Case: State Of Kerala And Others Vs. Fr. William Fernandez &amp; Others

ge constitution Bench in Jindal Stainless v. State of Haryana and another, 2016 (11) Scale 1 , had answered several questions pertaining to entry tax legislations of different States, which has largely settled various issues relating to entry tax. However, the issue pertaining to levibility of entry tax on the imported/foreign goods was left to be answered by regular Bench. Answering the reference following was stated in answer No.10:The questions whether the entire State can be notified as a local area and whether entry tax can be levied on goods entering landmass of India from another country are left to be determined in appropriate proceedings4. As noted above this batch of appeals consists of appeals from the judgments of Orissa High Court, Patna High Court, Kerala High Court and Jharkhand High Court. Large number of appeals have been filed questioning the different judgments rendered by different High Courts. For deciding this batch of appeals it is sufficient to notice facts of few of the appeals of each State. The parties shall be referred to as described in the High Courts5. In the appeals arising out of the judgments of the High Court of Orissa, most of the appeals have been filed against judgments dated 18.02.2008 and 09.10.2012. Judgments of different dates were also delivered by the Orissa High Court following its judgments dated 18.02.2008 and 09.10.2012. There are appeals containing different facts and grounds which shall separately be noticed6. With regard to judgment dated 18.02.2008 delivered in bunch of writ petitions, we take up Civil Appeal arising out of SLP(C)No.18405 of 2008M/s. Steel Authority of India Ltd. v. State of Orissa & Anr. The State of Orissa enacted Orissa Entry Tax Act, 1999 (hereinafter referred to as 1999 Act) to provide for levy of tax on entry of the scheduled goods into a local area for consumption, use or sale therein and matters incidental thereto and connected therewith7. The Steel Authority of India, a public sector undertaking of Government of India filed the writ petition challenging the legality and constitutional validity of Orissa Entry Tax Act, 1999 and Orissa Entry Tax Rules, 2000 in so far as it seeks to levy and collect entry tax on imported goods including scheduled goods when brought into the mines premises of the writ petitioner No.1 Company at Purunapani, Kalta, Barsua in the District of Sundergarh and Bolani in the District Keonjhar. The validity of the Act was challenged on various grounds including the ground that 1999 Act is ultra vires to the Constitution. It was further pleaded that provisions of 1999 Act do not provide for levying of tax on imported raw materials for its plants and machineries which is used/consumed at its factory for the manufacture of its finished products. The grounds were also raised that levy is not compensatory8. The writ petition was heard along with the bunch of writ petitions raising some similar and some different grounds. The Division Bench vide its judgment dated 18.02.2008 upheld the vires of 1999 ActCivil Appeals arising out of SLP(C)M/s. Simples Infrastructures Limited v. State of Orissa & Ors. also needs to be noted:9. The writ petitioner is a company which carries on business on works contract for construction of different types of civil and piling works outside at various places in the State of Orissa. While executing the aforesaid work the writ petitioner purchases Sand, Bricks and Cements chips and boulders for civil constructions and are transported from the petitioners construction site, either inside or outside the State of Orissa for being used in the work. The writ petitioner was directed to file returns by the Entry Tax Officer. Writ petitioner has challenged the constitutionality of Orissa Act, 1999 and prayed for restraining the respondent from realising any entry tax. The writ petition was also decided along with the bunch of writ petitions vide High Courts judgment dated 18.02.2008 as stated above10. Large number of civil appeals have been filed against the judgment dated 18.02.2008. It is not necessary to notice facts of different cases. The writ petitioners were usingl brought from different places including foreign countries, Coal was also used by the various writ petitioners and levy on it of entry tax was questioned therein. Several subsequent judgments were also delivered by the Orissa High Court following the judgment dated 18.02.2008 which have also been questioned in different appeals11. A subsequent judgment dated 9.10.2012 delivered by the Orissa High Court in Writ Petition No.15519 of 2010 and other connected writ petitions have given rise to large number of civil appeals. The leading writ petition in which judgment dated 09.10.2012 was delivered was writ petition No.15519 of 2010 Tata Steel Limited v. State of Orissa & Ors. We now proceed to notice the facts and pleadings in the aforesaid writ petition. The writ petitioner, Tata Steel is company which has its branches, divisions across the State of Orissa. The writ petitioner carries on business in mining as well as manufacturing ofe at different plants in the State of Orissa. For the ready reference the pleadings in paragraph 3 of the writ petition needs to be extracted which is to the following effect:3. That the relevant facts giving rise to the present writ application are inter alia are:(a) The petitioner in order to carry out its manufacturing activity both inside the state of Orissa as well as in factories located outside the state imports various raw materials from outside India(b) That for importing the said goods from outside India, the petitioner has obtained has obtained necessary licenses and permissions from appropriate authorities12. The