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Madhya Pradesh High Court · body

2010 DIGILAW 852 (MP)

Lilasons Breweries Ltd. v. State of M. P.

2010-08-20

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2010
ORDER Arun Mishra, J. 1. The Petitioners in the instant writ petitions have prayed for the relief that they are not liable to make payment of entry tax. Prayer has also been made to quash communication dated June 13, 2007 issued by the Commissioner of Excise, Gwalior, for collection of entry tax from the Petitioners. The Petitioners are also challenging the demand of entry tax from them. The prayer has also been made to collect it from the retailers not from the Petitioners. 2. Facts are being referred to from W. P. No. 8670 of 2007. The Petitioners are involved in bottling and supplying beer and Indian-made foreign liquor to State Government warehouses. They are holding licences under the Madhya Pradesh Excise Act to manufacture and supply beer and Indian-made foreign liquor. NOC has to be issued for transporting the foreign liquor to the warehouses by the officer in-charge posted at the factory. The sales are made by the warehouse in-charge to the authorised retailers who are also licence holders for retail selling of the said Indian-made foreign-liquor and beer. Various licences are issued for production of different kinds of foreign liquors. Sale is made by the Government to the retailers. Two per cent entry tax has to be paid by Government warehouse and can be recovered from retailer and to be deposited to State Treasury. Section 3B has been inserted in the Madhya Pradesh Entry Tax Act, 1976 by way of Madhya Pradesh Entry Tax (Amendment) Act No. 9 of 2007. It is effective from April 1, 2007. Section 3B provides that the Government may, by notification, specify the manner and appoint the competent authority, to collect entry tax in respect of Indian-made foreign liquor and beer on such terms and conditions as may be specified therein. The Petitioners submit that there has been no notification specifying the manner and the appointment of competent authority to collect entry tax in respect of Indian-made foreign liquor and beer. The Commissioner of Commercial Tax, Indore, vide letter dated June 2, 2007 has intimated Respondent No. 2 that the liability of entry tax at two per cent is on the bonded warehouse and therefore, the bonded warehouse should pay the entry tax to the Government. Pursuant to the said communication, Respondent No. 2 has asked Respondent No. 3 to collect the entry tax from the Petitioners. Pursuant to the said communication, Respondent No. 2 has asked Respondent No. 3 to collect the entry tax from the Petitioners. They have been asked to pay entry tax from April 1, 2007 to June 15, 2007. They were also informed that on failure to deposit the entry tax, price of liquor supplied by the Petitioners would not be paid to them. The Petitioners submit that in the absence of notification it is not open to the State Government to realise the entry tax. There was no justification in the law to levy entry tax. In any case it has to be collected from the retailers not from the Petitioners. Entry tax cannot be collected from the manufacturers. The Petitioners are not liable to pay either excise duty or transportation cost, hence petition has been preferred. 3. In the return filed by the Respondents it is contended that warehouse does not purchase the liquor nor sells it. Manufacturer directly sells the liquor to the liquor contractor under the supervision of the Department. Sale and purchase cannot be treated as business and trade by the State Government. Madhya Pradesh Sthaniya Kshetra Me Mal Ke Pravesh Par Kar Adhiniyam, 1976 (hereinafter referred to as, "the Entry Tax Act") has been enacted under entry 52, List II of the Seventh Schedule to the Constitution of India. Entry of goods into a local area has been defined under Section 2(aa) and 2(b) of the Entry Tax Act. The validity of the Entry Tax Act has been upheld by this Court. From charging Section 3 of the Entry Tax Act, it is apparent that the Petitioners are liable to pay entry tax. There is no fundamental right to trade in liquor. Under Section 62 of the Excise Act, State Government can frame the rules for carrying out the various purposes of the Act. The Madhya Pradesh Foreign Liquor Rules, 1996, makes it clear that the State Government neither purchases nor sells the liquor, hence liability to pay the tax is that of the Petitioners. Liquor is only kept in the warehouses under the supervision. There is no purchase by the Department of the liquor from the Petitioners. Department charges eight per cent as supervision charges which is now called, transportation fee as per Clause 13.2 of Notification (R2) dated January 15, 2008. Liquor is only kept in the warehouses under the supervision. There is no purchase by the Department of the liquor from the Petitioners. Department charges eight per cent as supervision charges which is now called, transportation fee as per Clause 13.2 of Notification (R2) dated January 15, 2008. The entry tax is payable by the person who causes entry of liquor into the local area. The Petitioners cause entry of liquor into the local area, hence they are liable to make the payment of entry tax as the entry of goods is caused into the local area by the Petitioner for consumption, use or sale. However for the subsequent years, the entry tax has been exempted on foreign liquor. No case for interference is made out in the writ petitions. 