M/S Ganesh Udyog at village Susta, P.O. Susta Hajipur Road, Prakhand Mushari v. The State of Bihar

Mr. Y.V. Giri, Senior Advocate Mr. Raju Giri, Advocate Mr. Raj Nandan Prasad, Junior Counsel to Advocate General ----------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal ----------- Dated, the 20th November, 2008. The senior counsel for the petitioner and Mr. Raj Nandan Prasad, Junior Counsel to Advocate General are ad idem that the controversy raised in the writ petition is squarely concluded by the Division Bench decision of this Court in the case of M/s Indian Oil Corporation Limited & Anr. V. The State of Bihar & Ors., 2007(1) PLJR 502. Although the said decision has been carried in appeal before the Supreme Court, but so far as this Court is concerned, we - 2 - are satisfied that the writ petition may be disposed of in the light of the decision in the case of M/s Indian Oil Corporation Limited. The parties, will of course be at liberty to pursue their remedy before the Supreme Court, if they are so advised.

In the light of the submissions made by the senior counsel for the petitioner and Mr. Raj Nandan Prasad, Advocate General, we are satisfied that this writ petition may be disposed of in terms of paragraph 69 and 70 of the decision in the case of M/s Indian Oil Corporation Limited. Paragraph 69 and 70 of the judgment of this Court in the case of M/s Indian Oil Corporation Limited read thus: - “69. In light of the above discussions, I may summarize the conclusion as follows: (i) The levy under the parent Act of 1993, before its amendments, was not compensatory in character and was, therefore, violative of Article 301 of Constitution. (ii) The parent Act of 1993, before amendments, was nevertheless saved by virtue of Article 304 (b) of the Constitution and the decision in Bihar Chamber of Commerce remains subsisting till date. that extent (iii) The amendments introduced in the Act by amending Acts 10 of 2001 and 9 of 2004 were bad because the former made the Act violative of Article 304 (a) of the Constitution and further because both the amendments were made without the previous sanction of the President. (iv) The introduction of imported goods within the definition of `Entry of Goods’ was bad for being retrospective as also for want of the Presidential sanction/assent. (v) After the 2006 Amendment the levy under the Act acquired the nature of a compensatory tax and the - 3 - Act in its present form is a valid piece of legislation.

70. In light of the above discussions, the two cases are fit to be allowed because they relate to the period 2001-2006. But I would refrain from making any order or direction in that regard since the matter is already pending before the Supreme Court.”

We dispose of the writ petition in terms of the aforesaid order with no order as to cost. R. M. Lodha, CJ Kishore K. Mandal, J Pawan/-