writ petitioner pleads that Legislature never intended to levy entry tax on the value of the goods imported from outside the country by Entry Tax Act, 1999. Article 286(1)(b) prevents a State from levying Sales Tax so as not to interfere with the Unions Legislative power with respect to the import and export across Customs Frontiers (Entry 41 of List I) and the duties of Customs including Export Duty (Entry 83 of List I)13. The States never intended to levy entry tax on goods from outside the country. Referring to the definition of purchase value, it is submitted that the omission of Customs Duty in Section 2(j) was deliberate. It is impermissible for the State to enact a legislation purported to be under Entry 52 of List II, the incidence of which is on import of goods from outside India which is exclusively a matter for the Union under Entry 41 and 83 of List It was filed on behalf of the respondents justifying the entry tax. The State pleaded that levy of entry tax by the State is under Entry 52 of list II of the Seventh Schedule. The provision of Article 286 is available only in the case of sale of goods and not against the entry tax15. It is incorrect to suggest that the Legislature never intended to levy tax on imported goods coming from outside the country. The charge under Section 3 of the Orissa Act, 1999 would suggest that levy is on the basis of destination of scheduled goods. It is not the transaction of import which is sought to be levied with entry tax. The Division Bench vide its judgment dated 09.10.2012 dismissed all the writ petitions except writ petition No.7 of 2008 of M/s. IFGL RefractoriesCivil Appeal No.32256 of 2013M/s. National Aluminium Company Limited v. State of Orissa & Ors16. The writ petitioner is the public sector undertaking and is running three units, namely, Aluminium Refinery Plant at Damanjodi in the District of Koraput, Aluminium Smelter Plant at Angul in the District of Angul and Captive Thermal Power Plant at Angul. The writ petitioner in order to carry out its manufacturing/mining activity imports various material and equipments including spares from outside India. For importing the said goods from outside India, the petitioner has obtained necessary licences and permission from appropriate authorities. The petitioner brings in various goods including scheduled goods for its business operation from within the State and also from outside the territory of India by way of import. The writ petitioner has filed the writ petition challenging the Orissa Entry Tax Act, 1999 and levibility of entry tax on petitioner. By a common judgment dated 09.10.2012 the writ petition has been dismissed. Aggrieved by which this appeal has been filedCivil Appeal arising out of SLP(C) No.1426 of 2013Emami Paper Mills Limited v. State of Orissa & Ors17. The petitioner has set up a large scale industry for manufacture of Paper, paper Board and newsprint in Orissa in the Industrial Estate of Balgopalpur, District Balasore. The petitioner had entered into an agreement with Global Equipment and Machinery Sales Inc., Montgomeryville, Pennsylvania, United States of America and placed orders for a Paper Plant and other machineries to be supplied by the said company to the petitioner. The petitioner imported into India a disassembled paper manufacturing plant in knock down condition with spares. The petitioner also imports other machineries from other countries and the said imported machineries and spare parts enter the Country through different ports and are cleared by the petitioner on payment of the import duty levied under the Customs Act, 1962. Once the said plants and machineries are unloaded and cleared upon payment of the Customs Duty the said plant and machineries are transported to the petitioners factory at Balgopalpur, Orissa. Besides importing machinery from other countries the petitioner also has to purchase various machineries and spare parts from different manufacturers in other States in India. The petitioner was called upon to submit a statement showing the names of the goods imported by the petitioner. The respondent further threatened to resort to coercive measures if the petitioner failed to make payment of the entry tax on the import of plant and machinery. The petitioner made ad hoc payment under protest. Petitioner protested against the levy of entry tax on the plant and machinery imported from USA. The petitioner filed a writ petition No. 13978 of 2008 Orissa Act, 1999 questioning the levy of entry tax on import from outside the country, the constitutional validity of the Orissa Act, 1999 was also challenged.s were filed to the writ petitions and vide judgment dated 9.10.2012 the High Court dismissed the writ petitionCivil Appeal arising out of SLP(C)No.11060 of 2013M/s. IFGL Refractories v. State of Orissa and ors18. The writ petitioner has set up a factory at Sector B, Kalunga Industrial Estate as an 100% import substitution project. The petitioner commenced commercial production of special refractories and operating systems used by the producers of iron and steel. The petitioner has continually been expanding its production capacity by installing and erecting plant and machinery both indigenous and imported. For the manufacture of the refractory products, the petitioner requires imported raw materials, stores and spares, trading items and capital goods. Petitioner imports various materials from different countries. The materials are fused silica, lime stabilize fused zirconia, fused magnesia, sintered magnesia, silicon metal, natural PVC, refractory glaze, furfural alcolhol and micro silica. Generally, these goods are imported from either the Kolkata Port or the Kolkata Airport where from they are transported to the factory. Besides the raw materials imported from