RANVIR SAHAI VERMA, J. - (1.) THE petitioners in these writ petitions own factories/plants manufacturing cement in the State of Gujarat. THE cement so manufactured is sold in various States including the State of Rajasthan through a net work of stockists and dealers.
(2.) THE petitioners are aggrieved by three notifications of the State Government issued on January 8, 1990, June 27, 1990, and March 7, 1994. Notification issued on January 8, 1990, reads as follows : " Notification No. F. 4 (72)FD/gr. IV/82-77 dated January 8, 1990. S. O. 166.- In exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956 (Central Act No. 74 of 1956), the State Government being satisfied that it is necessary so to do in the public interest, hereby, with immediate effect, directs that the tax payable under sub-sections (1) and (2) if the said section, by any dealer having his place of business in the State, in respect of the sale by him, from any such place of business in the course of inter-State trade or commerce, of cement, to any Central or State Government undertaking or corporation or an autonomous body under the Government, shall be calculated at the rate of 7 per cent. [published in Rajasthan Gazette, Extraordinary, Part 4 (C) (II) dated January 9, 1990. ]" Notification dated June 27, 1990, reads as follows : " Notification No. F. 4 (72)FD/gr. IV/82-34 Jaipur dated June 27, 1990. S. 0. 113.- In exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956 (Central Act No. 74 of 1956), and in supersession of this Department Notification No. F. 4 (72)FD/gr. IV/82-77, dated January 8, 1990, the State Government being satisfied that it is necessary so to do, in the public interest, hereby, with immediate effect, directs that the tax payable under sub-sections (1) and (2) of the said section, by any dealer having his place of business in the State in respect of the sale by him from any such place of business in the course of inter-State trade or commerce, of cement shall be calculated at 7 per cent. on the following conditions, namely : (i) the selling dealer shall submit the certificate appended hereto duly filled in and signed by him to his assessing authority within 10 days from the date of delivery of such cement to the carrier; (ii) the selling dealer shall also enclose with the said certificate, the attested photostat copy of the railway receipt/goods receipt, as the case may be; and (iii) in case the goods are being carried through road transport, a copy of the said certificate shall also be handed over at the exit cheek-post of the State of Rajasthan. CERTIFICATe I/we. . . . . . . . . . . . . . . . . . . . . . . (name of the firm/company/other status) having Registration No. (RST Act/cst Act ). . . . . . . . . . . . . . . . . . . . . . . under the jurisdiction of the assessing authority. . . . . . . . . . . . certify that. . . . . . . . . . . . . bags of cement amounting to Rs. . . . . . . . . . covered by the challan/cash memo (s) Nos. and the date. . . . . . . . . . . . . . . have been manufactured by me/us and are despatched in the course of inter-State trade or commerce vide RR/gr No. . . . . . . . . . . . . . . (specify the number with date ). . . . . . . . . . . . . . . . to Shri/m/s. . . . . . . . . . . . . (full address of the purchaser) Dated :. . . . . . . . . . . . . . . . . . . . Signature. . . . . . . . . . . . . . . . . . . . . . . . Name. . . . . . . . . . . . . . . . . . . . . . . . . . . . . Designation. . . . . . . . . . . . . . . . . . . . . . Seal : [published in Rajasthan Gazette, Extraordinary, Part 4 (C) (II) dated June 27, 1990. ]" Notification dated March 7, 1994, reads as under : " Finance (Gr. IV) Department Notification, Jaipur, March 7, 1994. S. O. No. 200.- In exercise of the powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956 (Central Act No. 74 of 1956) and in supersession of this Department Notification No. F. 4 (72) FD/gr. IV/82-34, dated June 27, 1990, the Government being satisfied that it is necessary in the public interest so to do, hereby directs that the tax payable under sub-sections (1) and (2) of the said section, by any dealer having his place of business in the State, in respect of the sales of cement made by him from any such place of business in the course of inter-State trade or commerce shall be calculated at the rate of 4 per cent. without furnishing of declaration in form C or certificate in form D on the following conditions; namely : (i) that the dealer shall record the name and full and complete address of the purchaser in the bill or each memorandum for such inter-State sale to be issued by him; (ii) that the burden to prove that the transaction was in the nature of inter-State sale, shall be on the dealer; and (iii) that the dealer making inter-State sales under this notification shall not be eligible to claim benefit provided for by the Notification No. F. 4 (72) FD/gr. IV/81-8, dated May 16, 1986, as amended from time to time. This notification shall come into force from April 1, 1994 and shall remain in force up to March 31, 1995. [no. F. 4 (8)FD/gr. IV/94. 