. The rate of tax on the
            sale of tanned hides and skins is 2% on the purchase price
            of those hides and skins in the untanned condition while the
            rate of tax on the sale of raw hides and skins in the State
            during 1955 is 3 pies per rupee. The difference in tax works
 B          out to 7/l 600th of a rupee, i.e. a little less than, Y, naya
            paise per rupee. Such a discrimination would affect the
            taxation upto the 1st of August 1957 when the rate of tax
            on the sale of raw hides and skins was raised to 2% of the
            sale price."

 c
             192. Another judgment ofa Constitution Bench in State of Madras
      v. N. K. Nataraja Mudaliar79 , involved a case where the provisions of
      the Central Sales Tax Act, 1956 were challenged on the ground that the
      Act pennitted the levy of tax at varying rates in different states. This
 D    challenge was accepted by the High Court on the ground that the
      imposition of varying rates of tax in different states on similar inter-state
      transactions constituted an impediment, thereby offending Article 301.
      While tracing the history of the legislation Justice J.C. Shah speaking on
      behalf of three judges held that the enactment encumbered the movement
      of trade and commerce for the following reasons:
 E

             "10. Tax under the Central Sales Tax Act on inter-State
             sales, it must be noticed, is in its essence a tax which
             encrn1.1bers movement of trade or commerce, since by the
 F           definition in Section 3 of the Act, a sale or purchase of
             goods is deemed to take place in the course of inter-State
             trade or commerce, if it- (a) occasions the movement of
             goods from one State to another; (b) is effected by a transfer
             of documents of title to the goods during their movement
             from one State to another."
 G

            However, the judgment held that the Central Sales Tax Act which
      was enacted for imposing a tax to be collected and retained by the state

      "(1968) 3 SCR 829
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            623
                 [DR. D. Y. CHANDRACHUD, J.]

did not either grant a preference to one state or another or make any       A
discrimination merely because varying rates of tax prevailed in different
states. This Court rejected the view which had prevailed in the High
Court that different rates of tax on the sale of the same or similar
commodities by different states placed an unequal burden on inter-state
trade:                                                                      B


      '' 14 ... The flow of trade does not necessarily depend
      upon the rates of sales tax: it depends upon a variety
      of factors, such as the source of supply, place of
      consumption, existence of trade channels, the rates                   c
      of freight, trading facilities, availability of efficient
      transport and other facilities for carrying on trade.
      Instances can easily be imagined of cases in which
      notwithstanding the lower rate of tax in a particular part of
      the country and goods may be purchased from another part,             D
      where a higher rate of tax prevails. Supposing in a paiiicular
      State in respect of a commodity, the rate of tax is 2 per
      cent but ifthe benefit of that low rate is offset by the freight
      which a merchant in another State may have to pay for
      carrying that commodity over a long distance, the merchant
      would be willing to purchase the goods from a nearer State,           E
      even though the rate of tax in that State may be higher.
      Existence of long-standing business relations,
      availability of communications, credit facilities and a
      host of other factors - natural and business - enter
      into the maintenance of trade relations and the free                  F
      flow of trade cannot necessarily be deemed to have
      been obstructed merely because in a particular State
      the rate of tax on sales is higher than the rates
      prevailing in other States."(emphasis supplied)
                                                                            G
      The object of enacting a central legislation on the subject was
explained thus:-
       " 17 ..... But since the power of taxation could be exercised
       in a manner prejudicial to the larger public interests by the
                                                                            H
624             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A           States, it was found necessary to restrict the power of
            taxation in respect of transactions which had an inter-State
            content. Amendment of Article 286 and the enactment of
            the Sales Tax Validation Act 1956, and the Central Sales
            Tax Act, 1956, were all intended to serve a dual purpose: to
 B          maintain the source ofrevenue from sales tax to the States
            and at the same time to prevent the States from subjecting
            transactions in the course of inter-State trade so as to
            obstruct the free flow of trade by making commodities
            unduly expensive."

 c
             193. The leading judgment held that Article 304 prohibits the
      imposition of differential rates of tax by the same state on goods
      manufactured or produced in the state and similar goods imported into
      the state. But where the rates of tax imposed on imported goods by a
 D    taxing state are not different from the rates of tax on goods manufactured
      or produced within, Article 304(a) has no application. Consequently, the
      prevalence of different rates of sales tax in the states under the Central
      Sales Tax Act, was held not to be determinative of the giving of a
      preference or making of a discrimination. Justice R. S. Bachawat while
      agreeing with the order passed by the leading majority judgment, however,
 E    held that just as a sales tax on intra-state sales would not nom1ally offend
      Article 301, similarly a tax on inter-state sale would not do so. In his
      view, a tax on sale did not directly or immediately operate on the free
      flow of trade or the free movement of the transport of goods from one
      part of the country to another. Justice K. S. Hegde concurred with the
 F    majority the ground that the provisions of the Central Sales Tax Act had
      no direct or immediate impact on inter-state trade or commerce since
      sufficient safeguards were provided - firstly, by providing for the levy of
      sales tax in the state in which the goods are produced and secondly, by
      placing restrictions on the power of the states in fixing the rates.
 G           194. The judgment of the Constitution Bench in Kalyani Stores
      v. The State of Orissa 80 , involved a challenge to a levy imposed by the
      state of Orissa under the Bihar and Orissa Excise Act, 1915 at a rate of
      Rs. 40/- per L. P. Gallon on foreign liquor oflndian manufacture imported

      '" (1966) I SCR 865
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                625
              [DR. D. Y. CHANDRACHUD, J.]

into the state from other parts of the country. Subsequently, acting under      A
the Bihar and Orissa Excise Act, 1915, the duty was enhanced to Rs.70/-
per L.P. Gallon. Under Section 27 of the Bihar and Orissa Excise Act,
1915, a countervailing duty was provided on an excisable article imported
into the state. Countervailing duties are provided for'in Entry 51 of List
II to the Seventh Schedule to the Constitution. This Court noted that
                                                                                B
countervailing duties can only be levied if similar goods are actually
produced or manufactured in the state on which excise duties are being
levied:


      "4 ..... The fact that countervailing duties may be imposed               c
      at the same or lower rates suggests that they are meant to
      counterbalance the duties of excise imposed on goods
      manufactured in the State. They may be imposed at the
      same rate as excise duties or at a lower rate, presumably
      to equalise the burden after taking into account the cost of              D
      transport from the place of manufacture to the taxing State.
      lt seems therefore that countervailing duties are meant to
      equalise the burden on alcoholic liquors imported from
      outside the State and the burden placed by excise duties on
      alcoholic liquors manufactured or produced in the State. If
      no alcoholic liquors similar to those produced or                         E
      manufactured imported into the State are produced or
      manufactured, the right to impose counterbalancing duties
      of excise levied on the goods manufactured in the State
      will not arise. It may therefore be accepted that
      countervailing duties can only be levied if similar goods are             F
      actually produced or manufactured in the State on which
      excise duties are being levied."


        During the course of discussions, the Constitution Bench held that
the restriction on the freedom guaranteed by Article 301 could only be          G
justified ifit fell within Article 304. The reasonableness of the restriction
had to be adjudged having regard to the purpose for imposing the
restriction in the public interest. In that case, it was held that since no
foreign liquor was produced or manufactured in the State of Orissa the
                                                                                H
626             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     power to legislate under Article 304 (a) is not available:


            "7 ... Without entering upon an exhaustive categorization of
            what may be deemed "required in the public interest", it
            may be said that restrictions which may validly be imposed
 B
            under Article 304(b) are those which seek to protect public
            health, safety, morals and property within the territory.
            Exercise of the power under Article 304(a) can only be
            effective ifthe tax or duty imposed on goods impotted from
            other States and the Tax or duty imposed on similar goods
 c          manufactured or produced in that State are such that there
            is no discrimination against imported goods. As no foreign
            liquor is produced or manufactured in the State of Orissa.
            The power to legislate given by Article 304 is not available
            and the restriction which is declared on the freedom of trade,
D           commerce or intercourse by Article 301 of the Constitution
            remains unfettered."
             195. The notification enhancing the duty was held to violate Article
      301 and was found not to have complied with Articles 304(a) and (b).
      The judgment in Kalyani Stores was explained and confined to the
 E    facts of the case in a subsequent decision in State of Kcrala v. A. B.
      Abdul Khadir81 . In Abdul Khadir this Court held that the earlier decision
      did not intend to lay down a proposition of universal applicability that the
      imposition of a duty or tax in every case would per se be an infringement
      of Article 301 and only such restrictions which directly or immediately
      impede the free flow of trade fall within the prohibition of Article 301.
 F
             I 96. A Constitution Bench of this Court in Rattan Lal & Co. v.
      The Assessing Authority 8', applied the test formulated in N.K.
      Nataraja Mudaliar(supra) in the context of a challenge to the Punjab
      General Sales Tax (Amendment and Validation)Act, I 967 and the Punjab
      Sales Tax (Haryana Amendment and Validation) Act, I 967. The
 G    Co1istitution Bench held that so long as the rate of tax is the same between
      goods imported from other states and similar goods, produced or
      manufactured within the state, Article 304 is satisfied.
      " (1970) 1 SCR 700
      "' (1969) 2 SCR 544
 H
         JINDAL STAINLESS LTD. v. STATE OF HARYANA                         627
                [DR. D. Y. CHANDRACHUD, J.]

         197. In V. Guruviah Naidu and Sons v. State of Tamil Nadux 3 , A
  a Bench of two Judges of this Court repelled a challenge to the validity
  of a tax imposed under the Madras General Sales Tax Act, 1959 on raw
  hides and skins and on dressed hides and skins. In that case the rate of
  sales tax for raw hides and skins was three per cent, whereas for dressed
  hides and skins it was one and a half per cent. The Court held that a
                                                                            B
· lower rate of tax in the case of dressed hides and skins was prescribed
  to offset the difference between the higher price of dressed hides and
  skins and the lower price of raw hides and skins. No material was
  shown to indicate that despite this lower rate of tax, imported hides and
  skins were subjected to discrimination. Upholding the levy, the Division
  Bench held as follows:-                                                   c

        "9 .... The question as to when the levy of tax would
        constitute discrimination would depend upon a variety of
        factors including the rate of tax and the item of goods in         D
        respect of the sale of which it is levied. The scheme of
        Items 7(a) and 7(b) of the Second Schedule to the State
        Act is that in case of raw hides and skins which are
        purchased locally in the State, the levy of tax would be at
        the rate of 3 per cent at the point of last purchase in the
        State. When those locally purchased raw hides and skins            E
        are tanned and are sold locally as dressed hides and skins,
        no levy would be made on such sales as those hides and·
        skins have already been subjected to local tax at the rate of
        3 per cent when they were purchased in raw form. As
        against that, in the case of hides and skins which have been       F
        imported from other States in raw fonn and thereafter tanned
        and then sold inside the State as dressed hides and skins,
        the levy of the tax is at the rate of 11/2 per cent at the point
        of first sale in the State of the dressed hides and skins. This
        levy cannot be considered to be discriminatory as it takes
                                                                           G
        into account the higher price of dressed hides and skins
        compared to the price ofraw hides and skins. It also further
        takes note of the fact that no tax under the State Act has
        been paid in respect of those hides and skins. The legislature,
  " (1977) 1 sec 234
                                                                           H
628             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A           it seems, calculated the price of hides and skins in dressed
            condition to be doubled the price of such hides and skins in
            raw state. To obviate and prevent any discrimination or
            differential treatment in the matter of levy of tax, the
            legislature therefore prescribed a rate of tax for sale of
 B          dressed hides and skins which was half of that levied under
            Item 7(a) in respect of raw hides and skins."
                                                     (Id. at p. 239-240)


             198. A subsequent judgment of a Bench of two Judges in State of
 c    Karuataka v. Hausa Corporation 84, involved a challenge to the
      constitutional validity of an entry tax legislation, namely, the Kamataka
      Tax on Entry of Goods Into Local Areas for Consumption, Use or Sale
      Therein Act, 1979. The law was enacted under Articles 245 and 246
      read with Entry 52 of the State List. Explaining the ambit of Article
 D    304(a), this Court held that:


             "30. Article 304 lifts the embargo placed on the legislative
             power of State to enact law which may infringe the freedom
             of inter-State trade and commerce if its requirements are
 E           fulfilled. Ar1icle 304(a) imposes a restriction on the power
             of legislature of a State to levy tax which may be
             discriminatory in character by according discriminatory
             treatment to goods manufactured in the State and identical
             goods imported from outside the State. The effect of Article
 F           304(a) is to treat imported goods on the same basis as goods
             manufactured or produced in a State. This Article further
             enables the State to levy tax on such imported goods in the
             same manner and to the same extent as may be levied on
             the goods manufactured or produced inside the State. If a
             State tax law accords identical treatment in the matter of
 G           levy and collection of tax on the goods manufactured within
             the State and identical goods imported from outside the State,
             Article 304(a) would be complied with. There is an
             underlying assumption in A11icle 304(a) that such a tax when
      .. (1980) 4 sec 697
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 629
                  [DR. D. Y. CHANDRACHUD, J.]

      levied within the constraints of Article 304(a) would not be               A
      violative ofA1ticle 301 and State legislature has the power
      to levy such tax."                            (Id. at p. 712)
      The Court considered whether the Act being leviable on the entry
of goods into a local area, it had a direct and immediate impact on the
movement of goods thereby infringing the freedom of inter-state trade            B
guaranteed in Article 301. In that context, the Cou1t observed thus:


      "32 .... To the extent, the impugned tax is levied on the entry
      of goods in a local area it cannot be gainsaid that its
                                                                                 c
      immediate impact would be on movement of goods and the
      measure would fall within the inhibition of Article 301. Can
      it, however, be said that this tax imposes restrictions which
      in the facts and circumstances of the case could not be
      said to be reasonable?"                         (Id. at p. 713)
                                                                                 D
       The Court held that the petitioners were unable to establish before
the High Court that the burden of the tax was so heavy as to constitute
an unreasonable restriction on the freedom of trade and commerce.
The Court held that a levy which was reasonable in its impact on the
movement of goods and was imposed for augmenting municipal finances
which had been adversely affected due to the abolition of octroi could           E
not be held to be an impediment to Inter-state trade and commerce.
Even if the tax imposed an economic impediment to the activity taxed, it
was held not to be unreasonable or against public interest. The Court
observed that though the Bill had not received the sanction of the President
under clause (b) of Article 304, this was cured under Article 255 by the         F
grant of Presidential assent and hence the legislation fell within the purview
ofArticle 304(b). Being not discriminatory, it was held thatArticle 304(a)
 was not breached. The constitutional validity of the legislation was thus
analysed on both the anvil of clauses (a) and (b) of Article 304 by the
Bench of two Judges.
                                                                                 G
    J.2 Exemptions and incentives : Video Electronics and
Mahavir
       199. A Bench of two Judges of this Court in Weston Electroniks

                                                                                 H
630             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A v. State of Gujarat' 5 , dealt with the validity of an exemption granted
      under the Gujarat Sales Tax Act, 1969. A notification was issued under
      Section 49(2) of the Act by which sales tax on television sets imported
      from outside the state was fixed at 10 per cent, whereas it was one per
      cent for goods manufactured within the state. Adverting to the judgment
B     of the Constitution Bench in Mehtab Majid, a Bench of two learned
      Judges noted the defence of the state that the rate of tax was reduced
      for locally manufactured goods by way of an incentive, placing reliance
      on clauses (b) and ( c) of Article 39 of the Constitution. This in the view
      of the Court did not provide a justification for a discrimination between
      imported goods and goods which were locally manufactured or produced.
 c    The prescription of a lower rate of tax for the latter was held to be
      invalid. This Court held:


            " ... An exception to the mandate declared in Article 301
 D          and the prohibition contained in clause (1) of Article 303
            can be sustai~ed on the basis of clause (a) of Article 304
            only if the conditions contained in the latter provision are
            satisfied. In the result, the discrimination effected by
            applying different rates of tax between goods imported into
            the State of Gujarat and goods manufactured within the
 E          State must be struck down."


             200. The judgment in Weston Electroniks was considered but
      distinguished by a larger Bench of three Judges of this Court in Video
 F    Electronics Pvt. Ltd. v. State of Punjab 86 . The judgment of this Court,
      inter alia, dealt with a challenge to the constitutional validity of
      notifications issued under the Uttar Pradesh Sales Tax Act, 1948, as
      well as under the Punjab General Sales Tax Act. Under the notification
      issued under the Uttar Pradesh legislation, an exemption from the payment
      of sales tax was granted for goods manufactured in new industrial units,
 G    where the date of commencement of production fell between two
      stipulated dates. The exemption was for a stipulated period reckoned
      from the date of first sale if such sale to9k place not later than six months

      " (1988) 2 sec 568
      " (1990) 3 sec 87
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             631
              [DR. D. Y. CHANDRACHUD, J.]

from the commencement of production.The period of exemption was A
confined for a specified period of three to seven years. Insofar as the
State of Pu1~ab was concerned, sales tax at the rate of 12 per cent was
provided on electronic goods sold within the state irrespective of their
manufacture. In pursuance of a notification issued under the sales tax
law, the rate of sales tax payable by electronic manufacturing units B
producing goods specified thereunder was brought down from 12 per
cent to 1 per cent. The reduction in sales tax was defended on the
ground that it was an incentive to a backward industrial state.While
affinning the legality of the exemption notifications, a Bench of three
learned Judges observed that this was not a case involving "a naked
blanket preference in favour of locally manufactured goods, as against c
goods coming from outside the state87 ". The Court held that the both
under the notifications issued in Uttar Pradesh and in Punjab there was
no discrimination against goods manufactured outside the state for the
following reasons:
                                                                         D·

      "35 ... .In case of Punjab, an overwhelmingly large number
      oflocal manufacturers of similar goods are subject to sales
      tax and, therefore, the general statement that the
      manufacturers within the State are favoured against the
      manufacturers outside the State, is incorrect. Under the               E
      notifications in case of U.P., only newly set up units are
      eligible to claim the benefits thereunder for a limited period
      of5 years and that also only if they strictly comply with the
      tenns and conditions set out in the notification."
                                                      (ld. at p. 113)        F


       201. A close reading of the judgment in Video Electronics would
thus indicate that both sets of notifications involving the States ofUttar
Pradesh and Punjab were carefully structured to cover one or more of
the following circumstances:                                                 G
       (i) Availability of a reduced rate of sales tax to new industrial
           units;

"(Id. at p. 112, Para 35)
                                                                             H
632            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A           (ii) Applicability of a reduced rate of sales tax to producers of
                certain specified goods, such as electronic goods;
            (iii) Limitation of the period during which the reduced rate of tax
                 could operate; and
            (iv) Applicability of the general rate of sales tax to an
 B
               overwhelmingly large number of local manufacturers, at par
               with imported goods.


            202. While sustaining the grant of a reduced rate of sales tax, this
 c    Court distinguished, inter alia, the judgment in Weston Electroniks
      (supra) and similar cases in the following observations:


            "30 ...... These cases were not at all concerned with
            granting of exemption to a special class for a limited period
 D
            on specific conditions of maintaining the general rate of tax
            on the goods manufactured by all those producers in the
            State who do not fall within the exempted category at par
            with the rate applicable to imported goods as we have read
            these cases. Hence, it was not necessary in those decisions
 E          to consider the problem in its present aspect. If, however,
            the said power is exercised in a colourable manner
            intentionally or purposely to create unfavourable bias
            by prescribing a general lower rate on locally
            manufactured goods either in the shape of general .
            exemption to locally manufactured goods or in the
 F
            shape of lower rate of tax, such an exercise of power
            can always be struck down by the courts. That is not
            the situation in the instant cases." (Id. at p. 110)
            (emphasis supplied)

 G
            However, in the same judgment, the following observations have
      been made:
            "20 ..... In our opinion, Part Xlll of the Constitution cannot
            be read in isolation. It is part and parcel of a single
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                          633
                 [DR. D. Y. CHANDRACHUD, J.]

      constitutional instrument envisaging a federal scheme and           A
      containing general scheme conferring legislative powers in
      respect of the matters relating to List II of the Seventh
      Schedule on the States. It also confers plenary powers on
      States to raise revenue for its purposes and does not require
      that every legislation of the State must obtain assent of the       B
      President. Constitution of India is an organic
      document. ...... .
      Hence, the economic development of States to bring these
      into equality with all other States and thereby develop the
      economic unity of India is one of the major commitments             c
      or goals of the constitutional aspirations of this land. For
      working of an orderly society, economic equality of all the
      State is as much vital as economic unity."
                                                     (Id at p. 104)
        203. The substratum of the judgment in Video Electronics, clearly D
is that Article 304(a) would not be breached by a classification brought
about by a carefully structured notification which grants incentives to
local industry of a specified class of units, with reference to a specific
category of rnanufactured goods and for a stipulated period.If the
observations in paragraph 20 (quoted above) are however, construed to
set a broad principle, that would defeat the primary objective underlying E
Article 304( a) of the Constitution. This was noticed in a subsequent
decision in Shrec Mahavir Oil Mills v. State of J & K 88 . In that case,
under the J & K General Sales Tax Act, 1962, sales tax on edible oil was
prescribed at 4 per cent. However, in order to protect the local edible oil
industry, the state government issued a notification directing that the F
goods manufactured by a dealer operating as a small-scale industrial
unit in the state would be exempted from the payment of tax to the
extent and for the period specified. Subsequently, edible oils in general
were shifted from Schedule D to Schedule C attracting tax at 8 per
cent. There were in fact no large industries in Jammu and Kashmir
                                                                            G
producing edible oil. Out-of state manufacturers unsuccessfully impugned
the notification before the High Court. Explaining the ambit of Article
304, the Bench of two learned Judges observed thus:

"(1996) 11 sec 39
                                                                           H
634            SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A           "8 .... The idea was not really to empower the State
            Legislatures to levy tax on goods imported from other States
            and Union Territories - that they are already empowered
            by other provisions in the Constitution - but to declare
            that that power shall not be so exercised as to discriminate
 B          against the imported goods vis-a-vis locally manufactured
            goods. The clause, though worded in positive language has
            a negative aspect. It is, in truth, a provision prohibiting
            discrimination against the imported goods. In the matter of
            levy of tax - and this is important to bear in mind - the
            clause tells the State Legislatures - "tax you may the
 c          goods imported from other States/Union Territories but do
             not, in that process, discriminate against them vis-a-vis
             goods manufactured locally". In short, the clause says: levy
             of tax on both ought to be at the same rate. This was and is
             a ringing declaration against the States creating what may
 D           be called "tax barriers" - or "fiscal barriers", as they may
             be called - at or along their boundaries in the interest of
             freedom of trade, commerce and intercourse throughout
             the territory of India, guaranteed by Article 301. As we
             shall presently point out, this clause does not prevent in any
             manner the States from encouraging or promoting the local
 E
             industries in such manner as they think fit so long as they
             do not use the weapon of taxation to discriminate against
             the imported goods vis-a-vis the locally manufactured goods.
             To repeat, the clause bars the States from creating tax
             barriers - or fiscal barriers, as they can be called -around
 F           themselves and/or insulate themselves from the remaining
            .territories of India by erecting such "tariff walls."
                                                               (Id. at p. 45)


 G           204. The judgment in Video Electronics was distinguished on
      the ground that in that case the notifications of the States ofUttar Pradesh
      and Punjab were carefully circumscribed:
            "22 ..... So far as the Uttar Pradesh notification was
            concerned, it was held that in as much as it was a case of
            grant of exemption "to a special class for a limited period
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                          635
                  [DR. D. Y. CHANDRACHUD, J.]

      on specific conditions" and was not extended to all the             A
      producers of those goods, it does. not offend the freedom
      guaranteed by Article 301. Similarly, in the case of Punjab
      notification, it was held that since the exemption is for certain
      specified goods and also because "an overwhelmingly large
      number oflocal manufacturers of similar goods are subject
                                                                          B
      to sales tax", it cannot be said that local manufacturers
      were favoured as against the outside manufacturers."
                                                        (Id. at p. 51)

Again, it was held that:

      "23 .All the above observations were made to justify ( 1)
                                                                          c
      grant of incentives and subsidies and (2) exemption granted
      to new industries, ofa specified type (small-scale industries
      commencing production within the two specified dates) and
      for a short period. They were not meant to nor can they be
      read as justifying a blanket exemption to all small-scale           D
      industries in the State irrespective of their date of
      establishment. The case before us clearly falls within the
      ratio of the Constitution Bench decision in A.T.B. Mehtab
      Majid and the decisions in Indian Cement, W.B. Hosiery
      Assn. and Weston Electroniks.The limited exception created          E
      in Video Electronics does not help the State herein for the
      reason that exemption concerned herein is neither confined
      to "new industries", nor is circumscribed by other conditions
      of the nature stipulated in the Uttar Pradesh notification. It
      is not possible to go on extending the limited exception
      created in the said judgment, by stages, which would have           F
      the effect of robbing the salutary principle underlying Part
      Xlll of its substance. Indeed, it has been the contention of
      Shri Salve that, on principle, the exception carved out in
      Video Electronics is unsustainable. For the purpose of this
      case, it is not necessary for us to say anything about the          G
      correctness of Video Electronics. Suffice it to say that the
       limited exception carved out therein cannot be widened or
       expanded to cover cases of a different kind. It must be
      held that the total exemption granted in favour of small-
      scale industries in Jammu and Kashmir producing edible oil
                                                                          H
636            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A           (there are no large-scale industries in that State producing
            edible oil) is not sustainable in law."
                                                            (Id. at p. 52)


             205. The Court cautioned that a limited exception which had beeri
 B    carved out in Video Electronics should not be enlarged "lest it eat up
      the main provision." An unconditional exemption in the case of edible oil
      produced within the state from sales tax while subjecting similar goods
      produced in other states to sales tax at 8 per cent was held to violate
      Article 304(a) of the Constitution.
 C          206. The judgment in Shree Mahavir Oil Mills expressly left
      open the correctness of the view in Video Electronics. In Shree
      Mahavir Oil Mills an exemption from the payment of sales tax
      altogether granted to local industry was set aside as violating Article
      304(a). The earlier decision in Video Electronics was distinguished on
 D    the ground that it related to a case not involving a blanket preference.


            J.3 Article 304(a) and reasonable classification
             207. Does Article 304(a) prohibit a state from making a reasonable
 E    classification? Article 303 contains a prohibition on the legislature of a
      state granting a preference to one state over another and for making a
      discrimination. Article 304 operates, inter alia, as an exception to the
      norm contained in Article 303 as a result of its non-obstante provision.
      Under clause (a) of Article 304 a state may impose on goods which are
      imported from other states "any tax" to which similar goods manufactured
 F    or produced in that state are subject. This is followed by the further
      requirement that the imposition of such a tax shall "so however" not
      discriminate between goods so imported and goods so manufactured or
      produced. The principle which underlies clause (a) of Article 304 is
      non-discrimination between goods imported from another state and goods
 G    produced or manufactured within. Clause (a) enables the state legislature
      to impose a tax on goods imported, in the exercise ofits legislative power,
      so long as that tax is imposed also on similar goods manufactured or
      produced within. The latter part of clause (a) which contains a mandate
      against discrimination must have some meaning. In drafting the provision,
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               637
                  [DR. D. Y. CHANDRACHUD, J.]

the founding fathers evidently did not confine it merely to a nonn providing A
a parity of taxes between imported goods and similar goods produced or
manufactured within.While stipulating that "any tax" to which similar
goods produced or manufactured in the state are subject can be imposed
on goods imported into the state from other states, clause (a) contains
the mandate that there should be no discrimination between goods, that
                                                                             B
are imported and goods that are manufactured within. The judgment in
Video Electronics construed Article 304(a) as not precludin·g a state
from taking steps to promote the growth of its own nascent industry. In
the case of the State of Punjab, the defence of the State was that a
reduced rate of sales tax was imposed to boost the electronics
manufacturing industry and to stop existing industrial units shifting to c
neighbouring states, particularly having regard to "the prevailing peculiar
circumstances of Punjab". Moreover, while states, such as Gujarat and
Maharashtra were fully developed industrial states, Punjab at that stage
was backward in ten11S of industrial growth. These factors undoubtedly
weighed with this Court in sustaining the notification.                      D
        208. A state does have a legitimate concern and interest in ensuring
the growth and development of its own industry. Levels of industrial
growth and economic development are not uniform across the country.
A state legislature can have a legitimate interest, in the exercise of its
law making power, to ensure balanced development and growth of its             E
industry, paiticularly, in the nascent stage of industrial development. Yet,
while doing so and granting incentives the legislature or as its delegate,
the state government must ensure that the grant of incentives is carefully
structured so as not to defeat the underlying spirit and object of Article
304(a). Moreover, when the grant of such an incentive is challenged, it
                                                                               F
is for the state to justify it with reference to circumstances which have
a bearing on legitimate state interest.


       J.3.1 Formal and substantive equality
                                                                               G
      209. Equality and non-discrimination are elements of the same
universe. Equality has both a fo1mal and substantive content. In a formal
sense, equality perceives of governance under the same legal regime
and the application of the same legal principles. Unifonn application of
law fulfils the nonn of fonnal equality. Substantive equality looks beyond
                                                                               H
638             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A     fonnal equality. That which may satisfy the requirements of formal
      equality may be inadequate and insufficient to meet the vision of
      substantive equality. Substantive equality recognises that there are histories
      of discrimination based on social background, gender and access to
      resources. They detennine the pursuit of opportunity. Hence, formal
 B    equality may not necessarily result in just outcomes. Treating all individuals
      alike may perpetuate deprivation and denial of economic opportunity to
      those for whom the social order has not provided equal access to education
      or to the resources necessary for economic advancement. Hence,
      substantive equality is premised on the foundation that in order to produce
      just outcomes and a real equality between individuals who are unequally
 C    situated, the legal regime must comprehend ml understanding of their
      past histories of discrimination, disability and injustice.
             210. Regions within a nation are not equal in a real sense in tem1s
      of economic advancement and social development. Typically, economic
      development has spread along areas which developed around the
D     availability of infrastructure and resources. As ports and railways
      developed over the last century and a half, the benefits of development
      permeated to regions where economic opportunity was available. Yet,
      other areas of the country have remained in a state of comparative
      under-development as a result of circumstances such as geographical
 E    isolation and the absence of developed means of communication. Many
      regions have suffered from the absence of education and unavailability
      of access to health and sanitation. Social deprivation and discrimination
      have been the defining characteristic of large swathes of the nation. In
      this background, substantive equality like its mirror image-non-
      discrimination-construes the need for development in ten11S of mitigating
 F
      regional histories of suffering and strife, and of denial, deprivation and
      discrimination.
             211. Article 304(a) is an amalgam of fonnal as well as substantive
      nom1s of equality. At a formal level, the provision requires that when a
      state imposes a tax on imported goods, the tax must likewise be imposed
 G
      on similar goods which are manufactured or produced in the state. Parity
      of tax between domestic goods produced and manufactured in a state
      with those which are imported from other states is the first and fonnal
      requirement. But beyond this, Article 304(a) brings into focus substantive
      principles by embodying a norm of non-discrimination in its latter
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            639
                  [DR. D. Y. CHANDRACHUD, J.]

stipulation. Non-discrimination in a substantive sense requires a level A
playing-field. Two states in the nation may not be comparable in tenns
of social development and economic advancement. One state may be
industrialised with a growth of capital investment in urban infrastructure
while another state may be predominantly agricultural. Article 304(a)
does not prohibit a state from taking steps that are necessary for B
development and growth within its tenitories. But the submission is that
while a state is at libe1ty to adopt policies which lead to its own economic
advancement, it cannot utilise tax treatment as a measure to do so in a
manner that would be forbidden by Article 304(a). This submission
undoubtedly carries a degree of weight. But equally, parity of tax
treatment between goods produced and manufactured in a state and c
those which are imported from other states must be balanced with the
need to produce a state of non-discrimination in a substantive as opposed
to fonnal sense. Hence, the judgment of this Court in Shree Mahavir
                             0
Oil Mills v. State of J & K~ , while construing the earlier decisions in
Video Electronics, held that the limited exception carved out in the D
latter decision should not consume the rule. Video Electronics was a
situation where a rebate of sales tax was carefully structured to cover
industrial units of a well-defined class over a measurable period of time
and for rational reasons. This was not an unrestricted or blanket
preference to domestic goods. A1ticle 304(a) was intended to protect
                                                                             E
freedom of trade and commerce from protectionism and parochial
demands in the interest of the economic unity of the nation. Hence,
 while Article 304(a) cannot be read to prohibit a classification, it cannot
 be read to allow states to pursue policies of protectionism that destroy
 the essential freedom of trade and commerce.
                                                                            F

       J.4 Production and manufacture within the home state
       212. Another aspect which needs close analysis is whether under
Article 304(a), it is necessary that a state must actually produce or
manufacture goods similar to goods imported from other states which         G
are sought to be taxed. The crucial words are "any tax to which similar
goods manufactured or produced in that state are subject". Article 304(a)
is not in the nature of a countervailing duty. Entry 51 of List II of the

"(1996) 11sec39
                                                                            H
640            SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A     Seventh Schedule on the other hand, provides for countervailing duties
      and is as follows :


            "51. Duties of excise on the following goods manufactured
            or produced in the State and countervailing duties at the
B
            same or lower rates on similar goods manufactured or
            produced elsewhere in India-
            (a) Alcoholic liquors for human consumption;
            (b) Opium, Indian hemp and other narcotic drugs and
 C          narcotics;
            But not including medicinal and toilet preparations containing
            alcohol or any substance included in sub-paragraph (b) of
            this entry."

D
             213. The words "similar goods manufactured or produced" are
      common to both Article 304(a) and Entry 51. However, the notion of a
      countervailing duty under Entry 51 (as the judgment in Kalyani Stores
      explains) is intended to counter balance the duty of excise levied on
      articles which are produced or manufactured in the state. The
 E
      countervailing duty is imposed on articles which are produced or
      manufactured elsewhere in India. In the context of a countervailing duty,
      this Court in Kalyani Stores held that it postulates the actual production
      or manufacture of goods. This principle cannot be extrapolated to Article
      304(a) where the tax which is imposed is not in the nature of a
 F    countervailing duty. Article 304(a), when it refers to a tax on goods,
      covers taxes on any aspect of goods which fall within the legislative
      competence of the state legislature. The latter part of Article 304(a)
      which contains the words "so however as not to discriminate between
      goods so imported and goods so manufactured and produced" is not a
      surplusage. The object of the latter part is to ensure that there is no
 G
      discrimination between goods which are produced or manufactured in
      the state and goods which are imported from other states. If a particular
      rate of duty is levied on goods which are produced or manufactured in a
      state, a higher rate of duty cannot be levied on goods imported from
      other states. This, however, does not preclude a state from imposing a
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               641
                 [DR. D. Y. CHANDRACHUD, J.]

duty on imported goods where it does not actually produce or manufacture A
goods of that description. The observations of this Court in Kalyani
Stores were made in the context of a countervailing duty under Entry
51 of List 11 which is distinguishable. A state, in other words, is not
confind by Atticle 304(a) to impose a tax on imported goods, confined
only to the basket of goods actually produced or manufactured within
                                                                             B
that state. To take an example, if motor vehicles are manufactured in six
states, Article 304(a) does not restrict the power of the state legislatures
of the other states to impose a tax (in the exercise of the legislative
power) with respect to motor vehicles. Any other construction would
lead to the unintended, if not absurd, consequence that a tax on goods
which are impo1ted from other states can be levied only by those states c
which actually manufacture similar goods within the state. If a state
does not manufacture or produce goods similar to the imported goods on
which a tax is imposed, no question of discrimination will arise. The
object of A1ticle 304(a) is to prevent disparity of treatment between
goods that are produced or manufactured in a state and goods which a D
state imports from other states. Where a state does not actually produce
onnanufacture goods of that description. no issue of discrimination qua
Article 304(a) would arise.


       K Entry Tax                                                             E

      214. Entry 52 of List II to the Seventh Schedule of the Constitution
provides for :
       "52. Taxes on the entry of goods into a local area for
       consumption, use or sale therein."                                      F
       Entry 89 of List I provides for terminal taxes on goods or
passengers, cauied by railway, sea or air; taxes on railway fares and
freights.

                                                                               G
       K.1 Octrois and Terminal taxes
        215. The legislative history suuounding the incorporation of Entry
52 is a significant guide to interpreting its provisions. Section 80A of the
Government of India Act, 1915 defined the powers of the provincial
legislatures. Under the Devolution Rules, the following provisions were        H
642            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     contained in Item Nos. 7 and 8 of the Second Schedule :


            "Item No. 7. An octroi
            Item No. 8. A Terminal tax on goods imported into or
B           expo1ied from a local area save where such tax is first
            imposed in a local area in which an octroi was not levied on
            or before 6 July, 1917."


              In the Government oflndiaAct, 1935, Entry 49 of the legislative
 c    lists (list II) provided as follows :
            "49.Cesses on entry of goods into a local area for
            consumption, use or sale therein. Tern1inal taxes were placed
            in List I."

D
             216. In the Government oflndia Act, 1935, Entry 49 used the
      expression "entry of goods into a local area for consumption, use or sale
      therein", instead and in place of"octroi" (as contained in the Devolution
      Rules under the Act of 1915). The Constitution incorporated Entry 52 in
 E    List II in language which corresponds to Entry 49 of List II under the
      Government oflndiaAct, 1935 but with the difference that the expression
      'taxes' is used instead of 'cesses'.
            217. The imposition of octroi has a historical significance both in
      India and elsewhere. Tracing its history, a Constitution Bench of this
 F    CoUli in Diamond Sugar Mills Ltd. v. The State of Uttar Pradesh 90 ,
      explained the meaning of octroi thus :


            "Octroi is an old and well known tenn describing a tax on
            the entry of goods into a town or a city or a similar area for
 G          consumption, sale or use therein. According to the
            Encyclopaedia Britannica octroi is an indirect or
            consumption tax levied by a local political unit, nomrnlly the


      00(1961) 3 SCR 242
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               643
                  [DR. D. Y. CHANDRACHUD, J.]

      commune or municipal authority, on certain categories of                 A
      goods on their entry into its area."      (Id. at p. 252)
       218. Octroi was a tax levied on the entry of goods into areas
which were administered by local bodies. When the draftsmen of the
Constit~ition incorporated Entry 52 in List II, it was with the knowledge
that the expression 'local area' had been used in the Government of            B
India Act, 1935. Moreover, it could not but have been present to the
minds of the framers that the expression 'octroi' which was used in the
Devolution Rules had been replaced subsequently in Entry 49 of List II
in the Government of India Act of 1935 with a description rather than
label : the label being descriptive of the entry of goods into a local area;   C
the purpose being consumption, use or sale therein. The expression
 'therein' also indicates that the goods enter for the purpose of being
 used, consumed or sold within the local area.
       219. The situation that fell for consideration before the Constitution
Bench in Diamond Sugar Mills arose under Section 3 of the UP Sugar D
Cane Cess Act, 1956 under which the State Government was empowered
to impose a cess not exceeding a stipulated amount on the entry of
sugarcane into the premises of a factory for use, consumption or sale
therein. The legislative competence of the state legislature was questioned
on the ground that the premises of a factory did not constitute a local
area within the meaning of Entry 52. The Constitution Bench held thus: E
       "The etymological meaning of the word "local" is "relating
       to" or "pertaining to" a place. It may be first observed that
       whether or notthe whole of the State can be a "local area",
       for the purpose of Entry 52, it is clear that to be a "local
       area" for this purpose it must be an area within the State.             F
       On behalf of the respondents, it is argued that "local area"
       in Entry 52 should therefore be taken to mean "any part of
       the State in any place therein". So, the argument runs, a
       single factory being a part of the State in a place in the
       State is a "local area". In other words, "local area" means             G
       "any specified area inside the State". The obvious fallacy
       of this argument is that it draws no distinction between the
       word "area" standing by itself and the phrase "local area".
       Ii the Entry had been "entry of goods into any area of the
       State ......... " some area would be specified for the purpose
                                                                               H
644            SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A           of the law levying the cess on enhy. If the Constitution
            makers were empowering the State Legislatures to levy a
            cess on entry of goods into any specified area inside the
            state, the proper words to use would have been "entry of
            goods into any area .......... " It would be meaningless and
 B          indeed incorrect to use the words they did use "entry of
            goods into a local area". The use of the words "local area"
            instead of the word "area" cannot but be due to the intention
            of the Constitution-makers to make sure that the power to
            make laws relating to levy on entry of goods would not
            extend to cases of entry of goods into any and every part
 c          of the state from outside that part but only to entry from
            outside into such portions of the state as satisfied the
            description of"local area".            (Id. at p. 250)



 D         In holding that a factory could not be a local area, the Constitution
      Bench observed that :


            "It was with the knowledge of the previous history of the
            legislation that the Constitution-makers set about their task
 E          in preparing the lists in the seventh Schedule. There can be
            little doubt therefore that in using the words "tax on the
            entry of goods into a local area for consumption, use or
            sale therein", they wanted to express by the words "local
            area" primarily area in respect of which an octroi was
 F          leviable under item 7 of the Schedule tax rules, 1920-that
            is, the area administered by a local authority such as a
            municipality, a district Board, a local Board or a Union Board,
            a Panchayat or some body constituted under the Jaw for
            the governance of the local affairs of any part of the State.
            Whether the entire area of the State, as an area administered
 G          by the State Government, was also intended to be included
            in the phrase "local area", we need not consider in the
            present case."                                   (Id. at p. 253)



 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               645
              [DR. D. Y. CHANDRACHUD, J.]

       220. These observations indicate that Entry 52 having used the          A
expression "local area" rather than "area", the Con:stitution did not intend
that the entry of goods into just any area in the state would attract the
entry. The entry had to be into a local area. A local area is an area
administered by a local authority such as a municipality, a district or a
local board or a panchayat or some other body constituted by law for
                                                                               B
administering the governance of local affairs in any part of the state.
Whether the entire state could be declared as a local area was, however,
kept open in Diamond Sugar Mills.
       221. In another judgment of a Constitution Bench in Bangalore
Woollen Cotton and Silk Mills Co. Ltd. v. Corporation of the City              c
of Bangalore 91 , there was a challenge to the constitutional validity of
the imposition of octroi duty on cotton and wool by the Bangalore
Municipal Corporation Act, 1949 inter alia under the provisions of Article
30 I. The octroi duty was, in the submission of the state, saved by Article
305 which stipulated that nothing in Articles 301 and 303 shall affect the
provisions of any existing law except in so far as the President may by        D
order otherwise direct. The Constitution Bench accepted the submission
and held that there was no contravention of Article 301.
       222. In Burmah Shell Oil Storage and Distribution Co. India
Ltd. v. The Belgium Borough Municipality 9",the appellant had
unsuccessfully moved the High Court for a writ seeking to prohibit the         E
municipality from charging octroi on its products which were brought
inside octroi limits for sale. The goods brought into octroi limits by the
appellant comprise of four categories :
       (i) Goods consumed by the appellant;
                                                                               F
       (ii) Goods sold by the appellant itself or through dealers and
           consumed within octroi limits by others;
       (iii) Goods sold by the appellant itself or through dealers within
            octroi limits but consumed outside; and
       (iv) Goods sent by the appellant from its depot within octroi limits    G
           to points outside the municipality where they were produced
           and consumed by others.

"'(1961) 3 SCR 707
"(1963) Supp. 2 SCR 216
                                                                               H
646             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A            223. Under Section 73 of the Bombay Municipal Boroughs Act,
      1925, the municipality was empowered to impose an octroi on animals
      or goods brought within the octroi limits for consumption, use or sale
      therein. The Constitution Bench took note of the legislative history relating
      to tem1inal taxes and octroi. Tenninal Taxes were concerned only with
      the entry of goods into a local area irrespective of whether or not they
 B
      were used there. Octrois were taxes on goods brought into the local
      area for consumption, use or sale. When the Constitution was adopted,
      the expression octroi was avoided and instead a description was used.
      Expounding the ambit of Entry 52, the Constitution Bench observed as
      follows:
 c
             "21.It is not the immediate person who brings the goods
             into a local area who must consume them himself, the act
             of consumption may be postponed or may be perfonned by
 D           someone e!se but so long as the goods have been brought
             into the local area for consumption in that sense, no matter
             by whom, they satisfy the requirements of the Boroughs
             Act and octroi is payable. Added to the word "consumption"
             is the word "use" also. There may be certain commodities
             which though put to use are not 'used up' in the process. A
 E           motor-car brought into an area for use is not used up in the
             same sense as food-stuffs. The two expressions use and
             consumption together therefore, connote the bringing in of
             goods and animals not with a view to taking them out again
             but with a vie•.v to their retention either for use without
 F           using them up or for consumption in a manner which
             destroys, wastes or uses them up."       (ld. at p. 230-231)


             224. The Constitution Bench ruled that so long as goods are brought
      inside the area for sale within the area to an ultimate consumer, it makes
 G    no difference that the consumer does not consume them in the area but
      takes them out for consumption elsewhere :
             "22 ...... The word "therein" does not mean that all the act
             of consumption must take place in the area of the
             municipality. It is sufficient ifthe goods are brought inside
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              647
                 [DR. D. Y. CHANDRACHUD, J.]

      the area to be delivered to the ultimate consumer in that               A
      area because the taxable event is the entry of goods which
      are meant to reach an ultimate user or consumer in the
      area."                                      (Id. at. P. 233)
      Hence, the appellant was held to be liable to pay octroi duty on
goods brought into a local area :                                             B
      (i) To be consumed by itself or sold directly by it to consumers;
      (ii) For sale to dealers who in their tum sold the goods to consumers
           within the municipal area irrespective of whether. such
           consumers bought them for use inside or outside the area.
                                                                              c
     However, the appellant was not liable to octroi in 1·espect of goods
which it brought into a local area for re-export.
       225. For many years after the adoption of the Constitution, local
bodies across the country continued to levy octroi, which was an important
source of revenue. Octroi was levied under state legislation, enacted D
with reference to Entry 52 of List II (read with Articles 244, 245 and
246). Octroi, however, assumed an obnoxious character and was a
subject of comment by this Court in Hausa Corporation (supra). Octroi
duty became associated with check posts installed by local bodies. The
octroi balTiers became notorious for long queues of fully laden vehicles
                                                                            E
awaiting entry into local limits. Worse still, octroi became a vexed symbol
of the misdeeds oflocal officials or contractors tasked with the collection
of octroi duty. Over a period of time, accepting the clamour of the trade,
octroi was gradually phased out and replaced by entry tax legislation in
the states. Noteworthy, among the changes made, was that the tax would
be leviable upon a dealer. Moreover, the tax would be collected not at F
the octroi or municipal limit but subsequently after the submission of
returns.


       K.2 Entry taxes and Article 304(a)                                       G
        226. For the purposes of this reference, it is necessary to clarify
at the outset that the detailed provisions of each state legislation pertaining
to entry tax do not fall for consideration. It is sufficient for the purposes
of the present reference to consider some of the important aspects of
entry tax legislation vis-a-vis Part Xlll which are of common cor.cem. H
648             SUPREME COURT REPORTS                          (2016] 10 S.C.R.



A            227. The first significant aspect of the matter is the inter-play
      between entry tax legislation and Article 304 (a). The interface between
      the two arises because entry tax is levied on the entry of goods into a
      local area for consumption, use or sale therein. If the goods originate in
      any other state, the imported goods would upon entry into a local area be
      liable to entry tax since the charging event is the entry of the goods into
 B
      the local area for consumption, use or sale. Issues of discrimination arise
      on whether similar goods produced or manufactured within the state are
      subject to entry tax.
              228. Article 304 permits the state legislature to impose on goods
 c    impo1ted from another state any tax to which similar goods produced or
      manufactured in the state are subject. The object is to ensure that there
      is no discrimination between the goods "so imported" and the goods "so
      produced or manufactured". The critical requirement of Artic!e 304 (a)
      is that the tax must be origin neutral. Hence, where the state legislature
      levies an entry tax on goods entering a local area (without making any
 D    discrimination based on whether or not the goods originate in the state or
      are imported from outside) the mandate of Article 304(a) would be met.
             229. The issue is whether Article 304 (a) would be breached by
      imposing an entry tax only upon goods that are imported from other
      states. Plainly, if a tax is imposed on goods which are imported from
 E    other states without subjecting similar goods produced or manufactured
      within the state to the tax, there would be a violation ofArticle 304(a).This
      would coi1stitute an unconstitutional discrimination between goods
      imported from other states which are subject to tax and goods produced
      or manufactured within the state which are not subject to the levy. Such
 F    an act of discrimination may take place, for instance, in a situation where
      state law defines the entire area of the state as a local area or by
      inco:-porating a specific definition of the expression dealer or importer to
      mean an importer of goods from outside the state. For instance, goods
      may be subject to entry tax only when they cross the state boundary.
      Movement of goods exclusively within the state, is not subject to entry
 G
      tax. Alternatively, the expression local area may be defined with reference
      to the entire state. If the legislation imposes a tax only upon the entry of
      goods originating outside the state into the state, while goods produced
      and manufactured within the state are not subject to the levy, this would
      constitute a hostile discrimination prohibited by Article 304 (a).
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                              649
                        [DR. D. Y. CHANDRACl-IUD, J.]

       K.3 Meaning of 'Local area'                                             A


        230. The issue as to whether the entire area of a state can be
treated as a local area for the purposes of Entry 52 of List 11, was
specifically kept open for consideration in the judgment of the Constitution
                                                                               B
Bench in Diamond Sugar Mills. The issue was, however, dealt with in
a judgment of three learned Judges of this Court in Shaktikumar M.
Sancheti v. State of Maharashtra°'. In that case an entry tax was
levied under Section 3 of the Maharashtra Tax on Entry of Motor Vehicles
into Local Areas Act, 1987. The Act was challenged by contractors or
dealers of motor vehicles who had purchased them outside the state and         c
had brought them within the state of Maharashtra as being a colorable
exercise oflegislative power under Entry 52 of List ll as well as violating
Article 30 I. Taking note of the fact that the issue of what constitutes a
 local area had not been decided in Diamond Sugar Mills, the Bench of
three Judges held as follows:                                                  D


       "4 .... The expression 'local area' has been used in various
       Articles of the Constitution, namely, l, l2, 245( I). 246, 277,
       321, 323A and 37 l([)). They indicate that the constitutional
       intention was to understand the 'local area· in the sense of            E
       any area which is administered by a local body, may be
       corporation, municipal board, district board etc. The High
       Court on this aspect held, and in our opinion rightly that the
       definition does not comprehend entire State as local area
       as the use of the word ·a· before 'local area' in the Section           F
       is significant. The ta-.;able event according to the High Court,
       is not the entry of vehicle in any area of the State but in a
       local area. The High Court explained it by giving an
       illustration that if a motor vehicle was brought from Jabalpur
       (Madhya Pradesh) for being used or sold at Amravati (in
       Nagpur District of Maharashtra), which was the border                   G
       area, taxable event was not the entry in Nagpur District
       but entry in area ofAmravati Municipal Corporation. The
       levy, therefore. is not, as urged by the learned Counsel for
"] (1995) 1   sec 351
                                                                               H
650             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A           appellant, on entry of vehicle in any part of the State but in
            any local area in the State. It cannot, therefore, be stn•ck
            down on this ground."                        (Id. at p. 355)


             231. The Seventy-third amendment to the Constitution has
 B
      incorporated Pait IX which deals with Panchayats while the Seventy
      fourth amendment has incorporated Part IXA which deals with
      Municipalities. Article 243(d) defines Panchayats as institutions of self-
      government constituted under Article 243(b) for the rural areas. Article
      243(b) requires the constitution in every state of Panchayats at the village,
 c    intennediate and district levels. Article 243H (a) empowers the legislature
      of a state by law to authorize a Panchayat to levy, collect and appropriate
      such taxes, duties, tolls and fees in accordance with such procedure and
      subject to such limits. A1ticle 243Q provides for the constitution of a
      Nagar Panchayat, a Municipal Council and a Municipal Corporation.
 D    Article 243X empowers the legislature of a state by law to authorize a
      Municipality to levy, collect and appropriate such taxes duties, tolls and
      fees in accordance with such procedure and subject to such limits. With
      these amendments, local areas now have assumed a constitutional context
      and significance.

