SHAKTI TRADERS Vs. STATE OF J AND K

JUDGEMENT

(1.) All these eight appeals under clause 12 of the Letters Patent are directed against the common judgment and order dated 30.9.1999 of the learned Single Judge by which he dismissed the writ petitions of the appellants challenging the constitutional validity of the levy of additional toll at the rate of 4 per cent by the State of Jammu and Kashmir ( State ) on the edible oil imported into the State for re-sale with effect from 30th May, 1997 vide SRO 184 dated 30.9.1999.The two writ petitions also involve the challenge to the same levy and the decision in these appeals will govern those writ petitions as well. Those two writ petitions are, therefore, clubbed with these appeals for final hearing and disposal.

(2.) The material facts are as follows. All the appellants and writ petitioners, except appellant Nos. 4 and 6, namely, M/s Daya Chand Jain (LPA No.606/99) and M/s S. K. Enterprises (LPA 116/2000) and writ petitioner, M/s Pawan Traders (OWP 595-A/98), are engaged in the business of manufacture of edible oil in different States, viz. Punjab, Haryana, Gujarat and Madhya Pradesh and sale thereof, inter alia, in the State of Jammu and Kashmir. Appellants 4 and 6 and writ petitioner in OWP 595-A/98 are dealers and distributors engaged in the business of sale of edible oil imported in the State. All the appellants and the writ petitioners are aggrieved by the levy of additional toll at the rate of 4 per cent on the value of edible oils imported in the State with effect from 30th May, 1997 vide SRO 184. According to them, the levy of additional toll at the rate of 4 per cent by the above SRO on the oil imported from outside the State into the State violates article 301 of the Constitution of India. The appellants challenged the above levy by filing writ petitions. The case of the appellants was that the levy of additional toll on the edible oils imported into the State for resale in the State was violative of articles 301 and 304(a) of the Constitution of India. It was contended that the impugned levy was discriminatory in nature because by the said levy edible oils imported from outside the State for the purpose of re-sale in the State were discriminated. It was also contended that the said levy was not saved by article 304(b) of the Constitution of India. In support of this contention reliance was placed on the decision of Supreme Court in Shree Mahavir Oil Mills v State of J & K (1996) 11 SCC 39. The further contention of the appellants before the learned Single Judge was that the oil imported by them being for the purpose of sale and not for re-sale , SRO 184 was not applicable and on that count also the levy of additional toll on the oil imported by them was illegal. The learned Single Judge dismissed the writ petitions of the appellants as he was of the opinion that the levy of additional toll tax on the edible oil imported into the State for re-sale in the State being under a different statute, namely, the Levy of Tolls Act, ( Tolls Act ) was sustainable and the decision of the Supreme Court in Shree Mahavir Oil Mills (supra), which was a case of challenge to the levy of sales tax, was not applicable. The learned Single Judge also rejected the contention of the appellants that the goods having been imported for the purpose of sale and not for the purpose of re-sale , no additional toll could be levied under the impugned SRO because, according to him, once the goods enter the State for the purpose of sale, the levy was attracted. The appellants have challenged the above order of the learned Single Judge by way of these appeals. Similar challenge is in the two writ petitions.

(3.) We have heard M/s Z. A. Shah, Sunil Hali, M. M. Gupta, Subhash Dutt and Rahul Panth, learned counsel for the appellants/writ petitioners, who submit that the levy of additional toll vide SRO 184 of 1997 is illegal and unconstitutional, the same being violative of articles 301 and 304(a) of the Constitution of India. Before we deal with the arguments of the learned counsel for the appellants/writ petitioners (hereinafter, for the sake of brevity, referred to as appellants ), it will be expedient to set out SRO 184. SRO 184 of 1997 reads as below: GOVERNMENT OF JAMMU AND KASHMIR FINANCE DEPARTMENT Notification, Dated, Srinagar the 30th May, 1997 SRO 184 In exercise of the powers conferred by Sub-section (5) of section (3) of the Levy of Tolls Act, Samvat 1995, the Government hereby notifies that additional toll on the edible oil imported into the State for re-sale in the State shall be levied at the rate of 4% on the value of such goods with immediate effect. By order of the Government of Jammu & Kashmir. Sd/- (Dr. R.K.Kotru) Director Finance . From a plain reading of the above SRO, it is clear that additional toll has been levied on the edible oil imported into the State for re-sale in the State at the rate of 4 per cent with effect from 30th May, 1997.