JUDGMENT : K.S. Jhaveri, J. Since the issues involved in all these writ petitions are similar in nature, as agreed upon by learned counsel for the parties, all these writ petitions are taken up together for analogous hearing and to decide the same by a common judgment. For the sake of convenience of discussion, on the request of the parties involved in the cases, W.P.(C) No.12373 of 2003 is taken up as the leading case for hearing. 2. By way of these writ petitions, the petitioners have challenged the levy and collection of Orissa Forest Development Tax under Section 3 of The Orissa Forest Development (Tax on sale of forest produce by Government of Orissa Forest Development Corporation) Ordinance, 2003 vide Orissa Ordinance No. 3 of 2003, dated 18.07.2003, which has been subsequently enacted into an Act i.e. The Orissa Forest Development (Tax on sale of forest produce by Government or Orissa Forest Development Corporation) Act, 2003 on 8.12.2003 i.e. Orissa Act 18 of 2003 (for short "the Act, 2003") making it effective from 18.07.2003. Petitioners have further challenged the levy of the tax with effect from 18.07.2003 on the ground that the rate of tax has been notified only with effect from 30.07.2003. 3. The relevant provisions for our consideration are the definitions under Sections 2(d) and 2(g) and sub-sections (1),(2) and (3) of Section 3, and Section 6 of the Act, 2003. The rate of tax prescribed vide Notification dated 30.07.2003, is as follows: 4. Further a letter was issued on 24.09.2003 by the Chairman-cum-Managing Director of Orissa Forest Development Corporation to all the Divisional manager (KL) and others of Orissa Forest Development Corporation Ltd., where a clarification has been issued. Relevant portion in paragraph-2 of the said letter reads as under: "(2) Now it has been clarified by the Laws Department and communicated vide F&E Department letter No. 14527/F&E dated 30.8.2003 that exemption granted under article 286(I)(b) of the Constitution of India and the provisions of Section 5 of the C.S.T. Act would be applicable in all appropriate cases. Hence, sales in course of export would be exempted of Forest Development Tax, if such sales satisfy the condition laid down under Section 5 (Sub-Section (3) of C.S.t. Act. Hence, sales in course of export would be exempted of Forest Development Tax, if such sales satisfy the condition laid down under Section 5 (Sub-Section (3) of C.S.t. Act. For this purpose, the facts and circumstances of each individual case are to be verified and if the provisions of Section 5(3) of the C.S.T. Act are satisfied, exemption of E.D.T. can be allowed." 5. Mr. R.K. Rath, learned Senior Counsel appearing for the petitioner along with Mr. R.P. Kar & Mr. A.N. Ray, taking lead on behalf of the other counsel for petitioners, in course of argument, has mainly contended that the State legislation in question itself is not competent to levy tax on inter-state sale which has been carried on by the petitioners. Sl. No. Name of Forest Produce Rate of Forest Development Tax 1. Bamboo 1% 2. Timber 4% 3. Kendu Leaf 16% 5.1 The nature of sale by the Orissa Forest Development Corporation Ltd. (OFDC Ltd.) has been declared to be an interState sale in an earlier judgment which came to be delivered by this Court in OJC No.9724 of 2000 and batch of writ petitions reported in 2001 (I) OLR-586. The said judgment was confirmed by Hon'ble the Supreme Court in State of Orissa and another v. K.B.Saha and Sons Industries (P) Ltd. and others, (2007) 9 SCC 97 . 5.2 It is contended by the learned Sr. Counsel for the petitioners that with the aim to overcome the effect of the judgment of this Court and pending SLP before the Hon'ble Supreme Court during the relevant point of time, an Ordinance came to be issued in 2003 which is in contravention of Entry 54 List-II of the VIIth Schedule of Constitution of India. 5.3 It is submitted by the learned Sr. Counsel for the petitioners that the Act,2003 being one under Entry-54 of ListII, no tax can be collected on inter-state sale which falls under Entry-92A of List-I. Learned Sr. Counsel placed reliance on Entry-54, List -II and Entry-92A of List-I of the VIIth Schedule of the Constitution of India, which read as under: List-IIEntry-54:- "Taxes on the sale or purchase of goods other than newspapers, subject to the provisions of entry 92A of List I." List-IEntry-92A: "Taxes on the sale or purchase of goods other than newspapers, where such sale or purchase takes place in the course of inter State trade or commerce." 6. In view of the above, learned Sr. Counsel for the petitioners contended that there is no power vested with the State Government to enact such law, under Entry-54 of List-II, which is covered under Entry 92A of List-I. In support of such submission, learned Sr. Counsel for the petitioners has strongly relied upon the following decisions of the Hon'ble Supreme Court as mentioned below. 6.1 Learned Sr. Counsel placed reliance on the decision of the Supreme Court in Gujarat University and another v. Shri Krishana Ranganath Mudhokar and others, (1963) AIR SC 703 at paragraph 23, which reads as under: "23. Power of the Bombay Provincial Legislature to enact the Gujarat University Act was derived from Entry 17 of the Government of India Act, 1935, List II of the Seventh Schedule - "Education including Universities other than those specified in para 13 of List I". In List I Item 13 were included the Banaras Hindu University and the Aligarh Muslim University. Therefore, except to the extent expressly limited by Item 17 of List II read with Item 13 of List I, a Provincial Legislature was invested with plenary power to enact legislation in respect of all matters pertaining to education including education at University level. The expression "education" is of wide import and includes all matters relating to imparting and controlling education; it may therefore have been open to the Provincial Legislature to enact legislation prescribing either a federal or a regional language as an exclusive medium for subjects selected by the University. If by Section 4(27) the power to select the federal or regional language as an exclusive medium of instruction had been entrusted by the legislature to the University, the validity of the impugned statutes 207, 208 and 209 could not be open to question. But the legislature did not entrust any power to the University to select Gujarati or Hindi as an exclusive medium of instruction under Section 4(27). By the Constitution a vital change has been made in the pattern of distribution of legislative power relating to education between the Union Parliament and the State Legislatures. By Item 11 of List II of the Seventh Schedule to the Constitution, the State Legislature has power to legislate in respect of "education including Universities subject to the provisions of Items 63, 64, 65 and 66 of List I and 25 of List III". By Item 11 of List II of the Seventh Schedule to the Constitution, the State Legislature has power to legislate in respect of "education including Universities subject to the provisions of Items 63, 64, 65 and 66 of List I and 25 of List III". Item 63 of List I replaces with modification Item 13 of List I to the Seventh Schedule of the Government of India Act, 1935. Power to enact legislation with respect to the institutions known at the commencement of the Constitution as the Benaras Hindu University, the Aligarh Muslim University and the Delhi University, and other institutions declared