IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.6083 of 2009 M/S BHARAT SANCHAR NIGAM LTD. Bihar Circle, Patna through its Divisional Engineer (CTSD) Sri Naresh Prasad aged about 56 years, son of late Lakshmi Narayan, resident of Belaganj, P.S. Belaganj, District Gaya. Versus 1. The State of Bihar through the Commissioner of Commercial Taxes, Bihar, New Secretariat, Patna. 2. The Commissioner of Commercial Taxes, Bihar, New Secretariat, Patna. 3. The Assistant Commissioner of Commercial Taxes, Patliputra Circle, Pant Bhavan, Bailey Road, Patna. ----------- For the Petitioner :- M/S. L. N. Rastogi, Sr. Advocate & Alok Kumar Shahi. For the Respondents :- M/S. Lalit Kishore, AAG III & Satyabir Bharti. -------- 2 06/08/2009 Heard learned counsel for the petitioner and learned counsel for the State of Bihar. The petitioner is aggrieved by certain provisions in the notification bearing No. S.O. 95 dated 31.07.2008 issued under the Bihar Taxes on Entry of Goods into Local Areas for Consumption, Use or Sale therein Act, 1993, commonly known as Entry Tax Act. The first grievance is that the aforesaid notification while reducing the entry tax from 8% to 4% on most of the components relating to electronic telephone equipments/exchanges, has omitted three items which are generating sets, batteries and stabilizers from clause 19. According to the learned counsel for the petitioner, these three items are used in the telecommunication and transmission of information and because of that they should have been specifically mentioned in column 19 and subjected to Entry Tax only at the rate of 4%. The second grievance of the petitioner is that although the notification - 2 - reducing the rate of entry tax of most of the items with which the petitioner is concerned was issued on 30th July, 2008 and published in the Official gazette on 31st July, 2008, paragraph 3 of the said notification contains the provision that it shall come into force with effect from 1st April, 2008. Objection has been taken to conferment of retrospectivity to the notification. Learned counsel for the State Mr. Lalit Kishore, Additional Advocate General III, has submitted that the earlier notification imposing 8% entry tax dated 1st April, 2008 was challenged by M/S. Reliance Telecom Limited which also deals with telecommunication and telephone like the petitioner. In the context of that challenge vide C.W.J.C. No. 7697 of 2008, the State Government conceded the objections raised by the petitioner of that case and after examining the relevant provisions of Value Added Tax Act, 2005, a revised notification dated 30th July, 2008 was issued granting relief on most of the items which are also connected with the business of the petitioner of this case. He further submitted that the items D.G. sets, Batteries and Stabilizers cannot be treated to be intrinsic part of the items used in telecommunication and transmission of information so as to be covered by clause 19 of the impugned notification. Those items which are electrical goods have been included in item 17 for which the rate of tax is 8% but by way of policy Air conditioners and Air Coolers have been included in item 10 for which rate of tax is 5%. He further submits that the principles laid down by this Court in the judgment reported in (2008) 13 VST, 40 (Food Corporation of India - 3 - Vs. State of Bihar and others) has been kept in mind while issuing the impugned notification and as a result the rate of tax imposed as entry tax is no longer higher than the value added tax. He further submitted that retrospectivity was given to the impugned notification only to give benefit to the parties like the petitioner who have been benefited on that account and adjustments have already been made of the excess tax paid by them. Lastly, it was submitted that classification of goods for the purpose of entry tax has been made by way of policy decision which does not contravene any statutory provision and requires no interference. Considering all the facts and circumstances noticed above, we find no illegality in the notification impugned. This writ petition, therefore, is dismissed. (Shiva Kirti Singh, ACJ.) (Anjana Prakash, J.) AMIN