INDIRA BANERJEE,J. - (1.) IN these writ petitions the writ petitioners, who are required, in connection with their business, to bring goods from all parts of India or abroad, into various local areas in West Bengal for sale, use or consumption therein, have challenged the validity of the West Bengal Tax on Entry of Goods into Local Areas Act, 2012 (hereinafter referred to as the 'impugned Entry Tax Act'). As all these writ petitioners involve a common question of law, they were heard together along with similar writ applications in the Appellate Side and are now being disposed of by this common judgment and order. One of the Writ Petitioners is an export oriented unit, having its factory at the Falta Special Economic Zone.
(2.) THE object of the impugned Act, as stated in its preamble is to provide for the levy and collection of taxes on the entry of certain goods into local areas of the State of West Bengal for consumption, use or sale therein and to provide for matters connected therewith or incidental thereto for the purpose of creating a compensatory Entry Tax Fund. Some of the definitions in Section 2 of the impugned Act, relevant for the purpose of this writ application are as follows:- "Section 2(1) (g) "dealer" means a dealer under the West Bengal Value Added Tax Act, 2003, or under the West Bengal Sales Tax Act 1994, as the case may be, and includes-- West Ben. Act XLIX of 1994. (i) a handling or delivery agent or an agent acting in any manner on behalf of the principal, or any other person who takes delivery or is entitled to take delivery of goods on behalf of a dealer on its entry into a local area, (ii) Where specified goods entering any local area have been dispatched to such local area by rail, road, water, air or post, and the consignee of such specified goods does not take delivery of such goods upon entry and such specified goods are sold under the provisions of any other law, the purchaser or any other person who takes livery of such goods on his behalf; Section 2(1) (h) "entry of goods", with all its grammatical variations and cognate expressions, means bringing of goods into a local area from any place outside that local area or any place outside the State or from outside India, for consumption, use or sale therein, whether by a dealer or an importer other than a dealer himself or by any other person; Section 2(1) (i) "Fund" means thç West Bengal Compensatory Entry Tax Fund established under sub-section (1) of section 15; Section 2(1) (j) "goods" includes all kinds of movable property other than actionable claims, stocks, shares or securities; Section 2(1) (k) "importer' includes a person who in any capacity brings, or causes entry of, any specified goods into a local area for consumption or use therein /and a dealer; Section 2(1) (1) "import value", in respect of a consignment of specified goods upon entry of such goods in a local area by or on behalf of a dealer or an importer other than a dealer, means-- (a) the price or cost at which the dealer or importer other than a dealer has purchased or procured or acquired or obtained the specified goods, as shown in the original tax invoice, invoice or bill or stock transfer advice or document of like nature; or (b) where the tax invoice, invoice or bill or stock transfer advice or document of like nature is not available or is not produced, or where the price or cost of such specified goods is not separately mentioned therein, or where the tax invoice, invoice or bill or stock transfer advice or document of like nature produced is proved to be false or the information furnished therein is found to be incorrect, the prevailing market price of such specified "goods in the local area; Section 2(1) (m) "local area" means the areas within the limits of a Municipal Corporation or any municipality or Gram Panchayat or Notified Area Council or any other local authority, by whatever name called, constituted or continued in the State of West Bengal by any law for the time being in force; Section 2(1) (o) "person" includes any company or association or body of individuals whether incorporated or not and also a Hindu undivided family, a firm, a local authority, Government of India, the Government of any State or Union Territory, a statutory body, a trust or other body corporatre, a society including a co-operative society, a factor, a broker, a commission agent, a del credere agent, an auctioneer, an agent for handling or transporting of goods or handling of document of title to goods, or any other mercantile agent, by whatever name called, an educational institution, any bank, any hospital or nursing home or diagnostic centre, a joint-venture company, and a limited liability partnership or other juristic person; Section 2(1) (y) "turnover of imports", used in relation to any registered dealer with reference to a period of time, means the aggregate of the import value of specified goods which the dealer brings or receives in any local area during the period for consumption, use or sale therein, and used in relation to an unregistered dealer or importer other than a dealer, means the import value of a consignment of specified goods brought or received in any local area for consumption, use or sale therein, whether by the dealer or the importer other than a dealer himself or by any other person;" Section 2(2) of the impugned Act interalia provides that words and expressions used but not defined in the impugned Act but defined in the West Bengal Sales Tax Act, 1994 or the West Bengal Value Added Tax, 2003 would have the same meanings as assigned to them in those Acts to the extent they are not inconsistent with the impugned Act and the Rules made thereunder.
