JUDGMENT J.N. PATEL, J: 1. The petitioner seeks a Writ of Mandamus by way of an order and direction for setting aside the impugned notices and orders referred to in Exhibit A-1, Exhibit A-2 and Exhibit – M by declaring them as null and void. Further, they have sought declaration that the Circular Exhibit – L is ultra virus the Bombay Entertainment Duty Act, 1983 and seek to quash and set aside the same or such portion thereof including clause 3.2 (e) and that the duty paid by the petitioner is correct amount of duty and the petitioner's liability to pay duty as per their claim specified in para F(c) should be held to be correct and form the correct basis for calculating Entertainment Duty payable by the petitioner along with other ancillary reliefs. 2. The petitioner is interalia engaged in the business of operating a multiplex theatre named as FAME ADLABS in the city of Mumbai at Andheri. It is the petitioner's contention that on the basis of the statements and objects of the Ordinance and on the basis of Section 3 13(a) of the Bombay Entertainment (Amendment) Act, 2001 (Mah II of 2002), the petitioner applied for exemption and setting up the multiplex for which the petitioner invested huge capital, time and efforts. On the assurance of the respondent nos.1, the petitioner went ahead and set up the multiplex on the clear understanding that the nature of exemption was retention benefit whereby the petitioner was entitled to collect the entertainment duty from the patrons and not to pay the same to the State during the exemption period and, therefore, according to the petitioner, respondent no.4 by virtue of the aforesaid incentive granted to the proprietors of multiplex is estopped from demanding entertainment duty as set out in the impugned orders / impugned notices. 3. The State of Maharashtra has enacted the Bombay Entertainment Duty Act, 1923 (for short the said B.E.D. Act) whose object and purpose is to impose a duty in respect of admission to entertainment in the State of Bombay which has been amended from time to time and the last been amended by the Maharashtra Act, 16 of 2006 which has come into effect on 04.05.2006. Section 3 of the said B.E.D. Act provides for Duty on payments for admission to entertainment which is fixed by the proprietor in so far as it relates to exhibition by cinematograph including video exhibition other than exhibition by means of any type of antenna or cable television within limits of the various corporations which have been prescribed in the table. Explanation - Clause (b) and clause (c) of section 3(1) of the said B.E.D. Act of 1923 came to be substituted by Act No.22 of 2003, dated 01.08.2003. _______________________________________________________________________ Serial No. Area Rate of entertainment duty on payment for admission by the proprietor 1 Within the limits of Brihan Mumbai Municipal Corporation 45 percent _____________________________________________________________ 4. Therefore, the prevailing rate of entertainment duty on payment for admission fixed by the proprietor within the limits of Brihan Mumbai Municipal Corporation was specified as 45% by virtue of sub section 13(a) of section 3 which was added by Maharashtra Act 2 of 2002, s.3 wherein certain incentives were provided for proprietors of Multiplex Theatre Complex. 5. Sub clause (b) of section section (13) of section 3 provided for concession in duty as provided in clause (a) which was made available to the proprietors of Multiplex Theatre Complex and provides as under: (a) The petitioner in its 4th year from the date of commencement (hereinafter referred “DOC”) of operations of the Multiplex and is liable to pay 25% of the normal duty leviable. The entertainment duty is payable at the rate of 25% of the rate of duty leviable (i.e.25% of 45%) as per the provisions of the Section 3 (13) (a) of the said B.E.D. Act. However, the rate of entertainment duty payable under the Act can be determined on the basis of “payment for admission”. The “payment for admission” is fixed by the proprietor of the Multiplex Theatre. (b) Section 3(1)(c) of the said B.E.D.Act provides for the rate of entertainment duty on payment for admission which is fixed by the proprietor. On perusal of the table under section 3(1)(c), it is important to point out that the amount paid for admission to the Multiplex theatre is to be fixed by the proprietor of the Multiplex. (b) Section 3(1)(c) of the said B.E.D.Act provides for the rate of entertainment duty on payment for admission which is fixed by the proprietor. On perusal of the table under section 3(1)(c), it is important to point out that the amount paid for admission to the Multiplex theatre is to be fixed by the proprietor of the Multiplex. For the sake of convenience Table below Section 3(1)(c) is reproduced which is as under: _______________________________________________________________________ Serial No. Area Rate of entertainment duty on payment for admission by the proprietor 1 Within the limits of Brihan Mumbai Municipal Corporation 45 percent 2.Within the limits of all other Municipal Corporations and Cantonments 40 percent _____________________________________________________________ As such, the rate of entertainment duty must be on the payment for admission fixed by the proprietor. Therefore, it is clear that the rate of entertainment duty can only be on net price after which the gross is arrived at. Further, Section 4 sets out the manner in which the entertainment duty payable is to be levied. There is a clear break up between the entertainment duty which is calculated on the net price, and the gross. On plain reading of sub-section 2(a), it is clear that the gross comprises the payment for admission to the entertainment and payment on account of the duty. (c) Thus, under the various provisions mentioned above of the Act, the calculation of the entertainment duty collected and payable by the Multiplex Theatre Owners/Operators as per the Petitioner's method (which the petitioner says and submits is the correct method/basis) is as stated below: Suppose the net rate of ticket Rs.100/- (Payment for Admission fixed by the Proprietor (A) Entertainment Duty on the Net Rate @ 45% (B) Rs.45/- Total Ticket Price will be (A) + (B) Rs.145/- If the total Ticket Rate is Rs.100/- then the net rate will be Rs.68.97 and the duty @ 45% of the net rate will be Rs.31.03. The calculation is explained below in the case of net rate of Rs.100/- and net rate of Rs.68.97 with the corresponding total price of Rs.145/- and Rs.100/-. The calculation is explained below in the case of net rate of Rs.100/- and net rate of Rs.68.97 with the corresponding total price of Rs.145/- and Rs.100/-. Total Ticket Price Net Ticket Price (Payment for Admission) (i) Rs.145/- Rs.100/- (ii) Rs.100/- Rs.68.97 100 x 100 = 68.97 145 Hence, the Entertainment Duty leviable @ 45% on Rs.68.97 is Rs.31.03 68.97 x 45 = Rs.31.03 --------------- 100 This method of computation is as per the provisions of Section 3(13) (a) read with Section 4 of the said B.E.D. Act. Therefore, for the fourth and fifth year the Petitioner is liable to pay 25% of this collected 45% entertainment duty i.e. Rs.7.76 (11.25% of 68.97 OR 1/4th of 31.03) to the Government and remaining 75% of 45% i.e. Rs.23.27 is the Retention Benefit of the Multiplex Theatre Proprietor / Operator. (d) .............. 6. Section 5 of the said B.E.D. Act of 1923 provides for punishment for non-compliance with section 4, which provides for method of levy and assessment of entertainment duty. Some of the relevant definitions are reproduced herein for the proper understanding and adjudication of the case. Section 2 is the definition clause and the relevant definitions are given in clause (f) and which reads as under: (f) “entertainment duty”, or “duty” in respect of entertainment means the entertainment duty levied under section 3 (f-a) “Multiplex Theatre Complex” means an entertainment-cumcultural centre which provides,- (i)within the limits of Municipal Corporation of Brihan Mumbai not less than four theatres in a complex with minimum total seating capacity of 1250; and (ii)anywhere else in the State, not less than three theatres in a complex with minimum total seating capacity of 1000, and such other incidental and connected matters and facilities, and multi-entertainment activities and other facilities as specified by Government in this behalf, by notification in the Official Gazette. 