 E           232. In the judgment in Diamond Sugar Mills, the Constitution
      Bench emphasized that in using the expression local area, the framers
      of the Constitution were aware of the previous legislative history and
      meant an area administered by a body (such as Municipalities, Panchayats
      or local board) constituted under the law for the governance of local
      affairs in any part of the state. This statement of principle in the decision
 F    in Diamond Sugar Mills now stands fortified in view of the constitutional
      amendments brought by the insertion of Parts IX and IXA. into the
      Constitution. A local area cannot be defined with reference to che entire
      state but will comprehend within the state, an area tliat is administered
      by a local body constituted under the law.
 G           K.4 Sever.ability
             233. On behalf of the states, it has been urged that where a state
      legislature provides for the levy of an entry tax only upon goods brought
      from outside the state, the offending words may be treated as severable

 H
       JINDAL STArNLESS LTD. v. STATE OF HARYANA                              651
                  [DR. D. Y. CHANDRACHUD, .J.]

and struck down so as to allow for the imposition on goods entering a A
local area both from within or outside the state. Such an exercise would
clearly be impermissible. Where the state legislature has evinced a clear
intent to levy a tax only upon the entry of goods originating from outside
the state, it would be impermissible, by a process of interpretation as
suggested to excise the offending words. Such an excise would not fall
within the permissible scope of reading down the statute. The effect of
such a judicial exercise would be to impose a levy upon goods moving
into a local area from within the state, though, thi.s has not been done by
the state legislature. Whether such a levy should be imposed is a matter
for the state legislature to determine in its law making authority. This
Court in the exercise of its power of judicial review can hold that a c
discrimination between goods imported from outside the state and goods
produced or manufactured within the state for the levy of a tax would be
violative of Article 304(a). Where the state legislature has committed an
act of hostile discrimination by imposing a tax only upon goods originating
outside the state upon their entry within it, the court must strike down D
such a provision which violates Article 304(a). The provision cannot be
re-written by judicial interpretation to mean that the tax will be levied
both on goods originating outside the state and goods originating within
the state and entering a local area. Re-writing a legislative provision is
impermissible in the exercise ofjudicial review.
                                                                            E


      K.5 E<1uality of tax burdens
        234. At first impression A1iicle 304(a) presents a fairly simple
application. If a tax at the rak of five percent is imposed by a taxing
state on goods imported from other states, similar goods which are            F
produced or manufactured within the taxing state must be subjected to a
five per cent tax. If a higher rate of tax is imposed on goods originating
in other stateswhich are imported into the taxing state, this would result
in a discrimination against impo1ted goods. Such a discrimination is sought
to be obviated by the requirement that the rate of tax should be the same     G
as between similar goods produced or manufactured within the taxing
state and goods imported from other states. This furnishes the rationale
for several decisions of this Court, which hold that Article 304(a)
mandates the same rate of tax and once that requirement is fulfi lied, the
application of the provision is at an end.
                                                                              H
652             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A            235. The submission of the petitioners, however, which falls for
      close examination is that Article 304(a) requires that the very tax which
      is imposed by a taxing state on imported goods must be imposed on
      domestic goods. In the context of entry tax, the submission is that unless
      the taxing state imposes it on similar local goods, an entry tax cannot be
      imposed on goods imported from other states. If goods manufactured or
 B
      produced in the taxing state are not subject to entry tax, that will result in
      a discrimination if imported goods of other states are so subject.
             236. The example which has been set out above of the application
      of differential rates of tax, for the same tax imposed on domestic as
 c    opposed to imported goods presents a simple application ofArticle 304(a).
      The example is simple in the sense that a discrimination is then effected
      in the imposition of the same tax by subjecting domestic and imported
      goods to differing treatment. The picture may, however, become more
      nuanced. Different states have adopted varying models while framing
      legislation in a manner which, according to them, fulfils the mandate of
D     Article 304(a). Whether it in fact, does so is for the court to determine.
             23 7. A state may have a single legislative enactment providing for
      both entry tax and sales tax at equal rates. Some other states provide for
      set offs and statutory exemptions to goods paying local sales ta:~. Certain
      states provide a similar set off for goods imported from another state, if
 E    they are sold in the taxing state. The legislation of some states provides
      for a reduction of tax liability under the sales tax law by the amount of
      ently tax paid while in other cases, state legislation provides for a reduction
      of entry tax by the amount of tax paid under the General Sales Tax Act.
      Similarly, state enactments provide for the reduction of liability under
 F    entry tax legislation by the amount of tax which is paid under the sales
      tax law of that state. Contrariwise, such a reduction has not been made
      available to imp01ted goods in ce1tain state legislation. The state legislation
      may have excluded from entry tax those local goods which are liable to
      pay sales tax under the State Act. However, an importer of scheduled
 G    goods who incurs liability under value added tax legislation, by vi1tue of
      the sale of imported goods or the sale of goods manufactured by consuming
      such imp01ted scheduled goods, is entitled to a set off. State legislation
      in certain cases exempts goods from entry tax if after entry in a local
      area, the goods are sold there and become liable to pay value added tax.
      In other cases, manufacturers in a local area are exempt from paying
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                  653
                  [DR. D. Y. CHANDRACHUD, J.]

entry tax on raw material imported from another local area or another             A
state. In some cases, manufacturers in a local area are required to pay
the same entry tax on raw material imported from another local area or
another state.
        238. These examples furnish illustrations of different patterns and
approaches adopted by state legislation. It is necessary to clarify that in B
this reference the nuances of each state law are not being considered
since the cases would have to be placed for disposal before the
appropriate Bench after the reference is answered. For the purpo5es of
this reference, it is sufficient for the court to lay down broad principles
governing the area without going into individual facts or detailed provisions C
covering each case in relation to the period at issue in the respective
states.
       239. Article 304(a), in so faras is material, authorises the legislature
of a state to impose on "goods imported" from other states "any tax to
which similar goods manufactured or produced in that state are subject".          D
Several aspects of Article 304(a) merit emphasis:
       240. The first is that Article 304(a) refers to the imposition of any
tax on goods. The provision is not either a source of legislative power
nor does it prescribe fields of legislation. The expression "any tax on
goods" is of a generic nature and covers all taxes which a state is               E
competent to impose on any aspect of goods under Articles 245 and 246
read with List II of the Seventh Schedule. The expression 'any tax'
would mean any exactionin the nature of an impost or levy which the
state legislature is competent to enact by virtue of its legislative powers.
The expression 'any tax' must mean what itsays: it means any levy
which the state is constitutionally competent to legislate.                       F

       The second aspect ofArticle 304(a) is the latter part which provides
that the state shall act :


       "so, however, as not to discriminate between goods so                      G
       imported or goods so manufactured or produced."


        24 I. The fundamental reason for the incorporation of this provision
is to prohibit discrimination being practiced by the state against imported
                                                                                  H
654              SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A     gooGs by embarking upon protectionist policies. The discrimination which
      the constitutional provision is intended to rule out is discrimination which
      is protectionist in nature. A state cannot impose taxes in a manner that
      would make the goods of another state non-competitive so as to
      effectively bar the inflow of trade by utilizing fiscal exactions.
B            Thirdly, the latter part of Article 304(a) is prefaced by the
      expression "so however". In Words and Phrases 94 ,the expression
      however has been explained as indicating "an alternative intention, a
      contrast with a previous clause and a modification of it under
      circumstances" 95 • The Oxford dictionary defines the expression
c     'however' to mean "in any case, at all events, at any rate." Another
      meaning attributed to the phrase is "used by itself, or follov!ed by points
      of suspension, as an inte1jection or as a fonnula concluding, introducing
      or modifying an utterance in some contextual way". P Ramanatha
      Aiyar's Law Lexicon 96 states that the word 'however' in a deed or will
      indicates an alternative intention, a contrast with a previous clause and a
D     modification of itunder certain circumstances. The latter part of Article
      304(a) follows upon the first which enables the state to impose on goods
      which are imp01ted from other states any tax to which the goods produced
      or manufoctur<!d within the state are subject. The latter part constitutes
      a positive re-affirmation that in any case, at all events and at any rate
 E    there shall be no discrimination between goods manufactured or produced
      within the taxing state and goods imported from other states. This
      narrative is the dominant theme of Article 304 (a).
             Fourthly, an expression of some significance that is used in the
      latter part of Article 304(a) is "between". That expression has been
 F    employed so as to mandate that there shall be no discrimination between
      gooc!s imported into the taxing state from other states and goods that are
      manufactured and produced within. The use of the expression "so" in
      the latter part is an obvious reference to the imported goods and the
      goods manufactured or produced within, referred to in the first part. The
 G    expression 'between' postulates that imported goods and local goods
      must be allowed a level playing field in the taxing state. Imported goods
      from another state cannot be placed at a comparative disadvantage.
      " (Pennanent Ed. Vol. i 9A)
      " (II"' Ed. Vol. II, p. 59)
      "(4'" Ed. Vol. III, Id. at p. 3134)
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             655
              [DR ..D. Y. CHANDRACHUD, J.]

The expression 'between' also signifies that goods produced or A
manufactured within the taxing state should also not be discriminated
against. In seeking parity of treatment, it is as much the obligation of the
taxing state to ensure that there is no discrimination against goods
originating in other states, as much as it is its concern to ensure that
domestic goods are not discriminated against. The former is a matter of B
constitutional obligation. However, it does not exclude a similar obligation
and concern of the taxing state in respect of goods produced and
manufactured within its territorial limits. Both must go hand in hand.
Discrimination both in a positive manner against imported goods and a
reverse discrimination against domestic goods are within the ambit of
Article 304(a).                                                              c
       The fifth important principle which requires emphasis is that our
Constitution does not embody a requirement that the state legislature
while enacting ;!_legislation must legislate separately in respect of each
subject of legislation contained in List II. A law enacted by the state
legislature imposing a fiscal levy may cover more than one subject of D
legislation falling within its legislative competence in List II. In contrast,
Section 55 of the Australian Constitution mandates that there shall be
one tax law on one subject. Article 55 of the Australian Constitution
reads as follows:
                                                                               E

      "Article55 : Laws imposing taxation shall deal only with the
      imposition of taxation and any provision therein dealing with
      any other matter shall be of no effect. Laws imposing
      taxation except laws imposing duties of customs or of excise
      shall deal with one subject of taxation only; but laws imposing         F
      duties of customs shall deal with duties of customs only,
      and laws imposing duties of excise shall deal with duties of
      excise only."

                                                                              G
       242. The Indian Constitution does not impose such a restriction
on the states. Considered from a different perspective, '"rag-bag"
legislation is constitutionally permissible under the Indian Constitution
and it is open to a single enactment to draw sustenance from more than
one entry which falls within the legislative competence of the enacting
                                                                              H
656             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A     legislature. [See in this context: Ujagar Prints (II) v. Union oflndia 97 ,
      All India Federation of Tax Practitioners v. Union of lndia 98 ,and
      State of A. P. v. NTPC 99 ].
             243. As a matter of constitutional doctrine, there is no restraint on
      the plenary powers of Parliament as well as the state legislatures which
B     rcqu;res the legislative body enacting a statute to legislate only upon one
      head of legislation falling within its competence. The legislature can
      distribute or allocate its regulatory or law making requirements (both
      fiscal and non-fiscal) in a manner which best sub-serves its needs and
      concerns. Once this be the position, its impact upon the interpretation of
 c    Article 304( a) is that it is open to the state legislature to have due regard
      to the equality of tax burdens, when it legislates to impose "any tax" so
      long as it does not breach the notion of non-discrimination as between
      goods that are imp01ied from other states and goods which are produced
      or manufactured within. It is legitimately entitled to ensure that the tax
      burden should not discriminate between locally produced or manufactured
D     goods of that state and goods originating in other states. The substance
      must prevail over fonn. Once there is no constitutional necessity that
      the form in which legislation is enacted in India must cover only one
      legidative entry, the legislature is entitled to devise a law in a suitable
      manner which while being consistent with the norm of non-discrimination
 E    also preserves a parity of tax burden between goods imported and
      domestic goods. This is the foundation of the theory of equivalence.
             244. The burden of establishing that there is a discrimination against
      goods which are imported from other states lies on the person who sets
      up such a plea. In answering a plea of discrimination, it would be open to
 F    the state to establish that the legislative provision which it has enacted
      maintains the principle of non-discrimination between goods produced
      and manufactured within the state and goods imported from other states
      while at the same time bringing about parity in ten11S of tax burden
      between domestic and imported goods. Sales tax is referable to Entry
 G    54 of List 11 ("taxes on the sale or purchase of goods other than
      newspapers, subject to the provisions of Entry 92A of List I"). Entry tax
      is referable to Entry 52 of List II ("taxes on the entry of goods into a
      "' (1989) 3 sec 488
      "(2007) 7 sec s21
      '" (2002) s sec 203
 H
        JINDAL STAfNLESS LfD. v. STATE OF HARYANA                                  657
               [DR. D. Y. CHANDRACHUD. J.]

local area for consumption. use or sale therein"). Both sets of taxes fall         A
within the competence of the state legislature. Ta:-rnblc events under
entries both entries are distinct :in the case of one the sale of goods and
in the case of the other, entry of goods into a local area for consumption,
use or sale therein. Both deal with separate aspects of the taxation of
goods: the ta\.able events being proximate though distinct. The expression
                                                                                   B
"any tax'' recognises the full panoply of taxes on goods falling within
List II. If a law can cover Entry 52 and Entry 54 of List II, there is no
reason to prohibit the state law making authority from having due regard
to the wx burdens imposed on domestic goods and goods imported from
other states under entry tax and sales tax legislation, taken as a composite
whole. "Any tax'' does not mean n tax under one entry of List II as a              c
discrete and isolakd legislation independent of any another entry. Any
adjustment, exemption or set offbased on the payment of sales tax may
be intended to avoid double taxation and discrimination. \Vheth~r this
object has been legitimately achieved by the enacting law is· a matter to
 be determined on its interpretation and application.                              D
       245. lt is trite law that every discrimination involves a differentiation
but every differentiation does not implicate discrimination. (Digvijay
Cement v. State of Rajasthan""'). The cnqui1y into whether a stak
has practiced discrimination against goods imported from other states
will commence with an investigation into whether the state legislation             E
has made any differentiation between the two sets of goods.This is not
merely in terms of the rate of tax but there are other important aspects
including:


       (i) procedures and machinery including aspects such as Iiccncing,           F
       recognition and compliance:
       (iii) Measure of the tax; and
       (iv) Exemptions or set offs;
       Beyond this enquiry, the court would need to analyse the reasons            G
for the differentiation and then to determine as to whether there has
been a discrimination violative of Article 304(a).

""'(2000J 1 sec 688 (Pr. 24J

                                                                                   H
658             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A           K.6 Entry tax and imported goods


             246. Entry 83 of List I provides for "duties of customs including
      export duties". The submission of the petitioners is that there being no
      over-lapping oflegislative entries, the field of Entry 52 of List II would
 8
      begin where that of Entry 83 of List I ends. Hence, while considering
      whether entry tax can be imposed in relation to goods imported into
      India, it is urged that until the goods become a part of the landmass, they
      can be subjected to a law under Entry 83 of List I and to a duty of
      import. It is only where a Bill of entry for home consumption is. filed that
 c    the goods cease to be imported goods. Until then, it is urged, no entry tax
      would be leviable.
             247. The taxable event referable to a law enacted under Entry 83
      of List I (in relation to an import customs duty) is the act of import by
      which goods miginating in a foreign country are brought into India. Section
D     2 (23) of the Customs Act, 1962 defines the expression import to mean
      "bringing into India from a place outside India''. The expression imported
      goods is defined to mean "any goods brought into India from a place
      outside India" but so as not to include goods which have been cleared
      for home consumption. Section 2 (26) defines the expression importer in
 E    relation to any goods at any time between their importation and the time
      whea they are cleared for home consumption, to include any owner or
      any person holding himself out to be an importer.
              248. Section 46 provides that the importer of any goods (other
      than goods for transit or transhipment) shall present to the proper officer
 F    a bill of entry for home consumption or warehousing in the prescribed
      fonnat. The bill of entry can be presented at any time after the delivery
      of the imp011 manifest or import report. Section 4 7 provides for clearance
      of goods for home consumption upon the satisfaction of the officer that
      the goods entered for home consumption are not prohibited goods and
      the importer has paid the import duty assessed thereon together with the
 G    charges payable under the Act. Section 48 provides for the sale of
      goods by the person having custody if they are not cleared for home
      consumption or warehousing or transhipped within 30 days from the
      date of unloading. Chapter IX provides for warehousing. Section 57
      provides for public warehouses where dutiable goods may be deposited.
 H
           JINDAL STAINLESS LTD. v. STATE OF HARYANA                           659
                        [DR. D. Y. CHANDRACHUD, J.]

Section 58 provides for the licencing of private warehouses where dutiable     A
goods !'1rny be deposited. Section 59 provides for the execution of a
warehousing bond. Section 60 deals with the grant of pennission to deposit
goods in a warehouse. Section 61 provides for the period during which
goods can remain in a warehouse. Under Section 64, the owner's right
to deal with warehoused goods has been statutorily recognized to the
                                                                               B
extent mentioned therein. Section 65 enables the owner of any
warehoused goods with due permission to carry on any manufacturing
process or operations in the warehouse, relating to the goods. Section 68
provides for the clearance of warehoused goods for home consumption
subject to the presentation of a bill of entry, payment of import duty and
all penalties and charges and upon the passing of an order of clearance        c
for home consumption. Section 73 provides for the cancelation and the
return of a warehousing bond.
       249. The Constitution distributes subjects oflegislation including,
amongst them, those covering fiscal matters between the Union and the
States. The fields or subjects oflegislation are elaborately defined so as D
to exclude the possibility of overlapping between entries in List I and
those in List II. Even where the fields may appear to overlap, they must
be construed to be mutually exclusive. The submission of the petitioners
proceeds on the basis that if entry into any part of India from outside
India is an entry into a local area, it 1would nonetheless be necessary to E
eannark the ambit of Entry 83, List I and Entry 52 List 11 respectively.
Both, according to the petitioners cover taxes on the movement of goods.
According to the petitioners, Entry 52 should cover an entry into a local
area after the importation of the goods is complete since the field of
Entry 83 continues to subsist until the goods have been imported by filing
                                                                           F
of a Bill of entry for home consumption.
       250. Entry 83 of List I and Entry 52 of List II have separale and
distinct fields of operation. Entry 41 of List I deals with trade and
commerce with foreign countries; import and export across customs
frontiers; and definition of customs frontiers. The distribution of powers
                                                                               G
with reference to the taxing entries in List I and 11 is mutually exclusive.
     251. In a decision rendered in 1942 by the Federal Court in
Province of Madras v. Messrs. Boddu Paidanna & Sons 101 , it was
 IOI   1942 F.C.R. 90
                                                                               H
660            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     held that if a tax payer who pays sales tax is also a manufacturer subject
      to excise duty "there may no doubt be overlapping in one sense, but
      there is no overlapping in law". The two taxes which he is called upon to
      pay-excise duty and sales tax were held to be "economically two separate
      and distinct imposts". There was, in the view of the Federal Comt no
      reason to expand the meaning of the expression 'duties of excise' at the
 B
      expense of the provincial power to levy taxes on the sale of goods. The
      judgment of the Federal Cornt was affirmed by the Privy Council in
      Governor General in Council v. Province of Madras' 0". The Privy
      Council held that :

 c
            "The two taxes, the one levied upon a manufacturer in
            respect of his goods, the other upon a vendor in respect of
            his sales, may, as is there pointed out, in one sense overlap.
            But in Jaw there is no overlapping. The taxes are separate
 D          and distinct imposts. If in fact they overlap, that may be
            because the taxing authority, imposing a duty of excise, finds
            it convenient to impose that duty at the moment when the
            exciseable article leaves the factory or workshop for the
            first time upon the occasion of its sale. But that method of
            collecting the tax is an accident of administration, it is not
 E          of the essence of the duty of excise which is attracted by
            the manufacture itself."


             252. Applying the same principle, this Court held in Ram Krishan
 F    Ram Nath Agarwal v. Secretary, Municipal Committee,
      Kamptee 103 that a Bidi manufacturer was liable to pay excise duty and
      octroi on two distinct taxing events : whereas excise duty is a tax on
      manufacture, octroi duty is a tax on the entry of goods into a local area.
      In The Jiyajeerao Cotton Mills Ltd. v. State of Madhya Pradesh 104,
      a textile mill which was generating electricity for running the mill (and
 G    not for sale) questioned the levy of electricity duty on the ground that
      this would amount to a levy of excise duty which fell exclusively within

      '"' AIR (1945) PC 98
      1oi AIR (1950) SC II

 H
      '°' (1962) Supp. I SCR 282
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              661
                  [DR. D. Y. CHANDRACHUD, J.]

the competence of Parliament under Entry 84 of List I. Rejecting the          A
submission, this Court held that :


      "6. lt is difficult to see how the levy of duty upon
      consumption of electrical energy can be regarded as duty
                                                                              B
      of excise falling within Entry 84 of List I. Under that Entry,
      what is permitted to Parliament is levy of duty of excise on
      manufacture 01' production of goods (other than those
      excepted expressly by that entry). The taxable event with
      respect to a duty of excise is "manufacture" or
      "production". Here the taxable event is not production                  c
      generation of electrical energy but its consumption. If a
      producer generates electrical energy and stores it up, he
      would not be required to pay any duty under the Act. It is
      only when he sells it or consumes it that he would be
      rendered liable to pay the duty prescribed by the Act. The              D
      Central Provinces and Berar Electricity Act was enacted
      under Entry 48-B of List II of the Government of India
      Act, 1935. The relevant portion of that Entry read thus:


      "Taxes on the consumption or sale of electricity"                       E
      Entry 53 of List 11 of the Constitution is to the same
      effect ... ''                   (Id. at p. 286-287)


       253. In D G Gose v. State of Kerala 105 , this Court held that a tax    F
on buildings imposed under the Kerala Building Tax Act, 1961 was
referable to Entry 49 of List 11 and was not a tax on the capital value of
assets under Entry 86 of List I. In that context, it was held that :

                                                                              G
       "7 .... So if a tax is levied on all that one owns, or his total
       assets, it would fall within the purview of Entry 86 of List I,
       and would be outside the legislative competence of a State

'"' (1980) 2 sec 4to
                                                                               H
662             SUPREME COURT REPORTS                            [2016] 10 S.C.R.



A           legislature, e.g. a tax on one's entire wealth. That entry
            would not authorise a tax imposed on any of the components
            of the assets of the assessee. A tax directly on one's lands
            and buildings will not therefore be a tax under Entry 86 .....
            8 ... .lf, therefore, a tax is directly imposed on 'buildings', it
 B          will bear a direct relation to the buildings owned by the
            assessee. It may be that the building owned by an assessee
            may be a component of his total assets; but a tax under
            Enny 86 will not bear any direct or definable relation to his
            building. A tax on 'buildings' is therefore a direct tax on the
 C          assessee's buildings as such, and is not a personal tax without
            reference to any particular property."           (Id. at. p. 421)


            254. This decision has been affinned in Union of lndfa v. H S
      Dhillon 106 .While reiterating this position in Lt. Col. Sawai Bhawani
 D    Singh v. State of Rajasthan 107 , this Court held that:


            "7 ..... These two taxes are separate and distinct in nature
            and it cannot be said that there was any overlapping, or
            that the State Legislature was not competent to levy such
 E
            tax on lands and buildings merely on the ground that they
            have been subjected to another tax as a component of the
            total assets of the person concerned."        (Id. at p. 111)


 F           255. In Mis RR Engineering Co. v. Zila Parishad Bareilly 108 ,
      a tax was imposed on "circumstances and property" under the U P
      Kshettra Samitis & Zila Parishad Adhiniyam, 1961. This composite tax
      was questioned on the ground that this was essentially a tax on income
      under Entry 82 of List I and therefore outside the legislative competence
 G    of the state legislature. Rejecting this submission, this Court held that:


      '°'(1971) 2 sec 779
      '"' o996) J sec 10s
      '""(I 980) 3 sec 330
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           663
              [DR. D. Y. CHANDRACHUD, J.]

      "17. The Full Bench decision under appeal in the instant             A
      case, R.R. Engineering Co. [R.R. Engineering Co. v. Zila
      Parishad, Bareilly, AIR 1970 All 316], has taken the same
      view of the nature of the tax on circumstances and property
      by holding that it is not a tax on income but is a tax on a
      man's financial position, his status as a whole, depending
                                                                           B
      upon his income from trade or business. Earlier, another
      Full Bench of the Allahabad High Court had held in Zila
      Parishad, Muzaffar Nagar v. Jugal Kishore that the tax on
      circumstances and prope11y is fundamentally distinct from
      and cannot be equated with income tax, that it is not covered
      by item 82, List I, Schedule VII, of the Constitution and            c
      that it is essentially a tax on status or financial position
      c0mbined with a tax on property. These decisions correctly
      describe the nature of the tax on circumstances and
      property. We affirm the view taken therein, especially that
      the aforesaid tax is not a tax on income."                           D
                                                   (Id at p. 337)


     The constitutional principle has been enunciated by a Constitution
Bench in Godfrey Phillips India Ltd. v. State of U P 109 thus :
                                                                           E

      "The logical corollary of holding that taxes are imposed only
      on taxable events is that even when an ently speaks of a
      levy of a tax on goods, it does not include the right to impose
      taxes on taxable events which have been separately provided           F
      for under other taxation entries. The tax in respect of goods
      has sometimes been referred to as a tax on an aspect of
      the goods and sometimes as the taxable income. (See
      Federation of Hotel Restaurant v. Union oflndia (1989) 3
      sec 634=AIR 1990 SC 1637, (Pr. 13, 14, 16)."
                                                                            G
                                                      (Id. at p. 544)
       256. The principle oflaw is hence well-settled: the taxing powers
of the Union and the states are mutually exclusive. (See in this context

'°' (2005) 2 sec 515
                                                                            H
664                SUPREME COURT REPORTS                          [2016] IO S.C.R.



A     the decisions in Hoechst Pharmaceuticals v. State of Bihar 110 ; and
      State of West Bengal v. Kesoram lndustries 111 ).
             257. A Bench of nine Judges of this Court in Re Sea Customs 112 ,
      distinguished the taxable event in the case of a duty of excise, which is
      the manufacture of goods, with a sales tax where thetaxable event is the
B     act of sale. Dealing with customs duties, the Bench of nine Judges
      speaking through Sinha, CJ held as follows :


                "Similarly in the case of duties of customs including export
                duties though they are levied with reference to goods; the
c               taxable event is either the import of goods within the customs
                barriers or their export outside the customs barriers. They
                are also indirect taxes like excise and cannot in our opinion
                be equated with direct taxes on goods themselves. Now,
                what is the true nature of an import of an import duty?
D               Truly speaking, the imposition of an import duty, by and
                large, results in a condition which must be fulfilled before
                the goods can be brought inside the customs barriers, i.e.
                before they form part of the mass of goods within the
                country."                                      (Id. at. p. 543)
 E

             Entry of goods into a local area for consumption, use or sale therein
      attracts the charging provision of entry tax legislation. The levy which is
      referable to Entry 52 of List II is attracted the moment the goods enter
      a local area for consumption, use or sale. The Customs Act, 1962 has
 F    made a beneficial provision for allowing goods to be deposited in public
      or private warehouses and for the clearance of goods for home
      consumption. These provisions cannot and do not detract from the power
      of the state legislatures under Entry 52 nor do they denude the states
      from levying an entry tax once the taxable event under state law has
G     occurred.
                258. In the present case, the grievance of the states is that the

      ""(1983) 4 sec 45
      '" (2004) 10 sec 2011
H     112   (1963) 3 SCR 787
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              665
                  [DR. D. Y. CHANDRACHUD, J.]

petitioners have not stated in the pleading that there is any warehousing     A
station in their factory units or in the local area where they are located.
Hence, the contentions are stated to have been advanced without any
basis in the pleadings or facts. Moreover, it has been submitted that the
petitioners have not produced any evidence that the bill of entry is filed
in the factory units or in a land customs station located in the same local   B
area as the petitioner's units.
        259. For the purposes of this reference, it is not appropriate for
the court to conclusively adjudicate upon the issues raised relating to the
facts of the above cases. Hence, it is only appropriate and proper that all
the facts are fully established before the regular bench adjudicating upon    c
the cases relating to goods imported from abroad. However, the
constitutional position in respect of Entry 83 of List I and Entry 52 of
List 11 has been clarified above. The taxable event for theimposition of a
duty of customs is distinct from the taxable event in respect of an entry
tax, which is the entry of goods into a local area for consumption, use
and sale therein.                                                             D


       M Direct and inevitable effect test
       2'50. Whether taxes per se constitute an impediment upon the
freedom of trade, commerce and intercourse is an issue which has E
resulted in two contrary positions, neither of which has been subscribed
to in this judgment. At one end of the spectrum is the theory that all
taxes impede the freedom of .h·ade, commerce and intercourse. If this
theory were to be accepted, the entire tax regime and the state taxing
power would be controlled by Part Xlll of the Constitution. The states F
which are sovereign within their own sphere would in the exercise of
their constitutional power to raise revenues by way of taxation be subject
to the rigours of Part XIII. Such an extreme view is not acceptable
either from the stand point of textual construction or from its consequence
for the federal structure of the Constitution. All taxes do not impede the
freedom of trade, commerce and intercourse. lnfact, as discussed earlier, G
taxes provide the means by which revenues can be raised under a regime
oflaw made by law making bodies at the federal and state level. Absent
a taxing power, the states would be bereft of revenues needed for
maintaining order and governance. Trade, commerce and intercourse
                                                                            H
666             SUPREME COURT REPORTS                            [2016] 10 S.C.R.



A     cannot survive in the abstract and without conditions of stability and
      order created by the state. Moreover, the revenues which are made
      available to the state provide the basis for creating infrastructure and
      amenities, both direct and incidental, through which trade and commerce
      can effectively be transacted and can flourish. Hence, the extreme
 B    proposition that all taxes constitute a restriction or impediment upon trade
      has been eschewed.
             261. At the other end of the spectrum lies the view that taxes do
      not constitute a restriction upon the freedom of trade, commerce and
      intercourse. If this view were to be accepted, Part XIII would have no
 c    role as a constitutional limitation on taxing legislation save and except
      for discriminatory taxes of the kind that are prohibited by Article 304(a).
      The position thatArticle 304(a) constitutes the entire universe of taxation
      for the purpose of Part XIII has been rejected by this judgment on the
      ground that it suffers from fundamental fallacies and is contrary to the
      text of Part XIII.To recapitulate, the grounds for so holding are :
D

             (i) Laws for the purposes of Paii XIII must mean all laws and not
                 to the exclusion of taxing legislation;
             (ii) TI1e constitutional validity of Parliamentary legislation imposing
 E                sales tax has been upheld on the basis of the provisions of
                  Atiicle 302 which enables Parliament to impose restrictions
                  on the freedom of trade and commerce in the public interest.
                  If taxing legislation is regarded as a restriction for the purposes
                  of Article 302, there is no reason to exclude the same
 F                interpretation for the purposes of Article 304;
            (iii) Atiicle 304(a) deals with a specific area of taxation-taxation
                 of goods. The legislative powers of the state legislatures in
                 List II of the Seventh Schedule enables them to tax persons,
                 activities or things (Godfrey Phillips India Ltd. v. State of
 G               U P 113). Article 304(a) covers only the last category namely a
                 tax on goods. It does not cover taxes on persons (profession
                 taxes or luxury tax) or taxes on activities (betting a11d gambling);
             (iv) Article 30 I guarantees free trade, commerce and intercourse

      "'Supra note 109
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             667
              [DR. D. Y. CHANDRACHUD, J.]

         throughout the territory of India. Inter-state trade as well as     A
         trade and commerce within a state is guaranteed. Aiticle 304(a)
         covers only taxes imposed on goods imported from other states.
         Article 304(a) in other words does not cover imposts on goods
         traversing within a state;
      (v) Aiticle 306 of the Constitution, as it stood prior to its repeal   B
          contemplated that restrictions could take the fonn of duties
          and imposts; and
      (vi) The expression 'restrictions' has been utilized in Part Xlll of
          the Constitution, as the provisions of Articles 302, 303, 304 and
          306 would indicate in a manner that would not exclude taxing C
          legislation. The consistent view of Constitution Benches of this
          Court has been that taxes may under certain circumstances
          amount to a restriction on the freedom of trade and commerce.
          The position has been lucidly summarized in the erudite
          judgment of Justice MN Venkatachaliah (as the learned Chief D
          Justice then was) in Express Hotels Pvt. Ltd. v. State of
          Gujarat 114 • After reviewing the position of law, the learned
          judge held thus:


      "Taxes can and do sometimes, having regard to their effect             E
      and impact on the free flow of trade constitute restrictions
      on the freedom under Article 301. But the restriction must
      stamp from the provisions of the law imposing the tax which
      could be said to have a direct and immediate effect of
      restricting the free flow of "trade, commerce and                      F
      intercourse". lt is not all taxes that have this effect."
                                                     (Id. at p. 697)


       262. Nearly, five decades of jurisprudence having developed in
support of the above principle, there is neither any rationale of            G
constitutional principle or law that should leave this Court to make a
departure from the position and to hold that taxes can in no circumstances
constitute a restriction on the freedom of trade and commerce. Moreover,

"' (1989) 3 sec 677
                                                                             H
668             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     it has been accepted even as a matter ofjudicial precedent that taxation
      serves not only the purpose of raising revenues but is also a powerful
      instrument of social control. The states and the Union in the exercise of
      their legislative powers, utilise taxation not only as a means of raising
      revenues to support their developmental activities but also as a measure
      of achieving social objects. Whether the pursuit of those social objects
B
      or the pursuit of social regulation infringes upon the area of free trade
      and commerce cannot be decided a priori. The power of taxation is
      capable of being used in a manner which can constitute, in a given case,
      a restraint or impediment on the freedom of trade and commerce.
             263. In determining as to when taxes can constitute a restriction
c
      on the freedom of trade and commerce, the direct and immediate effect
      test (as refined subsequently) provides a judicially manageable
      framework. The test of direct and immediate effect was enunciated in
      the judgments in Atiahari and Automobile Transport. The test is firmly
      entrenched as a part of our jurisprudence. In RC Cooper v. Union of
D     lndia 115, a Bench of eleven Judges of this Court while adjudicating upon
      the validity of a law providing for bank nationalization overruled the
      judgment in AK Gopalan v. The State of Madras' 10 which had taken
      the view that it was the object of the action of the state in relation to the
      fundamental right of the individual and not the effect of the action that
 E    was relevant. This Court held that:


             "49 ..... But it is not the object of the authority making the
             law impairing the right of a citizen, nor the form of action
             that determines the protection he can claim: it is the effect
 F           ofthe law and of the action upon the right which attracts
             the jurisdiction of the Court to grant relief. If this be the
             true view, and we think it is, in determining the impact of
             State action upon constitutional guarantees which are
             fundamental, it fol lows that the extent of protection against
G            impairment of a fundamental right is determined not by the
             object of the Legislature nor by the form of the action, but
             by its direct operation upon the individual ·s rights:'
                                                             (Id at p. 288)
      '" (1970J 1 sec 248
H     "'·(1950) I SCR88
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               669
                  [DR. D. Y. CHANDRACHUD, J.)

       In Bennett Coleman & Co. v. Union of lndia 11 7,the same                A
principle was formulated in the following statement oflaw:


      " .. First, it is not the object of the authority making the law
      impairing the right ofthe citizen nor the form of action that
                                                                               B
      detem1ines the invasion of the light. Secondly, it is the effect
      of the law and the action upon the right which attracts the
      jurisdiction of the court to grant relief. The direct operation
      of the Act upon the rights fonns the real test."
                                                         (Id at p. 799)
                                                                               c
        264. In Maneka Gandhi v. Union of Indiarn, this Court refined
this test to mean the "direct and inevitable effect" of the action impugned.
The direct and inevitable effect is that which necessarily must be intended
by the state legislature, or, in other words, what may be described as the
                                                                               D
doctrine of intended and real effect.
       This Court held that :
       "20. It may be recalled that the test fonnulated in R.C.
       Cooper case merely refers to "direct operation" or 'direct
       consequence and effect' of the State action on the                      E
       fundamental right of the petitioner and does not use the
       word "inevitable" in this connection. But there can be no
       doubt, on a reading of the relevant observations of Shah, J.,
       that such was the test really intended to be laid down by
       the Court in that case. If the test was merely of direct or
                                                                               F
       indirect effect, it would be an open-ended concept and in
       the absence of operational criteria for judging "directness",
       it would give the Court an unquantifiable discretion to decide
       whether in a given case a consequence or effect is direct
       or not. Some other concept-vehicle would be needed to
       quantify the extent of directness or indirectness in order to           G
       apply the test. And that is supplied by the criterion of
       "inevitable" consequence or effect adumbrated in the

'" (1972) 2 sec 788
"' (1978) 1 sec 248
                                                                               H
670             SUPREME COURT REPORTS                           [2016) 10 S.C.R.



A            Express Newspapers case. This criterion helps to quantify
             the extent of directness necessary to constitute infringement
             ofa fundamental right. Now, if the effect of State action on
             fundamental rights is direct and inevitable, then a fortiori it
             must be presumed to have been intended by the authority
 B           taking the action and hence this doctrine of intended and
             real effect."                   ·              (Id. at p. 299)


              265. ln order to determine whether a law providing for the
      imposition of a tax constitutes a restriction on the freedom of trade,
 c    commerce and intercourse, the principle that must be applied is whether
      the direct and inevitable effect or consequence of the law is to impede
      trade and commerce. The burden must lie on the person who alleges
      that such is the effect of the tax to plead and establish to the satisfaction
      of the com1 that the consequence which is alleged does in fact exist. The
 D    direct and inevitable consequence for the purposes of Part Xlll of the
      Constitution is not the same as an infringement of the fundamental right
      to carry on an occupation trade or business under Article 19( 1)(g). Under
      Article 19 ( 1)(g), it is the individual's right to carry on trade or business
      which is guaranteed as a fundamental freedom. When a legislative
      measure seeks to cm1ail that freedom, the test is whether the right of
 E    the individual has been infringed or eviscerated. In the context of Part
      Xlll,the matter is looked at from the perspective of trade and commerce
      as a whole. Henc'e, in a case which falls under Part Xlll of the Constitution
      it is for the petitioner to demonstrate and establish that the direct and
      inevitable effect of the law imposing a tax is to impede or restrict the
 F    flow of trade and commerce.
             266. The mere fact that the activity which is taxed is related to
      the flow or movement of trade and commerce is not sufficient in itself to
      lead to the inference that a tax on that activity impedes or restricts it.
      Businessmen and traders must and do necessarily factor in the
 G    requirement of tax compliance as a part of an ,overall business plan.
      Hence, the mere fact that the tax is imposed with reference to an activity
      or thing which constitutes an aspect of trade or commerce is not sufficient
      in itselflead to the consequence that it is a restriction or impediment of
      trade and commerce. The petitioner with such a grievance must cross
      the threshold of establishing in cogent tenns before the Court that the
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                   671
              [DR. D. Y. CHANDRACHUD, J.]

direct and inevitable effect of the tax law is to constitute an impediment         A
of trade and commerce.
        267. In the context of entry tax, it is said on behalf of the petitioners
that, there cannot be an entry into alocal area of goods for consumption,
use or sale unless the tax is paid. If the tax is not paid there can be no
entry of goods. This is the basis for urging that entry tax constitutes a B
direct impediment or restriction on the freedom of trade and commerce.
This approach to the issue cannot be accepted. In the regulatory sphere,
adhc;ence to a regulatory statute may be made a condition precedent to
engaging in a particular line of activity involving business, trade or
commerce. However, the requirement of compliance does not by itself C
render the statute an impediment of trade and commerce. Similarly,in
the fiscal arena,the fact that a tax liability has to be discharged as an
incident of or a pre-condition for engaging in a line of activity does not
by itself-and without actual proof of impediment or restraint-constitute a
restriction. A conclusion that the inevitable consequence and effect of
 the legislation is to impede or restrict trade and commerce can be drawn D
 only on the basis of demonstrable material that establishes that the impact
of the tax is to result in that consequence. The burden to establish this is
 on the person who seeks to do so as a ground for relief.
       268. In a regulatory area as well as in a fiscal context, the legislature
may prescribe the fulfilment of certain requirements subject to which a            E
line of business, trade or commerce may be pursued. The fulfilment of
those requirements may be set down as a condition precedent. A statutory
regulator may for instance stipulate requirements of licencing or
registration before a commercial activity which it regulates can be
undertaken. Licencing or registration nom1s may stipulate financial and            F
other requirements which need to be fulfilled as a pre-condition for
carrying on an activity or business. The fact that a statute allows for or
prescribes such nonns which constitute a condition precedent is not reason
enough to hold that they constitute restrictions in themselves or an
impediment of trade and commerce. The right to carry on trade and
                                                                                   G
commerce is not a right to be free from regulation that ensures orderly
conditions for the pursuit of the activity. Nor can a right be exercised in
such a manner as would create chaos through unregulated actions of
numerous participants. In other words, the fact that a requirement
operates as a pre-condition is not sufficient in itself to hold that it impedes
                                                                                   H
672             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     or restricts trade. In order to constitute an impediment, the condition
      must be demonstrated to cause, as a direct and inevitable consequence
      of its operation a restriction of trade or commerce. Every regulatory
      requirement does not restrict or impede trade and commerce even if at
      the threshold, its fulfilment is a condition enabling a person or entity to
      engage in a regulated activity.
 B
           269. ln a fiscal context, the payment ofan impost or levy is attracted
   when the taxing event occurs. The tax may be on persons, activities or
   things.It is the taxing event which incurs the charge or liability to tax.
   The charge may be associated with an aspect of an activity or thing.
 c The mere fact that this aspect is connected with the flow or movement
   of trade or commerce does not in itself lead to the conclusion that the.
   tax constitutes an impediment or restriction. The impediment does not
   lie in the aspect of the activity or thing which is the subject of the tax but
   in its consequence. Every tax or movement on entry does not impede
   trade or commerce. The volume of trade in a commodity is detem1ined
 D by numerous variables including the nature of the product, availability of
   raw material, transportation and infrastructure, the nature and extent of
   competition, market cycles as well as the elasticity of demand and supply.
   The tax structure is one ingredient which has a bearing on the allocation
   of resources. For a tax to constitute a restriction, there must be
 E demonstrable     material to indicate that its direct and inevitable effect or
   consequence is to obstruct or impede trade or commerce. Before the
   tax is held to be a restriction, the threshold must be crossed by
   demonstrating that the immediate and necessary consequence is to restrict
   impede or obstruct trade as a whole. Unless the impact of the financial
   levy is demonstrated, in tenns ofits direct and inevitable consequence, to
 F
   restrict trade or commercethe provisions of Article 304 (b) would not be
   attracted. For, there has to a restriction in the first place before the issue
   of its reasonableness arises. Consequently, it is not possible to hold that
   the mere fact that the charge of the tax is associated with an aspect of
   the movement of trade and commerce indicates that it is a restriction in
 G every case. The burden lies upon the individual or entity asserting the
    existence of a restriction to demonstrate its impact in tenns of the direct
   and inevitable effect test as adopted abo~e. Hence, there canbe no a
   priori assumption that an entry tax constitutes a restriction or impediment
   to trade and commerce.
 H
         JINDAL STAINLESS LTD. v. STATE OF HARYANA                               673
                [DR. D. Y. CHANDRACHUD, J.]

         N Conclusion                                                            A


         The conclusions of this judgment are, in summation, fonnulated
below:
       270. The freedom guaranteed by Article 301 enables goods,                 B
services, persons and capital to engage in trade, commerce and
commercial intercourse throughout the territory of India. The expression
'throughout' extends the ambit of the freedom across and within state
boundaries. Article 301 subserves the constitutional goal of integrating
the nation into an economic entity comprising of a common market for
goods and services.
                                                                                 c
       271. The freedom guaranteed by Article 301 is not absolute but is
subject to legislative control by Parliament and the state legislatures.
A1ticles 302, 303 and 304 define the ambit of the restrictions which
Parliament and the state legislatures may impose by laws enacted in
                                                                                 D
pursuance of their legislative powers under Articles 245 and 246. Besides
providing for pennissible restrictions, those aiticles lay down the limits
which govern the law making authority.
        2·72. Articles 245 and 246 together constitute the source of the
legislative power of Parliament and the state legislatures. Article 245 is
                                                                                 E
subject to the provisions of the Constitution. Every constitutional authority
is subject to its provisions. No arm of the Constitution is vested with
absolute power. Every institution created by the constitution operates
subject to the governing piinciples of the written constitution and is subject
to the limitations which it prescribes. Constitutional limitations on
legislat:vepower originate in the necessity that the enacting body must          F
possess legislative competence on the subject on which it enacts law,
that the law which it enacts must not infringe fundamental rights and
that it must abide by other norms prescribed by the Constitution.
       273. Part Xlll of the Constitution enunciates a set of constitutional
limitations on the legislative power to regulate trade, commerce and             G
commerce.
      274. The federal structure is one of the basic features of the
Constitution. Judicial interpretation of Part XIII must factor in the
necessity of ensuring that the carefully crafted balance between the
                                                                                 H
674            SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A     Union and the States is preserved.
             275. Taxation is a sovereign power entrusted by the Constitution
      to the Union and the States. The Seventh Schedule distributes legislative
      power, including the power to tax, between Parliament and the state
      legislatures. The interpretation of Part Xlll must ensure that the
 B    autonomy of the states in the fields assigned to them is not eroded.
              276. While recognising sovereignty in the fields assigned to the
      centre and the states, the Constitution subjects its sovereign arms to
      constitutional limitations which are designed to preserve the balance which
      it has created. Hence all legislative power, including of a fiscal nature
 C    has to abide by the norms of the written constitution. Judicial review of
      fiscal legislation however recognises the wide latitude which inheres in
      the legislatures both at the national and state level to classify persons,
      objects and things for the purpose of raising revenues.
              277. The concept of compensatory taxes was judicially evolved
 D    in the decision in Automobile Transport to exclude certain regulatory
      measures and fiscal exactions from the operation of Part Xlll. The
      concept has created doctrinal inconsistencies and uncertainty in the
      application of legal standards. The decision in Automobile Transport
      is to that extent overruled.
 E           278. The proposition that taxes do not constitute a restriction on
      the freedom of trade and commerce (save and except for a discriminatory
      tax which violates A1iicle 304(a)) does not reflect a valid constitutional
      principle. Article 304(a) does not constitute the entire universe of taxation
      for the purpose of Part XIII. Aiiicle 304(a) deals with a species ofnon-
 F    discriminatory taxes : non-discriminatory taxes on goods imported from
      other states.
             279. As a statement of constitutional principle, neither of the two
      positions which lie at the extreme ends of the spectrum is valid : at one
      end is the position that all taxes are restrictions and at the other end, is
 G    the position that no tax (except a discriminatory tax on goods) is a
      restriction. All taxes do not constitute restrictions. Some taxes may
      impede trade and commerce.
            280. A tax may amount to a restriction where its direct and
      inevitable effect is to restrict the freedom of trade, commerce and
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                675
               [DR. D. Y. CHANDRACHUD, J.]

intercourse. The burden to establish this is on the person who seeks to          A
assail the validity of a particular tax on the ground that it amounts to a
restriction on the freedom guaranteed by Article 301. Unless this threshold
is crossed, the proviso to Article 304(b) will have no application for, it is
only when there is a restriction that the question of its reasonableness
can arise.
                                                                                 B
        281. The expression 'may' in Article 304 has to be read in
conjunction with the expression 'and' which separates clauses (a) and
(b ). The true construction of the expressions is in the sense of a joint and
several "and/or".
       282. Article 304(a) does not require that in order to impose a tax        c
on goods imported from other states, similar goods must be actually
produced or manufactured within the taxing state. The object of the
provision is to prevent states from following protectionist policies by
discriminating against goods produced or manufactured by other states.
Article 304(a) does not import the concept of a countervailing duty.             D
       283. Article 304(a) does not prevent a reasonable classification.
The provision comprehends both formal and substantive notions of
equality. Formal equality would be met when the same rate of tax i.s
prescribed for goods imported from other states as is levied on goods
produced and manufactured within. Apart from the rate of tax, other              E
significant aspects include procedural provisions such as licensing and
registration, the machinery for assessment and set-offs and exemptions.
Substantive equality recognises the need for the development of
underdeveloped areas of the country. A balance has to be struck between
the concerns of both formal and substantive equality. The decisions in
Video Electronics and Mahavir must be understood in that context.                F

       284. The expression "any tax" in Article 304(a) does not mean a
tax which is referable to only one subject of legislation falling under a
taxing entry in List 11 of the Seventh Schedule. When a legislature
legislates, the full range of its plenary powers is available to it. ln India,
the legislatures are not confined to imposing a tax under one entry while        G
fonnulating a fiscal law. Hence, Article 304(a) does not fetter the state
legislatures from ensuring an equality of tax burden between goods that
are imported from other states and goods manufactured or produced
within.
                                                                                 H
676            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A            285. While enacting entry tax legislation referable to Entry 52 of
      List II, it is pennissible for the state legislature to have regard to the
      equalisation of tax burdens between goods imported from other states
      and goods manufactured or produced within. The legislature may have
      regard to the tax burden under value added tax/sales tax law as well as
      entry tax, considered as a composite whole. Whether the scheme of
B
      exemptions and set offs has achieved an equalisation of tax burdens as
      between goods domestic to a state and those imported from other states
      is an issue to be considered in each case having due regard to the
      provisions of state legislation.

 c           286. A "local area" for the purposes of Entry 52 of List II is not
      the entire state. Local area postulates an area within a state administered
      by a local body under relevant state legislation.
             ASHOK BHUSHAN, J. 1. Before this Constitution Bench of
      Nine Judges of the Apex Court of this country which have time and
D     again, when there arose serious debates and doubts on the Constitutional
      provisions of our country, authoritatively concluded the debates and
      quenched the doubts, a galaxy oflawyers by their illuminating arguments
      engaged the Court for long twenty one days hearing. Now, it is our tum
      to respond.

 E            2. In preparing my judgment I had advantage of going through
      thoughtful & well reasoned judgment of My Lord the Chief Justice. I
      deeply regret my inability to share the views ofleamed Chief Justice on
      Question No. I & 4 as framed by us, although I agree with the conclusion
      of His Lordship on Question No. 2 & 3. The views of Dr. Justice D. Y.
      Chandradmd in his scholarly judgment are fairly near my own except
 F    on few subjects on which I have expressed different opinion. Looking
      to the vital Constitutional issues having a far reaching impact on economic
      unity of the country, I consider it my duty to express my views in my
      own way on all issues raised before us. I begin my task in following
      manner.
 G          3. This larger Bench has been constituted on a reference made
      by a Constitution Bench of this Court in Jindal Stainless Ltd & another
      Vs. State of Haryana & Other, 2010 (4) SCC 595, expressing doubts
      on correctness of Constitution Bench Judgment in Atiabari Tea Co.
      Ltd, 1961 (1) SCR 809 and 7 Judges Bench Judgment in Automobile
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                              677
                  [ASHOK BHUSHAN, J.]

Transport case, 1963 (1) SCR 491, on interpretation of Pait XIII of A
the Constitution of India. Part Xlll of the Constitution was engrafted by
framers of the Constitution to attain the goal of economic unity of the
country. Large number of issues ranging from principles of constitutional
interpretation, federalism, sovereignty of states, limitation on legislative
powers of the States, freedom of trade, commerce and intercourse as
                                                                               B
envisaged by Constituent Assembly, to the interpretation of various
articles of Constitution including Article 301 - 306 contained in Part
XIII, have arisen before us in this bunch of cases.
       4. For answering the questions which have arisen before us, various
aspects related to the issues noticed above are to be deliberated with         C
reference to relevant precedents. We have thus identified certain broad
steps for our discussion before attempting to answer the specific
questions.
       5. On the above subjects, learned eminent counsel appearing before
us have thrown different shades oflight to illuminate the topics, which        D
we are sure, shall make our task easy to discharge our constitutional
responsibility of interpreting the Constitution. The Constitution, not only,
contains the goals and aspirations set by Constituent Assembly for our
country, but it is also a guiding star for the future generations to attain
the highest standards of social, political, economic and individual life.
We have divided our discussion into parts which are; firstly, the facts        E
leading to this reference. Secondly, two Constitution Bench judgments
in Atiabari Tea Company and Automobile Transport. Thirdly,
submissions made before us by learned counsel appearing for various
parties. Fourthly, the discussion on the subjects relevant on questions
falling for our considerations. Fifthly, our conclusions, and sixthly, our     F
answers. Fourth part contains following subjects:-


       A. LEGISLATIVE HISTORY AND DEBATES IN
         CONSTITUENT ASSEMBLY ON FREEDOM OF
         TRADE, COMMERCE AND INTERCOURSE.                                      G

       B. NATURE OF FEDERALISM IN CONSTITUTION OF
         INDIA.
       C. LIMITATIONS ON THE LEGISLATIVE POWER OF
                                                                               H
678            SUPREME uJURT REPORTS                         [20!6J IO S.C.R.


A              THE STATE UNDER THE CONSTITUTION.
           D. WHETHER PART XIII O.F THE CONSTITUTION
              INCLUDES "TAX LEGISLATION'' AN]) WORD
              "RESTRICTION" USED THEREIN    INCLUDES
              TAX LEGISLATION.
B
           E. LEGISLATIVE HISTORY AND CONSTITUENT
              ASSEMBLY DEBATES RELATING TO ARTICLE
              304(a) AND ARTICLE 304(b).
           F. INTERPRETATION, SCOPE AND AMBIT OF ARTICLE
               304(a) AND ARTICLE 304(b).
 c
           G. ENTRY 52, LIST II OF VIITH SCHEDULE.
           H. MEANING OF RESTRICTION AS USED IN PART XIII.
           I. WHETHER DIRECT AND IMMEDIATE EFFECT TEST
               AS LAID DOWN IN ATIABARI & APPROVED IN
D              A UTOMOB/LE TRANSPORT IS NO LONGER A
               CORRECT TEST.
           J. COMPENSATORY TAX THEORY.


