Bombay High Court
The Gem And Jewellery Export vs The State Of Maharashtra And Others on 4 March, 2013
Author: D.Y.Chandrachud
Bench: D.Y. Chandrachud, A.A. Sayed
PNP 1/18 WP653-4.3
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
WRIT PETITION NO.653 OF 2013
The Gem and Jewellery Export
Promotion Council ..Petitioner.
versus
The State of Maharashtra and others ..Respondents.
.....
Mr. Sharan Jagtiani with Mr. Kunal Vajani, Mr. Ankit Virmani and Mr. Kunal
Mimani i/b Wadia Ghandy & Co. for the Petitioner.
Mr. Gautam Ankhad, AGP for the Respondents.
.....
CORAM : DR.D.Y.CHANDRACHUD, AND
ig A.A. SAYED, JJ.
4 March 2013.
ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
Rule, by consent made returnable forthwith. The learned AGP appearing on behalf of the Respondents waives service on behalf of the Respondents. By consent, the Petition is taken up for hearing and final disposal.
2. The Petitioner, which is a company incorporated under Section 25 of the Companies Act 1956, has been formed with the object of promoting exports of gems and jewellery including pearls, coloured gemstones, diamonds, gold and other precious metal jewellery, synthetic stones and costume jewellery. The Petitioner organizes annual exhibitions titled 'IIJS' and 'IIJS Signature' which provide a platform for interaction between exporters and other jewellers of the country as well as for foreign buyers visiting the show. The object of doing so is to make India and especially the city of Mumbai a major international trading center for diamonds and other gems and jewellery. IIJS is stated to be the second largest jewellery show in Asia and is stated to be an official platform of the country for showcasing the manufacturing capabilities of India's gems and ::: Downloaded on - 09/06/2013 19:41:52 ::: PNP 2/18 WP653-4.3 jewellery sector. Over eight hundred leading companies both within and outside the country participate in the show. According to the Petitioner, an internationally recognized survey agency, Synovate, estimated that orders worth about Rs.5,200 Crores were placed for exhibitors during IIJS 2011. According to the Petitioner a high registration charge is fixed to encourage serious business visitors to attend the shows, IIJS and IIJS Signature events being business to business shows for which the general public and individual consumers cannot register.
3. In the past, the Petitioner made payments of entertainment duty under the Bombay Entertainments Duty Act 1923. This according to the Petitioner was under the mistaken belief that the IIJS and IIJS Signature events are exigible to entertainment duty under Section 3 of the Act. The form prescribed by the Commissioner of Police for the grant of an NOC for such events requires the Petitioner to furnish the consent of the Additional Collector of Mumbai Suburban District and it has been stated that the latter refuses to issue an NOC without payment of entertainment duty.
4. Between 4 and 8 August 2011 the Petitioner organized IIJS 2011. By a letter dated 19 July 2011 addressed to the Additional Collector, Mumbai Suburban District (the Third Respondent) the Petitioner tendered under protest entertainment duty in the amount of Rs.38.91 lacs. On 26 July 2011 an application was made to the Third Respondent for obtaining an NOC. The Third Respondent granted permission on 29 July 2011 to organize the event subject to the payment of entertainment duty under Section 4(2). On the basis of a determination by the Entertainment Tax Inspector, the Petitioner tendered an additional amount of Rs.23.85 lacs under protest to the Third Respondent ::: Downloaded on - 09/06/2013 19:41:52 ::: PNP 3/18 WP653-4.3 making a total of a payment of Rs.62.76 lacs.
