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11] He further submitted that the Hon'ble Supreme Court, in above Judgment has held that the State should ensure that the tax burden on the goods imported from outside the State and produced within the State, fall equally. Both should be similarly or equally circumstanced or similarly situated as envisaged in Article 304(a) of the Constitution of India. In the present case the tax burden is substantially unreasonable on the goods imported from outside. The State is treating equals as unequals. There is additional tax burden of Rs.82,70,417/- on goods from outside the State which is in nature of hostile discrimination. The goods from outside State suffer tax burden of Rs.2,06,76,042/- and the goods within the State suffers Rs.1,24,05,625/-. It is submitted that in paragraph 141 of the aforesaid decision, it was observed that the Court was inclined to accept the submission made on behalf of the State that so long as the intention behind the grant of exemption/adjustment/credit is to equalize the fall of the fiscal burden on the goods from within the State and those from outside WP 4563 OF 2013 the State, such exemption or set off will not amount to hostile discrimination offensive to Article 304(a). 12] In the aforesaid decision, it is further observed that the Courts have left it open for examination by the regular benches hearing the matters whether the impugned enactment achieve the object of such equalization or lead to a situation that exposes goods from outside the State to suffer any disadvantage vis-a-vis those produced or manufactured in the taxing State. It is submitted that the burden on imported L.N.G. is much higher than locally produced L.N.G. which suffers tax burden and therefore, the importing dealer is put in a disadvantageous position. It is a hostile discrimination as higher tax burden discourages the petitioner to import L.N.G. in to the State of Maharashtra. It is clear from the above that L.N.G. imported from the outside State suffer disadvantage vis-a-vis those produced or manufactured in the State and therefore levy cannot be sustained. 13] It is submitted that the respondent has passed the order dated 31st March, 2017 demanding tax without giving effect to the second proviso. The said dis-allowance of reduction of the amount of CST paid from the Entry Tax has further increased tax burden on the petitioner. Respondent has not allowed set off of WP 4563 OF 2013 Entry Tax under Section 48 of the VAT Act. Therefore, the total tax burden on the petitioner for importing L.N.G. is Rs.5,16,90,105/- as against the tax burden of Rs.1,24,05,625/- that the petitioner would have suffered if he had procured these fuels locally. 14] Mr. Desai further submitted that the State Legislature has enacted the Mumbai Municipal Corporation Act, 1988 (for short called as "MMC Act") and the Bombay Provincial Municipal Corporation Act, 1949 (for short called as "BPMC Act"), the City of Nagpur Corporation Act, 1948 (for short called as, "Nagpur Act"), to authorize local bodies to collect Octroi and Local Body Tax. Section 192 of the MMC Act, levy a tax, called "Octroi" on the entry of said articles, into Greater Bombay for consumption, use or sale therein. Similarly, Section 127 of the BPMC Act empowers the Municipal Corporation of the city to impose Octroi. As per Section 2(42) of the BPMC Act, "octroi" means a cess on entry of goods into the municipal limits of a city for consumption, use or sale therein. Section 114 of the Nagpur Act empowers Nagpur Municipal Corporation, to levy a cess on goods brought within the Nagpur city for sale, consumption or use therein. It is submitted that in the case of Commissioner of Income Tax, Udaipur, Rajasthan -vs- McDowell and Co. Ltd., 2 the Hon'ble Supreme Court has held that the term "tax" under Article 265 read with Article 366(28) 2 (2009) 10 SCC 755 WP 4563 OF 2013 includes imposts of every kind viz. Tax, duty, cess or fees. The aforesaid Act has been enacted by the State Legislature, under Entry 52 of List II of the Seventh Schedule to the Constitution of India, but the power to collect tax has been delegated to the local bodies. Although Octroi is collected by the local bodies, it remains a tax imposed under Entry 52 of List II of the Seventh Schedule as the taxable event is entry of Goods into the Local Areas for consumption, use or sale therein. The taxable event under the Entry Tax Act, is also Entry of Goods into the local areas for consumption, use or sale therein. Thus, on the goods into the local areas for consumption, use or sale therein, the dealer is liable to pay entry tax as well as Octroi. As the taxable event for levying of entry tax and Octroi is one and the same, it amounts to double taxation. Double taxation on the same aspect under same taxable entry is ultra vires the constitution.

