JUDGMENT L. N. RAY (Judicial Member). - These are mostly applications under section 8 of the West Bengal Taxation Tribunal Act, 1987, numbered as RN-10 to 13, 15, 90, 259 and 282 to 285 of 1990. RN-213(T) of 1990 was received upon transfer from the High Court under section 15 of the said Act. Except RN-90 and 213(T), all other cases were heard analogously, as common constitutional questions are involved. Although not strictly analogously, RN-90 and 213(T) of 1990 were also heard along with the other cases, since the questions involved in these cases are no different. During hearing of all the cases it was agreed and understood by the learned Advocates for the applicants and the learned State Representative that these applications will be decided by a common judgment. The points which arise for determination in all these applications are - whether the State Legislature was competent to enact clause (ii) of sub-section (6) of section 4 of the Bengal Finance (Sales Tax) Act, 1941, and clause (i) of sub-section (2) of section 4 of the West Bengal Sales Tax Act, 1954, as inserted by West Bengal Act 23 of 1977 with effect from October 10, 1977, and whether the said provisions in the said two Acts as amended by the West Bengal Taxation Laws (Amendment) Act, 1990 and also sub-sections (2A) and (2B) of section 26A of the 1941 Act and section 28 of the 1954 Act, inserted by the West Bengal Taxation Laws (Amendment) Act, 1990, are constitutionally valid. Vires of the relevant rules framed for carrying out the purpose of 1990 amendments is also under challenge. 2. The case of the applicants may be summed up thus : In RN-10 of 1990, Rasoi Ltd. is the first applicant. The applicant No. 2 is the Managing Director of the company, who is also a shareholder. The company is a registered dealer under the West Bengal Sales Tax Act, 1954 and the Central Sales Tax Act, 1956. It carries on the business of manufacturing vanaspati, soap and allied products for sale. The company has a wide network of distributors of its products throughout India. It has also a large number of consignment agents and branches all over India. It despatches goods manufactured in the State of West Bengal to different places outside the State on consignment basis or on branch transfer basis. The company has a wide network of distributors of its products throughout India. It has also a large number of consignment agents and branches all over India. It despatches goods manufactured in the State of West Bengal to different places outside the State on consignment basis or on branch transfer basis. The company makes purchases of vegetable non-essential oils (briefly called V.N.E. oils) of various descriptions and other goods within and outside the State of West Bengal for use as raw materials in the manufacture of the said finished products in West Bengal. A purchase tax was levied under the amended provisions of the 1954 Act and the Bengal Finance (Sales Tax) Act, 1941, at the rates and for the periods mentioned below : (a) From October 10, 1977 to March 31, 1978 at 4 per cent. (b) From April 1, 1978 to March 31, 1983 at 2 per cent. (c) From April 1, 1983 till dated at 3 per cent. Vanaspati was brought under the purview of the 1954 Act with effect from 1977 to May 31, 1987, but was denotified and brought back within the scope of the 1941 Act for a brief period, i.e., from June 1, 1987 to March 31, 1989. Again, since April 1, 1989 it has been restored to the 1954 Act. Among other provisions, clause (i) of section 4(2) of the 1954 Act was inserted by way of an amendment under the West Bengal Act 23 of 1977, with effect from October 10, 1977. A similar provision, being section 4(6)(ii) was inserted in the 1941 Act by the same Act 23 of 1977 and with effect from the same date. Under these provisions a registered dealer became liable to pay tax on all purchases of raw materials made within the State of West Bengal which were ultimately used in the manufacture of various products, when the manufactured products are transferred by him to a place outside West Bengal or disposed of by him otherwise than by way of sale in West Bengal. Vanaspati comprises the major share of the applicants' turnover. During the period from 1977 to 1988, vanaspati manufacturers had to use imported edible oils supplied by the State Trading Corporation of India for manufacture of vanaspati. Vanaspati comprises the major share of the applicants' turnover. During the period from 1977 to 1988, vanaspati manufacturers had to use imported edible oils supplied by the State Trading Corporation of India for manufacture of vanaspati. As a condition for obtaining such edible oils the manufacturers had to agree to an arrangement with the Government of India that irrespective of the cost of manufacture of vanaspati and in spite of varying rates of taxes imposed by different States, the sale price of such vanaspati should be uniformly fixed within a specified ceiling. Allegedly, the position has become worse at the moment, because, compared to the State of West Bengal, indigenous oils are more easily available to the manufacturers of northern and western States of India because of their proximity to the oil-growing region in the country. Moreover, in some of those States, there is no levy of sales tax on transfer of goods on consignment basis. Applicant claims that the tax paid by it under the impugned provisions upon transfer of goods outside West Bengal on consignment basis is not taken into account in considering the price structure of vanaspati. Applicant never charged any tax envisaged under the impugned provisions in the price of the products, when those are transferred to consignment agents outside West Bengal. Applicant paid from time to time, commencing from 1977, a sum of Rs. 63,87,915.27 as tax in accordance with the provisions of section 4(2)(i) of the 1954 Act and section 4(6)(ii) of the 1941 Act and the rules framed thereunder. 3. It is complained that the State Legislature was not competent to impose any tax as done under section 4(6)(ii) of the 1941 Act and under section 4(2)(i) of the 1954 Act, which were brought into effect on October 10, 1977. The tax, whether paid on its own by the applicant or recovered upon assessment by the respondents, has been so paid or recovered out of mutual mistake, the mistake being discovered by the applicant on or about October 30, 1989, upon reading the judgment of the Supreme Court delivered on October 19, 1989, in the case of Goodyear India Ltd. v. State of Haryana reported in [1990] 76 STC 71 : AIR 1990 SC 781 . The said common judgment was delivered also in respect of the cases of Wipro Products Ltd. v. State of Maharashtra and Hindustan Lever Ltd. v. State of Maharashtra. Wipro Products and Hindustan Levers are also manufacturers of vanaspati and they had to pay tax under the respective State Acts under similar circumstances on purchases of raw materials used in the manufacture of vanaspati when the same was sent on consignment basis outside the respective States. By referring to the case of Sales Tax Officer, Varanasi v. Kanhaiya Lal Makund Lal Saraf [1958] 9 STC 747 (SC); AIR 1959 SC 135 , and the case of State of Kerala v. Aluminium Industries Ltd. [1965] 16 STC 689 (SC), it is claimed that a party who made payment by mistake of law is entitled to get refund of the amount in spite of the fact that the State might have spent the amount in the ordinary course of its business. Reference has also been made to the case of State of M.P. v. Bhailal Bhai [1964] 15 STC 450 (SC); AIR 1964 SC 1006 and the case of State of West Bengal v. Hindusthan Construction Co. Ltd. [1978] 41 STC 112; 78 CWN 168 (a decision of the Calcutta High Court) on the point that an order for refund may be made if mistake is proved and the claim for refund is made within the period of limitation of three years from the date when mistake becomes known to the person who made the payment by mistake. 4. The further case of the applicant is that the ratio of the decision of the Supreme Court in the case of Goodyear India Ltd. [1990] 76 STC 71; AIR 1990 SC 781 , is that the State Legislature has no competence to enact any law imposing sales tax if the goods are transferred on consignment basis outside the concerned State. The Supreme Court laid down the above law overruling the decisions of all other courts which had held otherwise and the decision is binding on all courts and authorities under article 141 of the Constitution of India. In view of the said decision, applicants realised that the amounts were paid or recovered out of mistake, and it is the respondents' duty to forthwith refund those amounts whether assessments have or have not been made. In view of the said decision, applicants realised that the amounts were paid or recovered out of mistake, and it is the respondents' duty to forthwith refund those amounts whether assessments have or have not been made. Applicants also claimed an interest at the rate of 2 per cent per month in respect of the amounts so paid. They wrote a letter to that effect to the respondents on January 20, 1990. 5. Applicants filed a supplementary affidavit on March 16, 1990, stating that on February 26, 1990, the West Bengal Ordinance 2 of 1990 was promulgated purporting to amend the provisions of section 4(6) of the 1941 Act and section 4(2)(i) of the 1954 Act and challenging the validity of the Ordinance on the ground, inter alia, that it was promulgated with the direct and specific object of nullifying the judgment of the Supreme Court in the case of Goodyear India Ltd. [1990] 76 STC 71; AIR 1990 SC 781 , so that the State of West Bengal would not be obliged to give effect to the said judgment and to refund the tax illegally levied and recovered from the applicants under the aforesaid provisions of the Acts of 1941 and 1954. The Ordinance is also assailed on the grounds that it has invaded the area of judiciary, the conditions precedent for promulgating an Ordinance as laid down in article 213 of the Constitution did not exist and the amendments brought by the Ordinance in the language of the impugned provisions suffer from the previous defects and infirmities and are, therefore, outside the competence of the State Legislature. Allegedly, the effect and substance of the amended provisions are that if a manufacturer transfers the manufactured goods out of the State of West Bengal to another State, instead of selling the same within the State of West Bengal, then he becomes liable to pay an additional purchase tax on the purchase of raw materials. Applicants' case is that notwithstanding the change in the words of the impugned provisions, the taxing event continues to be the despatch on consignment basis outside the State of West Bengal. Applicants' case is that notwithstanding the change in the words of the impugned provisions, the taxing event continues to be the despatch on consignment basis outside the State of West Bengal. There being no essential difference in the nature and character of the tax imposed by the amended provisions from that imposed by the pre-amended provisions, the amended provisions are invalid on the ratio of the judgment in Goodyear India's case [1990] 76 STC 71 (SC); AIR 1990 SC 781 . The amended provisions are also alleged to be hit by articles 14, 19(1)(g), 301, 304, and other provisions of the Constitution of India. The retrospective imposition of such purchase tax with effect from 1977 is further alleged to be arbitrary, oppressive and violative of articles 14, 19(1)(g) and other provisions of the Constitution. 6. RN-11, 12, 13 and 15 are similar applications of several other vanaspati manufacturing companies, namely, United Vegetable Manufacturers Ltd., Vegetable Products Ltd., Swaika Vanaspati Products Ltd., and Kusum Products Ltd. Supplementary affidavits of similar nature were filed in these cases challenging the Ordinance to the extent it amended the impugned provisions. These companies also claimed refund of different amounts. 