4. An additional return has been filed by the Respondents contending that Section 3 carves out the incidence of taxation and as per the provisions of Section 3 all the Petitioners are under liability to pay VAT and the list of dealers who are liable to pay VAT has been filed with the additional return. Liability is covered under Section 3(1). Section 3B is only a machinery provision. Machinery for recovery of entry tax is already provided in Section 14 of the Entry Tax Act. 5. Shri Sumit Nema and Shri S.D. Mishra, learned Counsel appearing for the Petitioners, have submitted that Section 3B is a special provision with respect to foreign liquor. It is a charging section for the foreign liquor. Until and unless the State Government issues a notification and prescribes method and manner and specify terms and conditions, it is not open to the State Government to make recovery of the entry tax on foreign liquor. Section 14 cannot be invoked due to non obstante clause in Section 3B. The learned Counsel also submitted that Section 3 is not attracted, as on the commodity in question VAT is not leviable, hence Section 3 cannot be said to be a charging section as it is necessary ingredient that a dealer should be liable to make payment of VAT then only entry tax can be recovered from him, hence proposed recovery is illegal. He has also submitted that tax cannot be levied by intendment in the absence of express provision. For want of specific notification, it is not open to levy the entry tax. He has also submitted that tax cannot be levied by intendment in the absence of express provision. For want of specific notification, it is not open to levy the entry tax. He has alternatively submitted that, even if Section 3B is taken to be machinery provision, it would not be possible to make computation in the absence of requisite notification under Section 3B and without specification of terms and conditions. 6. Shri R.D. Jain, learned Advocate-General with Shri Purushendra Kaurav, Deputy Advocate-General for State, has submitted that Section 3 is the charging section. Section 3B is only a machinery provision which authorises the Government to prescribe the method and manner and competent authority for recovery of entry tax along with the terms and conditions as may be specified. He has further submitted that non obstante clause does not oust the applicability of other provisions of the Act. Section 14 is specifically attracted which contains the machinery provision for recovery of entry tax. Levy is not going to become invalid for want of notification under Section 3B of the Entry Tax Act. He has also submitted that Section 3 is clearly attracted. The Petitioners are dealers under the VAT Act. They are paying VAT also as mentioned in the additional return. 7. In order to appreciate the rival submissions, it is necessary to consider the provisions of Sections 3(1), 3B and 14 of the Entry Tax Act : 3. He has also submitted that Section 3 is clearly attracted. The Petitioners are dealers under the VAT Act. They are paying VAT also as mentioned in the additional return. 7. In order to appreciate the rival submissions, it is necessary to consider the provisions of Sections 3(1), 3B and 14 of the Entry Tax Act : 3. Incidence of taxation-(1) There shall be levied an entry tax,- (a) on the entry in the course of business of a dealer of goods specified in Schedule II, into each local area for consumption, use or sale therein; and (b) on the entry in the course of business of a dealer of goods specified in Schedule III, into each local area for consumption or use of such goods but not for sale therein ; and such tax shall be paid by every dealer liable to tax under the VAT Act who has effected entry of such goods: Provided that no tax under this Sub-section shall be levied,-- (i) in respect of goods specified in Schedule II other than the local goods, purchased from a registered dealer on which entry tax is payable or paid by the selling registered dealer ; (ii) in respect of goods specified in Schedule II which after entry into a local area are sold outside the State or in the course of inter-State trade or commerce or in the course of export out of the territory of India ; (iii) in respect of goods specified in Schedule III imported from outside the State for consumption, or use but which have been disposed of in any other manner ; (iv) in respect of goods exempted from entry tax under Section 10 ; and if tax on the entry of any goods specified in Schedule II or Schedule III effected during any period has been deposited by a dealer into the Government treasury and subsequent to such entry the goods are disposed of in the manner described in Clause (ii) of this proviso, such dealer shall be entitled to a set-off of the tax already paid by him in respect of such goods and such set-off shall be adjusted towards the tax payable by him in such manner as may be prescribed: Provided further that notwithstanding anything contained in this Act, where a dealer in the course of his business, purchases