5. Similarly, IIJS Signature 2012 was convened between 6 and 9 January 2012. On 13 October 2011 in anticipation of the event a letter was addressed to the Third Respondent seeking an NOC on the basis that the event did not fall within the definition of an 'entertainment' under Section 2(a) of the Act. On 28 November 2011 the Third Respondent called upon the Petitioner to submit details of the nature of the event, sale of tickets and of the agreement with the organizer and to move the Revenue and Forest Department for an exemption from tax. On 7 December 2011 the Petitioner informed the Third Respondent that it did not seek an exemption, but its contention was that the event did not constitute an entertainment. A hearing was initially held on 9 December 2011 by the Entertainment Duty Officer. On 24 December 2011 the Senior Inspector of Police of the Police Station concerned called upon the Petitioner to obtain an NOC from the Third Respondent. The Petitioner paid an amount of Rs.11.96 lacs towards entertainment duty for IIJS 2012 under protest upon which an NOC was granted by the Third Respondent and the event was held. The Petitioner thereupon submitted an application for refund on 24 January 2012 which is pending. On 17 March 2012 an order was issued by the Third Respondent calling upon the Petitioner to pay an additional amount of Rs.1.32 Crores as entertainment duty in respect of IIJS 2011.
6. In writ proceedings instituted before this Court 1, an order was passed on 10 May 2012 setting aside the order of the Additional Collector on the ground that the Petitioner had not been heard in support of its contentions, including on the jurisdiction of the Collector to impose entertainment duty. The Third 1 Writ Petition 4527 of 2012.
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PNP 4/18 WP653-4.3 Respondent was directed to pass a speaking order after furnishing an opportunity of being heard to the Petitioner. Following this, an order was passed by the Third Respondent on 27 June 2012 confirming a demand for duty in the amount of Rs.1.32 Crores. The order of the Collector was once again challenged in a writ petition2 under Article 226. By a judgment dated 20 July 2012, the order of the Collector was once again set aside with a direction to the Collector to pass a fresh order after adjudicating on the question as to whether the trade show constitutes an entertainment within the meaning of the Bombay Entertainments Duty Act 1923. During the pendency of the proceedings, the Petitioner addressed communications dated 24 July 2012 and 26 July 2012 to the Third Respondent. On 31 July 2012, an order was passed by the Third Respondent holding that the Petitioner was liable to pay an amount of Rs.97.09 lacs by way of entertainment duty in respect of IIJS 2011 which was to be adjusted against the amount of Rs.62.76 lacs paid by the Petitioner. In respect of the IIJS 2012 event which was to be held from 23 to 27 August 2012 the Petitioner filed a writ petition before this Court under Article 226 of the Constitution. The Petition inter alia sought to impugn the order dated 31 July 2012 passed by the Additional Collector. An order was passed in the writ petition in terms of minutes of order signed by counsel for the parties. Under the minutes of order the Commissioner of Police was directed to grant his NOC in respect of the event which was to be held between 23 to 27 August 2012 without insisting on an NOC from the Additional Collector. The Petitioner was granted liberty to file an appeal before the appellate authority - the Divisional Commissioner, Konkan Division, challenging the order dated 31 July 2012 passed by the Additional Collector, subject to a deposit of Rs.94.32 lacs, being the aggregate of the amount payable in respect of IIJS 2011, and the amount of 2 Writ Petition 6544 of 2012.
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PNP 5/18 WP653-4.3 entertainment duty expected to be collected on IIJS 2012. Till the disposal of the appeal, the Additional Collector was directed not to take any steps in respect of IIJS 2012. The Petitioner deposited the amount as directed in the order of the Court. By a letter dated 3 September 2012, the Petitioner disclosed the registration charges collected in respect of IIJS 2012. The registration charges varied between Rs.700/- and Rs.9,000/- and an amount of U.S. $ 100 charged to 114 persons. A total amount of Rs.1.33 Crores was stated to be recovered in the form of registration charges.
7. The appeal filed by the Petitioner was partly allowed by an order dated 30 November 2012 of the Divisional Commissioner, Konkan Division, the Second Respondent. The Divisional Commissioner has held as follows :
i) Under Section 2(a) of the Bombay Entertainments Duty Act 1923, the expression 'entertainment' includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment;
ii) In respect of the events organized by the Petitioner, there is a sale of tickets and the events can be termed as exhibitions. The term 'entertainment' is defined to include any exhibition to which persons are admitted for payment;
iii) The appellant charges a high entry fee in respect of the events in question and the exhibitors derive benefit in terms of money;
iv) The Petitioner had paid entertainment duty in 2006, 2007, 2008 and 2009 and the State Government had in July 2005 granted an exemption to the Petitioner for a similar programme.