7. Bombay Entertainment Duty (Amendment) Act, 2001 (Mah. II of 2002), which is the statute on the basis of which Entertainment Duty is levied on the petitioner's Multiplex Complex known as FAME ADLABS (Multiplex) which levy and assessment is the subject matter of this petition. (i)The principle statute that governs Entertainment Duty in the State of Maharashtra is the Bombay Entertainment Duty Act, 1923 (BED Act). Section 3 of the said BED Act, inter alia, stipulates the rate of Entertainment Duty on payment for admission fixed by the Proprietor. (i)The principle statute that governs Entertainment Duty in the State of Maharashtra is the Bombay Entertainment Duty Act, 1923 (BED Act). Section 3 of the said BED Act, inter alia, stipulates the rate of Entertainment Duty on payment for admission fixed by the Proprietor. The prescribed rate of Entertainment Duty on the payment for admission fixed by the Proprietor within the city limits of Brihanmumbai Municipal Corporation is 45% and for other Municipal Corporations and Cantonments the rate of Entertainment Duty is 40% and the other areas have a rate as prescribed under the aforesaid Section. (ii) The growth of Multiplex Theatres can be traced in an Ordinance dated 17th August, 2001 promulgated by the Government of Maharashtra being Ordinance No.24 of 2001 to commemorate the birth centenary of Chitrapati late Shri V. Shantaram (hereinafter referred to as Ordinance), a copy of which is annexed as Exhibit 'B', under which the Government sought to amend the BED Act. The statement and objects and reasons of the Ordinance which are as follows: (i) “As a result of the onslaught of Cable Television and advancement in the field of Information Technology, the average occupancy in cinema theatres has fallen considerably and hardly any new theatres have been started in the recent past. Public at large these days prefers to see movies at home. Keeping in view this scenario, a concept of complete family entertainment center, more popularly known as 'Multiplex Theatre Complex' has emerged. These Multiplex Theatre Complexes offer various entertainment facilities for the entire family under single roof. However, those complexes are highly capital intensive, their gestation period is also quite longer, and therefore, need Government support and incentive in entertainment duty. (ii) The Government of Maharashtra, therefore, considers it necessary to encourage, by giving incentives for the construction of new cinema theatres and to ensure the healthy cultural development in the State of Maharashtra. (iii) Government has therefore, with a view to commemorate the birth centenary of Chitrapati late Shri V.Shantaram, decided to grant concession in entertainments duty to Multiplex Theatres Complexes to promote construction of new cinema houses in the State. 8. By the aforesaid Ordinance, the Government amended Section 3 of the BED Act and after sub-section (12) of Section 3 of the BED Act, introduced sub-section (13)(a). 9. 8. By the aforesaid Ordinance, the Government amended Section 3 of the BED Act and after sub-section (12) of Section 3 of the BED Act, introduced sub-section (13)(a). 9. The aforesaid Ordinance was promulgated into the Act, by virtue of which Section 3(13)(a) was added being The Bombay Entertainment Duty (Amendment) Act, 2001 (Mah.II of 2002), which reads as follows: (13)(a) “Notwithstanding anything contained in any other provisions of this Act but subject to the terms and conditions specified in clause (b), on and with effect from the date of coming into force of the Bombay Entertainment Duty (Amendment) Act, 2001 (Mah. II of 2002), there shall be levied and collected by the State Government from the proprietor of a Multiplex Theatre Complex the duty in respect of any such complex as follows, namely: (i)For the first three years from the date of commencement of the Multiplex Theatre Complex, no duty. (ii) For the subsequent two years, at the rate of twenty-five percent of the rate of duty leviable under clause (b) and clause (c) of sub-section (1) or, as the case may be, for sub-section (3) (iii) From the sixth year, full amount of duty leviable at the rate specified in clause (b) and clause (c) of sub-section (1) or, as the case may be, sub-section (3) Provided that, the duty leviable shall also be subject to the provisions of sub-section (2), wherever applicable. (iv)Explanation: For the purposes of this subsection,- (i) The date on which the Multiplex Theatre Complex is opened to the public for admission shall be deemed to be the date of commencement of the Multiplex Theatre Complex; (ii) The change in the management of Multiplex Theatre Complex, or the change in the name of the complex shall not be construed as a fresh commencement of the Multiplex Theatre Complex. (b) The concession in duty as provided under clause (a) shall be available to the proprietor of the Multiplex Theatre Complex subject to following terms and conditions, namely:- (i) The proprietor shall not charge less payment for admission than the prevailing highest rate for admission at any given time, in any of the cinema theatres in the district in which the complex is situated, till the period of concession under clause (a) is over; (ii) one theatre n the complex shall be reserved for a total period of not less than one month, in a year, exclusively for Marathi Cinemas; (iii) The proprietor of a complex shall not levy the service charge, till the period of concession under clause (a) is over. After the concession period is over, the proprietor may levy service charges as specified in the second proviso to clause (b) of section 2; (iv) The Multiplex Theatre Complex shall be continued continuously for ten years; (v) no facilities provided in the complex as specified in the notification issued under clause (f-a) of section 2, shall be discontinued or curtailed, without prior permission of the Government. (c) In case of violation of the condition (iv) or (v) of clause (b), the concession shall be liable to be withdrawn and the duty shall be levied and collected from the date of commencement of the Multiplex Theatre Complex, at the rate specified in clause (b) and clause © of sub-section (1) or, as the case may be, sub-section (3), along with the interest leviable at the rate specified in section 22. (d) If any existing cinema theatre is converted into Multiplex Theatre Complex, by not reducing its original seating capacity and by complying with the provisions of clause (f-a) of section 2, the converted theatre shall also be entitled to concession in the duty as specified in clause (a), subject to the terms and conditions specified in clause (b). 10. Pursuant to the Act, the Government issued a Resolution on 4th January, 2003 (hereinafter referred to as the said GR). The said GR set out the manner in which an Applicant would become entitled to exemption from payment of Entertainment Duty and the procedure the Applicant needed to follow in respect thereof for the grant of the conditional Letter of Intent and the Eligibility Certificate. The said GR set out the manner in which an Applicant would become entitled to exemption from payment of Entertainment Duty and the procedure the Applicant needed to follow in respect thereof for the grant of the conditional Letter of Intent and the Eligibility Certificate. It is important to point out Clause 5 (E) (i) of the said GR which set out that the Applicant would be eligible to get exemption from paying Entertainment Tax. For the sake of convenience reproduced herein below is Clause 5(E) (i) of the said GR. The Applicant will be eligible to get the exemption from paying entire Entertainment Tax for the period of first three initial years from the date of commencement of the complex, whereas he will be admissible for exemption from paying 75 percent of the Entertainment Tax due for the further two years. The Applicant must pay the Entertainment Tax at the prescribed rate from the sixth year”. Exhibit “C” to the Petition is a copy of the Government Resolution dated 4th January, 2003 being Resolution No.ENT-1099/ Pra.Kra.76/T-1. 11. It is important to mention that in order for an Applicant to be eligible for exemption from payment of Entertainment Duty on the basis of the Act read with the said GR, all Applicants were required to submit applications to Respondent No.3 from 17th August, 2001 to 16th August, 2002 to be considered for such exemption. In the light of Section 3(13)(a) of the said B.E.D. Act, read with Para 5 – E(i) of the said GR, the nature of exemption/concession granted to an Applicant is from payment of Entertainment Duty to the Government, while the petitioner is permitted to collect Entertainment Duty from the patrons and exempted from payment of the same. As such, for the first three years an Applicant is exempted from paying the entire Entertainment Tax and for the next two years from paying 75% of the Entertainment Duty. As such, for the first three years an Applicant is exempted from paying the entire Entertainment Tax and for the next two years from paying 75% of the Entertainment Duty. In the light of the aforesaid it is reasonable to state that the concession / exemption granted under Section 3(13) (a) of the said B.E.D. Act and para 5(E) (i) of the said GR to the Applicant, in whose favour the eligibility certificates are granted / issued under the , is in the nature of the exemption from payment of Entertainment duty by the Multiplex Theatre Proprietor/operator, (the State Government is not to collect from such Proprietor / Operator, duty for three years and collect duty at 25% of the rate of Entertainment Duty leviable for the subsequent two years). It is the case of the petitioner that he received its Conditional Letter of Indent dated 16th April, 2002 and the Eligibility Certificate received on 7th June 2002 and became eligible for the concession/exemption provided under Section 3(13)(a) of the said B.E.D. read with para 5(E)(i), of the said GR. 12. On 21st September, 2000 the Government passed a Resolution bearing No.ENT-1099/P.K.215/t-1 (hereinafter referred to as “Printing Resolution”) copy of which is annexed as Exhibit “D” whereunder it has stipulated the manner in which Cinema tickets must be printed which is relevant to point out in view of the impugned notices/impugned orders. The Printing Resolution sets out that the Cinema ticket must reflect the following: (i) Net rate of the ticket (ii) Amount of Entertainment Tax (iii)Service charge, if any (iv) The aggregate price of the ticket 13. It is the case of the petitioner that there are no guidelines for pricing of the cinema ticket rates except under Section 3(13)(b)(i) of the Act under which it is prescribed that the proprietor of a Multiplex Theatre Complex shall not charge less payment for admission than the prevailing highest rate of admission at any given time, in any of the Cinema Theatres in the District in which the Complex is situate, till the concession period is over. The fact that there are no guidelines for the pricing of the cinema tickets and that the same can be fixed by the Proprietor is also evidenced on a perusal of the table set out under Section 3(c) of the said B.E.D. Act which clearly provides that the payment for admission is to be fixed by the Proprietor. 