70] By order of the Governor, Sd. /- N. C. Goel, Deputy Secretary to Government. [published in Rajasthan Gazette, Extraordinary, Part 4 (C), dated March 7, 1994. ]" Writ Petitions Nos. 656 of 1994, 788 of 1994 and 803 of 1994 were filed in February, 1994, i. e. , prior to issue of Notification dated March 7, 1994. By these writ petitions, they challenged the legality and validity of the first two notifications. Consequent to the issuance of the third Notification dated March 7, 1994, they were appropriately amended to include a challenge to Notification dated March 7, 1994. It appears that some of the writ petitioners initially filed a writ petition under article 32 of the Constitution of India before the apex Court. In these writ petitions, it was contended that the cases were squarely covered by the decision of the apex Court rendered in Indian Cement Ltd. v. State of Andhra Pradesh (1988] 69 STC 305; AIR 1988 SC 567. The apex Court disposed these petitions by order dated January 17, 1994, passed in the following terms : " The submission of learned counsel for the petitioners is that the points raised in these writ petitions [w. P. (C) Nos. 878, 877, 880 and 884 of 1993] are concluded in favour of the petitioners by the decision of this Court reported in [1988] 69 STC 305; AIR 1988 SC 567 (Indian Cement Ltd. v. State of Andhra Pradesh ). This being so, we consider it more appropriate that the petitioners move the concerned High Court for the grant of relief claimed by them, under article 226 of the Constitution. The petitioners are permitted to withdraw these writ petitions for filing the same in the concerned High Court. " (Annexure P7 of Writ Petition No. 656 of 1994 ). The case set up by the petitioners is that article 301 of the Constitution of India guarantees that trade, commerce and intercourse, subject to other provisions of Part XIII of the Constitution of India, shall be free throughout the territory of India. Article 302 of the Constitution empowers the Parliament to impose by law restrictions on the freedom of trade, commerce or intercourse, between one State and another or within any part of the territory of India as may be required in the public interest. Article 303 of the Constitution of India provides for restrictions on the legislative powers of the Union and of the States with regard to trade and commerce. Article 304 of the Constitution, which begins with a non obsiante clause, provides for restrictions on trade, commerce and intercourse among States and, inter alia, empowers Legislature of a State to impose by law a tax on goods imported from other States or the Union territories to which similar goods manufactured or produced in that State are subjected, however, so as not to discriminate between goods so imported and goods so manufactured or produced and to impose such reasonable restrictions on the freedom of trade, or commerce or intercourse with or within that State as may be required in the public interest.
(3.) THE case of the petitioners is that the aforesaid three articles of the Constitution embody and enshrine a principle of paramount importance, viz. , taxation is not to be resorted so as to give preference to goods manufactured in one State over goods manufactured or produced in other States. Their case further is that section 8 of the Central Sales Tax Act deals with rates of tax on sales in the course of inter-State trade or commerce. The object of the law as contained in this section is that the rate of Central sales tax shall in no event be less than the rate of local sales tax for goods in question though it may exceed the local rate in case that rate be less than 10 per cent. It is pleaded that variation in the rate of inter-State sales tax affects free-flow of trade and commerce and creates a local preference which is contrary to the scheme of Part XIII of the Constitution of India. It is pleaded that the impugned notifications, purport to have been issued in exercise of powers conferred by sub-section (5) of section 8 of the Central Sales Tax Act, 1956. By Notification dated January 8, 1990, it was directed that the tax payable under sub-sections (1) and (2) of section 8 of the aforesaid Act by any dealer having his place of business in the State in respect of the sale made by him from any such place of business in the course of inter-State trade or commerce of cement shall be calculated at 7 per cent. subject to the dealer in Rajasthan furnishing a certificate to the said effect. This notification was confined to sale of cement to any Central or State Government undertaking or corporation or an autonomous body under the Government outside the State of Rajasthan by any dealer located in the State of Rajasthan. The second Notification dated June 27, 1990, was made applicable to any/all dealers or otherwise any person situated outside the State of Rajasthan and in such cases, the sales made to them by any dealer located in Rajasthan is taxed only at 7 per cent. The case of the petitioners is that by the latest notification the situation envisaged by section 8 (1) and 8 (2) of the Central Sales Tax Act was altered altogether. The rate of tax under section 5 of the Rajasthan Sales Tax Act on cement was 16 per cent. Even in case of inter-State trade or commerce, prior to the said notification, single point rate of tax was 16 per cent. when sold to unregistered dealers outside the State of Rajasthan. By this notification, the situation was altered contrary to the law laid down by the apex Court. ;