The Divisional Commissioner, however, accepted the contention of the Petitioner ::: Downloaded on - 09/06/2013 19:41:52 ::: PNP 6/18 WP653-4.3 that 6081 passes and not 7000 passes have been distributed to the exhibitors. The total amount of entertainment duty payable for IIJS 2011 was computed at Rs.45.40 lacs. Since the Petitioner had deposited an amount of Rs.62.76 lacs with the Additional Collector and an amount of Rs.34.32 lacs with the appeal, the Additional Collector was directed to refund the amount of Rs.34.32 lacs and Rs.17.36 lacs with a further direction to compute the amount of entertainment duty payable in respect of IIJS 2012.
8. The Petitioner has in these proceedings questioned the legality of the order dated 30 November 2012 passed by the appellate authority under the Bombay Entertainments Duty Act 1923. The Petitioner also seeks a declaration that the IIJS and IIJS Signature events organized by it do not constitute entertainment within the meaning of the Act and are therefore not exigible to entertainment duty. The Petitioner had sought consequential orders of refund in respect of the amounts deposited for IIJS 2011, IIJS Signature 2012 and IIJS 2012. The Petitioner also sought a declaration in respect of IIJS 2013 to be held between 22 and 25 February 2013 and a direction that it is not necessary to obtain an NOC from the Additional Collector for the purpose of obtaining the permission of the Commissioner of Police.
9. Counsel appearing on behalf of the Petitioner submits that :-
(i) The annual IIJS and IIJS Signature events organized by the Petitioner do not constitute entertainment as defined in Section 2(a);
(ii) In order to constitute an entertainment an event must provide for amusement or enjoyment or something in the nature of a diversion or distraction;
(iii) The word 'exhibition' in section 2(a) must take its colour from the
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PNP 7/18 WP653-4.3
natural import of the term 'entertainment'. In the absence of an
inherent entertainment value in the exhibition, it cannot fall in the definition of an entertainment under Section 2(a);
(iv) Under Entry 62 of List II to the Seventh Schedule of the Constitution the State legislatures can levy taxes on luxuries including taxes on entertainment. A luxury connotes something which is not necessary and which has as an intrinsic element of something in the nature of enjoyment;
(v) In order to ensure that Section 2(a) of the Bombay Entertainments Duty Act 1923 conforms to the legislative competence of the State legislature under Entry 62 of List II, the expression 'exhibition' must be construed to mean an exhibition which has an inherent entertainment value. In the absence of an inherent entertainment value, no entertainment duty can be imposed.
10. An affidavit in reply has been filed by the State Government in response to the Petition. It has been submitted that the Petitioner has a remedy of a revision under Section 10A(3). The Act, it has been urged, provides for a complete machinery to challenge an order of assessment and hence, the jurisdiction under Article 226 of the Constitution should not be exercised. On merits, it has been submitted, that the events organized by the Petitioner fall within the scope of an entertainment. Section 2(a) defines the expression 'entertainment' to include any exhibition to which persons are admitted for payment. The events organized by the Petitioner, it is urged, fall within the inclusive definition of the expression, since what the Petitioner essentially organizes is an exhibition to which persons are admitted for payment. It has been urged that an inclusive definition is comprehensive in its nature and ::: Downloaded on - 09/06/2013 19:41:52 ::: PNP 8/18 WP653-4.3 character and any exhibition that levies an entry fee for its visitors and which results in monetary gratification of participation would fall within the definition of an entertainment under the Act. The affidavit of the State Government also states that on 30 May 2011 the Government rejected the application of the Petitioner to exempt it from the payment of entertainment duty. It has been stated that a Government Resolution dated 16 December 1971 exempts bonafide and pure art exhibitions from the payment of entertainment duty, but no exemption is available in respect of art exhibitions and fashion shows that are sponsored or backed by any commercial or business institution and which display art or objects for publicity or with a profit motive. The exhibition of the Petitioner results in a generation of revenue of approximately Rs.5,200 Crores and hence, there would be no question, in view of the Government Resolution dated 16 December 1971 to grant an exemption. On these premises, it has been submitted that no case has been made out for interfering with the orders passed by the Additional Collector as confirmed by the Divisional Commissioner. Counsel appearing on behalf of the State has urged that -