 E                                      PART I
      FACTS ANn EVENTS LEADING TO REFERENCE TO THIS
                    NINE .JUDGES BENCH


 F          6. For fully appreciating the issues and questions raised in this
      batch of cases, certain facts and events preceding the Reference to this
      larger Bench need to be noted. The challenges to various State
      Legislations were laid before different High Courts on various grounds
      including the ground that levy of Entry Tax violates the freedom of trade,
 G    commerce and intercourse as guaranteed by Article 30 I of the
      Constitution oflndia and Legislations are not saved under Article 304.
           7. One of the State Legislations, namely, Haryana Local Area
      Development Tax Act, 2000 came to be challenged before Punjab and
      Haryana High Court. The High Court by its judgment dated 21.12.200 l
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            679
                 [ASHOK BHUSHAN, J.]

upheld the validity of the Act which judgment came to be challenged in A
Civil Appeal No.3453 of2002 with connected matters; Jindal Stainless
Ltd. &Am: vs. StateofHaryana & Ors. In the above appeals, appellants
were Industries or Association oflndustries manufacturing their products
within the State of Haryana. T\le raw materials for their respective
products were brought from outside the State. The above 2000 Act was
                                                                         B
enacted to provide for levy and collection of tax on the entry of goods
into the local area of the State of Haryana for consumption and use
therein and matters incidental thereto and connected thereto. One of the
grounds of challenge was that 2000 Act is violative of Article 301 and
not saved under Article 304. The Pubjab and Haryana High Court repelled
the challenge holding that Entry Tax being compensatory in nature is c
outside the purview of Article 301 as has been held by the Constitution
Bench judgment in Atiabari Tea Co. Ltd. vs.The State of Assam&
Ors., (1961) 1 SCR 809, and larger Bench judgment of Seven Judges
in Automobile Transport (Rajasthan) Ltd. vs. The State ofRajasthan
and Ors., (1963) 1 SCR 491.                                                 D
       8. In Atiabari Tea Co.Ltd.(supra) the Assam Taxation(on goods
carried by Roads and Inland Waterways) Act, 1954 was challenged.
The Assam High Court upheld the validity of that Act against which the
matter was taken to this Court, the appellant contended that Act violated
the freedom of trade and it was without previous President's Sanction       E
as required by A11icle 304(b). The majority rejected the argument raised
on behalf of the State that Tax Laws are outside Part XIII. It was held
that the Tax Laws can and do amount to restriction freedom from which
is guaranteed to trade under Part Xlll. It was held that a rational and
workable test to be applied for finding out is; whether the impugned
                                                                            F
restrictions operate directly and immediately on trade or its movement.
       9. The above decision of the Constitution Bench came for
consideration before larger Bench in Automobile Transport (supra).
ln which case Rajasthan Motor Vehicles Taxation Act, 1951 came to be
challenged on the ground that it violates Article 301. The Rajasthan High
                                                                            G
Court has upheld the validity of that Act. The larger Bench in the
Automobile Tramport case by majority approved the ratio of Atiabari
Tea Co.Ltd. Subject to an exception which was judicially crafted that
compensatory taxes are not hindrance to any body's freedom. It was
held that regulatory measures or measures imposing compensatory taxes
                                                                            H
680             SUPREME COURT REPORTS                          [2016) 10 S.C.R.



A     for the use of trading facilities do not come within the purview of the
      restrictions contained inArticle 301 and such measures need not comply
      with the requirement of the proviso to Article 304(b ).
               10. It was further held that a working test for deciding whether a
      tax is compensatory or not is to enquire whether the traders people are
B     having the use of certain facilities for the better conduct of their business
      and paying not much more than what is required for providing the
      facilities.
             11. The above two judgments, around which discussion before us
      has centered shall be noted hereinafter in some detail including the views
c     expressed by the majority and minority.
             12. What is compensatory tax came for consideration by this Court
      in the context of M.P. Sthaniya Kshetra Me Mal Ke Pravesh Par Kar
      Adhiniyam, 1976 in Mis. Bhagatram Rajeevkumar vs. Commissioner
      of Sales Tax, M.P. and others, (1995) Supp.(1) SCC 673. The Three
D     Judge Bench in the above case held. that the concept of compensatory
      nature of tax has been widened and if there is substantial or even some
      link between the tax and the facilities extended to such dealers directly
      or indirectly the levy cannot be impugned as invalid. The above Three
      Judge Bench judgment was followed by a Two Judge Bench in State of
 E    Bihar and others vs. Bihar Chamber of Commerce and others,
      (1996) 9 SCC 136, which was in the context ofBihar (Tax on Entry of
      Goods into Local Areas for Consumption, Use or Sale Therein) Act,
      1993. Two Judge Bench reiterated the position that "some connection"
      between the tax and the trading facilities is sufficient to mention it as
      compensatory tax.
 F
         13. Now reverting back to Jindal Stripe Ltd.and another vs.
  State of Hayana and others, (2003) 8 SCC 60, before the Two Judge
  Bench of this Court, submissions on behalf of State ofHaryana that tax
  is compensatory in nature and submissions by the appellant that the Act
  violates Article 301 was noted. The Two Judge Bench also referred to
G Aitabari Tea Co. Ltd. And Automobile Transport (Rajasthan) Ltd.
  and noted the working test for finding out a compensatory tax as laid
  down in Automobile Transport. Two Judge Bench expressed its doubt
  regarding the correctness of tests laid down by Bhagatram
  Rajeevkumar and Bihar Chamber of Commerce to find out whether
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                681
                 [ASHOK BHUSHAN, J.]

the tax is compensatory or not. Two Judge Bench expressed its doubt             A
and observed that interpretation of Article 301 vis-a-vis compensatory
tax need to be laid down by a Constitution Bench. Following was laid
down in paragraph 26 and 27:
        "26.The decisions in Bhagat Ram and Bihar Chamber
      of Commerce now say that even if the purpose of                           B
      imposition of the tax is not merezv to confer a special
      advantage on the traders but to benefit the public in
      general including the traders, that levy can still he
      considered to he compensatory. According to this view,
      an indirect or incidental benefit to traders by reason of                 c
      stepping up the developmental activities in various local
      areas of the State can he legitimate~v brought within
      the concept of compensatory tax, the nexus between
      the tax known as compensatory tax and the trading
      facilities not being necessarily either direct or specific.
                                                                                D
      27.Since the concept of compensatory tax has been
      judicialzv evolved as an exception to the provisions of
      Article 301 and as the parameters of this judicial
       concept are blurred particularly by reason of the
      decisions in Bhagat Ram(rnpra) and Bihar Chamber
      of Commerce(supra), we are of the view that the                           E
       interpretation of Article 301 vis-a-vis compensatory tax
      should be authoritatively laid down with certitude by
       the Constitution Bench under Articlel45(3)."
        14. Consequent to Reference made to the Constitution Bench in
Jindal Stripe Ltd.(supra), a Five Judges Bench answered the Reference           F
by its judgment dated 13 'h April, 2006 reported in Jindal Stainless Ltd. (2)
and another vs. State of Haryana and others, (2006) 7 SCC 241,
the Constitution Bench overruled judgments of Bhagatram Rajeev
kumar and Bihar Chamber of Commerce and recorded their views
in paragraph 52-53 to the following effect:                                     G
         "52. In our opinion, the doubt expressed by the
       referring Bench about the correctness of the decision
       in Bhagatram's case.followed by the judgment in the
       case of Bihar Chamber of Commerce was well-
      .founded.                                                                 H
682            SUPREME COURT REPORTS                       [2016] 10 S.C.R.


A              53. We reiterate that the doctrine of "direct and
            immediate effect" of the impugned law on trade and
            commerce under Article 301 as propounded in Atiabari
             Tea Co. Ltd. v. State of Assam and the working test
            enunciated in Automobile Transport (Rajasthan) Ltd.
B           v. State of Rajasthan for deciding whether a tax is
            compensatory or not vide para 19 of the report, will
             continue to apply and the test of "some connection"
             indicated in para 8 of the judgment in Bhagatram
            Rajeevkumar v. Commiss.ioner of Sales Tax, M.P. and
            followed in the case of State of Bihar v. Bihar Chamber
 c          of Commerce, is, in our opinion, not good law.
            According(v, the constitutional validity of various local
             enactments which are the subject matters of pending
             appeals, special leave petitions and writ petitions will
             now he listed.for heing disposed of in the light of this
 D          judgment."                                                '
             15. After judgment of the Constitution Bench all the matters
      including the matters of Jindal were again listed before a Two Judge
      Bench. Two Judge Bench noticed that basic issues revolve around the
      concept of compensatory tax and the High Courts concerned had not
 E    examined the issues in the proper perspective as they were bound by
      the judgments of Bhagatram Rajeevkumar and Bi/tar Chamber of
      Commerce. Referring to the Constitution Bench judgment in Jindal
      Stainless Ltd.(2) (supra) this Court in Jindal Stainless Ltd.(3) and
      another vs. State of Haryana and others, (2006) 7 SCC 271,
      permitted the parties to place the data in the writ petitions before the
 F
      High Court and the High Courts were requested to decide the aforesaid
      issues within five months. Following was stated in paragraphs 5 & 6:


            "5. Since relevant data do not appear to have heen
 G          placed he/ore the High Courts, we permit the parties to
            place them in the concerned Writ Petitions within two
            months. The concerned High Courts shall deal with the
            hasic issue as to whether the impugned levy was
            compensatory in nature. The High Courts are requested
            to decide the aforesaid issue within .five months from
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             683
                 [ASHOK BHUSHAN, J.)

      the date of receipt of our order. The judgment in the                  A
      respective cases shall he placed on record by the
      concerned parties within a month from the date of the
      decision in each case pursuant to our direction.
       "6. Place these matters for further hearing in third
      week of January, 2007."                                                B
       16. Different High Courts in consequence to directions by this
Court in Jindal Stainless Ltd.(3) (supra) decided the matter one or
other way. Some of the High Courts held the Act, which were under
challenge, compensatory in nature whereas other High Courts relying
on the Constitution Bench judgment in Jindal Stainless Ltd.(2), held         c
the respective Acts as not compensatory. The judgments of the different
High Courts consequent to directions in Jindal Stainless Ltd.(3) came
to be challenged by different assessees and the State before this Court.
A batch of SLPs came for consideration before Two Judge Bench. Two
Judge Bench observed that though some of the factors have been               D
addressed to by the Constitution Bench in Jindal Stainless (2)(supra)
whereas certain other constitutional issues are involved. Two Judge
Bench opined that considering the importance of the issues relating to
Articles 301 and 304 and Part Xlll of the Constitution, it is necessary to
refer the matter to a larger Bench in tenns of Article 145(3) of the
Constitution. In Reference order following was stated in paragraphs 8        E
and9:
         "8. The concept of compensatory tax is judicially
       evolved and in a way provides a balancing factor
       between federal control and State Taxing Board. The
                                                                             F
       concept really had its matrix in transportation cases
       and does not apply to general notion of Entry Tax.
       Therefore, considering the importance of the issues
       relating to Articles 301 and 304 and Part XIII of the
       Constitution, we consider it necessary to refer the matter
       to a larger Bench in terms of Article 145(3) of the                   G
       Constitution.

         9. The .following questions are referred for the
       aforesaid purpose:

                                                                             H
684     SUPREME COURT REPORTS                       [2016] 10 S.C.R.



A     (1) Whether the State enactments relating to levy of Entry
      Tax have to he tested with reference to hath Clauses (a)
      and (h) of Article 304 of the Constitution for
      determining their validity and whether Clause (a) of
      Article 304 is conjunctive with or separate from Clause
      (h) of Article 304?
 B
      (2) Whether imposition of Entry Tax levied in terms of
      Entry 52 List II of 7th Schedule is violative of
      Article 301 of the Constitution? if the answer is in the
      affirmative whether such levy can he protected if Entry
 c    Tax is compensatory in character and if the answer to
      the aforesaid question is in the affirmative what are the
      yard~tich to he applied to determine the compensatory
      character of the Entry Tax.

      (3) Whether Entry 52, List II, 7th Schedule of the
 D    Constitution like other taxing entries in the Schedule,
      merely provides a taxing .field for exercising the power
      to levy and whether collection of Entry tax which
      ordinarizy would he credited to the Consolidated Fund
      of the State being a revenue received by the Government
 E    of thi' State and would have to be appropriated in
      accordance with law and for the purposes and in the
      manner provided in the Constitution as per
      Article 266 and there is nothing express or explicit in
      Entry 52. List 11, 7th Schedule which would compel the
      State to spend the tax collected within the local area in
 F    which it was collected?

      (4) Will the principles of quid pro quo relevant to a fee
      apply in the matter of taxes imposed under Part XIII?

      (5) Whether the Entry Tax may he levied at all where
 G    the goods meant.for heing sold, used or consumed come
      to rest (standstill) after the movement of the goods
      ceases in the 'local area'?

      (6) Whether the Entry Tax can be termed a tax on the
      movement of good1· when there is no bar to the entry of
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            685
                 [ASHOK BHUSHAN, J.]

      good5 at the State harder or when it passes through a                 A
      local area within which they are not sold, used or
      consumed?

      (7) Whether inte1pretation of Articles 301 to 304 in the
      context of Tax on vehicles (commonly known as
      'transport') cases in A ti a hart '.s case (supra) and                B
      Automohile Transport :1· case (.mpra) app~y to Entry Tax
      cases and i/so, to what extent.

      (8) Whether the non discriminatory indirect State Tax
      ·which is capable of being passed on and has been
      passed on hy traders to the consumers infringes
                                                                            c
      Article 301 of the Constitution?

      (9) Whether a tax on goods within the State which directly
      impedes the trade and thus violates Article 301 of the
      Constitution can he saved hy reference to Article 304 of              D
      the Constitution alone or can he saved hy any other
      Article?

      (10) Whether a levy under Entry 52, List II, even if held
      to be in the nature of a compensatory levy, it must, on
      the principle of equivalence demonstrate that the value               E
      of the quantifiable benefit is represented hy the costs
      incurred in procuring the facility/services (which costs
      in turn become the basis of re- imbursementlrecompense
      for the provider of the services/facilities) to he provided
      in the concerned 'local area' and whether the entire
                                                                            F
      State or a part thereof can he comprehended as local
      area for the purpose of Entry Tax?"
        17. Consequent to the above Reference order dated 18'h
December, 2008 in Jaiprakash Associates Limited vs. State ofMadhya
Pradesh and others, (2009) 7 SCC 339, the matter again came to be           G
listed before a Constitution Bench of Five Judges. The Constitution Bench
again heard the entire batch of cases including the appeals against the
judgment dated 21.12.2001 of the Punjab and Haryana High Court where
the validity of2000 Act was upheld. The Constitution Bench by its order
dated April 16, 2010, reported in Jindal Stainless Ltd. and another vs.
                                                                            H
686            SUPREME COURT REPORTS                      [2016] IO S.C.R.



A     State of Haryana and others, (2010) 4 SCC 595, decided to make a
      Reference for constituting a suitable larger Bench for reconsideration
      of the judgments of this Court in Atiabari Tea Co. Ltd. and Automobile
      Tranposrt (Rajasthan) Ltd. The Constitution Bench in its order noted
      the following in paragraphs 1, 2 and 3:
 B
              "]. On l81h December. 2008, when some of the cases
            in the present hatch came for hearing before a Division
            Bench of this Court to which one of us, Kapadia, J.,
            was a party, the Division Bench of this Court found
 c          that some of the High Courts before which the State
            Entry Tax stood challenged had taken the view that
            Clause (a) and Clause (h) of Article 304 of the
            Constitution of India are independent of each other and
            that if the impugned law stood saved under
D           Article 304(a) then it need not be tested with reference
            to Clause (b) for determining its validity.
               2. Accordingly, on l 8 h December, 2008, the Division
                                    1



            Bench of this Court referred to the Constitution Bench
             I 0 questions, the most important of which being -
 E          whether the State enactments relating to levy of entry
            tax have to be tested with reference to both
            Article 304(a) and Article 304(b) of the Constitution and
             whether Article 304(a) is conjunctive with or separate
            from Article 304(b)? Consequently, the matter stood
             referred to the Constitution Bench of this Court.
 F
              3. Accordingly, on l 61h March, 2010, the entire hatch
            of cases caine for hearing before the Constitution Bench
            in which the lead matter is Jindal Stainless Ltd. and
            Anr. v. State of Haryana and Ors. When the hearing
            commenced before the Constitution Bench, we found
 G          that the assessees (original petitioners in the High
            Courts) are heavily reZving upon the tests propounded
            by a 5-Judge Bench of this Court in Atiabari Tea Co.
            Ltd. v. The State ofAssam and Ors•. which tests subject
            to the clar(fication, stood reiterated in the subsequent
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              687
                 [ASHOK BHUSHAN, J.]

      judgment delivered by a larger Bench of this Court in                   A
      the case of 111e Automobile Tran~port (Rajasthan) Ltd.
       v. The State of Rajasthan and Ors. "


       18. The Constitution Bench was of the view that on a number of
                                                                              B
aspects a larger Bench of this Court needs to revisit the interpretation of
Part XIII of the Constitution including the various tests propounded in
the judgments of the Constitution Bench of this Court in Atiabari Tea
Co. and Automobile Transport (Rajasthan) Ltd. Some of these aspects
which need consideration by a larger Bench of this Court were
enumerated in Paragraphs 11, 12 and 13 & 14 which are relevant, are to        C
the following effect:


        "11. Some of these aspects which need consideration
      by larger Bench of this Court may he briefly enumerated.
                                                                              D
      Interplay/interrelationship between Article 304(a) and
      Article 304(h). The sign(ficance of the word "and"
      between Article 304(a) and 304(h). The significance of
      the non obstante clause in Article 304. The balancing
      of.freedom of trade and commerce in Article 301 vis-a-
      vis the States' authority to levy taxes under Article 245               E
      and Article 246 of the Constitution read with the
      appropriate legislative Entries in the Seventh Schedule,
      particularly in the context of movement of trade and
      commerce.
         12. Whether Article 304(a) and Article 304(h) deal                   F
       with different subjects? Whether the impugned taxation
       law to he valid under Article 304(a) must also fu(fil the
       conditions mentioned in Article 304(b}, including
       Presidential assent? Whether the word "restrictions" in
       Article 302 and in Article 304(b) includes tax laws?                   G
       Whether validity of a law impugned as violative of
       Article 301 should be judged only in the light of the test
       of non-discrimination? Does Article 303 circumscribe
       Article 301? Whether "internal goods" would come
       under Article 304(b) and ''external goods" under Article
                                                                              H
688     SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A     304(a)? Whether "per se test" propounded in Atiabari:~
      case (rnpra) should or should not be rejected? Whether
      tax simpliciter constitutes a restriction under Part XIII
      of the Constitution? Whether the word "restriction" in
      Article 304(b) includes tax laws? Is taxation justiciable?
 B    Whether the "working test" laid down in Atiabari makes
      a tax law per se violative of Article 301? Inter-
      relationship between Article 19(J)(g) and Article 301 of
      the Constitution? These are some of the questions which
      warrant reconsideration of the judgments in Atiabari
      Tea Co. Ltd and Automobile Transport (Rajasthan) Ltd.
 c    (supra) by a larger Bench of this Court.
        13. Jn conclusion, we may also mention that though
      the judgments in Atiabari Tea Co. Ltd. and Automobile
      Transport (Rajasthan) Ltd. (supra) came to be delivered
      49 years ago, a doubt was expressed about the tests
D     laid down in those two judgments even in the year 1975
      in the case of G.K. Krishnan and Ors. v. State of Tamil
      Nadu and Ors. by Mathew, J., vide para 27, which reads
      as under:
                "2 7. Whether the restrictions visualized by
 E      Article 304(b) would include the levy of a non-
        discriminatory tax is a matter on which there is scope
        for difference of opinion. Article 304(a) prohibits
         only imposition of a discriminatory tax. It is not clear
        from the article that a tax simpliciter can be treated
 F       as a restriction on the freedom of internal trade.
        Article 304(a) is intended to prevent discrimination
         against imported goods by imposing on them tax at
         a higher rate than that borne by goods produced in
         the State. A discriminatory tax against outside
        goods is not a tax simpliciter but is a barrier to trade
 G
         and commerce. Article 304 itse(f makes a distinction
         between tax and restriction. That apart, taxing
        powers of the Union and States are separate and
         mutually exclusive. It is rather strange that power to
         tax given to States, say, for instance, under Entry 54
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           689
                      [ASHOK BHUSHAN, J.]

         of List II to pass a law imposing tax on sale of goods            A
         should depend upon the goodwill of the Union
         Executive. "
                                     (emphasis supplied)
       14. For the aforestated reasons, let this batch of cases
                                                                           B
      he put before Hon 'hie Chief Justice of India for
      constituting a suitable larger Bench for reconsideration
      of the judgments of this Court in Atiabari Tea Co. and
      Automobile Transport (Rajasthan) Ltd. (rnpra). "

                                                                           c
       19. In pursuance of Reference made by the Constitution Bench
by its order dated 16'h April, 2010 Hon'ble the Chief Justice has
constituted this Nine Judges Bench to hear the matter.
       20. Although in paragraphs 11 and 12, as extracted above, certain
questions were noted by the Constitution Bench, when the hearing began     D
in the present batch of cases this Bench with the assistance of learned
counsel appearing for the parties have re-framed the questions to be
considered. Four main issues which have been framed by this Bench
are as follows:
                                                                           E
      I. Can the levy of a non-discriminatory tax per se
      constitute infraction of Article 301 of the Constitution
      of India?
      2. If answer to Question No. I is in the affirmative, can
                                                                           F
      a tax which is compensatory in nature also fall foul of
      Article 30I of the Constitution of India.
      3. What are the tests for determining whether the tax or
      levy is compensatory in nature?
      4. Js the Entry Tax levied by the States in the present              G
      hatch of cases violative ofArticle 30I of the Constitution
      and in particular have the impugned State enactments
      relating to Entry Tax to he tested with reference to both
      Articles 304(a) and 304(h) of the Constitution for
      determining their validity?
                                                                           H
690            SUPREME COURT REPORTS                      [2016) 10 S.C.R.



A           21. With regard to Question No. l nine incidental questions have
      also been framed which are as follows:

            1. Is levy of taxes an attribute of a sovereign State?

            2. ff the answer to Question No. I is in the affirmative,
 B          does Article 246 of the Constitution of India recognise
            the sovereign power of States to make laws including
            laws levying taxes on subject matters enumerated in
            Entry JI of 7'h Schedule?

            3. l5 the power to make laws and levy taxes reserved in
 c          favour of the States under Article 246 read with List-fl
            subject to Part-XllJ of the Constitution?

            4. Jn case answer to Question No.3 is in the negative,
            would any interpretation of provisions of Article 301 of
            the Constitution that makes the power to make laws and
 D          levy taxes subservient to Article 301 have the effect of
            denuding the States of their sovereign power and
            affecting the federal structure envisaged by the
            Constitution?
            5. ls levy of taxes presumed to he in public interest?
 E
            6. If answer to Question No.5 is in the affirmative, can
            levy of taxes he justified as reasonable restrictions
            imposed in public interest?
            7. If levy of taxes under Article 304(h) were permissible
 F
            onzy with the previous sanction of the President, would
            such levies not come under judicial scrutiny for
            determining whether the levy is reasonable and in public
            interest?

 G
            8. If answer to the Question No. 7 is in the affirmative,
            would it not affect the separation of powers between
            the legislature on the one hand and the judiciary on
            the other?
            9. In the absence of anything to show that Article 301
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               691
                       [ASl-IOK BHUSHAN. J.]

      excludes only such taxes as are compensatory in nature,                  A
      would the compensatory tax theory not bring about a
      dichotomy that is inconsistent with the language
      employed in Article 301?
     22. Learned counsel for the parties have made their respective
submissions in reference to the above questions framed by this Bench.          B
                                  PART II
                       ATIABARI TEA CO. LTD.
       23. The Constitution Bench of this Court, by majority opinion,
delivered by P.B. Gajendragadkar J. had considered various aspects of          C
Part Xlll of the Constitution oflndia. especially Article 301. The challenge
before this Court was to the provisions of Assam Taxation (on goods
carried by Roads and Inland Waterways) Act, 1954 (hereinafter referred
to as "the Assam Act. 1954''). Under the Assam Act. 1954, appellants
who were growers of tea in the West Bengal or in Assam and carried
                                                                               D
out their tea to the market in Calcutta were asked to pay tax on goods in
their journey in part of territory of Assam.
       24. The appellant had challenged the vires of the Assam Act,
1954 before the Assam High Court on various grounds including the
ground that provisions of the Assam Act, 1954 are violative of rights          E
given under Article 301 of Constitution oflndia. The Assam High Court
repelled the challenge by dismissing the writ petition. Three appeals
were filed on certificate granted by the High Court: two writ petitions
were directly filed under Article 32, challenging the vires of the Assam
Act, 1954. Both the appeals and the writ petitions were heard by the
Constitution Bench. The majority opinion was expressed by P.B.                 F
Gajendragadkar J.: B.P. Sinha, C.J. and J.C. Shah, J. delivered separate
opinions. Before the Constitution Bench, the principal submission which
was made by the appellants/petitioners was. that Article 30 I of the
Constitution of India grants the freedom of trade, commerce and
intercourse throughout the territory of India and the Assam Act, 1954          G
levies tax on carrying out the tea throughout the State of Assam, and it
had the effect of interfering with the above freedom. The respondent
contended that the Act in pith and substance, a legislature to levy tax on
certain classes of types of goods carried by road or inland. waterways
strictly within entry of the State List, the Assam Act, 1954 was not
                                                                               H
692            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     within the prohibition contained under Article 301 of the Constitution of
      India. One of the submissions pressed before the Constitution Bench
      was that taxing power having been conferred on the State by Article
      245 to 248 read with relevant Entries in List II, Part XIII cannot be held
      to be attracted on the taxing statue.
 B          25. P.B. Gajendragadkar J. rejected the arguments that the tax
      laws are outside Part XIII. Following was observed as under:-


             " ....... Thus the intrinsic evidence furnished by some of
            the Articles of Part XIII shows that taxing laws are not
 c          excluded.from the operation of Art.301; which means
            that tax laws can and do amount to restrictions freedom
            from which is guaranteed to trade under the said
            part ..... "

 D
            26. Further, question posed by P.B. Gajendragadkar J. was that
      whether all tax laws attract the provisions of Part XIII? Whether their
      impact on trade or its movement is direct and immediate or indirect and
      remote? Answering the said questions, it was observed as under:-
 E
             " ....... Thus considered we think it would be reasonable
            and proper to hold that restrictions freedom from which
            is guaranteed by Article 301, would he such restrictions
            as direc#y and immediately restrict or impede the free
 F          flow or movement of trade. Taxes may and do amount
            to restrictions; but it is on~y such taxes as directly and
            immediately restrict trade that would fall within the
            purview of Article 301. The argument that all taxes
            should he governed by Article 301 ·whether or not their
 G          impact on trade is immediate or mediate, direct or remote,
            adopts, in our opinion, an extreme approach which
            cannot be upheld ..... "
             Further, it was observed that:-
             ......... We are, therefore, satisfied that in determining the
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             693
                      [ASHOK BHUSHAN, J.]

      limits of the width and amplitude of the freedom                       A
      guaranteed by Article 30i a rational and workable test
      to apply would be: Does the impugned restriction
      operate directly or immediately on trade or its
      movement? ..... "
                                                                             B
      27. After laying down the relevant proposition on interpretation
of Part Xlll and after applying the said propositions to the Assam Act,
1954, following was observed in the majority opinion:-

                                                                             c
      " ...... .it purports to put a restraint in the.form of taxation
      on the movement of trade. and if the movement of trade
      is regarded as an integral part of trade itself. the Act in
      substance puts a restriction on trade itself The effect
      of the Act on the movement of trade is direct and
                                                                             D
      immediate; it is not indirect or remote; and so legislation
      under the said Entry must be held to fall directly under
      Article 30i as legislation in respect of trade and
      commerce ... .. .

                                                                             E
        28. B.P. Sinha, C.J. in his minority opinion held that freedom
declared by Article 30 I does not mean freedom of taxation simpliciter
but it does mean freedom from taxation which has the effect of directly
impeding the free flow of trade, commerce and intercourse.
      29. Sinha J. also held that iflegislature imposes a tax, which is an   F
impediment to the free flow of trade, commerce and intercourse, such
law assumes character of trade barrier which is contrary to freedom
granted under Article 301. Following was observed by Sinha J.


                                                                             G
      " ...... if a law is passed by the Legislature imposing a
      tax which in its true nature and effect is meant to impose
      an impediment to the free flow of trade, commerce and
      intercourse, for example, by imposing a high tar!ff wall,
      or by preventing imports into or exports out of a State.
                                                                             H.
694            SUPREME COURT REPORTS                        (2016] IO S.C.R.



A           such a law is outside the sign(jlcance of taxation, as
            such. but assumes the character of a trade barrier which
            it was the intention of the Constitution- makers to abolish
            by Part XIJJ ... ... "

 B
             30. Sinha J. upheld the Assam Act, 1954. The third opinion of the
      Constitution Bench was expressed by Shah J. Shah J. held that taxation
      was one of the restrictions from the imposition of which by the guarantee
      of Article 30 I trade, commerce and intercourse was declared free. Shah
      J. expressed his conclusion in following words:-
c
             "....... On a careful review of the various Articles, in my
            judgment, by Part XIII, restrictions have been imposed
            upon the legislative power granted by Articles 245, 246
            and 248 and the lists in the seventh schedule to the
 D
            Parliament and the Stale Legislatures and those
            restrictions inc/tide burdens (?f the nature of taxation.
             Therefore. the power to tax commercial intercourse
             vested by the legislative fists in the Parliament or the
            State Legislatures, is circumscribed by Part Xlll of the
 E          Constitution and {f the exercise of that power does not
            conform to the requirements of Part XI!l. it would be
            regarded as invalid...... "


            31. As noted above, by the majority opinion expressed by
 F
      G~jendragadkar, J. with whom Shah J. concurred, the provisions ofAssam
      Act, l 954 were held to be infringing the Article 30 I and since the Bill
      had not received the assent of President as required under Article 304(b)
      proviso, the Act was declared void.

 G
            The Automobile Transport (Rajasthan) Ltd.
            32. The writ petitions were filed before the Rajasthan High Court
      challenging the demand of payment of tax due on their registered motor
      vehicles under the Rajasthan Motor Vehicles Taxation Act, l 951
      (hereinafter referred to as 'the Act').
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               695
                 [ASHOK BHUSHAN, J.]

       33. In the writ petitions, principal contention raised before the       A
High Court was that the provision of the Act imposing tax on their motor
vehicles was unconstitutional and void as they contravened the freedom
of trade, commerce and intercourse throughoutthe territory oflndia as
guaranteed by A1ticle 301 of the Constitution oflndia.
      34. The Division Bench of the High Court referred the matter to          B
the Full Bench. The Full Bench took the view that taxation under the
aforesaid Act cannot be said to offend Article 30 I for its effect on trade,
commerce is only indirect and consequential and it may be regarded
only as remote.
       35. The matter was taken to this Court and heard by a Constitution C
Bench of five Judges which felt that having regard to the importance of
the Constitutional issues involved and the views expressed by this Court
in case "Atiabari Tea Co. Ltd. Vs. The State of Assam and Others"
reported in (1961) 1 SCR 809, the appeals should be heard by a larger
Bench. The appeals were consequently placed for hearing before the D
Bench of seven Judges. Three opinions came to be delivered in the
larger Bench. S.K. Das, J. delivered the judgment for himself, J.L. Kapur,
J., A.K. Sarkar J. and K. Subba Rao, J. delivered separate opinion
concurring with the opinion expressed by Das J.

                                                                               E
       36. Justice M. Hidayatullah delivered minority judgment on behalf
of himself and N. Rajagopala Ayyangar, J., J.R. Mudholkar, J., Dass J.
and SubbaRao J. Das, J. upheld the provisions of the Act, upholding the
provisions of the Act as regulatory and compensatory. However, while
upholding the provisions of the Act, the majority judgment approved the         F
earlier Constitution Bench Judgment in Atiabari Tea Co. Ltd (supra)
with one clarification, in following words:


        "The interpretation which was accepted by the majority
       in the Atiabari Tea Co. case is correct, but subject to                  G
       this clarification. Regulatory measures or measures
       imposing compensatory taxes for the use of trading
       facilities do not come within the purview of the
       restrictions contemplated by Art.301 and such measures
                                                                               H
696             SUPREME C\JURT REPORTS                         [2016] 10 S.C.R.



A           need not compZv with the requirements of the proviso to
            Art.304(h) of the Constitution."
             3 7. Das, J. held that tax for use of a road or for the use of bridge
      is not ba1Tier or burden or deterrent to traders. It was held that such
      taxes are compensatory taxes which do not hinder anybody's freedom.
B     Following was observed by Das, J.:-


             "...... The collection of a toll or a tax for the use of a
            road or for the use of a bridge or for the use of an
            aerodrome is no harrier or burden or deterrent to traders
c            who, in their absence, may have to take a longer or
             less convenient or more expensive route. Such
             compensatory taxes are no hindrance to anybody s
            freedom so long as they remain reasonable: hut they
             could of course be converted into a hindrance to the
D           freedom of trade. If the authorities concerned really
             wanted to hamper anybody '.1· trade, they could easily
             raise the amount of tax or toll to an amount which would
             be prohibitive or deterrent or create other impediments
             which instead offacilitating trade and commerce would
 E           hamper them. It is here that the contrast, between
             ''.freedom" (Article 301) and "restrictions"' (Articles 302
             and 304) clearly appears: that which in reality facilitates
             trade and commerce is not a restriction, and that which
             in reality hampers or burdens trade and commerce is a
             restriction. It is the reality or substance of the matter
 F           that has to be determined. It is not possible a priori to
             drqw a dividing line between that which would really
             be a charge for a facili~v provided and that which would
             really he a deterrent to a trade: hut the distinction: !fit
             has to be drawn, is real and clear. For the tax to become
 G           a prohibited tax it has to he a direct tax the effect of
             which is to hinder the movement part of trade. So long
             as a tax remains compensatory or regulatory it cannot
             operate as a hindrance ..... "


H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 697
                       (ASHOK BHUSHAN, J.]

      38. Das, J. did not accept the arguments that restrictions in Part         A
Xlll of the Constitution do not apply to taxation laws.
       39. After laying down the relevant test for examining the validity
of taxing statue, Das J. noted various provision of the Act. It was held
that Section 4 of the Act makes it clear that tax is imposed on a motor
vehicle which is to be used in any public place or kept to be used for in        B
the State ofRajasthan. What should be the test to enquire as to whether
a tax is a compensatory or not, following was stated as under:-


       "..... It seems to us that a working test for deciding
      whether a tax is compensatory or not is to enquire
                                                                                 c
      whether the trades people are having the use of certain
      facilities for the helter conduct of their husiness and
      paying not patently much more than what is required
      for providing the facilities. ft would he impossible to
      judge the compensatory nature of a tax hy a meticulous                     D
       test, and in the nature of things that cannot be done ..... '·'


      40. Ultimately, Das, J. held that the Act does not violate the provision
of Article 301 and the tax imposed under the Act are compensato1y
                                                                                 E
taxes which did not hinder the freedom of trade, commerce and
intercourse assured by Article 301. Taxes imposed were legal and High
Court had rightly dismissed the writ petitions. Subba Rao J., agreed with
the conclusion arrived by Das, J.
       41. It was held, that the arguments cannot be accepted that law
                                                                                 F
of taxation is outside the scope of freedom enshrined under Article 30 I
of the Constitution. Subba Rao, J. also laid down that the doctrine of
"direct and immediate effect" is the most important doctrine to find out
whether there is restriction on the free movement of trade. It was further
held that compensatory or regulatory tax cannot be treated as restriction.
                                                                                 G
       42. Hidyatullah, J. also expressed a view that all taxes or taxing
laws are not outside the reach of Part XIII. It was further held that tax
is a restriction when it is placed upon a trade directly and immediately.
But the tax being generally paid by tradesman in common with others,
cannot be held to be infringing freedom of trade under Article 301.
                                                                                 H
698            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A     Following observations were made as under:-


             "...... That a tax is a restriction when it is placed upon a
            trade direct~y and immediately may he admitted. But
            there is a difference between a tax which burdens a
 B
            trader in this manner and a tax, which being general,
             is paid hy tradesmen in common with others. The.first is
            a levy from the trade hy reason of its being trade, the
            other is levied from all, and tradesmen pay it because
            every one has to pay it. There is a vital d([ference
 c           hetween the two, viewed from the angle of freedom of
            trade and commerce. The first is an impost on trade as
            such, and may he said to restrict it; the second may
             burden the trader, but it is not a ''restriction " of the
             trade. To refuse to draw such a distinction would mean
D            that there is no taxing ent1y in Lists I and JI which is not
            subject to Articles 301 and 304, however general the
             tax and however non-discriminatory its imposition. To
             bring all the taxes within the reach of Article 301 and
             thus to bring them also within the reach of Article 304
             is to overlook the concept of a Federation, which allows
 E          freedom of action to the States, subject, however, to the
            needs of the unity of India. Just as unity cannot he
            allowed to he frittered away hy insular action, the
             existence of separate States is not to he sacrificed hy a
            fusion beyond what the Constitution envisages. No
 F          doubt, Part XIII ensures economic unity to India and
             combines the federating States into the larger State
            called India. The Constitution also permits independent
            powers of taxation. What the Constitution does not
            permit is that trade, commerce and intercourse should
             be rendered "urifree ". Trade and commerce remain free
 G
             even when general taxes are paid hy tradesmen in
             common with non-tradesmen ...... "


            43. Hidyatullah, J. held that taxes which are imposed by the Act
 H    by Schedules II, III and IV operates restriction on trade and commerce
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              699
                 [ASHOK BHUSHAN, J.]

directly. Hence, the provisions have to be held offending Article 30 I and    A
resort to the procedure prescribed by Article 304(b) having not been
taken, the Act is ultra vires to the Constitution of India.


                          PART III
                                                                              B
                       SUBMISSIONS
      44. The arguments on behalf of the petitioners. who have
challenged various Entry Tax Legislations, have been led by Shri Harish
Salve, learned senior counsel. For the petitioners, we have also heard
several other eminent Senior Advocates and other counsel who have             c
additionally made substantial submissions, however, to avoid repetition
of submissions while referring to the submissions of other counsel we
have not noted the submissions which have already been covered by
Shri Harish Salve.
       45. The arguments on behalfofdifferent States have been led by         D
Shri P.P. Rao and Shri Rakesh Dwivedi, Senior Advocates. Several other
counsel have also made submissions, however. to avoid repetition, we
have noted only those submissions which were not covered by Shri P.P.
Rao and Shri Rakesh Dwivedi. Shri Mukul Rohatagi, learned Attorney
General has also made his submissions.
                                                                              E
        46. Shri Harish Salve, learned senior counsel leading the
arguments on behalf of the petitioner made elaborate submissions on
various aspects of Part XIII of the Constitution of India. Shri Salve
traced the legislative history of Part XIII of Constitution by referring to
the Government of India Act 1919 and Government of India Act, 1935.
                                                                              F
It is submitted by Shri Salve that a Tax commonly known as "Octroi"
was enforced in 190 l even before the. Government of India Act, 1935.
      47. It is contended that Article 301 of the Constitution of India
was originally framed as Draft Article 16 which was included in the
Chapter of Fundamental Rights which clearly indicates that framers of         G
the Constitution intended to guarantee freedom of trade, commerce and
intercourse as a fundamental right. He has taken us to the discussion in
the Constituent Assembly. He submitted that provisions of Article 304
Sub-clause (b) was thread-ware discussed and the constituent assembly
consciously decided not to make any change in the scheme as delineated
                                                                              1-1
700            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     by Article 304 Sub-clause (b) proviso. In our Constitution we avoided
      American pattern which only declared rights, rather our constitution has
      a strict balance between powers granted to Parliament and State to
      frame law. It is contended that there is a clear federal slant in favour of
      Union which is clear from the scheme of the Constitution.
B            48. Shri Salve contended that tax legislations were also
      contemplated to be covered by Part XIII of the Constitution. He submitted
      that textual reading of various articles in Part XIII indicate that framers
      of the Constitution clearly intended that Part XIII shall also operate on
      tax legislation. He contended that had tax legislation was not included in
c     Part XIII there was no occasion for specific mention of tax in Article
      304(a) andArticle 306 [as it was before the Constitution (7'11 Amendment)
      Act 1956] of the Constitution oflndia. He, however, contended that the
      freedom from the tax law or any other law was guaranteed under the
      Article 301 only to the extent when the tax legislation or any other law
      impeded trade, commerce and intercourse throughout the territory. He
D     submitted that historically there were various tax barriers in different
      independent states prior to enforcement of the Constitution and to remove
      the barriers, the freedom of trade, commerce and intercourse was
      included in Part XIII.
             49. Referring to majority view in Atiabari case (supra) he
 E    contended that the tax laws are covered by Part XIII of the Constitution.
      He submitted that above majority view in Atiabari was not doubted by
      subsequent 7 Judges Bench in Automobile Transport (supra). Shri Salve
      however submitted that various statutes regulating trade and commerce
      may not impede trade and commerce like laws pe1taining to traffic rules.
 F    Taxes, regulatory in nature may not be hit by Article 301. However, it is
      contended that taxes which have effect directly and immediately on the
      trade, commerce and intercourse violates Article 301. He contended
      that Entry Tax under Entry 52 of List II of VII'h Schedule of the
      Constitution is one subject which directly impede Freedom of trade and
G     commerce.
             50. Answering Question No. 1, Shri Salve contends that in a set
      of circumstances non-discriminatory tax may violate Article 301. Shri
      Salve coming to incidental questions contended that taxation is an attribute
      of the sovereignty however differences lie in a case where legislative
      power is limited by Constitution. He contends that source oflegislative
H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                              701
                       [ASHOK BHUSHAN, J.]

power is Article 245 (1) which is "subject to the provisions of the            A
Constitution''. It is contended that express constitutional limitation is
clearly laid down in Article 245 (I), and the legislative powers have to be
exercised by Parliament or State subject to the provisions of this
Constitution. Article 246 is division of legislative powers between the
Parliament and the State which shall always be subject to general limitation   B
as contained in Article 245 Sub-article (I).
      51. Answering to subsidiary Question No. 2, Shri Salve submits
that A1iicle 246 of the Constitution recognizes the sovereign powers of
the State to make laws including laws levying taxes on such matters
elaborated in List 11 of Vll'h Schedule.                                       c
       52. Answering to subsidiary Question No. 3, he contends that
powers to make laws and levying of taxes reserved in favour 9f the
State under A1iicle 246 read with List ll ofVIl'h Schedule are subject to
Part Xlll of the Constitution.
       53. Replying to the incidental Question 4, he contends that freedom D
guaranteed under Article 301 is a limitation envisaged in the Constitutional
Scheme and the States are free to legislate as contemplated by Article
301 and the limitation contained in 304(b) is with larger object to achieve
the economic unity of the country. There is no question of surrender of
sovereign power by the State but legislative power can always be limited E
by the express provision of the Constitution. Referring to provision of
A1iicle 285 and 286 of the Constitution, Shri Salve contended that those
are provisions of the Constitution which work as limitation on the legislative
power of the State. There are various provisions in the Constitution which
work as limitation on the legislative power of the state and limitation
envisaged by different provisions of the Constitution being part of the F
Constitutional scheme it cannot be said that States are denuded with
their sovereign power.
      54. Answering to incidental Question No. 5 and 6 Shri Salve
contends that taxes are always presumed to be in public interest, but
however, the levy of taxes are restrictions imposed in public interest is a    G
question which has be decided by considering the individual legislation.
Levy of taxes may or may not be reasonable restrictions.
      55. Answering to incidental Question No. 7, Shri Salve contends
that under Article 304(b) a State is empowered to legislate imposing
                                                                               H
702            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     reasonable restriction on the freedom of trade and commerce and
      intercourse in the public interest subject to obtaining previous sanction
      of the President. The State thus is free to legislate with one limitation
      that the Bill is to be moved with the previous sanction of the President.
      State autonomy is in no manner affected. The judicial review being a
B     basic structure of the Constitution, the Court is fully empowered to
      examine whether a law framed by State complies with Part XIII of the
      Constitution. He submits that there is no question of affecting separation
      of powers merely on the ground that State Legislation can be judicially
      scrutinized regarding compliance of Part XIII of the Constitution.

c            56. Answering to the subsidiary Question No. 9, Shri Salve
      contends that Comp6nsatory Tax Theory is not consistent with the
      language implied in Article 301. He submits that Compensatory Ta,\.
      Theory is a theory which has been judicially evolved in A11tomobile
      Transport case (rnpra). However, Compensatory Tax Theory is not
      consistent with the Scheme of Part XIII of the Constitution nor it can be
D     said that if a tax is compensatory, it goes beyond the purview of Article
      301.
              57. Shri Salve answering Question Nos.2 and 3 contends that
      tax which is said to be compensatory may also fall foul ofArticle 301. It
      is contended that compensatory theory has not worked well and it has
 E    created more problem than solved. All States ·have picked up
      compensatory theory and have made statements in the statute that Entry
      Tax collected shall be spent for the benefit of the trader. The statutes
      have only made facial compliance. The test as approved by A11tomobile
      Transport that is "direct and immediate effect" has to be applied to find
 F    out as to whether a particular statute impedes the trade. Compensatory
      tax is mixing of two constitutional concepts namely tax and fee.
             58. Coming to Question No.4, Shri Salve contends that Article
      304(a) is not a source of power of the statute, rather it is one of the
      exceptions carved out to Article 301 where the State can legislate. He
 G    further submits that Article 304 sub-clause (a) only covers inter-State
      trade and does not cover intra-State trade. The provision of Article 304
      sub-clause (b) proviso was limitation which was consciously put in the
      larger interest by the economic unity of India. The President nonnally
      does not veto any tax proposed by the State under Article 304(b) nor
      any such instances before the Court has come, to come the conclusion
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               703
                 [ASHOK BHUSHAN, J.]

that a State's autonomy in legislation has in any manner affected. Power A
given under Article 304(b) proviso is the power to oversee the restrictions
put 'by the State viz larger object and purpose. Although Article 304(b)
uses the words restrictions on the freedom of trade, commerce or
intercourse, the said restrictions may also include restriction by way of
taxing statute. He submits that movement of goods from one local area B
of a State to local area of another State does not fall under Article 304(a)
but it falls under A1ticle 304(b).
       59. Justice Hidyatullah 's views in Automobile Transport case be
accepted that tax to be compensatory is not the way out from Article
301. He further submitted that any tax viz. by its legal structure and         c
practical effect may impede the trade and have a immediate and direct
effect. Shri Salve also posed a question as to whether goods imported
from other countries entering into a local area are liable to pay Entry
Tax under legislation covered by Entry 52 List II ? He submits that in
the above case the Entry Tax, if any, has to be justified under Article
304(b). Goods not covered by Article 304(a) should satisfy Article 304(b).     D
The pre-condition pennitting Entry Tax under Article 304(a) is that similar
goods of that very State have to be taxed first.
       60. Shri Salve in support of his submissions has also placed reliance
on various judgments of this Court as well as judgments of the Australian
High Court, Privy Council and US Supreme Court which shall be referred         E
to while considering the submissions in detail.
       61. Shri A.K.Ganguly, learned senior counsel, submitted at very
outset that reference to this larger bench to reconsider the decisions in
Atiabari and Automobile is not warranted.
                                                                                F
        62. Relying on Constitution Bench judgment in Keshav Mills
case(Keshav Mills Vs. Commissioner of Income Tax 1965 (2) SCR
 908) he submits that when this court decides questions oflaw which are
binding under Article 141 on all courts, it must be constant endeavor and
 concern of this court to introduce and maintain an element of certainty
 and continuity. ln the interpretation oflaw in the continuity, he submits     G
 that review excise is to be undertaken only when earlier decision was
 clearly erroneous. The Constitution Bench in Jindal Stainless
.Ltd(supra) without any appropriate reason has made a reference for
 constituting a larger bench for reconsideration of the judgment of this
                                                                               H
704             SUPREME COURT REPORTS                          (2016] 10 S.C.R.



A     Court in Atiabari Tea Co. and Automobile Transport, Rajasthan
      ltd.(supra).
             63. He further submitted that reliance on observation of Mathew
      Jin GK.Krishnan Vs. State of Tamil Nadu 1975 (1) SCC 375 which
      was only an Obiter could not have been basis for making a reference to
B     larger bench.
              64. The compensatory theory as evolved by Automobile Transport.
      has worked well and need not be touched. However, he submits that
      there should be broad co-relation between the compensatory tax and
      facilities extended to traders.
 c            65. Referring to Article 304(a) and 304(b ), Shri Ganguly submits
      that both the above sub-clauses of Article 304 are gateway to go out
      from the clutches of Article 301.Article 304(b) is a federal check and
      has come due to the historical reasons. Sh. Ganguly has also referred to
      'Sarkaria Commission's Report' which rejected the demand of certain
D     State for omission of Article 304(b) from the Constitution. He further
      submitted that the procedure on referring to State bills to the President
      as contemplated by Article 304(b) ensures that the obligation oflndia
      that it owes international com1mmity are met.
             66. Shri T.R. Andhyarujina, learned senior counsel submits that
 E    sub-clauses (a) and (b) of Article 304 are not disjunctive. Hence, even if
      a State law is not discriminatory under Article 304(a), it is still required
      to comply with the requirement of Article 304(b).
             67. Shri Andhyarujina submitted that one of the tests to be applied
      for finding out as to whether the tax poses any tariff barrier is that when
 F    the tax is more than the value of the goods, it is a tariff barrier which is
      hit by Article 301.
             68. Shri S.K. Bagaria, learned senior counsel submits that under
      Article 304(a) tax can be imposed on inter-State trade, whereas when
      goods move from one local area to other local area within a State, tax
 G    can be covered only under Article 304(b ). He submits that the question
      whether a tax is a tariff barrier or not cannot be decided quantitatively
      but can be decided qualitatively.
             69. Shri Bagaria submits that he appears for Steel Authority of
      India in some cases. He stated that Bhilai is maintained by Steel Authority
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                               705
                       [ASHOK BHUSHAN, J.]

oflndia and all expenditures for maintaining it and all civic amenities in      A
township are being provided by Steel Authority of India. In township in
Bhilai, there are no facilities being provided by the State. He referred to
the details of expenditures spent by Steel Authority of India during the
years 1995-96 to 2008-2009. He submits that the State Government do
not provide any facility and expenditure currently is more than 200 crores
                                                                                B
every year. He submits that the State not providing municipal/civil
facilities is not entitled to levy Entry Tax as a tax compensatory in nature.
         70. Shri Arvind P. Datar, learned senior counsel contends that
the concept of compensatory tax as judicially evolved in Automobile
Transport has to go. He submits that concept of compensatory tax is             c
anomalous, tax being compulsory extraction and all taxes are to be utilized
for public good. He suggests that proper test is whether there is
'Appreciable Adverse Effect' on trade and commerce, which can be
determined by the manner in which trade and commerce was carried
out before the impugned law and the manner in which it is carried on
after the impugned enactment. He submits that the restrictions as referred      D
to in Part Xlll can be of multiple applications. They can be fiscal,
environmental, commercial and in the forn1 of labour law. Entry Tax
cannot be levied on entry of the goods in the State. Referring to the
 word 'and' used in Article 304(a) and 304(b), he submits that 'and' be
 interpreted as joint and several. He submits that a non-discriminatory         E
 tax which does not violate Article 304(a) may still violate Article 304(b)
 if it has discriminatory procedural provisions.
       71. The ultimate effect on trade and commerce has to be seen
even if it is not direct and immediate. No State is an Island, law in one
State has its effect on other States also. The State is not the final Judge     F
of restriction which is contained in the statute framed by it. Hence,
Presidential assent is required. There are various provisions in the
Constitution like A1ticle 3 lA, 200, 201, 213, 254, 361 and Sixth Schedule
where Presidential assent is required. In Article 204, 255, 304 and 349
the Presidential sanction is required.
                                                                         G
       72. Mr. V. Laxmikumaran, learned senior counsel, contends
that free trade, commerce and intercourse means free movement of
goods, services, persons and capital(investment). Article 304(a) relates
to tax on goods and Article 304(b) relates to other taxes and measures.
Article 304(a) mandates that a state can impose tax on goods imported H
706             SUPREME COURT REPORTS                         [2016] IO S.C.R.



