Holding

The amendment and retrospective notification are valid without presidential assent, the tax is compensatory, and industrial areas are included within the definition of "local area".

Summary

The case concerned the Karnataka Tax on Entry of Goods Act, 1979 and its amendment in 1993 which inserted the words "retrospectively or prospectively" in Section 3(1). The petitioners challenged the validity of the amendment for lack of the President's assent under Article 304(b) of the Constitution, and also questioned the retrospective notification of 23 September 1998 and the exclusion of industrial areas from the definition of "local area". The Supreme Court held that the amendment did not require presidential sanction because the tax is compensatory/regulatory, not a restriction on free trade, and the addition of the words does not make the provision restrictive under Article 301. The retrospective notification was valid as it merely validated earlier levies after correcting defects, and it was not discriminatory. The Court also clarified that industrial areas remain part of municipal or panchayat jurisdictions and therefore fall within the definition of "local area". Consequently, all appeals were dismissed.

Issues considered

The amendment of Section 3(1) of the Karnataka Tax on Entry of Goods Act, 1979 to include "retrospectively or prospectively" requires the President's assent under Article 304(b).
Whether the retrospective notification of 23 September 1998 levying tax for the period 1 April 1994 to 6 January 1998 is constitutionally valid.
Whether the entry tax is compensatory/regulatory in nature and thus exempt from the restrictions of Article 301 and the requirement of presidential sanction.
Whether industrial areas declared under the Karnataka Industrial Areas Development Act, 1966 are excluded from the definition of "local area" under Section 2(A)(5) of the Tax Act.

Legislation cited

Constitution of Indias. Article 301, s. Article 304, s. Article 304(b)
Karnataka Industrial Areas Development Act, 1966s. Section 3
Karnataka Sales Tax Act, 1957

Subjects

entry taxretrospective legislationpresidential assentArticle 304(b)compensatory taxindustrial arealocal areafree tradeKarnataka

Judgment

A M/S. WIDIA (INDIA) LTD. AND ORS.
v.
THE STATE OF KARNA TAKA AND ORS.

AU(JUST 21, 2003

B [M.B. SHAH AND DR. AR. LAKSHMANAN, JJ.]

Karnataka Tax on Entry of Goods Ayt, I979 (as amended):

Section 3-Amendment of section 3 of I979 Act by Act No. 8 of 1993
C empowering imposition of tax on entry ofgoods retrospectively or prospectively
by State Government by notification on different dates-However sanction of
the President not obtained-Constitutional validity of-Held: levy of tax
retrospectively or prospectively in section 3(1) would not make the section
restrictive which can be hit by Article 301 requiring sanction of President
D under Article 304(b)-However subsequent notification issued may in some
cases amount to restriction to free trade and commerce-Furthermore, once
it is conceded that the imposition of tax is compensatory or regulatory in
nature, sanction of the President under Article 304(b) is not required-
Constitution of India, I950-Articles 301 and 304(b) proviso.

E Section 3(/)-Notification of 23.9. 1998 empowering the authority to
levy and collect tax from 1.4. 1994 to 6. 1.1998 after removing the defects
pointed out in previous notifications of 30.3.1994 and 31.3.1997-
Constitutional validity of-Held: Normally State Government in exercise of
its powers under Section 3(1) would not levy tax with retrospective effect but
F it can do the same to validate the tax levied earlier by removing the defects
pointed out by the previous decision and it cannot be said that it has acted
beyond its jurisdiction.

Section 2(A)(5)-Karnataka Industrial Areas Development Act, 1966-
Section 3-.lndustrial area declared under Section 3-Whether covered under
G local area under Section 2(A)(5)--Held: Such area does not cease to be part
of municipal corporation'or area of municipality or panchayat-:- Hence
covered by the definition of 'local area' under Section 2(A)(5) of the Act.

The constitutional validity of the Karnataka Tax on Entry of Goods into
Local Areas for Consumption, Use or Sale Therein Act, 1979 and also the
H 822
WIDIA(INDIA) LTD. v. STATE 823
notifications issued under Section 3 of the Act were challenged. This Court A
in Hansa Corporation's case held that the Act having received the assent of
the President was saved by Article 304 and could not be struck down on the