(i) The definition of the expression 'entertainment' in Section 2(a) is an inclusive definition and comprehends among other things any exhibition to which persons are admitted for payment. Section 3 imposes a levy on payment for admission to any entertainment. In the present case, the Petitioner admittedly conducts an exhibition to which persons are admitted upon payment. Upon a plain and literal meaning of the words used in the taxing statute, the Petitioner is liable to pay entertainment duty;
(ii) There is no challenge to the constitutional validity of the State legislation. The duty of the Court while interpreting taxing legislation is ::: Downloaded on - 09/06/2013 19:41:52 ::: PNP 9/18 WP653-4.3 to give effect to the plain meaning of the words used in the statute;
(iii) By its very nature it is impossible for the State on a case by case basis to deduce what the entertainment value of any particular form of entertainment is or the extent to which an exhibition against the payment of an admission fee results in entertainment. The statute has used a broad and general phraseology incorporating inter alia any exhibition to which persons are admitted upon payment. Once that test is satisfied, the liability to pay entertainment duty would arise;
(iv) The disclosures made by the Petitioner during the course of the adjudication proceedings and even thereafter would make it clear that IIJS and IIJS Signature are massive exhibitions organized in order to showcase jewellery. It is impossible to conceive of how, such an event which according to the Petitioner, results in the generation of orders worth over Rs.5,000 Crores would not result in a form of gratification.
Entertainment involves gratification and once the element of gratification exists, the liability to pay entertainment duty would arise.
11. The Bombay Entertainments Duty Act 1923 is an Act to impose a duty in respect of admission to entertainments in the State. The expression 'entertainment' is defined as follows :
"2(a) 'entertainment' includes any exhibition, performance, amusement, game or sport to which persons are admitted for payment, or in the case of television exhibition with the aid of any type of antenna with a cable network attached to it or cable television or Direct-to-Home (DTH) Broadcasting Service, for which persons are required to make payment by way of contribution or subscription or installation and connection charges or any other charges collected in any manner whatsoever, but does not include magic show and temporary amusement including games and rides, Explanation. - For the purposes of this clause, -
(i) the expression "exhibition" includes any exhibition by ::: Downloaded on - 09/06/2013 19:41:52 ::: PNP 10/18 WP653-4.3 cinematograph including video exhibition or television exhibition with the aid of any type of antenna with a cable network attached to it or cable television;
(ii) the expression "game" includes video games which are played with the aid of machine which is operated electronically or mechanically or electro-mechanically for the purposes of entertainment or otherwise and
(iii) the expression "temporary amusement means" the amusement rides and games which are not provided on fairly permanent basis like in amusement park as defined in clause (a-1) of section 2 read with clause (b) of sub-section (5) of section 3."
(emphasis supplied)
12. The expression 'payment for admission' is defined in Section 2(b) in a comprehensive manner. The definition includes in clause (ii) any payment for seats or other accommodation in a place of entertainment and in clause (iv) any payment, by whatever name called for any purpose whatsoever connected with an entertainment, which a person is required to make, in any form as a condition of attending, or continuing to attend the entertainment, either in addition to the payment for admission or otherwise. Clause (viii) of Section 2(b) also includes any payment by way of sponsorship amount for a programme which is organized only for invitees, without selling tickets. Section 3 which is the charging section provides inter alia that they there shall be levied and paid to the State Government on payment for admission fixed by the proprietor to any entertainment a duty at the rates prescribed therein. Section 4 provides for the method of levy. Section 4B provides for assessment of entertainment duty. Section 6(1) provides that entertainment duty shall not be levied on payments for admission to any entertainment where inter alia the Collector is satisfied that the whole of the takings thereof are devoted to philanthropic or charitable purposes without any charge on the takings for any expenses of the entertainment; where the entertainment is of a wholly educational character or where it is provided ::: Downloaded on - 09/06/2013 19:41:52 ::: PNP 11/18 WP653-4.3 partly for educational or partly for scientific purposes by an institution not conducted for profit. Sub section (3) of Section 6 empowers the State Government by a general or special order to exempt any entertainment or class of entertainments from the liability to pay entertainment duty. Section 10A inter alia provides for an appeal against an order of assessment. Sub section (3) of Section 10A provides a remedy of a revision to the State Government against an appellate order of the Commissioner.