A     from other states less than or equal to taxes imposed on like-goods
      manufactured or produced in that state. The tax referred to in Article
      304(a) should be read with general exceptions, set-off, credit etc available
      to goods as manufactured or produced in that state. Learned counsel
      has also referred to General Agreement of Tariff and Trade, 194 7 (GATT,
      1947) of which India is a founding member. The whole purpose ofGATT,
B
      194 7 was to encourage free trade among the GATT members by
      eliminating tariff and non-tariff barriers. Learned counsel further
      submitted that even if a tax levied by the state is non-discriminatory, it
      may impede right guaranteed under Article 301. Learned counsel supports
      his submission by giving an illustration. In a state laptops and I-pads are
 c    manufactured. A State which wants to encourage the manufacturing of
      laptop has put only 0.5 % tax on laptop but has imposed 50 % tax on I-
      pad with an intent to discourage the import of 1-pad. The said state's
      above action may not be violating Article 304(a), however, procedure
      prescribed in Article304(b) has to be applied with. Another example
 D    where state, although, complies with Article 304(a) but violates Article
      304(b) given by learned counsel is; the State of Maharashtra imposed
      Entry Tax exactly equal to the local taxes but puts conditions: (i) All
      goods to Maharashtra should enter only through Balharshah; (ii) Finished
      goods manufactured in Maharashtra should have at least 75% local
      content. Learned counsel thus contends that while imposing tax by the
 E
      state both the Articles 304(a) and 304(b) have to be complied with.
             73. Shri Jagdeep Dhankar, learned senior counsel, contends
      that Part Xlll of the Constitution is a basic structure of the Constitution.
      He contends that nothing can be more basic than economic unity of the
      country. Learned senior counsel submitted that compensatory theory
 F
      cannot be supported which shall only lead to right to litigate. Words
      "tax" and "restrictions" are employed in Part Xlll separately. These are
      not interchangeable and there can be no component of tax in the
      restrictions adverted in Part Xlll. He submitted that the Preamble of
      the Constitution is to be relied and looked into while interpreting the
 G    constitutional question.
             74. Shri Ravindra Srivastava, learned senior counsel, submitted
      that as a concept compensatory tax cannot be supported. Compensatory
      tax is a misnomer and it was unnecessary. He submitted that taxes
      which have direct and immediate effect are hit by Article 301. Relying
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               707
                 [ASHOK BHUSHAN, J.]

on opinion of Justice Hidayatullah in A11tomobile case, he contended A
that if a tax is imposed solely on the basis of movement of goods, it is
violative of Article 301, however, ifit is a common burden it does not
violate Article 301. Elaborating the concept of tax he submitted that
there are two concepts for imposition of tax that are (i) "Ability-to-Pay
Principle" and (ii) "Benefit Principle". He submitted that examination of B
each legislation I tax legislation is necessary having regard to the
provisions of a particular Act to arrive at conclusion whether the tax
amounts to restriction and if so, whether it is saved under Article 304.
Learned counsel for the petitioner referring to SLP(C) No. 23990 of
2009 Steel Authority of India Ltd. contends that the quantum of Entry
Tax varies from 0.5% to 50% which clearly demonstrate that it is an c
impediment in the trade and hit by Article 301.
       75. Shri N. Venkataraman, learned senior counsel, submits that
Constitution of India is designed in such a way that State's power to
legislate is restricted in many ways. Legislative power in different entries
of List II are subject to legislative power of the Union under List I. He      D
has referred to power under Entry 54 List II, which is made subject to
the power of the Union under Entry 92A, List I.
       76. He further submits that Article 254 clarifies State's power of
taxation. Further, Article 286 sub-clause (3)(a) and (3)(b) restricts the
State's power of taxation. Similarly, Part Xlll is restriction on the State    E
legislative power. Articles 302 to 304 also contain various restrictions on
the powers of Parliament and the States in making laws.
       77. Referring to the Constitution (One Hundred and Twenty Second
Amendment)Bill, 2014 he submits that Union and State have reached to
a conversion where both are entitled to legislate. He has referred to          F
Article 246A of the Bill. There is consensus between Union and the
States to abolish all the taxes including Entry Tax and is now to be
subsumed in two taxes that is services and goods. The above Bill indicates
that we have now moved to real economic unity.
                                                                               G
       78. Shri Dhruv Agrawal, learned senior counsel, submits that
freedom of trade, commerce and intercourse is a basic structure of the
Constitution. Referring to the Preamble of the Constitution learned senior
counsel submits that the unity and integrity of the Nation is a basic
feature of the constitutional structure. Part XIII has been inserted in the
                                                                               H
708             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     Constitution to achieve the economic unity of the country. ShriAgrawal
      has also referred to the Constituent Assembly Debates.
             79. Shri Gopal Jain, learned senior counsel appearing for the
      appellants in C.A.No.3453 of2002 submits thatthe Constitutional Scheme
      is a well crafted architecture which must be read holistically. A
B     Constitutional provision has to be interpreted from the reading of the
      whole of the Constitution to ensure that overall objectives are achieved.
             80. Shri Dilip Tandon, learned counsel referring to judgment of
      this Court in Automobile Transport contended that the opinion expressed
      by Justice Hidayatullah be accepted. Shri Tandon submitted that he adopts
 C    the arguments ofShri Harish Salve and Shri Ravindra Srivastava, learned
      senior counsel.
             81. Smt. Suruchi Aggarwal, learned counsel submitted that
      Article 301 is a restriction on the legislative power of the State. Referring
      to Article 304(a) she contends that Article 304(a) is resorted since it is
 D    presumed that the law would be a restriction under A11icle 301. She
      refe1Ting to provisions of the Haryana Local Area Development Tax
      Act, 2000 contends that manner of collecting Entry Tax violates Article
      286. She submits that liability and pay-ability of Entry Tax is different
      which is nothing but a discrimination.
 E           82. Shri Tushar Mehta, learned Additional Solicitor General
      appearing on behalf of the Indian Oil Corporation submits that judgment
      in Automobile Tramport case has held the field since 1964 and need
      not be disturbed. He submits that Entry Tax would invariably impede
      inter-State trade. Hence,they must, therefore, pass the test of clause (a)
 F    and clause (b) cumulatively. Article 304(a) does not apply to goods
      imported into India and not manufactured or produced in any other State.
           83. Coming to the Entry Tax levied to Indian Oil Corporation, Shri
    Mehta submits that Indian Oil Corporation transports crude oil from its
    own underground pipelines from A to B State. The States are not
G manufacturing crude oil but they are still demanding Entry Tax. The
    States where Indian Oil Corporation has its own refinery have levied the
    Entry Tax. Referring to Mathura refinery situated in the State of U .P.,
  . he contends that the State ofU.P. does not produce any crude oil hence,
    Entry Tax cannot be demanded under Article 304(a). Demand of Entry
    Tax is clearly discriminatory. Learned ASG, however, fairly conceded
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 709
                 [ASHOK BHUSHAN, J.]

that there is no pleading to the above effect taken before the High Court A
by the Indian Oil Corporation. He further submits that during the course
of the submission he will bring on record necessary pleading on behalf
of the Indian Oil Corporation in the appeal before this Court.
      84. Shri Mukul Rohatgi, learned Attorney General has made
his submissions. Shri Rohatgi submitted that power to tax in List II is B
Sovereign and Plenary Power which can be curtailed only by express
provisions of the Constitution oflndia. Part XIII of the Constitution does
not deal generally with tax except, in so far as, it makes reference under
Article 304(a). Entire ethos of Part XIII of the Constitution is a
discrimination and that too a deliberate discrimination. A1ticle 304(a) c
and A1ticle 304(b) are disjunctive. Article 304(a) applies to taxes whereas
Article 304(b) applies to non-fiscal measures. Taxes are assumed to be
in public interest and are reasonable. Under sub-clause(b) of Article
304, President cannot be made super adjudicator. India is a Federation
and the sovereign power of the State cannot be subjected to an implied
control.                                                                    D

       85. Shri Rohatgi submitted that federal stmcture is a basic feature
of our Constitution. Though India is described as a Quasi-Federal or a
Federation with strong central bias, this does not militate from the fact
that states are sovereign in the field which is left to them under the
Constitution. Shri Rohatgi submitted that Constitution is to be read as a        E
whole. Part XIII of the Constitution must be interpreted with reference
to other parts of the Constitution, including Part Ill of the Constitution,
Part XII and Article 38 and Article 39 of the Directive Principles of
State Policy.
       86. Referring to A1ticle 245 and Article 246 learned Attorney              F
General submitted that Article 245 is the source of legislative power,
whereas, Article 246 provides for distribution of legislative functions
between the Union and the states. He submitted that Article 245 begins
with the express provision 'subjects to the provisions of this Constitution'
which phrase has also to be read under A1ticle 246. Learned Attorney             G
General submitted that GST Bill having been passed on 3rd August, 2016
in the Raj ya Sabha, after ratification by the states, the only issue relevant
in the present batch of cases shall be with regard to Entry Tax as was
enforced in past. Entry 52 List II providing for Entry Tax shall stand
deleted after Bill becomes a Law. He submitted that passing of the GST
                                                                                 H
710             SUPREME rouRT REPORTS                           [2016] 10 S.C.R.



A     Bill indicates that we have proceeded to economic unity.
             8 7. What is prohibited by Part XIII is pernicious or hostile
      discrimination by or between States. Freedom of trade, commerce and
      intercourse is not absolute as is evident from various provisions of Part
      Xlll of the Constitution. Restrictions on the power of Parliament and
B     the State Legislature as referred to in Article 303, is confined to the
      powers under the entries relating to trade and commerce only. The
      restrictions thus do not include tax. Entries relating to tax in List II that
      is Entries 46 to 63 were never contemplated under Article 303.
              88. Part Xlll deals with "Restrictions" and "Taxes" differently. A
 c    clear dichotomy was intended between taxes on the one hand and
      restrictions on the other hand. Article 302 does not refer to tax, whereas,
      concept of tax is well known to the Constitution and has been used in
      Part XII in several articles. Article 304(b) does not refer to taxes, word
      "Tax" is found in Ai1icle 304(a) which cannot be imported in Article
D     304(b). It is obvious that reference under Article 304(b) is to "restrictions"
      other than tax. Coming to the Compensatory Tax learned Attorney
      General submits that since we are at the fag end of Entry Tax Regime,
      it shall be appropriate to stick with Compensatory Tax Theory.
            89. Shri P. P. Rao, learned senior counsel, has made his
 E    submissions on behalf of States of Madhya Pradesh and Andhra Pradesh.
      Shri Rao submits that it is well settled that a Constitution must not be
      construed in any narrow and pedantic sense and the construction which
      is most beneficial to the widest possible amplitude of its power must be
      adopted. He further submits that no entry in the Vll'1' Schedule of the
      Constitution should be so read as to rob the entry of its content. He
 F    submits that in a federal system of governance, the power to levy tax is
      an inherent attribute of a sovereign function of a State.
              90. Clause( a) and Clause(b) of Article 304 are mutually exclusive.
      Taxes are c 0vered in Clause(a) whereas restrictions other than taxes
      are covered in Clause(b ). It is only discriminatory taxes vis-a-vis goods
 G    of other States and Union Territories which restrict the freedom of trade
      in Article 30 I and all other taxes do not obstruct the said freedom. The
      federal character of the Constitution is a part of the basic structure. The
      power to levy Entry tax under Entry 52 of the State is not subject to any
      restriction.
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                711
                  [ASHOK BHUSHAN, J.]

        91. The framers of the Constitution never intended that the A
 exclusive power of State to levy tax on the entry of goods be subject to
 requirement of obtaining the previous sanction of the President mention
 in proviso of Aiiicle 304(b ). For imposing a tax on goods coming from
 other State, it is not essential that similar goods produced and
 manufactured in the State should be taxed. The only restriction is that
                                                                            B
 the tax shall not be discriminatory. Taxes per se are not restrictions.
 Only taxes which suffer from the vice of protectionist discrimination
·vis-a-vis goods imported from other States and Union Territories interfere
 with the freedom of trade, commerce and intercourse mentioned inArticle
 30 I. The whole scheme of Part XIII is that the discriminatory tax
 interferes with the trade, commerce and intercourse. A Non- c
 discriminatory tax does not interfere with the freedom of trade, commerce
 and intercourse.
        92. The framers of the Constitution intended minimum inroads in
 power of taxation in the State. Learned Counsel has referred to various
 passages from Atiabari and Automobile Tramport case. Referring to               D
 observations made by Gajendragadkar J. that "how a tax can be levied
 on internal goods is, however, provided by Article 304(b) .... ",he submits
 that the above observations cannot be said to laying down a law since
 the issue never arose in the above case. He submits that the above
 observations are not the ratio decidendi and do not constitute a                E
 precedent. Shri Rao further submits that the concept of compensatory
 taxes as laid down in Automobile Transport case is alien to the
 Constitution and is unsustainable. The discrimination which is referred
 to in Article 304(a) is hostile discrimination.
        93. Shri Shyam Divan, learned senior counsel has appeared on              F
 behalf of the State of Haryana. Shri Divan submitted that the core
 constitutional value of Part XIII of the Constitution is creating an economic
 unity across India.
        94. Article 302 - 305 are in the nature of exceptions to Article
 301. Article 304 being an exception to Article 301 ought to be read,            G
 narrowly. He gives an example of protectionist barrier i. e. a State
 wants to protect the agriculture of its own State for which, a restriction
 is imposed that all agriculture-based industries shall take raw-materials
 only from within the State. He submitted that this is an example of 'trade
 barrier' by a protectionist measure. Article 304(a) has a limited scope
                                                                                 H
712             SUPREME CO~RT REPORTS                        [2016] 10 S.C.R.



A     and ambit.
             95. Power both in (a) and (b) can be exercised or either (a) or (b)
      can be exercised or none can be exercised. There is no necessity that
      powerunder 304(a) and 304(b) are to be exercised necessarily together.
      Shri Divan further submitted that there is difference between
B     differentiation and discrimination.
             Lastly, he contended that in tenns of 2000 Act and 2008 Act, the
      entire tax collected by the State under the respective statute would be
      utilized for the development of trade, commerce and industry in the
      state.
c            96. Shri Rakesh Dwivedi, learned senior counsel has advanced
      his submissions on behalf of the States ofOrissa, Bihar, Madhya Pradesh,
      Tamil Nadu and West Bengal. Shri Dwivedi submits that petitioners'
      arguments are that the judgments of this Court in Atiabari and
      Automobile Transport be not revisited. Shri Dwivedi submits that there
D     were fundamental errors in both the above decisions. He submits that
      following fundamental errors are, in the above two cases :
              I. (i) Both the cases confined on economic unity as sole factor
                   for trade, commerce and intercourse;
 E             (ii) whereas, a perusal of various provisions of the Constitution
                   indicates that economic unity depends on the continuity of
                   political unit; and
               (iii) Territory of Union is nothing but States and Union
 F                 Territories.
            II. This Court completely ignored the concept of 'Federalism'
      which has now been accepted as basic feature of the Constitution after
      judgment of this Court in Kesavanand Bharati's case (supra).

G           III. Each of their Lordships in aforesaid cases draw support from
      various Australian and US cases, whereas, there is no comparison of
      Part XIII with Australian and US Constitution. In US, States have no
      power to legislate except law and order, good governance and peace.
      These differences in our Constitution and the Constitutions of Australia
      and US have been completely overlooked.
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 713
                       [ASHOK BHUSHAN, J.]

       Law as developed in Australia and US i.e. "direct and immediate           A
effect" for finding out impediment in the trade has now been given a go
by both by Australian and US Courts. Both the Courts have moved to a
"discriminatory" test.
      IV. In both the above cases one does not find any detailed
consideration of history of Part XIII as emerging from Constituent               B
Assembly Debates specifically regarding economic unity.
       V. All the judgments considered history from the point view of
Section 297 of the Government of India Act, 1935 and they conclude
that it was all about trade barriers.
      VI. In Part Xlll "subject to the provision of this Part" was read
                                                                                 c
as "subject to only the provisions of this Part''.
      VII. This Court in both the above cases did not examine fully the
nature of taxation.
        (i) Tax is an incident of sovereignty.                                   D
        (ii) Tax is necessary for carrying out the welfare activities by
the State.
       (iii) Tax can neither be imposed by implication        nor     taxing
power can be limited by implication.
                                                                                 E
          (iv) The tax can only be for a public purpose which has its roots
in Attic le 265 of the Constitution.
          ( v) Taxing powers of the State and the Union are mutually
exclusive except to the extent as mentioned in the respective Entries in
List II and any other provision of Constitution. Even Parliament cannot          F
restrict the taxing power of a State flowing from Entries of List II.
        (vi) Atticle 289(2)- Even, a State doing business is not exempted
from tax. Trade and business never were treated as exempted from tax.

                                                                                 G
       97. Shri Dwivedi further submits that tax per se is not covered by
Part Xlll. Tax is not a trade barrier and unless it is discriminatory it shall
not be treated as a barrier. The right of trade, commerce and intercourse
cannot be exalted as a basic feature of the Constitution.

                                                                                 H
714            SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A        98. Shri Dwivedi submits that "Free" in Article 301 does not mean
  free from tax. State's power, despite the limited width of its field is
  plenary in nature. Wherever,exemption from taxes were contemplated
  they were expressly provided as under Articles 285, 287,288 and 289.
  Referring to Part III of the Constitution, he submits that Part III does
  not confer freedom from taxation. A.fortiori, Article 301, which is not a
B
  fundamental right cannot result in conferring a freedom of trade,
  commerce and intercourse from tax. He submits that there are inherent
  limitations on taxation by a State. The imposition of tax is always for
  public purpose and various inherent limitations in taxation operate as
  limitation in taking any discriminatory or any other unreasonable
c measures. Article 302 to 304 are not exceptions or provisos to Article
  301. Coming to Article 304, it is submitted that both clauses (a) and (b)
  of Article 304 are disjunctive and freedom of trade, commerce and
  intercourse is subject to them. The word 'and' nonnally is conjunctive
  but it is often construed as disjunctive where the legislative intent as
D gathered from the words of the provision and the context indicate that it
  was used in the disjunctive sense. Learned counsel elaborating his
  submissions contends that Article 304 relates to inter-State trade which
  is apparent from marginal heading.
            99. He submits that by use of the words "within that State"
 E    alongwith "with", it is clearly meant that the words "within that State"
      was used in relation to inter-State trade. He submits that inter-State
      does not come to an end after the entering into the State. It may have
      some effect and operation within the State also.
             100. Shri Dwivedi further submits that the Presidential Sanction
 F    as contemplated in Article 304(b) proviso was due to the reason that
      Article 304 is related to inter-State trade and it falls in Entry 42 List I.
      He submits that justification for requirement of obtaining Presidential
      sanction in proviso to Article 304(b) is the restriction which may touch
      the inter-State trade, which is not within the legislative power of the
      State.
 G
             101. Learned counsel further submits that mere excessiveness
      of rate of taxes does not violate Article 14 and 19 as has been held by
      this Court in a large number of cases which principle has also to be
      applied for examining the challenge that high quantum of tax impedes
      the trade.
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                               715
                  [ASHOK BHUSHAN, J.]

       102. Shri Dwivedi further submits that in the event submission is        A
not accepted that tax is out of Article 301, alternatively tax simpliciter is
outside the Article 301. He submits that this Court held in large number
of cases that in the context of Part Ill of the Constitution tax per se
does not violate the fundamental rights. Tax simplicitor being out of reach
of Article 30 I only those taxes which substantially destroy\impede the         B
Trade can fall foul to Article 301. He contends that framers of the
Constitution were conscious that freedom of Trade and Commerce, and
Intercourse does not include freedom from tax. The tax can become a
barrier if imposed preferentially and discriminately. That is why, they
separately provided forrestricting the taxing power under Article 304(a).
He, however, submits that there shall be an onerous burden on the               c
petitioner to prove that the tax is an impediment.
       103. Coming to the Australian cases relied by this Court inAtiabari
Tea Company Ltd and Automobiles, he submits that 'direct and
immediate effect test' which was propounded in above two cases based
on earlier cases of Australian High Court, including James Vs.                  D
Commonwealth (1936) 55 CLR (1), a 7 Judges Bench of High Court
of Australia in Cole Vs. Whitfield and Another reiterated in (1988)78
ALR (41) have rejected the 'direct immediate effect test' and has
preferred to discriminatory test. The 7 Judges Bench held that the various
interpretations of Section 92 which have attracted any support over the         E
years only the Fiscal Charges Theory and the Anti-Discrimination
Interpretation have been favoured.
        104. Coming to cases of U.S. Supreme Court, learned counsel
submits that trend of cases indicates that effort is on shifting the test of
discrimination. He submits that in the Complete Auto Transit Vs. Charles        F
R Brady 430 U.S. 274, it was held that it was not the purpose of
commerce clause to relieve those engaged in interstate commerce from
their just share of State tax burden, even though, it increases the cost of
doing business.
       105. Coming to Entry 52 List II, learned counsel contends that,          G
even if, we apply the Test laid down in the Automobile, the goods coming
from other states come to repose in a local area and the Entry Tax is not
tax on border or a tax on movement of goods. The legislative scheme of
different states for which he appears indicates that no tax is collected at
border and only a transit pass is given and the Entry Tax is to be paid
                                                                                H
716             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     based on self-assessment. Article 304(a) protects this type of Entry Tax.
             106. Shri Dinesh Dwivedi, learned senior counsel has made his
      submissions on behalf of the State ofU. P. Shri Dwivedi, answering the
      Question No. I submits that levy of Non-Discriminatory Tax per se
      does not constitute infraction of Article 301. He further submits that the
B     question regarding the Compensatory Tax need not be answered since
      compensatory nature of tax is outside the Constitutional Scheme and
      has to be struck down. Learned counsel submits that the Constitution is
      a living organism and ea_ch part of it throws light on other part of the
      Constitution. Every part of the Constitution has to be looked into and no
c     part has to be interpreted de horse the other provisions of the Constitution.
             107. Shri V.Giri, learned senior counsel has appeared on behalf
      of the State ofKerala. He submits that 383 Appeals have been filed by
      the State ofKerala against the Judgment ofKerala High Court striking
      down the Kerala Tax On Entry Of Goods Into Local Areas Act, 1994.
D     He submits that the High Court has struck down the Act on the ground
      that tax imposed is not Compensatory and it violates Article 301 of the
      Constitution.
             108. Shri Giri submits that at the time of payment of Sales Tax,
      the credit of Entry Tax is to be given. He submits that with regard to
 E    goods produced and manufactured within the State and manufactured
      from outside the State the tax burden is almost similar and tax being
      non-discriminatory does not fail foul to Article 301.
             109. Shri Ajit Kumar Sinha, learned senior counsel has made
      his submissions on behalf of State of Jharkhand. Shri Sinha submits that
 F    the Bihar Entry Tax Act, 1993, as enacted by State ofBiharwas adopted
      by State of Jharkhand after reorganization of the State in the year 2000.
             llO. He submits that although Patna High Court upheld the Act
      1993 but Jharkhand High Court has struck down the enactment. One of
      the grounds taken by Jharkhand is that for amendments made by the
 G    State of Jharkhand in the 1993 Act, no Presidential Sanction was obtained.
      He submits that for carrying out the amendments, no Presidential sanction
      was required.
             111. Shri J ugal Kishore Gilda, learned Advocate General of
      the State of .Chhattisgarh has addressed his submissions on behalf of
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               717
                 [ASHOK BHUSHAN, J.]

State of Chhattisgarh. Learned Advocate General has at the very outset         A
stated that he adopts the submission made by Sh. P.P.Rao and Shri Rakesh
Dwiwedi.
      112. Shri Dev Dutt Karnath, learned Additional Advocate
General has raised submissions on behalf of State of Karnataka. He
submits that Constitution validity of Karnataka(Tax on entry of goods)         B
Act 1979 has already been upheld by this Court in 'State ofKarnataka
Vs. Hansa Corporation' 1980 (4) SCC 697.
       113. He submits that in fact in three Civil Appeals being Civil
Appeal No. 4476 of 2000, SLP(Civil) No. 16786-16788 of 2009 and
SLP(Civil) No. 12789 of2009, the questions referred to this larger Bench       C
do not arise and he adopts the submissions made by Sh. P.P.Rao and Sh.
Rakesh Dwiwedi.
      114. Shri Saurabh Shyam Shamshery, learned Additional
Advocate General has appeared for the State of Rajasthan. He submits
that Rajasthan Tax on Entry Of Goods Into Local Areas Act, 1999 had            D
been upheld against which Special Leave Petition had been filed by
Assesses in the year 2001. Subsequently, after the judgment of this Comi
in Jindal Stainless Steel (2) division Bench dated 21" August, 2007,
declared Act 1999 as 'ultra vi res· to Article 301 against which judgment
the appeal has been filed by the State which is pending.                       E
        115. Shri Harish Salve, learned senior counsel in rejoinder to the
submissions made by learned Attorney General, learned counsel appearing
for different States and other parties, contends that submission that taxing
power is some sort of sovereignty, is not a correct preposition.
       116. The earlier view that tax is out of Part Ill has been reversed.    F
When it is said that Part Xlll includes tax no one is asking to emasculate
State's sovereignty. What is prohibited by Part Xlll is the impediment to
trade and commerce, 'direct and immediate'. The sanction of President,
as contemplated in Article 304(b) does not mean that such sanction
affects the sovereignty of the State. The proviso to 304(b) operates in a      G
very narrow field.
       117. Shri Salve fmiher contends that Sinha, J developed Tariff
Wall The01y, as impediment of trade since he was of the opinion that
taxing legislation can not be challenged under Part UL Shri Salve referring
                                                                               H
718             SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A     to judgment of this Court in K. K. Kochuni and Others Vs. State of
      Madras and Others, (1960) 3 S.C.R. 887 and K. T. Moopil Nair Vs.
      State of Kera/a and Others(J961) 3 S.C.R. 77, and few subsequent
      cases contends that taxing statute can very well be challenged on the
      ground of violating provisions of Part III of the Constitution. He submits
B     that when taxing statute can be challenged under Part III, there is no
      inhibition from entertaining the challenge to a taxing statute for violation
      of Part XllI.
             118. Shri Salve to point out difference between challenge under
      Article 19 and Article 301, gives an example. An oil company carrying
c     out trade in entire country is faced with an exorbitant rate of Entry Tax
      in one State, the company cannot contend that freedom to carry out its
      profession as guaranteed under Article 19(l)(g) have been affected.
      Whereas a trader carrying on business in that State may be affected by
      an exorbitant tax and can contend that the exorbitant tax impedes the
      trade under Article 301.
D
             119. Shri Salve submits that entry tax legislations of different
      States in the country can be characterized in different groups. He submits
      that one group of the legislations which consists of States ofTamil Nadu,
      Andhra Pradesh, Kerala is the legislation in which Entry Tax is imposed
      only on the goods which are imported from different State and no tax is
 E    imposed on locally produced/manufactured goods which is clearly
      discriminatory and violative of Article 304(a). He submits that second
      category oflegislation consists of cases where in the enactment facially
      Entry Tax is imposed on the goods i.e. goods coming from out of State
      and local goods, but legislation contains a devise by which there is set-
 F    off\exemptions to the local goods which result in non-imposition of Entry
      Tax on the local goods, leading to another kind of discrimination which
      also violates Article 304(a). In the second category, State of Assam,
      Bihar, Jharkhand and few other States are included. There is third
      category of legislation where discrimination is practiced in several
 G    manners, for example, manufacturers are given set-off of Entry Tax on
      raw-materials like State ofOrissa and Madhya Pradesh. There is fourth
      category oflegislation where Entry Tax is imposed by creating a special
      area like State of Chhattisgarh. ,
             120. Shri Salve contends that the submission raised on behalf of
      the States that question of discrimination under Article 304(a) is to be
 H
       JINDAL STAlNLESS LTD. v. STATE OF HARYANA                            719
                 [ASHOK BHUSHAN, J.]

decided based upon the totality of burden of taxes and not the impact of    A
a particular tax, is contrary to the plain language of A1iicle 304(a) and
would defeat the underlying object of Part XIII of the Constitution. Shri
Salve futiher submits that Atiicle 304(a) has two parts. Under first pati
of the Act 'State by law may impose on goods imported from other
States, any tax to which similar goods manufactured or produced in that     B
State are subject.' He submits that the second part provides for non-
discrimination, which is indicated by words 'as not to discriminate'.
       12 l. Lastly, Shri Salve replying to the submission of unjust
enrichment contends that presumption that tax has been passed on is a
rebutable presumption and whether tax has been passed or not is a           C
question of fact and has to be considered by assessing authorities. He
has also referred to judgment of this Court re po tied in (2005) 2 SCC
215 Godfrey Phillips lndia Ltd Vs·. State of U.P. With regard to capital
goods he contends that there cannot be passing on of any tax.
       122. Shri A. K. Ganguly, learned senior counsel, making his D
submission in rejoinder contends that Constitutional histo1yand Debates
of the Constituent Assembly clearly indicates that Pati XIII of the
Constitution contemplated taxation to be a 'restriction' on the freedom
of trade, commerce and intercourse and restrictions were permitted
only to a limited exemption in the form of Article 302-306. Coming to
Entry 52 list II, Shri A. K. Ganguly submits that contemplated entry of E
goods into a local area, the framers of the Constitution were well aware
of the State boundaries and did not deliberately choose entry into a State
boundary. Entry 52 does not contemplate State as a unit. Incidence of
levy is different from provisions relating to machinery to collect Entry
Tax. Coming to Article 304(a), Shri Ganguly submits that provisions F
contemplate fulfillment of two conditions i.e. similar goods manufactured
and produced in the State are subject to tax and further non-discriminatory
taxes between the imported goods and the local goods. He further
contends that other varieties of taxes not covered under 304(a) shall fall
in 304(b).
                                                                            G
      123. Shri S. K. Bagaria, Shri Arvind P. Datar, Sri Ravindra
Srivastava, Sri B. Laxmikumaran and Shri N. Venkataraman have also
made their submissions in rejoinder.
       124. Shri S. K. Bagaria, learned senior counsel, in his rejoinder
                                                                            H
720             SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     submits that Article 304(a) has two conditions. He further submits that
      Entry 92(a) and 92(b) of List II cover the entire interstate trade and all
      facets of interstate movement.
              125. Shri Arvind P. Datar, learned senior counsel, in his
      submissions reiterated that tax laws per se are not outside the purview
B     of Part XIII. He further contends that Article 304(b) includes taxation.
      He submits that Article 304(a) refers to goods alone whereas taxes can
      be levied on persons, activities and things also. Article 304(a) shall not
      cover other parts of the taxes which necessarily has to go under Article
      304(b). Entry Tax only on the goods imported from outside States and
c     not levying them on entry into local areas from within the State is not
      pern1issible. Such taxes are violative of Entry 52 List II which permits
      Entry Tax only on entry into "local areas". Article 304(b) could also
      include taxes when rate of tax is same but there were other features
      which are restrictions. High rate of tax may not militate Article 19( 1)(g)
      but it may violate Article 304(b ). He submits that the question of tax
D     barrier, as propounded in Atiabari has to be left to case to case.
      Restrictions contemplated under Part XIII can both be fiscal and non-
      fiscal. As on date 42 per cent of taxes of Union go to the State.
              126. Coming to Video Electronics, learned counsel submits that
      if the object of a State is economic development, the State cannot levy
 E    different taxes with regard to imported goods and local goods, the State
      is free to give subsidies, and other assistance to any kind of industry but
      providing for discriminatory taxes in the name of economic development
      is in the teeth of Article 304(a). Any discrimination between local goods
      and imported goods is per se hostile. Coming to question of unjust
 F    enrichment, learned counsel submits that the issue has to be left to be
      considered by the assessing authorities. He submits that the States have
      different laws and facts which in each case are different and have to be
      examined for applying the theory ofunjust enrichment. Learned counsel
      submits that in the event of this Court overrulingAtiabari and Automobile
      today, overruling of the judgments has to be prospective so that position
 G
      regarding tax settled already be not disturbed. Learned counsel has also
      referred to certain interim orders passed by this Court wherein it was
      specifically mentioned that State shall not be entitled to press unjust
      enrichment. He submits that any amount deposited under the Court's
      order is not an unjust enrichment.
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                               721
                  [ASHOK BHUSHAN, J.]

       127. Shri B. Laxmikumaran, learned senior counsel in his                 A
rejoinder reiterates that tax per se is covered under Article 30 I. Referring
to Article 304(a), learned counsel submits that same tax is to be levied
when the goods enter into the local areas from the other States and the
local goods within the States. Equalising the total quantum of the Entry
Tax levied on imported goods and some other local taxes within the              B
States which is not in the nature of Entry Tax, is not permissible. Various
parameters are to be looked into for the purposes of understanding
discrimination. He further contends that Article 304(b) can cover tax
law in addition to other law.
      128. Shri N. Venkataraman,learned senior counsel in his rejoinder         C
contends that legislative powers of both the Union and the States are
subject to the provisions of the Constitution including limits thereupon
and enacted therein.
      129. In the end, we have again heard Shri P. P. Rao and Shri
Rakesh Dwivedi in reply to some additional submissions made in rejoinder.       0


                           PART IV
A. LEGISLATIVE HISTORY AND DEBATES IN
CONSTITUENT ASSEMBLY ON FREEDOM OF TRADE,
                                                                                E
COMMERCE AND INTRECOURSE
       130. The discussion on the above subject needs to be focused on
following three aspects, namely:


                                                                                F
       a. Legislative history of freedom of trade,
       b. Freedom of trade as it emerges from the debates in the
          Constituent Assembly,
       c. Tax, whether was treated as 'restriction' on the freedom of
          trade by Constituent Assembly.                                        G


       131. During the British Rule, by the end of 19'" Century efforts
for drafting a Constitution for India had begun. Under the inspiration of
Shri Bal GangadharTilak, the Swaraj Bill. 1885 was the first non-official
                                                                                I-I
722            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     attempt of drafting the Constitution. The dominion status as achieved
      by Australia and passing of Australian Constitution Act 1900 was noticed
      by those associated with National Movement. Indian leaders including
      Members and Ex-Members of Central and Provincial Legislature had
      framed a Bill, namely, 'Commonwealth oflndia Bill, 1925' which was
B     read in House of Commons in December, 1925, contained a clause on
      freedom of trade to the following effect:
            "25. Trade, commerce and intercourse among the
            provinces shall be free, and there shall be no preference
            given to any province or provinces. "
 c
             132. In the British India, freedom of trade was in practice with no
      internal provincial duties or other trade barriers whereas in the Indian
      States internal custom and other trade barriers were there. The above
      practice took statutory forn1 in Section 297 of Government of India Act,
 D    1935 which prohibited provincial Government from imposing barriers on
      trade within country. Section 297 reads as under:


            "297. "(I) No Provincial Legislature or Government
            shall -
 E
            (a) by virtue of the entry in the Provincial Legislative
            List relating to trade and commerce within the Province,
            or the entry in that list relating to the production,
            supp~y. and distribution of commodities, have power to
            pass any law or take any executive action prohibiting
 F
            or restricting the entry into, or exportfrom, the Province
            of goods of any class or description; or
            (h) hy virtue of anything in this Act have power to impose
            any tax, cess, toll, or due which. as between goods
 G
            manufactured or produced in the Province and similar
            goods not so manufactured or produced,
              discriminates in favour of the former, or which, in the
            case of goods manufactured or produced outside the
            Province, discriminates between good~ mam(factured
            or produced in one locality and similar goods
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                          723
                  [ASHOK BHUSHAN, J.]

      manl!factured or produced in another locality.                       A
       (2) Any law passed in contraverrtion of this section shall.
       to the extent of the contravention, he invalid. "
        133. Declaration of Cabinet Mission Plan on May 16, 1946 by
 British Prime Minister was to ensure that India attains freedom and
                                                                           B
.decide as to what form of Government is to replace the existing regime.
 The Cabinet Mission Plan laid foundation for Constitution, functioning
 and procedure of Constituent Assembly.
       134. The Constituent Assembly was well aware of the Constitution
of Australia, USA and other Constitutions of world. On the freedom of      C
trade the Constituent Assembly preferred the Australian model from
Sections 92 and 99 of the Australian Constitution, which were to the
following effect:


       "92. Trade within the Commonwealth to be free                       D
       On the imposition of un(form duties of customs, trade,
       commerce, and intercourse among the States, whether
       by means of internal carriage or ocean navigation, shall
       he absolutely free .... "
       "99. Commonwealth not to give preference                            E

       The Commonwealth shall not, by ai~y law or regulation
       of trade, commerce, or revenue, give preference to
       one State or any part thereof over another State or
       any part thereof "
                                                                           F

       135. The Privy Council in James vs. Commonwealth of
Australia, (1936) AC 578, had occasion to consider the freedom of
trade as granted under Section 92 of the Constitution of the Australia.
Following was stated by the Privy Council:                              G


        "Thus reference may he made to the sections dealing in
       the mid~t of which s.92 is placed. It is well known that
       one of the objects which the.federation sought to achieve
                                                                           H
724            SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A           was the abolition of restrictions on trade between the
            Colonies, and of the diversity in the different States of
            tar!ff~ and border regulations; this was described as
            "the old inter-colonial trade war. "
            136. Section 92 was interpreted as to mean "free trade means,in
 B    ordinary parlance freedom from tariffs".
            Professor David P. Derham, of Melbourne University dealing on
      the subject; "Some Constitutional problems arising under Part Xlll of
      the Indian Constitution" has expressed his views on Section 92 of the
      Australian Constitution in following manner:
 c
            "Jn its Australian origins there is no doubt whatever
            that freedom of trade, commerce and intercourse means
            at least.freedom.from taxation. One of the main
            motives of the federal movement in Australia was the
 D
            desire to do away with what had become knowii as
             "border barbarism "-the operation of customs harriers
            on the State borders. Section 92 of the Australian
            Constitution was one of the provisions drawn to achieve
            this purpose, to ensure the economic unity of Australia,
 E          to prevent the continuance of competing State fiscal
            .1ystems. "


             13 7. The framers of the lndian Constitution although took inspiration
      from Section 92 above, but even at initial stages the freedom of trade
 F
      was contemplated with restriction and with pennission to levy only certain
      taxes. The Sub-Committee on fundamental rights submitted a report
      dated 16.04.1947 to the Advisory C01mnittee in Para 6 of which following
      was stated:

 G
             "6. We are of the opinion that every citizen is entitled
             to free trade, commerce and intercourse within the
             territories of the Union unburdened by any internal
             duties or taxes of customs. At the same time, we realise
             that many Indian States depend upon such duties and
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                         725
                      [ASHOK BHUSHAN, J.]

      taxes for a considerahle part of their revenue and                 A
      cannot do without it all at once. Similar difficulties have
      arisen in the framing of the constitutions of other
      countries and unless there is a scheme for a smooth
      transition to free trade in the Union friction will
      inevitab(v arise. Some agreement will therefore have to            B
      he made with those States in the light of their existing
      rights with a view to their ultimate elimination within a
      period to be prescribed hy the Constitution. Thereafter,
      there will he untrammeled free trade within the Union."
      138 ..The Advisory Committee considered the report of the sub-     c
committee on fundamental rights. Shri Sardar Vallabhbhai Patel,
Chainnan Advisory Committee sent report dated 23'a April, 194 7 to the
Constituent Assembly, in paragraph 5 of which following was stated:


       "5. Clause JO deals with the freedom, throughout the              D
      Union, of trade, commerce and intercourse hetween the
      citizens. Jn dealing with this clause we have taken into
      accoum the fact that several Indian States depend upon
      internal customs.for a considerable part of their revenue
      and it may not be easy for them to abolish such duties             E
      immediately on the coming into force of the Constitution
      Act. We, therefore, consider that it would be reasonahle
      for the Union to enter into agreements with such States,
       in the light of their existing rights, with a view to giving
       them time, up to a maximum period to be prescribed hy
       the Constitution, hy which internal customs could he              F
       eliminated and complete free trade estahlished within
       the Union."


      139. Constituent Assembly on 1" May 1947 considered the report     G
on fundamental rights.
     140. Shri K. M. Munshi made following statement with regard to
Custom Duties and Taxes:


                                                                         H
726            SUPREME COURT REPORTS                        [2016] I 0 S.C.R.



A            "The proviso contemplates that a Unit can impose
            certain customs duty with a view to hring up the level
            of the price of goods imported to the level of the price
            of the goods manufactured in the Unit itself Otherwise,
             the goods produced in other Units will flood that
B
            particular Unit. With that view only has this proviso been
            added. Provinces, therefore, can impose certain duties
            and taxes on goods imported from other units with a
             view to bring up the value to the level of good
            manufactured in the Unit itself But it was felt, Sir, that
             this was incomplete. Such regulations and conditions
 c           may be made as to favour the goods produced in the
             Unit and therefore, the words 'and under regulations
             and conditions which are non-discriminatory' have to
             he added, so that conditions must not be such as to
            force up the price of the goods imported. Therefore, the
D            whole point is that there should not he any regulation
             or any conditions of such a nature which would.favour
             the goods produced in the Unit as against those
            produced and imported.from outside."
            Certain amendments on 01" May 1947 were adopted.
 E

             141. In the Draft Constitution finalized by Drafting Committee,
      freedom of trade, commerce and intercourse throughout the territory of
      India was incorporated as one of the fundamental rights in Clause 16 in
      following words:
 F

              "16. Subject to provisions of Article 244 of this
            Constitution and any law made by Parliament, trade,
            commerce and intercourse throughout the territory of
 G          India shall he free. ··


              142. Another set of articles under heading 'inter-State trade and
      commerce' where articles 243, 244 and 245 which were to the following
      effect:
 H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                               727
                [ASHOK BHUSHAN, J.]


243.                No preference shall be given to one State over            A
Prohibition of      another nor shall any discrimination be made
preference or       between one State and another by any law or
discrimination      regulation relating to trade or commerce, whether
to one State        carried hy land. water or air.
over another
by any/aw or        The committee is of opinion that the provisions           B
regulation          contained in articles 243 and 244 should more
relating to         appropriately he included in this Chapter than I
trade or            Part III dealing with Fundamental Rights.
commerce.
 244.                Notwithstanding anything contained in article 16         C
 Restriction on      or in the last preceding article of this Constitution,
 trade,              it shall he lmvful for any State--
 commerce and
 intercourse          (a) to impose 011 goods imported.from other States
 between States.      any tax to which similar goods manufactured or
                      produced in that State are suhject, so, however, as D
                      not to discriminate he tween goods so imported and
                      goods so manufactured or produced; and
                      (b) to impose by land such reasonable restrictions
                      on the.freedom of trade, commerce or intercourse
                      with that State as may be required in the public
                      inter es ts:
                                                                              E
                   Provided that during a period ofjive years from the
                   commencement of this Constitution the provisions of
                   clause (b) of this article shall not apply to trade or
                   commerce in any ofthe commodities mentioned in
                   clause (a) of article 306 of this Constitution.
                                                                              F
 245.                Parliament shall hy law appoint such authority as it
 Appointment of      considers appropriate.for the carryin}? out of the
 authority to        provisions of articles 243 and 244 of this
 carryout the        Constitution and confer on the authority so
 provisions of       appointed such powers and such duties as it thanks       G
 articles 243        necessary.
 and 244.
                                                             I
     Draft Article 16 came for discussion before the Constituent
Assembly on 03'd December 1948.
                                                                              H
728            SUPREME CSURT REPORTS                        (2016] 10 S.C.R.



A             143. Shri C. Subramaniam raised the objection to the effect that
      powers given to the State Legislature have been in respect of interstate
      trade and commerce to impose certain taxes and Article 16 being subject
      to the law of the Parliament, how it can be fundamental right and whether
      there is any right at all reserved.
B             144. Dr. B. R. Ambedkar replied the objections of Shri
      Subramaniam and explained as to why Article 16 was placed in
      fundamental rights. Dr. Ambedkar stated that Constituent Assembly when
      began its task, there were limitations since the States were to join the
      Union only on three subjects, namely, foreign affairs, defence and
c     communication, said Dr. Ambedkar that it was realized that there would
      be no use and purpose in forming an All India Union if trade and
      commerce throughout India was not free. Hence it was decided to put
      article in fundamental rights. Following was stated by Dr. Ambedkar:


D             "But I shall explain to him why it was found necessary
             to include this matter in the .fundamental rights. My
            friend, Mr. Suhramaniam will remember that when the
             Constituent Assembly began, we began under certain
             limitations. One of the limitations was that the Indian
 E           States would join the Union only 011 three subjects-
            .foreign affairs, defence and communications. On no
             other matter they would agree to permit the Union
             Parliament to extend its legislative and executive
            jurisdiction. So he will realise that the Constituent
             Assembly, as well as the Drafting Committee, was placed
 F           under a very serious limitation. On the one hand it was
             realised that there would he no use and no purpose
             served in forming an All-India Union if trade and
             commerce throughout India was not free. That was the
             general view. On the other hand, it was found that so
G           far as the position of the States was concerned, to which
             I have already made a reference, they were not prepared
             to allow trade and commerce throughout India to be
             made subject to the legislative authority of the Union
             Parliament. Or to put it briefly and in a different
             language, they were not prepared to allow trade and
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            729
                      [ASHOK BHUSHAN, J.]

     commerce to be included as an entry in List No. 1. If it               A
     was possible for us to include trade and commerce in
     List I, which means that Parliament will have the
     executive authority to make laws with regard to trade
     and commerce throughout India, we would not have
     found it necessary to bring trade and commerce under                   B
     article 16, in the .fimdamental rights. But as that door
     was blocked, on account of the basic considerations
     which operated at the beginning of the Constituent
     Assembly, we had to find some place for the pu1pose of
      uniformity in. the matter of trade and commerce
      throughout India, under some head After exercising                    c
      considerable amount of ingenuity, the only method we
     found of giving effect to the desire of a large majority
      of our people that trade and commerce should be free
      throughout India, was to bring it under fundamental
      rights. "                   ·                                         D


        145. One more impo1tant statement made by Dr. Ambedkar was
to the following effect:

                                                                            E
       "Yes, but reasonable restrictions do not mean that the
       restrictions can be such as to altogether destroy the
      freedom and equality of trade. It does not mean that at
      all. "
                                                                            F

       146. The Constituent Assembly resolved to adopt the motion making
Article 16 as a part of the Constitution. On 08 1h September 1949, Dr.
Ambedkar moved a motion for inserting a Part XA consisting of Article
274A, 274B, 274C, 274D and 274E. Part XA included provisions as
contained in Article 16 as Article 274Aas was passed in the fundamental     G
rights and Article 274B to 274E as was earlier contained in provisions of
Article 244- 245 in the Draft Constitution. Dr. Ambedkar, while moving
a motion stated that articles dealing with the freedom 'Of trade and
commerce were scattered in different parts of tlte Draft Constitution, as
                                                                            H
730            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A     article 16 was under fundamental rights and article 243, 244 and 245
      were in Part IX. Various amendments were proposed by Pandit Thakur
      Das Bhargava and other members. After a great discussion Part XA
      was passed to be included in the Constitution with certain minor
      amendments.
B           147. Subsequently, Dr. Ambedkar on 16'11 October 1949 moved a
      motion for insertion of Article 274DD, which was to the following effect:
         2 74DD. Notwithstanding anything contained in

         Power ofcertain           theforeRoinR provisions of this Part or
c        States in Pm·t III of     in any other provisions of this
         the First schedule in     Constitution, any State which he/ore the
         impose restrictions       commencement of this Comtitution was
         on tradeand               levying any tax or duty on the import of
         commerce hy the levy      goods into the State from other States or
         of certain taxes and      on the export ofRood~from the State to
D        duties on the import      other States may, if an agreement in
         of goods into or the      that behalfhas been entered into
         export of Roods from      between the
         such States.
                                    Government ofIndia and the
                                   Government of that State, continue to
E                                  levy and collect such tax or duty sub;ect
                                   to the terms of such agreement and for
                                   such period not exceeding ten years
                                   from the commencement o(this
                                   Constitution as may be specified in the
                                   agreement:
 F
              Provided that the President may at any time after the
              expiration of five years from such commencement
              terminate or modifj; any such aweement if, after
              consideration of the report of the Finance Commission
              constituted under article 260 of this Constitution, he
              thinks it necessary to do so."
G


            148. While discussing Article 274DD, one of the Members of the
      Constituent Assembly Shri Raj Bahadur has expressed his concern about
      continuance of custom duties and taxation which according to him were
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              731
                      [ASHOK BHUSHAN, J.]

great restrictions to the trade and commerce. Following views were            A
expressed by Shri Raj Bahadur:


      "Shri Raj Bahadur (United State of Matsya): I have
      sought this opportunity, to take a few minutes of this
                                                                              B
      House while this article is under consideration to give
      vent to the feeling of the common people in the States'
      Unions ahout these customs, .duties and taxation. As a
      matter of.fact, ever since political awakening dawned
      upon the people of the Indian States customs taxes have
      been a particular target of political opposition. It was                c
      not without reason that the people of the Indian States
      and their movements were set against the imposition of
      customs duties on both imports and exports. It was
      hecause of a particular feeling amongst the people that
      this opposition was there. We have felt all through that                D
      all our trade, our industries have been crippled because
      of these Customs Duties. Even today we are not going
      to be benefited by it. Somehow or other , because these
      States were not viable units and they had to balance
      their budget the customs taxation was resorted to. Apart
      from that it was also supposed to be a part of the                      E
      sovereign rights of the States. But so far as the interests
      of the people were concerned, they were not served by
      the imposition of these customs duties.
      Constituent Assembly adopted Article 274DD."
                                                                              F

       149. The debates on draft article 264(A) (Now Article 286 in the
Constitution) with regard to imposition of sales tax came for consideration
on 16.10.1949 which are also relevant in the context of freedom of trade
and commerce. Dr. B.R. Ambedkar stated that imposition of sales tax           G
has created lot of difficulties in the matter of freedom of trade and
commerce. Dr. B.R. Ambedkar further stated that imposition of sales
tax shall not be in conflict with provisions of Part XA (Now Part Xlll).


                                                                              H
732      SUPREME COURT REPORTS                       [2016] 10 S.C.R.


A     Following was stated by Dr. Ambedkar:
      "Sir, as everyone knows, the sales tax has created a
      great deal of difficul~y throughout India in the matter
      of.freedom of trade and commerce. It has been found
      that the vei:v many sales taxes which are levied by the
B     various Provincial Governments either cut into goods
      which are the subject matter of imports or exports, or
      cut into what is called inter-State trade or commerce. It
      is agreed that this kind of chaos ought not to be allowed
      and that while the provinces may be free to levy the
c     sales tax there ought to be some regulations whereby
      the sales tax levied by the provinces would be confined
      within the legitimate limits which are intended to be
      covered by the sales tax. It is, therefore, felt that there
      ought to be some specific provisions laying down certain
      limitations on the power of the provinces to levy sales
D     tax.
      The.first thing that I would like to point out to the House
      is that there are certain provisions in this article 264A
      which are mere(y reproductions of the different parts
      of the Constitution. For instance, in wb-clause(l) of
 E    article 264A as proposed by me, sub-clause (b) is merely
      a reproduction of the article contained in the
      Constitution, the entry in the Legislative List that
      taxation of imports and exports shall be the exclusive
      province of the Central Government. Consequently so
 F    far as sub-clause (1) (b) is concerned there cannot be
      any dispute that this is in any sense an invasion of the
      right of provinces to levy as sales-tax.
      Similarly, sub-clause (2) is mere~y a reproduction of Part
      XA which we recently passed dealing with provisions
 G    regarding inter-State trade and commerce. Therefore so
      far as sub-clause(2) is concerned there is really nothing
      new in it. It mere~y says that if any sales tax is imposed
      it shall not be in conflict with the provisions of Part
      XA."
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             733
                 [ASHOK BHUSHAN. J.]

        150. The moving idea and inspiration for framing relevant a1ticles   A
pertaining to freedom of trade and commerce was and is the realization
that a federal union needs the creation and the preservation of national
economic fabric and the removal of or prevention of local barriers to
economic unity so that competing economic units within unions shall not
threaten the stability of the nation as a whole. The Unity of India was      B
seen to some extent on above realization.

         I 51. From what we have noted above, it is clear that the
Constitution framers gave great importance to the freedom of trade and
commerce. In the beginning, when States had conceded to union, only
foreign affairs, defence and communication, right of freedom of trade        c
and commerce was placed in the Chapter of Fundamental Rights since
it was thoughtthat making of All India Union will be useless iftrade and
commerce is not free. Dr. Ambedkar on 08.09.1949. during the debates
had stated that even though, there may be reasonable restriction on the
right. however, the restriction can be such which altogether may not
                                                                             D
destroy the freedom and equality of trade.

       152. The Constitution framers were cons<..:ious of the fact that
goal set-up for freedom of trade and commerce is to eliminate internal
custom duties and States were conceded to impose limited taxes with
restrictions as envisaged in the proposed articles.                          E

       153. A1ticle 274DD as adopted by the Constituent Assembly, which
became Article 306 of the Constitution allowed the existing taxes and
duties by the States on the impon into or export of goods for a period not
exceeding I 0 years clearly indicates that taxes are restrictions on trade
and commerce. hence period of I 0 years was allowed to abolish the           F
same and the State to ensure free flow of trade and commerce.

        154. One more important fact is to be noticed from the Constituent
Assembly Debates dated 8'11 September, 1949 in reference to A1ticle
244 (now Article 304 ), which permitted the State to impose any tax on
                                                                             G
goods imported from other States. Dr. B.R. Ambedkar referred the above
Article 244 as a provision giving limited power to impose certain
restrictions on the entry of goods. Dr. Ambedkar in his statement in


                                                                             H
734            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     the proceeding instead of repeating the word ·tax' as specifically
      mentioned in Article 244 used the word ·restriction'. The above also
      indicates that the use of word 'restriction' included the tax also.

              155. From the legislative history as noted above and the extent of
      freedom of trade and commerce as emerged from Constituent Assembly
 B    Debates, it is abundantly clear that the taxes were treated as restriction
      on freedom of trade and commerce and it was further comprehended
      that restriction on freedom of trade and commerce can be put by taxation
      also.

 c
            B. Nature of Federalism in Constitution of India
             156. 'In the people ofindia', vests the legal sovereignty while the
      political sovereignty is distributed between Union and the States. We
      having adopted for ourselves a well thought, well deliberated written
 0    Constitution, it is pertinent to know the structure of our Constitution.
      Learned counsel for the parties during their respective submissions have
      referred to the federal structure of the Constitution and one of the
      submissions raised before us is that while interpreting the Constitution
      the federal structure ofthe Constitution has to be kept in mind, since, the
      framers of the Constitution must have never intended to dilute the federal
 E    structure of the Constitution.
              157. The Constituent Assembly of India consisting of illustrious
      members drawn from all parts of the country deliberated all aspects of
      the new Constitution and took considerable pain and caution in drafting
      the Constitution which may fulfill the aspirations of independent India.
 F    Initially, it was perceived that the federal Government i.e. Union
      Government shall be responsible for Foreign Affairs, Defence and
      Communication. After declaration of Partition on yct June, 194 7, there
      was considerable change in the views of the Constituent Assembly. Union
      Constitution Committee on 61h June, 194 7 took a decision that Constitution
 G    would be federal with a strong Centre. Granville Austin in the l11di1111
      Co11stitutio11:Comers·to11e of a Nation has described the shift in the
      following words:
              "Mountbatten announced Partition on 3 June 1947.
             Within four days the Assembly had embarked on a
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              735
                 [ASHOK BHUSHAN, J.]

      centralized federal union. On 5 June the Union and                      A
      Provincial Constitution Comnuttees,having spent much
      of the .first month of their lives marking time, met in
      joint session and concluded that in the light of the June
       Third Statement the Cahinet Mission Plan no longer
      applied to the Assemhlv. The following day the Union                    B
      Constitution Committee met alone. Present were Nehru.
      the Chairman, Prasad,Azad,Pant,Jagjivan Ram,
      Amhedkar. Ayyar, Munishi, Shah, S.P. Mookerjee.
       V T.Krishnamachari, Panikkm; N. G. Ayyangm;and P.
       Govinda Menon. These men took the following tentative
       decisions:                                                             c
      That the Constitution would be federal with a strong
      centre;
      That there should he three 'exhaustive' legislative lists,
      and that residuary powers should vest in the Union                      D
      Government;
      That the Princely States should he on a par with the
      provinces regarding the Federal List,subject to special
      matters; and
      That generally speaking the Executive authority of the                  E
      Union should be co-extensive with its legislative
      authority."