... ground of being violative of Article 301. Later on the Act was amended and
named as Karnataka Tax on Entry of Goods Act, 1979. Section 3 of the Act
empowered the State Government to levy entry tax on goods by issuing B
notification. Section 3 was amended by Act No. 8of1993 whereby for words
'by the State Government by notification from time to time', words
'retrospectively or prospectively by the State Government tiy notification and
different dates' were substituted. Governor's assent was obtained but not the
assent of the President. Thereafter Act No. 45 of 1994 was enacted after
obtaining assent of the President and also Act No. 3 of 1995. C
Government ofKarnataka issued a notification levying tax on the entry
of goods brought into local area from any place outside the State for
consumption and use therein. The notification was challenged and during
pendency of the writ petitions, the said notification was amended and for the D
words 'from any place outside the State for consumption or use' the words
'where such entry is for consumption or use of such goods and such goods
have not suffered tax under the Karnataka Sales Tax Act, 1957' was
substituted. This notification was also challenged. High Court held that the
levy of tax on entry of goods was compensatory in nature and not restrictive
requiring any previous sanction or assent of the President and hence not E
illegal for want of assent; and that the notifications were discriminatory and
ultra vires. Thereafter, appeals were filed. Since the above notifications were
already superseded by notifications of7.l.1998 and 23.9.1998 which were
retrospective in character, State's appeal became infructuous. In the other
appeal this Court set aside the High Court's order that the entry tax was p
compensatory in nature and granted liberty to the High Court to examine the
question afresh while deciding the writ petition filed challenging the
subsequent notifications. The subsequent notification of7.1.1998 provided rate
of tax on entry of goods into a local area for consumption, use or sale therein
which was brought in consonance with the judgment of High Court and G
remained in force from 7.1.1998 to 31.3.1998. On 31.3.1998 another
notification was issued providing levy of tax on entry of goods into local area
for consumption, use or sale therein being prospective in operation.
Notification of 23.9.1998 prescribed different rates of taxes for goods
enumerated in the table which was effective for the period from 1.4.1994 to
6.1.1998. These notifications were challenged. Single Judge of High Court H
824 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A dismissed the petition~, Appellant-dealers filed appeals. They contended that
Act No. 8of1993 was unconstitutional and void as the assent of the President
was not obtained before enacting the same. High Court held that assent would
be deemed to be given to Act of 1993 when assent was given to the subsequent
Act of 1994 and of 1995. Hence the present appeals.
B Appellants contended that amending Act No. 8of1993 by which words
'retrospectively or prospectively' are added requires sanction of the President
as contemplated under Article 304(b); that the notification of 23.9.1998
empowering the authority to levy and collect tax from 1.4.1994 upto 6.1.1998
without prior sanction of the President is illegal and void; that there was no
C notification levying tax on entry of goods for a period from l.4.1994 to
6.1.1998 as the previous notifications' were held to be illegal and void; that
such power could not be exercised by the delegated authority, namely, the State
Government; and that most of the appellants in the appeals fall within the limit
of industrial area as declared under Section 3 of the Karnataka Industrial
D Areas Development Act, 1966 and would not be covered by the definition of
'local area' provided under Section 2(A)(5) of the Act.

Respondent contended that the retrospective effect is given after
removing the defects pointed out by the High Court and to validate the levy of
entry tax.
E
Dismissing the appeals, the Court

HELD: 1. It cannot be said that the sanction of the President was required
to be obtained before amending section 3 of the Karnataka Tax on Entry of
Goods Act, 1979 by the amending Act No. 8of1993, whereby for the words
F "by the State Government, by notification from time to time", the words
"retrospectively or prospectively by the State Government by notification and
different dates" were substituted as it was not contended that levy of tax on
goods by the impugned notification discriminates between the goods imported
from other States and similar goods manufactured or produced within the
G State. Addition of words 'retrospectively or prospectively in Section 3(1) would
not make the Section restrictive which can be hit by Article 301 of the
Constitution nor the said part of the legislation could be held to be
discriminatory. A subsequent notification issued in exercise of the powers
conferred under the said Section may in some case amount to restriction to
free trade and commerce but simplicitor addition of the words 'retrospectively
H
WIDIA (INDIA) LTD. v. ST ATE 825
or prospectively' would not require sanction of the President as contemplated
under Article 304(b). Furthermore, once it is conceded that the imposition A
tax was compensatory or regulatory in nature, there is no question of obtaining
sanction of the President under proviso to Article 304(b) of the Constitution.
(836-D-G(

State of Karna/aka and another v. Mis. Hansa Corporation (1980( 4
SCC 697; State of Himachal Pradesh and Ors. v. Yash Pal Garg (dead) by B
Lrs. and Ors. JT (2003) 4 SC 413, referred to.

Kaiser-I-Hind Pvt. Ltd. and Anr. v. National Textile Corporation
(Maharashtra North) Ltd. and Ors. (2002( 8 SCC 182, di~tinguished.