14. It is the case of the petitioner that the petitioner is in its 4th year of operations of the Multiplex and liable to pay 25% of the normal rate of Entertainment Duty leviable from 7th June, 2005. The entertainment duty is payable at the rate of 25% of the rate of duty leviable (i.e.25% of 45%) as per the provisions of the Section 3(13)(a)(ii) of the said B.E.D. Act. The rate of entertainment duty payable under the Act can be determined on the basis of “payment for admission” fixed by the proprietor. 15. It is the case of the petitioner that from 7th June 2005, the petitioner has duly made payment of the entire Entertainment Duty to respondent No.3 in accordance with the Act read with the G.R.s issued pursuant thereto. 16. On 1st June, 2005, the petitioner addressed a letter to the Principal Secretary, Revenue Department of Respondent No.1. In the aforesaid letter, the petitioner informed the principal Secretary of respondent no.1 that the Multiplex became eligible for exemption from payment of Entertainment Duty from 7th June, 2002. Further, the petitioner submitted that they were in the Fourth year from the Date of Commencement and were by virtue of Section 3(13)(a)(ii) of the said B.E.D. Act read with paragraph 5(E)(I) of the said GR, eligible to pay 25% of the amount of Entertainment Duty with effect from 7th June, 2005. Further, in the said letter, the petitioner also pointed out that it had come to the petitioner's knowledge that Adlabs Films Limited had made payment of Entertainment Duty for the IMAX-ADLABS Multiplex Theatre at Wadala under protest. This payment was also in respect of Entertainment Duty payable in the Fourth year of exemption. In the light of the aforesaid, the petitioner set out the duty payable in the Fourth year of exemption on the basis of Section 3(13)(a)(ii) of the said B.E.D. Act read with Clause 5(E)(i) of the said GR. Exhibit “E” to the petition is a copy of the said letter. 17. In the light of the aforesaid, the petitioner set out the duty payable in the Fourth year of exemption on the basis of Section 3(13)(a)(ii) of the said B.E.D. Act read with Clause 5(E)(i) of the said GR. Exhibit “E” to the petition is a copy of the said letter. 17. On 18th August, 2005 the respondent no.1 addressed a Notice to the petitioner calling upon the petitioner to remain present on 23rd August, 2005 before the Principal Revenue Secretary for the purposes of discussing the 25% Entertainment Duty payable by the petitioner in its Fourth year. Exhibit “F” to the petition is a copy of the said Notice. 18. Pursuant to the said Notice, on 23rd August, 2005, the petitioner's representatives along with the representatives, of another Multiplex Theatre known as IMAX-ADLABS, who were also issued a Notice, attended the office of the Principal Secretary of Respondent No.1. The Principal Revenue Secretary of Respondent No.1 contended that the exemption by virtue of the Act was not in the nature of a retention benefit and that the Entertainment Duty computed by the Additional Collector (MSD) was proper. In response to this contention, the representatives of the petitioner and IMAX-ADLABS contended that the nature of exemption under the Act and the said GR was in the nature of a retention benefit. However, the Revenue Secretary did not accept this contention of the petitioner's representatives and IMAX22 ADLABS representatives and asked the representatives to bring the aforesaid to the notice of the Multiplex Association and its Members, It is important to point out that in the meeting, the Revenue Secretary asked the representatives of the petitioner and IMAX-ADLABS as to why the Association was not present, to which the representatives of the petitioner and IMAX-ADLABS contended that no Notices have been issued of the aforesaid meeting to the Multiplex Association i.e. MAI. Exhibit “G” to the petition is a copy of the Minutes which have been made available by respondent No.1 to the petitioner under a letter dated 21st September, 2005 and Exhibit “G-1” to the petition is the copy of the said letter. 19. On 5th December, 2005, the petitioner received a Notice No.1 from respondent No.4 calling upon the petitioner to make a payment of Rs.1,16,95,846/- being Exhibit “A-1” to the petition. 19. On 5th December, 2005, the petitioner received a Notice No.1 from respondent No.4 calling upon the petitioner to make a payment of Rs.1,16,95,846/- being Exhibit “A-1” to the petition. In response to the aforesaid Notice of respondent no.4, the petitioner addressed a letter dated 10th December, 2005 to respondent no.4 in which the petitioner contended the following: (i) First, the petitioner was unclear as to how respondent no.4 had arrived at the Duty of Rs.1,16,95,846/-. It was also unclear how the 24% interest was being levied. (ii) Secondly, the petitioner contended that respondent No.4, in arriving at the aforesaid duty, had levied the full Entertainment Duty at the rate of 45% without considering the exemption available to the petitioner from paying 75% of the Entertainment Duty; (iii) The petitioner further stated that the actual number of tickets for Screen I was 49139 and not 65245 and the actual number of tickets in Screen 5 was 56005 and 58005. As such, the petitioner indicated to respondent no.4 that (even on that count) there was an error in calculation. Furthermore, the petitioner contended that 24% interest under Section 9B levied by respondent no.4 would come into play only after the expiry of the 30 day period as contemplated under Section 9B of the Act and as such the petitioner was unable to comprehend as to how the respondent no.4 arrived at the said interest. The petitioner also called upon respondent no.4 to clarify the manner in which the respondent no.4 has arrived at the figure of Rs.1,16,95,846/- and the statutory provisions under which respondent no.4 was levying interest at 24%. The petitioner in summation requested respondent no.4 for a meeting in person so as to enable the petitioner to explain its position (after receiving a response to the petitioner's queries) and as to how the Duty demanded by respondent no.4 was not correct. Exhibit “H” to the petition is a copy of letter dated 10th December, 2005 addressed by the petitioner to respondent no.4. 20. There was no reply to the letter of the petitioner of 10th December, 2005. However, to the petitioner's surprise, on 30th December, 2005, when a peon of the petitioner visited the Office of respondent no.3, the peon of the petitioner was handed over the Notice dated 30th December, 2005 being Exhibit A-2 to this petition. 21. 20. There was no reply to the letter of the petitioner of 10th December, 2005. However, to the petitioner's surprise, on 30th December, 2005, when a peon of the petitioner visited the Office of respondent no.3, the peon of the petitioner was handed over the Notice dated 30th December, 2005 being Exhibit A-2 to this petition. 21. The petitioner in response to Notice No.2, on 31st December, 2005 (Exhibit “I” annexed to the petition) addressed a letter to the respondent no.4 in which the petitioner contended that: (i) The 48 hours notice was very short to deal with the Notice; (ii) The petitioner requested the respondent no.4 to grant a period of seven days before initiating any action so as to enable the petitioner to take a decision and revert accordingly. The petitioner repeated and reiterated all that was stated in its letter dated 10th December, 2005 at Exhibit “H”. 22. On the 5th January, 2006 respondent no.1 by an executive act issued a Government Circular bearing No. MTC/1005/CM/359/T-1 (the said Circular). By the said Circular, respondent no.1 referred to the amendments made in pursuance of the Ordinance dated 29th November, 2005 which was converted into an Act on 27th December, 2005 which was converted into an Act on 27th December, 2005 as the Bombay Entertainment Amendment Act, 2005 (Act No.54 of 2005). In addition thereto, the Circular, in paragraph 3.2 (ee) thereof, interalia states that: a) The Multiplex Proprietor is not entitled to collect Entertainment Duty and retain the same'; and b) Multiplex Theatres are not to show the tax amount in their tickets for the first three years from the date of eligibility and in subsequent two years they will show only 25% of the rate of duty as the tax amount and not more than that. It has been stated that these instructions must be passed on to the Owners of Multiplex Theatre Complexes. It is pertinent to point out that this clarification has been issued for the first time and the same is inconsistent with the said B.E.D Act and the said GR. (Exhibit “L” is a copy of the said Circular). The petitioner also craves leave to refer to and rely upon the Ordinance dated 29th November, 2005 which is converted into an Act on 27th December, 2005. 23. (Exhibit “L” is a copy of the said Circular). The petitioner also craves leave to refer to and rely upon the Ordinance dated 29th November, 2005 which is converted into an Act on 27th December, 2005. 