goods from a person or a dealer other than a registered dealer who has effected entry of such goods into a local area prior to such purchase, the entry tax shall be paid by the dealer who has purchased such goods: Provided also that notwithstanding anything contained in this Act, where a dealer liable to pay tax under the VAT Act in the course of his business into a local area, purchases goods specified in Schedule III, other than goods which are local goods in relation to such local area, from another dealer of the same local area for consumption or use, the entry of such goods shall be deemed to have been effected into such local area by the dealer who has purchased such goods for the aforesaid purpose and entry tax shall be paid by such dealer: Provided also that in respect of packing material 'sale' shall mean the sale of packing material as such and shall not include its sale along with the goods packed or contained therein. 3B. Special provision for collection of entry tax on foreign liquor.-- Notwithstanding anything contained in this Act, the State Government may, by notification, specify the manner and appoint the competent authority, to collect entry tax in respect of Indian-made foreign liquor and beer on such terms and conditions as may be specified therein. 14. Assessment, collection, etc., of entry tax.--Subject to the provisions of this Act and the Rules made thereunder the administration of this Act in so far as it relates to levy, assessment and collection of entry tax from dealers shall vest in the authorities specified in Section 3 of the VAT Act, and accordingly the authorities for the time being empowered to assess, reassess, collect and enforce payment of any tax under the VAT Act shall assess, reassess, collect and enforce the payment of entry tax including any penalty payable by a dealer under this Act as if the tax or penalty payable by such dealer under this Act or under the provisions of the VAT Act as made applicable under Section 13 to dealers in relation to tax levied under this Act is a tax or penalty payable under that Act and for this purpose they may exercise all or any of the powers conferred upon them by or under that Act. 8. It is apparent from Section 3(1) of the Entry Tax Act that entry tax is leviable from a dealer on the entry of the goods specified in Schedule II into such local area for consumption, use or sale therein as provided in Section 3(1)(a). The Petitioners are "dealers" as defined in Section 2(i) of the VAT Act, is not in dispute. The definition of "dealer" in Section 2(i) is wide and covers the Petitioners in its ambit. It is also not in dispute that goods are beer and Indian-made foreign liquor, specified in Schedule II of the Entry Tax Act and entry is also caused in the local area in the course of business for the purpose of consumption, use or sale therein. What is emphasised by Shri Sumit Nema, learned Counsel appearing for the Petitioners, is that Section 3(1) has twin requirements. Requirement is also that "and such tax shall be paid by every dealer liable to tax under the VAT Act who has effected entry of such goods". What is emphasised by Shri Sumit Nema, learned Counsel appearing for the Petitioners, is that Section 3(1) has twin requirements. Requirement is also that "and such tax shall be paid by every dealer liable to tax under the VAT Act who has effected entry of such goods". The learned Counsel has submitted that turnover of tax-free goods cannot be taken into consideration while determining the liability of VAT under Section 5 of the VAT Act. The "turnover" has been defined in Section 2(z) of the M. P. VAT Act to mean the aggregate of the amount of sale prices received and receivable by a dealer in respect of any sale or supply or distribution of goods made during that period, whether or not the whole or any portion of such turnover is liable to tax. The relevant portion of Section 2(z) of the M. P. VAT Act is quoted below : 2. (z) 'Turnover', in relation to any period means the aggregate of the amount of sale prices received and receivable by a denier in respect of any sale or supply or distribution of goods made during that period, whether or not the whole or any portion of such turnover is liable to tax but after deducting the amount, if any, refunded by the dealer to a purchaser, in respect of any goods purchased and returned by the purchaser within six months from the date of such sale. 9. It is apparent from the main part of the aforesaid definition that turnover has to be taken into consideration irrespective of the fact that whether or not, the whole or any portion of such turnover is liable to tax. Section 5(1) of the VAT Act, 2002 makes clear provision that every dealer whose turnover during a period of twelve months immediately preceding the commencement of this Act exceeds the prescribed limits which shall not exceed rupees five lacs, shall from such commencement be liable to pay lax under the Act in respect of sales or supplies of goods effected by him in Madhya Pradesh. Section 5 of the M. P. VAT Act is quoted below : 5. Section 5 of the M. P. VAT Act is quoted below : 5. Incidence of tax.