2. It is true that normally tax would not be levied with retrospective effect C
but at the same time to validate the tax which was levied, after removing the
defects pointed out by the previous decision, the State Government could
exercise its powers under Section 3(1) of the Act and it cannot be said that it
has acted beyond its jurisdiction. In the instant case, the notifications levying
... tax were held to be illegal, and for validating such levy, the State Government D
has issued the aforesaid notification. It removed the defects pointed out by the
High Court and therefore, it cannot be held that notification of 23.9.1998
empowering the authority to levy and collect tax w.e.f. 1.4.1994 to 6.1.1998
is, in any way, illegal or erroneous. Furthermore it is not pointed out that the
said notification is discriminatory between the goods imported from other
States and similar goods manufactured or produced within the State. E
(837-F-H; 838-A(

Rattan Lal & Co. v. Assessing Authority (1969) 2 SCR 544; Video
Electronics Pvt. Ltd. and Anr. v. State of Punjab and Anr. (1990) 3 SCC 87;
V. Guruviah Naidu and Sons v. State of Tamil Nadu [1977( l SCC 234; Sharma
Transport v. Government of A.P. and Ors.(2002( 2 SCC 188 and Avinyl F
Polymers Pvt. Ltd. etc. v. The State of Karnataka and Ors., (1998) 109 STC
26, referred to.

2. The 'industrial area' is either within the area of Municipal
Corporation or within the area of municipal limits or Panchayat limits. The G
establishment of industrial areas is for limited purpose and Sect.ion 3 of the
.. Karnataka Industrial Areas Development Act, 1966 specifically provides that
the State Government may by notification declare any area to be an industrial
area for the purposes of the said Act. But, it is nowhere provided that the said
area would cease to be part and parcel of either municipal corporation or the
area of municipality or panchayat. Therefore, it cannot be said that as the H
826 SUPREME COURT REPORTS. [2003) SUPP. 2 S.C.R.

A appellants fall within the limit of industrial area under the section, they would
not be covered by the definition of 'local area' under Section 2(A)(5) of the
Act. (838-A, B; 833-El

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1366-74 of200 I.

B From the Judgment and Order dated 18.10.2000 of the Kamtaka High
Court in W.A.Nos. 1819/99, 1160, 1161, 1746, 1291, 1290 13,14 and 2655 of
2000.
WITH
C.A.Nos. 1375-82, 2511-14, 2771, 3279, 3760-62, 4761-64, 5595, 7535/
C 2001, 645-647, 1911, 2183-84, 2552, 2730, 4148-49, 5095, 5853-54, 8098-8100 of
2002.

Bhaskar P. Gupta, A.N. Haksar, T.L. Iyer, Dhruv Agarwal, R.V. Prasad,
Praveen Kumar, Satyanarayana, N.D.B. Raju Ms. Bharathi R., Guntur
Prabhakar, D. Venkatesh, Ms. A. Rama, Rajeev M. Roy, Rajeev K. Virmani,
D Ms. Rashmi Virmani, E.C. Vidyasagar, Sanjay Kunur, Ramlal Roy, Narayan N.
Keshwani, Pratap Venugopal, P.S. Sudheer, Ms. Shalini Gupta, Ms. Revathy
Raghavan, Ms. Sarpana Raj, Sanjay R. Hegde and Satya Mitra for the
appearing parties.

The Judgment of the Court was delivered by
E
SHAH, J. The levy of entry tax on goods by the State of Karnataka
has chequered history· and the State had to face various litigations on this
score. The constitutional validity of Karnataka Tax on Entry of Goods into
Local Areas for Consumption, Use or Sale Therein Act, 1979 (hereinafier
F referred to as 'the Act') and the notifications issued by the State Government
in exercise of its powers conferred by Section 3 of the said Act were
challenged before the High Court by filing writ petitions under Article 226
of the Constitution. The Act and the notifications issued thereunder were
declared unconstitutional and mandamus was is'sued directing the State
Government and its officers to forebear from enforcing the provisions of the
G Act. Against that judgment and order, the State Government preferred appeal
before this Court. This Court in State of Karnataka and Anr v. Mis Hansa
Corporation, [ 1980] 4 SCC 697 set aside the order passed by the High
Court striking down the Act.
The Court negatived the contention that Section 3 of the Act was
H vague. The Court also held that it was settled law that if the tax is
WIDIA (INDIA) LTD. v. STATE [SHAH, J.] 827

compensatory in character, it would be immune from challenge under Article A
30 I of Constitution of India; if on the other hand, the tax is not shown to be
, compensatory in character, it would be necessary for the party seeking to
sustain the validity of the tax law to show that the requirements of Article
304 have been satisfied. The Court also held that the levy of tax by the
notification at the relevant time was not discriminatory in character as B
envisaged by Article 304(a) and it does not impose restrictions. The Court
further held that the restrictions imposed are reasonable and in public interest
and the Act subsequently having received the assent of the President, proviso
to Article 304(b) is complied with and, therefore, the Act was saved by Article
304 and could not be struck down on the ground of its being violative of
Article 30 I. C
The title of the aforesaid Act was amended in 1992 and it was named
as 'The Kamataka Tax on Entry of Goods Act, 1979'. Section 3 of the Act
empowers the State Government to levy tax by issuing notification on the
entry of any goods specified in the Schedule into a local area for consumption, D
use or sale therein. At present, Sub-section (I) of Section 3 reads as under:-