23. On 21st January, 2006, respondent no.4 issued another impugned notice/impugned order of Demand (Notice No.3) calling upon the petitioner to make a payment of Rs.70,39,529/- on the basis of a statement attached. (Exhibit-”M” is a copy of the said Notice dated 21st January, 2006). The petitioner submits that this Notice has, once again, been issued without taking into account the exemption available to the petitioner by virtue of the eligibility certificate issued by the respondent no.3 in effect from 7th June, 2002. In response to the aforesaid Notice No.3, the petitioner by letter dated 30th January 2006 responded to the said Notice of respondent no.4 and set out in its response, inter alia the grounds as to how the statement attached to Notice No. 3 was erroneous. The petitioner also in its said response called upon respondent no.4 not to initiate any action in view of the present Writ Petition pending admission. (Exhibit - “N” is the copy of the said response of the petitioner dated 30th January, 2006). 24. On the other hand, though the respondents have not disputed the fact that by way of policy decision only with a view to commemorate the birth Centenary of Chitrapati late Shri V. Shantaram, decided to grant concession in entertainment duty to Multiplex Theatre Complexes to promote construction of new Cinema houses in the State which led to incorporation of section 3 (13)(a) of the said B.E.D. Act and accordingly, no entertainment duty is to be levied upon Multiplex Theatre Complex for the first 3 years from the date of commencement and for the subsequent 2 years, they are to be levied 25% of the rate of duty leviable under the Act and from the 6th year full amount of duty is leviable. It is their case that since the period of first 3 years in respect of Fame Adlabs Multiplex was to be completed by 06.06.2005, the petitioner was made aware about the payment of entertainment duty @ 25% of the prevailing rate and to make payment of entertainment duty along with 'B' Statement to the Tahsildar, Andheri, vide letter dated 31.05.2005. 25. 25. The main contention of the respondents is that the petitioner cannot retain the taxes and duties which have to be paid to the Government and further, it is contended that entertainment duty is leviable on the net amount of ticket rate and there is no restriction on the upper limit on the proprietor to charge the net rate of ticket and by way of illustration, they have given the method of computation of entertainment duty which is reproduced as under: A) Net rate of ticket: (B) Entertainment Duty: 28 25% of the rate of duty leviable ( i.e. 45% prevailing rate) (C) Service Charges: (D) Gross rate of ticket: (A + B + C) Particulars of Ticket Ticket rate as per ticket Correct method of issued by the petitioner computation of entertainment duty as per G.R. A) Net rate of tickets 93.05 93.05 B) Entertainment Duty 41.95 10.46 C) Service Charges Nil Nil D) Gross rate of ticket 135 103.51 In order to demonstrate what manner the petitioner has collected entertainment duty from the patrons, a xerox copy of the ticket of Multiplex Theatre 'Fame Adlabs' of the petitioner has been annexed as Exhibit – 1'. 26. It is the case of the respondents that a meeting was convened by the Government on 23.08.2005 to discuss the issue of computation of entertainment duty, when the representatives of Multiplex Theatre Complex were also present. According to the representatives, the Proprietor is not entitled to collect entertainment duty on net rate of ticket as applicable and is also entitled to retain 100% of the entertainment duty for the first 3 years. It was pointed out to the representatives of the Multiplex Theatre Complexes that the “retention benefits” as is interpreted by the representatives of the Multiplex Theatre Complexes was incorrect and the method of computation of Entertainment Duty was also explained. Therefore, according to the respondents, the contention of the petitioners to allow them to charge entertainment duty at full rate and to pay only one-fourth of that amount to Government would amount to misrepresentation to the customer who would be made to believe that full entertainment duty has been charged to him when in fact, the Government would be receiving only one-fourth the amount. Therefore, the interpretation of the Government Resolution dated 4th January, 2003 of the petitioner is not proper and that the petitioner can charge only one-fourth of the normal entertainment duty during two years of period when concessional rate of 25% is applicable. Therefore, the one-fourth entertainment duty so charged during this period should be passed on to the Government. It is the case of the respondents that the petitioner is trying to usurp the amount of entertainment duty illegally collected and retained by them and that taxes and duties charged have to be paid to Government and cannot be allowed to be retained by anyone. It is the case of the respondents that Circular dated 5.01.2006 has been issued by the Government which clarifies and covers the issue relating to the subject matter of the above petition and it is on issuance of the Circular, the petitioners have themselves taken remedial measures and stopped 'retaining' any amount collected by them as entertainment duty since 20.01.2006. Therefore, according to the respondents, the petitioners have recovered the amount of entertainment duty at the rate of 45% from the audience and only 25% (1/4th) of that amount has been paid to the Government. Though notice has been issued to the petitioner for recovery of entertainment duty of 75% which is retained by the petitioner, the petitioner has paid only 25% entertainment duty amount collected by them. Therefore, according to the respondents, section 9 B of the said B.E.D. Act of 1923 provides that where the proprietor fails to pay the amount of duty due under section 3 within the period prescribed, he shall be liable to pay to the Government, in addition to the amount of duty so payable, a penal interest at the rate of 18% per annum for the first 30 days and at the rate of 24% per annum thereafter on such amount from the date such amount became or becomes payable till the amount and interest is fully paid. 27. It is the case of the respondents that the petitioner is trying to take advantage of the typing error in the statement of the respondents and that the errors if any, can be verified and corrected accordingly and in any event, further notice has been issued to the petitioner demanding a sum of Rs.70,39,529/- and the errors if any, have been adjusted. Therefore, according to the respondents, petitioners are liable to pay to the Government a sum of Rs.1,98,10,806/- (1,16,95,846 + 70,39,529 + 10,75,431) till date and the petitioner be directed to pay the said amount along with further interest to the Government and the petition be dismissed with costs. 28. The petitioner has tried to explain their case in Rejoinder by pointing out that the petitioner has not increased the gross ticket price; hence the patrons are not burdened with any extra amount by way of entertainment duty or otherwise as wrongly portrayed by the Respondents, in their Affidavit-in-Reply. While the exemption from payment of entertainment duty to the multiplex theatre complexes was introduced, under the Bombay Entertainments Duty (Amendment) Act, 2001 (Mah. II of 2002) on the terms and conditions specified therein (i.e. 100% exemption from paying the entertainment duty for first three years and 75% exemption from paying the entertainment duty for the fourth and firth year), until the 5th January, 2006 Circular, it was not clear as to how the entertainment duty amount should be reflected on the tickets, during the fourth and fifth year of exemption. It is only after the meeting dated 23rd August, 2005 with the Revenue Secretary and after the filing of the present petition by the petitioner, that the respondents came out with a clarification vide the Circular dated 5th January, 2006, which for the first time prescribed that, “For the period of first three years from the date of receipt of Eligibility Certificate, the Multiplex Theatre Complex should not mention the entertainment duty amount in the total admission fee. During the next two-yearperiod, along with the said admission fee, they should show entertainment duty amount not more than the prevailing rate of 25% of the duty in the total admission fee. Such instructions should be given to all Multiplex Theatre Complexes.” Till this circular, the printing of tickets was governed by the Exhibit D to the petition and the petitioner was complying therewith. They say that if this clarification was given earlier, no problem would have arisen and the petitioner would not have come before this Hon'ble Court. The change in the printing /contents was brought about only by the 5th January, 2006 Circular and that is prospective. However, by such circular, the effect of Sec.3 (13) cannot be done away with. 29. They say that if this clarification was given earlier, no problem would have arisen and the petitioner would not have come before this Hon'ble Court. The change in the printing /contents was brought about only by the 5th January, 2006 Circular and that is prospective. However, by such circular, the effect of Sec.3 (13) cannot be done away with. 29. Therefore, it is the case of the petitioners that the respondents in substance are demanding the entire entertainment duty from the petitioner at the full rate of 45%, ignoring the fact that the petitioner is entitled to get the exemption from paying 75% of the Entertainment Duty for the fourth and fifth years, by virtue of the Eligibility Certificate, received by the petitioner from respondent no.3 under the said B.E.D. Act of 1923. 30. The respondents in the additional affidavit have tried to state that the petitioners have an alternate and efficacious remedy of the Appeal under Section 10 A of the said B.E.D. Act of 1923 and, therefore, the court ought not to have entertained the Writ Petition. 