IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 1ST JANUARY 2009 / 11TH POUSHA 1930 OP.No. 6868 of 2001(P) ------------------------------ PETITIONER(S): ----------------------- DR. K.S.CHANDRAN, WESTERN SCAN CENTRE, R.C.M. HOSPITAL COMPLEX, TRIPUNITHURS - 682 301 BY ADV. SRI.N.MURALEEDHARAN NAIR SRI.R.MURALIDHARAN (AROOR) RESPONDENT(S): --------------- 1. SALES TAX OFFICER, IST CIRCLE, TRIPUNITHURA. 2. STATE OF KERALA, REPRESENTED BY ITS CHIEF SECRETARY, SECRETARIAT, THIRUVANANTHAPURAM. BY SR. GOVERNMENT PLEADER SRI. MUHAMMED RAFIQ FOR R1,R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 01/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 6868 of 2001(P) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 - TRUE COPY OF THE PURCHASE ORDER DATED 20.7.2000. EXT.P2 - TRUE COPY OF THE INVOICE NO. 498/30079698 DT. 29.11.2000. EXT.P3 - TRUE COPY OF THE NOTICE IN FORM NO. 51 ISSUED BY THE 1ST RESPONDENT DT. 13.2.2001. EXT.P4 - TRUE COPY OF THE RETURN IN FROM NO. 2 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT DT. 22.2.2001. EXT.P5 - TRUE COPY OF THE NOTICE NO. A 688/2001 DT. 22/2/2001, U/S.8(3) OF THE ENTRY TAX ACT. EXT.P6 - ---DO --- --- DO ----- U/S 15(1) ----DO ----- EXT.P7 - TRUE COPY OF THE ORDER PASSED BY THIS HON'BLE COURT IN C.M.P. NO. 57635/2000 IN O.P. NO. 33723/2000 DT. 14/2/2001. // TRUE COPY // PA TO JUDGE rhs S.SIRI JAGAN, J - - - - - - - - - - - - - - - - - - - - - - - O.P.No.6868 of 2001 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 1st day of January, 2009 J U D G M E N T The petitioner challenges the validity of demand for entry tax in respect of a machine imported by the petitioner from abroad. A Division Bench of this court has considered identical question in W.A. NO. 1658 of 2004 and connected cases were in the Division Bench passed the following judgment: “In all these writ appeals and writ petitions the appellants/petitioners are calling in question certain actions of the respondent authorities, inter alia, demanding payment of entry tax under the provisions of the Kerala Tax on Entry of Goods into Local Areas Act, 1994('the Act' for short). All these demands were made pursuant to the charging provision under the said Act. The said charging provision is held to be unconstitutional by a Division Bench of this Court in the case of Thressiamma L. Chirayil v. State of Kerala (2007 (1) KLT 303). In the said decision the Division Bench of this Court has observed as under: “A compensatory tax is levied on an individual as a member of a class and a fee is levied on an individual as such. The concept of compensatory tax is a judicially evolved principle and could be an exception to the provisions of Art.301. In the case of a tax there is no identification of a specific benefit and even if such identification is there it is not capable of direct measurement. A tax is a payment where the special benefit, if any, is converted into common burden. On the other hand, a fee is based on the “principle of equivalence”. In the case of a fee or compensatory tax, the “principle of equivalence” applies and the basis of a fee or a compensatory tax is the same. The main basis a fee or a tax, even if there is any benefit, the same is incidental to the government action and even if such O.P.No.6868 of 2001 - 2 - benefit results from the government action, the same is not measurable. Fee or a compensatory tax has to be broadly proportional and not progressive. Levy of entry tax on goods imported from other State to the State of Kerala and from abroad is not compensatory in nature since the State Government could not discharge its burden by placing materials before Court that payment of levy of entry tax is reimbursement/recompense for the quantifiable/measurable benefit provided or to be provided. Demand and collection of entry tax under the Kerala Tax on Entry of Goods into Local Areas Act, 1994 is illegal, unauthorised and violative of Art.301 of the Constitution of India.” 2. Since the charging provision itself has been struck down by the Court, the question of demanding for payment of entry tax under the Act would not arise. Accordingly, we dispose of all these writ appeals and writ petitions. 3. Consequently, all pending interlocutory applications also stand closed. Ordered accordingly.” In the above circumstances, following that judgment the original petition is disposed of in terms of the above judgment. S.SIRI JAGAN, JUDGE rhs