13. The Supreme Court considered the nature of entertainment duty in the context of the U.P. Entertainment and Betting Tax Act 1937 in Geeta Enterprises v. State of U.P. 3 Section 2(3) of the Act defined an entertainment to include any exhibitional performance, amusement, game or sport to which persons are admitted for payment. After referring to the dictionary meaning of the expression 'entertainment', the Supreme Court observed as follows :
"A perusal of the various shades, aspects, forms and implications of the word 'entertainment' as defined in the aforesaid books clearly leads to an irresistible inference that the word 'entertainment' has been used in a very wide sense so as to include within its ambit, entertainment of any kind including one which may be purely educative. Sub-section 3 itself by using the word 'entertainment' as "any exhibitional, performance, amusement, game or sport to which persons are admitted for payment"
has extended the scope of entertainment to expressly include any kind of amusement, game or sport."
The tests to be applied were formulated by the Supreme Court thus :
"Thus, on a consideration of the legal connotation of the word 'entertainment as defined in various books, and other circumstances of the case as also on a true interpretation of the word as defined in Section 2 (3) of the Act, it follows that the show must pass the following tests to fall within the ambit of the aforesaid section:
(1) that the show, performance, game or sport, etc. must contain a public colour in that the show should be open to public in a hall, theatre or any other place where members of the public are invited or attend the show;
3 (1983) 4 SCC 202.
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PNP 12/18 WP653-4.3 (2) that the show may provide any kind of amusement whether sport, game or even a performance which requires some amount of skill; in some of the cases, it has been held that even holding of a tombola in a club hall amounts to entertainment although the playing of tombola does, to some extent, involves a little skill;
(3) that even if admission to the hall may be free but if the exhibitor derives some benefit in terms of money it would be deemed to be an entertainment;
(4) that the duration of the show or the identity of the person who operates the machine and derives pleasure or entertained or that the operator who pays himself feels entertained is wholly irrelevant in judging the actual meaning of the word 'entertainment' as used in Section 2 (3) of the Act. So also the fact that the income derived from the show is shared by one or more persons who run the show."
14. In a judgment of the Madhya Pradesh High Court in Calico Mills Ltd. v. State of Madhya Pradesh4, the Petitioner who was engaged in the manufacture and sale of textiles put a canvas canopy for the display and sale of its textile goods. During certain hours, admission was open upon the payment of an admission fee of Rs.2/- which was adjusted against the price of the goods purchased. The question in dispute was whether the Petitioner was liable to pay the entertainment duty under Section 3(1) of the C.P. and Berar Entertainments Duty Act 1936. The Division Bench of the Madhya Pradesh High Court held that the natural import of the term 'entertainment' is amusement or gratification of some sort and the term connotes something in the nature of an organized entertainment. The Madhya Pradesh High Court held that the primary object with which the dome was put up by the Petitioner was the display of its goods and to promote its sales and there was nothing in the nature of organized entertainment in the display of the fabrics. The Court noted that a token payment of Rs.2/- obtained from a person visiting the dome was nothing than a part advanced payment towards purchases that may be made. The payment 4 AIR 1961 Madhya Pradesh 257.
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PNP 13/18 WP653-4.3 made by a person visiting the dome was therefore not a payment for admission much less a payment for admission in which the entertainment was held. In a judgment of a Division Bench of this Court in Vasant Madhav Patwardhan v.