by Parliament by laws to be an institution of national importance is thereby granted exclusively to Parliament. Item 64 invests the Parliament with power to legislate in respect of "institutions for scientific or technical education financed by the Government of India wholly or in part and declared by Parliament, by law, to be institutions of national importance". Item 65 vests in the Parliament power to legislate for "Union agencies and institutions for - (a) professional, vocational or technical training, including the training of police officers; or (b) the promotion of special studies or research; or (c) scientific or technical assistance in the investigation or detection of crime". By Item 66 power is entrusted to Parliament to legislate on "coordination and determination of standards in institutions for higher education or research and scientific and technical institutions. Item 25 of the Concurrent List confers power upon the Union Parliament and the State Legislatures to enact legislation with respect to "vocational and technical training of labour". It is manifest that the extensive power vested in the Provincial Legislatures to legislate with respect to higher, scientific and technical education and vocational and technical training of labour, under the Government of India Act is under the Constitution controlled by the five items in List I and List III mentioned in Item 11 of List II. Items 63 to 66 of List I are carved out of the subject of education and in respect of these items the power to legislate is vested exclusively in the Parliament. Use of the expression "subject to" in Item 11 of List 11 of the Seventh Schedule clearly indicates that legislation in respect of excluded matters cannot be undertaken by the State Legislatures. Use of the expression "subject to" in Item 11 of List 11 of the Seventh Schedule clearly indicates that legislation in respect of excluded matters cannot be undertaken by the State Legislatures. In Hingir Rampur Coal Company v. State of Orissa, (1961) 2 SCR 537 this Court in considering the import of the expression "subject to" used in an entry in List II, in relation to an entry in List I observed that to the extent of the restriction imposed by the use of the expression "subject to" in an entry in List II, the power is taken away from the State Legislature. Power of the State to legislate in respect of education including Universities must to the extent to which it is entrusted to the Union Parliament, whether such power is exercised or not, be deemed to be restricted. If a subject of legislation is covered by Items 63 to 66 even if it otherwise falls within the larger field of "education including Universities" power to legislate on that subject must lie with the Parliament. The plea raised by counsel for the University and for the State of Gujarat that legislation prescribing the medium or media in which instruction should be imparted in institutions of higher education and in other institutions always falls within Item 11 of List II has no force. If it be assumed from the terms of Item 11 of List II that power to legislate in respect of medium of instruction falls only within the competence of the State Legislature and never in the excluded field, even in respect of institutions mentioned in Items 63 to 65, power to legislate on medium of instruction would rest with the State, whereas legislation in other respects for excluded subjects would fall within the competence of the Union Parliament. Such an interpretation would lead to the somewhat startling result that even in respect of national institutions or Universities of national importance, power to legislate on the medium of instruction would vest in the legislature of the States within which they are situate, even though the State Legislature would have no other power in respect of those institutions. Item 11 of List II and Item 66 of List I must be harmoniously construed. Item 11 of List II and Item 66 of List I must be harmoniously construed. The two entries undoubtedly overlap: but to the extent of overlapping, the power conferred by Item 66 List I must prevail over the power of the State under Item 11 of List II. It is manifest that the excluded heads deal primarily with education in institutions of national or special importance and institutions of higher education including research, sciences, technology and vocational training of labour. The power to legislate in respect of primary or secondary education is exclusively vested in the States by Item 11 of List II, and power to legislate on medium of instruction in institutions of primary or secondary education must therefore rest with the State Legislatures. Power to legislate in respect of medium of instruction is, however, not a distinct legislative head; it resides with the State Legislatures in which the power to legislate on education is vested, unless it is taken away by necessary intendment to the contrary. Under Items 63 to 65 the power to legislate in respect of medium of instruction having regard to the width of those items, must be deemed to vest in the Union. Power to legislate in respect of medium of instruction, insofar it has a direct bearing and impact upon the legislative head of coordination and determination of standards in institutions of higher education or research and scientific and technical institutions, must also be deemed by Item 66 List I to be vested in the Union." 6.2 Reliance has also been placed on the decision of the Supreme Court in the case of The Hingir-Rampur Coal Co., Ltd. and others v. The State of Orissa and others, (1961) AIR SC 459 at paragraphs 23 and 24 of the report, which reads as under: "23. The next question which arises is, even if the cess is a fee and as such may be relatable to Entries 23 and 66 in List II its validity is still open to challenge because the legislative competence of the State Legislature under Entry 23 is subject to the provisions of List I with respect to regulation and development under the control of the Union; and that takes us to Entry 54 in List I. This Entry reads thus: "Regulation of mines and mineral development to the extent to which such regulation and development under the control of the Union is declared by Parliament by law to be expedient in the public interest". The effect of reading the two Entries together is clear. The jurisdiction of the State Legislature under Entry 23 is subject to the limitation imposed by the latter part of the said Entry. If Parliament by its law has declared that regulation and development of mines should in public interest be under the control of the Union, to the extent of such declaration the jurisdiction of the State Legislature is excluded. In other words, if a Central Act has been passed which contains a declaration by Parliament as required by Entry 54, and if the said declaration covers the field occupied by the impugned Act the impugned Act would be ultra vires, not because of any repugnance between the two statutes but because the State Legislature had no jurisdiction to pass the law. The limitation imposed by the latter part of Entry 23 is a limitation on the legislative competence of the State Legislature itself. This position is not in dispute. 