31. The key issue which is called for determination in the matter is whether the petitioner although having collected the entertainment duty @ 45% i.e. 100% of the duty during the period, it was eligible to enjoy exemption from entertainment duty i.e. from 7.6.2005 to 19.1.2006 to the extent of 75% i.e. concessional rate being 25% of 45%. 32. Mr.Tulzapurkar, Ld. Sr.Advocate appearing for the petitioner submitted that the impugned notices and orders have been issued by the respondent nos.4 without taking into account the exemption available to the petitioner from paying 75% of the Entertainment Duty by virtue of its eligibility certificate received on 7th June, 2002 and Section 3(13) (a)(ii) of the said B.E.D. Act of 1923. It is submitted that respondent no.4 has arrived at the illegal demand of Rs.1,16,95,846/- by levying the full Entertainment Duty at the rate of 45% under Section 3(c) of the Act notwithstanding the exemption available to the petitioner by virtue of eligibility certificate received on 7th June, 2002. As such, the figure of Rs.1,09,15,148/- towards Entertainment Duty under Notice No.1 is on the basis of full Entertainment Duty at the rate of 45%. As such, the figure of Rs.1,09,15,148/- towards Entertainment Duty under Notice No.1 is on the basis of full Entertainment Duty at the rate of 45%. He further submitted that the levy of entertainment duty at the rate of 24% as sought to be imposed under section 9B of the said B.E.D. Act contemplates interest payable at the rate of 24% on failure to pay duty after an expiry of 30 days. It is submitted that prior to 5th December, 2005, there was no demand made on the petitioner and the period of 30 days as contemplated under Section 9B, had in fact not begun or expired. Therefore, as the levy of 24% interest can take place only after the expiry of the aforesaid 30 days, the said levy of interest are without any basis and on the face of it are unjust and illegal. 33. It is the contention of the learned counsel for the petitioner that the case of the respondent that the nature of exemption contemplated by virtue of the Act and the Government Resolution (GR's) issued thereafter is in the nature of a retention benefit which benefit is available to the proprietor/operator of a Multiplex Theatre Complex as can be made out from the perusal of the statement of objects and reasons of the Ordinance wherein it is clear that the Government recognised that setting up of Multiplex Theatres was a capital incentive business and, therefore, it was necessary to make exemptions available to such Multiplex Proprietors / Operators to invest a huge amount of capital and as such, the recipient of this benefit was the Proprietor / Operator and not the patron / customer. 34. It is further contended that when the intention of the legislation is to provide an exemption to the patron/customer, Section 6 of the said B.E.D. Act enables the State Government by a special order under sub section 3 of Section 6 to exempt any entertainment or class of entertainment from the liability of Entertainment Duty. It is by virtue of the aforesaid Section 6 that cinemas are made tax free where the benefit of such exemption is for the patrons. As such, if the intention of the legislation was to make the exemption available to the patrons, Section 3(13)(a) would not have been introduced by virtue of the Act. It is by virtue of the aforesaid Section 6 that cinemas are made tax free where the benefit of such exemption is for the patrons. As such, if the intention of the legislation was to make the exemption available to the patrons, Section 3(13)(a) would not have been introduced by virtue of the Act. It is therefore, contended that the introduction of the exemption into Section 3 of the said B.E.D. Act itself clearly indicates that the exemption was for the benefit of a Multiplex Proprietor/Operator and not the patron. The fact that the exemption was from payment of entertainment duty is clearly evidenced by reading Clause 5E(i) of the said GR reproduced hereinabove, from which it is very clear that the exemption was from payment of Entertainment Duty and there was no restriction from collecting the Entertainment Duty from the patrons/consumers. 35. According to Mr. Tulzapurkar, the learned Senior counsel for the petitioner section 3(13)(b)(iii) stipulates that for the period of exemption the Multiplex Proprietor/Operator is not entitled to levy service charge. As such, where the legislation wants to preclude the Proprietor/Operator from levying any charge, the same has been explicitly mentioned and in respect of payment of Entertainment Duty, there is no stipulation under the Act like in the case of Service charge under the aforesaid sub-section from not levying the same on the patrons. 36. It is further submitted that sub-section (c) of Section 13 provides that in case of violation of condition (i) or (v) of clause (b), the concession shall be withdrawn and the Proprietor/Operator would become liable to pay duty from the date of commencement of the Multiplex Complex. From this, it is very clear that the Proprietor/Operator would become liable to pay duty collected from the patron/consumer during the concession period. Therefore, according to Mr.Tulzapurkar, it is abundantly clear that the nature of exemption is a retention benefit and not a benefit for the patrons as contended by respondent nos.4 and respondent no.1. In the aforesaid premise, the Multiplex Proprietor/Operator is entitled to collect admission fee and not pay Entertainment Duty for first 3 years and only 25% of the duty for next 2 years in the manner prescribed under the Act and ors thereunder. In the aforesaid premise, the Multiplex Proprietor/Operator is entitled to collect admission fee and not pay Entertainment Duty for first 3 years and only 25% of the duty for next 2 years in the manner prescribed under the Act and ors thereunder. The petitioner therefore, submits that the contention of respondent no.4 as set out in the impugned notices/impugned orders that the petitioner must pay to respondent no.4 the Entertainment Duty collected from the patrons, is erroneous and bad in law. 37. Mr.Tulzapurkar, the learned Sr.Counsel for the petitioner has offered an explanation as to why the petitioners were required to reflect on its tickets entertainment duty collected from the patron/consumer. The petitioners were liable to pay entertainment duty @ 25% of the entertainment duty collected from the patron / consumer and, therefore, at the most, the respondents could levy and recover only 25% of 45% which has been shown as entertainment duty on the admission ticket from the petitioner. 38. Mr.Tulzapurkar, the learned Senior counsel for the petitioner submitted that accordingly the petitioner has correctly filed his return and has duly paid the entertainment duty which was levied and required to be paid i.e. 25% of the duty and this was as specified in the rules. It is submitted that the period for which the entertainment duty is sought to be recovered is hardly of two months which came to be corrected as soon as the Government issued a notification to that effect which they claim to be clarificatory in nature which is evident from the minutes of the meeting held on 23.08.05 which was called to discuss the method of computing Entertainment Duty to be levied on Multiplex Theatre Complex and from the date of the Government Resolution dated 05.01.2006, the petitioners immediately reflected on its admission ticket the entertainment duty which they were liable to pay and was levied during the period of concession. It is submitted that the G.R. itself clarifies that it was issued for implementation of the provisions of the Bombay Entertainments Duty (Amendment) Act, 2005 and clause said B.E.D. Act and clause 3.2 of the circular clarified in respect of the Multiplex Theatre Complex. It is submitted that the G.R. itself clarifies that it was issued for implementation of the provisions of the Bombay Entertainments Duty (Amendment) Act, 2005 and clause said B.E.D. Act and clause 3.2 of the circular clarified in respect of the Multiplex Theatre Complex. On the other hand, it makes it clear that the powers to fix minimum rates of admission in the Multiplex Theatre Complex were conferred on the Collector but there was no cap on the admission fee and, therefore, the contention of the respondents that it was not admissible for the Multiplex Theatre Complex to recover the entertainment duty spectators at a prescribed rate and retain the same with them during the concessional period five years from the date of issuance of eligibility certificate cannot be interpreted in a way to fasten the liability on the petitioner who were only liable to pay entertainment duty at the prevailing rate of 25% out of the total leviable duty i.e. 45% on admission ticket and therefore, the petition deserves to be allowed. 39. Mr.Nair, the learned Special Counsel for the State submitted that this is a clear cut case of unjust enrichment and the State was justified in claiming the amount of entertainment duty collected by the petitioner from the patrons as shown in the admission ticket to be paid to the Government with interest. 40. Mr.Nair, the learned counsel for the State has pointed out that the petitioner having disputed that in the admission ticket of the notice period, entertainment duty is shown as 45% and, therefore, the petitioner has no right to retain the duty collected from the patrons. 