JAYASWALAS NECO LIMITED Vs. STATE OF JHARKHAND

JUDGEMENT

(1.) THIS is a petition for contempt alleging non -compliance of the order dated 24.7.2007 passed by the co -ordinate Division Bench in W.P.(T) No. 1~77 of 2007 holding therein that the validity of the Bihar Tax on Entry of Goods into Local Area (for Consumption, Use or Sale therein) Act, 1993 was ultra vires.

(2.) THE petitioner, therefore, filed a fresh writ petition bearing W.P.(T) No. 1010 of 2007 for refund of the amount of Entry Tax in view of the fact that the Act was declared ultra vires. The respondent -State submitted before the Bench that the judgment and order declaring the Act as ultra vires should be treated as having prospective effect and it could not be applied with retrospective effect so as to claim refund of the amount of the Entry Tax which was realized earlier. Admittedly the respondent -State has preferred an appeal against the judgment and order dated 12.9.2007 and 23.8.2006 before the Hon'ble Supreme Court bearing S.L.P .(C) No. 1101 of 2007 and also S.L.P.(C) No. 1288 of 2007 respectively which have been admitted by the Hon'ble Supreme Court. However, no order of stay has been passed by the Hon'ble Supreme Court in the matter due to which the Division Bench was pleased to pass an order on 12.9.2007 for refund of the amount which the State of Jharkhand had realized in the past from the petitioner -Company by way of Entry Tax. It is for this reason that this petition for contempt has been filed alleging that the respondent -State has not allowed the refund of the amount to the petitioner till date in spite of the order passed by the Division Bench on 12.9.2007.

(3.) CONSIDERING the fact that the judgment and order dated 23.8.2006 by which the validity of the Entry Tax was held to 00 ultra vires, had itself not issued any direction for refund of the amount realized in the past, we see no ground to entertain this contempt petition for refund of the amount of Entry Tax which might have been paid in the past to the State of Jharkhand. Besides this, the matter in regard to the validity of the Entry Tax is still sub -judice before the Hon'ble Supreme Court and, therefore, in our view, any petition for contempt could have been filed by the petitioner before the Hon'ble Supreme Court itself. Even at the risk of. repetition we state, that as the judgment and order referred to hereinabove declaring the Entry Tax as ultra vires, had itself not issued any categorical direction for refund of the amount realized in the past, no case for contempt can be held to be maintainable. At this juncture, we further consider it relevant and appropriate to add that in a similar situation when the Rajasthan High Court had passed an order for refund of the amount realized towards entry tax in the past against which the State of Rajasthan had filed an appeal, the Hon'ble Supreme Court (the number of which can be ascertained by the G.P. -I from the Government Advocate of Rajasthan in the Supreme Court) was pleased to stay the effective portion of the order passed by the Rajasthan High Court directing refund of the amount. In our opinion, reliance can surely be placed on this order also for refusing to refund the amount but above all, the fact remains that in absence of any categorical direction to refund the amount paid towards Entry Tax prior to the declaration of holding the Entry Tax as invalid, no case for contempt is made out. Hence, this petition is dismissed.