--(1) Every dealer whose turnover during a period of twelve months immediately preceding the commencement of this Act exceeds the prescribed limits which shall not exceed rupees five lacs, shall from such commencement be liable to pay tax under this Act in respect of sales or supplies of goods effected by him in Madhya Pradesh. Different limits may be prescribed for different category of dealers. (2) Every dealer to whom Sub-section (1) does not apply shall be liable to pay tax under this Act in respect of sales or supplies of goods effected by him in Madhya Pradesh with effect from the date on which his turnover in a year first exceeds the limit prescribed under the said Sub-section but for the purpose of assessment of the tax for that year, only so much of his turnover as is in excess of such limit, shall be taken into consideration. 10. In our opinion turnover under Section 5 has to be worked out as per Section 2(z) of the M. P. VAT Act. 11. In our opinion Section 3 of the Entry Tax Act is the charging provision. Section 3B and Section 14 are machinery provisions. Taxable event is the entry of goods into the local area by the dealer in the course of business. In Bhagatram Rajeev Kumar v. Commissioner of Sales Tax, Madhya Pradesh [1995] 96 STC 654 (SC), their Lordships held that liability to pay sales tax on the goods specified in Schedule II was not an essential ingredient of the levy. The expression "liable to tax" in Section 3 was used to identify the person who was liable to pay the entry tax. It was determinative of the person from whom the tax had to be realised and not of goods which could be subjected to the levy. The tax being on the entry of goods, the taxing event was complete once sugar was brought into the local area by a dealer in the course of business for consumption, use or sale therein. There was no further condition that such goods should have been liable to tax under the Sales Tax Act. The tax being on the entry of goods, the taxing event was complete once sugar was brought into the local area by a dealer in the course of business for consumption, use or sale therein. There was no further condition that such goods should have been liable to tax under the Sales Tax Act. Tax under Section 3 of the Entry Tax Act was on bringing of goods inside the local area by a dealer for consumption, use or sale therein irrespective of whether sales tax was payable on it or not. Therefore, sugar, on which no sales tax was leviable because additional excise duty was payable, would not be beyond the tax net. The apex court in Bhagatram Rajeev Kumar [1995] 96 STC 654, has laid down thus (pages 657-658) : Reliance was placed on the expression 'liable to tax' used in the section and it was urged that the liability being co-related with entry of goods the only reasonable construction of the section was to restrict the levy on those goods on which the dealer was liable to pay tax under the Sales Tax Act. The submission was elaborated by relying on provisions of the Additional Duties of Excise Act, 1957, and it was urged that sugar was one of the goods on which additional excise duty is leviable. Therefore, no sales tax can be levied on it. Consequently, the dealer being not liable to pay tax on such goods no entry tax could be levied on it. A bare reading of the section indicates that the tax is attracted under this section if the following conditions are satisfied : (a) Entry of goods specified in Schedule II. (b) The goods are brought in course of business by a dealer. (c) The goods have been purchased outside the State but they have been brought inside the State in a local area. (d) For consumption, use or sale. Liability to pay sales tax on the goods specified in Schedule II is thus not an essential ingredient of levy. The expression 'liable to tax' has been used to identify the person who shall pay the entry tax. To put it conversely if any goods mentioned in Schedule II are brought from outside the State by a person who is not liable to tax under the Sales Tax Act then entry tax shall not be realised from such person. The expression 'liable to tax' has been used to identify the person who shall pay the entry tax. To put it conversely if any goods mentioned in Schedule II are brought from outside the State by a person who is not liable to tax under the Sales Tax Act then entry tax shall not be realised from such person. The intention is to levy tax only when the goods are brought inside the State by a dealer carrying on business whose turnover is not less than Rs. 1,000 annually and not by any other person. In other words, the tax is leviable on all goods specified in Schedule II brought for consumption, use or sale ; but it shall be realised only from those persons who are dealers registered under the Sales Tax Act and are liable to pay tax. The expression 'liability to tax' is determinative of the person from whom the tax shall be realised and not of the goods which could be subjected to levy. The construction suggested by the learned Counsel for the Appellant militates against the clear language of the section as the levy being on goods specified in Schedule II if the submission is accepted then it would result in non-levy on those items on which additional excise duty is leviable. That goods were brought by the Appellants who are dealers in course of business for consumption, use or sale therein, was not disputed. Nor it is disputed