24. It is urged by Mr Amin that the field covered by the impugned Act has already been covered by the Mines and Minerals (Regulation and Development) Act, 1948, (53 of 1948) and he contends that in view of the declaration made by Section 2 of this Act the impugned Act is ultra vires. This Central Act was passed to provide for the regulation of mines and oil fields and for the development of minerals. It may be stated at this stage that by Act 67 of 1957 which has been subsequently passed by Parliament, Act 53 of 1948 has now been limited only to oil fields. This Central Act was passed to provide for the regulation of mines and oil fields and for the development of minerals. It may be stated at this stage that by Act 67 of 1957 which has been subsequently passed by Parliament, Act 53 of 1948 has now been limited only to oil fields. We are, however, concerned with the operation of the said Act in 1952, and at that time it applied to mines as well as oil fields. Section 2 of the Act contains a declaration as to the expediency and control by the Central Government. It reads thus: "It is hereby declared that it is expedient in the public interest that the Central Government should take under its control the regulation of mines and oil fields and the development of minerals to the extent hereinafter provided". It is common ground that at the relevant time this Act applied to coal mines. Section 4 of the Act provides that no mining lease shall be granted after the commencement of this Act otherwise than in accordance with the rules made under this Act. Section 5 empowers the Central Government to make rules by notification for regulating the grant of mining leases or for prohibiting the grant of such leases in respect of any mineral or in any area. Sections 4 and 5 thus purport to prescribe necessary conditions in accordance with which mining leases have to be executed. This part of the Act has no relevance to our present purpose. Section 6 of the Act, however, empowers the Central Government to make rules by notification in the Official Gazette for the conservation and development of minerals. Section 6(2) lays down several matters in respect of which rules can be framed by the Central Government. This power is, however, without prejudice to the generality of powers conferred on the Central Government by Section 6(1). Amongst the matters covered by Section 6(2) is the levy and collection of royalties, fees or taxes in respect of minerals mined, quarried, excavated or collected. It is true that no rules have in fact been framed by the Central Government in regard to the levy and collection of any fees; but, in our opinion, that would not make any difference. It is true that no rules have in fact been framed by the Central Government in regard to the levy and collection of any fees; but, in our opinion, that would not make any difference. If it is held that this Act contains the declaration referred to in Entry 23 there would be no difficulty in holding that the declaration covers the field of conservation and development of minerals, and the said field is indistinguishable from the field covered by the impugned Act. What Entry 23 provides is that the legislative competence of the State Legislature is subject to the provisions of List I with respect to regulation and development under the control of the Union, and Entry 54 in List I requires a declaration by Parliament by law that regulation and development of mines should be under the control of the Union in public interest. Therefore, if a Central Act has been passed for the purpose of providing for the conservation and development of minerals, and if it contains the requisite declaration, then it would not be competent to the State Legislature to pass an Act in respect of the subject-matter covered by the said declaration. In order that the declaration should be effective it is not necessary that rules should be made or enforced; all that this required is a declaration by Parliament that it is expedient in the public interest to take the regulation and development of mines under the control of the Union. In such a case the test must be whether the legislative declaration covers the field or not. Judged by this test there can be no doubt that the field covered by the impugned Act is covered by the Central Act 53 of 1948." 6.3. Reliance has also been placed at paragraphs 14,15,17,18 and 19 of the decision of the Supreme Court in Bharat Coking Coal Ltd. v. State of Bihar and others, (1990) 4 SCC 557 , which reads thus: "14. Articles 245 and 246 of the Constitution read with Seventh Schedule and the legislative lists therein prescribe the extent of legislative competence of Parliament and State legislature. Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule. Similarly, State legislature has exclusive power to make laws with respect to any of the matters enumerated in List II. Parliament has exclusive power to make laws with respect to any of the matters enumerated in List I in the Seventh Schedule. Similarly, State legislature has exclusive power to make laws with respect to any of the matters enumerated in List II. Parliament and the State legislature both have legislative power to make laws with respect to any matter enumerated in List III, the Concurrent List. This is the legislative scheme under the Constitution, but certain matters of legislation are overlapping which present difficulty. The subject matter of legislation with respect to regulation of mines and mineral development is enumerated under Entry 23 of List II and Entry 54 of List I. These entries are as under: "23. Regulation of mines and mineral development subject to the provisions of List I with respect to regulation and development under the control of the Union." "54. Regulation of mines and mineral development to the extent to which such regulation and development under the control of Union is declared by Parliament by law to be expedient in the public interest." 15. The State legislature is competent to enact law for the regulation of mines and mineral development under Entry 23 of State List but this power is subject to the declaration which may be made by Parliament by law as envisaged by Entry 54 of Union List. Thus the legislative competence of the State legislature to make law on the topic of mines and mineral is subject to Parliamentary legislation. The Parliament has enacted the Mines and Minerals (Regulation and Development) Act, 1957. By Section 2 of the Act the Parliament has declared that it is expedient in public interest that the Union should take under its control the regulation of mines and the development of minerals to the extent provided in the Act. In view of Parliamentary declaration as made in Section 2 of the Act, the State legislature is denuded of its legislative power to make any law with respect to the regulation of mines and mineral development to the extent as provided by the Act. In order to ascertain the extent of Parliamentary declaration, it is necessary to have a glance at the provision of the Act. Section 3 of the Act defines various expressions occurring in the Act. Sections 4 to 9 prescribe restrictions on undertaking, prospecting and mining operations under licence or lease. In order to ascertain the extent of Parliamentary declaration, it is necessary to have a glance at the provision of the Act. Section 3 of the Act defines various expressions occurring in the Act. Sections 4 to 9 prescribe restrictions on undertaking, prospecting and mining operations under licence or lease. Sections 10 to 12 prescribe procedure for obtaining prospecting licences or mining leases in respect of the land in which minerals vest in government. Sections 13 to 16 provide for framing of rules for regulating the grant