        158. The Drafting Committee which was charged with the duty
                                                                              F
of preparing a Constitution in accordance with the decision of the
Constituent Assembly on the reports made by the various Committees
prepared a Draft Constitution which was made public. The Draft
Constitution was placed for discussion on 4'" November, 1948. Dr. B.R.
Ambedkar while placing the Draft Constitution/while moving the mqtion
had deliberated over the nature of the Constitution. Dr. Ambedkar stated      G
that the Draft Constitution is Federal Constitution in the following words:
        "Two principal forms of the Constitution are known
      to hist01y-one is called Unitary and other Federal. The
      two essential characteristics of a Unitary Constitution
                                                                              H
736            SUPREME COURT REPORTS                     [2016) 10 S.C.R.


A           are: (1) the supremacy of the Central Polity, and (2)the
            absence of subsidiary Sovereign politics.
            Contrariwise,a Federal Constitution is marked: (1) by
            the existence of a Central polity and subsidiary polities
            side by side, and (2)by each being sovereign in the.field
B           assigned to it. In other word~. Federation means the
            establishment of a Dual Polity. The Draft Constitution
            is, Federal Constitution inasmuch as it establishes what
            may he called a Dual Polity. This Dual Polity under the
            proposed Constitution will consist of the Union at the
            Centre a.nd the States at the periphery each endowed
 c          with sovereign powers to he exercised in the field
            assigned to them respectively by the Constitution."
             159. Dr. Ambedkar also referred to the Constitution of USA and
      highlighted the difference between Indian Federation and American
      Federation. While speaking on the difference of Indian Federation to
D     that of American Federation Dr. Ambedkar stated:


             "But there are some other special features of the
            proposed Indian Federation which mark it off not only
 E          from the American Federation but from all other
            Federations. Allfederal systems including the American
            are placed in a tight mould of federalism. No matter
            what the circumstances, it cannot change its form and
            shape. It can never be unitary. On the other hand the
            Draft Constitution can be both unitary as well as federal
 F          according to the requirements of time and
            circumstances. In normal times. it is framed to work as a
            federal system. But in times of was it is so designed as
             to make it work as though it was a unitary system. "

 G
            160. Dr. Ambedkar further stated that a Federal Constitution
      cannot but be a written Constitution. The following was stated:
            "A Federal Constitution cannot but he a written
            Constitution and a written Constitution must necessarily
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             737
                 [ASHOK BHUSHAN, J.]

      he a rigul Constitution. A Federal Constitution means                  A
      division of Sovereignty by no less a sanction than that
      of the law of the Constitution between the Federal
      Government and the States, with two necessary
      consequences (J)that any invasion by the Federal
      Government in the field assigned to the States and vice                B
      versa is a breach of the Constitution (2)such breach is
      a justiciable mater to he determined hy the Judiciary
      only. ··
      161. A.V. Dicey in his celebrated work "The Law of the
Constitution" while dealing with the aim of Federation stated the            c
following:


       "A federal state is a political contrivance intended to
      reconcile national unity and power with the maintenance
      of 'state rights'. The end aimed at fixes the essential                D
      character of.federalism. For the method hy which
      federalism attempts to reconcile the apparently
       inconsistent claims of national sovereignty and of state
      sovereigntv consists of the formation of a constitution
       under which the ordinary powers of sovereignty are                    E
      elaborately divided between the common or national
      government and the separate States. The details of this
       division vary under every different federal
       constitution.hut the general principle on which it should
       rest is obvious. Whatever concerns the nation is a whole
      should be placed under the control of the national                     F
      government. All matters which are not primariZv of
       common interest should remain in the hands of the
       several States."

                                                                             G
       162. A. V. Dicey further stated about three leading characteristics
of federalism;
       "the supremacy of the constitution-
       /he distribution among bodies with limited and
                                                                             H
738             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A            co-ordinate authority of the different powers of
             government-
             the authority of the Courts to act as interpreters of the
             constitution. "
               163. Shri Alladi Krislmaswami Ayyar while referring to Part XA
B
      i.e. trade, c01mnerce and intercourse (within the territory oflndia) referring
      to factors offederation in the context of trade, commerce and intercourse
      stated as follows:


 c           "Therefore, in a federation what you have to do is, first,
             you will have to take into account the larger interests
             of India and permit freedom of trade and intercourse
             as far as possible. Secondly, you cannot ignore
             altogether regional interests. Thirdly, there must be the
             power intervention of the Centre in any case of crisis
 D
             to deal with peculiar problems that might arise in any
             part of India. All these three factors are taken into
             account in the scheme that has been placed· before
             you.

 E
             164. The nature offederalism as contained in the Constitution of
      India came for consideration before this Court in large number of cases.
      Several larger Benches of this Court dealt with the issue and had
      deliberated and explained the principles offederalism as incorporated in
      the Constitution. A Seven Judge Bench in the Special Reference No.I
 F
      of 1964: In the matter of: Under Article 143 of the Constitution of
      India, (1965) I SCR 413 referring to fundamental feature of a Federal
      Constitution laid down that supremacy of the Constitution is fundamental
      to the existence of the Federal Constitution, following was stated:

 G
             "fn_ dealing with this question, it is necessary to bear in
             mind one fundamental feature of a federal constitution.
             Jn England, Parliament is sovereign; and in the words
             of Dicey, the three distinguishing features of the
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               739
                       [ASHOK BHUSHAN, J.]

      principle of Parliamentary Sovereignty are that                          A
      Parliament has the right to make or unmake any law
      whatever: that 110 person or hody is recognised by the
      law of England is hf!ving a right to override or set aside
      the legislation of Parliament; and that the right or power
      of Parliament extends to every part of the Queen:~                       B
      dominions (Dicey, The Law of the Constitution I 0th ed.
      pp. xxxiv, xxxv). On the other hand, the essential
      characteristic offederalism is "the distrihution o.f limited
      executive, legislative and judicial authority among
      hodies which are co-ordinate with an independent of
      each others. " The supremacy of the constitution is                      c
      fundamental to the existence o.f a federal State in order
       to prevent either the legislature of the federal unit or
       those o.f the member States from destroying or impairing
       that delicate balance of power which satisfies the
      particular requirements of States which are desirous of                  D
       union, but not prepared to merge their individuality in
       a unity. This supremacy of the constitution is protected
       by the authority of an independent judicial body to act
       as the interpreter of a scheme of distribution o.fpowers. "
       165. In the landmark judgment of this Court in His Holiness             E
Kesavanand Bharati Sripadagalvaru vs. State of Kera/a and
another,(1973) 4 sec 225 a new dimension was given to the
Constitutional principles. This Court by majority judgment declared that
the basic feature of the Constitution could not be amended by a
constitutional amendment. Chief Justice, Sikri while delivering the majority
                                                                               F
judgment had held that federal character of the Constitution is one of the
basic structures of the Constitution.
       166. Shelat and Grover, JJ. while delivering concurring opinion
had also stated that our Constitution has all essential elements of federal
structure. In paragraph 486 following was stated:
                                                                               G


       "The Constitution has all the essential elements of a
      federal structure as was the case in the Government of
      India Act, 1935, the essence o.ffederalism being the
                                                                               H
740            SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A           distribution of powers between the federation or the
             Union and the States or. the provinces. All the legislatures
            have plenary powers but these are controlled by the
            basic concepts of the Constitution itself and they
            function within the limits laid down in it Per
 B           Gajendragadkar C.J. in Special Reference No. I of
             1964, [1965] I S. C.R. 413. All the functionaries, be
            they legislators, members of the executive or the
            judiciary take oath of allegiance to the Constitution
            and derive their authority and jurisdiction from its
            provisions. The Constitution has entrusted to the
 c          judicature in this country the task of construing the
            provisions of the Constitution and of safeguarding the
            fundamental rights Ibid p. 446. It is a written and
            controlled Constitution. "

D
            167. Again a Seven Judge Bench in State ofRajastha11 and others
      vs. Union of India and others, (1977) 3 SCC 592 had an occasion to
      consider the nature ofindian Constitution.. M.H. Beg, CJ, while delivering
      majority decision in paragraph 57 following was stated:

 E
            "57. The two conditions Dicey postulated for the
            existence offederalism were: .firstly, "a body of countries
            such as the Cantons of Switzerland, the Colonies of
            America, or the Provinces of Canada, so .closely
 F          connerted by locality, hy history, hy race, or the like.
            as he capable of bearing, in the eyes of their inhabitants
            an impress of common nationality"; and, secondly,
            absolute~y essential to the founding of a federal system
            is the "existence of a very peculiar state of sentiment
            among the inhabitants of the countries". He pointed
 G          out that, without the desire to unite there could be no
            basis for federalism. But, if the desire to unite goes to
            the extent of forming an integrated whole in all
            substantial matters of Government, it produces a unitary
            rather than a federal constitution. Hence, he said, a
 H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                          741
                     [ASHOK BHUSHAN, J.]

     federal State "Is a political contrivance intended to               A
     reconcile national unity with the maintenance of State
     rights. ·· The degree to which the State rights are
     separateZv preserved and safeguarded gives the extent
      to which expression is given to one of the two
      contradictory urges so that there is a union without a             B
      unity in matters of government. In a sense, therefore,
      the Indian union is federal. But, the extent offederalism
      in it is largezy watered down hy the needs of progress
      and development of a country which has to he nationally
      integrated, politicalZv and economically coordinated,
      and socialZv. intellectualZv and spiritually up-lifted. In         c
      such a system. the States cannot stand in the way of
      legitimate and comprehensively planned development
      of the country in the manner directed by the Central
      Government ...... "
                                                                         D

      168. Further in paragraph 60 referring to Dr. Ambedkar following
was stated:


      "60. Although Dr. Amhedkar thought that our                        E
      Constitution is federal "inasmuch as it establishes what
      may be called a Dual Polity, " he also said, in the
      Constituent Assemhly, that our Constitution makers had
      avoided the 'tight mould of federalism' in which the
      American Constitution was forged. Dr. Ambedkar, one                 F
      of the principal architects of our Constitution,
      considered our Constitution to he both unitary as well
      as federal according to the requirements of time and
      circumstances '. "

                                                                         G
       169. A Nine Judge Bench had occasion to elaborately consider
the nature of Constitution oflndia in S.R. Bommai and others vs. Union
of India and others, (1994) 3 SCC l, Ahmadi, J. referring to federal
character of the Constitution in paragraph 14 following was stated:
                                                                         H
742             SUPREME C'GCRT REPORTS                         [2016] 10 S.C.R.



A             "I 4.111 order to understand whether our Constitution
            is truly federal, it is essential to know the true concept
            offedcralism. Dicey calls it a political contrivance for
            a hody of States which desire Union hut not unity.
            Federalism is, therefore, a concept which unites
B
            separate States into a Union without sacrificing their
            own .fimdamental political integrity. Separate States,
            therefore, desire to unite so that all the member-States
            may share in formulation of the basic policies
            applicable to all and participate in the execution of
            decisions made in pursuance of such basic policies.
 c          Thus the essence of a federation is the existence of the
            Union and the States and the distribution of powers
            between them. Federalism, therefore, essentianv implies
            demarcation of powers in a federal compact. "

D
              170. Ahmadi, J. further stated that the Constitution of India is
      differently described, more appropriately as 'quasi-federal' because it is
      a mixture of the federal and unitary elements, leaning more towards the
      latter.

 E           171. B.P. Jeevan Reddy, J., held that the founding fathers wished
      to establish a strong a Center. In the light of the past history of this sub-
      continent, this was probably a natural and necessary decision. In
      paragraphs 275 and 276 following was stated:


 F           "275. A review of the provisions of the Constitution
             shows unmistakably that while creating a federation,
             the Founding Fathers wished to establish a strong
             Centre. In the light of the past history of this sub-
             continent. this was probab~y a natural and necessary
 G           decision. In a land as varied as India is, a strong Centre
             is perhaps a necessity. This bias towards Centre is
             reflected in the distribution of legislative head1· between
             the Centre and States. All the more important head5 of
             legislation are placed in List I. Even among the
             legislative heads mentioned in List II, several of them,
 H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                    743
           [ASHOK BHUSHAN, J.]

e.g., Entries 2, 13, 17, 23, 24, 26, 27, 32, 33, 50, 57       A
and 63 are either limited by or made subject to certain
entries in List I to some or the other extent. Even in the
Concurrent List (List III), the parliamentary enactment
is given the primacy, irrespective of the fact whether
such enactment is earlier or later in point of time to a      B
State enactment on the same subject-matter. Residuary
powers are with the Centre. By the 42nd Amendment,
quite a few of the entries in List II were omitted and/or
tran.~ferred to other lists. Above all, Article 3 empowers
Parliament to form new States out of existing States either
hy merger or division as also to increase, diminish or        c
alter the boundaries of the States .....
276. The fact that under the scheme of our Constitution,
greater power is conferred upon the Centre vis-a-vis
the States does not mean that States are mere appendages
of the Centre. Within the sphere allotted to them, States     D
are supreme. The Centre cannot tamper with their
powers. More particularly, the courts should not adopt
an approach, an interpretation, which has the effect of
or tends to have the effect of whittling down the powers
reserved to the States. It is a matter of common knowledge     E
 that over the last several decades, the trend the world
 over is towards strengthening of Central Governments
 he it the result of advances in technological/scientific
fi.eldv or otherwise, and that even in USA the Centre
 has become far more powerful notwithstanding the
                                                               F
 ohvious bias in that Constitution in favour of the States.
 All this must put the court on guard against any
 conscious whittling down of the powers of the States.
 Let it be said that the federalism in the Indian
 Constitution is not a matter of administrative
 convenience, but one of principle the outcome of our          G
 own historical process and a recognition of the ground
 realities.· This aspect has been dealt with elaborately
 by Shri M. C. Setalvad in his Tagore Law Lectures
  "Union and State relations under the Indian
 Constitution" (Eastern Law House, Calcutta, 1974). The        H
744            SUPREME C,JURT REPORTS                       [2016] 10 S.C.R.


A           nature of the Indian federation with reference to its
            historical background, the distribution of legislative
            powers, .financial and administrative relations, powers
            of taxation, provisions relating to trade, commerce and
            industJ:v. have all been dealt with anaZvtically. It is not
B           possible nor is it necessary for the present purposes to
            refer to them. It is enough to note that our Constitution
            has certainly a bias toward~ Centre vis-a-vis the States
            Automobile Transport (Rajasthan) Ltd. v. State of
            Rajasthan, (1963) 1 SCR 491, 540: AIR 1962 SC 1406.
            It is equal~v necessary to emphasise that courts should
c           he careful not to upset the delicately-crafted
            constitutional scheme by a process of interpretation. "


            172. A Constitution Bench in Ku/dip Nayar vs. Union ofIndia,
D     (2006) 7 SCC 1, held that India is not a federal State in the traditional
      sense of the tenn and it is not a true federation fom1ed by agreement
      between various States and it has been described as quasi-federation
      and similar other concepts.
              Dr. Justice Durga Das Basu in his Treatise "Comparative
 E    Federalism" by tracing the history of framing of our Constitution stated
      following in Chapter IV "Indian Federation in particular"-


               "The strong centralising tendency of the Indian
            federation which has attracted the notice of.foreign
 F          observers, can be properly appreciated on~v if its genesis
            is understood. Federation, under our Constitution, is
            the resultant of conflicting forces. The political tradition
            of the country was unitary, but it was not possible to
            adopt a unitary Constitution, since it was necessmy to
G           fit in the Indian States (about 600 in number) which
            had practica!Zv become independent since the lapse of
            paramountcy, as a result of the Indian Independence
            Act, 1947. On the other hand, it was not possible to
            make the Union the 'exceptional· government as in the
             United States, because all the units of the federation
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               745
                 [ASHOK BHUSHAN, J.]

      were not equally developed.and central control was                       A
      necessa1y to secure uniform development of the country
      as well as of the backivard classes of the population.
      Above all, a strong Central Government had been
      necessitated by the situation created by the partition of
      the country. It may be recalled that the Objectives                      B
      Resolution adopted by the Constituent Assembly at the
      outset envisaged that the units of the Union of India
      should be 'autonomous 'and vested with residuary power.
      But the fi"amers of the Draft Constitution had to depart
      fi'om the federal concept emhodied in the Objectives
       Resolution owing to a change in the political situation                 c
       which had taken place i11 the meantime.
      The object of the framers of our Constitution.thus, was
      to build a strong central authori~v which might resist
      external aggression and also to check internal disruptive
      forces that might tend to undermine the nascent State.                   D
       This object has been sought to be attained.not only by
      endowing larger enumerated powers upon the Union
       than elsewhere and by giving it the residue [Art.248]
       (as in Canada), but also by enabling the Centre itself
       to assume control of the units whenever there is any                    E
       threat of disruption either from outside or from within. "


        173. The law declared by this Court as noted above clearly indicate
that the Indian Constitution is basically federal in fonn and is marked
traditional characteristics ofa federal system, namely, supremacy of the       F
Constitution, division of power between the Union and States and
existence of an independent judiciary. Federalism is one of the basic
features of Indian Constitution. However, the history of Constitution
including the Debates in the Constituent Assembly indicate that the
distribution of powers was given shape with creating a strong Centre           G
with the object of unity and integrity of India. The States are sovereign
in the allotted fields. The Indian Constitution cannot be put in traditional
mould of federalism. The traditional concept of federalism has been
adopted with necessary modification in the framework of the Constitution
to suit the country's necessity and requirement. The sum total of above
                                                                               H
746             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     discussion is that federalism in the Constitution is limited and controlled
      by the Constitution and the exercise of powers of both the States and
      the Centre arc controlled by express provisions of the Constitution.
             174. The submission that while interpreting Part Xlll of the
      Constitution federal nature of the Constitution has not to be tinkered
B     with shall be adverted hereinafter while dealing with interpretation of
      different A1ticles of Part Xlll of the Constitution specially Article 304.


       C. LIMITATION ON THE LEGISLATIVE POWER OF THE
                STATE UNDER THE CONSTITUTION
c
            175. Thomas M. Cooley in ''A Treatise on the Constitutional
      Limitations'' defines a Constitution in the following words:


              "A co11stitution is sometimes defi11ed as the
D           fundamental law of a state, co11tai11ing the principles
            upon which the government is founded, regulating the
            division of the sovereign powers. and directing to what
            persons each of these powers is to be confided. and the
            manner in which it is to be exercised. Perhaps an equallv
E           complete defi11itio11 would be,that bodv of rules and
            maxims in accordance with which the powers of
            sovereign(v are habitually exercised. "


              176. The Indian Constitution has adopted federal structure as noted
 F
      above. Three characteristics of federal system are : ( l) supremacy of
      the Constitution; (2) division of powers between the Union and State
      Governments: and (3) existence of an independent judiciary. The
      Constitution operates as a fundamental law. Organs of the States, i.e.,
      executive Legislature and judiciary derive their authority and discharge
G     their responsibilities within the framework of the Constitution. Neither
      the Union Parliament nor State Legislature are sovereign. The legislative
      power given to Parliament and State Legislature is provided for and
      dealt in the Constitution. The State is sovereign to legislate on any subject
      in conformity with the Constitutional limitations. What are the limitations
      envisaged by the Constitution in exercise of the legislative pow,er of the
H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                747
                        [ASHOK BHUSHAN, J.]

State, is one of the issues for consideration before us. Learned counsel         A
appearing for the States contend that the power to legislate as on the
subjects as enumerated in List II is a sovereign power which also includes
power of State to impose taxes in which no limitation can be read from
Part XIII of the Constitution. It is contended that it is only by a specific
prohibition or limitation in the Constitution which has to be read as limiting   B
the sovereign power of the State. On the other side, the petitioners contend
that State Legislature while exercising its power of taxation exercise the
same legislative power as it does while enacting any other law which it
is competent to enact and there is no qualitative distinction between the
exercise of legislative power enacting a law levying tax or enacting a
non-fiscal law. In making of any law, all limitations envisaged by the           c
Constitution shall apply. Learned counsel appearing for the States have
submitted that limitations on taxing power of the State Legislature are all
contained only in Part XII of the Constitution and no other limitation in
exercise of State legislative power can be read.
      177. Article 13 sub-clause (2) in Part lll of the Constitution             D
provides express prohibition in making of law by the State. Article 13
sub-clause (2) is as follows:


         "13(2). The State shall not make any law which takes                    E
       away or abridges the rights conferred hy this Part and
       any law made in contravention of this clause shall, to
       the extent of the contravention, he void. "


        178. Part XI of the Constitution deals with "Relations between           F
the Union and the States". Chapter I of which contains heading
"Legislative Relations". Chapter I contains Article 245 to Article 255.
Article 245 begins with the words : subject to the provisions of this
Constitution, Parliament may make laws for the whole or any part of the
territory of India, and the Legislature of a State may make laws for the         G
whole or any or any part of the State. Article 246 deals with the subject-
matter of the laws made by Parliament .and by the Legislatures of States.
Articles 245 and 246 are as follows:


                                                                                 H
748             SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A           "245. Extent of laws made by Parliament and by the
            Legislatures of States.-(1) Subject to the provisions of
            this Constitution, Parliament may make laws for the
            whole or any part of the territory of India, and the
            Legislature of a State may make laws for the whole or
B           any part of the State.

            (2) No law made by Parliament shall be deemed to be
            invalid on the ground that it would have extra-territorial
            operation."

            246. Subject-matter of laws made by Parliament anti
c           by the Legislatures of States.-(1) Notwithstanding
            anything in clauses (2) and (3), Parliament has exclusive
            power to make laws with respect to any of the matters
            enumerated in List I in the Seventh Schedule (in this
            Constitution referred to as the "Union List'').
D
            (2) Notwithstanding anything in clause (3), Parliament,
            and, subject to clause (1), the Legislature of any State
            also, have power to make laws with respect to any of
            the matters enumerated in List III in the Seventh
            Schedule (in this Constitution referred to as the
E           "Concurrent List'').

            (3) Subject to clauses (1) and (2), the Legislature of
            any State has exclusive power to make laws for such
            State or any part thereof with respect to any of the
 F          matters enumerated in List II in the Seventh Schedule
            (in this Constitution referred to as the "State List'').

            (4) Parliament has power to make laws with respect to
            any matter for any part of the territory of India not
            included in a State notwithstanding that such matter is
G           a matter enumerated in the State List. "


            179. During submissions before us, one of the issues raised is as
      to whether Article 245 is source oflegislative power or it is Article 246.
      Some of the counsel appearing on behalf of the States contend that the
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              749
                       [ASHOK BHUSHAN, J.]

word "subject to the provisions ofthis Constitution" is there only in Article A
245 which does not govern, Article 246 under which Legislature of any
State has exclusive power to make law. Articles 245 and 246 both cover
the same subject i.e. law making by the Parliament and the Legislature.
Article 245 deals with the extent of laws whereas Article 246 deals
with the subject-matter of laws. Both the Aiiicles together define and B
demarcate the legislative powers to be exercised by the Parliament and
the States. The issue is no longer res integra. The Constitution Bench
of this Court in Maharaj Umeg Singh and others vs. The State of
Bombay and otlters,(1955) 2 SCR 164, had occasion to consider the
extent and limitations on the legislative powers as provided under A11icles
245 and 246. Following was laid by this Cotui in the above case:              c


      "The fetter or limitation upon the legislative power of
      the Stale Legislature which had plenary powers of
      legislation within the amhit of the legislatire heads                   D
      spec(fied in the Lists II & III of the Seventh Schedule to
      the Constitution could only be imposed hy the
      Constitution itself and not by any obligation which had
      been undertaken by either the Dominion Government
      or the l'rovi11ce of Bombay or even the State of Bombay.
      Under Article 246 the State Legislature was invested                    E
      with the power to legislate 011 the topics enumerated in
      Lists Ii & III of the Seventh Schedule to the Co11stil11tion
      and this power was by virtue of article 2../5(/ )subject
      to the provisions ()f the Constitutio11. The Constitution
      itself laid down the fetters or limitations 011 this powe1:             F
      e.g., in article 303 or article 286(2) .. ,


       It is relevant to note that Constitution Bench has noticed Article
303 as one of the A1iicles by which limitations were put on the legislative
powers of the State.                                                          G

      180. The above view has been reiterated in a large number of
judgments of this Cou1i. It will be sufficient to refer only one more
Constitution Bench judgment of this Court in Stllte o/Keralt11111d other.~
vs. Mllr Appraem Kuri Compllny Limited llfl(f llnother, (2012) 7
                                                                              H
750            SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A     SCC 106. This Court again had occasion to consider A1ticles 245 and
      246. The Constitution Bench held in the said case that while the legislative
      power is derived from Article 245, entries in the Seventh Schedule of
      the Constitution only demarcate the legislative fields of the respective
      legislatures and do not confer legislative power as such. Following
 B    observations were made in paragraph 35:


            "35 ..... While the legislative power is derived.from Article
            245,the entries in the Seventh Schedule of the
            Constitution onlv demarcate the legislative fields of the
 c          respective legislatures and do not confer legislative
            power as such. While Parliament has power to make
            laws for the whole or any part of the territory of India,
            the legislature of a State can make laws only for the
            State or part thereof Thus Article 245 inter alia indicates
 D          the extent of laws made by Parliament and by the State
            Legislatures. "


             181. In paragraph 37 it was laid down that the expression "subject
      to other provisions of the Constitution" has also to be read in Article 246,
 E    following was laid down in paragraph 37:


             "Article 246, thus, provides for distribution, as between
             Union and the States, of the legislative powers which
 F
             are conferred hy Article 245. Article 245 begins with
             the expression "subject to the provisions of this
             Constitution". There.fore, Article 246 must he read as
             "subject to other provisions of the Constitution".


 G           182. Thus, it is well settled that legislative power of the State is
      subject to the provisions of the Constitution. The words 'subject to the
      provisions of this Constitution' had to give its full meaning and content.
      Thus, limitation of the legislative powers wherever found in the
      Constitution has to be given effect to. There can be no doubt that Part
      XU of the Constitution deals with "Finance, Property, Contracts and
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                         751
                 [ASHOK BHUSHAN, J.]

Suits" and there are various express limitations provided in Part XII, A
namely, Articles 276, 286 and certain other Articles but can Part XII be
treated as the only limitations on the legislative powers of the States, the
answer has to be in negative. We have already extracted Article 13
sub-clause (2) and there are more than one Constitution Bench judgments
which held that taxing legislation has also to confonn Article 13 sub- B
clause(2). In Kunnatltat Thathunni Moopil Nair vs. The State of
Kerala and another, (1961) 3 SCR 77, Constitutional validity of
Travancore-Cochin Land Tax Act, 1955 was challenged. Following
contention was raised by the petitioners:

                                                                          c
       "On the legal aspect of the controversy raised on behalf
      of the petitioners, it was argued that the Act has its
      justification in Art.265 of the Constitution, which was
       not subject to the provisions of Part III of the
      Constitution and that, therefore, Arts. 14, 19, 31 could            D
       not he pressed in aid of the petitioners. It was also
       contended that even if the Act is, in effect, confiscatory,
       it cannot be questioned, being a taxing statute.'·'


       183. Repelling the contention the Constitution Bench held that     E
tax legislation is also subject to Article 13. Following was held:


      "It has to be done by authority of law, which must mean
      valid law. In order that the law may he valid, the tax
                                                                          F
      proposed to be levied must he within the legislative
      competence of the Legislature imposing a tax and
      authorizing the collection thereof and, secondly, the tax
      must he subject to the conditions laid down in Art.13 of
      the Constitution. One of such conditions envisaged hy
      Art.13 (2) is that the Legislature shall not make any law           G
      which takes away or abridges the equality clause in
      Art.14 which enjoins the State not to deny to any person
      equality before the law or the equal protection of the
      laws of the countly. "
                                                                          H
752             SUPREME COURT REPORTS                              [2016] 10 S.C.R.



A          184. Another Constitution Bench judgment in Hari Krishna
      Bhargav vs. Union of India and another, 1966 AIR SC 619, held
      that exercise of taxing power is also to be tested in the light of the
      fundamental freedoms guaranteed under Chapter Ill of the Constitution.
      Following was observed in paragraph 7:
B
              "7 .... Exercise of the taxing power to the State has
             undouhtedly to be tested in the light of the fundamental
             freedoms guaranteed hy Ch.III of the Constitution. It is
             not a power which transcend~ the .fimdamental rights,
c            as was assumed in certain earlier decisions. Ramjilal
             v. Income-tax Officer Mohinder Garh, 1951 SCR 127:
             (AIR 1951 SC 97): Laxmanappa Hanumantappa v.
              Union of lndia,1955-1 SCR 769: (AIR 1955 SC 3): and
             the view expressed by VenkatarammaAyyar, J., inAnantha
D            Krishnan v. State of Madras, JLR (1952) Mad 933: (AIR
             1952 Mad 395). But it is now settled by decisions of the
             Court (e.g.), Kunnathat Thathunni Moopil Nair v.State
             of Kera/a, 1961-3 SCR 77: (AIR 1961 SC 552), that a
             taxing statute is subject to the "conditions laid down in
             Art.13 of the Constitution". A taxing statute may
E            accordingly he open to challenge on the ground that it
             is expropriatary, or that the statute prescribes no
           . procedure or machinery for assessing tax. hut it is not
             open to challenge merely on the ground that the tax is
             harsh or excessive. "
 F
              185. All legislative power5 is su~ject to limitations in the Constitution,
      be it fiscal statutes or non-fiscal statutes.
            186. Now, we come to the question as to whether Part Xlll also
G     contains limitations on the legislative power of the State. Part Xlll of the
      Constitution has been included in the Constitution after great deliberation
      and debates in the Constituent Assembly as noted above. Part XIII
      contains one of the most important right and principle on which country
      was to march to attain economic freedom. Justice Gajendragadkar, J.
      has beautifully explained the nature and contents of right guaranteed
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              753
                 [ASHOK BHUSHAN, J.]

under Part XIII in following words: -                                         A


       "The provision contained in Article 301 guaranteeing
      the freedom of trade, commerce and intercourse is not
      a declaration of a mere platitude, or the expression of
                                                                              B
      a pious hope of a declaratory character; it is not also
      a mere statement of a directive principle of State policy;
      it embodies and enshrines a principle of paramount
      important that the economic unity of the country will
      provide the main sustaining force for the stability and
      progress of the political and cultural unity of the                     c
      country. "


       187. Justice Gajendragadkar speaking for majority in the above
case has also held that Article 301 is a Constitutional limitation on the
                                                                              D
legislative power of the Parliament and the States in following words:-


      "That is why it seems to us that Article 301, read in its
      proper context and subject to the limitations prescribed
      by the other relevant Articles in Part Xlll, must by                    E
      regarded as imposing a constitutional limitation on the
      legislative power of Parliament and the Legislatures of
      the States. "


                                                                              F
       188. While discussing the "limitation on the legislative power of
the State under the Constitution" we have already concluded thatArticle
245 which is a source of all legislative power puts a general limitation on
all legislative power which has been expressly made 'subject to the
provisions of this Constitution'. When all legislative powers are subject
to the provision of Constitution, Part Xlll being also a part of the          G
Constitution, all legislative power has also to be subject to Part XIII.
        189. A textual interpretation of Part XIll also lead to the same
conclusion. Article 303 is an express provision which provides for
'restriction on the legislative power of the Union and the States with
                                                                              H
754             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     regard to trade and commerce'. Article 304 is another provision which
      although empowers the legislature of the State to put restriction on trade,
      commerce and intercourse among the States by law, but law to be
      made by the State is hedged by various restrictions as contained in Article
      304(a) and 304(b). Thus Article 304 is also a limitation on legislative
      power of the State.
 B
           190. This Court in State of Karnataka mu/ Another Vs. Han.m
      Corporation, (1980) 4 SCC 697, has held in Para 30:


              "Article 304(a) imposes a restriction on the power of
 c           the legislature of a State to levy tax ....... ".


            191. Article 30 l contains a general limitation on all legislative
      power. A Constitutional Bench of this Court in State of Tamil Nad11
 D and Others Vi·. Sitolaxmi Mills and Others (1974) 4 SCC 408                  111
      para 7 as Stated:


              " .... In other words Article 301 imposes a general
             limitation on all legislative power in order to secure that
 E           trade. commerce and intercourse in the territory of India
             shall be free".     ·


           192. Justice K. Mathew in G K. Krishnan and Other.1 Vi'. State
 F    of Tamil Nadu anti Other.1 (1975) I SCC 375 had again reiterated
      that Article 304 imposes a general limitation on all legislative power, he
      states that 'Article 301 imposes a general limitation on all legislative
      power in order to secure that trade, commerce and intercourse throughout
      the territory oflndia shall be free'. In view of the aforesaid discussion,
      we conclude that Part XIII of the Constitution contains limitation on the
 G
      legislative power of the State and all legislative power of the State whether
      fiscal or non-fiscal has to conform Part XII of the Constitution.
            D. Whether Part XIII of the Constitution l'OVers "tax
      legislation" and word "restriction" used therein includes tax
      legislation.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             755
                 [ASHOK BHUSHAN . .J.]

      193. The above subject is being considered in two parts. Firstly,      A
whether Part XIII of the Constitution covers tax legislation and secondly.
whether word restriction used in Pati XIII includes tax legislation.
      Whether Part XIII covers tax legislation
       194. Learned counsel for both the parties have to make different
                                                                             B
submissions on the above subject. Learned counsel for the petitioners
on the one hand contends that all tax legislation which restrict freedom
of trade, commerce and intercourse are covered by Pati XIII whereas
learned counsel appearing for the States contend that Part XIII only
covers non-discriminatory taxes as referred to under Article 304(a) and
no other tax legislation is covered under Paii Xlll.                         c
       J 95. Gajendragadkar J.. speaking for majority in Atiabari Tea
Co. Ltd. has rejected the argument that tax laws are outside Paii XIII.
Even Sinha C.J., having expressed the following opinion at Page 828:

                                                                             D
      " ... Therefore. when Part XIII of the Constitution speaks
      of imposition of reasonable restrictions in public interest,
      it could not have intended to include taxation within
      the generic term 'reasonable restrictions'.... "
       In the same Paragraph further observed:                               E
       "... if a law is passed by the Legislature imposing a tax
      which in its true nature and effect is meant to impose
      an impediment to the .fi'ee .flow of trade, commerce and
      intercourse, for example, by imposing a high tariff wall.
      or by preventing imports into or exports out of a State,               r
      such a law is outside the sig11(ficance of taxation. as
      such. but assumes the character of a trade barrier which
      it was the intention of the Constitution makers to abolish
      by Part XIIJ... "
                                                                             G
       196. Shah J .• inAtiahari Tea Company has held that all taxations
which imposed restriction are hit by Article 30 l. The Automobile
Tramport (supra) where correctness of Atiahari Tea Co. was
questioned reiterated that taxation is included in Part XIII. Following
                                                                             H
756             SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A     was observed by Das J.


             " ... in view of the provisions of Article 245, we find it
             difficult to accept the argument that the restrictions in
             Part XIII of the Constitution do not apply to taxation
B
             laws ... "


            197. Both K. SubbaRao, J. and M. Hidayatullah, J. in their separate
      opinions have held that restriction by law of taxation is also hit by Article
 c    301.
             198. Learned Counsel for the States in support of their submission
      further contends that both the words i.e. 'tax' and 'restriction' have
      been used in Article 304(a) and Article 304(b) separately. Both the words
      are not interchangeable nor the scheme of Article 304 indicates that the
 D    word 'restriction' includes taxation. Learned counsel further submits
      that reading taxation into word 'restriction' as used in Part XIII is
      accepting an interpretation which fetters the plenary powers oflegislation
      granted to the States under the Constitution.
             199. All subsequent judgments of this Court have also proceeded
 E    on the premise that a tax legislation which impedes the freedom of trade,
      commerce and intercourse and is not saved by Article 302 to 304 is
      invalid. Apart from the reason which found favour in Atiabari Tea
      Company and Automobile Transport the following reasons reinforce~
      our view that Part Xlll covers all tax legislations which impede the
 F    freedom of trade, commerce and intercourse:
             (a) The express use of word tax in Article 304(a) and 306 (as it
      existed before its repeal by Constitution's 7th Amendment Act, 1956)
      indicates that taxes were expressly included in Part XIII. Had the taxes,
      apart from as mentioned in 304(a) were not to be covered under Part
 G    XIII, Article 306 ought not to have been engrafted which permitted
      continuance of tax or duty on the import and export of the goods, in Part
      B States for a period not exceeding ten years from the commencement
      of the constitution. The framers of the Constitution were conscious that
      unless an overriding effect is given to taxes which are continuing in the
      State the same shall fall foul to Article 301.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                757
                       [ASHOK BHUSHAN, J.]

       (b) Article 302 uses the phrase, "Parliament may by law''. Whereas A
Article 303 uses the phrase "neither Parliament nor the legislature of the
State shall have power to make any law....." Article 304 uses the phrase
the legislature of a State "may by law". All laws framed by Parliament
or State in exercise of legislative entries under VI1 1h Schedule are law.
Article 302 - 304 contain exception according to which, freedom of 8
trade, commerce and intercourse as guaranteed under Article 30 l can
be overridden. The word law is wide enough to include both fiscal and
non-fiscal legislations.
        (c) Article 303 imposes restriction on the legislative power of the
Union as well as of the State with regard to trade and commerce. Article        c
303(1) provides that a State shall have no powers to make any law
giving or authorising the giving oJ~ any preference to one State over
another, or making or authorising the making of, any discrimination
between one State or another, by virtue of any entry relating to trade
and commerce in any Lists of the Vll'h Schedule. The legislative power
of the State, which is restricted under 303( I) cannot be held to be confined   D
only to law as referred to in 304(a) rather it can extend to a legislation by
virtue of any entry relating to the trade and commerce in List II. From
this. it is clear that tax legislation which are covered under Part XIII are
not confined to only Article 304(a).                         ·
       ( d) In the event, the submission is accepted that all taxes are          E
outside Part Xlll except non-discriminatory taxes as permitted under
Article 304(a), the same will lead to giving right to the Parliament and
State Legislature to pass facially non-discriminatory laws but creating
restrictions on trade and commerce by other means by providing arbitrary
procedure and various other kind of restraints. The taxation which can           F
impede the trade, commerce and intercourse thus cannot be confined
only to non-discriminatory taxation. Even, non-discriminatory taxes which
create restraint on trade have to be held to fall foul to Article 301. In the
event of accepting the above submission, the restraint in trade by other
means of taxation shall be out of reach of Part XIII, which is never the
                                                                                 G
intention of the framers of the Constitution.
      (e) A11icle 304(a) covers imposition of taxes ori goods imported
from other States. Article 304(a) does not apply to imposition of taxes
on intra-State trade. Can it be presumed that intra-State taxation, if it
contains restraint on trade between one local area to another local area
                                                                                 1-1
758             SUPREME C:JURT REPORTS                        [2016] l 0 S.C.R.



A     or is discriminatory. the same is outside the reach of Article 30 l? The
      answer is obviously no. Trade and commerce throughout the territory of
      India is to be free. Thus reach of Article 301 is not confined to taxation
      as contemplated by 304(a) rather Part XIII embraces in itself all kind of
      tax legislation, which contains restraint on trade. commerce and
B     intercourse.
             (f) Atiicle 304(a) only covers taxes on goods imported from other
      State and Union Territories. List II of Vll'h Schedule contains various
      other entries which empower the State to levy taxes. Entry 49 to Entry
      62 enumerate various fields of taxing legislation. In the event, the
c     submission is accepted that it is only taxes referred to under Article
      304(a), are covered by Part Xlll, all taxing legislations as enumerated
      in List II shall go out of reach of Part XIII. Whether Constitlltion framers
      contemplated that restriction in freedom of trade, commerce and
      intercourse can be imposed by the State by taxing legislation other than
      those referred to in 304(a), answer has to be negative. Other taxing
D     legislation apart from those, mentioned in Atiicle 304(a) are not immuned
      from restriction contained in Part XIII. For example, Entry 49 provides
      'taxes on lands and buildings'. A State Legislation is passed imposing
      taxes on buildings where trade and commerce is carried, the effect of
      which is to impede the trade and commerce, can it be said that such tax
 E    legislation cannot be questioned as violating Article 30 I. The answer is
      that such legislation has also to comply with Article 30 I. Thus. Article
      304(a) is not the only taxation which is covered by Pati XII!. But it is
      only species of taxation which has been expressly indicated for carving
      out gateway for the State Legislature to impose tax which may not impede
      Article 30 I.
 F
             (g) Lastly, there are no provision in Part Xlll which negate the
      applicability of Part XIII on taxes which operates as restriction to trade,
      commerce and intercourse. Something which is not expressly excluded
      in Pati XIII cannot be excluded by way of interpretation.
 G           Whether restriction used under Part XIII includes tax
      legislation
            200. While discussing the subject' Legislative History and Debates
      in Constituent Assembly' on freedom of trade, commerce and intercourse.
      we have already found that taxes were treated as restrictions on freedom
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                               759
                  [ASHOK BHUSHAN, J.]

of trade and commerce and it was further comprehended that restrictions         A
on freedom of trade and commerce can be put by taxation also. Apart
from above, there are following reasons which support our conclusion
that word 'restriction' used in Part Xlll includes tax legislation:
      (i) The textual interpretation of Part Xlll itself indicates that taxes
were contemplated to be included in word 'restriction'. The heading             B
of Article 304 reads 'restrictions on trade, commerce and intercourse
among States'. Although the heading refers to 'restrictions' but Article
304(a) uses the word 'any tax'.
      (ii) The same conclusion is drawn from the Article 306 as it was
enacted. Article 306 also contained a heading 'power of certain States          C
in Part B of the l" Schedule to impose restriction on 'trade and
commerce'.'
       Article 306 contained a non ohstante clause empowering Part
B, States to continue to levy and collect such tax, subject to an agreement
with the Government of India which was being levied at the time of D
commencement of the Constitution.
       The heading only referred to restrictions on trade and commerce
whereas section referred to imposition of taxes. Thus textual
interpretation of Article 304 and 306 clearly -indicates that word
'restriction' was used as inclusive of taxes.                                   E
        (iii) The word 'restriction' has been used in Part III, in Article
19(2) to Article 19(6). The word 'restriction' has also been used in Part
XIII. The word 'restriction' appearing in Part III and Part XIII have the
same meaning and should be construed as such. It is well known principle
of statutory interpretation of Constitution that when the same words or          F
phrases are used in different parts of the Constitution, the same meaning
should be ascribed to such word unless the context demands otherwise.
It is sufficient to refer to judgment of this Court in Kesavananda Bharati
Versus State of Kera/a, (1973) 4 SCC 225. Justice "Hegde and
Mukherjea" in Para 640 had reiterated the above principle as:                   G


       "... it is one of the accepted rules of construction that
       the courts should presume that ordinarily the Legislature
       uses the same words in a statute to convey the same
                                                                                H
760             SUPREME CSURT REPORTS                          [2016] 10 S.C.R.



A           meaning. {f d(fferent words are used in the same statute,
            it is reasonable to assume that, unless the context
            othen1Jise indicates. the Legislature intended to convey
            different meanings of those words. This rule of
            interpretation is applicable in construing a Constitution
B
            as well... "
             (iv) This Cou1i had occasion to consider the word 'restriction' as
      used in Part Ill in context of taxing legislation, namely. Travancore-
      Cochin Land Tax Act, 1955 in KT. Moopil Ntiir Versus State ofKera/a
      and Anr., 1961 (3) SCR 77. When word 'restriction' as used in Part
c     III has been held to include restriction by tax legislation also, we see no
      reasons for not reading tax legislation in word 'restriction• in Part XIIL
      also. The word restriction has to be given same meaning as contained in
      Part Xlll.
             (v) Article 302 contains a heading 'power of Parliament to impose
D     restrictions on trade, commerce and intercourse'. Article further provides
      that the Parliament by laws impose such restrictions on the freedom of
      trade, commerce and intercourse.
                Under Article 302 tax laws enacted by the Parliament. namely,
      Central Sales Tax Act 1956 has been saved by this Court in State of
 E    Madras Vs. N. K. Nataraja Mudaliar 1968 (3) SCR 829. Bachawat,
      J., agreeing with the majority opinion stated as following:


            "I may add that even assuming that the Central Sales
            Tax Act. 1956 is within the mischief (~f Art. 301, it is
F           certainly a law made by Parliament in the public interest
            and is saved by Art. 302. find nothing in the Act which
            offends Art. 303(1)."



G
             (vi) The word 'restriction' used in A1iicle 304(b) has also to be
      interpreted in the same manner. As noted above, Article 304(a) covers
      limited field to taxes on goods imported from other States. Article 304(a)
      does not cover intra-State taxation. An Intra-State Tax Legislation.
      impeding the freedom of trade, commerce and intercourse between one
      local area to another local area, has also to fall foul to Article 301. There
H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                               761
                  [ASHOK BHUSHAN, J.]

may be val id reasons for State legislature to impose restriction with regard   A
to intra-State taxation and there may be reasons for fixing different rate
of taxes with regard to different local areas, which may be a restriction
on the trade, commerce and intercourse. A1iicle 304(b) is a window by
which a State can impose reasonable restriction in public interest. In the
event, it is held that Article 304(b) does not cover taxes, the State will      B
have no mechanism to impose restriction on intra-State trade and with
regard to imposition of taxes other than goods impmted from other States,
which can not be the intention of framers of the Constitution.
     From the foregoing discussion, we arrive at following
conclusions:                                                                    c
      i. Part XIII of the Constitution covers tax legislation which restrict
freedom of trade, commerce and intercourse.
        ii.The word 'restriction' used in Part XIII includes tax legislations
also.
                                                                                D

E. LEGISLATIVE HISTORY AND CONSTITUENT ASSEMBLY
DEBATES RELATING TO ARTICLE 304(a)AND 304(b)


       20 I. By Section 297 of Government oflndiaAct, 1935, the certain         E
restrictions on the Provincial Legislature and the Government were
imposed to ensure freedom of trade, as has already been noted above.
When the Constituent Assembly proceeded to finalise the provisions of
the Constitution on freedom of trade and commerce, the Legislative
Scheme as such under Section 297 was already enforced. By Section                F
297(l)(a) the State Legislature and Government were prohibited from
restricting the entry into. or export from, the Province of goods of any
class or description; and further by Section 297( 1)( b) imposition of any
tax, cess, toll, or due which was discriminatory in nature was prohibited.
As noted above the Sub-Committee on the fundamental rights in its report        G
dated 3"1 April, 194 7 has proposed the following clause with regard to
trade, commerce and intercourse:
          "13.Subject to regulation by the/aw of the Union,
        trade,commerce, and intercourse among the units,
                                                                                H
762            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A           whether hy means of internal carriage or hy ocean
            navigation, shall he free:
            Provided that any unit may by law impose reasonable
            restrictions thereon in the interest of puhlic order,
            morality or health. "
B

            202. Shri Alladi Krishnaswami Ayyar put a note on the above
      Clause 13 which was to the following effect:


 c            "Clause 13. Though I have heen in some measure
            responsible for the inclusion of this clause I feel it must
            he made clear that :(1) goods from other parts of India
            than in the units concerned coming into the units cannot
            escape duties and taxes to which the goods produced
D           in the units themselves are subject. "


             203. While submitting the report of the Sub-Committee dated 16'11
      April, 1947, Chainnan ofFundamental Rights Sub-Cmmnittee stated that
      although every citizen is entitled to free trade, commerce and intercourse
 E
      within the territories of the Union unburdened by any internal duties or
      taxes of customs but many Indian States depend upon such duties and
      taxes for a considerable part of their revenue and cannot do without it all
      at once. It was stated that some agreement had to be made with those
      States in the light of their existing rights with a view to their ultimate
 F    elimination within a period to be prescribed by the Constitution.
             204. Thus, with regard to the taxes.the above view was reiterated
      by Shri Vallabhbhai Patel in the report ofAdvisory Committee submitted
      on 23 1d April, 1947. Shri C. Rajagopalachari in Advisory Committee
      proceeding had stated : "I think we should add to 14( 1) that this shall not
 G    be a bar to the imposition of taxes for genuine purposes of revenue."
      Before the Constituent Assembly the Advisory Committee had
      recommended Clause 10 regarding trade, commerce and intercourse to
      the following effect:
             "JO. Suhject to regulation by the law of the Union
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            763
                 [ASHOK BHUSHAN, J.]

      trade, commerce, and intercourse among the Units by                   A
      and between the citizens shall he free:
        Provided that any Unit may by law impose reasonable
      restrictions in the interest of public order, morality or
      health in or in an emergency:
                                                                            B
        Provided that nothing in this section shall prevent any
      Unit from imposing on good~ imported from other Units
      the same duties and taxes to which the good~ produced
      in the Unit are subject:
        Provided further that no preference shall be given by any
      regulation of commerce revenue by a Unit to one Unit over
                                                                            c
      another."


       205. The above Clause 10 came for discussion before the
Constitution Assembly on 1st May, 194 7. Shri K.M. Munshi before the        D
Constituent Assembly placed amendment for adding the words 'and
under regulations and conditions which are non-discriminatory'. The
Constituent Assembly approved Clause IO by accepting amendment
proposed by Shri K.M. Munshi. Third proviso thus was approved as
follows:
                                                                            E
        "Provided that nothing in this section shall prevent
      any Unit from imposing on good~ imported from either
      Units the same duties and taxes to which the goods
      produced in the Unit are subject and under regulations
      and conditions which are non-discriminatory. "                        F


      206. The above proviso was included in the Draft Constitution
published in October, 194 7 and thereafter draft as finalised by Drafting
Committee provided for restriction on trade, commerce and intercourse
by Article 244 which was of the following effect:                           G


       "244. Notwithstanding anything contained in Article 16
      or in the last preceding Article of this Constitution, it shall
      be lawful for any State-
                                                                            H
764            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     .,       (a) to impose on goods imported from other States any
               tax to which similar goods manufactured or produced in
               that State are subject, so, however, as not to discriminate
               between goods so imported and goods so manufactured
               or produced; and
B              (b) to impose by law such reasonable restrictions on
               the freedom of trade, commerce or intercourse with that
               State as may be required in the public interests:
            Provided that during a period of five years from the
            commencement of this Constitution the provisions of clause
c           (b) of this article shall not apply to trade or commerce in
            any of the commodities mentioned in clause (a) of Article
            306 of this Constitution."


             207. Article 244 which was subsequently approved as Article 274D
D
      in Part XA and was adopted as Article 304 of the Constitution. The
      above indicates that initially the provisions empowered the State "to
      impose on goods imported from other States any tax to which similar
      goods manufactured or produced in that State are subject", and by an
      amendment another resttiction i.e. "so, however, as not to discriminate
 E    between goods so imported and goods so manufactured or produced"
      was added. Article 304(a) contains both the above restrictions on the
      legislative power of the State. The proceedings of the Constituent
      Assembly, thus, clearly indicate that both the above conditions have been
      added in the provision as separate conditions and the second condition
 F    was added by way of amendment in addition to the first condition which
      already existed. Now coming to Article 304(b) which was similar to
      draft Article 244(b ), Constituent Assembly debated the above Article
      threadbare.
             208. Dr: Ambedkar had moved motion for inclusion of a separate
 G    Part XA wherein Article 244 was deleted and substituted by a draft
      Article 274D which was to the similar effect. In the Constituent Assembly
      Debates dated 3rd December, 1948 the draft Article 16 which was included
      in the fundamental rights came for consideration. In the context of the
      above discussion objections were raised to Article 244 by Shri C.
      Subramanian. Shri C. Subramanian raised objection that a State
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                          765
                 [ASHOK BHUSHAN, J.]

Legislature has been given power to impose certain taxes and impose       A
certain restrictions which clearly means that no fundamental right is
reserved for free trade and commerce. The objection of Shri C.
Subramanian was taken in the following words:


                                                                          B
      "You will find, Sir, that in article 244, even though it
      might he inter-state trade and commerce, the State
      Legislature is given certain powers to impose certain
      taxes and impose certain restrictions. Having this in
      mind, if we come to Article 16, we.find the words "subject
      to the provisions of article 244 of this Constitution'',            c
      that is, even in respect of inter-state trade and coinmerce,
      the State Legislature has heen given certain powers and
      that is not touched hy this article. Therefore leaving
      that, the article would read "subject to the provisions
      of any law made by Parliament, trade and commerce                   D
      and intercourse through the territory of India shall be
      free". 1 really fail to understand how this can be a
      fundamental right and whether there is any right at all
       reserved. The very conception of a fundamental right
       is that there is a certain right taken out of the province
      of the legislature either of the Union or of the State. "           E


       209. Dr. Ambedkar replying to the above objection with regard to
Article 244 stated as follows:
                                                                          F
      "With regard to the other argument, that since trade
      and commerce have been made subject to article 244,
      we have practically destroyed the fundamental right, I
      think 1 may fair~y say that my friend Mr: Subramaniam
      has either not read article 244, or has misread .that               G
      article. Article 244 has a very limited scope. All that it
      does is to give powers to the provincial legislatures in
      dealing with inter-state commerce and trade, to impose
      certain restrictions on the entry of good~ manufactured
                                                                          H
766            SUPREME COURT REPORTS                       [2016] 10 S.C.R.



A           or transported from another State, provided the
            legislation is such that it does not impose any disparity,
            discrimination between the good~ manufactured within
            the State and the goody imported/ram outside the State.
            Now, I am sure he will agree that that is a very limited
 B
            law. It certainly does not take away the right of trade
            and commerce and intercourse throughout India which
            is required to he free. "


             210. As stated above Article 244 was akin to Article 274D which
 c    was sought to be added in new Chapter and came for discussion on 81h
      September, 1949 before the Constituent Assembly. Dr. B.R. Ambedkar
      by moving a motion in support of Chapter XA giving a complete picture
      of the A1iicles now put at one place stated as follows:


 D
             "I should also like, to say that according to the
            provisions contained in this part it is not the intention
            to make trade and commerce absolutely free, that is to
            say, deprive both Parliament as well as the States of
            any power to depart from the fundamental provision
 E          that trade and commerce shall he free throughout India.
            The freedom of trade and commerce has been made
            subject to certain limitations which may be imposed by
            Parliament or which may be imposed by the Legislatures
            of various States, subject to the fact that the limitation
 F          contained in the power of Parliament to invade the
            freedom of trade and commerce is confined to cases
            arising from scarcity ofgoody in any part of the territory
             of India and in the case of the States it must he justified
            on the ground ofpublic interest. The action of the States
             in invading the freedom of trade and commerce in the
 G          public interest is also made subject to a condition that
             any Bill affecting the freedom of trade and commerce
             shall have the previous sanction of the President;
             otherwise, the State would not be in a position to
             undertake such legislation. "
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               767
                 [ASHOK BHUSHAN, J.]