(3.) THE relevant Sections of the impugned Act are set out hereinbelow for convenience. "Section 4. Incidence and levy of tax-- (1) Subject to the-provisions of this Act, there shall be levied a tax under this Act which shall be payable by a dealer or an importer other than a dealer, on the entry of all or any specified goods into a local area for consumption, use or sale therein, on his taxable turnover of imports or on the quantity or weight of any specific goods as may be notified by the State Government at such rate or rates as may be specified under sub-section (2). Explanation.-- Where any specified goods are consumed, used or sold in a local area by a dealer or an importer other than a dealer, it shall be presumed, unless the contrary is proved by him, that such goods had entered into that local area for consumption, use or sale therein. (2) The State Government may, by notification, specify the rate of tax levied under this Act, which shall not exceed five per centurm when such tax is levied on taxable turnover of imports, and. different rate or rates of tax may be specified in respect of different specified goods, or for the different categories of consumption or use or sale of such specified goods, or for different local areas. (3) The State Government shall have regard to financial needs for development and facilitation of trade, commerce and industry in the local areas of the State while specifying the rate or rates of tax under sub- section (2). (4) Subject to such restrictions and conditions as may be prescribed, no tax. under this Act shall be levied, and accordingly the import value of goods shall not be included in turnover of imports of a dealer or an importer other than a dealer, in respect of- (a) entry of specified goods dispatched, at the time of entry into a local area, directly to a place for immediate export of such goods out of the territory of India within the meaning of sub-section (1) of section 5 of the Central Sales Tax Act. 1956. from such place in the same form in which such goods have been entered into the local area; 74 of 1956. (b) entry of specified goods dispatched at the time of entry into a local area directly to a place outside the State in the same form in which such goods have been entered into the local area; and such other entry of goods, either in full or in part, as (c) may be prescribed. (5) The expression "taxable turnover of imports" as stated in sub- section (1) shall mean, in respect of a dealer or an importer other than a dealer liable to pay tax on the entry of specified goods into a local area for consumption, use or sale therein, that part of his turnover of imports which remains after deducting therefrom-- (a) turnover of imports relating to entry of specified goods into a local area, if it is proved to the satisfaction of the Commissioner that such goods have already been subjected to tax under this Act in the same form; (b) turnover of imports relating to entry of specified goods into a local area, if it is proved to the satisfaction of the Commissioner that such goods have been purchased in the same form against a tax invoice, or invoice, or bill issued under the West Bengal Value Added Tax Act, 2003, or the West Bengal Sales Tax Act, 1994, by a dealer registered under the West of Bengal Value Added Tax Act, 2003, or the West Bengal Sales Tax Act, 1994, as the case may be; (West Ben. Act XXXVII of 2003 West Ben. Act XLIX of 1994) (c) turnover of imports relating to entry of specified goods into a local area where it is proved to the satisfaction of the Commissioner that such goods have been transported from within West Bengal from another place of business of such dealer or importer other than a dealer; (d) such other turnover of imports, either in full or in part, as may be prescribed." "Section 5. Power of State Government to amend Schedule ­ The State Government, after giving by notification not less than fourteen days' notice of its intention so to do, may, by like notification, with prospective or retrospective effect, add to, amend, or alter any Schedule to this Act." "Section 6. Power to exempt tax ­ (1) The State Government may, if it is necessary so to do in public interest, by notification, exempt, either in full or in part, the tax payable under this Act by any specified class of dealers or importers other than a dealer or on any class of specified goods. (2) Any exemption notified under sub-section (1) may be subject to such restrictions and conditions as may be specified in the notification. (3) The State Government may, by notifiation, withdraw, cancel or vary any notification issued under sub-section (1), with prospective or retrospective effect." "Section 8. Declaration to be made by a dealer or an importer other than a dealer for entry of goods - (1) In respect of entry of any consignment of specified goods into a local area by or on behalf of a dealer or an importer other than a dealer for consumption, use or sale therein, the dealer or the importer other than a dealer shall make a declaration in such form, in such manner and containing such particulars relating to entry of such goods, as may be prescribed and such a declaration shall be carried along with the specified goods till such goods reach the destination within the local area. (2) The declaration referred to in sub-section (1) shall be produced under such circumstances, and in such manner, as may be prescribed, upon demand by the Commissioner or by such other person authorized by the Commissioner in this behalf, at any place within a local area." "Section 9. Return and payment of tax by registered dealers ­ (1) Every registered dealer