other countries, the petitioner also uses raw materials available in other States within the Union of India. The petitioner was under the bona fide belief that it was not required to pay entry tax on the goods imported from abroad. Further, the petitioner effected a payment under protest of Rs. 37,08,682/towards entry tax. The petitioner filed writ petitioner No.7 of 2008 challenging the Entry Tax Act, 1999. The writ petition was filed basically on the following three grounds:a. Entry tax is not leviable on goods imported from outside India as being violative of Article 286 read with Article 246 of the Constitution;b. Entry tax is not leviable on goods purchased from other States when the same goods are not manufactured within the State of Orissa in terms of Article 304(a) of the Constitutionc. In any case, the goods imported from outside India/purchased from other States by the petitioner are not specified in the schedule appended to the Act and therefore not exigible to entry tax19. The writ petition filed by the petitioner has been partly allowed by a common judgment dated 09.10.2012. The High Court although upheld the levy of entry tax on goods imported from outside the country but invalidated the levy of entry tax on certain goods purchased/imported by the petitioner which were not mentioned in the schedule appended to the 1999 Act. Aggrieved by the said judgment, this appeal has been filedTransferred Case No.149 of 2013M/s. Paradeep Phosphates Ltd. v. State of Orissa and ors20. The Transfer Petition (C) No.530 of 2012 was filed by the petitioner, M/s. Paradeep Phosphates Ltd. praying for the transfer of Writ Petition No.16541 of 2007 pending in the High Court of Orissa at Cuttack. The transfer petition was allowed by this Court on 23.07.2013 on which this T.C. No.149 of 2013 has been registered. The petitioner is engaged in manufacture of different types of chemical fertilizers like DAP, MOP, NPK. The petitioner has been importing raw materials through Paradeep Port wherein it has its Conveyor facility and the said raw materials are unloaded from the Ships and directly dispatched to petitioners factory without using any infrastructure facility provided by the Government of Orissa. Petitioner has a plant at Paradeep under the Revenue District of Jagatsinghpur, Orissa. The petitioner has an adjoining township at Paradeep. The petitioner constructed its own approach roads from the State Highway, developed the plant and township site. The petitioner procures about 98% of its raw materials from outside the country. Petitioner has been paying entry tax on imported scheduled goods under protest. Petitioner filed writ petition No.16541 of 2007 challenging the notice for assessment and payment of entry tax. Petitioner also prayed for a writ of mandamus directing the State of Orissa not to impose levy of entry tax on the goods imported from outside the territory of India21. There are few other appeals which are different from the above mentioned common judgment of the Orissa High CourtNational Aluminium Co.Ltd. v. State of Orissa & Ors22. The writ petitioner is a Government of India Undertaking, engaged in production of alumina and aluminium. It has its captive Bauxite Mines and Alumina refinery factory at Damanjodi in the District of Koraput. The major raw material is bauxite. Petitioner has set up its own Captive Power Plant at Angul near its Smelter Plant. For production of electricity, the basic raw material is coal, which obtained from Mahanadi Coal Fields. The petitioner filed Original Jurisdiction Case No.72 of 2001 challenging the validity of 1999 Act on several grounds. The Division Bench of the High Court vide its judgment dated 13.11.2002 declined to strike down the 1999 Act. However, while declining to strike down the 1999 Act following directions were issued:44. In the result, while declining to strike down the Orissa Entry Tax Act, 1999 as ultra vires, we direct that:1. Unless the basic ingredients, i.e. Entry of Scheduled goods for the purpose of Consumption, Use or Sale into a local area of the State are satisfied, the provisions of the Orissa Entry Tax Act, 1999 shall not be attracted;2. The goods which enter into local area/areas only for the purpose of transit will not be subject to Entry Tax; and3. Every manufacture of scheduled goods under Section 26 shall collect by way of Entry Tax amount equal to the tax payable on the value of the finished products under Section 3 of the Act from the buying dealer either directly or through an intermediary only if the scheduled goods sold are intended for ENTRY into any local area of the State for the purpose of Consumption, Use or Sale23. Aggrieved by the said judgment, these civil appeals have been filedCivil Appeals arising out of SLP(C)BRG Iron & Steel Co. Pvt. Ltd. v. Joint Commissioner of Sales Tax, Angul, Orissa24. The petitioner company during the course of its business was required to purchase plants and parts of plants, machinery and parts & spares of all kinds of machinery for the purpose of setting up a manufacturing unit at Dhenkanal, Orissa. The petitioner was also required to purchase raw materials such as stainless steel and iron & steel goods. The company was also required to import and export goods particularly import of capital goods such as its plant and machinery from outside the country. The petitioner has been regularly filing return under the Orissa Entry Tax Act, 1999. However, vide letter dated 30.03.2010 entry tax was demanded. The judgment was delivered by the High Court on 09.10.2012 in Writ Petition No.15519 of 2010 holding that levy of entry tax on imported goods was within the purview of Orissa Act, 1999. An order dated 20.10.2010 has been passed by the Joint Commission of Sales Tax holding the petitioner liable to