JUDGMENT
K.M. Agarwal, J.
1. This order shall also dispose of Misc. Petition No.1508 of 1981, Sudhamalal Darshanlal and eight others v. State of M.P. and another and Misc. Petition No. 47 of 1982, Rampal Ramgopal and 4 others v. State of M.P. and two others.
2. In all these petitions under Article 226 of the Constitution, the petitioners pray for striking down the amendments made by Madhya Pradesh Act No. 33 of 1981 in the Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (in short, the “Entry Tax Act”) and claim exemption from payment of entry tax on whole pulses brought into a local area for sale outside the State, or in the course of inter-State trade or commerce after manufacturing split pulses, besides claiming other ancillary reliefs. The amending Act No. 33 of 1981 was given retrospective effect.
3. The incidence of taxation is given in Section 3 of the Entry Tax Act. Prior to the impugned amendment, Clause (v) of the first proviso to Section 3(1) read as follows :
“(v). in respect of goods specified in Schedule II which after entry into a local area are sold outside the State or in the course of inter-State trade or commerce or in the course of export out of the territory of India within the meaning of Section 50 of the Sales Tax Act”.
By the amendment, the underlined words, “within the meaning of Section 50 of the Sales Tax Act”, appearing in Clause (v) of the first proviso to Section 3(1) were omitted with retrospective effect Similarly the words and figures, “within the meaning of Clause (i) of Sub-section (1) of Section 50 of the Sales Tax Act”, occurring in Clause (d) of Section 6 of the Entry Tax Act were omitted ; and in Clause (i) of the first proviso to Sub-section (1) of Section 4 the brackets, words and figures “(other than those specified at serial numbers 3, 13 and 14 thereof)” were substituted for the brackets, words and figures “(other than those specified at serial numbers 13 and 14 thereof)” by the impugned amending Act No. 33 of 1981. Schedule II of the Entry Tax Act was also amended by Section 5 of the Amending Act No. 33 of 1981. It appears that these amendments in the Entry Tax Act were introduced with retrospective effect in order to wipe out the effect of the following decision of this Court in C.B. and Co. v. D.K. Verma 1981 MPLJ 229:
“11. The learned counsel for the petitioner then argued that even if crushed or separated pulses and whole pulses constitute different goods they must be taken to be same goods in view of Section 15(d) of the Central Sales Tax Act, 1956. It is this argument which we now proceed to examine. Pulses enumerated in item 14 of Schedule II to the Entry Tax Act are goods declared to be of special importance in inter-State trade or commerce by Section 14(vi-a) of the Central Sales Tax Act. Further, Section 15(d) of this Act provides that each of the pulses referred to in Section 14(vi-a) whether whole or separated, and whether with or without husk, shall be treated as a single commodity for the purposes of levy of tax under every sales tax law of a State. There can, therefore, be no doubt that whole and separated pulses constitute same goods for levy of tax under the State Sales Tax Act. The words ‘for the purpose of levy of tax’ in our opinion as used in Section 15(d) of the Central Sales Tax Act are wide enough to cover the purpose of non-levy of tax or the claim of exemption from tax because the purpose of levy of tax and the purpose of non-levy of tax are in fact two sides of the same purpose and they cannot be dissociated or treated differently in relation to categorization of goods. Whole pulses and separated pulses have thus to be treated as same goods for purposes of Section 50 of the State Sales Tax Act which provides for exemption from tax when the sales take place outside the State or in the course of inter-State trade or commerce or in the course of export. Now for deciding whether the exemption under Section 6(d) or proviso (v) to Section 3 of the Entry Tax Act can be allowed to the petitioner, we have to decide whether the pulses brought within the local area were sold outside the State or in the course of inter-State trade or commerce within the meaning of Section 50 of the State Sales Tax Act and if for this section we have to treat whole pulses and separated pulses as one commodity because of Section 15(d) of the Central Sales Tax Act, it necessarily follows that if whole pulses after being crushed or separated by the petitioner were sold outside the State or sold in the course of inter-State trade or commerce, the petitioner was entitled to the benefit of the exemption. It is true that there is no specific provision in the Entry Tax Act that whole pulses and separated pulses will be treated as one commodity but the words ‘within the meaning of Section 50 of the Sales Tax Act’ as they occur in Section 6(d) and proviso (v) to Section 3 of the Entry Tax Act bring in that principle for deciding whether pulses brought into a local area have been sold outside the State or in the course of inter-State trade or commerce.”
It was, therefore, argued that the amending Act could not be given retrospective effect, because the incidence of sales tax was on the buyer and it would not be possible for the seller to recover it from the buyer in respect of past transactions.
