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TMI Blog2003 (9) TMI 742X X X X Extracts X X X X X X X X Extracts X X X X ..... le a first appeal before the first appellate authority which also did not yield any results, as a consequence of which the assessee-petitioner was constrained to travel to the Tribunal. It is put forth by him that during the pendency of the proceeding before this Court, the authorities should have adhered to the principle of restraint by showing respect to the conception of propriety but the same has not been done and, therefore, the contempt proceeding was filed. It is note worthy to state here that the said proceeding for contempt has been dismissed being withdrawn. 3.. It is fairly submitted by Mr. Nair that the hub of the matter is the constitutional validity of the annexure P4, a notification issued by the State Government relating to entry tax. We may clearly state here that the other various contentions which have been urged by Mr. Nair are that there has been discrimination inasmuch as the department has proceeded against the petitioner singularly because the assail was to the notification in this writ petition and it has not proceeded against other companies which is discriminatory; that propriety commanded that the assessment proceeding should not have completed during ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Jha, learned counsel for the State did not raise any technical objection in that regard. Hence, we proceed to deal with both the notifications. 4.. Assailing the notifications Mr. Nair raised following contentions: (i) That the notification No. (17) runs counter to section 3(1)(b) of the Act inasmuch as the notification has not taken note of the provision in entirety and has transgressed the basic essence of it by ushering in a sense of ambiguity because the dealer though carrying on business in respect of goods specified either mentioned in Schedule II or in Schedule III may be brought within the net of the said notification really being amenable for payment of entry tax under the statute. (ii) The notification No. (18) which has been issued under section 12 of the Act by providing the rate of tax under section 3(2) is also beyond the rule-making power of the delegated authority as such a power does not flow from section 9 of the Act as a consequence of which there is transgression of section 9 and when a notification runs counter to any statutory provision it cannot be given the stamp of approval and treated constitutionally valid. (iii) Quite apart from above compartmen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion No. (18) is concerned submission of the learned counsel is that as it pertains to the rate of tax at present the same has no applicability to the petitioner if the petitioner is taken away from the net or coverage of the Notification No. (17). 7.. To appreciate the aforesaid submissions in proper perspective we think it seemly to reproduce section 3(1)(a) and (b): "3. Incidence of taxation. (1) There shall be levied an entry tax (a) on the entry in the course of business of a dealer of goods specified in Schedule II, into each local area for consumption, use or sale therein; and (b) on the entry in the course of business of a dealer of goods specified in Schedule III, into each local area for consumption or use of such goods as raw material or incidental goods or as packing material or in the execution of works contracts but not for sale therein; and such tax shall be paid by every dealer liable to tax under the Sales Tax Act who has effected entry of such goods: Provided that no tax under this sub-section shall be levied: (i) .................... (ii) .................... (iii) .................... (iv) in respect of goods specified in Schedule II, oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and shall not include its sale along with the goods packed or contained therein, ........ " On a perusal of the aforesaid provision it is perceptible that subsection (b) lays down a postulate that if goods which enter in course of business by a dealer of goods specified in Schedule III into each local area for consumption or use of such goods but not for sale therein he shall pay such tax. The terms used in the aforesaid provision are "dealer of goods" "in course of business" and "consumption or use" and "goods fall under Schedule III". If these four factors are scrutinised in a cumulative manner indubitably a person who is going to be taxed can definitely claim release from encompassment of the notification No. (17) and section 3(2). 8.. At this juncture we may refer with profit to section 3(2)(a). It reads as under: 3(2)(a) There shall be levied an entry tax on the entry into any local area for consumption, use or sale therein, (i) of such goods specified in Schedule II or Schedule III, and (ii) by such person or class of person to whom the provisions of sub-section (1) do not apply, as may in either case, be notified by the State Government and thereupon such tax sha ..... X X X X Extracts X X X X X X X X Extracts X X X X
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