"3. Levy ofTax.-{1) There shall be levied and collected a tax on
entry of any goods specified in the First Schedule into a local area
for consumption, use or sale therein, at such rates not exceeding five
per cent of the value of the goods as may be specified "retrospectively E
or prospectively" by the State Government by Notification, and
different dates and different rates may be specified in respect of
different goods or different classes of goods or different local areas."

The controversy in these appeals centers round the addition of the F
word 'retrospectively'. Section 3 was amended by amending Act No.8 of 1993,
namely, the Kamataka Tax on Entry of Goods (Second Amendment) Act, 1992,
whereby for the words "by the State Government, by notification from time
to time", the words "retrospectively or prospectively by the State Government
by notification and different dates" were substituted. The amending Act was
passed by the State legislature after obtaining the assent of the Governor on G
I Ith February, 1993 but the assent of the President was not obtained and that
is the only surviving challenge in these appeals.

Thereafter, Karnataka Act No.45 of 1994, namely, the Kamataka Tax on
Entry of Goods (Amendment) Act, 1994 was enacted after obtaining the H
assent of the President on 19.10.1994. Again, the said Act was amended by
828 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A Kamataka Act No.3 of 1995, namely, the Karnataka Tax on Entry of Goods
(Amendmeht) Act, 1992 after obtaining the assent of the President on 6.9.1994.

The Government of Karnataka in exercise of its power under Section
3(1) of the Act brought out notification dated 30.3.1994, which came into
effect on 1st April, 1994, levying tax on the entry of goods brought into a local-
B area from any place outside the State for consumption and use therein, at the
rate of taxes as specified against the goods stipulated in the table appended
thereto.

Several assessees filed writ petitions challenging the said notification.
C Pending writ petitions, Government of Karnataka in exercise of its p<'wer
under Section 3(1) of the Act read with Section 21 of the Mysore General
Clauses Act, 1899, by issuing Notification No.FD-109-CET-97(8) dated 31st
March, 1997, amended the notification dated March 30, 1994 by substituting
for the words "from any place outside the State for consumption or use", the
words "where such entry is for consumption or use of such goods and where
D such goods have not suffered tax under the Kamataka Sales Tax Act, 1957"
with effect from 1st April, 1994.

The said notification was also challenged by filing interlocutory
applications in pending writ petitions. Thereafter, the Division Bench of the
High Court, by its judgment dated 4th August, 1997 in Avinyl Polymers Pvt.
E Ltd. etc. v. The State of Karnataka and Ors., (1998) 109 STC 26 quashed both
the notifications, namely, notification dated 30th March, 1994 and notification
dated· 31st March, 1997. The High Court arrived at the conclusion that the
levy of tax on entry of goods was compensatory in nature and not restrictive
requiring any previous sanctjon or assent of the President of India and,
F therefore, the said Act cannot be held to be illegal for want of President's
assent. However, the Court arrived at the conclusion that the notifications
were discriminatory for the reasons recorded therein and it was also held that
the authority exceeded its powers conferred under Section 3(1) of the Act
and, therefore, the said notifications were ultra vires.

G The said judgment and order was challenged before this Court and the
Court finally passed the following order:-

"C.A. No.3958 of 1998 and Nos.1819-1848 of 2000 be de linked and
listed separately.

Leave granted in S.L.P. (C) No.134 of I 998.
H
WIDIA(INDIA) LTD. v. STATE [SHAH,J.] 829
Counsel for the parties agree that the appeals filed by the State A
of Karnataka have become infructuous. These appeals arise out of
judgment of the Karnataka High Court before whom the respondents
had challenged the notification dated March 30, 1994 and the
amendment made on March 31, 1997 pertaining to entry tax. The said
notification was quashed but while quashing the same the High Court B
had accepted the contention of the State of Karnataka that the entry
tax was compensatory in nature.

We are now infonned that the aforesaid notifications on March 30,
1994 and March 31, 1997 have been superseded by notification dated
January 7, 1998 and notification on September 23, 1998, which are C
retrospective in character. The later notifications are subject-matter of
challenge before the Karnataka High Court. As far as the State of
Karnataka is concerned, it is not seeking to realise any tax under the
earlier notification dated March, 30, 1994 and March 31, 1997.

This being so, the appeals filed by the State of Karnataka have D
become academic and nothing more survives.

