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TMI Blog1976 (7) TMI 153X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that entry No. 72 in the First Schedule relating to tapioca is discriminatory and violative of article 14 of the Constitution. On that basis it is argued that these petitions which were filed prior to the Presidential Order dated 27th June, 1975, will have to remain suspended without being decided. 2.. In Makhan Singh v. State of PunjabA.I.R. 1964 S.C. 381., the Supreme Court pointed out: "(9) Article 359, on the other hand, does not purport expressly to suspend any of the fundamental rights. It authorises the President to issue an order declaring that the right to move any court for the enforcement of such of the rights in Part III as may be mentioned in the order and all proceedings in any court for the enforcement of the right ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ute a sort of moratorium or a blanket ban against the institution or continuance of any legal action subject to two important conditions. The first condition relates to the character of the legal action and requires that the said action must seek to obtain a relief on the ground that the claimant's fundamental rights specified in the Presidential Order have been contravened and the second condition relates to the period during which this ban is to operate. The ban operates either for the period of the Proclamation or for such shorter period as may be specified in the Order." 3.. The proceedings which will have to remain suspended are those proceedings which are pending in courts at the time of the Presidential Order, "for the enforcement ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nted out by M.S. Menon, C.J., in Catholic Bank of India Ltd. v. Jacob1967 K.L.T. 416 (F.B.).: "The proposition that there should be no discrimination either in the privileges conferred by a statute or in the liabilities imposed by it is not a proposition that is absolute in its application. Societies are unequal in their basic structure and normal manifestations and a reasonable classification, therefore, is not only permitted but is essential for the achievement of the equality that is desired and the progress that is necessary. All that can be said is that the classification effected should not be arbitrary in character and that it should be based upon differences pertaining to the subject and the purpose of the enactment concerned." ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if it involves movement from one part of the State to another part of the same State, would encumber the movement part of it and is a restriction on the freedom of trade and commerce" and that, therefore, "it would mean that imposition of sales tax by a State on intra-State sale, at any rate, when the sale involves movement of goods will be restriction of trade and commerce" for which reason "unless the law imposing it has received the previous sanction of the President, the law would be bad as a tax on sales is neither regulatory nor compensatory" in any way has unsettled the rule that "restrictions, freedom from which is guaranteed by article 301, would be such restrictions as directly and immediately restrict or impede the free flow or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ith reference to imposition of tax on sale of cane jaggery under the Madras General Sales Tax Act, 1959. In State of Tamil Nadu v. Sitalakshmi Mills Ltd.[1974] 33 S.T.C. 200 (S.C.)., Mathew, J., on behalf of the court approvingly referred Atiabari Tea Co.'s case(1) and said that "normally, a tax on sale of goods does not directly interfere with the free flow or movement of trade". And in Krishnan's caseA.I.R. 1975 S.C. 583. relied on by Mr. Naha, Mathew, J., said: "For a tax to become a prohibited tax, it has to be a direct tax, the effect of which is to hinder the movement part of the trade." 6.. The petitioners have no case that the imposition of the tax in question in any manner restricts the movement of tapioca directly with. in the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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