shall, either electronically or manually, submit a return in such form containing such particulars, to such authority, within such period, in such manner and along with such documents, as may be prescribed. (2) A registered dealer shall pay into the appropriate Government Treasury in the prescribed manner and within the prescribed date the full amount of tax payable by him under this Act on the basis of the return to be submitted under sub-section (1) and shall furnish along with such return satisfactory proof of the payment of such tax. (3) Where the Commissioner is satisfied that a registered dealer has defaulted in, or has attempted to evade, payment of tax under this Act, he may, for reasons to be recorded in writing, demand from such registered dealer an amount towards security for safeguarding revenue in respect of the tax payable under this Act, either for a single consignment or for tax payable for a particular period, and such security shall be adjusted against the tax payable under this Act for that consignment or that period, as the case may be." "Section 15. Establishment of fund ­ (1) There shall be established for the purposes of this Act, a fund to be called the West Bengal Compensatory Entry Tax Fund. (2) The fund shall be under the control of the State Government and there shall be credited thereto - (a) any sum of money credited under section 16; (b) any sum of money credited under section 17; (c) any sum realised by the State Government in carrying out its function under this Act or in the administration of this Act; (d) any fund provided by the Central Government for the development or facilitating the trade, commerce and industry in the State as mentioned in section 18. (3) The balance to the credit of the Fund shall not lapse at the end of the financial year." "Section 16. Crediting of proceeds to the Fund ­ The proceeds of the levy under this Act shall first be credited to the Consolidated Fund of West Bengal, and the State Government may, if the State Legislature by appropriation made by law in this behalf so provides, credit such proceeds to the Fund from time to time, after deducting the expenses of collection for being utilized exclusively for the purposes of this Act." "Section 17. Grants and loans by state Government ­ The State Government may, after due appropriation made by the State Legislature by law in this fore, credit in the Fund, by way of grants or loans, such sums or money as the State Government may consider necessary." "Section 18. Utilization of proceeds of levy ­ (1) The proceeds of the levy under this Act, net of the cost of collection and incidental expenses, shall be utilized for the development or facilitating the trade, commerce and industry in the State which shall include the following:- (a) construction, development and maintenance of roads and bridges for linking the market and industrial areas; (b) construction, development and maintenance of transport hubs and cold storage facilities wherever possible; (c) construction, development and maintenance of linking the markets and industrial areas to railway stations, ports, waterways and airports, wherever possible; (d) construction, development and maintenance of railway over- bridges and sub-ways; (e) creating infrastructure for supply of electricity and water to industries and other commercial complexes; (f) creating, development and maintenance of other infrastructure for the furtherance of trade, commerce and industry in general; (g) providing finance, aids, grants and subsidies for creating, developing and maintaining pollution free environment in the concerned areas; (h) any other purpose connected with the development of trade, commerce and industry or for facilities relating thereto; (i) providing finance, aids, grants and subsidies to local bodies and State Government agencies for the purposes specified above. (2) The State Government shall - (a) ensure that the proceeds of tax collected under this Act, net of the cost of collection and incidental expenses, are utilized for facilitating trade, commerce and industry in the State; (b) identify the areas which require immediate development or maintenance of infrastructure and other facilities and allot proceeds of tax under this Act for the purposes specified in sub- section (1); (c) ensure that the proceeds of tax collected under this Act, net of the cost of collection and incidental expenses, are not-much more than the amount actually required for development of local areas for facilitating trade, commerce and industry in the State." "Section 19. Maintenance of accounts ­ The State Government shall maintain proper accounts and other records, such forms in and in such manner, as may be prescribed." "Section 20. Administration of Fund ­ The State Government shall administer the Fund and take such decisions regarding investment in the development or facilitating the trade, commerce and industry in the State." "Section 22. Power of State Government to make rules ­ (1) The State Government may, by notification, make rules, with prospective or retrospective effect, for carrying out the purposes of this Act. (2) In particular and without prejudice to the generality of the foregoing power, such rules may provide for all or any of the matters which under any provision of this Act are required to be prescribed, or to be provided for, by rules. (3) In making any rules under this section the State Government may direct that a breach thereof shall be punishable with fine not exceeding one thousand rupees and, when the offence is a continuing one, with a daily fine not exceeding one hundred rupees during the continuance of such offence." ;