of prospecting licences or mining leases. In particular Section 13 empowers the Central Government to make rules for regulating the grant of prospecting licences and mining leases in respect of minerals and for the purposes connected therewith. Section 13(2) lays down that rules may provide for all or any of the matters as enumerated under various clauses therein. Clause (o) of Section 13(2) before its amendment by the Amending Act 37 of 1986 conferred power on the Central Government to frame rules for the disposal or discharge of any tailings, slime or other waste products arising from any mining or metallurgical operations carried out in a mine. This provision empowered the Central Government to frame rules for the disposal of waste products or effluent discharge from mines including a coal mine. Section 14 makes the provisions of Sections 4 to 13 inapplicable to minor minerals. Section 15 empowers the State Government to make rules for regulating the grant of quarry leases, mining leases and other mineral concessions in respect of minor minerals and purposes connected therewith. Since in the instant cases, we are not concerned with the minor minerals, it is not necessary to deal with the question in detail. Section 17 confers special powers on Central Government to undertake prospecting or mining operations in certain lands. Sections 18 and 18-A relate to the development of minerals. Sections 19 to 33 deal with miscellaneous matters. 17. The aforesaid analysis of the provisions of the Act makes the extent of Parliamentary declaration clear that the disposal and discharge of sludge or slurry emanating or coming from the washery of a coal mine is exclusively within the legislative power of Parliament. The Act further provides that the Central Government has exclusive power to frame any rule either under Section 13(2)(o) or under the amended Section 18(2)(k) of the Act regulating disposal of slurry. The Act further provides that the Central Government has exclusive power to frame any rule either under Section 13(2)(o) or under the amended Section 18(2)(k) of the Act regulating disposal of slurry. The effect of the Parliamentary declaration as contained in the Act is that the matters referred to in the declaration, stand abstracted from List II and those become matters of legislation in List I of the Seventh Schedule. As a result of the declaration made by Parliament, under Section 2 of the Act, the State legislature is denuded of its legislative power with respect to the regulation of mines and mineral development and the entire legislative field has been taken over by Parliament. In Baijnath Kedia v. State of Bihar, (1969) 3 SCC 838 : (1970) 2 SCR 100 ] this Court dealing with the extent of Parliament's declaration made under Section 2 of the Act, observed as follows: (SCC p. 847, para 13) "To what extent such a declaration can go is for Parliament to determine and this must be commensurate with public interest. Once this declaration is made and the extent laid down, the subject of legislation to the extent laid down becomes an exclusive subject for legislation by Parliament. Any legislation by the State after such declaration and trenching upon the field disclosed in the declaration must necessarily be unconstitutional because that field is abstracted from the legislative competence of the State legislature." This Court has consistently taken this view in Hingir-Rampur Coal Co. Ltd. v. State of Orissa, (1961) 2 SCR 537 : AIR 1961 SC 459 ] , State of Orissa v. M.A. Tulloch & Co., (1964) 4 SCR 461 : AIR 1964 SC 1284 ] , State of Tamil Nadu v. Hind Stone, (1981) 2 SCC 205 : (1981) 2 SCR 742 ] . 18. The Central Government has not framed any rule either under Section 13 or under Section 18 of the Act. Does it affect the legal position as discussed earlier? The answer must be in the negative. Prior to the Amending Act 37 of 1986 Section 13(2)(o) conferred power on the Central Government to frame rules for the purpose of granting prospecting licences and mining leases including the disposal or discharge of any tailings, slime or other waste products. Sub-clause (o) of Section 13(2) was transposed into Section 18(2) as sub-clause (k) by the Amending Act 37 of 1986. Sub-clause (o) of Section 13(2) was transposed into Section 18(2) as sub-clause (k) by the Amending Act 37 of 1986. As noted earlier, Section 18(1) confers general power on the Central Government to frame rules and to take all such steps as may be necessary for the conservation and development of minerals in India. Section 18(2) does not affect or restrict the generality or width of legislative power under Section 18(1) as the matters specified in various sub-clauses of Section 18(2) are illustrative in nature. Even in the absence of subsection (2) or its various sub-clauses, the Central Government was invested with the power of subordinate legislation in respect of any matter which could reasonably be connected with the purpose of "conservation and development of minerals" by Section 18(1) of the Act. Thus, power to frame rules, regulating the discharge or disposal of slime or slurry emanating from a coal mine including its collection from the river bed or from raiyati land after its escape from the washery of the coal mines, would clearly fall within the expression "conservation of mineral". Slurry admittedly contains coal particles, its collection from land or river is reasonably connected with the 'conservation of mineral'. Section 18(2)(k) which expressly confers power on the Central Government to regulate disposal or discharge of waste of a mine makes the Parliamentary declaration apparent that the State legislature is not competent to regulate waste discharge of a coal mine. Mere absence of any rule framed by the Central Government under Section 13 or 18 of the Act with regard to the disposal of slime or waste of a coal mine does not confer legislative competence on the State legislature to make any law or rule. Once a particular topic of legislation is covered by the Parliamentary declaration, the State legislature is denuded of its power to make any law or rule in respect of that topic or subject matter and the absence of rules would not confer legislative competence on the State. In Hingir-Rampur Coal Co. Once a particular topic of legislation is covered by the Parliamentary declaration, the State legislature is denuded of its power to make any law or rule in respect of that topic or subject matter and the absence of rules would not confer legislative competence on the State. In Hingir-Rampur Coal Co. Ltd. v. State of Orissa, (1961) 2 SCR 537 : AIR 1961 SC 459 ] this Court held: (SCR p. 560) "In order that the declaration should be effective it is not necessary that rules should be made or enforced; all that is required is a declaration by Parliament that it was expedient in the public interest to take the regulation of development of mines under the control of the Union. In such a case the test must be whether the legislative declaration covers the field or not." Since Section 18 of the Act covers the field with respect to disposal of waste of a mine, there is no scope for the contention that until rules are framed the State legislature has power to make law or rules on the subject. Once the competent legislature with a superior efficacy expressly or impliedly evinces its legislative intent to cover the entire field on a topic, the enactments of the other legislature whether passed before or after would be overborne. Mere absence of rules framed by the Central Government, does not confer power on the State legislature to make law on the subject. Since the legislative field with regard to the framing of rules relating to the disposal of slime and waste of coal mine is fully covered by Section 18, the State legislature is denuded of its power of making any law with regard to those matters. 