pay entry tax on the imported goods besides penalty. Petitioner has directly come to this Court against the assessment order passed by the Joint Commissioner of Sales Tax dated 20.10.2012Civil Appeal arising out of SLP(C)No.36486 of 2010M/s. Bajrangbali Alloys Pvt. Ltd. v. Commissioner, Sales Tax & Anr25. The petitioner carries on the business of manufacturing and sale of M.S. Ingots and M.S. Rod ITMT Bars) at Manguli in the District of Cuttack. The petitioner directly imports goods brought from outside the country into the local area. Petitioner filed Writ Petition No.16650 of 2010. In the writ petition, petitioner has attacked the correctness of the assessment order dated 23.02.2010 on the ground that assessment order under Section 9C of the 1999 Act has been made by way of Orissa Entry Tax (Amendment) Act, 2005 which came into force with effect from 19.05.2005. The writ petition has been dismissed by the Division Bench by its judgment dated 08.11.2010 on the ground that the petitioner is at liberty to seek its alternative remedy by filing an appeal within a period of two weeks, the writ petition was disposed ofCIVIL APPEALS OF STATE OF KERALA26. The civil appeals relating to State of Kerala have been filed both by State of Kerala as well as by its officers. State of Kerala has filed appeals against judgment dated 06.01.1998 and several others subsequent judgments following the judgment dated 06.01.1998. Another judgment has been passed by High Court of Kerala on 18.12.2006. There is one writ petition filed by a company. It is sufficient to notice facts of few cases to decide the group of cases relating to KeralaState Of Kerala & Ors v. FR. William Fernandez & Ors27. The State is in appeal against the Division Bench judgment dated 06.01.1998 of Kerala High Court delivered in a batch of writ appeals including Writ Petition No. 770/1997; Father William Fernandez & Ors. v. State of Kerala & Ors. The various petitioners imported motor vehicles from abroad after obtaining custom clearance and payment of custom duties and thereafter brought the vehicles in the State of Kerala. Some of the petitioners have also got their vehicles registered under the Motor Vehicles Act which have been given notice demanding entry tax under Kerala Tax on Entry of Goods into Local Areas Act, 1994 (hereinafter referred to as `1994 Act). The writ petition was heard by learned Single Judge who vide its common judgment dated 20.2.1997 dismissed all the writ petitions holding that entry tax can be collected from the owners of the vehicles who brought them from abroad before granting them registration in the State for consumption, use or sale. Writ Appeals were filed against judgment dated 20.2.1997 which have been decided vide common judgment dated 06.01.1998. Although, the Division Bench held that there is no limitation upon the States powers to legislate under Entry 52 List II of the VIIth Schedule of the Constitution but in case of goods, brought from abroad their entry into local area is outside the scope of 1994 Act, which Act is confined only to those goods brought from outside the State, that would not include the outside borders of the country. The Division Bench declared that vehicles bought from outside the country are not liable to pay entry taxCivil Appeal No. 6178 of 2010State of Kerala & Ors. v. Idea Cellular Ltd28. This appeal has been filed against the judgment dated 18.12.2006 of Division Bench of Kerala High Court by which judgment a bunch of writ petitions have been decided holding that the levy of entry tax under 1994, Act as discriminatory and violative of Article 14, 301 and 304 of the Constitution of India. The Division Bench followed the earlier Division Bench judgment of the Kerala High Court in Father William Fernandez case decided on 06.01.1998. Writ petition was filed by various assesses challenging the constitutional validity of 1994, Act and also questioning the entry tax on goods brought from outside the State or and goods brought from outside the country to the State of Kerala. The Division Bench held that levy of entry tax on goods imported from other States to the State of Kerala and from abroad is not compensatory in nature and such demand is illegal, unauthorised and violative of Article 301. Application for intervention has also been filed by various petitioners which applicants have also been heard. State has filed other appeals questioning subsequent judgments which have followed judgment dated 06.01.1998 and 18.12.2006Writ Petition (C) No. 574 of 2003Parisons Agrotech Private Ltd. & Anr v. State of Kerala & Ors29. This writ petition has been filed under Article 32 of the Constitution praying for declaration that 1994, Act is ultra vires and unconstitutional and the Act also does not apply to the entry of goods imported in India from foreign country. The petitioner company is engaged in the import of crude palmolin, refining the same to make it edible and thereafter selling of palmolin oil. The petitioner imports crude palmolin oil in bulk from Malaysia, Indonesia and Singapore. Purchase of crude by the petitioner is in the course of import from foreign countries and imported through Cochin Port within the State of Kerala. The said sale & purchase in the course of import is exempted from the levy of tax under Article 286 of the Constitution of India read with Section 5(2) of the Central Sales Tax Act, 1956. The respondent directed the first petitioner to remit the entry tax of purchase price of crude palmolin imported by the petitioner. Petitioner has also relied on Division Bench judgment of the Kerala High Court delivered in bunch of writ appeals including Writ Appeal 770 of 1997 against which SLP/Civil Appeal has been filed being CA 33813400 of 1998 and is pendingCivil Appeals relating