that they are liable to pay tax under the Sales Tax Act. If that be so, then there appears no escape from the conclusion that they are liable to pay entry tax under this section. The Appellants claim to be dealers of sugar which is specified in Schedule II. The tax being on entry of goods the taxing event was complete once sugar was brought into the local area by a dealer in course of business for consumption, use or sale therein. This could not be diluted or negatived by subjecting it to another condition that such goods should have been liable to tax under the Sales Tax Act. That would be misreading of Section 3. The charge or incidence of tax is different from realisation of it. A levy may be valid and good and yet it may remain ineffective if there is no machinery provision. That would be misreading of Section 3. The charge or incidence of tax is different from realisation of it. A levy may be valid and good and yet it may remain ineffective if there is no machinery provision. But the provision for realisation of tax from the dealer who effects the entry of goods does not make it a condition for the levy of tax. Tax under Section 3 is on bringing of goods inside the local area by a dealer for consumption, use or sale therein irrespective of whether sales tax is payable on it or not. Therefore, sugar on which no sales tax is leviable because additional excise duty is payable would not be beyond the taxing net. 12. In view of the aforesaid decision in which decision of this Court in Sanjay Trading Co. v. Commissioner of Sales Tax [1994] 93 STC 589 ; [1994] 27 VKN 76 has been affirmed, we find that Section 3 is the charging section and the words used in later part of Section 3(1) that such tax shall be paid by every dealer liable to pay tax under VAT Act, is only for identifying the person who is liable to pay the entry tax as laid down by the apex court. The Division Bench of this Court in Sanjay Trading Co. v. Commissioner of Sales Tax [1994] 93 STC 589 ; [1994] 27 VKN 76 has held that once the goods are covered by Section 3 of the Entry Tax Act, the dealers of such goods are liable to pay the entry tax. 13. The essential three ingredients for levy of tax are clear, goods are specified in Schedule II along with the rates. The person who is liable to pay is also specified. The subject of the tax is clear, the person who is liable is clear and rates have also been specified in Section 3 read with Schedule II of the Entry Tax Act, thus charging provision of Section 3 of the Entry Tax Act is complete in itself. Remaining part is that of recovery for that we find two provisions, one is the provision contained in Section 3B and other general provision is Section 14 of the Entry Tax Act. 14. Remaining part is that of recovery for that we find two provisions, one is the provision contained in Section 3B and other general provision is Section 14 of the Entry Tax Act. 14. Shri Sumit Nema has placed reliance on a decision of Govind Saran Ganga Saran v. Commissioner of Sales Tax [1985] 60 STC 1 : [1985]155 ITR 144 (SC), in which the apex court has laid down the components which enter into concept of tax ; first is the character of the imposition known by its nature which prescribes the taxable event attracting the levy, second is clear indication of the person on whom the levy is imposed and who is obliged to pay the tax, third is the rate at which the tax is imposed and the fourth is the measure or value to which rate will be applied for computing the tax liability. Section 3 read with Second Schedule of the Entry Tax Act clears the aforesaid test, it culls out with specification when entry tax is liable to be paid, the event is the entry into the local area for the purpose mentioned in the said provision. The person by whom the tax is payable and upon whom the levy is imposed, has also been clearly mentioned. The rate has been specified in Schedule II to the Entry Tax Act along with measure or value. The value of the goods has been defined in Section 2(1) of the Entry Tax Act in relation to a dealer or any person who causes entry of goods into the local area. We find that by prescribing rate of two per cent, reference is to the value of the goods. There is no ambiguity in the provisions. Non obstante clause which has been referred to in Govind Saran Ganga Saran [1985] 60 STC 1 (SC): [1985]155 ITR 144 (SC) had different object to be achieved. The necessary ingredients for charging the tax are three, as reiterated in Mathuram Agrawal v. State of Madhya Pradesh [1999] 8 SCC 667. Their Lordships have laid down thus : 12. . . . The statute should clearly and unambiguously convey the three components of the tax law, i.e., the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. Their Lordships have laid down thus : 12. . . . The statute should clearly and unambiguously convey the three components of the tax law, i.e., the subject of the tax, the person who is liable to pay the tax and the rate at which the tax is to be paid. If there is any ambiguity regarding any of these ingredients in a taxation statute then there is no tax in law. Then it is for the Legislature to do the needful in the matter. 15. As already discussed by us, all the three aforesaid components are present when Section 3 is read with the Second Schedule. 