      211. Pandit Thakur Das Bhargava raised various amendments.               A
Pandit Bhargava moving his amendments stated:


       "Now, in regard to these amendments my submission is
       that the way in which I look at the subject is different
                                                                               B
      from the way in which D1: Amhedkar look at it.
      According to me, these rights of trade and commerce
      and intercourse should he absolute and only
       circumscribed hy provisions relating to emergencies
       while in his view, the power of the Central Government
       as well as of the provincial Governments should he                      c
       there, and these rights should be qualified We have
       already passed article 16 which runs thus:
      "Subject to the provisions of article 244 of this
      Constitution and of any law made by Parliament, trade,
      commerce and intercourse throughout the territory of                     D
      India shall he free. "
        This article yet stands as it is. There has so far been
      no amendment that it stands abrogated. The existence
      of this article in the Chapter on Guaranteed Rights
      assures us that this is a fundamental right. The nature                  E
      of this .fundamental right has been, I know, curtailed to
      a great extent by the use of the words "and of any law
      made by Parliament". Subject to this, this fundamental
      right has been guaranteed to the citizens of India by the
      Constitution we have already passed.                                     F


       212. With regard to Article 274D, Pandit Thakur Das Bhargava
raised serious objections to sub-cluase (b ), following was stated by Pandit
Bhargava"
                                                                               G

      "Similarly Si1; in regard to article 274D, I have no
      objection to clause (a): hut so far as (h) is concerned,
      this is the clause to which I object most seriously. I think
      this is unnecessary because when the powers are given                    H
768            SUPREME COURT REPORTS                      [2016] 10 S.C.R.



A          to the Parliament as originally they were given to the
           Parliament, I have no objection. The Parliament shall
           have to consider it from the general standpoint, from
           the standpoint of the whole of India, whereas a State is
           bound to consider it from a parochial point of view,
B          from the point of view of the State and there.fore, this
           mutual jealousy is bound to arise if we allow these
           powers to the State. There.fore, the policy of the
            Government should be that so far as the State is
            concerned, they should not be allowed to exercise that
           power unless it be through Parliament. ff a State is
c           empowered to use its powers under clause (a) I have no
            quarrel as it will he a salutary power; hut if you allow
            clause (b) to remain as it is, I do not understand what it
            may lead to."

D
           213. Prof.Shibban Lal Saksena also supported the amendments
      moved by Pandit Bhargava.
           214. Shri T.T. Krishnamachari replying the objections of Pandit
      Bhargava stated following with regard to Article 274D:
 E

              "So far as 274D is concerned, my honourable Friend
            Pandit Thakur Das Bhargava will either wholly amend
            it in such a way as to completely change its shape or
            completely eliminate it. I feel that it arises-I have no
 F          douht--from a particular bitter experience of his in
            which a Provincial Government has not executed its duty
            towards its people in the proper way. But hard cases do
            not always mean bad law. There is not reason for us to
            completely shut out discretion or the States in so far as
G           the Central Government will have enough power not
            mere~v to have a uniform fiscal policy but also as far as
            possihle to have a uniform economic policy. And that is
            provided by the fact that the President'.~ previous
            sanction is necessary in regard to any legislation
            undertaking by the State under clause (b) of 274D.
 H
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                        769
                [ASHOK BHUSHAN, J.]

     Pandit Thakur Das Bhargava: Is it not exactly the                 A
     reason why the Provinces and the State Legislatures
     should not he given the power?
     Shri T. T. Krislmamachari: That is exactly the reason
     why they should he given the power. The State should
     he given a certain amount of right in this matter and             B
     the onzv reason why the Centre should interfere is to
     see that the economic and .fiscal policy of the Centre is
     not unduzv interfered with, and to the extent that it cannot
     he inte1:fered with the State must he given a reasonable
     amount of power to order its own affairs. "                       C


      215. Shri Alladi Krishnaswami Ayyar replying the objections of
Pandit Bhargava with regard to Article 274D stated as follows:

                                                                       D
       "Then I am surprised at exception being taken to the
      terms of article 274D. It does not give any unfettered
      power to the States. The proviso clearly lays down-
      "No Bill or amendment for the purposes of clause (b)
      of this article shall be introduced or moved in the              E
      legislature of the State nor shall any Ordinance he
      promulgated.for the purpose by the Governor or Ruler
      of the State without the previous sanction of the
      President".
      Therefore, if on account of parochial patriotism or              F
      separatism, without consulting the larger interests of
      India as a whole !f any Bill or amendment is introduced,
      it will be open to the President, namezv, the Cabinet of
      India to withhold sanction. This is therefore a very
      restricted power that is COl?ferred on the legislature of        G
      a State. After all what is the nature of the power given ?
      The power is confined to imposing such reasonable
      restrictions on the freedom of trade, commerce or
      intercourse with or within that State as may be required
      in the public interest therefore the President who has to
                                                                       H
770            SUPREME COURT REPORTS                          [2016] I0 S.C.R.


A           grant sanction will have the opportunity lo see !hat the
            legislation is in !he public interes/ and that the restriction
            imposed is reasonable. It is not possih/e to devise a
            water-tight formula for the purpose of' defining these
            restrictions. "
B
             216. Replying the Debate, Dr. B.R. Ambedkar stated that he cannot
      usefully add anything to what Shri T.T. Krishnamachari and Shri Alladi
      KrishnaswamiAyyar had said. Article 274D was added to the Constitution
      by negating the amendments. From the above, it is clear that objections
C     with regard to Article 2740 sub-clause (b) which is now Article 304( b)
      were raised before the Constituent Assembly but the objections were
      overruled by retaining Article 274D sub-clause (b) which is now Article
      304(b), thus, inclusion ofArticle 304(b) in the Constitution was consequent
      to well deliberated Constitutional Scheme and was accepted as restriction
 D    on the power of State to have uniform fiscal policy and uniform an
      economic policy.


      F. INTERPRETATION, SCOPE AND AMBIT OF ARTICLE
      304(a) AND ARTICLE 304(b)
 E

             217. Article 304 of the Constitution reads as follows:


             "304. Restrictions on trade, commerce and intercourse
 F
             among States.-Notwithstanding anything in article 301
             or article 303, the Legislature of a Stale may by law-·-
             (a) impose on goods imported from other States or the
             Union territories any tax to which similar goods
             manufactured or produced in that State are sulJject, so.
 G
             however, as not to discriminate between goods so
             imported and goods so 111anuj(1c/ured or produced: and
             (b) impose such reasonable restrictions 011 the ji-eedom
             of trade, commerce or intercourse with or within that
             State as may be required in the public interest:
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                771
                 [ASHOK BHUSHAN, J.]

      Provided that no Bill or amendment for the purposes of                    A
      clause (b) shall be introduced or moved in the
      Legislature of a State without the previous sanction of
      the President. "

                                                                                B
       218. 'Article begins with a non ohstante clause i.e.
'notwithstanding anything in Aiticle 301 or 303'. Article 301 declare:;
that trade, commerce and intercourse throughout the territory of India
shall be free. Article 304 has overriding effect over Article 301, Article
304 provides for 'restrictions on trade, commerce and intercourse'
amongst States, as is clear by its heading, which otherwise would not           c
have been permissible under 301. Article 304 also overrides restrictions
on the legislative power of the State as provided for in Article 303.
       219. Article 304 empowers legislature of a State by law to impose
on goods imported from other States or Union Territories any tax. A
plain reading of Article 304(a) indicates that it contains certain conditions   D
for imposition of taxes on goods imported from other States. Article
304(a) can be divided in following parts:-
       i . Impose on goods imported from other States or Union Territories;
       ii.Any tax to which similar goods manufactured or produced in
                                                                                E
          that State are subject;
       iii. So, however, as not to discriminate between goods so imported
           and so manufactured or produced;
       220. We have already noted, while noticing the proceeding before
the Constituent Assembly that in the initial draft corresponding to 304(a) F
the condition iii, i.e., "as not to discriminate between goods so imported
and goods so manufactured or produced" was not there which was
added by an amendment brought by Shri K. M. Munshi. Thus (ii) and
(iii) Part of Article 304, as noted above contains two sepan1te and
independent conditions for invoking 304(a). Learned counsel for the States G
have submitted that the main content of Article 304(a) is imposition of
non-discriminatory taxes. It is contended that in event, there are no similar
goods manufactured or produced in the State to the goods which are /
imported there is no question of discrimination and State is· free to tax
imported goods, which are not produced or manufactured in the State.
                                                                              H
772             SUPREME COURT REPORTS                           [2016] 10 S.C.R.



A     On first blush, the submission appears to be attractive but on a deeper
      scrutiny it merits rejection. Article 304 is, in nature of enabling provisions
      to the State, to impose taxes on goods imported from other States.
      Framers of the Constitution had stated that the goods coming from other
      parts of the India in the units concerned cannot escape duties and taxes
B     to which the goods produced in the units are subject. There is specific
      purpose and object in enabling the State to impose tax on goods imported
      from other States only when similar goods manufactured or produced in
      that State are subject. The object is that trade and commerce throughout
      the territory of India has to be free, as required by Article 301 and limited
      power to State was given to tax the outside goods when local goods are
c     subject to taxes. In event, locally manufactured or produced goods are
      not subject to any tax, State has no jurisdiction to impose tax on similar
      goods coming from other States. Tax on the locally manufactured or
      produced goods is condition precedent for imposing tax on similar goods
      coming from other States. Idea is that when State does not tax its locally
D     manufactured or produced goods, similar goods coming from out of the
      State be pennitted a free flow which is a part of freedom guaranteed
      under Article 301.
              221. The last condition that 'so, however, as not to discriminate
      between goods so imported and goods so manufactured or produced ... "
 E    is another limb of restriction which prohibits the State from discriminating
      in imposing taxes on imp01ted goods as compared to goods manufactured
      or produced locally. The question of discrimination shall arise only when
      first condition that is locally manufactured or produced goods are taxed
      by a State. In event, a patticular good is not produced or manufactured
      in a State, State cannot be allowed to impose tax on goods coming from
 F
      othe;· States. First condition that is, taxing of the local goods being not
      fulfilled, the question of discrimination, does not arise. We are thus of
      the considered opinion that power under Article 304(a) for imposing
      taxes on the impotted goods can be exercised by a State only when
      similar goods manufactured or produced locally are subject to tax. When
 G    the similar goods are not subject to tax or similar goods are not available
      in the State, the State is obliged to pennit free flow of goods from other
      States which is cardinal principle enshrined in Article 301 and the
      relaxation to the States has been given only on a condition that State
      imposes taxes both on local goods and outside goods. Article 304(a)
      came for consideration before this Court in several cases including the
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                         773
                 [ASHOK BHUSHAN, J.]

Constitution Bench of this Court in State of Madhya Pradesh Vs. A
Bhailal Bhai and Others 1964 6 SCR 261, in the above case the
State has filed an appeal against judgment of the High Court ofM.P. by
which judgment High Court had allowed the writ petition filed by the
assessee permitting the refund of the tax assessed and collected from
them hclding assessment and collection as violative of Article 301 and B
not being saved by 304(a). The writ petitioners were carrying business
of sale of tobacco in accordance with the notifications issued by the
State Government, in the notification in question the tax was imposed
only on imported tobacco and not on home grown tobacco which was
noticed by the High Court in the judgment in following words:
                                                                         c
      "The High Court was of opinion on a consideration of
      the notification under which the tax was assessed that
      it imposed a tax only on imported tobacco and not on
      home grown tobacco and so it did not come within the               D
      special provisions of Art. 304(a) of the Constitution and
      consequently the infringement of Art. 301 of the·
      Constitution which resultedFom the imposition of a tax
      on import of goods made the provisions void in law.
      The prayer for refund was allowed in the applications
      out of which C.A. Nos. 362-377, C.A. Nos. 861-867 of               E
      1962 and C.A. No. 25 of 1963 have arisen. The prayer
      was rejected in the remaining applications.
      In the present appeals the State of Madhya Pradesh
      challenges the correctness of the High Court :s decision
      that the taxing provision was unconstitutional and void            F
      and also the orders for refund made in some of the
      petitions mentioned above. ··


       222. This Court came to conclusion that similar goods             G
manufactured or produced in the State of the Madhya Bharat have not
been subject to the tax which tobacco imported from other States have
to pay hence tax was not saved under 304(a), affirming the judgment of
the High Court this Court held as follows:

                                                                         H
774             SUPREME r ;)URT REPORTS                         [2016] 10 S.C.R.



A           "There can, therefore, be 110 escape from the conclusion
            that similar good5 mant!factured or produced in the Sate
            of Madhya Bharat have not heen subjected to the tax
            which tobacco leaves, mam!factured tobacco and
            tobacco used for Bi di manufacturing, imported from
B           other States have to pay on sale hy the importer. This
            tax is, therefore, not within the saving provisions of Art.
            304(a). As already pointed out it contravenes the
            provisions of Art. 301 of the Constitution. The tax has
            therefore been rightly held by the High Court to he
            invalid. It is clear that the assessment of tax under these
 c          notifications was thus invalid in law. "


            223. In another Constitution Bench judgment, Kalyani Stores Vs.
      State of Orissa and Others 1966 1 SCR 865 Article 304(a) again
D     came for consideration. In the above case, the petitioners have challenged
      the notification dated 31 March 1961 issued under Bihar & Orissa Excise
      Act, 1915 by which duty was enhanced from Rs. 40 to 70 per LP Gallon.
             224. The petitioners were asked to pay duty at the rate of Rs. 30,
      in respect of stocks of liquor found in the shop after April l, 1961. The
 E    petitioners challenged the legality of the levy by filing a w1it petition, the
      following contention was raised before this Court:


             "The appellants contended, inter alia that the State
             could levy under s.2 7 of the Bihar and Orissa Act duty
 F           on excisable articles produced or manufactured in the
             State and a countervailing duty on excisable articles
             imported into the State, imposed with a view to equalize
             the burden on the imported articles with the burden on
             manufactured articles in the State, hut no countervailing
 G           duty on liquor imported could he levied if there was in
             the year of licence no liquor, similar to the imported
             liquor, manufactured within the State, and as there was
             no distillery in the State manufacturing 'foreign liquor"
             the levy of countervailing duty was without authority
             of law."
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              775
                 [ASHOK BHUSHAN, J.]

       225. The writ petition was dismissed by the High Court justifying      A
the levy of duties of excise as countervailing duties under Entry 51 List
II in VII 1h Schedule. The judgment came to be challenged before this
Court. This Court negativated the view of the High Court, justifying the
levy as countervailing duty in following words:
                                                                              B
      "The fact that countervailing duties may he imposed at
      the same or lower rates suggests that they are meant to
      counterhalance the duties of excise imposed on good5
      manufactured in the State. They may be imposed at the
      same rate as excise duties or at a lower rate, preswnahly               c
      to equalise the hurden after taking into account the cost
      of transport from the place of manufacture to the taxing
      State. It seems, therefore, that countervailing duties are
      meant to equalise the burden on alcoholic liquors
      imported from outside the State and the burden placed                   D
      by excise duties on alcoholic liquors manufactured or
      produced in the State. If no alcoholic liquors similar to
      those imported into the State are produced or
      manufactured, the right to impose counterbalancing
      duties of excise levied on the goods manufactured in
      the State will not arise. It may, therefore, be accepted                E
      that countervailing duties can only be levied if similar
      goods are actually produced or mam1factured in the
      State on which excise duties are being levied. "

                                                                              F
       226. This Court held that exercise of power under Article 304(a)
can only be effective if the tax duty is imposed on goods imported from
other States and the tax or duty imposed on similar goods manufactured
or produced in that State are such. This Court held as no foreign liquor is
manufactured or, produced in the State of Orissa, power to legislate
given under Article 304(a) is not valid and following was laid down:          G



       "Exercise of the power under Art. 304(a) can on~v he
       effective if the tax or duty is imposed on goods imported
                                                                              H
776            SUPREME C:.JURT REPORTS                        [2016] 10 S.C.R.



A           from other Sates and the tax or duty imposed on similar
             goods mam!factured or produced in that State are such
             that there is no discrimination against imported good~.
            As no foreign liquor is produced or manufactured in
             the State of Orissa the power to legislate given by 'Art.
B            304 is not available and the restriction which is declared
             on the freedom of trade, commerce or intercourse by
            Art. 301 of the Constitution remains unfet.tered."


            227. ln the above two Constitution Bench judgments, this Court
C     have clearly struck down levy of taxes on import of goods, when there
      was no taxes levied by State on the goods locally manufactured or
      produced or those goods were not locally available.
            228. The question of discrimination between tax imposed on the
      imported goods and that of locally manufactured or produced goods is
D     another factor, on which the levy can fall foul. In Firm A. T.B.
      Mehtabmajid and Company Vs. State of Madras and Anothers 1963
      SCR Supl.(2) 435 a question of discriminatory levy under Article 304(a)
      was considered.
             229. In a writ petition under Article 32 of the Constitution filed in
 E    this Court, rule 16 of Madras General Sales Tax (Turnover and
      Assessment Rules, 1939) was under challenge. Petitioner was a dealer
      in hides and skins who used to sell the hides and skins taken from outside
      the State of Madras as well as those taken from inside the State. Case
      of the petitioner was to the following effect:
 F
             "ft is contended.for the petitioner that the effect of this
             rule is that tanned hides or skins imported.from outside
             the State and sold within the State are subject to a higher
             rate of tax than the tax imposed on hides or skins tanned
 G           and sold within the State, in as much as sales tax on the
             imported hides or skins tanned outside the State is on
             their sale price while the tax on hides or skins tanned
             within the State, though ostensibly on their sale price,
             is, in view of the proviso to cl. (ii) of sub-r. (2) of r. 16.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            777
                 [ASHOK BHUSHAN, J.]

      really on the sale price of these hides or skins when                 A
      they are purchased in the raw condition and which is
      suhstantial~v less than the sale price of tanned hides or
      skins. Furthe1; for similar reasons. hides or skins
      importedfrom outside the State after purchase in their
      raw condition and then tanned inside the State are also               B
      subject to higher taxation than hides or skins purchased
      in the raw condition in the State and tanned within the
      State, as the tax on the former is on the sale price of the
      tanned hides or skins and on the latter is on the sale
      price of the raw hides or skins. Such a discriminatory
      taxation is said to offend the provisions of the Art. 304(a)          c
      of the Constitution. Similar are the contentions for the
      intervenes in the case. "


       230. This Court held that taxing laws can be restrictions on the     D
trade, commerce and intercourse and the tax which is affecting and
discriminating goods of one State and goods of another may affect the
free flow of trade and offend Article 301 and will be followed only if it
comes within the tenn of Article 304(a). This Court held as follows:

                                                                            E
         "ft is therefore now well settled that taxing laws can
      he restrictions on trade, commerce, and intercourse, if
      they hamper the flow of trade and if they are not what
      can be termed to he compensatory taxes or regulatory
      measures. Sales tax, of the kind under consideration                  F
      here. cannot he said to he a measure regulating any
      trade or a compensatory tax levied/or the use of trading
      facilities.     Sales tax, which has the effect of
      discriminating between goods of one State and goods
      of another, may affect the free .flow of trade and it will
       then offend against Art. 301 and will be valid only if it            G
      comes within the terms of Art. 304(a).
      Article 304(a) enables the Legislature of a State to make
      laws affecting trade, commerce and intercourse. It
      enables the imposition of taxes on good~ from other
                                                                            H


                                                                                   j
                                                                                  ·I
778            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A           States ifsimilar good~ in the State are subjected to similar
            taxes, so as not to discriminate between the goods
            manufactured or produced in that State and the goods
            which are imported.from other States. This means that
            if the effect of the sales-tax on tanned hides or skins
 B
            imported.from outside is that the latter becomes subject
            to a higher tax by the application of the proviso to suh-
            rule of r. 16 of the Rules, then the tax is discriminatory
            and unconstitutional and must be struck down. "


 c          231. This Couii allowed the petition by recording the following
      conclusion:


            "We are therefore of opinion that the provisions of 1:
            16(2) discriminate against the imported hides or skins
 D
            which had been purchased or tanned outside the State
            and that therefore they contravene the provisions of Art.
            304(a) of the Constitution.


 E           232. The law laid down by the above Constitution Bench judgment
      of this Court reaffim1s our view that for enabling a State to make a law
      under Article 304(a), following two preconditions, which are independent
      of each other have to be satisfied:


 F
            a. Imposes on goods imported from other States or the Union
               Territories any tax to which similar goods manufactured or
               produced in that State are subject.
            b. So, however, as not to discriminate between goods so imported
               and goods so manufactured and produced;
 G

            233. During the course of his submission Shri Salve has referred
      to enactments of State of Tamil Nadu, States of Kerala, State of Assam
      and State of Andhra Pradesh. Referring to Tamil Nadu Entry Tax on
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            779
                 [ASHOK BHUSHAN, J.]

Entry of Goods into Local Areas Tax Act, 2001, Shri Salve has contended A
that under Section 3 sub-section 2, tax is payable by an importer. Entry
of goods into local area was defined as entry of scheduled goods into a
local area from any place outside the State for consumption, use or sale.
therein. His contention was that enactment clearly imposes Entry Tax
only on goods imported and there was no Entry Tax on the local goods B
which clearly violates Article 304(a) of the Constitution oflndia.
       234. We find force in the submission of Shri Salve, which is
supported by the Constitution Bench judgments in State ofMadras Vs.
Bhailal Balli and Kalyani Stores Vs. State of Orissa and Others.
Imposition of tax only on imported goods when no such tax is levied on C
local goods violates Article 304(a). The Division Bench of the Madras
High court in ITC Ltd. Vs. State of Tamil Nadu and Others /2007/ 7
VST 367 Madras has struck down the enactment. To the same effect,
submissions have been made by Shri Salve with regard to Entry Tax
enactments of State of Kerala, State of Andhra Pradesh and State of
Assam.                                                                 D

       235. Articles 304(a) and 304(b) are joined with conjunction 'and'.
Learned counsel for the petitioners who have challenged the various
enactments of various States contend that clauses (a) and (b) of Article
304 have to be read conjunctively as they are not mutually exclusive. It
is contended that tax Legislation by State has to comply both clauses (a)   E
and (b) whereas learned counsel for the States contends that word 'and'
has to be read disjunctively. Legislation which is in accordance with
Article 304(a) need not be in compliance of A1ticle 304(b). Learned
counsel for the States has further contended that in fact Article 304(b)
does not include tax legislation, hence, it is another reason to contend    F
that tax legislation complying A1ticle 304(a) need not to comply Article
304(b).
       236. We need to first advert to true meaning and purpose of word
'and' which joins both clauses (a) and (b) of Article 304. According to
the principles of statutory interpretation the word 'and' is normally used G
conjunctively and word 'or' is nonnally used disjunctively but at times
they are used as vice versa to give effect to the manifest intention of
the Legislation as disclosed in the context of the Legislation. This Court
in large number of cases have read word 'and' as 'or'. In 1969(1) SCR
219, this Court had occasion to consider the word 'and' as used in Section
                                                                           H
780            SUPREME COURT REPORTS                         [2016] I 0 S.C.R.



A     3(b) of the Drugs Act, 1940. Section 3(b)(I) which defines the Drug
      provided as:


             "The definition of "drug" contained in S.3(b) is i11 the
            following terms :-
 B
            (ij all medicines for internal or exlernal use of human
            beings or animals and all substances intended to be
            used for or (in !he diagnosis, treatment), mitigation or
            prevention of disease in human beings or animals other
            than medicines and .substances exclusively used or
c           prepared for use in accordance with Ayurvedic or Unani
            systems of medicine ............... "


             237. The issue before this Court as to whether word 'and' used in
 D    the Section 3(b )(I) between words "medicines and substances'' be read
      as 'or', this Court laid down the following:


            "Now if the, expression "subs lances" is to be taken to
            mean something other than "medicine" as has been held
 E
            in our previous decision it becomes difficult to
            understand how the word "and" as used in the definition
            of drug in Ll_(b) (i) between "medicines., and
             "substances" could have been intended to hal'e been
            used conjunctively. It would be much more appropriate
 F          in the context to read it disjunctively. In Stroud :5 Judicial
            Dictionmy, 3rd Ed. ii is stated at page 135 that "and"
            has Generally a cumulative, sense, requiring. the
            fulfillment <~(all the conditions that it joins toget!Je1:
            and herein it is the antithesis of "or". Sometimes.
             however; even in such a connection, it is, by force of a
 G
            contents, read as "or". Similarly in Maxwell on
            interpretation of Statutes, 11th Ed. it has been accepted
             that "to can:y out the intention of the legislature it is
             occasionally found necessary to read the conjunclions
              'or ' and ·and' one for the other".
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             781
                 [ASHOK BHUSHAN, J.]

       238. We may revert to the Constitutional Scheme to find out the A
true purpose and object of the provision. Article 304 is an exemption
granted to the State when State can impose taxes and impose restrictions
on the freedom of trade and commerce which freedom is guaranteed
under Atticle 301 of the Constitution of India. Article 304 begins with
the words "Notwithstanding anything in Article 301 or Article 303, the B
Legislature ofa State may by law-". Two sub-clauses (a) and (b) are
enabling powers given to the State by which taxes can be imposed on
imported goods and restrictions can be imposed on the freedom of trade,
commerce or intercourse. In the event, we tend to read conjunction
'and' as 'or' it may mean that the State may exercise only one of the
enabling powers as given in the clauses (a) and (b). It is not the intention c
of Article 304 to empower the State to only exercise either of the powers,
the clear intendment of the State is that the State may by law impose on
goods imported from other States any tax- clause (a);and impose
reasonable restrictions on the freedom of trade, commerce or intercourse
with or within that State - clause (b). The use of word 'may' in the D
beginning of Article 304 indicates that the power is enabling and States
 are entitled to exercise either or both the powers as may be required in
the facts of the case.
      239. Further, there is no compulsion on the State to exercise powers
given in clauses (a) and (b) both. The State may choose to exercise only     E
power given in clause (a) or power given in clause (b ). We, thus, are not
persuaded to accept the contention that whenever State makes a law
under clause (a) it has necessarily to comply clause (b) also. ShriArvind
P. Datar, learned senior couusel, has submitted that use of word 'and'
between clauses (a) and (b) of Article 304 is joint and several and has to
be read as and/or. In support of his submission he has placed reliance
                                                                             F
on the ~tatutory Interpretation, Second Edition by RUTH SULLIVAN.
Learned Author has expressed following views on 'And' or 'Or':


       "2) "And" and "Or"                                                    G
       a) Joint or Joint and Several "and"
       Both "and" and "or" are inherentzv amhiguous. "And"
       is always conjunctive in the sense that it always signals
       the cumulation of the possihilities listed hefore and qfier
                                                                             H
782            SUPREME COURT REPORTS                          [2016) 10 S.C.R.


A           the "and". However, "and" is ambiguous in that it may
            be joint or joint and several. Jn the case of a joint
             "and'', every listed possibility must be included: both
            (a) and (b); all of (a), (b), and (c). Jn the case of a joint
            and several "'and", all the possibilities may be, but need
B           not be, included: (a) or (b) or both; (a) or (b) or (c), or
            any of two. or all three. Jn other word~, the joint and
            several ··and" is equivalent to "and/or".
            Which meaning is appropriate depends· on the context.
            When "and" is used before the final item in a list of
 c          powers, for example, it is joint and several:
                To carry out the purposes of this Act, the Governor
                in Council may make regulations respecting
                (a) the conditions on which licences may be issued;
                (b) the information and fees that firearm vendors
D
                may be required to fimiish; and
                (c) the annual fees that firearm owners may be
                charged.
          , In this provision the Governor in Council is empowered
 E          to make regulations on any one or more of the listed
            subjects. However, notice what happens if "may" is
            replaced by "shall". If the Governor in Council is
            obliged to make regulations respecting (a) conditions
            (b) information and (c) fees, the joint and several "and"
 F
            becomes joint. "


             240. We find force in the submission and we are of the view that
      word 'and' between clauses (a) and (b) has to be read as joint and
      several, both meaning can be assigned as per requirement of a State
 G    Legislature. One of the submissions raised by the learned counsel of the
      petitioners as noted above is that whenever State Legislature imposes a
      tax by law under clause (a), it has necessarily to go through the procedure
      provided under clause 304(b), since both the clauses are conjunctive
      and require compliance. We are not inclined to accept the extreme
      submission that in each and every case whenever law is framed under
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            783
                 [ASHOK BHUSHAN, J.]

clause (a) procedure under clause (b) has to be complied with. The A
proviso to clause (b) that no Bill or amendment for the purposes of
clause (b) shall be introduced or moved in the Legislature of a State
without the previous sanction of the President, is confined to clause (b)
which indicates that Constitutional Scheme does not provide that it is
necessary to comply for framing law under clause (a) the requirement
                                                                          B
of clause (b) also. We, however, hasten tn add that there may be cases
where a law which may confonn the requirement under sub-clause (a)
but still contains restrictions on the freedom of trade, commerce and
intercourse, in that event, compliance of clause (b) may also be
necessary, but a law framed in accordance with clause (a) imposing a
tax which does not contain any restriction on the freedom of trade, c
commerce and intercourse as envisaged in clause (b) need not go through
the procedure as contemplated by clause (b ). We thus come to the·
conclusion that with regard to law made by State Legislature exercising
the power under clause (a) of Article 304 which does not impose any
restriction on the freedom of trade, commerce and intercourse need not D
comply with Article 304(b). However, a law even though may comply
with Article 304(a) but contains restrictions on the freedom of trade,
commerce and intercourse has to obtain sanction of the President as
contemplated by proviso to clause (b ). The requirement of obtaining
previous sanction of the President has to be decided in accordance with
                                                                          E
the nature and content of the State Legislation.
         241. One of the submissions which has been emphatically pressed
by Shri P.P. Rao and Shri Rakesh Dwivedi, learned senior counsel
appearing for the States is that requirement of obtaining previous sanction
of the President by the State Legislature erodes the sovereignty of the
                                                                              F
State Legislature of making law in the field allocated to them included in
the VU'h Schedule read with Article 246. It is contended that a State's
taxing power is a sovereign power granted to the State and insisting for
previous sanction of the President for framing a taxing legislation by the
State erodes their sovereignty and is also against the federal structure of
the Constitution. We in the foregoing paragraphs have elaborately G
considered the nature of federal structure of the Constitution of India,
 which is not a federal Constitution, as it is traditionally understood. This
 Court tenned the Constitution oflndia as quasi-federal, mixture offederal
·ai:id unitary elements, leaning more towards the latter, as noted above.
 The division of powers between Union and the Stat~ Legislatures is H
784            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A     clearly defined and demarcated in the Constitutional Scheme. The
      Constitutional Scheme delineates the scheme of check and balances
      between the Union and States. Apatt from Article 304(b) following are
      the ether Constitutional provisions where Presidential sanction has been
      contemplated:
B
            (1) 31-A. Saving of laws providing for acquisition of
            estates, etc.-
                (1) Notwithstanding anything contained in Article
                13, no law providing for-
c
                    xxxxxxxxxxxxxxxxxx.xx
                    Provided that where such law is a law made hy
               the Legislature of a State, the provisions of this article
               shall not apply thereto unless such law, having been
D              rese1Ted for the consideration of the President, has
               received his assent.
            (2) 31-C. Saving of laws giving effect to certain directive
            principles.-
                          xxxxxxxxxxxxxxxxxxx
 E
                  Provided that where such law is made by the
               Legislature of a State, the provisions of this Article
               shall not apply thereto unless such law, having been
               reserved for the consideration of the President, has
               received his assent.
 F
            (3) 213. Power of Governor to promulgate Ordinances
            during recess of Legislature.-
                        xxxxxxxxxxxxxxxxxxx
                   Provided that the Governor shall not, without
G               instructions from the President, promulgate any such
                Ordinance if -
                   (a) a Bill containing the same provisions would
               under this Constitution have required the previous
               sanction of the President for the introduction thereof
H
JINDAL STAINLESS LTD. v. STATE OF HARYANA                    785
          [ASHOK BHUSHAN, J.]

  inio the Legislature; or                                   A
     (b) he would have deemed it necessary to reserve
  a Bill containing the same provisions for the
  consideration of the President; or
     (c) an Act qf the Legislature of the State containing
                                                             B
  the same provisions would under this Constitution
  have been invalid unless, having been reserved for
  the consideration of the President, it had received
  the assent of the Presidellf; or
         xxxxxxxxxxxxxxxxxx
                                                             c
(4) 254. Inconsistency between laws made by Parliament
and laws made by tlte Legislature of States.-
         xxxxxxxxxxxxxxxxxxx
   (2) Where a law made by the Legislature of a State
   with respect to one of the matters enumerated in the      D
   Concurrent List contains any provision repugnant
   to the provisions of an earlier law made by
   Parliament or an existing law with respect to that
   matter, then the law so made by the Legislature of
   such State shall, !fit has been reserved for the          E
   consideration of the President and has received his
   assent, prevail in that State:
         xxxxxxxxxxxxxxxxxxx
(5) 274. Prior recommendation of President required
                                                             F
to Bills affecting taxation ill wlticlt States are
interested.-
   (1) No Bill or amendment which imposes or varies
   u11y tax or duty in which States are interested, or
   which varies the meaning of the expression
                                                             G
   "agricultural income" as defined for the purposes
   of the enactments relating to Indian income-tax, or
   which affects the principles on which under any qf
   the foregoing provisions qf this Chapter moneys are
   or may distributable to States, or which imposes any
                                                             H
786            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A              such surcharge for the purposes of the Union as is
               mentioned in the foregoing provisions of this
               Chapter, shall be introduced or moved in either
               House of Parliament except on the recommendation
               of the President.
 B          (6)288. Exemption from taxation by States in respect
            of water or electricity in certain cases.-
                     xxxxxxxxxxxxxxxxxxx
                            .,
                (3) The Legislature of a State may by law impose, or
               authorize the imposition of. any such tax as is
 c             mentioned in clause (J), but no such law shall have
               any effect unless it has, cifier having been reserved
               for the consideration of the President, received his
               assent; and if any such law provides for the fixation
               of the rates and other incidents of law by any
 D             authority, the law shall provide for the previous
               consent of the President being obtained to the
                making of any such rule or order.


             242. The above provisions are part of our Constitutional Scheme
 E    and could not be wished away by saying that such provisions impinge
      upon the sovereign power of the State. Power of a State Legislature to
      the above extent is expressly limited by Constitutional Scheme. Article
      304(b) proviso is one of such Constitutional Schemes where the State
      power is restricted and limited to the above extent. The Constituent
 F    Assembly Debates, as noticed above, clearly bring about the rationale
      of introduction of the requirement of Presidential assent in respect of
      certain laws by which State Legislature'!Jut restriction on the freedom
      of trade, commerce and intercourse. We have noted above that in the
      Constituent Assembly there was serious objection raised against clause
      (b) of Article 304 and amendment was moved for deletion of clause (b)
 G    from the Constitution. The above amendment after great discussion was
      negatived by approving the limited restraint put on the State Legislature
      as engrafted in Article 304(b) proviso.
            243. A Constitution Bench of this Court in Kaiser-I-Hind Pvt.
      Ltd. and another vs. National Textile Corpn. (Maharashtra North)
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            787
                 [ASHOK BHVSHAN, J.]

Ltd. and others, (2002) 8 SCC 182, has held that the power exercised        A
by the President under Article 304(b) is in consonance with the federal
strncture of the Constitution. Doraiswamy Raju, J. agreeing with majority
judgment stated following in paragraph 77:


                                                                            B
       ".... The powers actually exercised by the President, at
      any rate under Articles 31-A, 31-C, 254(2) and 304(h)
      are a special constituent power vested with the Head of
      the Union, as the protector and defender of the.
      Constitution and safety valve to safeguard the
      fundamental rights of citizens and federal structure of               c
      the country:~ polity as adopted in the Constitution ..... "


       244. The Sarkaria Commission was constituted to have re-look
over the Centre-State relations under the Constitution oflndia. Sarkaria    D
Commission dealt with "Legislative Relations" in Chapter II. The
objections of State Governments were noted in para 2.40.01 to the
following effect:


       "2.40.01 Some State Governments and a political party                E
       have asked for omission of Article 304, and, in the
       alternative, for deletion of the Proviso to Article 304(b).
       The arguments advanced are:
       "Whether the restrictions imposed by an Act of a State
      Legislature 011 the fi"eedom of trade and commerce are                F
      reasonable and whether they are in the public interest
      for purposes of Article 304(b) are questions to he
      decided ultimately by the High Court or Supreme Court.
      If the High Court finds that the restrictions are
      unreasonable or opposed to the public interest, previous              G
      sanction of the President or his subsequent assent
      cannot cure the infirmity. If the legislation is otherwise
      valid and the restrictions are reasonable and in the
      public interest, his previous sanction will he a superfluity.
      Jn any case the requirement relating to the previous
                                                                            H
788            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A           sanction of the President direct~v encroaches on the .field
            assigned to the State Legislature ... ".


            245. The objects of Article 304(b) and its contents were noted in
      para 2.40.06 to the following effect:
 B


            "2.40. 06 The broad object of the provisions of Articles
            301 and 304 is to ensure that the commercial unity of
            India is not broken up by physical and.fiscal barriers
 c          erected by the State Legislatures through parochial or
            discriminatory exercise of their powers. The proviso to
            Article 304(h) enahles the President to ensure, at the
            initial stage, that the State Legislation does not, by
            imposing unreasonable restrictions on trade, commerce
            or intercourse, endanger the commercial unity of the
 D
            nation. It is true that clause (b) is not co11;fined to inter-
            State trading activities, it extends to trade within the
            State, also. But intra-State trading activities often have
            a close and substantial relation to inter-State trade and
            commerce. State laws, though purporting to regulate
 E          trade within a State, may have inter-State implications.
            They may impose discriminatory taxes or unreasonable
            restrictions which impede the freedom of inter-State
            trade and commerce. That is why, both inter-State and
            intra-State trade have been made the subject of
 F          limitations on State legislative power under Article
            304(b) ...


             246. The Sarkaria Commission in para 2.40.07 has also recorded
      : "However, no instance of a Bill reserved under the Proviso to clause
 G    (b) of Article 304, which might have been vetoed by the President, has
      been cited." In para 2.40.08 it was concluded:
             "2.40. 08. For these reasons, we cannot support the
            demand for amendment of Article 304, or omission of
            the Proviso to its clause (b) . ..
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                       789
                 [ASHOK BHUSHAN, J.]

      247. The Sarkaria Commission after hearing the States' point of A
view had specifically adverted to on Constitutional provisions contained
in Part XIII of the Constitution. After elaborate consideration on the
subject in Part XIII "trade, commerce and intercourse within the Te!Titory
oflndia" in paragraph 18.3.14 and 18.3.15 following was stated:
                                                                        B
      "18.3.14. We have observed in the Chapter on
      "Legislative Relations" that intra-State trading activities
      often have a close and substantial relation to inter-State
      trade and commerce. State laws though purporting to
      regulate intra-State trade, may have implications for             c
      inter-State trade and commerce. These may impose
      discriminatory taxes or unreasonable restrictions,
      impeding the.freedom of intra-State trade and commerce.
      If clause (h) of Article 304 is deleted, the commercial
      and economic unity of the country may he broken up                D
      hy State laws setting up harriers to free fl.ow of trade
      an inter-course through parochial or discriminatory use
      of their powers. The suggestion of the State Government
       i.~ not workable even from a fimctional standpoint.

       18.3.15. From a broad conceptual angle, the suggestion            E
      for excluding intra-State trade and commerce from the
      purview of Article 302 and.for deletion of the Proviso
      to Article 304(/J) does not stand close scrutiny. It is not
       in consonance with the prevailing concept o.ffedera!ism.
      It presumably draws, inspiration from the antiquated
      and obsolete theory of federalism, according to which              F
       two levels of government were supposed to fimction in
       water-tight compartments in isolation from each other.
       Such a "dual" federalism is nowhere a.functional reality
       in the modern world. Even in the so-called classical
      federation of the United States of America federalism is           G
       now a dynamic process ofgovernment, a system ofshared
      responsibilities and cooperative action between the
       three tiers of government. The Constitution~framers were
       conscious of this reality. Indeed, the very scheme of
      Articles 301 to 304 which imposes limitations on the
                                                                        H
790             SUPREME CUURT REPORTS                         (2016] 10 S.C.R.


A           legislative powers of the Union and of the States, both
            with respect of inter-State and intra-State commerce and
            intercourse, is expected to he worked in cooperation
            by the Union and the States. The mere fact that Article
            303(2) gives an exclusive power to Parliament to m ake
B           a discriminatory law for dealing with a situation of
            scarcity of goods, or that the Proviso to Article 304(b)
            gives a supervisory power to the President (i.e. Union
            Council of Ministers) over a State legislation seeking
            to impose restrictions on inter-State or intra-State trade,
            is not a good enough argument to hold that these are
c           anti:federal features making unjustifiahle encroachment
          - on the autonomy of the States. No doubt, these features
            give due weightage to the Union. But the scheme of the
            Articles in Part XIII considered as a whole, is well-
            halanced. ft reconciles the imperative of economic unity
D           of the Nation with interests of State autonomy by carving
            out in clauses (a) and (h) of Article 304, two exceptions
            in favour of State legislature to the freedom guaranteed
            under Article 301."


E             248. Now one more limb of submissions with regard to Article
      304(b) needs to be considered. The submission on behalfof the States
      is that Article 304 sub-clause (b) does not contemplate taxing legislation.
      It is contended that Article 304(a) has specifically used word 'tax' and
      absence of word 'tax' in Article 304(b) clearly indicates that the
 F    Constitution framers have intended to cover restrictions other than tax.
      Learned counsel for the petitioners have refuted the submission and
      their contention is that word 'restrictions' used in Article 304(b) is vide
      enough to include tax legislation. Gajendragadkar, J. speaking for majority
      in Atiabari Tea Co.Ltd. (supra) has expressly held at page 856 "how
G     tax can be levied on internal goods, is, however, provided by Article
      304(b )". Shri P.P. Rao, learned senior counsel appearing for the States,
      in the context of the above observation submits that the above
      observations made in majority judgment are only obiter. neither the issue
      was before the Court nor it can be said that after due consideration the
      law was laid down. In GK. Krishnan & ors. v.~. State of Tamil Nadu
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                  791
                       [ASHOK BHUSHAN, J.]

(.mpra) a doubt was expressed by Justice Mathew that as to whether                A
Article 304(b) would include levy by a non-discriminatory tax was a
matter on which there was scope for difference of opinion. Justice
Mathew did not express his opinion that tax legislation is not included in
Article 304(b ).
        249. Article 304(a) as noted above is only with regard to the B
imposition of tax on goods imported from other States. Article 304(a)
does not refer to taxes imposed on the local goods. In the event, the
State Legislature imposes restrictions on the freedom of trade and
commerce by taxing legislation covering local goods, whether the validity
of it cannot be tested on anvil of Article 30 l. Further, State in public c
interest requires imposition of reasonable restriction by imposing tax on
the local goods, what procedure it has to follow so as to not impede
Article 30 I. There cannot be any dispute that power to legislate including
tax legislation is the power allocated to State Legislature under the
Constitutional Scheme under A1ticle 245 and 246. Article 304 is not a
source of power of legislation by State rather as the heading of the D
section indicates that it is a "Restriction on trade, commerce and
intercourse among States." As we have noted above, Article 304(a)
only deals with goods imported from other States hence for imposing
reasonable restrictions in the public interest on trade, commerce and
 intercourse with regard to local goods, only way out for a State to save E
 its legislation is to go through the route as provided under Article 304(b).
 We cannot imagine that merely because State Legislature has
 competence to frame tax law with regard to local goods, it can impose
 taxes which amount to impeding the freedom of trade and commerce,
 whereas the Constitution does not provide any exemption to State
                                                                              F
 Legislature in that regard.
        250. There are few more reasons due to which we are of the
<;>pinion that word 'restriction' uses in Article 304(b) also includes taxation
iaw.
      . 251. A State Legislature in exercise of its legislative power             G
referable to any of the Entries of List II can frame law both fiscal or
non-fiscal. When Article 304 uses words "by law" and the law is a
wider tenn which embraces both fiscal and non-fiscal legislation with
regard to clause (b ), it cannot be limited as only non-fiscal law. If we
have to hold that Article 304(b) does not refer to tax law, we have to
                                                                                  H
792             SUPREMF :::OURT REPORTS                         [2016] 10 S.C.R.



A     give different meaning to words "by law" used in the beginning ofArticle
      304 which governs both clauses (a) and (b). The mere fact that clause
      (a) uses the words 'any tax' and clause (b) does not use the word 'tax'
      is not of much significance since the word restrictions used in clause (b)
      is wide enough to cover any kind of restriction by fiscal law. Neither
      Article 302 nor Article 303 uses the word 'tax'. Both Articles are dealing
 B
      with freedom of trade and commerce, non-use of word 'tax' in Article
      304(b) is also inconsequential. We thus are of the opinion that the word
      'restrictions' under Article 304(b) is vi de enough to include restrictions
      placed both by fiscal or non-fiscal law.

 c            252. At this stage, we will like to clarify one aspect of the matter,
      the submission has been advanced by learned counsel for the State that
      in the event, it is accepted that word 'restriction' in Article 304(b) includes
      taxation, it will be a serious restraint on the legislative power of the
      State, which is plenary and sovereign power. It is to be clarified that
      Article 304(b) does not cover each and every legislative exercise of a
 D    State. The legislation which contains restriction on freedom of trade,
      commerce and intercourse only need to be routed through Article 304(b ).
      In the event, a State legislation does not contain any restriction to freedom
      of trade, commerce and intercourse, there is no necessity of routing
      through Article 304(b) in which, case Article 304(b) is not at all required
 E    to be resorted to. The State legislation, when it impedes the freedom of
      trade, commerce and intercourse and imposes reasonable restrictions
      by fiscal or non-fiscal legislation it needs to go through the routes of
      Article 304(b) to insulate it from the wrath of Article 30 I. ~ ··
              253. Article 304(b) thus operates in a very limited field, as
 F    explained above and plenary legislative power of the State, in no manner,
      is restricted by Article 304(b). We are thus of the view that apprehension
      of the learned counsel for the State that Article 304(b) operates serious
      restraint on the legislative power is misplaced. We thus conclude that
      word 'restriction' as used in Part Xlll as well as in Article 304(b) at the
      Constitution includes tax legislation also.
 G
            254. With reference to Article 304(a), one of the aspects on which
      learned counsel for the parties have taken different stand is as to whether
      exemptions granted in tax by a State Legislature to the local goods does
      or does not violate Article 304(a). Shri Salve while elaborating his
      challenge to Entry Tax legislation of different States has referred to the
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            793
                 [ASHOK BHUSHAN, J.]

second group of enactments in which an entry tax is imposed on the A
goods coming from outside and local goods but legislation contains device
by which there is set off/ exemptions to the local goods which result in
non-imposition of Entry Tax to the local goods leading to discrimination
violating A1ticle 304(a). On the other hand, counsel appearing for the
States submit that a State is not, in any manner, precluded from granting B
exemption to specified class of goods to give a helping hand for
development of a 'particular industry specially in a State which is not so
developed and State patronage for development is necessary. It is
contended that all States are not equal in its economic and industrial
development and backward State needs a special treatment by way of
exemption in tax in deserving cases for coming up at level playing field C
with other States. It is contended that State's protection by way of
exemption/set off in such cases cannot be tenned as discrimination. It is
contended that discrimination is one when it is a hostile discrimination.
      255. Learned counsel for the parties have placed reliance on
various pronouncements of this Comt in support of their respective          D
submissions which we shall notice hereinafter.
       256. A Constitution Bench of this Court in Firm A.T.B. Mehtab
Majid and Co. vs. State of Madras and another, (1963) Suppl (2)
SCR 435, had occasion to consider Article 301 and Article 304 in the
context of Madras General Sales Tax Act, 1939 and Madras General            E
Sales Tax Rules, 1939. The writ petition was filed under Article 32 by a
dealer who was dealing in hides and skins tanned outside the State of
Madras, as well as those tanned inside the State. The dealer was assessed
to sales tax for the year 1955-56 representing the sales of tanned hides
and skins which were obtained from the outside of the State of Madras.      F
Rule 16 was challenged by the petitioner raising following contention:


      "6. It is contended.for the petitioner that the effect of
      this Rule is that tanned hides or skins imported from
      outside the State and sold within the State are subject               G
      to a higher rate of tax than the tax imposed on hides or
      skins tanned and sold within the state, inasmuch as sales
      tax on the imported hides or skins tanned outside the
      State is on their sale price while the tax on hides or
                                                                            H
794            SUPREME COURT REPORTS                       [2016] 10 S.C.R.



A           skins tanned within the State, though ostensibly on their
            sale price, is, in view of the proviso to clause (ii) of
            sub-rule (2) of Rule 16, real~y on the sale price of these
            hides or skins when they are purchased in the raw
            condition and which is substantially less than the sale
B
            price of tanned hides or skins, Further, for similar
            reasons, hides or skins imported.from outside the State
            after purchase in their raw condition and then tanned
             inside the State are also subject to higher taxation than
            hides or skins purchased in the raw condition in the
            State and tanned within the State, as the tax on the
c           former is on the sale price of the tanned hides or skins
            and on the latter is on the sale price of the raw hides or
            skins. Such a discriminatory taxation is said to offend
             the provisions of Article 304(a) of the Constitution.
            Similar are the contentions for the interveners in the
D            case.


             257. This Court after considering the respective submissions held
      that tax on hides and skins imported from outside being higher, it is
      discriminatory and unconstitutional. Following was held:
 E

               "10. It is therefore now well settled that taxing laws
            can he restrictions on trade, commerce and intercourse,
            !f they hamper the .fl.ow of trade and !f they are not
 F          what can be termed to be compensatory taxes or
            regulatory measures. Sales tax, of the kind under
            consideration here, cannot he said to be a measure
            regulating any trade or a compensatory tax levied for
            the use of trading facilities. Sales tax, which has the
            e.ffect ql discriminating he tween good~ qf one State and
G           good1· of another, may affect the free .fl.ow of trade and
            it will then qffend against Article 301 and will he valid
            on~v if it comes within the terms qf Article 304(a).

             11. Article 304(a) enables the legislature qf a State to
            make laws a,jfecting trade, commerce and intercourse.
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                795
                 [ASHOK BHUSHAN, J.]

      It enables the imposition of taxes on goods from other                    A
      States ifsimilar good~ in the State are subjected to similar
      taxes, so as not to discriminate between the goods
      mant{factured or produced in that State and the goods
      which are imported.from other States. This means that if
      the effect of the sales tax on tanned hides or skins                      B
      imported.from outside is that the latter becomes subject
      to a higher tax by the application of the proviso to sub-
      ru le of Rule 16 of the Rules, then the tax is
      discriminatory and unconstitutional and must be struck
      down. "
                                                                                c
       258. Petitioners rely on Weston Electronics and another vs. State
of Gujarat and others, (1988) 2 SCC 568. Under Section 49 sub-
Section (2) of Gujarat Sales Act, 1969 the State was empowered to
exempt, in the public interest, any specified class of sales from sales tax.    D
ln 1981, while the rate for electronic goods entering the Gujarat State
for sale therein was maintained at 15%, the rate in respect of locally
manufactured goods was reduced to 6% by notification. By further
notification in the year 1986, the rate of tax on imported television was
reduced from 15% to 10% whereas rate of tax on manufactured
television within the State was reduced from 6% to 1%.The petitioners,          E
manufacturers of electronic goods including televisions whose factories
are located at Delhi, and goods are sold in all over India including Gujarat,
challenged the exemption granted to the goods manufactured in the State
of Gujarat as violative of Article 301and304.
       259. The State submitted before this Court that the rate of tax           F
was reduced in the case of goods manufactured locally in order to provide
an incentive for encouraging local manufacturing units. This Court
referring to earlier judgments of this Court held that discrimination by
applying different rates of tax is not sustainable, following was stated:
                                                                                 G

         "6. In answer to the writ petition. the respondents point
       out that the rate of tax was reduced in the case of goods
       manufactured localzv in order to provide an incentive
       for encouraging local manufacturing units. Reference
                                                                                H
796            SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A           is made to clauses (b) and (c) of Article 39 of the
            Constitution. We do not think that any support can be
            derivedfrom the two clauses of Article 39. Clause (a)
            of Article 304 is clear in meaning. An exception to the
            mandate declared in Article 301 and the prohibition
            contained in clause (1) of Article 303 can be sustained
B
            on the basis of clause (a) of Article 304 only if the
            conditions contained in the latter provision are satisfied.
              7. In the result, the discrimination effected by app~ying
            different rates of tax between good~ imported into the
c           State of Gujarat and goods manufactured within that
            State must be struck down. "


             260. Another two Judge Bench judgment in Indian Cement and
      others vs. State of Andhra Pradesh and others, (I988) I SCC 743,
D     had a occasion to consider notification issued under Section 9( 1) ofAndhra
      Pradesh General Sales Tax Act, 1957 whereby rate of tax in respect of
      sales made by indigenous cement manufacturers to manufacturers of
      cement products in the State ofAndhraPradesh was reduced. Notification
      tmderSection 8(5) of Central Sales Tax Act, 1956 was also issued reducing
 E    rate of tax on the sale of cement made in the course of inter-State trade
      or commerce. Two Judge Bench of this Court referring to Atiabari Tea
      Co. Ltd. and Automobile Transport Ltd. Stated following in paragraph
      12:
            "12. There can be no dispute that taxation is a deterrent
 F          against free flow. As a result of favourable or
            unfavourahle treatment by way of taxation, the course
            of.flow of trade gets regulated either adversely or
            favourably. If the scheme which Part XIII guarantees
             has to be preserved in national interest. it is necessary
             that the provisions in the article must be strictly complied
 G           with. One has to recall the farsighted observations of
             Gajendragadkar, J. in Atiabari Tea Co. case [AIR 1961
             SC 232 : (1961) I SCR 809] and the observations then
             made obviously apply to cases of the type which is now
             before us. "
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                  797
                 [ASHOK BHUSHAN, J.]