7. RN-259 was filed by the same applicants as in RN-13. After narrating the case made out in RN-13, applicants referred to the Ordinance and supplementary affidavit filed in RN-13. Their further case is that the Ordinance was converted into an Act by the West Bengal Taxation Laws (Amendment) Act, 1990, by which the purchase tax has been retrospectively imposed with effect from October 10, 1977, by amending the relevant provisions of the Acts of 1941 and 1954. It appears from the Gazette Notification dated April 21, 1990, that the amending Act of 1990 did not receive the assent of the President. According to the applicants, the Bill proposing the provisions in the Act was introduced without the sanction of the President. The retrospective imposition of the purchase tax is alleged to be violative of articles 301, 14, 19(1)(g) and other provisions of the Constitution and said to be arbitrary and unreasonable. The provisions of the amending Act of 1990 are attacked on the same grounds as the provisions of the Ordinance of 1990 were assailed. The retrospective imposition of the purchase tax is alleged to be violative of articles 301, 14, 19(1)(g) and other provisions of the Constitution and said to be arbitrary and unreasonable. The provisions of the amending Act of 1990 are attacked on the same grounds as the provisions of the Ordinance of 1990 were assailed. The prayer is for declaration that the amended provisions imposing the aforesaid tax with retrospective effect from October 10, 1977 and the other provisions in the said Act of 1990 relating to the said tax are unconstitutional and void and for refund of the same amount as stated in RN-13 together with the same rate of interest. A supplementary affidavit was affirmed on July 3, 1990, challenging the validity of the rules newly framed in consequence of the amendments effected by the Act of 1990. In doing so, the 1990 Amendment Act is termed as colourable exercise of the power of the State Legislature, for, what it could not directly do, has been attempted to be done indirectly. The rules are said to be vague, ambiguous and indefinite, making it possible to be arbitrarily applied. The returns and orders of assessment, etc., under the pre-amended provisions are stated to have become of no effect, as they cannot be consistently fitted in the scheme of the amended Acts and the Rules. The validating provisions are also called arbitrary. The infirmities pointed out by the Supreme Court in the case of Goodyear India Ltd. [1990] 76 STC 71; AIR 1990 SC 781 continue to vitiate the amended provisions. RN-282 was filed by the same applicants as in RN-15. Their case in the main application as well as in the supplementary affidavit affirmed on July 3, 1990, is identical with the case of the applicants in RN-259. The prayers in RN-282 are identical with those in RN-15 except that there is a prayer for declaration that the provisions of the Amendment Act of 1990 are invalid and unconstitutional. RN-283 has been filed by the same parties as in RN-10. Supplementary affidavit was also affirmed on July 3, 1990, as in some other cases. RN-284 and 285 have been filed by the same applicants as in RN-II and 12, respectively. Both these cases are of the nature of RN-259 and 282. RN-283 has been filed by the same parties as in RN-10. Supplementary affidavit was also affirmed on July 3, 1990, as in some other cases. RN-284 and 285 have been filed by the same applicants as in RN-II and 12, respectively. Both these cases are of the nature of RN-259 and 282. In RN-285, Vegetable Products Ltd. affirmed a supplementary affidavit on July 3, 1990, subsequent to the promulgation of the rules connected with the amended provisions of the Acts of 1941 and 1954. No such supplementary affidavit was filed in RN-284. 8. In RN-90, I.O.L. Ltd. (formerly Indian Oxygen Ltd.) is the applicant. It prays for a declaration that section 4(6)(ii) of the 1941 Act, as it stood prior to the amendment, is ultra vires the State Legislature and a direction to the respondents to act according to the ratio of the Supreme Court's decision in the case of Goodyear India Ltd. reported in [1990] 76 STC 71 and restraining the respondents from giving effect to the said section 4(6)(ii) of the 1941 Act and also for refund of purchase tax paid by or collected from the applicant under mistake of law. The applicant-company carries on the business of manufacture and sale of gases, gas appliances, welding equipments, accessories, etc., and is a registered dealer. Its main factory is situated in West Bengal, having branches and agents in other States. The company purchases goods from registered dealers in West Bengal against declarations furnished in form XXIVA as prescribed under section 5(1)(bb) of the 1941 Act and after manufacturing the finished products, part of the same is transferred to its branches and agents outside West Bengal for sale. The Commercial Tax Officer (respondent No. 1) levied and collected from the applicant purchase tax to the tune of Rs. 24,04,748.86 for the period from 1977-78 to 1984-85 under section 4(6)(ii) of the 1941 Act. Assessments for the aforesaid period have already been completed. Between October 10, 1989 and December 31, 1989, applicant paid a further aggregate amount of Rs. 17,10,742.54 for the years 1985-86 to 1988-89 towards the said tax under section 4(6)(ii). Accordingly, it is claimed, a total amount of Rs. 41,16,117.41 has been paid by or realised from the applicant as purchase tax under section 4(6)(ii). Between October 10, 1989 and December 31, 1989, applicant paid a further aggregate amount of Rs. 17,10,742.54 for the years 1985-86 to 1988-89 towards the said tax under section 4(6)(ii). Accordingly, it is claimed, a total amount of Rs. 41,16,117.41 has been paid by or realised from the applicant as purchase tax under section 4(6)(ii). Levy of such purchase tax on disposal of manufactured goods otherwise than by way of sale within the State of West Bengal should be declared ultra vires the State Legislature on the ground that it was in pith and substance a tax on consignment which was within the exclusive field of the Parliament. The Supreme Court in the case of Goodyear India Ltd. [1990] 76 STC 71; AIR 1990 SC 781 took the view that despatch of goods by a manufacturer to his own branches outside the State of manufacture did not amount to "sale" or "disposal" of goods as such. The said judgment of the Supreme Court was made available to the applicant in February, 1990 and accordingly the application was filed for striking down section 4(6)(ii) of the 1941 Act. Allegedly, the tax is in essence on consignment of goods, squarely coming under entry 92B of the Union List and as specified in the amended article 269(1)(h) of the Constitution. The impugned provision is challenged as confiscatory in nature and also as an unreasonable restriction on the applicant's right to carry on business as guaranteed by article 19(1)(g). Supplementary affidavits were filed in this case on behalf of the applicants on March 22 and July 16 of 1990. The two supplementary affidavits were filed consequent upon amendment of the impugned provisions by the Ordinance of 1990 in the first instance and by the West Bengal Taxation Laws (Amendment) Act, 1990, thereafter. The new validating clause has also been challenged as ultra vires and invalid. 9. RN-213(T) is an application under article 226 filed in the High Court and registered there as CR-3463(W) of 1984 and then transferred to this Tribunal for disposal. Dey's Medical Stores (Manufacturing) Ltd. is the applicant. The company carries on the business of manufacturing and selling medicines and drugs. Sales are made both within and outside the State of West Bengal. It has branches in different States of India. Dey's Medical Stores (Manufacturing) Ltd. is the applicant. The company carries on the business of manufacturing and selling medicines and drugs. Sales are made both within and outside the State of West Bengal. It has branches in different States of India. In course of business the company transfers the stock of its products to its distributors and retailers outside West Bengal for sale. It purchases raw materials from dealers within and outside West Bengal. For availing of the benefit of concessional sales tax on its purchases of raw materials in West Bengal, the company issues declarations under the relevant Acts. As a result of insertion of section 4(2)(i) and (ii) of 1954 Act, applicant became liable to pay purchase tax on the purchases made in West Bengal for manufacture of goods which are despatched outside West Bengal with effect from October 10, 1977. Its case is that the transfer of stocks to its own branches outside West Bengal does not amount to disposal of such stocks and consequently no tax is exigible under section 4(2) of the 1954 Act. Title and possession of the goods so transferred, having been retained by the applicant, the mere despatch thereof outside the State cannot be said to be disposal otherwise than by way of sale in West Bengal. Upon a reference to the recommendation of the Law Commission of India, it has been stated that by the Forty-sixth Amendment of the Constitution, tax on inter-State consignment of goods has been included in entry 92B of the Union List of the Seventh Schedule and, therefore, the Parliament alone is competent to legislate any enactment for imposing such a tax. The competence of State Legislature under entry 54 of the State List does not include a tax on consignment of goods outside the State and moreover the power under entry 54 is confined to the sale or purchase of goods and does not extend to mere despatch or consignment thereof not amounting to sale or purchase. The impugned provision is alleged also to be violative of articles 14, 303, 304, etc. The impugned provision is alleged also to be violative of articles 14, 303, 304, etc. Thus, the company prayed for a declaration that the relevant provisions of the 1954 Act as amended in 1977 and 1978 are beyond the legislative competence of the State Legislature and invalid and ultra vires the Constitution, for quashing the assessments and notices for assessment and demand and for restraining the respondents from levying, imposing and collecting the said purchase tax under the said provisions. A supplementary affidavit was filed on June 30, 1990, praying for declaration that section 4(4) of the 1954 Act as amended by the West Bengal Taxation Laws (Amendment) Act, 1990 is ultra vires the State Legislature, for a declaration that no tax was exigible on inter-State consignments to the company's own branches, agencies and depots outside West Bengal despite retrospective amendment of section 4(2)(i) of the 1954 Act and directing the respondents to follow the ratio in [1990] 76 STC 71 (SC) (Goodyear India Ltd. v. State of Haryana), for restraining respondents from giving effect to the amended section 4(4) of the 1954 Act, for striking down sections 4(4) and 28 of the 1954 Act as amended by the Amendment Act of 1990 and the rules made thereunder and all proceedings relating thereto. There is also a prayer for refund of all taxes paid or collected under section 4(2)(i) of the 1954 Act. The grounds taken in the supplementary affidavit are more or less the same as those taken in the other applications. 