16. Shri Sumit Nema, learned Counsel, has contended that for want of computation machinery, as no notification under Section 3B has been issued, the entry tax on foreign liquor, and beer cannot be collected. He has also submitted that by implication or intendment, it is not permissible to collect the entry tax. He has relied upon the decision of State of West Bengal v. Kesoram Industries Ltd. [2004] 10 SCC 201 laying down that the taxing statute cannot be interpreted on any presumption or assumption. The taxing statute has to be interpreted in the light of what is clearly expressed, it cannot imply anything which is not expressed. Tax must be clearly leviable within the ambit of charging section by clear words. In case of ambiguity, benefit goes to the subject. He has also relied upon Principle of Statutory Interpretation, eight edition by Shri Justice G.P. Singh to submit that there is no room for intendment, there is no equity about a tax and there is no presumption as to tax. There is no dispute as to the aforesaid preposition. In the instant case the charging provision cannot be said to be Section 3B of the Entry Tax Act but the Section 3(1) is the charging provision. 17. Shri Sumit Nema has placed reliance on a decision of the apex court in Commissioner of Income Tax, Madras v. Ajax Products Ltd. [1965]55 ITR 741, in which it has been laid down that the subject is not to be taxed unless the charging provision clearly imposes the obligation. In Commissioner of Income Tax, Bombay City v. Provident Investment Co. Shri Sumit Nema has placed reliance on a decision of the apex court in Commissioner of Income Tax, Madras v. Ajax Products Ltd. [1965]55 ITR 741, in which it has been laid down that the subject is not to be taxed unless the charging provision clearly imposes the obligation. In Commissioner of Income Tax, Bombay City v. Provident Investment Co. Ltd. [1957]32 ITR 180, it has been laid down that if the Revenue satisfies the court that a case falls strictly within the provisions of the law, the subject can be taxed. If, on the other hand, the case is not covered within the four corners of the provisions of the taxing statute, no tax can be imposed by inference or analogy or by trying to probe into the intentions of the Legislature and by considering what was the substance of the matter. In our opinion, provision of Section 3 is clear and recovery is within four corners of law. 18. Shri Sumit Nema, learned Counsel, has placed reliance on a decision of the apex court in Commissioner of Income Tax, Bangalore v. B.C. Srinivasa Setty [1981]128 ITR 294 : AIR 1981 SC 972 to contend that even assuming that the provision of Section 3B is taken to be computing provision, it would not be possible to determine the tax payable, thus charging Section 3 is wholly dependent upon notification to be issued under Section 3B as to the manner of collection of tax, competent authority to collect it and for terms and conditions. In Commissioner of Income Tax, Bangalore v. B.C. Srinivasa Setty [1981]128 ITR 294 : AIR 1981 SC 972 , the apex court has laid down thus (at page 299 of ITR) : 10. . . . The character of the computation provisions in each case bears a relationship to the nature of the charge. Thus, the charging section and the computation provisions together constitute an integrated code. When there is a case to which the computation provisions cannot apply at all, it is evident that such a case was not intended to fall within the charging section. Otherwise, one would be driven to conclude that while a certain income seems to fall within the charging section there is no scheme of computation for quantifying it. The legislative pattern discernible in the Act is against such a conclusion. Otherwise, one would be driven to conclude that while a certain income seems to fall within the charging section there is no scheme of computation for quantifying it. The legislative pattern discernible in the Act is against such a conclusion. It must be borne in mind that the legislative intent is presumed to run uniformly through the entire conspectus of provisions pertaining to each head of income. No doubt there is a qualitative difference between the charging provision and a computation provision. And ordinarily the operation of the charging provision cannot be affected by the construction of a particular computation provision. But the question here is whether it is possible to apply the computation provision at all if a certain interpretation is pressed on the charging provision. That pertains to the fundamental integrality of the statutory scheme provided for each head. 19. In the instant cases, in view of other provisions of the Entry Tax Act particularly Section 14, in our opinion, absence of notification under Section 3B cannot come in the way of validity of charging Section 3 of the Entry Tax Act and render it inoperative. Validity of the charging section has also not been assailed in the instant petitions. The effect of non obstante clause is not to oust the applicability of other provisions of the Act where they can be applied. It is only when notification is issued under Section 3B prescribing special manner and authority, terms and conditions which are not provided for in Section 14 and are covered by