As far as the appeals filed by the respondents are concerned, the
same relate to the finding of the High Court to the effect that the entry
tax was compensatory in nature. Le~rned Advocate-General agrees
that without going into the merits this finding may be set aside and E
the High Court will be at liberty to go into this question afresh while
deciding the writ petition which have been filed challenging the
subsequent notifications.

Ordered accordingly. The High Court while deciding the fresh writ
petitions will not be bound by its earlier decision. The appeals are F
disposed of. No order as to costs."

As this Court had declined to stay the operation of the judgment
rendered by the Division Bench of the High Court in Avinyl Polymers 's, case,
the Government ofKarnataka issued notification dated January 7, 1998 which
provided rate of tax on entry of goods into a local area for consumption, use G
or sale therein. The notification was brought in consonance with the judgment
rendered by the High Court and it remained in force from January 7, 1998 to
.... March 31, 1998. On March 31, 1998, another notification was issued providing
' levy of tax on entry of goods into local area for consumption, use or sale
therein. This notification was prospective in operation.
H
830 SUPREME COURT REPORTS [2003) 'SUPP. 2 S.C.R.

A Thereafter, on 23rd September, 1998, Government of Kamataka brought
out another notification, which was effective for the period from April 1, 1994
up to January 6, 1998 by prescribing different rates of taxes for goods
enumerated in the table appended to the notification purporting to levy tax
on entry of goods brought into a local area from outside for consumption,
use or sale therein.
B
Again, various writ petitions were filed before the High Court challenging
the said notifications, which were dismissed by the Single Judge by holding
as under:-

l. The provisions of Section 3(1) of the Act are not ultra vires of
c the Constitution of India on the ground that no guidelines for
prescribing rate of tax has been given and the provisions are
compensatory in nature and does not require the assent of the
President of India.
2. Notifications dated 31.3.1998 and 7.1.1998 are valid piece of
D legislation.

3. Notification dated 23.9.1998 has not been issued under Section
4B of the Act, but has been issued under Section 3(1) and as
such retrospective effect could have been given.
4. Notification dated 23.9.1998 cannot be considered to be invalid
E
on the ground that it was not in force on the date of issue and
was made applicable for past transactions only.
5. Notification dated 23.9.1998 is a valid piece of legislation. It is
however declared that tax shall not be levied or collected for the
period from 1.4.1994 to 6.1.1998 for entry of goods in local area
F when the goods are brought from other areas of the State of
Kamataka and also when the goods have been imported from
outside the State of Kamataka and are meant for sale.
6. Entry 2-A by Notification dated 9.11.1998 prescribing rate of tax
at 8% from 1.4.1995 is ultra vires the power of Section 3(1) of the
G Act.
7. In cases where assessments were already framed, the assessees
would be free to file appeals within four weeks and where notice
alone has been issued, they may submit objections within the
aforesaid period.
H
WIDIA(INDIA)LTD.v. STATE [SHAH,J.] 831

The State had not preferred any appeal against the aforesaid judgment A
and order.

However, the appellants (dealers) filed appeals before the Division Bench
of the High Court. The High Court, by judgment and order dated 18th October,
2000, dismissed the Writ Appeal Nos.1717-21, 8191-93 of 1999 and other
appeals involving similar question. B
Those judgments and orders are challenged by filing these appeals.

For the levy of entry tax, the High Court held that: -

17. The State ofKamataka came into being on 1.11.1956 pursuant to C
the reorganizations of the State of India. Municipal laws prevailing
in different areas of the new State provided for imposition of tax
called octroi. With effect from 1.4.1965 uniform taxation on various
items under the Municipalities Act was brought into force.
18. Considerable debate is going on in the country regarding the D
justification of charging the octroi by the municipal committees.
The octroi was being criticized as Archaic and Obnoxious
impeding the free flow of trade creating bottlenecks. State of
Kamataka was the first State to abolish octroi with effect from
1.4.1979. In order to compensate the Joss, Kamataka Tax on Entry
of Goods into Local Areas for Consumption, Use or Sale therein E
Act, 1979 was passed. The Act was enacted under the legislativ~
powers derived from Article 246 of the Constitution of India read
with Entry 52 List II of the 7th Schedule of the Constitution. It-
received the assent of the President of India on 27.5.1979.
Originally the tax was levied on three items, namely textiles, F
tobacco and its products and sugar. Subsequently, there has
been changes and the position as now stands is that tax could
be levied on any items specified in the first schedule from items
1to103. Item No.103 is a residuary clause and confers power on
the State Government to levy tax on:
G
"Goods other than those specified in any entries in this
schedule, but excluding those specified in the second
schedule."

Further, in the High Court, the appellants did not challenge (a) the
notification levying the tax w.e.f. 7th January, 1998 (paragraph 12); and (b) the H
832 SUPREME COURT REPORTS [2003) SUPP. 2 S.C.R.