to State of BiharCivil Appeal arising out of SLP(C) No. 26543 of 2008M/s ITC Ltd. v. State of Bihar30. This appeal has been filed against Division Bench judgment of Patna High Court dated 27.08.2008 by which the writ petition has been disposed of in terms of Para 69 Page 70 of the earlier decision in the case of M/s Indian Oil Corporation Ltd. (dated 09.1.2007 reported in 2007 10 BST 140 Patna). The petitioner is a company engaged in the business of manufacturing and selling of cigarettes and smoking mixtures. Company carrying on business of manufacturing paper, paper board, packaging materials and printing, thereon for said purpose Company has factories at different places all over the country including in Munger in the State of Bihar. For manufacturing of cigarettes smoking mixtures, the company causes entry of tobacco and other raw materials purchased from outside the State of Bihar into the local area of Munger. The State of Bihar has enacted the Bihar Tax on Entry of Goods into Local Areas Act 1993(hereinafter referred to as 1993, Act). The 1993, Act has been amended by Bihar Act, 9 of 2003, Bihar Act, 11 of 2003 and Bihar Act 19 of 2006. By Bihar Act 11 of 2003, an explanation has been added to the effect that entry of goods into local area for consumption, use or sale therein from any place outside the territory of India shall also be deemed to be an entry of goods for the purposes of the Act. Petitioner challenged the vires of the Act, as amended in 2003. Petitioner prayed for direction to remove, withdraw and cancel the collection of entry tax under the impugned ActCivil Appeal arising out of SLP(C) No. 11646 of 2009VST Distribution Storage v.The State of Bihar & Ors31. This appeal has been filed against judgment dated 28.08.2008 by which judgment the writ petition filed by the appellant has been disposed of in terms of the para 69 of the Division Bench judgment of Patna High Court, M/s Indian Oil Corporation Ltd. (supra)Civil Appeal arising out of SLP(C) No. 7356 of 2010ITC Ltd v. State of Bihar32. This appeal has been filed against judgment and order dated 15.02.2010 of the Division Bench of the Patna High Court by which writ petition filed by the petitioner has been dismissed. Petitioner has challenged the constitutional validity of 1993, Act thereby challenging the Section 4 of 1993, Act as inserted by Amendment Act 19 of 2006. It was prayed that Amendment Act be declared as ultra vires to the power of State Legislature. Petitioner has also challenged the demand notice dated 20.6.2009 issued by Joint Commissioner, Commercial Tax Bhagalpur and demand notice dated 03.07.2009 under the Amendment Act, 19 of 2006. It was noticed in the writ petition that in view of the judgment dated 09.01.2007 of the Patna High Court in Indian Oil Corporation Ltd. (supra) after the amendment by amending Act, 19 of 2006 the entry tax sought to be levied with effect from 29.08.2006, has become compensatory and constitutionally validCivil Appeal of State of JharkhandCivil Appeal arising out of SLP (C) 1101 OF 2007State of Jharkhand & Ors. v. Tata Iron & Steel Co. Ltd33. State of Jharkhand filed an appeal against the Division Bench judgment dated 14.08.2006 delivered in Writ Petition(T) No. 5354 of 2004, Tata Iron & Steel Co. Ltd. Jamshedpur, Sinhbhumi v. State of Jharkhand. The petitioner is engaged in manufacturing the iron & steel products by its integrated steel plant at Jamshedpur in the State of Jharkhand. For the purpose of manufacturing activities, company is importing coal from Australia and Newzealand in pursuant to several foreign contracts executed with foreign parties which comes to Haldia and Paradeep Ports in India and from there said coal is transported either by rail or road to Jamshedpur in the State of Jharkhand. 1993, Act was adopted in the State of Jharkhand after its creation from 15.11.2000. A Notification dated 23.03.2002 was issued under Sub section 1 of Section 2 by adding 10 new items to the schedule. Notification dated 23.03.2002 was issued levying the entry tax on imported coal. A memorandum was issued by Commissioner of Commercial Tax. Petitioner prayed for quashing a part of the Notification dated 23.3.2002 by which entry tax was sought to be levied by the State of Jharkhand on imported coal and other consequential reliefs have been claimed34. The Division Bench vide its judgment and order dated 14.08.2006 allowed the writ petition holding that provisions of 1993, Act as adopted by the State of Jharkhand do not satisfy the requirement of Article 301 read with Article 304. State Aggrieved by the said judgment have come up in the appeal. This appeal was heard by this Court on 29.08.2017 by which proceeding the impugned judgment of the Jharkhand of High Court which rested on the Compensatory Theory has been set aside. It is useful to quote the last two paras of the proceeding dated 29.08.2017 which is to the following effect:We need not comment upon this argument. Suffice is to state that insofar as the impugned judgment which is rested on the compensatory theory stands set aside, if any rights accrue in favour of the respondent/assessee or the respondent has any right to challenge the levy on the aforesaid ground which was taken before the High Court it would be open to the respondent/asseesee to pursue the sameThe respondent/assessee had also raised the contention that coal was imported on which no entry tax was paid. On this aspect, we have heard the arguments and the judgment is reserved.

Reasoning:
44. From the submission raised by learned counsel for the parties and material on record following issues arise for consideration in this batch of appeals:i. Whether Section 2(d) read with Section 3 of Orissa Entry Tax Act, 1999, Section 2(d) read with Section 2(d) of Kerala Act, 1994 and Bihar Act, 1993 (before its amendment in 2003), never intended to levy any entry tax on the goods, entering into local area of State from any place outside the territory of Indiaii. Whether Entry Tax Legislations in question intrude into exclusive legislative domain of Parliament as reserved under Entry 41 and Entry 83 List Iiii. Whether levy of entry tax on goods imported from outside territory of India is legislation trenching the field of import and export, duties of custom reserved to Parliamentiv. Whether the importation of goods, imported from a territory outside the India continues till the goods reach in the premises/factory of the importer, during which period State at no point of time is legislative competence to impose any taxv. Whether doctrine of unbroken package as evolved by the American Court are to apply with regard to imported goods of the petitioners prohibiting the State from levying any tax till the goods are first sold/dealt by the importervi. Whether in the definition of purchase value as contained in Entry Tax Legislations in question,n of custom duty is indicator of fact that the legislature never intended to levy entry tax on imported goodsvii. Whether Entry Tax Legislations are not covered by Entry 52 List II since the Entry 52 is in essence entry of levying octroi which can be levied only by local authorities and the State has no legislative competence to impose entry tax under Entry 52 List IIISSUE NOS.1, relating to the three States enactments as noted56. The definition of Section 2(d) on its own term does not cover entry of goods into a local area from any place outside the country58. The plain and literal construction when put to Section 3 read with Section 2(d) clearly means that goods entering into local area from any place outside the local area or outside the State are to be charged with entry tax. Foreign territory would be a place which is not only outside the local area but also outside the State. The writ petitioners are trying to introduce words of limitation in the definition clause59. It is well known rule of statutory interpretation that by process of interpretation the provision cannot ben nor any word can be introduced. The expression any place before the words outside the State is also indicative of vide extent. The words any place cannot be limited to a place within the territory of India when no such indication is discernible from the provisions of the Act63. There cannot be any dispute to the proposition as laid down by this Court in the above noted cases. Statutes which are in consideration are the statutes where clear charging provision has been enacted and charging of entry tax is on entry of the scheduled goods into a local area for consumption, use or sale. Thus, the charging event arises on entry of scheduled goods into a local area. Any goods which are entering into a local area of a State whether coming from another local area of State, any other State or outside the country, the charging event is same for all goods entering into local area. We, thus, are of the clear view that charging Section is clear, unambiguous and the provisions cannot be read to mean that the imported goods coming from outside the country are excluded from charge of entry tax. No such indication is discernible from any provision of the Act. Charging event is complete as and when goods enter into local area for use, sale or consumption irrespective of its origin. We, thus, are of the view that definition clause, Section 2(d) read with Section 3 does not exclude the charging of the entry tax on goods entering into local area for consumption, use or sale from outside the country64. In so far as reference of Section 2(c) of the Bihar Act, 1993 as amended in 2003 by adding an explanation and as amended in 2006 by inserting a new Section 2(c), Section 2(1) (c) of Uttar Pradesh Tax on Entry of Goods into Local Area Act, 2007, Section 2(1)(c) of the Uttarakhand Tax on Entry of Goods into Local Areas Act, 2009 as well as Section 2(1)(c) of the West Bengal Tax on Entry of Goods into Local Areas Act, 2012 which expressly includes entering into local area from any place outside the territory of India, we only say that the said inclusion of words from outside the India is a provision made by way of abundant caution67. In Section 2(d) the word used is any place outside that local area or outside the State. The word any is a word of very wide meaning and use of word any excludes any limitation. We, thus, are of the view that all the three legislations clearly did not exclude goods coming from outside the territory of India and the definition of entry of goods read with charging section clearly included all goods entering into a local area. Thus, the submissions of learned counsel for the petitioners that entry tax legislation did not include imported goods cannot be accepted68. Issue Nos. 2 and 3 being interrelated are being taken together74. Entries in VIIth Schedule are not powers but fields of legislation. It is also well settled that in deciding whether any particular enactment is within the purview of one Legislature or the other, it is pith and substance of the legislation that has to be looked into. Whenever a State legislation is challenged as being under the competence of the State Legislature, the test, which has been laid down by this Court is that one must find out by applying the rule of pith and substance that whether the legislation falls within any of the List II, if it does, no further question arises. Attack on the ground of legislative competence must fail83. As noted above, although, Nine Judges Constitution Bench had left the question open of validity of entry tax on goods imported from countries outside the territories of India, the two Honble Judges, i.e. Justice