19. It was then urged that in the absence of a law being made by the State legislature, the State Government's action in executing lease/settlement in respondent's favour for collection of slurry is relatable to exercise of its executive powers. Learned counsel for the appellants contended that since Entry 23 of List II of the Seventh Schedule confers legislative power on the State legislature for making laws regulating mines and minerals, the State Government in the absence of any rule made by the Central Government has power to regulate disposal and collection of slurry. Learned counsel for the appellants contended that since Entry 23 of List II of the Seventh Schedule confers legislative power on the State legislature for making laws regulating mines and minerals, the State Government in the absence of any rule made by the Central Government has power to regulate disposal and collection of slurry. The State Government was justified in exercising its executive power making arrangements for the collection or removal of slurry which has been polluting the river water and affecting the raiyati land's fertility. Article 162 prescribes the extent of executive power of the State, it lays down that the executive power of a State shall extend to the matters with respect to which the legislature of the State has power to make laws. Thus, the executive power of the State Government is co-extensive with the legislative power of the State legislature. If the State legislature has power to enact laws on a matter enumerated in the State List or in the Concurrent List the State has executive power to deal with those matters subject to other provisions of the Constitution. If a subject matter falls within the legislative competence of State legislature, the exercise of executive power by the State Government is not confined, as even in the absence of a law being made, the State Government is competent to deal with the subject matter in exercise of its executive power. See Rai Sahib Ram Jawaya Kapur v. State of Punjab, (1955) 2 SCR 225 : AIR 1955 SC 549 ] . In the absence of any law, the State Government or its officers in exercise of executive authority cannot infringe citizen's rights merely because the State legislature has power to make laws with regard to subject, in respect of which the executive power is exercised. See State of Madhya Pradesh v. Thakur Bharat Singh, (1967) 2 SCR 454 : AIR 1967 SC 1170 ] . No doubt under Entry 23 of List II, the State legislature has power to make law but that power is subject to Entry 54 of List I with respect to the regulation and development of mines and minerals. As discussed earlier the State legislature is denuded of power to make laws on the subject in view of Entry 54 of List I and the Parliamentary declaration made under Section 2 of the Act. As discussed earlier the State legislature is denuded of power to make laws on the subject in view of Entry 54 of List I and the Parliamentary declaration made under Section 2 of the Act. Since State legislature's power to make law with respect to the matter enumerated in Entry 23 of List II has been taken away by the Parliamentary declaration, the State Government ceased to have any executive power in the matter relating to regulation of mines and mineral development. Moreover, the proviso to Article 162 itself contains limitation on the exercise of the executive power of the State. It lays down that in any matter with respect to which the legislature of a State and Parliament have power to make laws, the executive power of State shall be subject to limitation of the executive power expressly conferred by the Constitution or by any law made by Parliament upon the Union or authority thereof. The limitation as contained in the proviso to Article 162 was necessary to avoid conflict in the exercise of executive power of State and the Union Government in respect of matters enumerated in List III of the Seventh Schedule. If Parliament and the State legislature both have power to make law in a matter, the executive power of the State shall be subject to the law made by the Parliament or restricted by the executive power of the Union expressly conferred on it by the Constitution or any law made by Parliament. Parliament has made the law as contemplated by Entry 54 of List I and the law so made confers exclusive power on the Central Government to frame rules regulating the disposal of waste or industrial effluent of a mine, the State legislature has, therefore no power either to make law under Entry 23 of List II or to exercise executive power to regulate the disposal of slurry, a waste effluent discharge of a coal mine." 6.4 Learned Sr. Counsel also referred to paragraphs93, 94, 95, 97, 113, 114 and 125 of the decision of the Hon'ble Supreme Court in Monnet Ispat and Energy Limited v. Union of India and others, (2012) 11 SCC 1 , wherein the Supreme Court, relying on its large number of earlier decisions referred to above, came to the similar conclusion. 7. With reference to the above judgments, learned Sr. 7. With reference to the above judgments, learned Sr. Counsel for the petitioners contended that the legislative power is not there in view of the language used in Section 3 notwithstanding anything contained and the legislation involved is in gross violation of Entry 92A and therefore, in view of the decision of the Hon'ble Supreme Court more particularly in Monnet Ispat & Energy Ltd (supra), the Act is required to be struck down. 8. Learned Sr. Counsel for the petitioners has also contended that as the State cannot take advantage of general entry to impose a development tax, inasmuch as the entry must be specific therefore one cannot fall back on any General Entry to impose tax. In support of his contention he has relied upon decisions of Hon'ble the Supreme Court in the case of Synthetics & Chemicals Ltd. etc v. State of U.P. and others, (1990) AIR SC 1927, wherein the Supreme Court at paragraph 67 of the judgment, relying on large number of earlier decisions, held as under: "67. The Balsara case, (1951) SCR 682: AIR 1951 SC 318 : 52 Cri LJ 1361] was in the context of the business of potable alcohol. Problems arose with regard to auctions, vends, licences and the business of manufacturing, selling, etc. of potable alcohol. Until the case of Synthetics & Chemicals, (1980) 2 SCC 441 : (1980) 2 SCR 531 : AIR 1980 SC 614 ] , which is under challenge here, all other cases since then have dealt with potable alcohol. The only case which has dealt with alcohol used for industrial purposes was the case of Indian Mica and Micanite Industries Ltd. v. State of Bihar, (1971) 2 SCC 236 : 1971 Supp SCR 319 : AIR 1971 SC 1182 ] . The Constitution of India, it has to be borne in mind, like most other Constitutions, is an organic document. It should be interpreted in the light of the experience. It has to be flexible and dynamic so that it adapts itself to the changing conditions and accommodates itself in a pragmatic way to the goals of national development and the industrialisation of the country. This Court should, therefore, endeavour to interpret the entries and