10. No affidavit-in-opposition was filed by the respondents in connection with the main application in RN-10. However, an opposition was filed by them with reference to the supplementary affidavit. The case of the respondents is that they have filed an affidavit-in-opposition in RN-15 involving the same question and they want to rely thereon, a copy of the same being made annexure "A". The substance of the case in the said affidavit-in-opposition filed in RN-15 is that the challenges to the provisions of sections 4(6)(ii) of the 1941 Act and 4(2)(i) of the 1954 Act have been rendered superfluous in the face of the West Bengal Taxation Laws (Amendment) Ordinance, 1990 (No. 2 of 1990), promulgated on February 26, 1990. The claim of refund is also opposed in view of the validating provisions in the 1941 Act and the 1954 Act inserted by the said Ordinance. The claim of refund is also opposed in view of the validating provisions in the 1941 Act and the 1954 Act inserted by the said Ordinance. A copy of the Ordinance is an annexure to the affidavit-in-opposition filed in RN-15. It is further stated that the said Ordinance was replaced by the West Bengal Taxation Laws (Amendment) Act, 1990, enacted by the State Legislature on April 19, 1990. The objects behind the Ordinance and also the Amendment Act of 1990 have been set out in the Statement of Objects and Reasons appended to the relevant Bill. It is denied that the object is to nullify the judgment of the Supreme Court dated October 19, 1989. The amended provisions seek to clarify and pinpoint, it is claimed, the taxable event so that the levy of purchase tax may not suffer from any of the infirmities pointed out by the Supreme Court in the said judgment. It is a case of minor repair for removing a defect or lacuna. The grounds made out by the applicants against the amended provisions are all denied. The Ordinance was promulgated in compliance of article 213 for removing the defects or lacuna pointed out by the Supreme Court so that purchase tax might be intra vires the Constitution. By the amendments, the taxable event has been totally delinked from despatch of the manufactured product by way of stock transfer or consignments. 11. No affidavit-in-opposition was filed by respondents in RN-11, 12 and 13. Respondents filed an opposition in RN-259. In brief, their case is similar to that in RN-15 and 10 and further that the amendments made by the West Bengal Taxation Laws (Amendment) Act, 1990, have cured the infirmities in the pre-amended provisions and that in view of the retrospective effect of the amended provisions from October 10, 1977 and in view of the validating provisions inserted by the amending Act of 1990, the claim of refund is liable to be rejected. Affidavits-in-opposition were also filed in RN-282, 283, 284 and 285, more or less with reference to that in RN-259. No opposition was, however, filed by respondents in RN-90, but in RN-213(T) of 1990, which was previously CR-3463(W) of 1984 in the High Court, they filed two oppositions, one having been affirmed on June 19, 1984 and the other on July 12, 1990. No opposition was, however, filed by respondents in RN-90, but in RN-213(T) of 1990, which was previously CR-3463(W) of 1984 in the High Court, they filed two oppositions, one having been affirmed on June 19, 1984 and the other on July 12, 1990. The respondents' case in the first affidavit is that the impugned tax is validly imposed on purchases of raw materials and is not levied on the end-product. Disposal does not mean forsaking of both title and control over the goods in question. The Forty-sixth Amendment of the Constitution and entry 92B of the Union List do not restrict the State's power to impose purchase tax under entry 54 of the State List. The impugned tax is claimed to be a purchase tax and not a tax on consignment of goods in the course of inter-State trade or commerce. The taxable event in the tax under challenge is not despatch, but purchase. The object of the State is not to extend the benefit of lower rate of tax to dealers who do not sell their goods in West Bengal and thereby deprive the State of the sales tax which would be otherwise available had the goods been sold in West Bengal. The case in the second affidavit is that the issues raised in the original writ petition are "no longer alive" in view of the West Bengal Taxation Laws (Amendment) Act, 1990. The relevant provisions of the 1954 Act were suitably amended with retrospective effect from October 10, 1977, in order to fasten the incidence of purchase tax to the purchase of goods in West Bengal without reference to any subsequent event, so that the infirmities pointed out by the Supreme Court (obviously in the case of Goodyear India Ltd. [1990] 76 STC 71; AIR 1990 SC 781 ) are removed. Transfer of manufactured goods outside West Bengal and disposal thereof otherwise than by way of sale in West Bengal are claimed to have now been totally delinked from the levy of tax on purchase of goods. The tax, as envisaged in the amended provision, is outside the "wide sweep" of entry 92B of the Union List and well within the scope of entry 54 of the State List. The validating provision in the new section 28 of the 1954 Act and the new rules are valid and constitutional. The tax, as envisaged in the amended provision, is outside the "wide sweep" of entry 92B of the Union List and well within the scope of entry 54 of the State List. The validating provision in the new section 28 of the 1954 Act and the new rules are valid and constitutional. The State, it is asserted, is competent to levy tax retrospectively. The learned State Representative submitted that all these cases having raised constitutional questions of identical nature, affidavits-in-opposition filed in some of the cases may be taken as also filed in the cases where none has been filed. 12. Having regard to the points of controversy and for the sake of adequate appreciation thereof, we set out below the relevant provisions, both unamended and amended, including the new validating clauses in the Acts of 1941 and 1954. (A) Prior to amendment in 1990. As amended in 1990 with effect from October 10, 1977. Bengal Finance (Sales Tax) Bengal Finance (Sales Tax) Act, 1941. Act, 1941. Section 4. Incidence of Section 4. Incidence of taxation. - taxation. - * * * * * * (6) Every dealer, who has (6) Every dealer, who has become liable to pay tax under become liable to pay tax under sub-section (1) or sub-section sub-section (1) or sub-section (2) or sub-section(4) of this (2) or sub-section (4) of this section or sub-section (3) of section or sub-section (3) of section 8 and is registered section 8 and is registered under under this Act, shall, in this Act, shall, in addition to addition to the tax referred to the tax referred to therein, be therein, be also liable to pay also liable to pay tax under tax under this Act on all his this Act on all his purchases purchases from - from - (i) .................... (i) ............. (i) ............. (ii) a registered dealer, to (ii) a registered dealer, to whom whom a declaration referred to a declaration referred to in the in the proviso to clause (bb) of proviso to clause (bb) of sub-section (1) of section 5 has sub-section (1) of section 5 has been been or will be furnished by him or will be furnished by him in in respect of sales referred to respect of sales referred to in in sub-clause (i)or sub-clause sub-clause (i) or sub-clause (ii) (ii) of the said clause, of of the said clause, of goods purchased goods purchased against such against such declaration; declaration, and used by him directly in the manufacture in West Bengal, of goods or in the packing of such goods, when such manufactured goods are transferred by him to a place outside West Bengal or disposed of by him, otherwise than by way of sale in West Bengal; (B) Section 5, sub-section (7) of the 1941 Act, as it stood before the amendment of 1990 : "(7) In this Act, the expression 'taxable specified purchase price', in relation to any period, means in the case of a dealer who is liable to pay tax under sub-section (6) of section 4 that part of his specified purchase price during such period which remains after deducting therefrom his specified purchase price during that period on - (i) purchases of goods, sales of which are declared tax-free under section 6; (ii) purchases of goods which are shown to the satisfaction of the Commissioner not to have taken place in West Bengal or to have taken place in the course of inter-State trade or commerce within the meaning of section 3 of the Central Sales Tax Act, 1956 (74 of 1956), or in the course of import of the goods into, or export of the goods out of, the territory of India, within the meaning of section 5 of that Act; (iii) purchases of goods specified in section 14 of the Central Sales Tax Act, 1956, on a prior sale or purchase whereof in West Bengal due tax is shown to the satisfaction of the Commissioner to have been paid; (iv) (omitted with effect from June 1, 1987 by West Bengal Act 5 of 1987). (v) such other purchases as may be prescribed." (C) By the Amendment Act of 1990, clause (iiia) with a proviso was inserted in section 5(7) with effect from October 10, 1977, as under : "(iiia) purchases, other than those referred to in clause (iii), or clause (v), of goods liable to tax under clause (ii) of sub-section (6) of section 4 for use directly in the manufacture of goods in West Bengal or in the packing in West Bengal of goods so manufactured for sale in West Bengal : Provided that where specified purchase price of goods, other than that in respect of purchases referred to in clause (iii) or clause (v), cannot be fully identified by a dealer, the specified purchase price in respect of purchases referred to in this clause shall be determined in such manner as may be prescribed;" (D) By the Amendment Act of 1990 a validation clause was inserted after sub-section (2) of section 26A of the 1941 Act by way of new sub-sections (2A) and (2B) as reproduced below : "(2A) Notwithstanding any judgment, decree or order of any court, tribunal or authority, all taxes on purchases liable to tax under clause (ii) of sub-section (6) of section 4 levied or collected or purported to have been levied or collected before the commencement of the West Bengal Taxation Laws (Amendment) Act, 1990, shall be deemed always to have been validly levied or collected in accordance with the provisions of this Act as amended by the said Act; and accordingly, no suit or other proceeding shall be maintained or continued in any court or before any tribunal or authority for, and no enforcement shall be made by any court, tribunal or authority of any decree or order directing, the refund of any such tax which has been collected. (2B) Notwithstanding any judgment, decree or order of any court, tribunal or authority, recoveries shall be made in accordance with the provisions of this Act of all amounts which would have been collected thereunder as tax as aforesaid as if sub-section (2A) had been in force at all material times." (E) Prior to amendment in 1990. As amended in 1990 with effect from October 10, 1977. West Bengal Sales Tax Act, 1954. West Bengal Sales Tax Act, 1954. "Section 4. Liability to "Section 4. Liability to payment payment of tax - of tax - (1) ....................... As amended in 1990 with effect from October 10, 1977. West Bengal Sales Tax Act, 1954. West Bengal Sales Tax Act, 1954. "Section 4. Liability to "Section 4. Liability to payment payment of tax - of tax - (1) ....................... (1) ....................... (1a) ....................... (1a) ....................... (2) A dealer liable to pay tax (2) A dealer liable to pay tax under sub-section (1) availing under sub-section (1) availing himself of the benefit under himself of the benefit under section 23A by furnishing a subtion 23A by furnishing a declaration referred to in the declaration referred to in the proviso thereto shall, in proviso thereto shall, in addition to the tax payable under addition to the tax payable sub-section (1), be liable to under sub-section (1), be liable pay tax under this Act, - to pay tax under this Act, - (i) on all such purchases (i) on all such purchases of against the declaration issued goods against the declaration or to be issued by him of issued or to be issued by him; goods required for use by him directly, in manufacturing, (ii) ....................... making, processing or packing in West Bengal of notified commodities, (iia) purchases, other than when such notified commodities those referred to in clause (ii) are transferred by him to or clause (iii), of goods liable a place outside West Bengal or to tax under clause (i) of disposed of by him otherwise sub-section (2) for use directly than by way of sale in West in the manufacture of notified Bengal." commodity in West Bengal or packing in West Bengal of such (ii) ................ notified commodity for sale in West Bengal : (iia) [There was no clause (iia) before the 1990 amendment.] Provided that where specified purchase price of goods, other than that in respect of purchase referred to in clause (ii) or clause (iii), cannot be fully identified by a dealer, the specified purchase price in respect of purchases referred to in this clause shall be determined in such manner as may be prescribed;". [This clause was newly inserted.] Sub-sections (6) and (7) were omitted with effect from October 10, 1977 by the 1990 Amendment. (F) A new validating clause as section 28 was inserted by the 1990 Amendment in the 1954 Act. It runs as follows : "28. Validation and exemption. [This clause was newly inserted.] Sub-sections (6) and (7) were omitted with effect from October 10, 1977 by the 1990 Amendment. (F) A new validating clause as section 28 was inserted by the 1990 Amendment in the 1954 Act. It runs as follows : "28. Validation and exemption. - (1) Notwithstanding any judgment, decree or order of any court, tribunal or authority, all taxes on purchases liable to tax under clause (i) of sub-section (2) of section 4 levied or collected or purported to have been levied or collected before the commencement of the West Bengal Taxation Laws (Amendment) Act, 1990, shall be deemed always to have been validly levied or collected in accordance with the provisions of this Act as amended by the said Act; and accordingly, no suit or other proceeding shall be maintained or continued in any court or before any tribunal or authority for, and no enforcement shall be made by any court, tribunal or authority of any decree or order directing, the refund of any such tax which has been collected. (2) Notwithstanding any judgment, decree or order of any court, tribunal or authority, recoveries shall be made in accordance with the provisions of this Act of all amounts which would have been collected there-under as tax as aforesaid as if this section had been in force at all material times. (3) For the removal of doubts, it is hereby declared that - (a) nothing in sub-section (1) shall be construed as preventing any person - (i) from questioning in accordance with the provisions of this Act the assessment, reassessment, levy or collection of the aforesaid tax, or (ii) from claiming refund of the aforesaid tax paid by him in excess of the amount due from him under this Act; and (b) no act or omission on the part of any person before the commencement of section 4 of the West Bengal Taxation Laws (Amendment) Act, 1990, shall be punishable as an offence which would not have been so punishable if that section had not come into force." 13. Although applicants have challenged the validity of both the old and the new provisions, we are concerned at this stage with only the new provisions of both the Acts, as amended by the West Bengal Taxation Laws (Amendment) Act, 1990. The 1990 amendments are retrospectively operative from October 10, 1977. Although applicants have challenged the validity of both the old and the new provisions, we are concerned at this stage with only the new provisions of both the Acts, as amended by the West Bengal Taxation Laws (Amendment) Act, 1990. The 1990 amendments are retrospectively operative from October 10, 1977. The effect of the 1990 amendments is that the impugned unamended provisions of the Acts of 1941 and 1954 are deemed to be couched in the amended language right from the inception of their coming into effect, that is to say, with effect from October 10, 1977, and as a consequence, the provisions, as they originally stood prior to the 1990 amendments, have become non est. It is, therefore, not necessary to give a decision on the old provisions, unless that is required for a complete disposal of the controversies presented to us. 14. The challenge thrown by the applicants against the present provisions in section 4(6)(ii) of the 1941 Act and section 4(2)(i) of the 1954 Act is mainly three-fold. First, the State Legislature was not competent to legislate on a tax on consignments in the course of inter-State trade or commerce. In pith and substance, these provisions seek to levy a tax on consignments of goods, which is a subject for legislation exclusively assigned to the Parliament under item 92B of the Union List, though it is called a purchase tax. Secondly, the impugned provisions in both the Acts are invalid under articles 14, 19(1)(g) and 301, because it is a fresh imposition levied with retrospective effect from October 10, 1977, and because machinery provisions are wanting as to assessment, appeal, etc., for such retrospective taxation. Thirdly, the validation clauses introduced by the 1990 Act in the form of sub-sections (2A) and (2B) of section 26A of the 1941 Act and section 28 of the 1954 Act are invalid and inoperative on the grounds that the State Legislature cannot validate any tax or levy and collection thereof regarding which it was not competent to legislate and that the infirmities of the relevant legislation were not removed by the 1990 amendments. These clauses are further assailed on the ground that they tend to nullify the judgment in Goodyear India's case [1990] 76 STC 71; AIR 1990 SC 781 , and that amounts to invasion of the sphere of the judiciary. 15. These clauses are further assailed on the ground that they tend to nullify the judgment in Goodyear India's case [1990] 76 STC 71; AIR 1990 SC 781 , and that amounts to invasion of the sphere of the judiciary. 15. The case of the respondents (State) is that the impugned tax is a tax on purchase of goods and the impugned enactment was validly made by the State Legislature under entry 54 of the State List which runs as follows : "54. Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I." The contention of the applicants, on the contrary, is that the tax, though called a purchase tax is really a consignment tax under entry 92B of the Union List, which reads thus : "92B. Taxes on the consignment of goods (whether the consignment is to the person making it or to any other person), where such consignment takes place in the course of inter-State trade or commerce." 16. Ours is a written Constitution. Certain basic features of the Constitution are well marked. One such generally recognised feature is separation of powers among three wings of the State, namely, the Executive, the Legislature, and the Judiciary. Similarly, another express and well-recognised basic feature is distribution of legislative power between the Legislature of the Union, namely, the Parliament and the Legislatures of the States, being the constituent units of the Union. The very first article of the Constitution of India declares that India "shall be a Union of States". The Seventh Schedule is referable to article 246 which deals with distribution of subject-matter of laws made by Parliament and the State Legislatures. We have already noticed entry 92B of the Union List and entry 54 of the State List. Entry 92B was inserted in the Union List by the Forty-sixth Amendment to the Constitution in the year 1982. Prior to that, none of the three Lists of the Seventh Schedule contained any specific entry on tax on consignment of goods in the course of inter-State trade or commerce. The fact that this tax was assigned to the Union List, namely, the Parliament and that too as recently as in 1982, deserves to be kept in view. Prior to that, none of the three Lists of the Seventh Schedule contained any specific entry on tax on consignment of goods in the course of inter-State trade or commerce. The fact that this tax was assigned to the Union List, namely, the Parliament and that too as recently as in 1982, deserves to be kept in view. We have to test the challenge of legislative incompetence of the State Legislature in relation to the impugned provisions in the 1941 Act and the 1954 Act, as amended in the year 1990, as a phenomenon posterior to the insertion of entry 92B in List I. We are at the same time not oblivious of entry 97 of List I conferring residuary powers on Parliament and also article 245(1). 17. Learned Advocates appearing for applicants have contended that the impugned provisions, as they now stand, in pith and substance, seek to levy a consignment tax covered by entry 92B of List I. The State Legislature enacted a colourable legislation in the name of a tax on purchase of goods, the subject-matter being as if, covered by entry 54 of List II. According to them, the State Legislature had done or has wanted to do something indirectly which it could not do directly. If in reality the tax is, in the nature or effect, a consignment tax, the State Legislature has no competence to legislate thereon, notwithstanding the fact that the nomenclature given to the tax apparently indicates otherwise. Mr. P. K. Chakraborty, the learned State Representative, argued on behalf of the respondents that it was a case of overlapping to the permitted degree from entry 54 of List II to the domain of entry 92B of List I. According to him, it is not a consignment tax falling under entry 92B of List I. The overlapping occurs because of a remote connection with consignment or despatch of goods outside the State. But Mr. Somen Bose and Dr. D. Pal, learned Advocates arguing the cases for applicants in this batch of applications, opposed the claim of mere overlapping and submitted, on the contrary, that this is a case of indirect and substantial legislation encroaching upon or invading the field exclusively allotted to Parliament. 18. But Mr. Somen Bose and Dr. D. Pal, learned Advocates arguing the cases for applicants in this batch of applications, opposed the claim of mere overlapping and submitted, on the contrary, that this is a case of indirect and substantial legislation encroaching upon or invading the field exclusively allotted to Parliament. 18. The concept of overlapping contemplates that basically or primarily the subject-matter of the legislation falls within the State List, but only incidentally the legislation touches or refers to something which is covered by a subject-matter under an entry in the Union List. Thus, overlapping conveys a sense and a meaning to the effect that one having the basic power to do certain thing tends to travel into the exclusive domain of another, not with an intention to exercise the power of the other authority, but only incidentally in the course of effective exercise of its own power. That being so, this question leads us to examine what impost is actually levied by the impugned provisions. It is well-settled that not only in testing legislative competence, but also in testing constitutional validity of any substantial nature, the rule of pith and substance must be followed. This rule is no more than the rule to find out the real intention, the real effect and the real result of the impugned enactment. The constitutional courts are naturally required to find out the essence of the enactment, as distinct from the mere appearance. 19. Mr. Somen Bose, learned Advocate for most of the applicants, referred to a number of reported decisions in this connection. He, in the first instance, relied on the decision of the Privy Council in the case of Prafulla Kumar Mukherjee v. Bank of Commerce Ltd. reported in 74 IA 23. The case related to the Bengal Money Lenders Act, 1940. Item (27) of the Provincial Legislative List empowered the Provincial Legislature to make laws with respect to money-lending and money-lenders. In item (28) of section 100 of the Government of India Act, 1935, the Federal Legislature was given the power to make laws with respect to, among other things, promissory notes. The main attack on the validity of the Act was on the ground that the Provincial Legislature had no power to affect promissory notes. In item (28) of section 100 of the Government of India Act, 1935, the Federal Legislature was given the power to make laws with respect to, among other things, promissory notes. The main attack on the validity of the Act was on the ground that the Provincial Legislature had no power to affect promissory notes. The Privy Council held that in spite of three legislative Lists, in place of two (as in our present Constitution), the powers are "bound to overlap from time to time". A passage ending with the following sentence was quoted with approval from the decision in Subrahmanyan Chettiar case [1940] FCR 188 : "Hence the rule which has been evolved by the Judicial Committee, whereby the impugned statute is examined to ascertain its 'pith and substance', or its 'true nature and character', for the purpose of determining whether it is legislation with respect to matters in this List or that." Applying this rule, it was held that the Bengal Money Lenders Act was in pith and substance an Act dealing with money-lending, and it did not invade the field of Federal legislation. 