40. Mr.Nair, the learned counsel for the State has pointed out that the petitioner having disputed that in the admission ticket of the notice period, entertainment duty is shown as 45% and, therefore, the petitioner has no right to retain the duty collected from the patrons. It is submitted that the G.R. dated 20.09.2000 has clearly specified the new procedures to be followed as given in Annexure – 1 and the format of permission to be granted for sale of computerised ticket as shown in Annexure – 2 and it gives in detail that how the computerised tickets are to be printed and what are the particulars to be printed on it and that sale of tickets of the movie which is exempted from entertainment tax, the tickets should have printed on it “Tax Free” and price of ticket after deduction of tax should be printed on the ticket and in what manner each ticket should be printed in the format as provided and how entertainment duty is to be computed and paid to the Government. 41. It is submitted that during the period of concession, it was necessary to get audited the accounts registers for the sold tickets (Daily Ticket selling register) or Daily recover register and payment of the fees and B and E statements from the Chartered Accountants. And thereafter the said Chartered Accountant shall issue the certificate in writing for the same and accordingly, the petitioners Chartered Accountant has duly filed B and E statement which clearly goes to show that during the period when the petitioner was liable to pay 25% of the entertainment tax they have recovered entertainment tax @ 45%. Mr.Nair submitted that the petitioner cannot take advantage of their own wrong and cause loss to the revenue and they will have to pay entertainment duty collected from the patrons. 42. Mr.Nair submitted that the petitioner cannot take advantage of their own wrong and cause loss to the revenue and they will have to pay entertainment duty collected from the patrons. 42. Mr.Nair submitted that it is a settled law that refund of duty wrongly realised from a taxpayer cannot be retained as it clearly amounts to unjust enrichment without any specific provision of law to that effect and that Article 265 of the Constitution of India clearly lays down that no tax shall be levied or collected except by authority of law and as held in the case of Mafatlal Industries Ltd. v. Union of India and Ors1 that the mandate of the Constitution is lucid and clear and must be taken to mean what it says. “No tax” takes in every type of tax. It has been contended on behalf of the Union of India that Article 265 merely lays down that no direct tax shall be levied or collected except by authority of law. The first question is that if that was the intention of the Constitution makers, then why did they not say so in so many words? “Taxation” has been defined in article 366(28) to include the imposition of any tax or impost, whether general or local or special, and “tax”, shall be construed accordingly. Therefore, the word “tax” will include any tax general, local or special. That means every kind of tax direct or indirect will come within the ambit of article 265. 43. He has further relied upon Entry Tax Officer, Bangalore and 1 Sales Tax Cases 1998 Vol III 467 Others v. Chandanmal Champalal and Co. and Others2 wherein it was held as under: “It is true that Burmah Shell, Hiralal Thakorlal and Parekh Automobiles were concerned with State enactments which empowered the municipalities to levy the impost, all the same a close reading of the said decisions does indicate that they have read the words 'sale therein' occurring in Entry 52 of List II as meaning 'a matter of fact, in a given case, the goods may be taken out and consumed there. The decisions clearly say that where the goods are sold within the local area for the purpose of being taken out of that local area and are actually taken out, no levy is permissible under Entry 52. The decisions clearly say that where the goods are sold within the local area for the purpose of being taken out of that local area and are actually taken out, no levy is permissible under Entry 52. It is not possible to distinguish the said decisions on the grounds suggested by the appellant. Besides, octroi or any impost in the nature of that impost has always been looked upon with certain amount of disfavour. Acceptance of the State's contention in this case would ultimately result in driving up the price of these goods to the consumer. It would become another sales tax in effect. 2 (1994) 4 Supreme Court Cases 463 43 44. In the case of State of Madhya Pradesh v. Vyankatlal and Another 3 it has been held as under: “The principles laid down in the aforesaid cases were based on the specific provisions in those Acts but the same principles can safely be applied to the facts of the present case inasmuch as in the present case also the respondents had not to pay the amount from their coffers. The burden of paying the amount in question was transferred by the respondents to the purchasers and, therefore, ultimate burden to pay the amount would be entitled to get a refund of the same. The amount deposited towards the fund was to be utilised for the development of sugarcase. If it is not possible to identify the persons on whom had the burden been placed for payment towards the Fund, the amount of the Fund can be utilised by the Government for the purpose for which the Fund was created, namely, development of sugarcane. There is no question of refunding the amount to the respondents who had not eventually paid the amount towards the Fund. Doing so, would virtually amount to allowing the respondents' unjust enrichment.” 3 Sales Tax Cases 1987 Vol. 64 Pg.6 44 45. In the case of Amar Nath Om Parkash and Others v. The State of Punjab and Others 4 it has been held as under: “Another submission of the learned counsel was that while the legislature was competent to enact a law for the levy of a fee and matters incidental and ancillary thereto, it was incompetent to legislate providing for the retention by any authority of fee illegally levied. For this purpose, reliance was placed by the learned counsel on the decision of this Court in Abdul Quader & Co. v. Sales Tax Officer (1964) 15 STC 403 (SC); AIR 1964 SC 922 . We are afraid that this decision also is of no avail to the appellants.” 46. Mr.Tulzapurkar, the learned Sr. counsel for the petitioner submitted that the submission on behalf of the respondents and the authorities on which reliance is placed relates to the case of unjust enrichment which is not the issue in the present case. He submitted that identical issue had come before the Supreme Court in the case of 4 1986 Sales Tax Cases Vo.62 Page 130 R.Abdul Quader and Co. v. Sales Tax Officer, 2nd Circle, Hyderabad 5 wherein it was held as under: “It is remarkable that this provision makes the person punishable for his failure to pay the amount which is not authorised as a tax at all under the law to Government. It does not provide for a penalty for collecting the amount wrongly by way of tax from purchasers which may have been justified as a penalty for the purpose of carrying out the objects of the taxing legislation. If a dealer has collected anything from a purchaser which is not authorised by the taxing law, that is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer. This cannot be done directly for it s not a tax at all within the meaning of Entry 54 of List II nor can the State Legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly.” 5 AIR 1964 SC 922 47. It is therefore, submitted that the authorities on which reliance is placed on behalf of the respondents is of no assistance to the respondents and, therefore, the contention of the respondents to claim the amount cannot be sustained. 48. It is therefore, submitted that the authorities on which reliance is placed on behalf of the respondents is of no assistance to the respondents and, therefore, the contention of the respondents to claim the amount cannot be sustained. 48. On going through the rival contentions and the relevant provision of the said B.E.D. Act, there is no dispute over the fact that it is not that the petitioner's are seeking refund of the amount paid to the State on the ground that the petitioner is entitled to rebate in the entertainment duty and, therefore, entitled to refund of the same. This is a case where the petitioner is claiming that it was granted exemption from payment of entertainment duty in the scheme as incorporated in 3 (13)(a) of the said B.E.D. Act of 1923 as specified in sub clauses (i), (ii) and (iii) and particularly the issue relates to the period sub clause 3 (13)(a)(ii) i.e. for the subsequent two years, at the rate of twenty-five per cent of the rate of duty leviable under clause (b) and clause (c) of sub-section (1) or, as the case may be, sub-section (3). Therefore, the question is as to whether the state can levy more than 25% of the rate of duty leviable under clause (ii) or as the case may be, sub-section (3) of the said B.E.D. Act from the petitioner. 49. It is a well settled principle of interpretation that unless there is anything contrary in the Act and Rules, if there are two interpretations possible then it is that interpretation which sub serves the object and purpose should be accepted. 50. 49. It is a well settled principle of interpretation that unless there is anything contrary in the Act and Rules, if there are two interpretations possible then it is that interpretation which sub serves the object and purpose should be accepted. 