A nature of the tax. being compensatory or regulatory (paragraph 20).
Instead, it was contended that Act No.8 of 1993 which introduces the
words "retrospectively or prospectively by the State Government by
no~ification on different dates" is neither reasonable nor in public interest and
in any event ifthe said restriction could be said to be reasonable and in public
B interest, the same is unconstitutional and void as assent of the President was
not obtained before enacting the same.

Dealing with this contention, the High Court relied upon its earlier
decision in Avinyl Polymers 's, case (supra) as well as the decision rendered
C by this Court in Venkata Rao Esajirao Limbekar and Ors. v. The State of
Bombay and Ors., [1969] 2 SCC 81, wherein the Court held thus:-

" ... We would; however, like to observe that, as noticed before, when
Hyderabad Amending Act III of 1954 was enacted the assent of the
President was duly obtained. Similarly when Bombay Act XXXII of
1958 which was meant for amending Hyderabad Act XXI of 1950 was
D
enacted the assent of the President had been given. If the assent of
the President had been accorded to the amending Acts, it would be
difficult to hold that the President had never assented to the parent
Act, namely, Hyderabad Act XXI of 1950. Even if such assent had not
been accorded earlier it must be taken to have been granted when
E amending Act III of 1954 was assented to."

The Court, thereafter, arrived at the conclusion that the assent of President
of India would be deemed to have been given to the Act 8 of 1993 when
assent to the subsequent Acts No.45 of 1994 and 3 of 1995 was given.

F SUBMISSIONS:-

In these appeals, challenge is confined to the notification dated 23rd
September, 1998, which was issued by the State Government in exercise of
powers conferred by sub-section ( l) of Section 3 of the Act providing that
. w.e.f. 1st Day of April, 1994 and up to 6th day of January, 1998 tax shall be
G levied and collected on the entry of goods, specified in Column (2) of the
table, into a local area for consumption or use or sale therein at the rate
specified.

The learned counsel for the appellants submitted that for levy of tax on
H the entry of goocis on the basis ofnotification dated 7th January, 1998 which .
WIDIA(INDIA)LTD.v. STATE [SHAH,J.] 833
empowers the authority to collect tax prospectively, the appellants have no A
grievance. However, the notification dated 23rd September, 1998 empowering
the authority to levy and collect tax from 1st April, 1994 up to 6th January,
1998 without prior sanction of the President is illegal and void and requires
to be set aside. Further, there was no notification levying tax on entry of
goods for a period from 1.4.1994 tb 6.1.1998 as the previous notifications were B
held to be illegal and void. It is :submitted that the notification dated 23rd
September, 1998 is in pith and ~ubstance validating notification. It is also
submitted that for the hiatus periqd from l.4.1994 to 6.1.1998, there was no
notification levying the entry tax.; Such power could not be exercised by the
delegated authority, namely, the State Government. Hence, the notification
dated 23rd September, 1998 cannpt be justified. C
It is also submitted that the State cannot justify the validity of amending
Act No.8 of 1993 on the ground that since the subsequent amendments have
received the President's assent, th,e impugned amendment is deemed to have
received the President's assent, *s it is against the law laid down by this
Court in Kaiser-I-Hind Pvt. Ltd :and Anr. v. National Textile Corporation D
(Maharashtra North) Ltd and orL [2002] 8 sec 182 and Gram Panchayat
of Village Jamalpur v. Ma/winder Singh and Ors., [1985] 3 SCC 661. It is
contended that there was no propqsal before the President to provide for levy
of tax on entry of goods with ret~ospective effect when assent was given to
Act No.45 of 1994. ·
E
Lastly, it is contended that~ most of the appellants in the appeals fall
within the limit of industrial area ~s declared under Section 3 of the Kamataka
Industrial Areas Development Act, 1966. Hence, they would not be covered
by the definition provided under ;section 2(A)(5) of the Act, which defines
'local area' to mean: - F
" 'Local Area' means an ,area within the limits of a city under the
Kamataka Municipal Cor(>oration Act, 1976 (Kamataka Act 14 of
1977) a municipality under
I
the Kamataka Municipality Act, I 964
(Karnataka Act 22 of 1964) a notified area committee, a town board,
a sanitary board or a cahtonment Board constituted or continued G
under any law for the tirr)e being in force and a Mandal under the
Kamataka Zita Parishads, Taluk Panchayat Samithis, Manda! Panchayat
and Nyaya Panchayats Act, 1983 (Karnataka Act 20 of 1985) and
Panchayat Area under tpe Karnataka Panchayat Raj Act, 1993
(Karnataka Act 14of199V."
H
834 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A The learned counsel for the respondents justified the impugned judgment
for the reasons recorded therein. It is their submission that retrospective
effect is given after removing the defects pointed out by the High Court in
Avinyl Polymers's, case (supra) and to validate the levy of entry tax.