notification under Section 3B, Section 14 would have no application to the extent special provision is made. In our opinion, in the absence of notification under Section 3B prescribing special procedure for collection of entry tax upon the foreign liquor and beer, the general machinery provision of Section 14 is clearly attracted. Section 14 is machinery provision and entry tax is being realised on foreign liquor and beer and on other items under the said provision. The apex court in A.V. Fernandez v. State of Kerala [1957] 8 STC 561: AIR 1957 SC 657 on consideration of its previous decision in Aswini Kumar Chose v. Arabinda Bose [1953] SCR 1 has observed that effect of non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment. The apex court in A.V. Fernandez v. State of Kerala ; [1957] 8 STC 561: AIR 1957 SC 657 has held thus (at page 572 of STC) : 36. What then, is the effect of this non obstante provision ? This Court in Aswini Kumar Ghosh v. Arabinda Bose [1953] SCR 1 : AIR 1952 SC 369 at page 376(E), made the following observations in connection with the non obstante clause : 'It should first be ascertained what the enacting part of the section provides on a fair construction of the words used according to their natural and ordinary meaning, and the non obstante clause is to be understood as operating to set aside as no longer valid anything contained in relevant existing laws which is inconsistent with the new enactment.' The same ratio applies to the construction of the non obstante provision contained in Section 26 of the Act with reference to all the other provisions of the Act that preceded the same. 20. Shri Sumit Nema, has relied upon the decision in Union of India v. G.M. Kokil AIR 1984 SC 1022 , in which effect of non obstante clause has been considered by the apex court thus: 10. . . Thus the non obstante clause in Section 70, namely, 'notwithstanding anything in that Act' must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. In other words, as all the relevant provisions of the Act are made applicable to a factory notwithstanding anything to the contrary contained in it, it must have the effect of excluding the operation of the exemption provisions. . . 21. Shri R.D. Jain, learned Advocate-General on behalf of the State has relied upon the decision in A.G. Varadarajulu v. State of Tamil Nadu AIR 1998 SC 1388 , in which the apex court has considered the effect of non obstante clause and laid down that to what extent other provisions of the Act are not to be given effect to is to be seen by reading the enacting part of section. In Maharajadhiraja Madhav Rao Sivaji Rao Scindia Bahadur v. Union of India AIR 1971 SC 530 the apex court has observed that non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but "for that reason alone we must determine the scope" of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. The apex court in A.G. Varadarajulu v. State of Tamil Nadu AIR 1998 SC 1388 has laid down thus : 16. It is well-settled that while dealing with a non obstante clause under which the Legislature wants to give overriding effect to a section, the court must try to find out the extent to which the Legislature had intended to give one provision overriding effect over another provision. Such intention of the Legislature in this behalf is to be gathered from the enacting part of the section. In Aswini Kumar Ghose v. Arabinda Bose AIR 1952 SC 369 , Patanjali Sastri, J. observed: 'The enacting part of a statute must, where it is clear, be taken to control the non obstante clause where both cannot be read harmoniously'. In Maharajadhiraja Madhav Rao Sivaji Rao Scindia Bahadur v. Union of India [1971] 1 SCC 85: AIR 1971 SC 530 , Hidayatullah, C. J. observed that the non obstante clause is no doubt a very potent clause intended to exclude every consideration arising from other provisions of the same statute or other statute but 'for that reason alone we must determine the scope' of that provision strictly. When the section containing the said clause does not refer to any particular provisions which it intends to override but refers to the provisions of the statute generally, it is not permissible to hold that it excludes the whole Act and stands all alone by itself. 'A search has, therefore, to be made with a view to determining which provision answers the description and which does not'. 22. 'A search has, therefore, to be made with a view to determining which provision answers the description and which does not'. 22. In our opinion, as Section 14 deals with the assessment and collection of entry tax and State has chosen not to issue notification under Section 3B by enacting special procedure for collection of entry tax on foreign liquor, it is open to the State to recover as per general procedure prescribed in Section 14. We do not find any legal impediment for applicability of the provision of Section 14 as under Section 3B no notification to the contrary or otherwise has been issued by the State Government so as to override the procedure provided in Section 14. When something is required to be done so as to bring the non obstante clause into play, till that thing has been done, non obstante clause would not come into play. Thus in the instant case we are of the considered opinion that charging section is Section 3(1) and in the absence of notification under Section 3B which is a machinery provision, State can recover the entry tax as per general machinery provided under Section 14. 