the powers in the Constitution in such a way that it helps to the attainment of undisputed national goals, as permitted by the Constitution. This Court should, therefore, endeavour to interpret the entries and the powers in the Constitution in such a way that it helps to the attainment of undisputed national goals, as permitted by the Constitution. As mentioned hereinbefore, the relevant entries in the Seventh Schedule to the Constitution demarcate legislative fields and are closely linked and supplement one another. In this connection, reference may be made to Entry 84 of List I which deals with the duties of excise on tobacco and other goods manufactured or produced in India except, inter alia, alcoholic liquors for human consumption. Similarly, Entry 51 of List II is the counterpart of Entry 84 of List I so far as the State list is concerned. It authorises the State to impose duties of excise on alcoholic liquors for human consumption and opium, etc. manufactured or produced in the State and the countervailing duties at the same or lower rates on similar goods produced or manufactured elsewhere in India. It is clear that all duties of excise save and except the items specifically excepted in Entry 84 of List I are generally within the taxing power of the central legislature. The State legislature has power, though limited it is, in imposing duties of excise. That power is circumscribed under Entry 51 of List II of the Seventh Schedule to the Constitution. As we have noted hereinbefore, the correct principles of harmonious interpretation of legislative entries have been laid down in several cases. We have mentioned hereinbefore some of the decisions as noted in the decision of this Court in India Cement, (1990) 1 SCC 12 . In M.P.V. Sundararamier & Co. v. State of A.P., (1958) AIR SC 468: 1958 SCR 1422 , 1480-82 : (1958) 9 STC 298 ] this Court has laid down that - (i) Legislative entries are to be liberally construed. But when a topic is governed by two entries, then they have to be reconciled. It cannot be that one entry is to be liberally construed and the other entry is not to be liberally construed. (ii) Under the constitutional scheme of division of powers under legislative lists, there are separate entries pertaining to taxation and other laws. A tax cannot be levied under a general entry. (iii) A Constitution is an organic document and has to be so treated and construed. (ii) Under the constitutional scheme of division of powers under legislative lists, there are separate entries pertaining to taxation and other laws. A tax cannot be levied under a general entry. (iii) A Constitution is an organic document and has to be so treated and construed. (iv) If there is a conflict between the entries, the first principle is to reconcile them. But the Union power will prevail by virtue of Article 246(1) and (3). The words "notwithstanding" and "subject to" are important and give primacy to the central legislative power." 8.1 On the said proposition, learned Sr. Counsel also placed reliance on the view expressed by the Supreme Court in the case of Central Bank of India v. State of Kerala and others, (2009) 4 SCC 94 , particularly at paragraph 30 of the report, which reads as under: "30. While negating challenge to the State legislation, a three-Judge Bench laid down the following principles [Ed.: As observed in State of W.B. v. Kesoram Industries Ltd., (2004) 10 SCC 201 , pp. 281-82, para 31.] : "(1) The various entries in the three lists are not 'powers' of legislation but 'fields' of legislation. The Constitution effects a complete separation of the taxing power of the Union and of the States under Article 246. There is no overlapping anywhere in the taxing power and the Constitution gives independent sources of taxation to the Union and the States. (2) In spite of the fields of legislation having been demarcated, the question of repugnancy between law made by Parliament and a law made by the State Legislature may arise only in cases when both the legislations occupy the same field with respect to one of the matters enumerated in the Concurrent List and a direct conflict is seen. If there is a repugnancy due to overlapping found between List II on the one hand and List I and List III on the other, the State law will be ultra vires and shall have to give way to the Union law. (3) Taxation is considered to be a distinct matter for purposes of legislative competence. There is a distinction made between general subjects of legislation and taxation. The general subjects of legislation are dealt within one group of entries and power of taxation in a separate group. The power to tax cannot be deduced from a general legislative entry as an ancillary power. There is a distinction made between general subjects of legislation and taxation. The general subjects of legislation are dealt within one group of entries and power of taxation in a separate group. The power to tax cannot be deduced from a general legislative entry as an ancillary power. (4) The entries in the lists being merely topics or fields of legislation, they must receive a liberal construction inspired by a broad and generous spirit and not in a narrow pedantic sense. The words and expressions employed in drafting the entries must be given the widest possible interpretation. This is because, to quote V. Ramaswami, J., the allocation of the subjects to the lists is not by way of scientific or logical definition but by way of a mere simplex numeration of broad categories. A power to legislate as to the principal matter specifically mentioned in the entry shall also include within its expanse the legislations touching incidental and ancillary matters. (5) Where the legislative competence of the legislature of any State is questioned on the ground that it encroaches upon the legislative competence of Parliament to enact a law, the question one has to ask is whether the legislation relates to any of the entries in List I or III. If it does, no further question need be asked and Parliament's legislative competence must be upheld. Where there are three lists containing a large number of entries, there is bound to be some overlapping among them. In such a situation the doctrine of pith and substance has to be applied to determine as to which entry does a given piece of legislation relate. Once it is so determined, any incidental trenching on the field reserved to the other legislature is of no consequence. The court has to look at the substance of the matter. The doctrine of pith and substance is sometimes expressed in terms of ascertaining the true character of legislation. The name given by the legislature to the legislation is immaterial. Regard must be had to the enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental and superficial encroachments are to be disregarded. (6) The doctrine of occupied field applies only when there is a clash between the Union and the State Lists within an area common to both. Regard must be had to the enactment as a whole, to its main objects and to the scope and effect of its provisions. Incidental and superficial encroachments are to be disregarded. (6) The doctrine of occupied field applies only when there is a clash between the Union and the State Lists within an area common to both. There the doctrine of pith and substance is to be applied and if the impugned legislation substantially falls within the power expressly conferred upon the legislature which enacted it, an incidental encroaching in the