FINDINGS:--,-
B
Before dealing with the rival contentions, we would first refer to Articles
30 I and 304 which are as under:-

"301. Freedom of trade, commerce and intercourse.-Subject to the
other provisions of this Part, trade, ·commerce and intercourse
C throughout the territory of India shall be free.

304. Restrictions on trade, commerce and intercourse among States.-
Notwithstanding anything in article 30 I or article 303, the Legislature
of a State may by law-

D (a) impose on goods imported from other States or the Union
territories any tax to which similar goods manufactured or
produced in that State are subject, so, however, as not to
discriminate between goods so imported and goods so
manufactured or produced; a1_1d
(b) impose such reasonable restrictions on the freedom of trade,
E
commerce or intercourse with or within the State as may be
required in the public interest.

Provided that no Bill or amendment for the purposes of clause (b)
shall be introduced or moved in the Legislature of a State without the
F previous sanction of the President."

Article 30 I provides for free trade, commerce and intercourse throughout
the territory of India. To this, two fold ·exceptions are carved out in Article
304 by providing that: -

(l) State may by law levy tax on the goods imported from other
G States. However, such levy should be similar to the tax levied on
similar goods manufactured or produced in the State so as not
to discriminate between the goods imported and goods
manufactured or produced in the State.

Hence, levy of tax normally by the State legislature per se would
H
WIDIA (INDIA) LTD. v. ST ATE [SHAH, J.] 835
not be, in any way, violative of Article 301. A
(2) Further, Article 304(b) empowers the State legislature to impose
reasonable restrictions on freedom of trade, commerce or intercourse
with or within the State as may be required in the public interest.

For such restrictions to be valid, the State must obtain previous B
sanction of the President before introduction of the bill in the legislature
of State.

On this aspect, it would be worthwhile to refer to the decision in Rattan
Lal & Co. v. Assessing Authority, [1969] 2 SCR 544 wherein the Court held
that where the general rate applicable to the goods locally made and on those C
imported from other States is the same nothing more normally and generally
is to be shown by the State to dispel the argument of discrimination under
Article 304(a), even though the resultant tax amount on imported goods may
be different. The aforesaid decision was referred to and relied upon in Video
Electronics Pvt. Ltd and Anr. v. State of Punjab and Anr., [ 1990] 3 SCC 87.
In that case, the Court also referred to the decision in Kalyani Stores v. State D
of Orissa, [ 1966] I SCR 865 wherein it was observed that the restriction on
the freedom of trade, commerce and intercourse throughout the territory of
India declared by Article 301 cannot be justified unless it falls within Article
304. Exercise of power under Article 304(a) can be effective only ifthe tax or
duty on goods imported from other States and the tax or duty imposed on E
similar goods manufactured or produced in that State is such that there is no
discrimination. The Court also referred to the observations of Hidayatullah,
J. that Article 304(a) imposes no ban but lifts the ban imposed by Articles
301 and 303 subject to one condition. That article is enabling and prosrective.
The Court (in para 22) further held:-
F
" ..It is manifest that free flow of trade between two States does
not necessarily or generally depend upon the rate of tax alone. Many
factors including the cost of goods play an important role in the
movement of goods from one State to another. Hence the mere fact
that there is a difference in the rate of tax on goods locally
manufactured and those imported would not amount to hampering G
of trade between the two States within the meaning of Article 301
of the Constitution. As is manifest, Article 304 is an exception of
Article 301 of the Constitution. The need of taking resort to the
exc~ption will arise only ifthe tax impugned is hit by Articles 301 and
303 of the Constitution. If it is not then Article 304 of the Constitution H
will not come into picture at all-"
836 SUPREME COURT REPORTS [2003] SUPP. 2 S.C.R.

A In V. Guruviah Naidu & Sons v. State o/Tamil Nadu, [1977] I SCC 234,
this Court held that Article 304(a) does not prevent levy of tax on goods;
what it prohibits is such levy 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 discrimination against
B imported goods by imposing tax on such goods at a rate higher than that
borne by local goods since the difference between the two rates would
constitute a tariff wall or fiscal barrier and thus impede the free flow of inter-
state trade and commerce. The Court also held that it is for the petitioner
challenging levy of tax to establish that such tax is discriminatory.

Further, for the tax to become a prohibited tax it has to be a direct tax
c the effect of which is to hinder the movement part of trade. So long as a tax
remains compensatory it cannot operate as a hindrance. [Re: Sharma Transport
v. Government ofA.P. and Ors., (2002] 2 SCC 188).

