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TMI Blog2012 (2) TMI 491X X X X Extracts X X X X X X X X Extracts X X X X ..... 7 , MISC. BENCH No. - 9549 of 2007 , MISC. BENCH No. - 9466 of 2007 , MISC. BENCH No. - 9395 of 2007 , MISC. BENCH No. - 8194 of 2007 , MISC. BENCH No. - 8193 of 2007 , MISC. BENCH No. - 232 of 2008 , MISC. BENCH No. - 1059 of 2008 , MISC. BENCH No. - 3408 of 2008 , MISC. BENCH No. - 3904 of 2008 , MISC. BENCH No. - 3905 of 2008 , MISC. BENCH No. - 3906 of 2008 , MISC. BENCH No. - 598 of 2009 , MISC. BENCH No. - 913 of 2009 , MISC. BENCH No. - 959 of 2009 , MISC. BENCH No. - 1136 of 2009 , MISC. BENCH No. - 1145 of 2009 , MISC. BENCH No. - 1147 of 2009 , MISC. BENCH No. - 1366 of 2009 , MISC. BENCH No. - 1367 of 2009 , MISC. BENCH No. - 1467 of 2009 , MISC. BENCH No. - 1712 of 2009 , MISC. BENCH No. - 1713 of 2009 , MISC. BENCH No. - 1136 of 2009 , MISC. BENCH No. - 1740 of 2009 , MISC. BENCH No. - 1812 of 2009 , MISC. BENCH No. - 1925 of 2009 , MISC. BENCH No. - 1927 of 2009 , MISC. BENCH No. - 1930 of 2009 , MISC. BENCH No. - 1934 of 2009 , MISC. BENCH No. - 2066 of 2009 , MISC. BENCH No. - 2068 of 2009 , MISC. BENCH No. - 2132 of 2009 , MISC. BENCH No. - 2133 of 2009 , MISC. BENCH No. - 2134 of 2009 , MISC. BENCH No. - 4481 of 2009 , MISC. BENCH No. - 4757 of 2009 , MISC. BENCH ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not saved by Art.304 (b) of the Constitution of India. The petitioners have also challenged the retrospectivity of the Act. w.e.f. 1.11.1999, when the U.P. Tax on Entry of Goods Ordinance, 1999, replaced by U.P. Tax on Entry of Goods Act, 2000, was promulgated and which was struck down by this Court in Indian Oil Corporation Ltd. v. State of U.P., AIR 2004 Alld. 277. The substance of challenge in all these writ petitions to the constitutional validity of the U.P. Act of 2007 is that the entry tax is levied under the Act is by way of payment of compensatory tax of which the quantifiable/ measurable benefits are not provided either facially or patently to its payers, in view of the tests laid down in Jindal Stainless Ltd. (2) Anr. v. State of Haryana Anr., (2006) 7 SCC 241. The expenditure of the entry tax as compensatory tax collected is not broadly in proportion to defray the cost of regulation, or to meet the outley incurred for some special benefit to the trade commerce and industry. There is no link between the entry tax collected and the facilities extended to the trades, directly or indirectly, and for which the State on which the burden of proof lies has failed to prov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... intercourse under Art.301 of the Constitution of India. We have not examined the other issues namely the validity of the notices, assessments, rebates, exemption and the liability of the traders, and manufacturers of the scheduled goods to pay entry tax. All other questions, will remain open to be considered by the competent authorities under the Act in accordance with law. 152. All the writ petitions are consequently dismissed. The interim orders are discharged. Being aggrieved, the petitioners have filed special leave petition before the Hon'ble Apex Court against the judgment and order dated 23.12.2011 (supra). The special leave petition was registered as SLP (C) No. 324-327/2012. The Hon'ble Apex Court on 17.01.2012 passed an interim order following order which on reproduction read as under:- The Respondent/State has levied Entry Tax on import of crude oil into the State under the provisions of U.P. Tax on Entry of Goods into Local Areas Act, 2007 (hereinafter referred as `U.P. Act, 2007'), the vires of which has been upheld by the Division Bench of the High Court of Judicature of Allahabad vide its order dated 23.12.2011 in Writ Tax No. 1483 of 2007 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders of assessment have been completed and the demand notices have been issued. Therefore, the contention of the learned Solicitor General that there was no basis for issuing demand notices; demanding taxes for the aforesaid period, has no merit. In so far as the assessment for the period of 2008--2009, 2009--2010 and 2010--2011 is concerned, the State has admitted that the assessees, for the aforesaid period, have filed monthly returns but have not accepted the liability to pay the entry tax on the import of crude oil. It is also stated that the assessing authority has issued a pre--assessment notice under Section 9(4) of the U.P.Act, 2007. It is also brought to our notice at the time of hearing of this petition that on the request, made by the assessee, the matter now stands adjourned for the years 2008--2009, 2009--2010 to 23 January, 2012 and for the assessment year 2011--2012, is adjourned to 3O January, 2012. A reading of the affidavit, so filed by the respondent--State, would indicate that for the aforesaid period, quantification of the tax liability is yet to be determined, and therefore, it may not be permissible for the State to issue any demand notices demanding tax fr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sued by the assessing authority in accordance with the orders passed by us on 11th January, 2012 and 13th January, 2012 in M/s.Vikram Cement vs. State of U.P. Ors. in Special Leave Petition (Civil) No. 33/2012. Ordered accordingly. SLP (C) No. 324--326/2012 [GAIL (INDIA) LTD. ANR. VS. STATE OF UP. ORS] Learned Solicitor General, Shri R.F.Nariman, has produced the details of Entry Tax assessed and demands pending for the assessment years 2000-- 2001 to 2009--2010. On instructions, he submits that the petitioners herein have paid substantial amount by way of Entry Tax to the Department. It is also his case that what now requires to be paid is approximately 100 crores only. It is also brought to our notice that for the assessment years 2000-- 2001 to 2009--2010, the petitioners have filed appeals/revisions before the High Court/statutory authorities and those appeals are pending for consideration. Now, a request is made that the petitioners should be permitted to make an application/petition for grant of ad-interim stay of the demand notices issued by the respondents -State for the assessment years 2000--2001 to 2009--2010. Shri K.K. Venugopal, learned senior couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e bank guarantee(s) alive during the pendency of these appeals. The amount(s) so deposited/paid and the bank guarantee(s) furnished is subject to the result of these appeals. The appellant shall also deposit 50% of the tax liability/arrears, including interest and penalty, and furnish bank guarantee for the balance amount as and when demand notices are issued under the U.P.Act, 2007 for the past period. In default, the interim order(s) granted by this Court shall automatically stands vacated. In case the State of Uttar Pradesh loses the matter at the time of final hearing, it shall refund to the appellant the amount deposited with interest at the rate which may be fixed by this Court. It is also made clear that in case the appellant loses the matter, the Department is at liberty to encash the bank guarantee(s) offered by the appellant and also issue demand notice(s) demanding interest, and penalty on the amount outstanding as arrears of tax. The appellant shall continue to pay the tax at the prevailing rate(s) for the future period as applicable to each one of the assessees. In view of the interim order passed by us, we expect that the Department shall not resort ..... X X X X Extracts X X X X X X X X Extracts X X X X
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