      251. This Court held both the notifications issued by Andhra                A
Pradesh Government unsustainable in law. Following was stated in
paragrph 14:


      "14 ... .. Variation of the rate of interstate sales tax does
                                                                                  B
      affect free trade and commerce and creates a local
      r·e.ference which is contrary to the scheme of Part XIII
      of the Constitution. The notification extends the bene.fit
      even to unregistered dealers and the observations of
      Hegde, J. on this aspect of the matter are relevant. Both
      the notifications of the Andhra Pradesh Government                          c
      are, therefore, bad and are hit by the provisions of Part
      Xlll of the Constitution. They cannot he sustained in
       law."

                                                                                  D
       262. Now, we come to a three Judge Bench judgment on which
much reliance has been placed by the counsel for the State, i.e. Video
Electronics Pvt. Ltd. And another vs. State of Pubjab and another,
(1990) 3 SCC 87. In the above case this Court had occasion to consider
notifications issued by Uttar Pradesh Government under Section 4-A of
Uttar Pradesh Sales Act, 1948. Constitutional validity of Section 4-A of          E
the Act and Section 8(5) of Central Sales Tax, 1956 was also challenged.
The petitioner carry on the business of selling cinematographic films and
other equipments like projectors, sound films, photo films etc.
manufactured outside the State of Uttar Pradesh. New units of
manufacturer as defined in 1948 Act in the State of U.P. were exempted             F
for different periods ranging from 3 to 7 years on conditions set out in
the notification. Petitioner challenged the notification as violative of rights
guaranteed under Part Xlll as well as Article 14 and 19(1 )(g) of the
Constitution.
      263. This Court held that the power to grant exemption is always            G
inherent in all taxing statutes. The reasons for notification as submitted
on behalf of the State i.e. economic encouragement and growth found
favour and it was held that exemption do not violate Article 304. This
Court laid down following in paragraph 26 at page 108:

                                                                                  H
798            SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A           "26 . .......... Economic unity of India is one of the
            constitutional aspirations of India and safeguarding the
            attainment and maintenance of that unity. are objectives
            of the Indian Constitution. It would he wrong, howeve1;
            to assume that India as a whole is already an economic
B           unit. Economic uni~v can only be achieved if all parts
            of whole of Union of India develop equally,
            economicalZv. Indeed, in the affidavits of opposition
            various ground~ have heen indicated on heha(f of the
            respondents suggesting the need for incentives and
            exemptions, and these were suggested to he absolutely
c           necessary for economic viability and survival for these
            industries in these States. These were hayed on cogent
            and intelligihle reasons of economic encouragement and
            growth. There was a rationale in these which is
            discernible. The power to grant exemption is always
D           inherent in all taxing statutes. If the suggestions/
            submissions as advanced hy the petitioners are
            accepted, it was averred, and in our opinion rightly,
            that it will destroy completeZv or make nugatory the
            plenary powers of the States. If the exemption is hased
            on natural and business factors and does not involve
 E
            any intentional hias, the impugned notifications to grant
            exemption of limited period on certain specific
            conditions cannot he. held to be had. Judged hy that
            yardYtick, the present notifications cannot he held to
            be violative of the constitutional provisions. An
 F          examination of Article 304(a) would reveal that what is
            being prohibited hy this article which is really an
            exception to Article 301 will not apply if Article 301
            does not apply. "

 G
             264. This Court further held that grant of exemption to specified
      class for limited period, such granting of exemption cannot be held to be
      contrary to the concept of economic unit. Following was stated:


 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            799
                 [ASHOK BHUSHAN, J.]

      "28. Concept of economic barrier must be adopted in                   A
      a dynamic sense with changing conditions. What
      constitutes an economic barrier at one point of time
      often ceases to he so at another point of time. It will he
      wrong to denude the people of the State of the right to
      grant exemptions which flow from the plenary powers                   B
      of legislative head~ in List II of the Seventh Schedule
      of the Constitution. In a federal polity, all the States
      having powers to grant exemption to specified class for
      limited period, such granting of exemption cannot he
      held to be contrary to the concept of economic uni~y.
      The contents (sic concept) of economic unity by the                   c
      people of India would necessarily include the power to
      grant exemption or to reduce the rate of tax in special
      cases for achieving the industrial development or to
      provide tax incentives to attain economic equali(y in
      growth and development. When all the States have such                 D
      provisions to exempt or reduce rates the question of
      economic war between the States inter se or economic
      disintegration of-the country as such does not arise. It .
      is not open to any parry to say that this should he done
      and this should not he done by either one way or the
                                                                            E
      other. It cannot be disputed that it is open to the States
      to realise tax and thereafter remit the same or pay hack
      to the local manufacturers in the shape of subsidies and
      that would neither discriminate nor be hit by Article
      304(a) of the Constitution. In this case and as in all
      constitutional adjudications the substance of the matter              F
      has to be looked into to .find out whether there is any
      discrimination in violation of the constitutional
      mandate.''

                                                                            G
      265. This Court also referred to Article 38 and 39. Earlier two
judgments in Indian Cement Ltd. (supra) and Weston Electronics
(.mpra) were noticed by this Court and it was held that these cases
were not at all concerned to a special class, had a specific condition of
maintaining the general rate of tax, hence they were not applicable. This
                                                                            H
800            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     Court further held that if the power of exemption is in exercise of
      colourable manner to create unfavourable bias by prescribing general
      lower rate on locally manufactured goods either in the shape of general
      exemption to locally manufactured goods or in the shape of lower rate
      of tax, such an exercise of power can always be struck down by the
B     Courts.
             266. The Court also considered the notification issued by the Punjab
      Government whereby two different rates of tax were provided
      differentiating between the manufacturers of electronic goods outside
      the State and within the State. In paragraph 36 following was stated:
 c
              "36. It has to be reiterated that sales tax laws in all
            the States provide for exemption. It is well settled that
            the different entries in Lists I, II and III of the Seventh
            Schedule deal with the field~ of legislation, and these
D           should he construed widely, liberally and harmoniously.
            And these entries have been construed to include
            ancillary or incidental power. Power to grant exemption
            is inherent in all taxing legislations. Economic unity is
            a desired goal, economic equilibrium and prosperity is
 E          also the goal. Development on parity is one of the
            commitments of the Constitution. Directive principles
            enshrined in Articles 38 and 39 must be harmonised
            with economic unity as well as economic development
            of developed and under developed areas. In that light
            on Article 14 of the Constitution, it is necessary that
 F          the prohibitions in Article 301 and the scope of Article
            304(a) and (h) should he understood and construed.
            Constitution is a living organism and the latent meaning
            of the expressions used can he given effect to only if a
            particular situation arises. It is not that with changing
 G          times the meaning changes but changing times illustrate
            and illuminate the meaning of the expressions used. The
            connotation of the expressions used takes its shape and
            colour in evolving dynamic situations. A backward State
            or a disturbed State cannot with parity engage in
            competition with advanced or developed States. Even
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             801
                      [ASHOK BHUSHAN, J.]

     within a State, there are often backward areas which                    A
     can he developed onzy if some special incentives are
     granted. If the incentives in the form of subsidies or
     grant are given to any part of ~~ic or) units of a State
     so that it may come out of its limping or infancy to
     compete as equals with others, that, in our opinion, does               B
     not and cannot contravene the spirit and the letter of
     Part XIII of the Constitution. However, this is permissible
     only !f there is a valid reason, that is to say, !f there are
     justifiable and rational reasons for differentiation. /.f
      there is none, it will amount to hostile discrimination.
     Judged in this light, despite the submissions of Mr                     c
      Sanjay Parikh and Mr Vaidyanathan, we are unable to
      accept the contentions that the petitioners sought to urge
      in this application

                                                                             D
       The three Judge Bench, thus, upheld the exemption in both the
notifications as noted above.
      267. In the judgment of Video Electro11ics the opinion was
expressed by Sabyasachi Mukherji, CJ. Soon after the judgment of Video
Electronics (supra) a three Judge Bench of this Comt also consisting         E
of Sabyasachi Mukherji, CJ in Andhra Steel Corporation vs.
Commissioner of Commercial Taxes in Karnataka, 1990 (Suppl.)
sec 617, had occasion to consider exemption granted under Kamataka
Sales Tax Act. ln the above case the assessee purchases iron scrap
from inside and outside the State of Karnataka for the purpose of
manufacturing iron ingots, iron steel rounds and tor-steel. The main point    F
urged before this Court challenging the exemption as violative Article
304(a) was noted in paragraph 4 to the following effect:


      "4. The main point was urged in this appeal was that                    G
      Section 5(4) of the Act insofar as it pertains to Item 2 in
      Schedule IV read with the Explanation II is violative of
      Article 304(a) of the Constitution as under that provision
      the sale of.finished goods manufactured out of imported
      raw material is taxed but the sale of finished goods
                                                                             H
802            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A           manufactured out of locally purchased raw material is
            not taxed and that amounts to hostile discrimination in
            the rate of tax or quantum of tax."


             This Court took the view that the case in hand was fully covered
B
      by the decision of A. T.B. Mehtab Majid (supra). Following was stated
      in paragraph 22 and 23:


              "22. ............ The tax was levied under the State Act in
 c          respect of steel semis. The State Act exempted steel semis
            which have been manufactured out of iron scrap which
            have Sl!ffered tax but not the other categories where
            the scrap had not suffered tax at that stage. This is
            directly covered by the decision in A. TB. Mehtab
            case [1963 Supp 2 SCR 435: AIR 1963 SC 928: (1963)
D
            14 STC 355} and that decision has not been dissented
            in Nataraja Mudaliar case[(l968) 3 SCR 829 : AIR
            1969 SC 147: (1968) 22 STC 376} or Rattan Lal &
            Co. case [(1969) 2 SCR 544: AIR 1970 SC 1742: (1970)
            25 STC 136}. The decision in A. T.B. Mehtab case [1963
 E          Supp 2 SCR 435 : AIR 1963 SC 928 : (1963) 14 STC
            355} is by a Constitution Bench and had not been
            dissented so far in any case. The ratio of the judgment
            being fully applicable, the judgment of the High Court
            under appeal is not acceptable.
 F          23. We accordingly hold that the provision which is
            impugned in this case is ultra vires and according~y set
            aside the judgment of the High Court and allow the
            writ petition filed by the assessee in the High Court.
            There will be no order as to costs.
 G
            268. Now we come to two Judge Bench judgment of this Court in
      Shree Mahavir Oil Mills and another vs. State of J & Kand others,
      (1996) 11 SCC 39. In the above case notification under Section 5 of
      the J & K General Sales Tax Act, 1962 dated 7.3.1991 was issued
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               803
                 [ASHOK BHUSHAN, J.]

exempting small scale industrial units in the State for a period of five       A
years. The rate of sales tax was 4% which was raised to 8%. The
manufacturers brining edible oil from outside the State found tax
discriminatory in so far as exemption was granted to all small scale
industrial units in the State. The writ petitions and letters patent appeals
filed before the High Court were dismissed and the matter was carried          B
to this Court.
       269. After noticing the scheme under Part Xlll and specifically
Article 304, this Court while interpreting Article 304(a) stated following:


      "8 ...... The wording of this clause is of crucial
                                                                               c
      significance. The .first half of the clause would make it
      appear at the.first blush that it merezv states the obvious:
      one may indeed say that the power to levy tax on goods
       imported.from other States or Union Territories flows
      from Article 246 read with Lists II and Ill in the Seventh               D
      Schedule and not from this clause. That is of course so,
       but then there is a meaning and a very sign(ficanl
      principle under~ving the clause, if one reads it in its
       entirezv The idea was not real~v to empower the State
       Legislatures to levy tax 011 goods imported fi'om other                 E
       States and Union Territories - that they are already
       empowered by other provisions in the Constitution -
       but to declare that that power shall not be so exercised
       as to discriminate against the imported goods vis-a-vis
       locally manufactured goods. The clause, though worded
       in positive language has a negative aspect. It is, in truth,             F
       a provision prohibiting discrimination against the
       imported goodv. In the matter of levy of tax - and this
       is important to bear in mind - the clause tells the State
       Legislatures - "tax you may the goods imported.from
       other States/Union Territories but do not, in that process,             G
       discriminate against them vis-a-vis goods manufactured
       localzv ". In short, the clause says: levy of tax on both
       ought to he at the same rate. This was and is a ringing
       declaration against the States creating what may he
       called "tax harriers" - or "fiscal harriers"', as they
                                                                               H
804             SUPREME COURT REPORTS                         [2016) 10 S.C.R.


A           may he called - at or along their boundaries in the
            interest o.ffreedom of trade, commerce and intercourse
            throughout the territory of India, guaranteed by Article
            301. As we shall present~v point out, this clause does
            not prevent in any manner the States from encouraging
B           or promoting the local industries in such manner as they
            think fit so long as they do not use the weapon of
            taxation to discriminate against the imported goods vis-
            a-vis the locally manufactured goods. To repeat, the
            clause bars the States from creating tax harriers - or
            fiscal harriers, as they can he called - around
c           themselves and/or insulate themselves from the
            remaining territories of India by erecting such "tariff
            walls". Part Xlll is premised upon the .assumption that
            so long as a State taxes its residents and the residents
            of other States uniformly, there is no infringement of
D           the freedom guaranteed by Article 301; no State would
            tax its people at a higher level mere~v with a view to tax
            the people of other States at that level. And it is this
            clause which has a crucial hearing on this case ..... "


E            270. Two Judge Bench noticed earlier cases as well as three
      Judge Bench judgment in Video Electronics (supra). In paragraph 23
      this Court came to the conclusion that the total exemption granted in
      favour of small-scale industries in Jammu & Kashmir producing edible
      oil is not sustainable in law. The Court held that States are free to
 F    encourage and promote the establishment and growth of industries within
      their States by all such means as they think proper but they cannot, in
      that process, subject the goods imported from other States to a
      discriminatory rate of taxation, i.e., a higher rate of sales tax vis-a-vis
      similar goods manufactured/produced within that State. This Court
      noticed that although a limited exception has no doubt been carved out in
G
      Video Electronics but that exception cannot be enlarged lest it eat up
      the main provision. The Court while declaring the exemption as violative
      of Article 304(a) directed in paragraph 27 as follows:


H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                805
                       [ASHOK BHUSHAN, J.]

      "27. We declare that the exemption granted by                             A
      Notification No.SRO 93 of 1991 to local manufacturers/
      producers of edible oil is violative of the provisions
      contained in Articles 301 and 304(a). At the same time,
      we direct that: (a) the appellants shall not he entitled to
      claim any amounts by way of refund or otherwise by                        B
      virtue of or, as a consequence of. the declaration
      contained herein and (b) that the declaration of
      invalidity of the impugned notification shall take effect
      on and from 1-4-1997. Till that date, i.e., up to and
      inclusive of 31.3.1997, the impugned notification shall
      continue to be effective and operative. Appeal allowed                    c
      in the above terms. "


       271. The State exercises legislative power under Article 246 read
with List 11 which is plenary in nature, when it has power to levy tax it       D
is also entitled to grant of exemption/remission of tax. There cannot be
any dispute to the power of a State Legislature in providing for exemption/
remission in tax to a specified class based on an intelligible differentia. A
Constitution Bench in State of Madhaya Pradesh vs. Abdeali, AIR
1963 SC 1237 need also to be noted.
                                                                                E
     272. In the above case, in exercise of power under Section 4(3)
of Madhya Bharat Sales Tax Act, 1950 exemption was granted from
payment of Sales Tax in the following manner:


       "2 ............ In exercise of the powers conferred by Section           F
       4, sub-section (3) of the Madhya Bharat Sales Tax
       Act, Samvat 2007 the Rajpramukh in supersession of the
       Notification 59(c)(t) P.R. 412-54, dated 27-5-1955 of this
       department has exempted from the payment of sales tax,
       in case of sale by the manufacturer or any member of his                 G
       family, the sale of all such shoes, chappals, country shoes
       and footwears which are hand-made and which are not
       manufactured on power machine and whose sale price does ,
       not exceed Rs 12-8-0."

                                                                                H
806             SUPREME . dl!RT REPORTS                        [2016] 10 S.CR.



A            2 73. The respondent was carrying on business of importing and
      selling different style of footwear in the State ofMadhaya Pradesh. The
      respondent contended before the Sales Tax Officer that he was not
      liable to pay any sales tax on sale of hand-made shoes, chappals and
      other types of footwear whose sale price did not exceed Rs 12-8-0 per
      pair. The claim of the respondent was rejected that the respondent does
B
      not fulfill the conditions of the notification. In the writ petition filed by
      the respondent in the High Com1 one of the contentions was raised to
      the following effect:


 c           "3 ................ ..... The respondent further averred that if
            the exemption were held to he in favour of sales by a
            manufacturer or a member of his family and not on sales
            by an importer, then the notification would be
            discriminatory in nature and would contravene the
D           provisions of Article 304(a) of the Constitution. On these
            grounds the respondent prayed that the assessment
            order dated March 25, 1958 be quashed and the Sales
            Tax Officer be directed to exempt from tax such sales
            by the respondent as were covered by the exemption
            granted by the notification dated January 28, 1956. In
 E          their reply to the writ petition the appellants pointed
            out that the notification dated January 28, 1956 did
            not in any way discriminate between footwear
            manufactured or produced in the State of Madhya
            Pradesh and footwear imported from outside, because
 F          the conditions laid down in the notification were equally
            applicable to both types of goods and one of these
             conditions was that the sale which was to he exempted
            from tax must he by the manufacturer or a member of
            his family"
 G
            274. The High Court allowed the writ petition. The State carried
      the matter to this Court. This Court noted that notification dated January
      28, 1956 makes no discrimination between footwear manufactured or
      produced in the State of Madhya Pradesh and footwear imported from
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               807
                 [ASHOK BHUSHAN, J.]

other States and the exemption granted by the notification depends on          A
the fulfillment of three conditions mentioned therein. Following was held
by this Court in paragraph 8:


      "8. We now proceed to consider these alternative
                                                                               B
      submissions of learned counsel for the appellants. We
      do not think that the notification dated Janumy 28,
      1956 makes any such discrimination between foonvear
      manufactured or produced in the State of Madhya
      Pradesh and footwear imported from other States as is
      prohibited by Article 304(a) of the Constitution. We have                c
      already pointed out that the exemption granted by the
      notification in question depend~ on the fulfillment of
      three conditions and all the three conditions are equally
      applicahle to footwear manufactured or produced in
      the State andfootlvear imported.from other States. It is                 D
      ohvious that the exemption is for the protection and
       benefit of small manufacturers who make hand-made
      shoes of small value and who may he unahle to compete
       with large-scale manufacturers o.ffootwear made on
      machines. Such a classification in the interests of small
       manufacturers has often heen made and upheld hy this                    E
       Court. (See Orient Weaving Mills (P) Ltd 1~ Union of
      India [Petition No. 110 of 1961 decided on February
       28,    1962.}; and British India           Corporation
      Ltd. v. Collector of Central Excise, Allahabad [Petition
       No. 94 of 1955 decided on August 20, 1962.]."                            F


       275. In the above case submission of the assessee was that in the
event benefit of exemption is not granted to the asses see the exemption
notification may itself be invalid creating a discrimination between similar
manufacturer of outside the State traveling in the State and selling hand-      G
made shoes wherein small manufacturer has not to travel in order to get
the benefit of the exemption. The Comi rejected the above argument
stating that it is really an argument ofinconvenience. In any view of the
matter, this Court in the above case held that assessee did not fulfill the
                                                                                H
808              SUPREME CJURT REPORTS                          [2016] 10 S.C.R.



A condition of the notification, i.e., sale was exempted only when it is by a
      manufacturer or a family member of his family. Hence, there was no
      error in assessing him to the tax. The issue whether it was pem1issible to
      grant exemption to local goods and not to grant such exemption to the
      goods coming from outside was not the issue in the above case. In the
B     above case, this Court has noticed that there was no discrimination with
      regard to the exemption in regard to the goods manufactured outside the
      State or within the State. The above case, thus, does not decide the
      issue which has cropped up before us.
              276. The power of exemption flows from legislation enacted by
      tl~e State Legislature, wherever exemptions are granted, nommlly, statutes
 c
      so provide with legislative policy. What is exemption, has been succinctly
      explained by this Court in Union ofIndia and others vs. Wood Papers
      Ltd. And another, 1990(4) SCC 256 following was stated in paragraph
      4:

 D
               "4 ..... Literally exemption is freedom from liability. tax
             or duty. Fiscally it may assume varying shapes,
             specially, in a growing economy. For instance tax
             holiday to new units, concessional rate of tax to goods
 E           or persons for limited period or with the specific
             objective etc. That is why its construction, unlike
             charging provis,ion, has to be tested on different
             touchstone. In fact an exemption provision is like an
             exception and on normal principle of construction or
             interpretation of statutes it is construed strictly either
 F           because of lr!gislative intention or on economic
             justification of inequitable burden or progressive
             approach of.fiscal provisions intended to augment State
             revenue.

 G
                277. Reverting to provision of304(a), for a legislation to be within
        four comers of 304(a), two conditions are necessary to be fulfilled (1)
        State can impose on goods imported from other States any tax to which
        similar goods manufactured or produced are subject, (2) so however, as
      · not to discriminate between goods so imported and goods so manufactured
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                          809
                 [ASHOK BHUSHAN, J.]

or produced. The first condition is that goods manufactured or produced A
in the State are subject to tax, when exemption is granted in payment of
tax to a specified category on fulfillment of certain condition, it pre-
supposes that goods are subject to tax. The exemption granted on a
specified class of goods, subject to condition, does not militate against
the tax to which the goods are subject. Thus in cases of grant of exemption B
to a specified category on conditions mentioned therein, first condition
as noted above is not breached. Now coming to the second condition i.e.
so, however, as not to discriminate goods exported and goods locally
manufactured or produced. Goods exempted fall in a different category
then the bulk of goods produced and manufactured in the State.
Exemptions under different statutes have been upheld due to legislative c
policy as delineated in a particular statute. In the Video Electronics,
three Judge Bench upheld the exemption noticing the fact that the
exemption granted was to a special class for limited period on specific
conditions of maintaining the general rate of tax on the goods
 manufactured by all those producers in the State who do not fall within D
 that category. Video Electronics, however, further states that if tax is
 imposed in a colourable manner intentionally or purposely to create
 unfavourable bias by prescribing a general lower rate on locally
 manufactured goods either in the shape either of general exemption to
 locally manufactured goods or in the shape oflower rate of tax, such an
                                                                            E
 exercise of power can always be struck down by the Courts. Following
 was observed in paragraph 30:


       "These cases were not at all concerned with granting
       of exemption to a special class for a limited period on             F
       specific conditions of maintaining the general rate of
       tax on the good1· manufactured by all those producers
       in the State who do not.fall within the exempted category
       at par with the rate applicable to import- ed goods as
       we have read these cases. Hence, it was not necessary
                                                                           G
       in those decisions to consider the problem in its present
       aspect. I(. however, the said power is exercised in a
       colourahle manner intentionally or purpose~v to create
       unfavorable bias by prescribing a general lower rate
       on locallv manufactured goods either in the shape of
                                                                           H
810             SUPREME COURT REPORTS                        [2016] 10 S.C.R.



A           general exemption to local~v manufactured goods or in
            the shape of lower rate of tax, such an exercise ofpower
            can always be struck down by the courts. That is not
            the situation in the instant cases. The aforesaid decisions,
            therefore, are not authorities for the general proposition
B           that while, maintaining the general rate at par, special
            rates for certain industries for a limited period could
            not be prescribed by the States. "


             278. Two Judge Bench in Shree Mahavir Oil Mills had noticed
c     earlier cases including Video Electronics. It was observed that exception
      carved out in Video Electronics cannot be widened or expanded to
      cover cases of a different kind, following observation was made in Shree
      Mahavir Oil Mills in paragraph 23:

D
            "For the purpose of this case, it is not necessary for us
            to say anything about the correctness of Video
            Electronics. Suffice it to say that the limited exception
            carved out therein cannot be widened or expanded to
            cover cases of a different kind. It must be held that the
E           total exemption granted in favour of small scale
            industries in Jammu & Kashmir producing edible oil
            [there are no large scale industries in that State
            producing edible oil] is not sustainable in law. "

F
             279. The exception carved out in Video Electronics upheld
      exemption notification where it is limited to specified type with short
      period. The general exemption and exemption in wider ten11 has never
      been approved. The ratio of Video Electronics has to be read as justifying
      only exemption limited to a specified category for a short period.
G     Exemption in general terms of unlimited in nature cannot be approved.
      The exemption cannot be used as measure of discrimination between
      goods imported from other States and goods manufactured or produced
      in the State. The exemption has to be a limited exemption to the tax
      which is imposed on the similar goods. ln the event exemption is total
H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                                81 I
                        [ASHOK Bl-IUSHAN, J.]

and general in nature, the said exemption is clearly violative of Article        A
304(a). Similarly, set off of a paiiicular tax which is general and not
limited to specified category has also to be disapproved. In view of above,
the ratio of three Judge Bench judgment in Video Electronics have to
be read to the above extent and with the limitation as noticed above.
       280. We, thus, come to the conclusion that State Legislature in           B
exercise of its taxing power can grant exemption/set off to local goods.
only to a limited extent based on intelligible differentia which is not in the
nature of general/unspecified exemption. The exemption/set off which
tend to become general exemption violates Article 304(a).
                                                                                 c
       G. ENTRY 52 OF LIST II OF VIITH SCHEDULE OF THE
         CONSTITUTION
       281. Legislative field under State List, Entry 52 is 'taxes on the
entry of goods into a local area for consumption, use or sale therein'.
                                                                                 D
The Entry 52 itself demonstrate that there are inherent limitations as
regard the nature and character of the levy. ln order to have a levy of
tax to come within the purview of Entry 52, such levy has to satisfy
three conditions:
       (i) The levy under the State Entry must be 'on the entry of goods'
                                                                                 E
           which constitutes the taxable events.
       (ii) The levy in question must be in respect of'into a local area'.
          The local area has been defined as ' an area administered by
           local body like a municipality, a district board, a local board, a
           union board, a panchayat or the like'.
                                                                                  F
       (iii) The goods must enter into the local area for the purpose of
           'consumption. use or sale therein'.
        282. The expression Entry Tax has to be understood in its plain
meaning and also in the backdrop of historical imposition of taxes of this
kind. The tax commonly known as octroi was in force in l 90 I and it             G
was subsequently included in VI1 1h Schedule of List II of Government of
India Act, 1935. The Constitution oflndia does not use the word octroi.
List I Entry 89 provides for 'terminal tax on goods and passengers carried
by railways, sea or air; taxes on railway fares and flights'.
                                                                                 H
812             SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A            283. Taxes levied under Entry 52 is commonly known as entry
      tax. While noticing the Constituent Assembly debates, we have seen
      that freedom of trade and commerce was envisaged as freedom from
      border taxes, custom barriers etc., which was prevalent in Indian States.
      Section 297of1935 Act had contained a prohibition for imposing tax.es
B     on entry of goods from other States. The Constitution framers decided
      that States have to be conceded some taxing powers for revenue purposes
      and for purpose of carrying out various development projects. Article
      301 provides freedom of trade, commerce and intercourse throughout
      the.ten-itory of India, simultaneously, exception to such freedom have
      been engrafted in Article 302 - 306. 284. Article 304(a), although
 c    pennits the State to levy tax but it is hedged with two important conditions,
      which we have already noticed above. Article 304(a) thus expressly
      pem1its the State to impose any tax which includes entry tax also subject
      to conditions mentioned therein.
             285. The Entry Tax is related to movement of goods. Movement
D     of goods have been treated to be an integral part of trade and commerce.
      InAtiabari, referring to the content of freedom provided by Article 301,
      it was held that it certainly includes movement of trade following was
      observed by Gajendragadkar, J., at Page 859:

 E
              "the conclusion appears to us to be inevitable that the
             content of.freedom provided for by Article 301 was
             larger than the freedom contemplated by s. 297 of the
             Constitution Act of 1935, and whatever else it may or
             may not include, it certainly includes movement of trade
 F           which is of the very essence of all trade and is its integral
             part. lf the transport or the movement of goods is taxed
             solely on the basis that goods are thus carried or
              transported that. in our opinion. directly affects the
             freedom of trade as contemplated by Article 301."
 G

            286. This Court, while construing the Karnataka tax on entry of
      goods into local area for consumption, use or sale therein Act, 1979 in
      State of Karnataka Vs. Hansa Corporation 1980 4 SCC 697 has
      held that the tax on the entry of goods falls within the inhibition of
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                               813
                  [ASHOK BHUSHAN, J.]

Article 301. Following was observed:                                            A


       "To the extent the impugned tax is levied on the entry
       of goods in a local area it cannot be gainsaid that its
       immediate impact would be on movement of goods and
                                                                                B
       the measure would fall within the inhibition of Article
       301."


       287. A law, made under the subject matter of Entry 52 List II,
would thus clearly be a tax on the movement of goods and thus would C
fall within the purview of the inhibition of Article 301 and the said law
can only be saved if it complies with the Article 304. Learned counsel
for the States have contended that Entry Tax does not prohibit the entry
of goods and tax is collected, only subsequently and nonnally, on the
basis of returns filed by the persons taking the goods into a local area. D
Hence, there is no restriction on the borders of a State or border of a
local area. It is contended that on the entry of goods merely a transit slip
is given hence there is no barrier to the flow of goods. It is well settled
that there is a clear distinction between incidence of a levy and the
machinery provisions contained in law to give effect to such levy. The
incidence oflevy is on entry of goods hence incidence of tax is complete E
as the goods enters into the local area, whether the tax. is collected
immediately or subsequently has no relevance with th.e incidence of
taxation.
         288. The trade and commerce being contemplated to be free
.. throughout the territory of India, any restriction on movement of goods       F
  per se has to be treated as violating Article 301 unless the tax is saved
   by exceptions provide(fin )'art Xlll. However, there may be a tax which
   though complies Article 304(a) but still contains the restriction to trade
   and commerce which is an area where much difficulty has been felt.
   We have already concluded that all taxes which comply with Article           G
   304(a) need not to be routed through Article 304(b) and it is only those
   taxes which contain restrictions on trade, commerce and intercourse
   which need to be routed through 304(b). This can be demonstrated by
   taking a simple example. An Entry tax legislation is passed complying
   Article 304(a) levying Entry Tax on goods imported from outside the
                                                                                H
814             SUPREME COURT REPORTS                          [2016] I 0 S.C.R.



A     State as well as local goods at the rate of one percent of value of goods.
      Normally, such levy cannot be treated as any restriction on the trade and
      commerce and shall pass muster of Article 304(a) and need no compliance
      of A1iicle 304(b ). But in a case where, Entry Tax is levied to the extent
      of hundred per cent of the value of goods both on imported goods and
B
      locally produced or manufactured goods, the said levy is clear restril.:tion
      on trade and commerce and has to be routed through Article 304(b). For
      taking out such levy, from the effect of Article 301 both 304(a) and
      304(b) needs to be complied with.
            289. We thus conclude that Entry Tax legislation which is a tax on
c     movement of goods, trade and commerce is inhibited by Article 30 I and
      such State legislation can be saved under Article 304. Whether a
      paiiicular Entry Tax Legislation is valid and does not contravene Part
      XIII of the Constitution, can be decided only after looking into the nature,
      content and extent of legislation and its impact on trade. commerce and
      intercourse.
D

             H. MEANING OF "RESTRICTION" AS USED IN PART
               XIII
             290. Freedom of trade, commerce and intercourse throughout the
 E    territory of India is guaranteed under Article 301. The framers of the
      Constitution were conscious that the freedom cannot be absolute and it
      may be necessary in several circumstances to restrict the freedom in
      public interest. Article 302 - 3 06 enumerates exceptions to the freedom
      as guaranteed under A1iicle 30 l. What is the meaning and contents of
 F    word 'restriction' as used in Paii XIII? The word 'restriction' has also
      been used under Article 19 (2) to 19 (6) while empowering the State to
      impose reasonable restrictions on the fundamental rights guaranteed
      under A1iicle 19( I )(a) to 19 (I )(g).
             The word 'restriction' is defined- in New Webster Dictionary in
G     the following manner:


             "The act of restricting, or state of being restricted; 1ha1
             which restricts: a restraint: limitatio11."

11
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                 815
                 [ASHOK BHUSHAN, J.]

      291. The Black's Law Dictionary also defines 'restriction' in              A
following manner:


      "restriction. I. Confinement within hound1· or limits; a
      limitation or qualification. 2.A limitation (esp. in a deed)
                                                                                 B
      placed on the use or enjoyment of property. "


       292. The restriction thus is an act to limit, confine and restrain.
The 'restriction', in Part XIII has been used in the context of restriction
to freedom of trade, commerce and intercourse. The law, which restrict           C
or limit such right are called restrictions.
       293. In the present case, since we are concerned with the taxing
legislation, our discussions shall confine to find out the nature ofreshiction
which can be put on the freedom of trade and commerce by tax legislation.
The Constitution Bench of this Court in Firm A. T.B. Mehtab and Majid            D
and Company V. State of Madras and Others 1963 2 SCR 435 at P.
442 has stated 'it is, therefore, now well settled that taxing laws can be
restrictions if they hamper the flow of trade and if there are not what
can be tenned to be compensatory tax or regulatory measures ........... ".
In Indian Cement and Others V. State of Andhra Pradesh 1988 1
                                                                                 E
SCC 743 this Court has held that as a result of favourable or unfavourable
treatment by way of taxation the course of flow of trade gets restricted:-
either adversely or favourably. Following observations were made in
para 12, 14:-
       "12. There can he no di.1pute that taxation is a deterrent
                                                                                  F
      against free flow. As a result of favourable or
       unfavourable treatment hy way of taxation, the course
       of.flow of trade gets regulated either adversely or
      favourably. lf the scheme which Part Xlll guarantees
       has to be preserved in national interest, it is necessary
       that the provisions in the article must he strictly complied              G
       with. One has to recall the farsighted observations of
       Gajendragadkar, J. in Atiabari Tea Co. case and the
       observations then made ohvious~y apply to cases of the
       type which is now hefore us. "
                                                                                 H
816            SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A
              "14. Variation of the rate of interstate sales tax does affect
      free trade and commerce and creates a local preference which is
      contrary to the scheme of Part XIII of the Constitution. The
       notification extend~ the benefit even to unregistered dealers and
B     the observations of Hegde, J. on this aspect of the matter are
       relevant. Both the notifications of the Andhra Pradesh Government
      are, therefore, had and are hit hy the provisions of Part XIII of the
      Constitution. They cannot he sustained in law. "

c            294. Now, we proceed to efamine Pait Xlll of the Constitution
      in so far as it expressly refer to various acts, actions which are treated
      to be restrictions in freedom of trade and commerce. Article 302 - 306
      contain provisions, by which restriction can be put on the freedom of
      trade and commerce. Some restrictions have been expressly mentioned
D     in said articles. Article 303 provides for 'restrictions on the legislative
      powers of the Union and of the States with regard to the trade and
      commerce'. As per Article 303, sub-article Clause 1 following are treated
      to be restrictions:-
            (i) Any law giving or authorising the giving of any preference to
 E             one State over another,
            (ii) Any law making or authorising the making of, any discrimination
                between one State and another.
             295. Thus preferences and discrimination both are treated as
      restriction in the context of freedom of trade and commerce. Coming to
 F
      Article 304(a) any law framed by legislature is restriction on freedom of
      trade and.commerce which:-
            a). lmposes on goods imported from other State, any tax when no
               such tax is imposed on similar goods manufactured or produced
               in that State,
G
            b). Imposes on goods imported from other States any tax which
               discriminates between goods so imported and goods so
               manufactured or produced.


H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           817
                     [ASHOK BHUSHAN, J.]

       296. Again in Article 304 sub-clause(b) State is empowered to A
impose reasonable restrictions in the public interest. Article 306, as it
was initially enacted, contained heading 'power of certain States in Part
B of the Schedule to impose restriction on trade and commerce'. Article
306 pern1itted any tax on duty on import of goods into the State from
other States or on the export of goods from the State to another States
                                                                          B
which was being imposed by a State specified in Part B to continue by
an agreement between Government of India and Government of States
for a period, not exceeding ten years. The article contemplates
continuance of tax or duty which was treated to be restriction and was
allowed to continue only with an agreement for a maximum period of
ten years.                                                                c
      297. We have already noticed a series of judgments of this Court
holding that imposition of discriminatory taxes violates Article 304(a).
Such discriminatory tax imposed by State have been struck down as
being violative of Article 304(a) reference is made to the judgment of
this Court in State of Madhya Pradesh V. Bhailal Bhai and Others           D
1964 (6) SCR 261, Shree Mahavir Oil Mills and Another Vs. State
of Jammu & Kashmir and Others 1996 11 SCC 39.
       298. The restriction which can be imposed, as contemplated by
above provisions oflaw, have to be such limitation on the right of freedom
of trade and commerce which should not be arbitrary or of excessive E
nature beyond what is required in the context of the power. The
Constitution Bench, speaking through Patanjali Sastri, CJ., in State of
Madras Vs. V. G Row 1952 SCR 607 while considering the concept of
reasonable restriction under Article 19 has stated:-
       "ft is important in this context to hear in mind that the            F
      test of reasonahleness. wherever prescrihed, should he
      applied to each individual statue impugned. and no
      ahstract standard, or general pattern of reasonableness
      can he laid down as applicahle to all cases. The nature
      of the right alleged to have been infringed, the                     G
      underlying purpose of the restrictions imposed, .the
      extent and urgency of the evil sought to he remedied
      thereby, the disproportion of the imposition, the
      prevailing conditions at the time. should all enter into
      the judicial verdict. "
                                                                           H
818             SUPREME COURT REPORTS                          [2016] 10 S.C.R.


A            299. Although the word 'restriction' may also in certain
      circumstances includes prohibitions but restriction is not to be understood
      with complete prohibition or stoppage of business, effect of tax when it
      hinders the trade & commerce, it becomes restriction and prohibited
      under Aiiicle 301. This Court in Laxmi Khandsari Etc. Vs. State of
B     U.P. 1981 (3) SCR 92. While considering the concept of reasonable
      restriction has held that reasonable restriction would depend on the nature
      and circumstances of the case following was laid down in page 105:


             "As to what are reasonahle restrictions would naturally
 c          depend on the nature and circumstances of the case,
            the character of the statute, the ohject which it seeks to
            serve, the existing circumstances, the extent of the evil
            sought to be remedied as also the nature of restraint or
            restriction placed on the rights of the citizen. It is difficult
 D          to lay down any hard or.fast rule of universal application
            hut this Court has consistently held that in imposing
            such restrictions the State must adopt an objective
            standard amounting to a social control by restricting
            the rights of the citizens where the necessities of ihe
            situation demand. "
 E

            300. Further, it was held in Laxmi Khandsari Etc. Etc. Vs. State
      of U.P. 1981 (3) SCR 107 that incun-ing of the loss in trade is not a
      ground to trade restrictions as un-reasonable. Following was laid down:
 F
             "Finally. in determining the reasonableness of
            restrictions imposed by law in the.field of industry, trade
            or commerce, the mere fact that some of the persons
            engaged in a particular trade may incur loss due to the
 G          imposition of restrictions will not render them
            unreasonable hecause it is manifest that trade and
             industry pass through periods of prosperity and
            adversity on account of economic. social or political
            factors. Jn a free economy controls have been introduced
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                819
                       [ASHOK BHUSHAN, J.]

      to ensure availahility of consumer goods like food-                       A
      stufj.i·, cloth or the like at a fair price and the fixation
      of such a price cannot he said to be an unreasonable
      restriction in the circumstances. "


                                                                                B
       301. This Court, in G K. Krishnan and Others Vs. State of
Tamil Nadu and Others, (1975) 1 SCC 375 has held that the regulation
like rules of traffic facilitate the freedom of trade whereas restriction
impede that freedom, it was held that a discriminatory tax against outside
goods is not a tax simpliciter but is a barrier to trade and commerce.
Following was laid down in para 15 and 27:                                      c

       "15. Regulations like rules of traffic facilitate freedom
      of trade and commerce whereas restrictions impede that
      freedom. The collection of toll or tax for the use of
                                                                                D
       roads, hridges, or aerodromes, etc., do not operate as
       harriers or hindrance to trade. For a tax to hecoine a
      prohihited tax, it has to be a direct ax, the effect of
       which is to hinder the movement part of the trade. ff
       the tax is compensatory or regulatory, it cannot operate
       as a restriction on the freedom of trade or commerce. "                  E


       "2 7. A discriminatory tax against outside goods is not
       a tax simpliciter but is a barrier to trade and commerce. "

                                                                                 F
       302. A Constitution Bench in Federation ofHotel and Restaurant
Association of lndia, Etc. Vs. Union of lndia and Others (1989) 3
sec 634 was considering the validity of a taxing law in the context of
Article 14 of the Constitution. The Constitution Bench held that legislature
enjoys a wide latitude in the matter of selection of persons, subject matter,    G
events etc. for taxation. Further, it was held that some excessiveness of
taxation or its imposition tends towards diminution of earnings or profits,
does not violate rights under Article 19 (1) (g):


                                                                                 H
820            SUPREME COURT REPORTS                         [2016] 10 S.C.R.


A           "46. It is now well settled that though taxing laws are
            not outside Article 14, howeve1; having regard to the
            wide variezv of diverse economic criteria that go into
            the formulation of a fiscal policy legislature enjoys a
            wide latitude in the matter of selection of persons,
 B
            subject matter, events etc., for taxation. The tests of the
            vice of discrimination in a taxing law are, accordingly,
            less rigorous. "
            Further in para 52 following was stated:
            "62. Then again, the mere excessiveness of a tax or
 c          even the circumstance that its imposition might tend
            toward~ the diminution of the earnings or profits of the
            persons of incidence does not, per se, and without more,
            constitute violation of the rights under Article 19(l)(g)."

 D
              303. lt is, however, relevant to note that the issue as to whether
      the restriction contained in any taxing statute impede the freedom of
      trade and commerce is a question which will vary from case to case.
      The, nature of restriction and the magnitude of the restriction are all
      relevant factors to detennine whether trade is impeded or not. It is well
 E    settled that provisions in a statute which is regulatory in nature which
      facilitates the trade have not been treated as restriction impeding the
      freedom of trade and commerce. Traffic regulations, registration of
      motor vehicles for plying in the State, collection of toll have not been
      treated to be restriction in freedom of trade and commerce.
 F           304. The above discussion makes it clear that what has been
      expressly prohibited inArticle 302- 306 are all restrictions in the freedom
      of trade and commerce which shall obviously contravene Article 301,
      but there may be other instances when a law is treated to be restriction
      although not expressly enumerated in Part 302 to 306. We may clarify
 G    that Article 301 is not attracted in a legislation which does not contain
      any kind of restriction to the freedom of trade and commerce. The
      question of applicability of Part Xlll arises only when the kgislation
      contains restrictions which hamper, restrict, impede and adversely affect
      the freedom of trade and commerce directly & immediately.

 H
       JfNDAL STAINLESS Lro. v. STATE OF HARYANA                           821
                      [ASHOK BHUSHAN. J.]

I. WHETHER 'DIRECT AND IMMEDIATE EFFECT TEST'                              A
AS LAID DOWN IN ATIABARI AND APPROVED IN
AUTOMOBILE TRANSPORT IS NO LONGER A CORRECT
TEST
    305. Gajendragadkar, J., speaking for majority in Atiabari Tea
Company laid down that the restrictions. which directly and immediately    B
impede the trade are hit by Article 301. Following was held at page 860:


       "Thus considered we think it would be reasonable and
      proper to hold that restrictions fi'eedom from which is
       guaranteed by Article 301, would be such restrictions
                                                                           c
       as directly and immediately restrict or impede the free
      .flow or movement of trade. Taxes may and do amount
       to restrictions; but it is only such taxes as direct~v and
       immediately restrict trade that would fall within the
       purview of Article 301."                                            D


      306. Das J .,in Automobile Transport also approved the direct
and immediate effect test. Following was stated at page 523:

                                                                           E
      " .... For the tax to become a prohibited tax it has to be a
      direct tax the effect of which is to hinder the movement
      part of trade. "

                                                                           F
      307. Subba Rao, J., concurring with the above view has also stated
at page 550:


      ".... If a law directly and immediatefcy imposes a tax for
      general reFenue purposes 011 the movement of trade, it               G
      would be violating the freedom. Qn the other hand, if
      the impact i11 indirect and remote. it would be
      unobjectionable. "

                                                                           H
822              SUPREME L:OURT REPORTS                        [2016] 10 S.C.R.


A           308. Gajendragadkar, J., in Atiabari Tea Company had also
      referred to two Privy Council judgments, namely, James Vs.
      Commonwealth of Australia (1936) A.C. 578 and judgment of Lord
      Porter in, Commonwealth ofAustralia and Others Vs. Bank of New
      South Wales and Another (1950) A.C. 235. It is further relevant to
      note that Gajendragadkar, J., was conscious of the fact that political and
B
      historical background of the federal polity adopted by Australian
      C01mnonwealth and the setting of the Constitution of India, the distribution
      of powers and general scheme is entirely different. The caution noted
      by Gajendragadkar, J., was in following words:

 c
             "Before we conclude we would like to refer to two
             decisions in which the scope and effect of the provisions
             of S. 92 of the Australian Constitution came to he
             considered. We have deliheratelv not referred to these
D            decisions earlier because we thought it would be
             unreasonahle to refer to or rely on the said section or
             the decisions thereon for the purpose of construing the
             relevant Articles of Part XIII of our Constitution. It is
             commonplace to say that the political and historical
             background of the federal polity adopted by the
 E           Australian Commonwealth, the setting of the Constitution
             itself, the distrihution of powers and the general scheme
             of the Constitution are different, and so it would not he
             safe to seek for guidance or assistance from the
             Australian decisions when we are called upon to
 F           construe the provisions of our Constitution. "


          309. It is useful to refer to observations made by Lord Porter in
      Commonwealth ofAustralia & others(supra), which are in following
      words:
 G

               "Jn this labyrinth there is no golden thread. But it see;ns
               that two general propositions may he accepted; (!.) that
               regulation of trade, commerce and intercourse among
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              823
                 [ASHOK BHUSHAN, J.]

      the States is compatible with its absolute freedom, and                 A
      (2.) that s.92 is violated only when a legislative o,.
      executive act operates to restrict such trade, commerce
      and intercourse directly and immediately as distinct.from
      creating some indirect or consequential impediment
      which may fair~v be regarded as remote. "                               B


       310. Shri Rakesh Dwivedi, learned Senior Advocate has contended
that the Australian cases laying down 'direct and immediate effect test',
which were relied by this Court in Atiabari, having been subsequently
not followed by Australia High Court itself, the direct and immediate         c
effect test should not be recognised for purposes of Article 301. Shri
Dwivedi has referred to Cole Vs. Whitfield (1988) 78 ALR 42. He
submits that 7-Judges Bench in Cole Vs. Whitfield has held that the
operation test has failed to achieve unanimity. Shri Dwivedi submits that
now the test which has been approved both by Australian High Court            D
 and U.S. Supreme Court is non-discriminatory test. He submits that
 preventing preferences and discrimination is the main factor for achieving
 the goal of creating free trade as accepted in Cole Vs. Whitfield. He
 submits that in Cole Vs. Whitfield following observations were made
 by the Court:
                                                                               E

        "Jn relation to hath fiscal and non~fiscal measures,
       history and context alike favour the approach that the
       freedom guaranteed to interstate trade and commerce
        under s. 92 is freedom from discriminatory burdens in                  F
        the protectionist sense already mentioned. .,


      311. James Vs. Commonwealth ofAustralia (supra) was treated
to have provided support for the development of the doctrine of criteria
of operation. Cole Vs. Whitfield gave various reasons for disapproving         G
the operation theory. Some of the reasons given are as follows:
       "First, in some respects the protection which it offers to
       interstate trade is too wide. Instead of placing interstate
       trade on an equal footing with intrastate trade, the
                                                                               H
824             SUPREME C0URT REPORTS                          [2016] 10 S.C.R.



A           doctrine keeps interstate trade on a privileged or
            preferred.footing. immune from burdens to which other
            trade is subject. "


             "The second major reason for rejecting the doctrine as
B
            an acceptable interpretation of s. 92 is that it fails to
            make any accommodation for the need for laws
            genuinezy regulating intrastate and interstate trade. The
            history of the movement for abolition of colonial
            protection and for the achievement of intercolonial free
c           trade does not indicate that it was intended to prohibit
            genuine non-protective regulation of intercolonial or
            interstate trade. The criterion of operation makes no
            concession to this aspect of the section '.I· history. Jn :he
            result there has been a continuing tension between the
D           general application of the formula and the validity of
            laws which are purezy regulatory in character. Judged
            by reference to the doctrine, the validity of a regulatory
            law hinged on whether it imposed a burden on an
            essential attribute or on a mere incident of trade or
            commerce.
E

             312. As noted above, our Constitution framers were well aware
      of the provisions of the Australian Constitution and the difficulties which
      arose in the Australia and different views expressed on the interpretation
F     of Section 92, the Constitution framers though took inspiration from Section
      92 but they did not stop there, rather they expressly provided for
      qualification to the right and freedom guaranteed under Article 30 I by
      Article 302 - 306. Learned counsel for the State also in their submissions
      have contended that the Australian judgments pertaining to Constitution
      of Australia as well as the judgments of the U. S. Supreme Court are not
G     directly applicable with regard to the interpretation of Part Xlll. However,
      now it is contended by Shri Dwivedi that since the Australian High
      Court has now abandoned the operation test, this Court may also review
      the test as was laid down in Atiabari.

H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           825
                      [ASHOK BHUSHAN, J.]

        313. We have already noticed that in Atiabari in all the three A
opinions expressed by Sinha, C.J., and Gajendragadkar, J., and Shah, J.,
it was noted that in our Constitution, there is a departure from Australian
Constitution and the Australian judgments are not relevant. Justice
Gajendragadkar, has refen-ed to two Privy Council judgments dealing
with Australian Constitution to know how judicial minds have responded B
to the challenge presented by similar provisions. In the above spirit,
references of those two Privy Council judgments were made. Thus
Gajendragadkar, J ., did not base his judgment on the test, which was laid
down in the Australian judgments but found justification for his conclusion
from the aforesaid judgments. Further, the primary reason why the
Australian High Comi in Cole v.~. Whitfield rejected the 'trade and c
immediate effect test' is, that because the freedom guaranteed under
 Section 92 applies only "between the States" i.e. to the interstate trade,
 i.e., The doctrine accordingly ended up discriminating against intrastate
trade as it provided some sort of immunity to interstate transactions
 which intrastate transaction did not enjoy. We have already extracted D
 the reasons given by Cole Vs. Whitfield, whereas in Part Xlll of the
 Constitution, the Constitution framers had provided for non-discriminatory
 taxation between the intrastate and interstate trade with provision for
 dealing with all situation including a case whether restriction has to be
 imposed, on both interstate or intrastate trade that is Article 304(b).
                                                                            E
 Although the Australian High Court rejected the idea of 'direct and
 immediate effect test' as being artificial, this Court has continued to
 adopt the said doctrine whenever legislation is decided on the touchstone
 ofreasonable restriction and the doctrine has been applied consistently
 in the vast number of cases for decades which have stood the test of
 time.                                                                      F
      314. Shri Dwivedi has also referred to American cases and
contends that free trade immunity, which was propounded in Spector
Motor Services, Inc. Vs. O'Connor 430 U.S. 289(1951) had been
overruled in Complete Auto Transit Vs. Brady 430 U.S. 274(1977).
Shri Dwivedi submits that in Complete Auto, it was held that 'it was not   G
the purpose of the commerce class to relieve those engaged in interstate
commerce from their just share of State tax burden even though it
increases the cost of doing business'. Shri Dwivedi, further relies on
State of Maryland v.~. State of Louisiana 451 U.S. 725 where it was
observed, "one of the fundamental principles of commerce class             H
826            SUPREME COURT REPORTS                          [2016] 10 S.C.R.



A     jurisprudence is that no State, consistent with the commerce class, may
      or impose tax which discriminates against interstate commerce .......".
      Shri Dwivedi submits that the U.S. Supreme Court has also moved to
      non-discriminatory test. He submits that even in Cole Vs. Whitfield, the
      Complete Auto Transit Vs. Brady was noticed. The commerce class
      of the American Constitution Article 1, Section 8, Clause 3 provides "to
B
      regulate commerce with foreign nations and among the several States
      and with the Indian tribes;" Part Xlll of the Constitution has not adopted
      the American model and the interpretation on the commerce class is
      hardly relevant for interpretation of Part Xlll.
 C          315. Non-discriminatory taxation by State in reference to interstate
      and intrastate trade is ingrained in Atticle 304(a) itself, and no abstract
      theory needs to be referred to for following Non-discriminatory Theory.
            316. We are thus of the view, that the concept as evolved in
      Australia and America with regard to freedom of trade and commerce,
 D    cannot be adopted in respect of interpretation of our Constitution, despite
      arguing against the relevance of foreign judgments, the States themselves
      are now relying on the foreign judgments in context of 'direct and
      immediate effect test theory'. The change in the legal position in Australia
      and America does not have any bearing on the Indian legal position as
      our Constitutional framework is different from those countries.
 E
             317. It is further contended before us that sometimes, it becomes
      difficult to draw a line as and when, legislation/taxation shall impede
      freedom of trade, commerce and intercourse and it becomes difficult
      for Court to apply any objective criteria for finding out the demarcation
      line. No hard and fast fommla can be laid down to determine as to
 F    whether a particular legislation/taxation violates ,rights of freedom of
      trade and commerce under Article 301. It is for the Court to examine
      facts of each case and come to a conclusion. In this context, observation
      ofSubba Rao, J., is pertinent to be referred to. Referring to observation
      of Dixson, C.J., following was stated by Subba Rao, J.:
 G

             "Dixon, C.J., in Commonwealth Freighters Proprietary
             Limited v. Sneddon, gives a very cogent answer to such
             an argument in a different context. The learned chief
             Justice said:
 H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                       827
                [ASHOK BHUSHAN, J.]

