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23. It is on this material that we must note the WP1321.15-TATA POWER-gsp.doc submissions of the learned senior counsel appearing for the petitioners. Mr. R.A. Dada, learned senior counsel, would submit that the entire levy is unconstitutional being ultra vires Articles 286, 301 and 304. This Court should allow the writ petition. Mr. Dada has, for convenience sake, divided his submissions into several heads.

However, the State pleads applicability of Article 304(b). In that regard, it is submitted that the levy must be understood correctly. The impugned levy is on goods entering into a local area of the State from outside the State. It does not tax the entry into a local area from another local area within the State of Maharashtra.

Therefore, the only way in which the impugned legislation can be saved is to establish that it does not violate Article 304(a) of the Constitution of India. The impugned tax is levied only on goods that enter the local area from outside the State. A similar tax on goods that enter into local area within the State from any place within the State is not imposed. This is violative of Article 304(a). In the absence of assent of the Hon'ble President of India, Article 304(b) is also not attracted. In such circumstances, the question as to whether the State law must fulfill the broad requirements of Article 304(a) and 304(b) simultaneously is under consideration before a larger bench of the Hon'ble Supreme Court of India and the referral order in the case of Jindal Stainless Steels & Ors. vs. State of Harayana (2010) 4 SCC 595 is relied upon.

30. In the additional written submissions, it is urged that a tax on entry of goods into a local area is patently in violation of Article 301 and no further burden is required to be discharged by the petitioners. When a tax falls 2004 (125) Sales Tax Cases 25.

WP1321.15-TATA POWER-gsp.doc within the inhibition of Article 301 and is not compensatory or regulatory, then it can be saved only by taking recourse to Article 304. The requirement thereof is not admittedly satisfied. Further, the impugned levy is discriminatory. The Act cannot be saved by reading the impugned provisions thereof together with the MVAT Act. That would not enable this Court to hold that the same is Constitutional. Additionally it is submitted that if a levy is held to be non-discriminatory and thus meets Article 304(a), still it must satisfy the requirements of Article 304(b) as well. For all these reasons, it is submitted that the impugned levy must be declared as unconstitutional and ultra vires the abovenoted provisions or Articles of the Constitution of India.

69. Then, in paragraph 10, the Tribunal concluded that by virtue of the Amendment Act and the words and expressions therein, Entry No.13 is valid and it covers all periods, earlier as well as subsequent. Once the discrimination is removed, then the plea of the petitioners that entry tax cannot be levied must be rejected.

70. Then one finds reference to the argument based on Article 286 of the Constitution of India. The argument of the the Revenue has also been noted and the Tribunal concluded that there is no contravention of Article 286 of the Constitution of India. Thus, it understood the Article as prohibiting restrictions on imposition of tax on sale or purchase of goods. Then the other argument also has been dealt with, namely, based on Article 304 of the Constitution of India. The Tribunal concluded that a bare perusal of Article 304 would reveal that the restrictions referred therein are with regard to inter-State trade and not with regard to goods which are imported from outside the country. Hence it held that the petitioners' contention WP1321.15-TATA POWER-gsp.doc did not deserve to be accepted. The Tribunal referred to a number of judgments to conclude that entry tax can be levied on such goods which crossed customs barriers by invoking the power conferred on the State Legislature vide Entry No.52 of List II of the VII Schedule to the Constitution of India. It held there was no encroachment on the powers of the Parliament. It has also been held by the Tribunal in paragraph 16 that all the goods which come from outside the State are liable to entry tax. The definition of the term "import" will have to be construed accordingly. The Tribunal then referred to all the definitions and the relevant provisions of the Maharashtra Entry Tax Act. It rejected, therefore, the argument of the petitioners that the raw materials imported from abroad do not attract entry tax.