R. Banumathi and Justice Dr. D.Y. Chandrachud while delivering separate judgment have considered the leviability of entry tax on imported goods in detail. Both Honble Judges have held that there is no clash/overlap between entry levied by the State under Entry 52 List II and the custom duty levied by the Union under Entry 83 List I. We have also arrived at the same conclusion in view of the foregoing discussions. We thus hold that entry tax legislations do not intrude in the legislative field reserved for Parliament under Entry 41 and under Entry 83 of List I. The State Legislature is fully competent to impose tax on the entry of goods into a local area for consumption, sale and use. We thus repel the submission of petitioner that entry tax legislation of the State encroaches in the Parliaments field84. Now, we come to Issue No.IV relating to import and its extentIn point of fact, any legislation relating to the course of import or export has to relate to Entry 41 read with Entry 83 of List I and it cannot relate to any other Entry and definitely not to any Entry in State List93. The submissions of the writ petitioners on the strength of Section 5(3) that even first sale after the import should be treated during the course of the import is not supported by the concept as contained in Section 5 of the 1956 Act and the reliance on the said provision is wholly misplaced94. As noted above, the restriction in the legislative power of the State as contained in Article 286 is with regard to taxing on sale or purchase of goods which takes place outside the State or in the course of import of the goods or services or export of goods or services. The restriction of Article 286 does not ipso facto can be placed while considering the legislative field of the State under Entry 52 and by virtue of Article 286 no restriction can be put on the legislative competence of the State in the field as defined under Entry 52. However, the concept underlined in the course of import of the goods as in Article 286(1)(b) can very well be applied to find out as to when the import of goods come to an endWhen the goods land in the custom area of the Indian territory and released for the home consumption, it forms part of the mass of goods within the country and the importation is complete. We, thus, do not find any inconsistency in the constitutional concept of import as envisaged in Article 286(1)(b) and the concept of import as is contained in Customs Act, 1962104. There cannot be any dispute to the proposition as laid down by this Court in the above case that the scope and ambit of the Constitutional entries have to be given a wide meaning and scope. There is no inhibition on the Parliament in exercising its legislative power under Entry 41 List I to define customs frontiers and further legislate with regard to duties of customs. Even if we do not confine to the definition of imported goods as given in the Customs Act, 1962, the generally accepted meaning and definition of import as has been laid down in cases as noted above is that import commences when the goods leave the customs frontiers of the country from where the goods are imported and continue when the goods enters into the customs frontiers of imported country and ends when goods are released for home consumption. Till the event of import is over, Parliamentary Legislation, the control of Union continues for ensuring the realisation of the customs duties105. In view of the foregoing discussions, we are of the clear opinion that taxing event with regard to levy of customs duty by Parliament and levy of entry tax by States under Entry 52 List II are entirely different and separate. The taxing event pertaining to levy of entry tax occurs only after the taxing event of levy of customs duty is over. Thus, the State Legislation imposing entry tax in no manner encroaches upon the Parliamentary Legislation under Entry 41 and Entry 83. There is no invalidity in levy of entry tax by the States118. From the above, it is clear that the U.S. Supreme Court itself has abandoned the Original Package theory and it has been held that imported goods are not immuned from nondiscriminatory ad valorem taxes imposed by the State123. In view of the foregoing discussions, we conclude that goods imported after having been released from customs barriers are not immuned from any kind of State taxation, which fall equally on other similar goods and the submission of the learned counsel for the petitioner that immunity from State taxation shall continue till it reaches in the premises where it is to be taken for consumption, sale and use cannot be accepted125. From the definition of purchase value given in 2(j) three aspects are noticeable. Firstly, purchase value means the value of scheduled goods as ascertained from original invoice or bill. Secondly, it includes insurance charges excise duty and other charges mentioned therein. And thirdly, other charges incidental to the purchase of such goods. The original invoice or bill of scheduled goods, generally include the entire value including the import duty or custom duty and in any event the inclusion of all other charges incidental to the purchase of such goods has to necessarily mean all charges including custom duty which is incidental to the purchase. Thus,n of custom duty specifically in definition of purchase value in 2(j) is inconsequential and cannot lead to mean that the legislature never intended to include the imported goods under the entry tax legislation127. We thus do not find any substance in the submission of petitioner thatn of custom duty in definition of purchase value leads to conclusion that entry tax is not payable on entry tax129. Neither the Government of India Act, 1935 nor the Constitution of India has used