CIVIL WRIT JURISDICTION CASE No.2361 OF 1997 -------------- In the matter of an application under Article 226 of the Constitution of India. ------------ 1.Parle Products Limited, a public Limited Company having its registered office at Nirlon House, 254-B, Dr. Ani Besent Road, Mumbai-25, having one of its Depot and Contract manufacturing unit at Raghu Nandan Nagar, Near Bangaghat, Railway Station, Patna City, District-Patna through Mr. D. N. Bareria, Constituent Attorney of petitioner. 2. Lucky Biscuit Company, Haziganj, P.S. Chowk, Patna City, through Mr. P.C. Bareria, one of the Partner of firm. --------- Petitioners. Versus 1. The State of Bihar 2. The Commissioner, Commercial Taxes, Bihar, Patna. 3. The Dy. Commissioner, Commercial Taxes, Special Circle, Patna. 4. The Dy. Commissioner, Commercial Taxes, Patna City ------ Respondents. -------------- Fort the Petitioners: Mr. Raj Kishore Prasad, Advocate. For the Respondents: Mr. Satyabir Bharti, A.C. to A.A.G.III. -------------- P R E S E N T THE HON'BLE MR. JUSTICE SUDHIR KUMAR KATRIAR THE HON'BLE MR. JUSTICE BIRENDRA PRASAD VERMA S.K.Katriar,J. This writ petition is directed against the order bearing Memo No. 79 dated 9.1.1997 (Annexure-6), passed by the learned Deputy Commissioner, Commercial Taxes, Special Circle, Patna, whereby he has declined to adjust the entry tax paid by the petitioners. The respondents have placed on record their counter affidavits. 2. Before we proceed further, we would like to observe that the justification for the two petitioners making common 2 cause in this writ petition has not been explained by learned counsel for the petitioners in spite of repeated queries. We, therefore, proceed to dispose of the writ petition in the absence of any justification, and in view of the limited materials placed before us. 3. We have perused the materials on record and considered the submissions of learned counsel for the parties. The petitioners claim to be engaged in manufacture and marketing of biscuits. Vanaspati is one of the raw- materials used for the purpose. It is further the case of the petitioners that they had imported Vanaspati from different States of the country during the periods 1994-95 and 1995- 96, and paid entry tax in terms of the Bihar Tax on Entry of Goods into Local Areas for Consumption, Use or Sale Therein Act, 1993(No.16 of 1993) (hereinafter referred to as the Act), at the prescribed rates. The further case of the petitioners is that entry tax was leviable under Section 3 of the Act, and had to be adjusted in terms of Section 3 of the Act if it was used as raw-material for the product manufactured by the petitioners. The contention raised by the petitioners was rejected by the impugned order leading to the present writ petition. 4. Section 3 of the Act reads as follows: “3. Charge of Tax-(1) There shall be levied and collected a tax on entry of scheduled goods into a local area for consumption, use or sale therein at such rate not exceeding [20 percentum of the 3 import value of such goods as may be specified by the State Government in a notification published in a official gazette subject to such conditions as may be prescribed. Provided different rates for different scheduled goods and different local areas may be specified by the State Government. [“Provided further, that if an importer claims that he imported goods notified under sub-section(1) not for the purpose of consumption, use or sale, the burden of provising that the import was for purposes other than for consumption, use or sale, shall be on importer importing such goods and making such claim.” (2) The tax leviable under this Act shall be paid by every dealer liable to pay tax under Bihar Finance Act, 1981 or any other person who brings or cause to be brought into the local areas such scheduled goods whether on his own account or on account of his principal or takes delivery or is entitled to take delivery of such goods on such entry: Provided no tax shall be leviable in respect of entry of such scheduled goods effected by a person other than the dealer if, the value of such goods does not exceed 25 thousands in a year. [“Provided further, that where an importer of scheduled goods liable to pay tax under the Act, becomes liable to pay tax under the Bihar Finance Act, 1981 [Bihar Act 5, 1981] by virtue of sale of such scheduled goods, his liability to pay tax under the Bihar Finance Act, 1981 shall stand reduced to the extent of tax paid under the Act.” [“(3):The liability to pay tax on Scheduled goods shall only be at the point of first entry into a local area and any subsequent entry or entries into any other local area or areas of the said Scheduled goods shall not be subject to tax provided the subsequent importing dealer produces before the assessing officer the original copy of the cash memo, invoice, bill or challan issued to him by the dealer from whom he purchased or received the said Scheduled goods, and files a true and complete declaration in the Form and manner prescribed.” Provided that no tax shall be levied and collected in respect of any motor vehicle which was registered in any other State or Union Territory under the Motor Vehicles Act 1988 for a period of fifteen months or more before the date 4 on which it is registered in the State under the Act.” (Emphasis added) 4.1. It is evident that Section 3 of the Act is the charging section, and also enables the State Government to issue requisite notification prescribing rates of imposition of entry tax on the goods imported in the State of Bihar from the other State(s) of the country. Sub Section (2) of the Act is relevant in the present context. In order to earn the benefit of set-off, the assessee has to establish as an issue of fact that the importer of scheduled goods had sold it as such. In the present case, petitioners will have to establish that they had imported Vanaspati from other States, had paid entry tax thereon, and sold the Vanaspati in the State of Bihar. In the present case, on the contrary, the petitioners case is that they had used it as raw-material for manufacture of biscuits. Indeed such is the finding of fact. Applicability of second proviso of sub-section (2) of section 3 of the Act is wholly obviated. 5. Learned counsel for the petitioners has also relied on the Government notification bearing S.O. No.35, dated 4.5.2005, whereby amendment of Rule 4A has been brought about which permits such set-off even in cases the imported scheduled item is used as a raw-material. The contention is stated only to be rejected. The notification is of 4.5.2005, whereas the present writ petition deals with much earlier 5 periods. 6. There is no merit in this writ petition. The writ petition is dismissed. B.P. Verma,J. I agree. High Court Patna, Dated 20th September,2010. Vinay/ N.A.F.R. ( S. K. Katriar,J. ) (Birendra Prasad Verma, J.)