field assigned to another legislature is to be ignored. While reading the three lists, List I has priority over Lists III and II and List III has priority over List II. However, still, the predominance of the Union List would not prevent the State Legislature from dealing with any matter within List II though it may incidentally affect any item in List I." 9. Learned Sr. Counsel on behalf of the petitioners has also contended that the impugned Act which has been brought into in 2003 is bad in law since the taxing statute itself has no sanction of law. In this regard, he has placed reliance upon the decision of the Hon'ble Supreme Court in Shree Digvijay Cement Co. Ltd. and another v. Union of India and another, (2003) AIR SC 767, particularly at paragraph 26, which reads as under: "26. It is no doubt true that in taxing legislation, the legislature deserves greater latitude and greater play in joints. This principle, however, cannot be extended so as to validate a levy which has no sanction of law, however laudable may have been the object to introduce it and howsoever laudable may have been the purpose for which the amount so collected may have been spent." 9.1 Further, learned Sr. Counsel has also relied upon a decision of this Court in M/s. Ashok Biri and another and others v. State of Orissa and others, (2001) 1 OrissaLR 586, more particularly paragraphs-2,5,6,9 and 10, which reads as under: "2. The case of the petitioners briefly stated is as following : Petitioner No. 2 is one of the shareholders of petitioner No.l which is a private limited company having its registered head office at Calcutta. It carries on business in tobacco and kendu leaves. The case of the petitioners briefly stated is as following : Petitioner No. 2 is one of the shareholders of petitioner No.l which is a private limited company having its registered head office at Calcutta. It carries on business in tobacco and kendu leaves. It prepares bidi with kendu leaves in the name and style of 'Ashok Bidi' at its factory situated in the State of West Bengal. The Orissa Forest Development Corporation Limited, opposite party No. 3 (hereinafter referred to as 'O.F.D.C.") is a Government of Orissa undertaking. Trade in kendu leaves in the State of Orissa being the State's monopoly, it is being transacted by the O.F.D.C. which sells processed and phal kendu/tendu leaves by way of tender and auction every year. The petitioner No.l is a registered dealer in West Bengal both under the West Bengal Sales Tax, Act, 1994 and Central Sales Tax Act, 1956. As usual O.F.D.C. issued tender call notice for sale of processed and phal kendu (tendu) leaves for the year 2000-2001 inviting sealed tenders from purchasers duly registered with it. The petitioner No.l being a registered purchaser with O.F.D.C. submitted its tender which was duly accepted. As required, it has entered into an agreement with O.F.D.C. After the sale of kendu leaves and payment of the sale value, lifting orders were issued by the O.F.D.C. to its respective Divisional Managers permitting the petitioner No.l to lift the goods. Thereafter, the concerned Divisional Forest Officer issued transport permit in the prescribed form on the basis of which the petitioners transported kendu leaves to its place of business in West Bengal. According to the petitioners. the sale/purchase of kendu leaves shall be deemed to have taken place in course of interState trade because the sale/purchase had occasioned the movement of kendu leaves from the State of Orissa to the State of West Bengal and as such, it is exigible to Central Sales Tax under the Central Sales Tax Act, 1956 and not to local sales tax. They have accordingly prayed for a declaration that levy and collection of sales tax under the Orissa Sales Tax, 1947 are unauthorised and without jurisdiction and the excess amount collected from them under the guise of Orissa Sales Tax should be refunded. 5. Before proceeding to consider the rival submissions, a short preface is necessary to be made here. Kendu tree is a wild growth. 5. Before proceeding to consider the rival submissions, a short preface is necessary to be made here. Kendu tree is a wild growth. Its leaf is used mainly for manufacture of bidi. To regulate the trade in kendu leaves, the State of Orissa had been adopting different executive and legislative mensures. The State legislature enacted the Orissa Kendu Leaves (Control of Trade) Act, 1961 under which the State has assumed monopoly of trade in kendu leaves. In some of the provisions of the said Act and the Rules framed thereunder i.e. the Orissa Kendu Leaves (Control of Trade) Rules, 1962 were referred to by the counsel for the parties in course of hearing, we may also indicate the same at this stage. Under Sub-section (1) of Section 3 of the said Act, no person other than (a) the government; (b) an officer of the government authorised in that behalf: or (c) an agent in respect of the unit in which the leaves have grown; shall purchase or transport kendu leaves. Sub-section (2) of Section 3 contains two Clause (a) and (b). Since we are not concerned with Clause (a), we need not refer to it. Clause (b) [i.e. Section 3(2)(b)] lays down that notwithstanding anything contained in Sub-section (1), leaves purchased from government or any officer or agent specified in the said sub-section by any person for manufacture of bidis within the State or by any person for sale outside the State may be transported by such person outside the unit under a permit to be issued in that behalf by such authority and in such manner as may be prescribed and the permit so issued shall be subject to such conditions as may be prescribed. Now coming to the rules, it may be seen that rule 5-B deals with disposal of kendu leaves. It provides that kendu leaves shall ordinarily be sold by entering into a contract in advance for which tender shall be invited. Under Sub-rule (10) of Rule 5-B, a person or party who is selected as purchaser for the particular unit shall purchase the entire quantity of kendu leaves procured or likely to be procured from such unit or such lesser quantity out of it as may be offered to him. Under Sub-rule (10) of Rule 5-B, a person or party who is selected as purchaser for the particular unit shall purchase the entire quantity of kendu leaves procured or likely to be procured from such unit or such lesser quantity out of it as may be offered to him. Under Subrule (11), the purchaser is required to execute an agreement in the prescribed Form 'H' within 15 days from the dale of receipt of an order relating to his selection as purchaser, failing which, the said order of selection shall be liable to be cancelled. Sub-rule (13) provides that purchaser shall take delivery of kendu leaves from such depots or stores as intimated by the Divisional Forest Officer during the currency of the purchaser's agreement. Under Sub- rule (14) if the purchaser during the currency of the agreement establishes a bidi factory in order to provide employment to the residents of the State, he shall be entitled to rebate of two per cent of the annual purchase price paid by him. Rule 6 deals with grant of transport permit. Sub-rule (1) of Rule 6 lays down that an application for issue of permit under Section 3(2)(b) in the prescribed Form 'C has to be made to the Divisional Forest Officer. Sub-rule (2) states that the permit shall be in the prescribed Form 'D' Rule 9 deals with grant of certificate of sale. It laid down that the government or their officer or agent while selling kendu leaves to any such person shall grant to such person a certificate of sale in Form 'F'. 