23. It is settled preposition of law that for want of machinery provision, levy cannot become invalid. Even if the rules have not been framed under the Act, levy can still hold good. 24. The apex court in Commissioner of Central Excise, Lucknow, U. P. v. Chhata Sugar Co. Ltd. [2004] 3 SCC 466 has laid down that Section 3(1) of the Central Excise Act, 1944 is a charging section which creates liability to pay excise duty on the goods produced or manufactured in India and the said Sub-section clearly indicates the nature and character of the duty, namely, that it is a tax on production and manufacture of goods, while Section 4 is in the nature of machinery provision and, therefore, anything said therein must be read so as to carry out the basic concept of excise duty. 25. In State of West Bengal v. Road Transport Association, Siliguri [2003] 131 STC 1 (SC) : [2003] 3 SCC 593, the apex court has laid down that not providing any pro forma for declaring particulars under the explanation would neither make it vague nor unworkable for want of any machinery provision. 25. In State of West Bengal v. Road Transport Association, Siliguri [2003] 131 STC 1 (SC) : [2003] 3 SCC 593, the apex court has laid down that not providing any pro forma for declaring particulars under the explanation would neither make it vague nor unworkable for want of any machinery provision. The apex court has held thus (at pages 3 and 5 of 131 STC) : 3. The Tribunal took the view that Explanation 1 to Section 2(1a-1) of the Act is valid but vague and that there is no machinery provision specifying the manner of disclosure and, therefore, suspended the operation of the said Explanation till a machinery for that purpose is provided ; it was held that Sub-sections (6) and (7) of Section 4C of the Act were invalid and unconstitutional and consequently, Sub-rule (4) of Rule 48L was also invalid. The application of the Respondents was thus allowed by the Tribunal by the order under challenge. 8. A perusal of the definition clause and Explanation 1 shows that there is no ambiguity in them. The requirements of the Explanation are clear enough. Not providing any pro forma for declaring particulars under the explanation would neither make it vague nor unworkable for want of any machinery provision. It cannot be disputed that a prescribed pro forma would have been appropriate but absence of a pro forma for making the required declaration would not warrant suspension of the said Explanation. We find no substance in the reasoning of the Tribunal and therefore set aside the finding of the Tribunal in regard to Explanation 1. 26. Shri Sumit Nema has also relied upon the decision of the apex court in Subhash Ramkumar Bind @ Vakil v. State of Maharashtra AIR 2003 SC 269 to contend that when notification is required to be issued, it has to be issued in official gazette, administrative instructions cannot be a substitute for a notification. There is no dispute with the aforesaid proposition. Notification has to be issued in official gazette. However, in the instant case Section 14 lays down the general procedure for collection of entry tax. In the absence of notification, the procedure prescribed under Section 14 can be resorted to. 27. Shri Sumit Nema has further submitted that Section 3B cannot be rendered otiose in case Section 14 is resorted to as machinery provision. However, in the instant case Section 14 lays down the general procedure for collection of entry tax. In the absence of notification, the procedure prescribed under Section 14 can be resorted to. 27. Shri Sumit Nema has further submitted that Section 3B cannot be rendered otiose in case Section 14 is resorted to as machinery provision. As no steps have been taken by the State Government by issuance of notification under Section 3B by providing special machinery for recovery, special terms and conditions, manner and authority, in our opinion the provision of Section 3B remains inoperative, there is no question of it being rendered otiose till such time notification is issued, recovery of entry tax can be made by taking resort to Section 14. 28. Shri Sumit Nema, has further submitted that even otherwise recovery can be made from the retailers of the entry tax. As the retailers are not before us, we are not inclined to examine the aforesaid question in the instant matters. He has further submitted that in case amount has been paid by the Petitioner, credit of amount may be ordered, in our opinion such a plea has to be raised before the concerned authority, not before us. 29. Resultantly, we are of the opinion that it is open to the State Government to recover the entry tax from the Petitioners in view of Section 3, Second Schedule read with Section 14 of the Entry Tax Act. Want of issuance of notification under Section 3B of the said Act does not come in the way of invoking the general machinery for realisation of the entry tax. We do not find any merits in these petitions. Writ petitions being devoid of merits are hereby dismissed. However, we leave the parties to bear their own costs as incurred.