State of Maharashtra5, the judgment of the Supreme Court in Geeta Enterprises (supra) has been followed and it has been held that the expression 'entertainment' cannot be understood in a restrictive sense, but must be given a width of meaning which the legislature has understood while using the expression. In a judgment of a Division Bench of Rajasthan High Court in His Highness Maharaja of Jaipur v. State of Rajasthan 6, it has been held while interpreting the provisions of Section 3 of the Rajasthan Entertainment and Advertisement Tax Act 1957 that in order to bring an exhibition into the definition of entertainment a continuous process of performance may not be necessary, but it is essential that the exhibition should be displayed with a view to provide amusement or gratification of any kind to the visitors and the fact that some persons might derive gratification from the exhibition (though not arranged for that purpose) is not relevant.
15. Section 2(a) of the Bombay Entertainments Duty Act 1923 defines the expression 'entertainment' in an inclusive sense. A definition which is inclusive, it is well settled, seeks to bring within its purview something which may not lie within the ordinary connotation of an expression. The definition of the expression 'entertainment' in Section 2(a) includes any exhibition to which persons are admitted for payment. The expression 'payment for admission' again is defined in a comprehensive manner to include (i) Payment for seats or other accommodation in a place of entertainment; (ii) A payment by whatever 5 2001 (Supp.) Bom.C.R. 175.
6 1972 WLN 186.
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PNP 14/18 WP653-4.3 name called for any purpose whatsoever connected with an entertainment which a person is required to make in any form as a condition of attending or continuing to attend the entertainment; (iii) Any payment by way of sponsorship amount for a programme which is organized only for invitees without selling tickets.
16. In the present case, the nature of the events organized by the Petitioner appears from the material on the record. In a letter dated 19 March 2011 addressed to the Revenue Secretary, the Petitioner stated that every year business worth between Rs.3,000 to Rs.3,500 Crores is generated at the show.
The show has a budget of over Rs.20 Crores. There are about 650 to 700 exhibitors who set up over 1,600 stalls for which an amount between Rs.150 to Rs.200 Crores is spent. The Petitioner promotes the show in about 80 cities in India and 30 cities abroad. A registration fee between Rs.665/- to Rs.5,520/- was stated to be charged for the show. A letter of the Petitioner's advocate dated 16 January 2013 to the Additional Collector stated that the registration charges for IIJS 2012 varied between Rs.700/- Rs.9,000/- with a registration of U.S. $ 100 being charged for certain participants. A total amount of Rs.1.33 Crores was stated to be realized from the registration charges. The additional affidavit filed by the Petitioner on 14 February 2013 states that for the Signature 2013 event which was to be held at the Bombay Convention and Exhibition Center approximately 1082 booths were expected to be put up with a participation of approximately 567 exhibitors who would display different designs of jewellery. The major exhibitors in the exhibition were to be national and international jewellery and diamond retailers, manufacturers, wholesalers, importers and exporters. In the additional affidavit it has been stated that the IIJS events do not involve any performance in the nature of a ramp show or ::: Downloaded on - 09/06/2013 19:41:53 ::: PNP 15/18 WP653-4.3 musical performance. However, the Petitioner has since 2010 been also organizing the India International Jewellery Week (IIJW) where participating manufacturers, designers, design houses, choreographers showcase their collection of jewellery to national and international buyers and customers, where the collection of jewellery is displayed using models by conducting ramp shows, the event being sponsored by jewellery manufacturers, retailers, design houses and other corporates. Entry is stated to be by invitation with the sponsorship being invited to guests. Since no admission fee is charged for IIJW, the Petitioner has been paying entertainment duty on the sponsorship amount received for IIJW in accordance with Section 2(b)(viii) read with Section 3. According to the Petitioner IIJW is an event which is separate and distinct from IIJS. In our view, the fact that the exhibition which is organized by the Petitioner under the banner of IIJS and IIJS Signature does not involve a musical performance or ramp show is not decisive of the exigibility to the levy of entertainment duty. The fact that in a given case an event involves a musical performance or a ramp show may be an indicator of whether it constitutes an entertainment for the purposes of Section 2(a). What the legislature has, however, envisaged is that an entertainment is to be defined in a comprehensive and inclusive sense. So defined, the definition includes an exhibition to which persons are admitted against the payment of money. As the Supreme Court noted in the judgment in Geeta Enterprises, the expression 'entertainment' has various shades, aspects, forms and implications. The Supreme Court held that the expression is used by an inclusive definition in a very wide sense to include within its ambit entertainment of any kind including one which may be purely educative. The event must possess a public colour. The public character of an event is signified by the fact that it is open to the public or a segment of the ::: Downloaded on - 09/06/2013 19:41:53 ::: PNP 16/18 WP653-4.3 public is invited. The event, in order to be an entertainment, should provide some form of gratification. The Supreme Court held that if the exhibitor derives some benefit in terms of money, it would be deemed to an entertainment. The identity of the person who derives pleasure or entertainment is wholly irrelevant in the view of the Supreme Court in judging the actual meaning of the word entertainment. The judgment of the Madhya Pradesh in Calico Mills essentially turned upon its peculiar facts where a token payment was charged for admission to a dome set up by the manufacturer of textile goods where the fee which was charged for admission was set off against the purchases made by the purchaser.