50. The Bombay Entertainment Duty (Amendment) Bill, 2001 came into force on 17.08.2001 wherein for the first time in the definition clause i.e. Section 2 of the said B.E.D. Act of 1923, the definition of Multiplex Theatre Complex came to be inserted after clause (f), namely, “(f-a) “Multiplex Theatre Complex” means an entertainment-cum-cultural center which provides - (i) within the limits of Municipal Corporation of Brihan Mumbai not less than four theatres in a complex with minimum total seating capacity of 1250; and (ii) anywhere else in the State, not less than three theatres in a complex with minimum total seating capacity of 1000, and such other incidental and connected matters and facilities, and multi-entertainment activities and other facilities as specified by Government in this behalf, by notification in the Official Gazette. 51. Thereafter, in section 3 of the principal act, after sub-section (12), the following sub-section came to be added i.e. (13)(a) and to that extent the Bombay Entertainments Duty (Amendment) Ordinance, 2001 came to be repealed. The statement of objects and reasons which was given at the time the bill was introduced by the then Minister for Revenue in the House is reproduced hereunder: “(1) “As a result of the onslaught of Cable Television and advancement in the field of Information Technology, the average occupancy in cinema theatres has fallen considerably and hardly any new theatres have been started in the recent past. Public at large these days prefers to see movies at home. Keeping in view this scenario, a concept of complete family entertainment center, more popularly known as 'Multiplex Theatre Complex' has emerged. These Multiplex Theatre Complexes offer various entertainment facilities for the entire family under single roof. However, those complexes are highly capital intensive, their gestation period is also quite longer, and therefore, need Government support and incentive in entertainment duty. (2) The Government of Maharashtra, therefore, considers it necessary to encourage, by giving incentives for the construction of new cinema theatres and to ensure the healthy cultural development in the State of Maharashtra. However, those complexes are highly capital intensive, their gestation period is also quite longer, and therefore, need Government support and incentive in entertainment duty. (2) The Government of Maharashtra, therefore, considers it necessary to encourage, by giving incentives for the construction of new cinema theatres and to ensure the healthy cultural development in the State of Maharashtra. (3) Government has therefore, with a view to commemorate the birth centenary of Chitrapati late Shri V. Shantaram, decided to grant concession in entertainments duty to Multiplex Theatres Complexes to promote construction of new cinema houses in the State. (4) To preserve and promote Marathi Cinema, it is made obligatory on owners of such Complexes to reserve one screen for a total period of one month, in a year, exclusively for Marathi Cinemas. (5) The important salient features of the Bill are as follows: (a) It is one of the conditions that in the Brihan Mumbai Municipal Corporation Area there should be minimum four theatres in a complex with the total minimum seating capacity of 1,250 and elsewhere in the State not less than three theatres with minimum total seating capacity of 1000. (b) Special concession is offered as an incentive for a period of five years in the entertainments duty subject to certain conditions. (c) Power is taken to specify by notification in the Official Gaxette, the facilities and conditions including multi entertainment activities such as providing one theatre for Stage Performances, Family Entertainment Centre, Art Gallery, etc. which are to be provided by the Proprietor in a Complex and the Proprietor is not to discontinue any of such facilities without prior permission of the Government. (d) The proprietor is prohibited from collecting service charges during the concession period and also prohibited from charging lower admission fee than the prevalent rate in the district where the complex is situated and it is also made incumbent upon him to continuously run the complex for a period of ten years. (e) Power is also taken to withdraw the concession in case of violation of the conditions subject to which the concession is granted. (f) Provision is also made for the existing theatres to convert into Multiplex Theatre Complex and to avail of the concessions, subject to compliance with the specified conditions and requirement for setting up of a Complex. 6. (e) Power is also taken to withdraw the concession in case of violation of the conditions subject to which the concession is granted. (f) Provision is also made for the existing theatres to convert into Multiplex Theatre Complex and to avail of the concessions, subject to compliance with the specified conditions and requirement for setting up of a Complex. 6. As both Houses of the State Legislature were not in session and the Governor of Maharashtra was satisfied that circumstances existed which render it necessary for him to take immediate action further to amend the Bombay Entertainment Duty Act, 1923, for the purposes aforesaid, the Bombay Entertainments Duty (Amendment) Ordinance, 2001 (Mah. Ord.XXIV of 2001), was promulgated by the Governor of Maharashtra on the 17th August, 2001. 7. The Bill is intended to replace the said Ordinance by an Act of the State Legislature.” 52. Therefore, it is quite clear that the State wanted to promote and encourage multiplex theatre complexes and, therefore, it decided to offer special concessions as an incentive for a period of 5 years in the entertainment duty subject to certain conditions which have been incorporated by the amending act which introduces sub section 13 in section 3 of the principal act after sub section 12 and sub section 13(a) (i) provided for the first three years from the date of commencement of the Multiplex Theatre Complex, no duty, i.e. there will be no entertainment duty levied and collected by the State from the proprietor of a Multiplex Theatre Complex and (ii) for the subsequent two years, at the rate of twenty-five percent of the rate of duty leviable under clause (b) and clause (c) of sub-section (1) or, as the case may be, for sub-section (3) and (iii) from the sixth year, full amount of duty leviable at the rate specified in clause (b) and clause (c) of sub-section (1) or, as the case may be, sub-section (3) provided that, the duty leviable shall also be subject to the provisions of sub-section (2), wherever applicable and explanation provided for the purpose of this sub-section which speaks for itself. Therefore, it is quite clear that this was by way of an incentive offered to the proprietors of multiplex theatre complex on the terms and conditions specified in the Act in section 3 subsection (13) of the said B.E.D. Act. 53. Mr. Tulzapurkar, the learned Sr. Therefore, it is quite clear that this was by way of an incentive offered to the proprietors of multiplex theatre complex on the terms and conditions specified in the Act in section 3 subsection (13) of the said B.E.D. Act. 53. Mr. Tulzapurkar, the learned Sr. counsel rightly submitted that this is not a case that these incentives were provided to the patrons of multiplex theatre complexes and should not be misconstrued as an exemption provided under section 6 of the said B.E.D. Act of 1923 of which the object and purpose is totally different. Section 3 clearly provides that entertainment duty shall not be levied on payment for admission to any entertainment where the Collector is specified for the reasons given in clause a, b and c. There is one other distinguishing feature in this regard and i.e. there is no cap provided on the maximum admission fee which can be charged to a patron whereas sub section 13 of section 3 clause b (i) provides that during the period of concession covered by clause (a) above, the minimum rates of admission in a multiplex shall be determined by the Collector. Such minimum rates of admission shall not be less than the prevailing highest rate, excluding the rates of the highest priced fifty seats, in any of the cinema theatres in the District in which multiplex is situated and accordingly such minimum rates of admission may be different for morning, matinee and other shows. 54. In the present case, the respondents have placed on record the computerised admission ticket at Exhibit – 1 to their affidavit dated 14.2.06 wherein they have shown that during the second stage of concession, the Exhibitor was supposed to charge 25% of the entertainment tax on the admission fee, they have charged 45% and the gross total comes to Rs.135/- i.e. The admission fee shown as Rs.93.05, entertainment tax Rs.41.95 and gross total is Rs.135. The specimen of computerised tickets in all the three phases i.e. when the incentive was duty free, duty was 25% of the entertainment duty and when no incentive was available they were required to charge full entertainment tax i.e. 45% in the cinema theatres in Mumbai. During 100% tax exemption, the ticket shows total Rs.135/- without any classification. The specimen of computerised tickets in all the three phases i.e. when the incentive was duty free, duty was 25% of the entertainment duty and when no incentive was available they were required to charge full entertainment tax i.e. 45% in the cinema theatres in Mumbai. During 100% tax exemption, the ticket shows total Rs.135/- without any classification. During 75% tax exemption, before circular dt.5.1.06 was issued, the computerised ticket shows admission as Rs.93.05, entertainment tax Rs.41.95 and gross total Rs.135/-. During 75% exemption after Circular was issued, it shows admission Rs.121.30, entertainment tax Rs.13.70 and gross total Rs.135/-. Therefore, what is demonstrated by these three tickets is that gross ticket or admission fee which the Exhibitor wanted to charge was Rs.135/- during the period of 100% tax exemption and also during 75% tax exemption. The disputed period is in relation to before and after circular dated 5.1.06 came to be issued. There also the gross ticket or admission fee is Rs.135/- but before the said circular was issued, they have shown entertainment tax as Rs.41.95 which is 45% of the gross total i.e. Rs.135/-. Therefore, the net admission fee is shown as Rs.93.05. This according to the learned counsel for the petitioner was required to be printed as proprietors of multiplex were not enjoying 100% tax exemption and, therefore, they printed the entertainment tax as per the rate prevalent in the Municipal area which is required to be published on the ticket as per rules but they were liable to pay 25% of 40% the entertainment tax i.e. Rs.41.95. After the circular they have corrected it and they have shown entertainment tax as Rs.13.70 which is 25% of 40% which restricted in showing admission fee as Rs.121.30, the gross total remaining the same i.e. Rs.135.00. 