20. Then Mr. Bose and also Dr. D. Pal placed reliance on the case of K. C. G. Narayan Deo v. State of Orissa AIR 1953 SC 375 . In paragraph 9 of the judgment, the Supreme Court enunciated the same rule in these words - "If the Constitution of a State distributes the legislative powers amongst different bodies, which have to act within their respective spheres marked out by specific legislative entries, or if there are limitations on the legislative authority in the shape of fundamental rights, questions do arise as to whether the Legislature in a particular case has or has not, in respect to the subject-matter of the statute or in the method of enacting it, transgressed the limits of its constitutional powers. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression "colourable legislation" has been applied in certain judicial pronouncements. Such transgression may be patent, manifest or direct, but it may also be disguised, covert and indirect and it is to this latter class of cases that the expression "colourable legislation" has been applied in certain judicial pronouncements. The idea conveyed by the expression is that although apparently a Legislature in passing a statute purported to act within the limits of its powers, yet in substance and in reality it transgressed these powers, the transgression being veiled by what appears, on proper examination, to be a mere pretence or disguise." Mr. Bose next referred to the decision of the Supreme Court of the U.S.A. dated May 10, 1886, in the case of Yick Wo v. Peter Hopkins 118 US pages 356 to 374, in which the following observation occurs in a case where the equality clause was violated : "Though the law itself be fair on its face and impartial in appearance, yet, if it is applied and administered by public authority with an evil eye and an unequal hand, so as practically to make unjust and illegal discriminations between persons in similar circumstances, material to their rights, the denial of equal justice is still within the prohibition of the Constitution." 21. The pith and substance test (sometimes called the test whether or not an Act is a piece of colourable legislation) was laid down also in the cases of State of Bihar v. Kameshwar Singh AIR 1952 SC 252 , and Jaora Sugar Mills (P.) Ltd. v. State of M.P AIR 1966 SC 416 , to which Dr. Pal referred. Mr. Bose also relied on the second of these two cases. A number of other reported decisions were referred to on behalf of the applicants on the same point. We feel, it will be adequate to refer to only one of those cases, which is not only very recent, but also on the specific question agitated before us, namely, the decision in the case of Goodyear India Ltd. v. State of Haryana [1990] 76 STC 71 (SC); AIR 1990 SC 781 . It was held in that case that the nomenclature of the Act is not conclusive and for determining the true character and nature of a particular tax, with reference to the legislative competence of a particular Legislature, the court will look into its pith and substance. 22. Both Mr. Bose and Dr. It was held in that case that the nomenclature of the Act is not conclusive and for determining the true character and nature of a particular tax, with reference to the legislative competence of a particular Legislature, the court will look into its pith and substance. 22. Both Mr. Bose and Dr. Pal argued that if the impugned provisions, as amended, are considered in their totality, and if the charging and exempting provisions are read and interpreted together, as they should be, and also if the provisions in the Acts and the relevant rules are considered together, it will be found that the tax is levied on consignments or despatches. Mr. Chakraborty, the learned State Representative, contended that the amended provisions have retrospectively fastened the incidence of the impugned tax only to the purchase of goods without any connection with subsequent event, namely, consignment outside the State in the course of trade or commerce. By referring to the Statement of Objects and Reasons appended to the West Bengal Taxation Laws (Amendment) Bill, 1990, he submitted that the infirmities in the old law, as pointed out by the Supreme Court in [1990] 76 STC 71; AIR 1990 SC 781 (Goodyear India Ltd. v. State of Haryana), have now been removed and at the same time it has been ensured by amending various provisions as well as by framing relevant rules that the burden of the tax remains equal to the burden of the tax imposed by the erstwhile provisions with effect from October 10, 1977. We have already reproduced the significant amendments effected to the relevant provisions. It will appear therefrom that in the 1941 Act, section 4(6)(ii), as amended, read with the newly inserted clause (iiia) and its proviso of sub-section (7) of section 5, produces the result that after allowing the specified deductions, the tax is leviable on purchases of goods for use directly in the manufacture of goods in West Bengal in respect of which declaration has been or will be furnished, but when the goods so manufactured are not sold in West Bengal. Now, such goods which are not sold in West Bengal are despatched out of West Bengal either by way of branch transfer or transfer to agents. Now, such goods which are not sold in West Bengal are despatched out of West Bengal either by way of branch transfer or transfer to agents. It may be noted in this connection that there was no controversy that the expression - "sale in West Bengal" - means sale within the State of West Bengal and also sale in the course of inter-State trade or commerce taking place within West Bengal. That being the undisputed position, the remainder of manufactured goods, namely, those goods which are not sold in West Bengal either within the State or in the course of inter-State trade or commerce, is transferred or consigned or despatched out of West Bengal or disposed of otherwise than by way of sale in West Bengal. The totality of the provisions, as amended in 1990, brings about a situation where the impugned tax is neither imposed at the point of purchase of the raw materials, nor levied at the point of manufacture, but is imposed at the point of transfer or consignment or despatch of the products out of West Bengal. Similarly, if we consider the amended provisions of section 4(2)(i) of the 1954 Act together with the newly inserted clause (iia) and its proviso of section 4(2), the result is identical. Here also, the new clause (iia) is the provision for exemption or deduction. In spite of this result, Mr. Chakraborty, the learned State Representative, contended that the amended provisions are closely related to the purchase of raw materials and only remotely connected, if at all, with any subsequent event such as transfer or consignment or despatch of unsold manufactured goods out of West Bengal. Applying the test of pith and substance, it is not possible to agree with the learned State Representative that the impost has direct connection with purchase of raw materials. Before we proceed further on this aspect, we may dispose of a related point urged by Mr. Chakraborty. He submitted that the State Legislature is competent to enact provisions levying tax on purchase of goods and that has precisely been done by the amended provisions of section 4(6)(ii) of the 1941 Act and section 4(2)(i) of the 1954 Act. Before we proceed further on this aspect, we may dispose of a related point urged by Mr. Chakraborty. He submitted that the State Legislature is competent to enact provisions levying tax on purchase of goods and that has precisely been done by the amended provisions of section 4(6)(ii) of the 1941 Act and section 4(2)(i) of the 1954 Act. He further submitted that the exemption or deduction provisions contained in the newly inserted clauses of the relevant provisions of the said Acts are independent provisions, in respect of which the State Legislature possesses the required legislative competence. Dr. Pal, appearing for one of the applicants, submitted that there can be no dispute that the State Legislature is competent to enact a law imposing tax on purchase of goods under entry 54 of List II and it is also competent to enact exemption or deduction provisions in respect of imposition of such tax being a power ancillary or incidental to the power to impose purchase tax, but with great force he submitted that the charging provisions under section 4 of both the Acts and the exemption provisions in those Acts whether contained in the same section or in other sections are not to be considered and interpreted in isolation and should be interpreted together as parts of a single scheme in their entirety so that the net result or effect of the legislation is obtained by application of the pith and substance rule. In this connection Dr. Pal placed reliance on the case of J. K. Steel Ltd. v. Union of India reported in AIR 1970 SC 1173 . In paragraph 37 of the judgment the Supreme Court held that the levy and exemption are parts of the same scheme of tax and the two together carry into effect the purpose of the legislation. It further held, "for finding out the true scheme of taxation measure, we have to take into consideration not merely the levy but also the exemption granted". The pith and substance rule, in our opinion, will be meaningless, if the charging provision is considered in isolation from the exemption provision, because in that case the nomenclature or the mere appearance will receive undue prominence relegating the real effect to the background. The pith and substance rule, in our opinion, will be meaningless, if the charging provision is considered in isolation from the exemption provision, because in that case the nomenclature or the mere appearance will receive undue prominence relegating the real effect to the background. For example, in the present case, if we see the amended charging provision without looking into the exemption provision, the result is that it is a pure and simple tax on purchase of raw materials for use directly in the manufacture of goods for sale in West Bengal, in respect of which declaration has been or will be furnished. If that is the only provision to be looked into, then the tax is to be imposed on all such purchases of raw materials, because under the charging provision there is no requirement for considering any other factor. The declaration given or to be given in respect of such purchases is to the effect that the raw materials so purchased are "intended for use ........ directly in the manufacture in West Bengal ......... for sale ............ in West Bengal". [See section 5(1)(bb) of the 1941 Act and section 23A of the 1954 Act]. That being so, the charging provision in the two Acts, if considered without the exemption provision, will give an impression that it has no connection with disposal otherwise than by way of sale in West Bengal or with transfer, consignment or despatch outside West Bengal not amounting to sale. But in reality the tax is not imposed on all such purchases. It is actually imposed where the manufactured goods are not sold in West Bengal, but despatched out of the State or disposed of otherwise than by way of sale in West Bengal. The tax on purchase contemplated in entry 54 of List II is a tax only related to purchase. The tax contemplated in entry 92B of List I is a tax on consignment of goods in the course of inter-State trade or commerce. Necessarily, the power under entry 92B of List I does not include a tax on purchase of goods even when it involved consignment and vice versa. It is also noteworthy that the goods purchased are altogether different from the goods manufactured and transferred out of the State. Necessarily, the power under entry 92B of List I does not include a tax on purchase of goods even when it involved consignment and vice versa. It is also noteworthy that the goods purchased are altogether different from the goods manufactured and transferred out of the State. We are, therefore, of the opinion that it is not possible to interpret the charging provisions divorced from the exemption provisions for finding out the pith and substance of the impugned legislation. Similarly, it will be a faulty interpretation to consider the exemption provision segregated from the charging provision. The correct rule for the purpose of deciding legislative competence must be to interpret both the charging and the exemption provisions together so as to find out the true nature and character of the impugned legislation. 