In these appeals, no contention is raised to the effect that levy of tax
D on goods by the impugned notification discriminates between the goods
imported from other States and similar goods manufactured or produced
within the State. Hence, it would be difficult to accept the contention that the
sanction of the President was required to be obtained before amending and
enacting Act No.8of1993 whereby for the words "by the State Government,
by notification from time to time", the words "retrospectively or prospectively
E by the State Government by notification and different dates" were substituted.
Addition of words 'retrospectively or prospectively' in Section 3(1) would not
make the Section restrictive which can be hit by Article 301 of the Constitution
nor the said part of the legislation could be held to be discriminatory. To
clarify the situation, it can be stated that a subsequent notification issued in
F exercise of the powers conferred under the said Section_ may in some case
amount to restriction to free trade and commerce but simplicitor addition of
the words 'retrospectively or prospectively' would not require sanction of the
(>resident as contemplated under Article 304 (b). Hence, the contention that
amending Act No.8 of 1993, by which the words 'retrospectively or
prospectively' are added, requires sanction of the President, is without any
G substance.

Further, once it is conceded that imposition of tax was compensatory
or regulatory in nature, there is no question of obtaining the assent of the
President under Article 304(b) of the Constitution. For the Act in question,
H this question is dealt with and made clear by this court in Mis. Hansa
WIDIA(INDIA) LTD. v. STATE [SHAH, J.] 837
Corporation, (supra) and thereafter in repeated judgments including State of A
Himachal Pradesh and Ors, v. Yash Pal Garg (Dead) By LRs and Ors., JT
(2003) 4 SC 413 wherein it is held that so long as the tax remains compensatory
or regulatory, it cannot operate as hindrance. The Court also held: -

(a) A demand for tax from the traders in common with others is not
a restriction on the right to carry on trade, commerce and B
intercourse.
(b) Such tax would not come within the purview of the restrictions
contemplated under Article 301 unless it is established that in
reality, it hampers or burdens the trade and commerce.
(c) So long as the tax remains compensatory or regulatory, it cannot C
operate as a hindrance.
(d) If a State tax law accords identical treatment in the matter of levy
and collection of tax on the goods manufactured within the State
and identical goods imported from outside the State, Article
304(a) would be complied with. There is an underlying assumption D
in Article 304(a) that such a tax when levied within the constraints
of Article 304(a) would not be violative of Article 301 and State
legislature has the power to levy such tax.

In view of this settled law, once it is held that the tax levied by the State
Government was compensatory in nature, there is no question of obtaining E
sanction of the President under proviso to Article 304. In this view of the
matter, the decision rendered by this Court in Kaiser-I-Hind Pvt. Ltd 's case,
(supra) has no bearing in the present case.

It is true that normally tax would not be levied with retrospective effect F
but at the same time to validate the tax which was levied, after removing the
defects pointed out by the previous decision, the State Government could
exercise its powers under Section 3(1) of the Act and it cannot be said that
it has acted beyond its jurisdiction. Therefore, it cannot be held that notification
dated 23rd September, 1998 empowering the authority to levy and collect tax
w.e.f. l.4.1994 to 6.1.1998 is, in any way, illegal or erroneous. The defects G
pointed out in Avinyl Polymers's case (supra) are removed and, therefore, it
cannot be said that the notification dated 23.9.1998 is, in any way, illegal. In
a situation like present one where notifications levying tax were held to be
illegal, for validating such levy, the State Government has issued the aforesaid
notification. It is not pointed out that the said notification is discriminatory H
838 SUPREME COURT REPORTS [2003) SUPP. 2 s:c.R.

A between the goods imported from other States and similar goods manufactured
or produced within the State.

Last contention only requires to be narrated for being rejected, as it
cannot be disputed that the 'industrial area' is either within the area of
Municipal Corporation or .within the area of municipal limits or Panchayat
B limits. The establishment of industrial areas is for limited purpose and Section
3 of the Kamataka Industrial Areas Development Act, 1966 specifically provides
that the State Govennent may by notification declare any area to be an
industrial area for the purposes of the said Act. But, it is nowhere provided
that the said area would cease to be part and parcel of either municipal
C corporation or the area of municipality or panchayat. Therefore, the High
Court rightly rejected this contention.

In the result, the appeals are dismissed. In each appeal, appellants to
pay costs of Rs.10,000.

D SLP (C) Nos. 112-13 of 2002, SLP (C) _ _ _ _ @ CC Nos. 3488-90
of2003 and SLP (C) No.8223-24 of2003.

Special Leave Petitions _ _ @ CC Nos.3488-90 of2003 are dismissed
on the ground of delay.

For the foregoing reasons, Special Leave Petitions are also dismissed.

N.J. Appeals dismissed.