It was on these facts that the Madhya Pradesh High Court held that there was no entertainment. In contrast, the event which is organized by the Petitioner is evidently organized on a massive scale. The registration fee which is collected is of a completely different nature and character than what was involved in the case before the Madhya Pradesh High Court. The nature of the event, the character of the goods displayed, the benefit which is derived by the exhibitor in terms of money and the nature of the budget both of the organizer and the exhibitors are indicative of the fact that the exhibition in the present case to which admission is made against the payment of money falls within the definition of the expression 'entertainment' in Section 2(a).
17. Reliance was sought to be placed on behalf of the Petitioner on the judgment of the Supreme Court in Godfrey Phillips India Ltd. v. State of U.P.7. In that decision, the issue before the Supreme Court was whether the State legislatures were competent to levy a luxury tax on tobacco and tobacco products by treating them as luxuries within the meaning of Entry 62 of List II of the Seventh Schedule of the Constitution. Entry 62 List II speaks of taxes on 7 (2005) 2 SCC 515.
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PNP 17/18 WP653-4.3 luxuries including taxes on entertainments, amusements, betting and gambling. The Supreme Court observed that if luxuries are understood as meaning something which is purely for enjoyment and beyond the necessities of life, there can be no doubt that entertainments, amusements, betting and gambling would come within such understanding. Hence, the Supreme Court held that the expression 'luxuries' in Entry 62 List II means the activity of enjoyment or indulging in that which is costly, or which is generally recognized as being beyond the necessary requirements of an average member of society and not articles of luxury. These observations in Godfrey Phillips were made in the context of a constitutional challenge. There is no constitutional challenge to the provisions of Section 2(a) in the present case.
18. For these reasons, we have come to the conclusion that there is no merit in the challenge to the validity of the order dated 30 November 2012 passed by the Divisional Commissioner in appeal arising out of the order of the Additional Collector dated 31 July 2012. In the circumstances, there is no occasion to direct a refund in favour of the Petitioner. Since we have held against the Petitioner on the issue of exigibility to tax under Section 3 of the Bombay Entertainments Duty Act 1923, the direction which has been sought to the Commissioner of Police not to insist upon an NOC of the Additional Collector will not survive.
19. Before concluding, we may record that though an objection was raised in the affidavit in reply to the maintainability of the Petition on the ground that a revisional remedy is available under Section 10A(3) to the State Government against the impugned order of the Divisional Commissioner on appeal, we have entertained the Petition in view of the fact that the Petitioner had sought to ::: Downloaded on - 09/06/2013 19:41:53 ::: PNP 18/18 WP653-4.3 question the jurisdiction of the State in levying and demanding entertainment duty. Having examined the merits of the challenge to the jurisdiction of the State to levy entertainment duty, we have come to the conclusion that there is no merit in the challenge. The Petition shall accordingly stand dismissed.
There shall be no order as to costs.
(Dr. D.Y.Chandrachud, J.) (A.A. Sayed, J.) ::: Downloaded on - 09/06/2013 19:41:53 :::