23. In the context of the controversy raised here the true nature and character of the legislation in question turns upon identification of the taxable event or the event which attracts the tax. If the taxing event is consignment of goods as envisaged in entry 92B, only then the challenge will be successful. As held in the case of Goodyear India Ltd. [1990] 76 STC 71 (SC); AIR 1990 SC 781 , "it is well-settled that what is the taxable event or what necessitates taxation in an appropriate statute, must be found out by construing the provisions. The essential task is to find out the taxable event" (see paragraph 16 of the judgment). Now, what, after all, is a taxable event ? Paragraphs 27 to 30 of the judgment in Goodyear India Ltd.'s case [1990] 76 STC 71 (SC); AIR 1990 SC 781 explain what is a taxable event. It is that on the happening of which the charge is affixed. "Taxable event is that which on its occurrence creates or attracts the liability to tax. Such liability does not exist or accrue at any earlier or later point of time." "A taxable event is that which is closely related to imposition." To put differently, a taxable event is the happening of an event having the closest nexus with fixation of the charge of tax. Such liability does not exist or accrue at any earlier or later point of time." "A taxable event is that which is closely related to imposition." To put differently, a taxable event is the happening of an event having the closest nexus with fixation of the charge of tax. In the instant case, the tax is not charged when raw materials are purchased, nor when the finished goods are manufactured, nor when those are sold in West Bengal, but the tax is charged as soon as the manufactured goods are sent out of West Bengal or disposed of otherwise than by way of sale in West Bengal. If the charging provisions are considered in conjunction with the exemption provisions, it is found that the charge of tax comes into force as soon as the finished goods are sent out of West Bengal or disposed of otherwise than by way of sale in West Bengal. Sometimes, in order to find out what the legislation means it is necessary to find out what the legislation does not mean. In the instant case, if a manufacturer does not sell the finished goods in West Bengal and does not otherwise dispose of or does not transfer the same out of West Bengal, the tax will not be charged or attracted to the purchase of raw materials, although declaration has been furnished all the same. For example, if a manufacturer hoards the manufactured goods in a case of this nature, the tax will not be charged as long as he continues to hoard. Therefore, the taxable event is clearly despatch or transfer (which means consignment) from West Bengal to some other State in course of trade or commerce or disposal otherwise than by way of sale in West Bengal. And, what is disposal otherwise than by way of sale in West Bengal (such sale admittedly comprising both intra-State and inter-State sales) ? A person engaged in trade or commerce is not there just to manufacture goods and if not sold in West Bengal, then to keep hoarding or storing the same indefinitely or to destroy them. He has to transfer the same to other States obviously for the purpose of sale. That is the only conceivable course open to him. A person engaged in trade or commerce is not there just to manufacture goods and if not sold in West Bengal, then to keep hoarding or storing the same indefinitely or to destroy them. He has to transfer the same to other States obviously for the purpose of sale. That is the only conceivable course open to him. Therefore, in pith and substance, the taxable event to attract the tax is consignment of goods out of West Bengal otherwise than by way of sale. Despatch of goods for the purpose of sale is wholly different from despatch by way of sale. In the first case, sale has not taken place, while in the second case, it has. 24. Mr. P. K. Chakraborty, the learned State Representative, submitted that the object of imposition of this purchase tax is to collect the full amount of tax from the manufacturers who purchased on paying a concessional rate of sales tax by furnishing a declaration that the goods were intended to be used directly in manufacturing goods for sale in West Bengal but ultimately the manufactured goods are not sold in West Bengal in breach of that declaration. This may or may not be a good justification for upholding the reasonableness of the impost. As that question is not raised before us, we do not propose to enter into it. But assuming that it is a good justification, the impugned law cannot overcome its rudimentary infirmity (i.e., legislative incompetence) by justifying its reasonableness under article 14. An otherwise perfectly valid law in all other respects cannot be allowed to stand, if the enacting Legislature lacked the power to legislate on the subject. Want of legislative power cuts at the very root. 25. Mr. Chakraborty further contended that the ratio of the decision in the case of Goodyear India Ltd. [1990] 76 STC 71 (SC); AIR 1990 SC 781 , cannot be applied to these cases, because the provisions of Haryana and Maharashtra Acts were materially different from those of Bengal Finance (Sales Tax) Act, 1941 and West Bengal Sales Tax Act, 1954, for the reason that there was no reference to any declaration in the relevant provisions (struck down by the Supreme Court) of Haryana and Maharashtra Acts, whereas the provisions of West Bengal Acts contain a reference to declaration. He gathered support from the following observation in paragraph 26 of the judgment in Goodyear's case [1990] 76 STC 71 (SC); AIR 1990 SC 781 : "In that background it must be noted that section 9 of the Act nowhere makes a reference to section 24 or any declaration furnished by the purchasing dealer on the basis of which he was granted temporary exemption and thereby revival of the original purchase tax on the breach of declaration as such." In our considered opinion, the contention of Mr. Chakraborty is without substance. The first reason is that the above observation was made in a different context, namely, in the context of the argument advanced on behalf of the Revenue that there was a general liability to purchase tax which the dealer avoids on furnishing a declaration. Incidentally, that argument was rejected by the Supreme Court. Secondly, furnishing of declaration under the West Bengal Acts has no relevance to the question of legislative power which is determined by reference to the taxable event. That is to say, furnishing of declaration is immaterial in the context of the nature of challenge to the vires of the law in the instant cases. If legislative competence is wanting, breach of a declaration does not save the law. Thirdly, a judgment declares what is the law or what is the interpretation of the constitutional provisions. The constitutional provisions are already there. A judgment interprets them and declares the interpretation. A minor or an immaterial difference between the provisions of law which were examined by the Supreme Court and those which are under our consideration should not dislodge the ratio of the decision in Goodyear's case [1990] 76 STC 71 (SC); AIR 1990 SC 781 . It is not possible to distinguish the decision on the ground mentioned by the learned State Representative. Dr. Pal rightly termed this submission of Mr. Chakraborty as very "bold". 26. Reliance was placed by Mr. Chakraborty on our decision in the case of Jindal (India) Ltd. reported in [1990] 76 STC 367. In that case we had upheld the contention of the Revenue that the tax imposed under the unamended provisions of section 4(6)(ii) of the 1941 Act was a tax on purchase, there being only a postponement of the charge. Chakraborty on our decision in the case of Jindal (India) Ltd. reported in [1990] 76 STC 367. In that case we had upheld the contention of the Revenue that the tax imposed under the unamended provisions of section 4(6)(ii) of the 1941 Act was a tax on purchase, there being only a postponement of the charge. Till then, we did not have the advantage of the decision in Goodyear's case [1990] 76 STC 71 (SC); AIR 1990 SC 781 , which had not yet been rendered by the Supreme Court. The effect of that decision is that our decision in [1990] 76 STC 367 [Jindal (India) Ltd. v. State of West Bengal] in so far as it relates to the question of legislative competence in respect of the relevant taxing provision stands overruled by implication. Incidentally also, our decision in Jindal (India) Ltd.'s case [1990] 76 STC 367 could not have been followed here, because what we considered in that case were the unamended provisions which have no existence now, as they stand amended with retrospective effect from October 10, 1977. 27. The relevant part of the Statement of Objects and Reasons appended to the West Bengal Taxation Laws (Amendment) Bill, 1990, is extracted below : "The object of the Bill is to amend - (a) .............................. (b) the Bengal Finance (Sales Tax) Act, 1941, retrospectively with effect from the 10th day of October, 1977, in order to fasten the incidence of purchase tax only on the purchase of goods in West Bengal without any connection with subsequent event or events so that the infirmities pointed out by the Supreme Court are removed : (c) the West Bengal Sales Tax Act, 1954, to provide for similar amendments as in (b) above;" Upon a reference to the above, Mr. Chakraborty contended that the infirmities having been removed and the tax being made closely related to purchase, the amended provisions are valid and constitutional. We have already noted that Mr. Bose and Dr. Pal, on the contrary, contended that merely the form and the language have been altered, but in essence and substance, the provisions remain the same and, therefore, the infirmities pointed out in Goodyear's case [1990] 76 STC 71 (SC); AIR 1990 SC 781 are still there and the tax is closely related to consignment of finished goods and not to purchase of raw materials. We have already indicated that having considered the charging and exemption or deduction provisions together, the scheme being an organic whole, and the taxing policy being clear from both the provisions and not from the charging provisions alone, the incidence of the impugned tax in the amended laws is fastened to the taxable event of consignments or despatches of manufactured products and not to the purchase of raw materials. Dr. Pal went so far as to argue that this is a case of "legislative fraud". We express no opinion on use of this expression. But, we hold that the object declared in the Bill has not been fulfilled by effecting the changes in the relevant provisions. 