55. The petitioner's case, therefore, is squarely covered in so far as their liability to pay entertainment duty for the said period is concerned when they were eligible to enjoy 75% tax exemption. 55. The petitioner's case, therefore, is squarely covered in so far as their liability to pay entertainment duty for the said period is concerned when they were eligible to enjoy 75% tax exemption. Therefore, whether they have shown 45% of the admission fee as entertainment tax or 25% on the ticket issued to patrons, their liability to pay entertainment tax / duty would be to the extent of 25% of the entertainment duty and during the period of 75% of tax exemption, the State is not entitled to recover from them entertainment tax / duty to the extent of 45% which was the standard entertainment tax / duty leviable as entertainment tax / duty under the Act, as they were exempted to the extent of 75% of the entertainment tax / duty during the said period and obviously, this cannot be read as a case of unjust enrichment. 56. During the course of arguments, the aforesaid illustration was cited by the learned counsel for the petitioner in respect of Cine Planet IV from the communication received from the Entertainment Duty Officer to the A Panel Counsel i.e. Mr.Nair representing the State of Maharashtra and Ors. The learned A Panel Counsel for the respondents is not able to place before us any other similarly situated case of proprietors of multiplex theatres like the petitioners having been called upon to pay the entertainment tax duty to the extent of 45% or 40% during the regime of tax exemption to the extent of 75% of the entertainment tax duty and ought to have shown 25% on their tickets as entertainment tax duty. 57. 57. Section 3 (13)(a) of the said B.E.D. Act which clearly regulates the scheme is also charging section in so far as the liability to pay entertainment duty is concerned which clearly provides that entertainment duty shall be levied and collected by the State Government from the proprietor of multiplex theatre complex the % of duty in respect of any such complex is given in the schedule and then specifies that for the first three years from the date of commencement of the Multiplex Theatre Complex, no entertainment duty will be levied and collected by the State from the proprietor of a Multiplex Theatre Complex and (ii) for the subsequent two years, at the rate of twentyfive percent of the rate of duty leviable under clause (b) and clause (c) of sub-section (1) or, as the case may be, for sub-section (3) and (iii) from the sixth year, full amount of duty leviable at the rate specified in clause (b) and clause (c) of sub-section (1) or, as the case may be, subsection (3). 58. We are concerned with sub clause (a)(ii) where the proprietor of multiplex theatre complex is liable to pay duty @ 25% of the rate of duty leviable under clause (b) and clause (c) of sub-section (1) or, as the case may be, for sub-section (3). In so far as the petitioner theatre is concerned, it was the duty which is required to be levied as specified in the table of clause (c) of section 3 i.e. within the limits of Brihan Mumbai Municipal Corporation where the rate of entertainment duty on payment for admission fixed by the State is 45%. 59. Therefore, there is no vagueness about the incidence of tax and the person who is liable to pay tax. On the other hand, there is a clear indication of the character of tax from the incidence of such tax or taxable event which takes place on the happening of the event of offering entertainment in the multiplexes. The person on whom legal liability to pay tax falls has also been clearly and unambiguously mentioned in the charging section. The rate of tax have been sought to be specified in the notification. The measure of tax is the “gross receipt” on the basis of which the person is saddled with the liability to pay tax. The person on whom legal liability to pay tax falls has also been clearly and unambiguously mentioned in the charging section. The rate of tax have been sought to be specified in the notification. The measure of tax is the “gross receipt” on the basis of which the person is saddled with the liability to pay tax. There fore, it is clear that there is no uncertainty or vagueness in the incentive scheme provided in the legislation. 60. So even though the petitioners have shown entertainment tax / duty in the computerised ticket by calculating at the rate of 45%, it can only be held liable to pay to the extent of 25% of the 45% as was also the case before the Supreme Court in the case of Abdul Quader & Co. v. Sales Tax Officer5 where the dealer has collected duty/tax from a purchaser which is not authorised by the taxing law and it was held that it is a matter between him and the purchaser, and the purchaser may be entitled to recover the amount from the dealer. But unless the money so collected is due as a tax, the State cannot by law make it recoverable simply because it has been wrongly collected by the dealer. This cannot be recovered for the reason that it is not a tax at all within the meaning of Entry 54 of List II nor can the State Legislature under the guise of incidental or ancillary power do indirectly what it cannot do directly. 61. There is one more aspect which cannot be overlooked in the present case and i.e. the so called error of specifying entertainment tax/duty on the computerised ticket has crept in as a result of implementing the G.R issued under the Rules which govern the printing and publishing of admission tickets. The clauses in G.R. clearly provides for mentioning of various heads while publishing, printing admission tickets to the place of entertainment. The clauses in G.R. clearly provides for mentioning of various heads while publishing, printing admission tickets to the place of entertainment. In all probability, the proprietors multiplex theatre complex till the circular dt.5.1.06 came to be issued (which according to the respondent State was clarificatory in nature), felt that they have to show entertainment tax on the admission ticket and can claim 75% tax exemption of the same and for this reason they have shown entertainment ticket as per the rate prevailing in the prescribed municipal areas and this is how the petitioners have also filed their returns with entertainment department of the State and claimed 75% tax exemption out of 45% which is normally levied where no exemption is granted. It is not disputed that after the circular dated 5.1.06 came to be issued, all the proprietors accordingly corrected the entertainment tax printed on the admission tickets. The contention of the learned A Panel Counsel for the State of Maharashtra that the Circular dt.5.1.06 was clarificatory in nature and for internal circulations and as guidelines to the entertainment duty officers but the fact cannot be disputed that this circular whether it was by way of guidelines or clarificatory in nature came to be issued as there was some misunderstanding as regards compliance of the rules which require printing of the entertainment tax on the admission ticket to be issued to the patrons. 62. To conclude, it cannot be said that merely because the proprietors printed full entertainment tax duty on the admission ticket though they were only liable to pay 25% of the entertainment tax duty for a period of 2 years for which they were eligible for 75% exemption of the entertainment tax, they are liable to pay 100% entertainment tax without there being any express authority of law created by the Statute. On the other hand, it would deprive them of the incentive which has been specifically offered under the scheme for which the Act came to be amended and would be in total conflict with the object and reasons with which the Government sought amendment of the Act nor this can be considered as a case of unjust enrichment as even, otherwise, the gross admission fee which the patron is supposed to pay minus the entertainment tax and other taxes (direct or indirect) would ultimately go in the pocket of the proprietors of the multiplex theatres. 63. Therefore, we find that the State was not entitled to claim more than what could be levied as entertainment duty during the two years period irrespective of the fact that the Exhibitors have shown on admission tickets issued to patrons 45% of the duty though they were liable to pay only 25% of 45% during the incentive period which was of 2 years. The impugned notices and order Exh A-1 and A-2 and H are quashed and set aside. Rule made absolute with no order as to costs.