301. It is submitted that Article 304(a) and (b) of the Constitution are disjunctive and the tests for each are distinct.

While Article 304(a) pertains to levy of taxes, Article 304(b) covers non fiscal measures. Therefore, Article 304(b) is applicable independent of Article 304(a). Under Article 304(b), the State can impose a reasonable restriction on the freedom of trade, commerce and intercourse within the State as required in public interest. This test does not apply to Article 304(a). He further submitted that in Jindal's case (supra), the Hon'ble Supreme Court has clarified that clauses (a) and (b) of Article 304 have to be read disjunctively. Consequently, the tests required to be satisfied for Article 304(b) are not applicable to taxes imposed under Article 304(a). It is submitted that Article 304(a) expressly clarifies that the imposition of taxes by a State must not discriminate. In Jindal's case (supra), the Hon'ble Supreme Court has clarified that non discriminatory State taxes do not violate Article 301 of the Constitution. Only discriminatory taxes are forbidden. It is further clarified that there is no impediment to trade, commerce and intercourse unless the tax visits a hostile discrimination. Imposition of Entry Tax under Entry 52 of the State List would not violate Article 301 or Article 304(a) of the Constitution merely by virtue of such tax being a tax on the movement of goods. The WP 4563 OF 2013 burden is on the person challenging the validity of the legislation to show that the intention in levying the tax is to visit a hostile discrimination on goods from outside the State. 33] Mr. Khambata, further submitted that it is open to the State to impose a tax on goods brought into the State from outside the State (imported goods), provided such tax is equal to the tax imposed by the State on goods manufactured /produced within the State. This can be done to ensure that the importer is not in a more advantageous position than local manufacturers/producers by virtue of the rate of tax in the place of origin being lower than that imposed by the State into which the goods are imported. To buttress this submission, learned Senior counsel for respondent relied upon the decision in the case of Eagle Corporation Pvt. Ltd

-vs- N.K. Nataraja Mudaliar 25 as well as the decision in the case of Video Electronics (supra). It is further submitted that the majority in the Jindal's case (supra) has approved the decision in the case of Video Electronics (supra). It is well settled that the tax would not be discriminatory or amount to a restriction /interference with trade merely by reason of differential treatment or imposition of a different rate, where such differential treatment does not actually affect trade, commerce or intercourse. It is clarified that ground of incentive /set off with a view to develop economically backward areas does not violate Article 304(a) of the Constitution if there is a justifiable reason for the classification. In Jindal's case (supra), the Hon'ble Supreme Court has once again clarified that differentiation is not necessarily discrimination and that the Court is required to examine whether the differentiation made is intended or inspired by an element of unfavourable bias in favour of the goods produced or manufactured in the State as against those imported from outside and whether the differentiation can be supported by reasons. Therefore, the State cannot act in a hostile protectionist manner. As long as the intention behind the grant of exemption / adjustment is to equalise the fall of the fiscal burden on local and imported goods there is no hostile discrimination.

WP 4563 OF 2013 65] The Act in no way makes any discrimination against the local purchases and importers much less any hostile discrimination. The importers are given input tax credit of Entry Tax Paid to the Government against the VAT liability and balance is payable or refundable as the case may be. Hence tax burden of Entry Tax not borne by the dealers who purchase locally within the State who get set off of the input tax credit u/s 48 r/w 52, is balanced in case of persons who suffer entry tax by making provisions in the MVAT Act that the entry tax can be adjusted against the MVAT liability thus in effect the dealers who import from other State or Country are at par with local manufacturers who purchase from local dealers so far as burden of tax is concerned since in effect there is no entry tax at all when rebate or set off or ITC is granted for the same. Further as per the second proviso any local sales tax paid by the importer on the goods that are imported is also available for reduction from the entry tax payable under the Act. Thus the rebate is provided in second proviso of the Act that the tax payable by the importer under this Act shall be reduced by amount of tax paid, if any, under the law relating to General Sales Tax in force in the UT or the State in which the goods are purchased by the importer in effect takes care of the ground that the dealers who import goods are discriminated vis a vis the dealer who procure the goods from local sources.