28. Mr. Chakraborty contended that the unamended provisions were not declared by the Supreme Court or any other court or tribunal as invalid on the ground of want of legislative competence and hence what the State Legislature did by bringing the impugned amendments was by way of abundant caution. In the first instance, this is not really correct, because the Supreme Court's decision in [1990] 76 STC 71; AIR 1990 SC 781 (Goodyear India Ltd. v. State of Haryana) declares the law, the ratio of which is binding under article 141. Secondly, the State Legislature considered it exactly so, for which it proceeded to amend the provisions, though unsuccessfully, in the light of the ratio of the said decision. The question of removing infirmities pointed out by the Supreme Court arose, because the infirmities were making the provisions ultra vires. Assuming that Mr. Chakraborty's contention is correct, what difference does it make ? Nothing, really. Whether the new provisions were brought in as a measure of abundant caution or as a mandatory step, the new provisions, as they are, impose a tax which is charged on the taxable event of consignment or despatch of manufactured goods unrelated to the act of purchase. Mr. Somen Bose, learned Advocate for many of the applicants, preferred to use the term "exodus" used by Ranganathan, J., in [1990] 76 STC 71 (SC) at page 115; AIR 1990 SC 781 at page 808 (Goodyear India Ltd. v. State of Haryana). 29. Next, we have to address ourselves to the contention of Mr. Mr. Somen Bose, learned Advocate for many of the applicants, preferred to use the term "exodus" used by Ranganathan, J., in [1990] 76 STC 71 (SC) at page 115; AIR 1990 SC 781 at page 808 (Goodyear India Ltd. v. State of Haryana). 29. Next, we have to address ourselves to the contention of Mr. Chakraborty that the impugned amended provisions enacted under entry 54 of List II have only incidentally or marginally encroached upon the field of entry 92B of List I. He called it mere overlapping, and submitted that such overlapping is bound to occur and cannot always be avoided and, that being so, the accusation of trespass into the Parliament's field of legislation cannot properly be made. Mr. Bose and Dr. Pal did not agree. They submitted that it is a case of clear invasion. The tax is said to be related to purchase, but it is not so, it is actually related to consignment, though seemingly on purchase. Mr. Bose read out the following sentence from page 114 of the report in [1990] 76 STC 71 (SC); page 807 of the report in AIR 1990 SC 781 (Goodyear India Ltd. v. State of Haryana) : "It is one thing to levy a purchase tax where the character and class of goods in respect of which the tax is levied, is described in a particular manner (vide Andhra Sugars Ltd. v. State of Andhra Pradesh [1968] 21 STC 212 (SC); [1968] 1 SCR 705; AIR 1968 SC 599 ) and a case like the present where the tax, though described as purchase tax, actually becomes effective with reference to a totally different class of goods and, that too, only on the happening of an event which is unrelated to the act of purchase." In support of the contention on behalf of the Revenue, Mr. Chakraborty relied on the case of Prafulla Kumar Mukherjee 74 IA 23; AIR 1947 PC 60. In that case (already referred to) it was held that while legislating the Bengal Money Lenders Act falling within an entry of the Provincial List, there might be incidental encroachment on promissory notes and banking which were matters reserved for the Federal Legislature. He also relied on the decision in Hoechst Pharmaceuticals Ltd. v. State of Bihar [1984] 55 STC 1 (SC). He also relied on the decision in Hoechst Pharmaceuticals Ltd. v. State of Bihar [1984] 55 STC 1 (SC). It was held there that once it is found that in pith and substance an impugned Act is a law on a permitted field, any incidental encroachment on a forbidden field does not affect the competence of the Legislature to enact that Act. Mr. Chakraborty further relied on the case of Federation of Hotel & Restaurant Association [1989] 74 STC 102 (SC), in which case it was held at page 120 of the report that "the same transaction may involve two or more taxable events in its different aspects. But the fact that there is an overlapping does not detract from the distinctiveness of the aspects". In other words, Mr. Chakraborty contended that in this case also, the impugned amended provisions of the 1941 Act and the 1954 Act have not invaded the field of legislation reserved for the Parliament under entry 92B, but there is merely an overlapping, because the tax is basically on purchases, though it may have some connection with consignment only incidentally. 30. It is well-settled that the Constitution is a living instrument which must be liberally interpreted, but, of course, without perverting its language. It is also well-settled that the legislative power enumerated in the entries of the different Lists of the Seventh Schedule should be construed in their widest possible amplitude and a legislative power carries with it all ancillary and subsidiary powers connected therewith. But ancillary and incidental powers can be exercised only in aid of the main topic of legislation and not otherwise. Thus, in the ultimate analysis, the question whether it is a case of mere overlapping and incidental encroachment depends upon the result of the pith and substance test, which discovers the main topic of legislation. 31. We have already seen that the instant controversy mainly concerns the taxable event. Here, though called a purchase tax on raw materials, the tax is not levied when purchases are made. It is not also levied at any subsequent stage until the manufactured products are despatched out of West Bengal otherwise than by way of sale. It is true that the tax even then is imposed on the value of the raw materials purchased, but it is in the nature of a tax for despatching the finished products out of the State. It is true that the tax even then is imposed on the value of the raw materials purchased, but it is in the nature of a tax for despatching the finished products out of the State. The impost is not attracted until despatches are made and despatches so made are not of the raw materials purchased but of the goods manufactured out of the same. Therefore, although the tax is calculated on the value of raw materials, either actuals or notionally calculated, the pinch of the tax is not felt by the manufacturer until he despatches the finished products out of West Bengal. If he decides not to despatch, there is no tax. So, in pith and substance it is a tax on despatches of manufactured products, though on only a part of the value thereof. As soon as raw materials are used in making finished products, they lose their identity and merge in the products. That being so and the tax remaining ineffective until despatches are made, the real charge is on despatches of the finished products, may be on a part of its value which is equal to the value of the raw materials. That being the correct position, we cannot accept the contention of Mr. Chakraborty that the impugned provisions have been enacted in exercise of the powers of entry 54 of List II. It is of course ostensibly so, but actually it is a tax on despatches or consignments of finished products and, therefore, it properly falls within entry 92B of List I, namely, within the exclusive field of the Parliament. The point which clinches the issue and decides that the tax is in the nature of one contemplated in entry 92B of List I, was decided by the Supreme Court in the case of Goodyear India Ltd. [1990] 76 STC 71; AIR 1990 SC 781 . Had the impugned provisions actually fallen within entry 54 of List II, or had the tax been on the taxable event of purchase of the raw materials used for manufacture, then any incidental encroachment could have been ignored. But, here is a case where the actual effect of the law brings it within the field specified in entry 92B of List I. That being the position, there is no question of overlapping or incidental or marginal encroachment. But, here is a case where the actual effect of the law brings it within the field specified in entry 92B of List I. That being the position, there is no question of overlapping or incidental or marginal encroachment. The main topic of legislation is not purchase tax, but tax on consignments. There is clearly invasion of the Parliament's field of legislation by the State Legislature. In the result, we are of the opinion that the impugned provisions of the 1941 Act and the 1954 Act, as they stand after the 1990 Amendment Act, are ultra vires the Constitution because of lack of competence on the part of the State Legislature to enact the same. 32. Now, it is a settled rule that, if it is possible to save the constitutionality of a provision by striking down only the offending part, the courts will try to do that. This is sometimes called the rule of severability. But a corollary should be added to the above rule to the effect that if the offending part is not severable, or when segregated, the remaining part becomes inoperative or takes a shape which does not reflect the intention and policy of the Legislature, in that case the impugned provision cannot be saved by removing the offending part. When a Legislature enacts a law, generally it does so with a certain intention and in execution of a certain policy of its own. The courts are not expected to transplant their own intention and policy in place of those of the Legislature. Therefore, the rule of severability cannot be applied in a case where the policy and intention of the Legislature cannot be maintained after the severance. It is an euphemism to say that sometimes the Judiciary legislates by interpreting laws or by declaring what is the law. But it is really not a legislative activity. It is within the exclusive domain of the Judiciary to interpret a law and declare what the law means. The Judiciary cannot take upon itself the task of substituting a legislation by another supplied by it or by substituting the policy and intention of the Legislature by those of its own. It cannot also alter or modify the policy and intention of the Legislature. Such being the position, we may examine whether the impugned provisions can be saved by striking down offending parts thereof. It cannot also alter or modify the policy and intention of the Legislature. Such being the position, we may examine whether the impugned provisions can be saved by striking down offending parts thereof. The new charging provisions contained in section 4(6)(ii) of the 1941 Act and section 4(2)(i) of the 1954 Act, if considered in isolation, fall within entry 54 of List II and, therefore, are valid from the point of view of legislative competence. But, considered together with the exemption provisions contained in clause (iiia) of section 5(7) of the 1941 Act and clause (iia) of section 4(2) of the 1954 Act, they become invalid and unconstitutional because of want of legislative competence. Therefore, if the exemption provisions are struck down, will the charging provisions be saved from the unconstitutionality ? The clear answer is in the negative, because the charging and exemption provisions taken together constitute an organic whole and are indivisible so as to reflect the policy and intention of the Legislature. If the exemption provisions are removed, the policy and intention are materially altered. The Legislature would not have enacted the charging provisions without the exemptions. That being so, it is not possible to remove the exemption provisions and thereby to make the charging provisions intra vires. Therefore, the rule of severability cannot be applied in the instant cases. The inevitable result is that the charging and exemption provisions must be struck down together, because they belong to a composite scheme and together they invite the unconstitutionality. 33. The impugned amended provisions were challenged with respect to retrospective operation from October 10, 1977 on several grounds. The validation clauses contained in sub-sections (2A) and (2B) of section 26A of the 1941 Act and section 28 of the 1954 Act, as incorporated by the 1990 Amendment Act, were also challenged as ultra vires the Constitution and invalid on several grounds. The validation was sought to be made on the premise that the tax levied or collected or purported to have been levied or collected under the old provisions shall be deemed always to have been validly levied or collected in accordance with the new provisions. Therefore, if the impugned new provisions are struck down as invalid, the validation clauses become rootless and as a corollary they also are required to be struck down. Therefore, if the impugned new provisions are struck down as invalid, the validation clauses become rootless and as a corollary they also are required to be struck down. Since the new provisions have to be quashed, the question of validity or otherwise of retrospective effect thereof becomes pointless. It also goes out along with the provisions themselves. In that view of the matter, the relevant new provisions and the impugned validating provisions along with the relevant rules must be struck down as invalid and unconstitutional. Such being the position, the other points urged by the parties do not require our attention. 