"Highly inconvenient as it may he, it is true of some            A
legislative powers limited hy definition, whether
according to subject-matter to purpose or otherwise,
that the validity of the exercise of the power must
sometimes depend on facts, facts which some how must
he ascertained hy the court responsible for deciding             B
the validity of the law...... All that is necessary is to make
the point that if a criterion of constitutional validity
consists in matter of fact, the fact must he ascertained
hy the court as hest it can, when the court is called
upon to pronounce upon validity. "
                                                                 c
I entirely agree with these observations. It is common
place to point out that intricate prohlems come he/ore a
court involving decision on different and complicated
a.1pects of human activity. Questions involving science,
medicine, engineering, geology, biology, economics,
Psychology, etc. all come for judicial scrutiny, and I           D
have never heard any court saying that it is difficult to
decide upon such a question and, there.fore, the
proceeding raising such a question is outside the
jurisdiction of such a court. Jn saying this, I am not
 ignoring the difficulties inherent in a problem offzxing         E
 the rate of taxes hy a court. Experience shows that the
 court applies certain presumptions, such as that of the
 wisdom, knowledge and the good intentions of the
Legislature, and does not also meticulousZv go in to the
 question, hut onzv looks at the hroad features. On the
                                                                  F
 argument of learned counsel when it is permissible and
possihle for a court to ascertain whether a tax is fiscal
 or regulatory, I do not see how it hecomes impossible,
 though it may he difficult, to hold whether a .fiscal tax
 is reasonahle or not. The distinction lies not in the nature
 of the enquiry hut -only in degree. That apart, no               G
 restriction, if it is unreasonahle, can be more deleterious
 to the freedom than the imposition of.fiscal burden on
 it, which may in certain circumstances destroy the very
freedom."
                                                                  H
828             SUPREME COURT REPORTS                        [2016] I 0 S.C.R.



A            318. In view of foregoing discussion. we are of the view that
      submission raised on behalf of the learned counsel for the State that
      'direct and immediate effect test' is no longer a correct test, cannot be
      accepted. As observed above. each case has to be determined on facts
      of each case. The 'direct and immediate effect test' as laid down in
B     Atiabari and approved in Automobile Tramport still holds good.


            J. COMPENSATORY TAX THEORY
           3 19. Two related issues pertaining to a tax which is compensatory
 c in nature have been framed by us in the beginning of hearing. Those are
   a part of Question No.2, i.e., ''Can a tax which is compensatory in
   nature also fall foul Article 30 l of the Constitution?" and "What are the
   tests for determining whether the tax or levy is compensatory in nature''?
   Learned counsel appearing for the parties have made elaborate
   submissions on the concept of compensatory tax and either related issues.
 D Most of the learned counsel appearing: for the petitioners as well as
   respondents-States have expressed their reservation. regarding
   compensato1y tax theory. Majority of counsel are at agreement that
   judicial evaluation of compensatory tax theory was uncalled for and the
   compensatory tax theory is not compatible with a constitutional provision
 E of Part XIII. It is submitted that compensatory theory has been judicially
   evolved by Seven Judge Bench in Automobile Transport case (supra)
   and the majority opinion had upheld the provisions of Rajasthan Motor
   Vehicles Taxation Act, 1951 holding it to be compensatory tax. In view
   of the serious reservation expressed by the learned counsel for the parties
   on the compensatory tax theory, it is necessa1y for us to examine the
 F concept in some detail.
            320. The compensatory tax theory as evolved in Automobile
      Tra11spo11 was soon doubted by the Constitution Bench in Kflyerbari
      Tea Company Ltd. v. State of A.5.rnm, (1964) 5 SCR 975.
      Gajendragadkar, J. looking into the nature ofthe compensatory tax theory.
 G    opined that the same is required to be reconsidered by a larger Bench.
      he, however, noted that since the legislation was not tried to be saved on
      the basis of compensatory tax theory, the question was not further
      pursued. Gajendragadkar, J. made following observation:

 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            829
                      [ASHOK BHUSHAN, J.]

      " According to the majority view in the case of Atiabari              A
      Tea Co., if an Act is passed under Art. 304(h) and its
      validity is impeached, then the State may seek, to justify
      the Act 011 the ground that the restrictions imposed by it
      are reasonable and in the public interest, and in doing
      so, it may, for instance, re(v on the fact that the taxes             B
      levied by the impugned Act are compensatory in
      character. On the other hand, according to the majority
      decision in the Automobile Transport (Rajasthan) case,
      compensatory taxation would be outside Art.301 and
      cannot therefore, fall under Art.304(b). If in the present
      case it had been urged before us that the tax levied by               c
      the Act is compensatory in character, it would have been
      necessary to consider the question once again hy
      constituting a larger Bench. "

                                                                            D
       321. The question as to what are the tests for detennining whether
a tax or levy is compensatory in nature becomes secondary when we
have to examine sustainability of the compensatory theory itself.
      322. What is the tax ? What are the ingredients of taxation ?
Thomas M. Cooley in "A Treatise on the Constitutional Limitations"          E
defined the taxes in following words:


      "Taxes ar~ defined to he burdens or charges imposed
      hv the legislative power upon persons or property, to
      raise money for public purposes. The power to tax rests               F
      upon necessity, and is inherent in every sovereignty. The
      legislature of every .fi·ee State will possess it under the
      general grant of legislative power, whether particularly
      specified in the constitution among the powers to he
      exercised by it or not.. "                                            G


     323. Chief Justice, Marshall in M'Culloch vs. State ofMaryland,
17 US 316 (1819) while examining the nature of taxing power stated:

                                                                            H
830            SUPREME COURT REPORTS                       [2016] 10 S.C.R.



A           "It is admitted, that the power ol taxing the people and
            their property, is essential to the very existence of
            government, and may he legitimately government may
            choose to carry it. The only security against the abuse
            of this power, is found in the structure of the government
 B          itself In imposing a tax, the legislature acts upon its
            constituents. This is, in general, a sufficient security
            against erroneous and oppressive taxation. "


            324. A Seven Judge Bench of this Court in Commissioner, Hindu
 c Religious Endowments, Madras vs. Sri Lakshmindra Thirtha
      Swamiar of Sri Shirur Mutt, 1954 SCR 1005: AIR 1954 SC 282 has
      given definition of tax which has been repeatedly quoted and relied by
      this Court in large number of subsequent judgments. In paragraph 45
      following was stated:
 D
            "45. A neat definition of what "tax" means has been
            given hy Latham, C.J. of the High Court of Australia in
            Matthews v. Chicory Marketing Board. "A tax",
            according to the learned Chief'Justice, "is a compulsory
 E          exaction of money hy public authority for public
            purposes enforceable hy law and is not payment for
            services rendered''. This de;finition brings out, in our
            opinion. the essential characteristics of a tax as
            distinguished from other forms ol imposition which, in
 F          a general sense, are included within it. It is said that
            the essence of taxation is compulsion, that is to say, it is
            imposed under statutory power without the taxpayer :s
            consent and the payment is enforced by law. The second
            characteristic of tax is that it is an imposition made for
            public purpose without ref'erence to any special benefit
 G          to he conferred on the payer of the tax. This is expressed
            hy saying that the levy of tax is for the purposes of
            general revenue, which when collected forms part of
            the public revenues ol the State. As the object of a tax
            is not to confer any special benefit upon any particular
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                               831
                       [ASHOK BHUSHAN, J.]

      individual, there is, as it is said, no element of quid pro              A
      quo between the taxpayer and the public authority.
      Another feature of the taxation is that as it is a part of
      the common burden, the quantum of imposition upon
      the taxpayer depends generally upon his capacity to
      pay.                                                                     B

        325. It is an accepted proposition that one of the characteristics
of tax is that it is an imposition made for public purpose without reference
to any special benefit to be conferred on the payer of the tax. The taxes
imposed by the Legislature, apart from being source of Revenue is also         C
expended for various public welfare measures and when it's object is in
no way connected with the public interest or public welfare it loses its
character of taxation, becomes a levy which is unconstitutional.
       326. Das, J. delivering majority opinion in Automobile Transport
case, in his judgment has referred to Rajasthan Motor Vehicles Taxation        D
Act, 1951 as compensatory with whose opinion Subba Rao, J. also
concurred.
       327. Das, J. for coming to the conclusion that 1951 Act is a
compensatory in nature has refe1Ted to judgments of Australian High
Court and the judgment of the Privy Council wherein validity of various        E
statutes in the context of freedom of trade and commerce granted under
Section 92 of the Constitution of Australia were considered.
       Das, J. has referred to following judgments:
       (i) Duncan v. The State of Queensland, (1916) 22 C.L.R. 556;
                                                                               F
       (ii) Mc Carter v. Brodie, (1950) 80 C.L.R. 432;

       (iii) Hughes and Vale Proprietary Ltd. v. State of New South
          Wales, (1955)A.C. 241;
       (iv) Armstrong v. State of Victoria No.2, (1957) 99 C.L.R. 28;
                                                                               G
       (v) Commonwealth ofAustralia v. Bank of New South Wales,
          (1950) A.C. 235;
       (vi) Commonwealth Freighters Property Ltd. v. Sneddon,
          (1959) 102 C.L.R. 280.
                                                                               H
832            SUPREME COURT REPORTS                         [2016] 10 S.C.R.



A            328. The Australian Constitution provides under Section 92 'trade,
      commerce and intercourse among the States, whether by means of
      internal carriage or ocean navigation, shall be absolutely free'. In the
      above cases, Australian High Court and Privy Council had occasion to
      examine the challenge to various statutes framed by the States on the
      ground that these statutes violate freedom of trade and commerce, as
B
      guaranteed under Section 92. Section 92 itself does not provide for any
      qualification or exception to the freedom, in Duncan and Others V.
      State of Queensland and Another (1916) 22 CLR 556. Chief Justice
      Griffith, while construing the expression free had made following
      observations:
 c
            "But the word :free' does not mean extra legam and
            any more than freedom means 'anarchy' we boast of
            being absolutely free people, but that does not mean
D           that we are not subject to law. "


             329. The most of the cases of Australian High Court which have
      been referred to and relied by Das, J. were the transport cases wherein
      various sections were enacted for registration, licensing and realisation
 E    of fee/charge from motor vehicles, goods carriages in course of inter-
      State and intrastate trade and commerce.
             330. Justice Das has specifically referred to dissenting opinion of
      Fullagar, J. in McCarter and Another V. Brodie, (1950) 80 CLR 432,
      in which case the Parliament of Victoria had passed an Act, namely,
 F    Transport Regulation Act, 1933-47 which provided that a commercial
      goods vehicle should not operate on any public highway unless licensed
      in accordance with Act. A fee was to be paid for license, by an amendment
      further fee was imposed to be calculated at an annual rate determined
      from time to time by referring to the load capacity of the vehicle in
 G    respect of which license was sought to.
             331. Chief Justice Latham delivered his opinion for the Court,
      after referring to various earlier decision of Australian High Court and
      Privy Council. Chief Justice held that the regulation of trade, commerce
      and intercourse in the States is compatible with absolute freedom
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            833
                      [ASHOK BHUSHAN, J.]

envisaged under Section 92 and the freedom is violated only when statute    A
operates to restrict such trade and commerce, directly and immediately,
it was said:-


       "This quotation follows an express statement that
                                                                            B
      regulation of trade, commerce and intercourse among
      the States is compatible with absolute freedom and that
      s. 92 is violated on(v when a legislative or executive
      act operates to restrict such trade, commerce and
      i11tercourse directlv.- and immediately,
                                             . as distinct ' fi'om
      creating some i11direct or consequential impediment                   c
      which mayfairzv he regarded as remote. Thus the Privy
      Council in the Banking Case expressly rejected the
      proposition that s. 92 precluded Parliaments
      (Commo11wealth or State) from in any way regulating
      or controlling inter-State trade and commerce, and a                  D
      statement of the lcnv was selected for approval which
      defined the relevant criterion as the distinction behveen
       regulation which was permitted, and prohibition, which
       was not permitted. The result is thats. 92 does not mean
       that inter-State trade and commerce is to be free from
       control hy law. In a passage to which I have just                    E
       referred their Lord1·hips held that if laws have only an
       indirect effect in relation to inter-State trade and
       commerce they are not invalidated by s. 92. '·'

                                                                            F

      332. Justice Fullagar, who delivered a dissenting opinion had
examined in detail the nature of legislation which can be terined as
regulatory and those which cannot be held to be prohibiting the trade. In
his opinion, His Lordship has illustrated his point by giving various       G
examples. He was of the view that permitted regulations as explained
do not impede freedom carrying out under Section 92, however, there
may be circumstances when even regulatory statutes impede the
freedom. Following was observed:

                                                                            H
834     SUPREME COURT REPORTS                       [2016] lQ S.C.R.


A     " .... The distinction hetween what is merely permitted
      regulation and what is a true inte1ference with freedom
      of trade and commerce must often, as their Lordships
      observed, present a problem of great difficulty, though
      it does not, in my opinion, present any real difficulty in
 B
      the present case. We may hegin by taking a few
      examples, con.fining out attention to the suhject matter
      of transportation, which is now under consideration.
      The requirements of the Motor Car Acts o,f Victoria qfford
      very good examples of what is clearly permissible. Every
      motor car must be registered : we may note in passing
 c    that there is no discretionary power to refi1se
      registration. A fee, which is not on the face of it
      unreasonable, must be paid on registration. Every motor
      car must carry lamps of a specified kind in front and at
      the rear, and in the hours o,f darkness these lamps must
 D    be alight if the car is being driven on a road. Every
      motor car must cany a warning device, such as a horn.
      A motor car must not be driven at a speed or in a manner
      which is dangerous to the public having regard to all
      the circumstances o,f the case. Other legislation o,f the
      State-Parliamentary or subordinate-prescribes other
 E
      rules. Jn certain localities a motor car must not be driven
      at more than a certain specified speed. The weight of
      the load which may be carried by a motor car on a
      public highway is limited. The driver of a motor car
       must keep to the left in driving along a highway. He
 F     must not overtake another vehicle on a curve in the
       road which is marked hy a double line in the centre. He
      .must observe certain "rules of the road" at intersections:
      for example, the vehic!e•on the right has the right of
       way.
 G     Such examples might be multiplied indefinitely. Nobody
      would doubt that the application of such rules to an
      inter-State trader will not infringe s.92. And clear~v in
      such matters o,f regulation a very wide range of
      discretion must he allowed to the legislative body. When
 H
      we ask why such rules do not infringes. 92, I think that
      JINDAL STAINLESS LTD. v. STATE OF HARYANA                            835
                [ASHOK BHUSHAN, J.]

     commonsense suggests a fairly clear and satisfactory                  A
     answer. The reason is that they cannot fairly be said to .
     impose a burden on a trader or deter him from trading:
     it would be foolish. for example, to suggest that my
     freedom to trade between Melbourne and Albury is
      impaired or hindered by laws which require me to keep                B
      to the left of the road and not drive in a manner
      dangerous to the public.
      Of course, even rules of the kind which I have taken as
      examples could be 1nade to operate as a burden or
      deterrent in a high degree. Let me take an example. The              c
      town of Wangaratta is in Victoria, some fifty miles by
      roadfrom the border between Victoria and New South
      Wales. It is on the Hume Highway, which is the busy
      main highway between Melbourne and Sydney. A law
      which provided that a motor car should not travel on
      that highway at greater speeds than thirty miles per hour ·          D
      within the limits of towns and sixty miles per hour outside
      towns would not impede or interfere with the trade of
      persons carrying good1· for reward between Melbourne
      and Sydney; their trade would remain free. ·But let me
      suppose a law that no person should drive a motor car                E
       between Wangaratta and the border at a speed
       exceeding one mile per how: We should instant~y say
      that such a law interfered with the freedom of inter-
       State trade. It would operate as a burden and a
       deterrent to the trader by making the journey
                                                                           F
       economically impossihle. The examples which I have
       taken seem clear. On which side of the line a particular
       case falls will, of course, be a question of.fact.... "


      333. The above opinion, expressed by Fullagar, J. was specifically   G
approved by Privy Council in Hughes and Vale Proprietary Ltd. V.
State of New South Wales and Others /1955/ A.C. 241. The Privy
Council has noticed that the problem before the Australian High Court
has bee:i to define the qualification in the Constitution which ~s left
unqualified. It held that the expression free 'under Section 92 though
                                                                           H
836             SUPREME COURT REPORTS                          [2016) 10 S.C.R.



A     emphasized by the accompanying, absolutely must receive some
      qualification'. Privy Council laid down following two general propositions:


            "But it seems that two general propositions may he
            accepted: (1) that regulation of trade, commerce and
B
            intercourse among the States is compatible with its
            absolute freedom, and (2) that section 92 is violated
            on(v when a legislative or executive act operates to
            restrict such trade, commerce and intercourse directly
            and immediatezv as distinct fi'om creating some indirect
 c          or consequential impediment which may fairly he
            regarded as remote. In the application of these general
            propositions, in determining whether an enactment is
            regulatory or something more, or whether a restriction
            is direct or only remote or incidental, there cannot fail
D           to he differences of opinion. The proh!em to he solved
            will often he not so much legal as political, social, or
            economic, yet it must he solved by a court of law. "


              334. In Armstrong and Others (supra), the provisions of
 E    Commercial Goods Vehicle Act, 1955 were under challenge on the ground
      that it violated Section 92. The provisions require the owner of every
      commercial goods vehicle of loading capacity exceeding four tonnes
      and not engaged in conveying certain specified classes of goods to pay
      contribution towards the compensation for wear and tear costs to public
 F    high ways. The High Court held that imposition of charge for using the
      roads of State is not necessarily inconsistent with the freedom of interstate
      trade and commerce.
             335. The Chief Justice Dixson has held that a State can not single
      out inter-State transport or transport generally for particular charge, such
 G    charge was held not to be compensatory for the use made of them.
      Following observations were made:
             "ft appears to me that on a proper scrutiny of Pt. II of
             the Motor Car Acts 1951-56 (Viet.) and the second
             schedule it must be seen that no room exists for the
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                           837
                     [ASHOK BHUSHAN, J.]

      grounds upon which it has heen sought to reconcile                   A
      with s. 92 the imposition upon vehicles exclusively
      engaged in inter-State commerce of the rates contained
      in sub-par. (h) of par. B of the schedule. ( 1) The
      exaction cannot he regarded simp(v as a.fee contributing
      to the cost of registration a service in the interest of             B
      motor car owners and drivers and others so that it is
      nothing hut an incident or adjunct of the traffic. (2) It
      cannot he treated as another contribution to the
      maintenance of the highways compensatmy for the use
      made of them. (3) It cannot be justified as a tax upon
      the ownership or possession of a chattel considered                  c
      independently of the use of the chattel in the carriage
      of persons or goods, including the inter-State carriage
      ofpersons or good~. (4) It cannot he treated as involving
      no appreciahle hurden upon the possession of a motor
       vehicle as a means of inter-State carriage and                      D
      movement. "


       336. Referring to an earlier judgment of the High Court, William,
J. in his concurring opinion has referred to indicia presence of which
may prove a charge as truly compensatory:                                  E



      "Jn the joint judgment of Dixon C.J.. McTiernan and
      Webb JJ. in Hughes & Vale Pty. Ltd. v. State of New
      South Wales [No. 2] (3) the following passage appears:               F
      "Prima facie it" (that is the legislation imposing the
      charge" ''will present that appearance" (that is the
      appearance of a real attempt to fix a reasonable
      recompense for the use of the highway) "if it is based
      on the nature and extent of the use made of the road~
      (as for example if it is a mileage or ton-mileage charge             G
      or the like): if the proceeds are devoted to the repair,
      upkeep, maintenance and depreciation of relevant
      highways, if inter-State transportation bears no greater
      burden than the internal transport of the State and if
                                                                           H
838            SUPREME CGJRT REPORTS                          [2016] 10 S.C.R.


A           the collection of the exaction involves 110 substantial
            interference with the journey. The absence of one or
            all of these indicia need not necessarily prove fat.ii,
            but in the presence of them the conclusion would
            naturally be reached that the charge was truly
B           compensatory. "


             337. From the above, it is clear that Australian High Court have
      read qualifications under Section 92 of the Act. The statutes r~gulating
      the trade which have no direct effect on trade and commerce and levying
 c    compensatory charge were held to be compatible with freedom under
      Section 92.
             338. Another judgment of the Privy Council which have been
      referred to by Das, J. was judgment in Commonwealth of A;istra/ian
      and Others V. Bank of New South Wales and Others /1950/ A.C.
 D    235. The Privy Council laid down as following:


            "But it appears to their Lordships that, if these two tests
            are applied: .first, whether the effect of the Act is in a
            particular respect direct or remote; and, secondly,
 E
            whether in its true character it is regulatory, the area
            of dispute may be considerably narrower. It is beyond
            hope that it should be eliminated."


 F            339. After referring to above cases, Das, J. recorded the conclusion
      in following words:


              "We have, therefore, come to the conclusion that neither
             the wide interpretation nor the narrow interpretatiuns
 G
             canvassed before us are acceptable. The interpretation
             which was accepted by the majority in the Atiabari Tea
             Co. case is correct, hut subject to this clarification.
             Regulatory measures or measures imposing
             compensatory taxes for the use of trading facilities do
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                839
                 [ASHOK BHUSHAN, J.]

      not come within the purview of the restrictions                           A
      contemplated hy Article 301 and such measures need
      not comp~v with the requireme4nts of the proviso to
      Article 304(h) of the Constitution."


                                                                                B
       340. The law that if a statute is compensatory in nature, it is beyond
Part XIII and does not violate Article 301, was consistently foEowed
after the above pronouncement in Automobile Transport. All State
Legislations, after the above pronouncement have been challenged and
saved on many grounds including on the above exceptions, as laid down
in Alltomobile Transport. There have been various tests laid down in            c
different cases decided by this Court to find out as to whether State
Legislation is compensatory in nature or not. In Messers Bliagatram
Rajiv kumar, this Court had held that ifthere is some link betwe<;:n the
tax and trading facility, directly or indirectly, the statute is compensatory
and is not open to challenge under Article 301. State of Bihar and              D
Others (supra) following the earlier judgment again reiterated the test
of some connection between the tax and trading facility provided: Both
the above judgmer.ts were doubted and refened to a Constitution Bench.
A Constitution Bench of this Court in Jindal Stainless Steel Ltd. Vs.
State o/Haryana (supra) had already ovem1led the aforesaid two
judgments. Even the test as laid down by the Constitution Bench in              E
Jindal Stainless Steel Ltd.(2) did not quell the controversy and in the
reference made by the Constitution Bench in Jaiprakash
Associates(Supra), one of the questions refened was with regard to
 the test to prove whether levy is compensatory levy.
     341. At this juncture, it is also relevant to refer to concept of          F
"compensatory tax" as developed in United States of America.
       342. The first case to be noticed is Hinson v. Lott, 8 Wr.11, 75
U.S. 148 (1869). The State of Alabama passed a statute by Section 13
of whicn all dealers on sale of liquor within the limit of the State were
required to pay tax of 50 cent per gallon. A merchant of another state          G
against whom collection of tax was sought to be enforced, questioned
the tax. Tax was held to be valid by Supreme Court of Alabama and the
matter was taken by the merchant to the Supreme Court of the United
States. The Supreme Court held that tax is not violative of inter-State
                                                                                H
• 840            SUPREMF COURT REPORTS                        [2016] IO S.C.R.


  A     trade and commerce. It was noticed that no greater tax is held on the
        liquor brought into the State than on those manufactured out of the State
        and the tax on the liquor brought in from other State was only
        comjJlimentary provision necessary to make tax equal on all liquors sold
        in the States. Following was laid down:
  B
               "A tax is imposed by the previous sections of the same
              act of.fifty cents per gallon on all whiskey and all
              brandy from fruits manufactured in the State. In order

  c                                    ..
              to collect' this tax, everv distiller is compelled to tcke
              our a license and to make regular returns of the amount
              of distilled spirits manufactured by him. On this he pays
              fifty cents per gallon. So that when we come in the
               light of these earlier sections of the act. to examine the
               JJ'h, J41h. and l 51h sections. it is found that no greater
  D            tax is laid on liquors brought into the State than on
               those manufactured within it. And it is clear that whereas
               collecting the tax of the distiller was supposed to he the
               most expedient mode of securing its payment, as to
               liquors manufactured within the State, the tax on those
               who sold liquors brought in from other States was only
  E            the complementary provision necessary to make the tax
               equal on all liquors sold in the State. As the effect of
               the act is such as we have described, and it institu:es
               no legislation which discriminates against the products
               of sister States, hut merely subjects them to the same
   F           rate of taxation which similar articles pay that are
               manufactured within the State, we do not see in it an
               attempt to regulate commerce, hut an appropriate and
               legitimate exercise of the taxing power of the States. "


   G         343. The next case needs to be noted is judgment of the U.S.
        Supreme Court in Harold H. Henneford et al., V. Silas Mason
        Company, Inc., 300 U.S. 577.


   H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                              841
                  [ASHOK BHUSHAN, J.]

       344. Justice Cardozo delivered the opinion of the Court and             A
upheld the compensatory tax. The facts of the case had been noted in
the judgment which reads as follows:


      "A statute of Washington taxing the use of chattels in
                                                                               B
      that state is assailed in this suit as a violation of the
      crJTnmerce clause (Constitution of the United States,
      article I, 8) in so far as the tax is applicable to chattels
      purchased in another state and used in Washington
      thereafie1: "
                                                                               c
        "OnZv two o{ these taxes are important for the purposes
       of the case at hand, the 'tax on retail sales, ' imposed by
       title Ill and the 'compensating tax, ' imposed hy title IV
       on the privilege of use. Title Ill provides that after May
                                                                               D
       1, 1935, every retail sale in Washington, with a few
       enumerated exceptions, shall he subject to a tax of 2%
       of the selling price. Title IV with the heading
         'compensating tax, 'provides that there shall he collected
       from evelJ' person in the state 'a tax or excise for the
       privilep;e of using within this state any article o.l tangible          E
       personal property purchased subsequent to April 30,
        1935, 'at the rate of 2% o{ the purchase price, including
        in such price the cost of transportation fi'Om the place
        vvhere the article was purchased. '·'
                                                                                F

        345. However, there were several exceptions. Sub Division(b)
 provides that the use tax shall not be laid unless the property has been
·brought at retail and ( c) tax shall not apply to the use of any article of
 tangiblt personal ·property, the sale or use of which had already been
 subject to a tax equal to or in excess of that imposed. Those users of the    G
 State who have produced in the State were thus not to pay the me tax
 whereas use tax was always payable where the user had acquired the
 property by retail purchase in or from another State, Unless he has paid
 sales or use tax elsewhere before bringing it to Washington. Challenge
                                                                               H
842            SUPREME COURT REPORTS                        [2016] 10 S.C.R.


A     was made on the ground that it violates the commerce class of the U.S.
      Constitution. Justice Cardozo held that the equality is a theme that runs
      through the above sections. Following are the reasons which were given
      for l'pholding the above compensating tax:

B
             "Equality is the theme that runs through all the sections
            of the statute. There shall he a tax upon the use, hut
            subject *to an offset !f another use or sales tax has
            been paid for the same thing. This is true where the
            offsetting tax hecame payable to Washington by reason
c           of purchase or use within the state. It is true in exact~y
            the same measure where the offsetting tax has been paid
            to another state hy reason of use or purchase there. No
            one who uses proper(y in Washington after buying it at
            retail is to be exempt from a tax upon the privilege of
D           enjoyment except to the extent that he has paid a use or
            sales tax somewhere. Every one who has paid a use or
            sales tax anywhere, or, more accurately, in any state, is
            to that extent to he exempt from the payment of another
            tax in Washington.

 E          When the account is made up, the stranger from afar is
            subject to no greater burdens as a consequence of
            ownership than the dweller within the gates. The one
            pays upon one activity or incident, and the other upon
            another, hut the sum is the same when the reckoning is
            closed. Equality exists when the chattel subjected to the
 F          use tax is bought in another state and then carried into
            Washington. It exists when the imported chattel is
            shipped.from the state of origin under an order received
            directly from the state of destination. In each situation
            the burden borne by the owner is balanced by an equal
G           burden where the sale is strictly local. "


             346. The contents of the compensatory tax doctrine were
      reiterated by the U.S. Supreme Court in Associated Industries Of
      Missouri, et al., V. Janette M. Lohman 128 L Ed 2d639. ln the above
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            843
                 [ASHOK BHUSHAN, J.]

cases State of Missouri imposed a unifom1 state-wide use tax on all         A
goods purchased outside the State and stored, used or consumed within
the State. The tax was purportedly designed to compensate for sales tax
imposed by local jurisdiction on sales of goods in the State. Local sales
tax varied very widely, on several occasions the use tax exceeded the
sales tax. The tax was challenged, as violating interstate commerce on      B
the gromd that it placed greater burden on interstate trade, referring to
judgment of Justice Cardozo in Silas Mason; Following was stated:


       ''Jn Silas Mason, Justice Cardozo was explicit in
      explaining for the Court that the compensat01y tax                    c
      doctrine requires precision to ensure that, upon the
      ''.reckoning" of "account(s)," the "sum" on the
      interstate side of the ledger is "the same" as that on the
      intrastate side. 300 US, at 584, 81 L Ed 814, 57 S Ct
      524. More recent~v. we have reiterated that strict parity             D
      is demanded by the co111pensat01y tax doctrine as we
      have explained that a compensatory tax leaves a
      consumer .free to make choices "without regard to the
      fox consequences"; !f he purchases within the State he
      may pay a tax, hut if he purchases from outside the State
      he will pay a "tax of the same amount. "                              E


      347. Another case which needs to be noted is Oregon Waste
Systems V. Department of Environmental Quality of the State of
Oregon 511 U.S. 93 (1994). The U.S. Supreme Court noticed that              F
compensatory tax doctrine has been recognised at least since 1869.
Following was stated by the U.S. Supreme Court:


       "At least since our .decision in Hinson V. Lott, 8 Wall.
       148 (1869), these principles have found expression in·               G
       the "compensatory'' or "complementary" tax doctrine.
       Though our cases sometimes discuss the concept of the
       compensatory tax as if it were a doctrine unto itself. it
       is merely a spec(fic way of just(fving a facially
                                                                            H
844           SUPREME COURT REPORTS                        [2016) 10 S.C.R.


A          discri111inatory tax as achieving a legitimate local
           purpose that cannot he achieved through non-
           discriminatory means. See Chemical Waste, supra, at
           346, 11. 9 (referring to the compensatory tax doctrine
           as a "justification" for a facially discriminatory tax).
B          Under that doctrine, a facially discriminatory tax that
           imposes on interstate commerce the rough equivalent
           of an identifiahle and "substantial~v similar" tax 011
           intrastate commerce does not offend the negative
           Commerce Clause. Maryland, supra, at 758-759. See
           also 1.J;ler Pipe Industries. Inc. v. Washington State Dept.
c          of Revenue, MANUIUSSC/005811987: 483 U.S. 232,
           242-243(1987); Armco, U.S .. AT 643.
           To just!fv a charge on interstate com111erce as a
           compensatory tax, a State must, as a threshold matter,
           "identify... the [intrastate tax] burdenfor which the State
D          is attempting to compensate. " Maryland, supra, at 758.
           Once that hurden has been identified, the tax 011
           interstate commerce must be shown roughly to
           approximate - hut not exceed - the amount of the tax
           on intrastate commerce. See. e.g.. Alaska v. Arctic Maid,
 E         MANUIUSSC/006211961 : 366 U.S. 199, 204-205
           (1961). Finally, the events on which the interstate and
           intrastate taxes are imposed must he "substantially
           equivalent"; that is. they must be sufficient~v similar in
           substance to serve as mutually exclusive "proxies" for
           each other. Ar111co, supra, at 643. As Justice Cardozo
 F
           explained for the Court in Henneford, under a truly
           compensatory tax scheme, "the stranger from afar is
           suhject to no greater burdens as a consequence of
           ownership than the dweller within the gates."

 G
             348. Another judgment which needs to be noted is Fulton
      Corporation V. Jenice H. Folkner, Secretary of Revenue of North
      Carolina 516 US 325, 133 L Ed 2d 796. For valid compensatory tax
      three conditions were noticed by the U.S. Supreme Court in following
      worcls:
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                                845
                       [ASHOK BHUSHAN, J.]

      "Since Silas Mason, our cases have distiled three conditions              A
      necessary for a valid compensatory tax. First, "a State
      must, as a threshold matter, 'identify ... the [intrastate tax]
      burden for which the State is attempting to compensate."'
      Oregon Waste, supra, at 103 .. 128 L Ed 2d 13, 114 S Ct
      1345 (quoting Maryland v Louisiana, 451US725, 758, 68 L                   B
      Ed 2d 576, 101 S Ct 2114 (1981 ). Second, "the tax on
      interstate commerce must be shown roughly to approximate-
      but not exceed-the amount of the tax on intrastate [516 US
      333] commerce." Oregon Waste, 511 US, at 1103, 128 L
      Ed 2d 13, 114 S Ct 1345. "Finally, the events on which the
      interstate and intrastate taxes are imposed must be                       c
      'substantially equivalent'; that is, they must be sufficiently
      similar in substance to serve as mutually exclusive 'proxies·
      for each other."

                                                                                D
       349. The above cases of Supreme Corn1 give different concept
of compensatory tax as compared to cases in Australia as well as in
Automobile Tramport. In U.S., The compensatory tax doctrine was
invoked to save facially discriminatory taxes imposed on interstate trade,
to make interstate commerce bear a burden already borne by intrastate
commerce. In Automobile Transport compensatory tax has been refen-ed            E
to a tax or charge to provide for trade facilities like construction of road,
bridges etc. which was treated as recompense to the traders who were
required to pay tax.
       350. Law of compensatory charge as developed in Australia was
due to the fact that Section 92 did not contain any qualification to the        F
absolute freedom of trade and commerce granted therein. Various
qualifications and restrictions to the above freedom were culled out by
judicial decisions of the High Court of Australia and Privy Council to
justify the said qualifications and restrictions. The ratio contained in
various judgments of the High Court of Australia and the Privy Council          G
on Section 92 of the Constitution of Australia cannot be a guiding factor
for interpreting Part XIII of the Constitution of India.
     3 51. The Constitution Bench of this Court in State ofBombay v.
R.M.D. Chamarbaugwala and another, AIR 1957 SC 699 had
                                                                                H
846            SUPREME COURT REPORTS                      [2016] J.() S.C.R.


A     sounded a caution in paragraph 35:


            "35. In construing the provisions of our Constitution
            the decisions of the American Supreme Court on the
            commerce clause and the decisions of the Australian
B
            High Court and of the Privy Council on Section 92 of
            the Australian Constitution should, for reasons pointed
            out hy this Court in State of Travancore-Cochin v.
            Bombay Co. Ltd. he used with caution and
            circumspection. Our Constitution differs from hoth
c           American and Australian Constitutions. There is nothing
            in the American Constitution corresponding to our
            Article 19(l)(g) or Article 301.
            In the United States the problem was that if gambling
            did not come within the commerce clause, then neither
D           the Congress nor any State Legislature could interfere
            with or regulate inter- State gambling. Our Constitution,
            however, has provided adequate safeguards in clause
            (6) of Article 19 and in Articles 302-305. The scheme
            of the Australian Constitution also is different from that
E           of ours, for in the Australian Constitution there is no
            such provision as we have in Article 19(6) or Articles
            302-304 of our Constitution.
            The provision of Section 92 of the Australian
            Constitution heing in terms unlimited and unqualified
F           the judicial authorities interpreting the same had to
            import certain restrictions and limitations dictated hy
            common sense and the exigencies of modern society.
            This they did, in some cases, hy holding that certain
            activities did not amount to trade, commerce or
            intercourse and, in other cases, by appZving the doctrine
G           of pith and substance and holding that the impugned
            law was not a law with respect to trade, commerce or
            intercourse.
            The difficulty which faced the judicial authorities
            interpreting Section 92 of the Australian Constitution
H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                            847
                 [ASHOK BHUSHAN, J.]

      cannot arise 11nder our Constitution, for our                         A
      Constitution did not stop at declaring by Article 19(J)(g)
      a fimdamental right to cany on trade or business or at
      declaring hy Article 301 the freedom of trade, commerce
      and intercourse but proceeded to make provision by
      Article 19(6) and Articles 302-305 for imposing in the                B
      interest of the general public reasonable restrictions on
      the exercise of the rights guaranteed and declared by
      Article 19(l)(g) and Article 301."


      352. Hidayatullah, J. in Automobile Transport itself held that the    c
technique justifying laws as regulatory as evolved in Australia is not
applicable while interpreting Article 301 of Constitution. Following
observations were made by Hidayatullah, J. at page 639:

                                                                            D
      "The techniq11e ofjustifying laws as regulatory was
      evolved in Australia in view of the intractable language
      of s. 92 without any indication of the circumstances in
      which the absolute freedom could he curtailed. The
      detailed provisions contained in Part XJll render such
      a construction of Art. 301 at once unnecessary and                    E
      impermissible. "


       353. Gajendragadkar, J. inKhyerbari Tea Company Ltd.(s11pra)
had also expressed opinion that compensatory or regulatory tax theory
                                                                            F
as introduced in the Australian decisions is not to be made applicable in
Part XIII. Following· was observed:


       "The majori~v view in the Atiabari case proceeded on
      the hasis that the Australian decisions which dealt with              G
      the scope and effect of s. 92 of the A11stralian Constitution
      would he of no assistance in constructing the effect of
      the provisions in Part Xlll of our Constit11tion, because
      the legislative, historical and political background, the
      structure and the effect of the relevant provisions                   H
848            SUPREME COURT REPORTS                         [2016] 10 S.C.K


A           contained in Part XIII were in material particulars
            different from those of s. 92 of the Australian
             Constitution; s. 92 is absolute in terms and on its literal
            construction, admits of no exceptions. The Australian
            decisions, therefore, had to introduce distinctions, such
B           as compe11sato1y or regulatory tax laws in order to take
            laws answering the said description out of the purview
            o{ s. 92. Jn our Constitution, howeve1; though Art. 301
            is 1rnrded suhstantial(v in the same way ass. 92, Art.302
            and 304 provide for reasonahle restrictions being
            imposed 011 the freedom of. trade subject to the
c           requirements of the said two Articles, and so, the problem
            facing of the said two Articles, and so, the problem
            facing judicial decisions in Australia and in this cou1111y
             in regard to the freedom of trade and the restrictions
             which it may he per111issihle to impose on it, is not exactly
D            the same."


              354. The answer to the question as to whether a compensatory
      tax is out ofreach of Article 30 I has to be found out from the Scheme of
      Part XIII of the Constitution itself and not from the theory of
E     compensatory charge as evolved in Australia or United States of America.
      Two fundamental principles of taxes are:


            (i) that it is an imposition made for public purpose,
 r          (ii) without reference to any special benefit to be confeJTed on
                the payer of the tax.


             355. The compensatory doctrine evolved in Automobile Transport
      is that compensatory tax is to compensate for facility extended, for
G
      example, wear and tear of the Road. The compensatory tax can be
      imposed only for public purpose which fact is not denied by any of the
      parties before us. Can it be said that a tax which is a compensatory in
      nature need not to be subject to restriction as contained in part Xlll? lf
      it is accepted that once a tax is held compensatory tax it goes out of
 H
        JINDAL STAINLESS LTD. v. STATE OF HARYANA                              849
                  [ASHOK BHUSHAN, J.]

reach of Part XIII, it will be carving a new exception to Article_ 301 A
which is not contemplated in the constitutional scheme. The framers of
the Constitution after providing for freedom of trade, commerce and
intercourse in Article 301 laid down exceptions to the said freedom in
Article 302 to 306. The exceptions laid down in the constitutional scheme
are self-contained and no new exception can be added by judicial B
interpretation. Can a compensatory tax not impede trade, commerce
and intercourse even if it is a non-discriminatory tax? We take an example
to illustrate the point. Entry Tax is imposed on vehicles carrying goods
in a local area to the extent of 50% of the value of goods, the statute
further declares that entire amount received from tax will be expended
for providing facilities to the entrants in the local area, i.e., on roads, c
lights, free footling, free lodging, facility for free servicing, repairs of the
vehicles, etc.etc. Can the mere fact that entire amount collected is
expended for providing facilities shall take out the statute from the scrntiny
of Pati Xlll ? Answer has to be in negative. The fact that a tax statute
compensates the payer of the tax does not take out the statute beyond D
Part Xlll, all taxes, being for one or other public purposes. The tax
legislation which professes to compensate the payer cannot take the tax
legislation on a higher pedestal beyond the reach of Part Xlll, making
 such legislation "not subject to Constitution". When all legislative power
is "subject to Constitution" as per Article 245 and 246 of the Constitution,
                                                                                 E
a legislation, namely, compensatory tax legislation cannot be said to be
 beyond Part Xlll. Any such interpretation is clearly against the
 constitutional scheme.
       356. Thus the judgments of the High Co mi of Australia and the
Privy Council relied in Automobile Transport did not furnish a foundation
for evaluation of compensatory tax theory in part Xlll of the Constitution.
                                                                                F

       357. The scheme of Constitution oflndia indicates that wherever
it was contemplated to insulate any provision from challenge, expressed
provisions have been made to provide for such insulation. Article 31 B is
one of such examples which provides that none of the Acts and
                                                                                G
Regulations specified in IXth Schedule shall be deemed to be void or
ever to have become void on the ground of such Act, Regulation or
provision is inconsistent with or takes away or abridges any of the rights
conferred by Part lll. The Constitutional Scheme as delineated by Part
Xlll does not indicate that a particular type of legislation, i.e.,
                                                                               H
850            SUPREME COURT REPORTS                          [2016] I0 S.C.R.



A     compensatory tax is out of Paii X llJ. Reading any such protection to
      compensatory tax legislation is against the constitutional provision. We,
      thus, are of the opinion that the compensatory theory as evolved in
      Automobile Transport (rnpra) is not compatible to the constitutional
      scheme and a compensatory tax legislation cannot be insulated from
 B
      challenge under Part Xl!I of the Constitution.
          358. We may, however. observe that it is always open to scrutinize
   the true nature and character of legislation to decipher as to whether it
   contains any restriction on freedom of trade, commerce and intercourse
   violatingArticle 30 I. A legislation which is compensatory in nature may
 c shed light while determining whether it contains restriction on trade.
   commerce and intercourse or facilitate the trade. commerce and
   intercourse. But all legislations be it a compensatory tax legislation or
   otherwise has to be tested in accordance with provisions of Part XIII of
   the Constitution. The ratio of judgment of Automobile Transport is
   overruled in so far as it lays down that the compensatory tax legislations
 D are out of part Xlll of the Constitution.


                                       PARTV
                            "OUR CONCLUSIONS"
 E
             I. All legislative powers of the State are "subject to the
      Constitution" as per article 245 of the Constitution of India. Legislative
      power of the State is also subject to the limitation as provided in Part
      XIII of the Constitution.
            2. Pa1i XUl of the Constitution covers tax legislation which restrict
 F
      freedom of trade, commerce and intercourse.
            3. Word 'restriction' as used in Pan XIII as well as in Article
      304(b) of the Constitution includes tax legislation also.
              4. For enabling a State to make a law under Article 304(a) following
 G    two pre-conditions which are independent of each other have to be
      satisfied:-
             (i) It may impose on goods imported from other States or the
                Union Territory any tnx to which similar goods manufactured
                or produced in that State are subject.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                              851
                 [ASHOK BHUSHAN, J.)

      (ii) So, however, as not to discriminate between goods so imported      A
          and goods so manufactured and produced.
       5. Word "and" between Clause( a) and Clause(b) of Article 304
has to be read as joint and several. Both the meaning can be assigned,
as per requirement of State legislation.
                                                                              B
       6. A law made by State legislature exercising the power under
Clause( a) in Article 304, which does not impose any restriction on the
freedom of trade, commerce and intercourse need not comply with Article
304(b), however, a Jaw even though complying with Article 304(a)
containing restriction on freedom of trade, commerce and intercourse is
to obtain sanction of the President, as contemplated by proviso to            c
Clause(b ). The requirement of obtaining the previous sanction of the
president has to be decided in accordance with the nature and content
of the State Legislation.         ·
       7. The proviso of A1ticle 304(b) is part of Constitutional Scheme
which is neither against the federal structure of the Constitution nor        D
affects the State's sovereignty.
      8. Word 'restriction' used in Article 304(b) is wide enough to
include restrictions placed both by fiscal or non-fiscal law.
      9. State Legislature in exercise of its taxing power can grant
                                                                              E
exemption\set off to locally produced and manufactured goods only to a
limited extent based on intelligible differentia which is not in nature of
general\unspecified exemption.
       10. The ratio of judgment of Video Electro11ics(s11pra) has to be
read as justifying only exemption limited to specified category for a short
                                                                              F
period. Exemption in general terms for unlimited period cannot be
approved. Any exemption can not be used as measure of discrimination
between goods imported from other States and goods manufactured or
produced in the State.
       11. A law passed by State Legislature imposing tax only on the
                                                                              G
imported goods coming from other States and Union Territories and there
being no similar tax imposed to the locally produced\manufactured goods,
the law is not saved by Article 304(a) and violates Atticle 301.
      12. A Jaw imposing tax on goods imported from other States and
Union TelTitories, facially taxing goods locally manufactured and produced
                                                                              H
852            SUPREME COLRT REPORTS                        [2016] I 0 S.C.R.


A     but granting set off\excmption in general terms is discriminatory and
      violates A1ticle 30 I.
             13. What have been expressly prohibited under Article 302, 303
      and 304 are restrictions in the freedom of trade and commerce violating
      A1ticle 30 I. A law containing restriction impeding freedom oftrndc and
 B    commerce and intercourse which is not saved by Article 302, 303 and
      304 violates A1ticle 30 I.
             14. The compensatory tax theory as judicially evolved in
      Automobile Tmmport is not compatible with the Constitutional provisions
      contained in Patt Xlll. The ratio in judgment of this Coutt in Automobile
C     Transport to the extent that the legislation which is compensatory in
      nature is out of Article 30 l, cannot be approved and is overruled
            15. All legislation. including a compensatory or regulatory has to
      be examined in accordance with Constitutional Scheme. as contained in
      Pait Xlll of the Constitution. The nature and content of legislatioi1 at
 D    best may shed light on the aspect as to whether it impede/restrict the
      freedom of trade, commerce and intercourse or facilitate the same.


                                     PART VI
 E                               OUR ANSWERS
      QUESTION NO.l
           Levy of a non-discriminatory tax may constitute infraction of
    Article 30 l of the Constitution of India if it impedes the freedom of
    trade, commerce and intercourse. All taxes which contain restrictions to
 F. trade, commerce and intercourse, discriminatory or non-discriminatory
    infringe A1ticle 30 I unless they are saved under Article 302- 304.


      Question N0.2 and Question No.3
 G            The compensatory tax theory as judicially evolved in Automobile
      Tramport is not compatible to constitutional scheme as delineated by
      Part Xlll of the Constitution. The Automobile Transport case in so far
      as it lays down that compensatory taxes are out of the reach of Article
      30 l cannot be approved.
 H
       JINDAL STAINLESS LTD. v. STATE OF HARYANA                             853
                       [ASHOK BHUSHAN, J.]

       The nature and content of taxation at best may throw light on the     A
aspect as to whether it contains restriction on freedom of trade, commerce
and intercourse. The compensatory tax theory being not compatible with
the Constitution, it is not necessary to answer Question No.3.


                                                                             B
Question No.4
       To find out as to whether Entry l~1x levied by different States in
the present batch of cases violates Article 30 l of the Constitution, each
statute has to be looked into and examined as per our discussions and
conclusions as above.
                                                                             c
       A law made by State Legislature complying clause( a) of Article
304 and not containing any restriction on the freedom of trade, ccimmerce
and intercourse need not comply Article 304(b). However, a law even
though complies with Article 304(a)but contains restrictions on freedom
of trade, commerce and intercourse has to be routed through proviso to
                                                                             D
clause (b) of Article 304 of the Constitution. The compliance of Article
304(b) proviso whether required or not shall depend on the nature and
content of the State legislation.


       Answer to incidental g uestions.                                      E
      ( l) Levy of taxes is an attribute of a sovereign State as per
Constitutional scheme and limited to the extent as provided in the
Constitution.
       (2) Article 245 read with Article 246 recognises the exclusive
                                                                             F
power of the State to make laws including law oflevying taxes on subject
matter enumerated in List II of VI!th Schedule in accordance with
limitations and restrictions contained in the Constitution of India.
       (3) The power to make law and levy taxes reserved in favour of
the State under Article 246 read with List II ofV!lth Schedule is subject
                                                                             G
to Part XIII of the Constitution. Article 245 has to be read along with
Article 246 for finding out the source of the legislative power.
       (4) Part XIII (including Article 30 l) of the Constitution to which
legislative power of State is subject, does not have effect of denuding
any sovereign power of the State or effecting the federal structure of
                                                                             H
854             SUPREME COURT REPORTS                          (2016] 10 S.C.R.



A     the Constitution.
            (5) The levy of taxes is presumed to be in public interest.
              (6) Levy of taxes which may be presumed to be in public interest
      still has to comply with Part Xlll of the Constitution for it to be justified
      as reasonable restriction.
B
             (7) Imposition ofrestriction by way of tax legislation under Article
      304(b) is paii of constitutional scheme and Presidential sanction has
      been provided to keep a check on the legislative power of the State
      impeding freedom of trade, commerce and intercourse. All legislative
      powers under the Constitution are subject to judicial review and the
 c    mere fact that a legislation passed under Article 304(b) is also subject to
      judicial review, in no manner, militants against the Constitutional scheme.
             (8) There is no question of affecting the separation of power
      between the Legislature and judiciary on the ground that levy of taxes
      under Article 304(b) which contains restriction to the freedom of trade,
 D
      commerce and intercourse have to be routed through the President of
      India as per the Constitutional scheme. The Constitution contains large
      number of provisions including A11icle 304(b) where a State legislation is
      subject to Presidential sanction which provisions are in accordance with
      the Constitutional scheme and does not affect the separation of power
 E    between the Legislature and judiciary. Article 304(b) enables the State
      Legislature to frame legislations containing restriction on freedom of
      trade, commerce and intercourse after routing the legislation through
      proviso to Article 304(b). The question of judicial review arises only
      when there is challenge to such legislation. Judicial review of such
 F    legislation in no manner affects the separation of power.
             (9) The compensatory tax theory as propounded in A11tomobile
      Transport is not compatible with the Constitutional scheme as delineated
      in the Part Xlll of the Constitution. Framers of the Constitution have
      provided for all exceptions under which freedom of trade, commerce
 G    and intercourse guaranteed under Article 30 I can be overridden, the
      compensatory tax not being included as one of the exceptions, the same
      cannot be added as an exception by any judicial interpretation. The
      compensatory tax theory brings dichotomy which is inconsistent with
      the language employed in Article 30 I.

 H
 JINDAL STAINLESS LTD. v. STATE OF HARYANA                                  855



                          ORDER                                             A
By majority the CoU11 answers the reference in the following terms:
I. Taxes simpliciter are not within the contemplation of Pat1 XIII
   of the Constitution of India. The word 'Free' used in A1ticle
   30 I does not mean "free from taxation".
                                                                            B
2. Only such taxes as arc discriminatory in nature arc prohibited
   by A11iclc 304(a). It follows that levy of a non-discriminatory
   tax would not constitute an infraction of Article 30 J.
3. Clauses (a) and (b) of Article 304 have to be read disjunctively.
4. A levy that violates 304(a) cannot be sawd even if the procedure         c
   under Article 304(b) or the proviso there under is satisfied.
5. The compensatory tax theory evolved in Automobile Tramport
   case and subsequently modified in Jindal '.5 case has no juristic
   basis and is therefore rejected.
                                                                            D
6. Decisions of this Cou11 in Atiabari. A11to111obile Tramport
   a11d Jindal cases (supra) and all other judgments that follow
   these pronouncements are to the extent of such reliance over
   ruled.
7. A tax on entry of goods into a local area for use, sale or               E
   consumption therein is permissible although similar goods are
   not produced within the taxing state.
8. A11icle 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        F
   of dealers for a limited period of time in a non-hostile fashion
   with a view to developing economically backward areas would
   not violate Article 304(a). The question whether the ievies in
   the present case indeed satisfy this test is left to be determined
   by the regular benches hearing the matters.
                                                                            G
9. States are well within their right to design their fiscal legislations
   to ensure that the tax burden on goods im po11ed from other
   States and goods produced within the State fall equally. Such
   measures if taken would not contravene A1ticle 304(a) of the
   Constitution. The question whether the levies in the present
                                                                            H




           /'
856              SUPREME COUKf REPORTS                       [2016] 10 S.C.R.



A               case indeed satisfy this test is left to be determined by the
                regular benches hearing the matters.
              10. 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
 B              detennined in appropriate proceedings.


      Devika Gujral                                      Referred question answered.