octroi. Constitution of India consciously avoided to use the term Octroi. List II Item No. 52 provided tax on the entry of goods in local area for consumption, use or sale. List I Entry 89 contained another tax, namely, terminal tax on goods and passengers carried by railway, sea or air, tax on railway fair and freight132. It is well settled that the nomenclature or form of a tax is not a decisive factor to find out the nature of the tax. It is the matter of legislative policy as to how the tax is to be collected. The definition of taxation as given in Article 266 (28) that tax includes general or local tax does not in any manner support the contention of the petitioner that tax under Entry 52 is only a local tax which ought to be collected through local bodies. It is the matter of legislative policy that whether a tax is collected as a general tax or a local tax. The nature of tax, measure of tax and machinery for tax collection are all different aspects. The submission of the petitioner that tax in Entry 52 should be collected by local authorities and State has no legislative competence to levy such tax is fallacious. It is well within the jurisdiction of the legislature to formulate its policy regarding levy of tax and its collection. Entry 52 of List II has to be given its wide and full meaning and no limitation in the legislative power of the State can be read as contended by counsel for the petitioner134. Thus, taxes which are to be used by the local authorities can be collected by the local authorities as well as by the State Government. It is the matter of legislative policy as to how the tax is collected and distributed. Under List II Entry 5, the State has legislative power to lay down powers of the Municipal Corporation by legislation. It is again legislative policy that as what machinery is to be provided by the State legislature regarding collection of taxes on the entry of goods into a local area for consumption, use or sale. No capital can be made on the submission that since tax is not being collected by local authorities it is beyond the power of the State under Entry 52 List II135. We thus do not find any substance in the submission of the learned counsel for the petitioner that entry tax legislation is not covered by Entry 52 List II139. The Plant in a knocked out condition is nothing but a collection of machineries. The plant being a wide term including machinery also, we fail to see how a knocked out plant shall not be covered by Item No. 9 of Part II of the Schedule. Machinery and equipments are wide words which shall also cover plant in a knocked out condition. We thus reject the contention of the counsel for the petitioner that a plant which is imported in knocked out condition is not covered by the Part II of Schedule of Orissa Act, 1999140. One more submission raised by one of the learned counsel for the writ petitioners also needs to be noted. Section 4 of Bihar Act, 1993 as inserted by Bihar Act 19 of 2006 was also challenged on the ground that it violates constitutional provision of Article 266. Section 4 deals with utilization of the proceeds of the levy under the Act. Section 4 subsection (1) provides that the proceeds of the levy under the Act shall be appropriated to the fund and shall be utilised exclusively for the development of trade, commerce and industry in the State of Bihar. Presumably, the said amendment was brought by the State Legislature to support the States claim that levy is compensatory in nature. The submission of the writ petitioners is that Section 4 indicates that the tax levied under the Act would be collected and kept in a separate fund which according to the writ petitioners is contrary to the constitutional mandate of Article 266 of the Constitution, which specifically mandates that all public money must be credited to the Consolidated Fund of respective States. There are two reasons due to which the above submissions cannot be accepted. Firstly, Section 4 relates to creation of fund and utilisation of funds received from the collection of entry tax141. Although learned counsel for the writ petitioners sought to distinguish the above decision on the ground that the said observations were made while the Court was considering the entirely different issue that is an issue relating to interse transfer of money from Consolidated Funds of respective States to Consolidated Fund of India. As per aforesaid judgment the challenge to the validity of the Act on the ground that it is violative of Article 266 was repelled. What was held by this Court as quoted above clearly negates the submissions raised by the learned counsel for the writ petitioners on the basis of Article 266. In any view of the matter, the said ground has no relevance with regard to levy of entry tax on imported goodsThe parameters under which entry tax can violate the Article 304(a) has now been conclusively laid down by Nine Judges Bench in Jindal Stainless Ltd.(supra). We are thus of the view that liberty be given to petitioners to raise the plea of discrimination under Article 304(a) in accordance with the law as laid down by Nine Judges Bench in Jindal Stainless Ltd.(supra). We, however, are of the view that for the above purposes, it is not necessary to grant any liberty to file a fresh writ petition at this stage and at this distance of time. The ends of justice shall be served, if liberty is granted to the petitioners to revive their writ petitions by making a proper application before the High Court. In the writ petitions which have been dismissed by the Orissa High court against which present appeals are decided, the liberty to revive such petition and to urge ground under Article 304(a) is granted which can be availed only within the period of 30 days from the date of this judgment.