34. Next is the question of refund. All the applicants have prayed for refund of the tax paid by them or collected from them in terms of the unamended provisions of the 1941 Act and 1954 Act. Therefore, unless such levies, payments and collections are held to be illegal, there can be no question of refund. In other words, the claim of refund requires us at this stage to decide the question whether or not the old provisions relating to the impugned tax in both the Acts were valid and constitutional. After what we have already discussed, very little is left to be said about that. The old provisions clearly stated that the tax would be attracted on the taxable event of despatches of manufactured products outside the State of West Bengal and disposal thereof otherwise than by way of sale in West Bengal. Thus, the taxable event was consignment of goods outside West Bengal, bringing the tax squarely within the field of entry 92B of List I. The State Legislature clearly had no legislative competence under entry 54 of List II. The defence of overlapping or incidental encroachment does not save the situation, as already discussed in relation to the new provisions. It is true that the specific entry in the form of entry 92B came into existence in the year 1982 through the Forty-sixth Amendment of the Constitution. But prior to that the residuary powers had been allotted exclusively to Parliament under entry 97 of List I. The background in which such a specific entry was required to be made has been stated in the decision reported in [1990] 76 STC 71 (SC); AIR 1990 SC 781 (Goodyear India Ltd v. State of Haryana). But prior to that the residuary powers had been allotted exclusively to Parliament under entry 97 of List I. The background in which such a specific entry was required to be made has been stated in the decision reported in [1990] 76 STC 71 (SC); AIR 1990 SC 781 (Goodyear India Ltd v. State of Haryana). What we like to say is that with effect from the year 1982 the State Legislature has no competence to legislate on a tax on consignment of goods in view of entry 92B of List I. The impugned old provisions were for the first time brought into the statute book with effect from October 10, 1977. The State Legislature was equally wanting in competence to enact the same in view of entry 97 of List I. Moreover, we have already observed that the ratio of the decision in [1990] 76 STC 71 (SC); AIR 1990 SC 781 (Goodyear India Ltd v. State of Haryana) is attracted to the present cases. The old provisions in these Acts are hardly different from the new provisions brought about in the year 1990 as also from the provisions of the Haryana and Maharashtra Acts which were considered by the Supreme Court in the case of Goodyear India Ltd. [1990] 76 STC 71; AIR 1990 SC 781 . The reference to furnishing declarations does not make any real difference. After Goodyear India's case [1990] 76 STC 71 (SC); AIR 1990 SC 781 , section 13AA of the Bombay Sales Tax Act was newly enacted in the year 1989. That provision was challenged before the High Court of Bombay in the case of Wipro Ltd. v. State of Maharashtra reported in [1990] 78 STC 114. The learned single Judge of the Bombay High Court passed an interim order with reasons in that case. Learned Advocates appearing for the applicants before us, relied on the said interim order reported in [1990] 78 STC 114 (Bom) (Wipro Ltd. v. State of Maharashtra). In any case, the impugned old provisions of the 1941 Act and the 1954 Act of West Bengal are clearly outside the legislative competence of the State Legislature and are, therefore, ultra vires the Constitution and invalid. In any case, the impugned old provisions of the 1941 Act and the 1954 Act of West Bengal are clearly outside the legislative competence of the State Legislature and are, therefore, ultra vires the Constitution and invalid. The question of striking down the same does not arise as the State Legislature itself being conscious of the infirmities pointed out by the Supreme Court in Goodyear's case [1990] 76 STC 71; AIR 1990 SC 781 , amended the said provisions in the year 1990. As the old provisions were invalid and ultra vires, and also the amended provisions and the validating clauses are invalid, the applicants are entitled to refunds claimed. A number of decisions were referred to on behalf of the applicants to convince us that whatever may be the difficulty, the State must refund the amounts which have been illegally levied or collected. Payment by dealers is also nothing but levy and collection. Since the principle is well-settled and it was also not controverted as a point of law by the learned State Representative, we refrain from referring to those decisions. A reference, however, may be made to article 265 which says that no tax shall be levied or collected except by authority of law. The relevant provisions being found invalid, there was no authority of law for levy and collection of the impugned tax. But the learned State Representative submitted that if all the people make their claims of refund and such claims are to be satisfied, the total amount may be around one hundred crores of rupees. This was not controverted on behalf of the applicants. It is not possible to say what will be the actual or exact impact of claims of refund. But having regard to the amounts claimed by the applicants, there cannot be any doubt that the amount of refund to all the persons who may be entitled thereto is likely to be quite huge. 35. Prayers have been made in the applications for allowing interest at the rate of 2 per cent per month on the amounts to be refunded. But at the time of hearing learned Advocates for the applicants did not press this prayer and also did not address anything in this respect. 35. Prayers have been made in the applications for allowing interest at the rate of 2 per cent per month on the amounts to be refunded. But at the time of hearing learned Advocates for the applicants did not press this prayer and also did not address anything in this respect. Be that as it may, it appears that the applicants were inspired to claim interest at the rate of 2 per cent per month by section 10B of the 1941 Act and section 8B of the 1954 Act. But there are two important conditions in those provisions. One condition is that the refund must arise out of an order under sections 20 and 21 of the 1941 Act and under sections 12 and 12A of the 1954 Act. The second condition is that such orders giving rise to the refund must have been passed after the date of operation of a particular provision of the West Bengal Taxation Laws (Second Amendment) Act, 1983. In any case, the refund in the present cases does not arise out of any such order. The refund is arising out of the judgment and order which we are making in these cases. Our jurisdiction is not under any of the provisions of the 1941 Act or the 1954 Act. In terms of article 323B of the Constitution of India our jurisdiction is a substitute of that under articles 226 and 227 of the Constitution. Reference may be made to the ratio of the decision in the case of J. B. Chopra v. Union of India reported in AIR 1987 SC 357 . That being the position, sections 10B of the 1941 Act and 8B of the 1954 Act have no manner of application to the present cases. Although the claim of interest was not pressed by the applicants at the time of hearing, reference had been made to the order passed by Sujata Manohar, J., of the Bombay High Court in the case of Wipro Ltd. v. State of Maharashtra [1990] 78 STC 114 (Bom). Although the claim of interest was not pressed by the applicants at the time of hearing, reference had been made to the order passed by Sujata Manohar, J., of the Bombay High Court in the case of Wipro Ltd. v. State of Maharashtra [1990] 78 STC 114 (Bom). In course of making that order the learned Judge observed in paragraph 3 as follows : "The Supreme Court, at the stage when it granted special leave in these matters, ordered that in case the petitioners succeed the amount of tax together with interest recovered from them by the authorities shall be refunded with interest at 12 per cent per annum." In the present cases, the right to get the refund will accrue on and from the date of this judgment of ours. In our opinion, the State Government should be given reasonable time to refund the amounts. As already indicated, the refund will involve not only the amounts to which these applicants are entitled, but also to which other dealers similarly situated may be entitled on the ratio of this judgment. We are, therefore, of the view that a period of six months from the date of this judgment will be reasonable for making refunds to the applicants. For the above reason and also for the reason that the claim of interest has not been pressed during the arguments, we are not making order as to payment of any interest on the amounts to be refunded. Under the general law interest is always understood to be a compensation for moneys withheld. In other words, if a person is entitled to an amount from another, but the other person withholds the money without any reasonable cause, then the person who is entitled to the sum becomes entitled to a reasonable rate of interest as a compensation. In the present cases, the question of such illegal withholding does not arise unless and until the provisions of law under which the tax was levied and collected are declared ultra vires and invalid. We have added a period of six months to that date of declaration for the reasons already indicated. That being so, the prayer for interest must be refused. 36. In the ultimate result, the applications are allowed. There will be no order as to costs. We have added a period of six months to that date of declaration for the reasons already indicated. That being so, the prayer for interest must be refused. 36. In the ultimate result, the applications are allowed. There will be no order as to costs. The provisions of section 4(6)(ii) of the 1941 Act and section 4(2)(i) of the 1954 Act, as they stood prior to the amendments effected by the West Bengal Taxation Laws (Amendment) Act, 1990, are ultra vires the Constitution on the ground that the State Legislature was not competent to enact the same. The provisions of sections 4(6)(ii) and 5(7)(iiia) and sub-sections (2A) and (2B) of section 26A of the 1941 Act and the provisions of sections 4(2)(i) and 4(2)(iia) and 28 of the 1954 Act, as amended by the West Bengal Taxation Laws (Amendment) Act, 1990, are declared ultra vires the Constitution on the ground that the State Legislature had no competence to enact the same and are consequently struck down. As a natural corollary, the relevant rules are quashed as ultra vires. 37. The respondents are directed to refund to the applicants the amounts of impugned tax and interest thereon, if any, levied and collected from the applicants under the old as well as new sections 4(6)(ii) of the 1941 Act and 4(2)(i) of the 1954 Act prior to as well as after the enactment of the West Bengal Taxation Laws (Amendment) Act, 1990. Respondents shall make such refunds within six months from this day after verifying the correctness of the particulars of refundable amounts. Prayer for awarding interest on such refundable amounts is rejected. Since the old and also the new provisions have been found to be ultra vires and invalid, respondents shall be restrained from any further levying or collecting any tax in accordance with the aforesaid provisions. Interim orders are vacated. This judgment will govern all these twelve applications. B. C. CHAKRABARTI (Chairman). - I agree. P. C. BANERJI (Technical Member). - I agree. Applications allowed.