4. We find no substance in the contention. In Hira Lal Rattan Lal v. Sales Tax Officer, Section III, Kanpur [1973] 31 STC 178 (SC) ; AIR 1973 SC 1034, the Supreme Court upheld the retrospective levy of sales tax and observed that the “contention that the retrospective levy did not afford any opportunity to the dealers to pass on the tax payable to the consumers, has not much validity. The tax is levied on the dealer ; the fact that he is allowed to pass on the tax to the consumers or he is generally in a position to pass on the same to the consumer has no relevance when we consider the legislative competence.” In the light of this decision of the Supreme Court, it is not necessary for us to discuss the decision of the Calcutta High Court in Bengal Paper Mill Co. Ltd. v. Commercial Tax Officer, Calcutta [1976] 38 STC 163, relied on by the learned counsel for the petitioners in various petitions. Further the incidence of tax under the Entry Tax Act is not on sale of goods, but on entry of goods into a local area for consumption, use or sale therein, which is an additional ground to reject the contention of the petitioners.
5. It was next argued by the learned counsel for the petitioners that in spite of the impugned amendments in the Entry Tax Act, pulses remained declared goods under Section 14 of the Central Sales Tax Act, 1956 (in short, “the Central Act”), and that the whole and the split pulses formed a single commodity by virtue of Section 15(d) thereof and, therefore, there could be no levy of entry tax on entry of whole pulses into a local area, if they were sold outside the State or in the course of inter-State trade or commerce after manufacture of split pulses. It was also argued that by virtue of Section 15(a) of the Central Act, the tax payable by a State Act on declared goods could not exceed four per cent of the sale or purchase price of such goods, but by the impugned amendments in the Entry Tax Act, tax in excess of four per cent was sought to be levied and recovered and, therefore, the impugned amendments deserved to be struck down.
6. We find no substance in the contention. As earlier pointed out, the tax levied under the Entry Tax Act is in respect of entry of goods into a local area for the purpose of consumption, use or sale therein and not in respect of sale thereof and therefore, Section 14 or 15 of the Central Act cannot be resorted to in attacking the provisions of the Entry Tax Act. In paragraph 10 of the decision of this Court in C.B. and Co. v. D.K. Verma 1981 MPLJ 229, it was observed that “It is clear from the relevant provisions of the Entry Tax Act, i.e., Section 6(d) and proviso (v) to Section 3 read with Section 50 of the Sales Tax Act that the goods which are sold outside the State or in the course of inter-State trade or commerce or in the course of export must be the same goods which enter the local area. In other words, if the goods entering the local area are converted into other goods within the local area, the sale of those other goods outside the State or in the course of inter-State trade or commerce or in the course of export will not enable the goods entering the local area to qualify for exemption.” It was also held that dal or broken pulses constituted different commercial commodity from whole pulses. Yet in the light of the provisions contained in the Central Act, whole and broken pulses were held to be a single commodity for the purpose of levy of tax under every sales tax law of a State and accordingly whole pulses and separated pulses were treated as the same goods for the purpose of Section 50 of the State Sales Tax Act which provided for exemption from tax when the sales took place outside the State or in the course of inter-State trade or commerce or in the course of export. Now as the words, “within the meaning of Section 50 of the Sales Tax Act”, appeared in the unamended Clause (v) of the first proviso to Section 3(1) of the Entry Tax Act, whole pulses and separated pulses were treated as one commodity even for purposes of the Entry Tax Act. After the impugned amendment, whole pulses and separated pulses cannot be treated as the same commodity and the petitioners cannot claim exemption from payment of entry tax on whole pulses entering the local area, which are converted into other goods, i.e., split pulses within the local area and then sold outside the State or in the course of inter-State trade or commerce or in the course of export. The contention, therefore, deserves to be rejected.
7. In Misc. Petition No. 47 of 1982, it was urged that the petitioners’ assessments had already become final prior to the impugned amendments and, therefore, an attempt was made to reopen the cases under Section 39(2) of the State Sales Tax Act for fresh assessments. It was contended that in the circumstances of the case, the assessments could not be revised under Section 39(2) of the State Sales Tax Act However, no reason could be given as to why the assessments could not be revised in the light of the impugned amendments in the Entry Tax Act. The contention, therefore, deserves to be rejected.
8. In the result, all the petitions fail and they are hereby dismissed. In the circumstances of the case, we make no order as to costs of these petitions. The outstanding amounts of security shall be refunded to the petitioners in their respective petitions.