6. Central issue : Sec. 3 (a) of the Central Sales Tax Act, 1956 so far relevant. reads as follows : "A sale or purchase of goods shall be deemed to take place in the course of inter- State trade or commerce if the sale or purchase - (a) occasions the movement of goods from one State to another; or" It is now fairly settled by series of decisions of the Supreme Court that conditions essential for a sale in the course of inter-State trade or commerce within the meaning of Section 3 (a) are : (i) there must be a sale of goods ;or (ii) such sale must occasion the movement of goods from one State to another. The word 'occasions' in Section 3 (a) is used as a verb and means to cause or to be the immediate cause. In other words, the movement of goods from one State to another must be the necessary incidence - necessary consequences - of sale or purchase. The case of cause or effect, the cause being the sale/purchase and the effect being the movement of goods to another State. What is decisive is whether the sale is one which occasions the movement of goods from one State to another. The inter- state movement must be the result of a covenant expressed or implied in the contract of sale or the incident of the contract. It is not necessary that the contract of sale must itself provides for and cause the movement of goods. It is enough if the movement was in pursuance of or incidental to the contract of sale. The question whether it is an interState sale or intra-State sale does not depend upon the circumstances as to in which State the property in goods passes. It may pass in either State and yet the sale can be an inter-State sale. Where the transaction between the parties constitute ,a sale or purchase in course of inter-State trade or commerce, the Court should have regard to the entire course of dealing between the parties (See Kelvinator of India Ltd. v. State of Haryana, (1973) 32 STC 629 , Oil India Ltd. v. Superintendent of Taxes, (1975) 35 STC 445 , Union of India v. K. C. Khosla, (1979) 43 STC 457 and Commissioner of Sales Tax, U.P. v. Bakhtawar Lal Kailash Chand Arhti, (1992) 87 STC 196 ). 9. From the facts discussed above and the averments made in the writ petition; which have not been controverted by the opposite parties, it is evident that kendu leaves can only be delivered after submission of necessary transport permit and the sale can only be completed after delivery of the goods, that is to say, after the goods have been directed to move to definite places, as mentioned in the transport permit. The transport permit clearly indicates the destination and also checking and examination at Check Gates in between the point of despatch and destination so as to avoid diversion of the goods, i.e. kendu leaves. In this case, the petitioner had to move the goods to West Bengal and. The transport permit clearly indicates the destination and also checking and examination at Check Gates in between the point of despatch and destination so as to avoid diversion of the goods, i.e. kendu leaves. In this case, the petitioner had to move the goods to West Bengal and. as such, transport permit had been issued for removal of the goods to Aurangabad in West Bengal which was a condition precedent for delivery of the goods to it. Having regard to the facts and circumstances mentioned above and the entire gamut of dealings between the parties, we are inclined to hold that (i) the O.F.D.C. sold kendu leaves to the petitioners and (ii) the sale occasioned the movement of goods from the State of Orissa to the State of West Bengal as a necessary incident or necessary consequence. As the pre-conditions essential for a sale in course of inter State trade have been satisfied, the transaction has to be held an inter-State sale within the meaning of Section 3(a) of the Act. 10. For the reasons aforesaid, the petitioners are entitled to get refund of the excess amount collected from them under the Orissa Sales Tax Act, 1947. The opposite parties are hereby directed to refund it to the petitioners within two months of receipt of writ from this Court. If the excess amount is not paid within the time granted, the petitioners would be entitled to receive interest at the rate of 16 per cent per annum on the differential amount from the date of default." 9.2 In this regard, he has also placed reliance on the decision of the Hon'ble Supreme Court in State of Orissa and another v. K.B. Saha and sons Industries (P) Ltd. and others, (2007) 9 SCC 97 , more particularly at paragraphs-1, 2, 3, 5, 6, 7, 12, 20 and 25. For ready reference, the same are reproduced hereunder: "1. .....Appellants State of Orissa and Orissa Forest Corporation Ltd. (in short the "Corporation") in these appeals call in question legality of the judgment rendered by a Division Bench of the Orissa High Court allowing the writ petitions filed under Article 226 of the Constitution of India. 2. For ready reference, the same are reproduced hereunder: "1. .....Appellants State of Orissa and Orissa Forest Corporation Ltd. (in short the "Corporation") in these appeals call in question legality of the judgment rendered by a Division Bench of the Orissa High Court allowing the writ petitions filed under Article 226 of the Constitution of India. 2. Writ petitions were filed by the respondents on the plea that the transactions between them and the Corporation were in course of inter-State trade and, therefore, only sales tax under the Central Sales Tax Act, 1956 (in short "the Central Act") and not the Orissa Sales Tax Act, 1947 (in short "the State Act") was leviable. Accordingly, prayer was made for a declaration that levy and collection of tax under the State Act was unauthorised, without jurisdiction and the excess amount collected from them under the guise of the State sales tax should be refunded. 3. Background facts as presented by the appellants are as follows: The respondents have their registered office outside the State of Orissa. They carry on business in tobacco and kendu leaves. They prepare bidi at factories situated in the State of West Bengal. The Corporation is a Government of Orissa Undertaking. Trade in kendu leaves in the State of Orissa is a State monopoly and, therefore, is being transacted by the Corporation which sells processed and phal tendu leaves by way of tender and auction every year. The writ petitioners were registered both under the West Bengal Sales Tax Act, 1994 (in short "the West Bengal Act") and the Central Act. 5. The High Court referred to various provisions of the Orissa Kendu Leaves (Control of Trade) Act, 1961 (in short "the Kendu Leaves Act") under which the State of Orissa has assumed monopoly of trading in kendu leaves. Rules framed thereunder are known as the Orissa Kendu Leaves (Control of Trade) Rules, 1962 (in short "the Control Rules"). 5. The High Court referred to various provisions of the Orissa Kendu Leaves (Control of Trade) Act, 1961 (in short "the Kendu Leaves Act") under which the State of Orissa has assumed monopoly of trading in kendu leaves. Rules framed thereunder are known as the Orissa Kendu Leaves (Control of Trade) Rules, 1962 (in short "the Control Rules"). It was noted by the High Court that Section 3(2)(b) of the Kendu Leaves Act lays down that notwithstanding anything contained in subsection (1), leaves purchased from the Government or any officer or agent specified in the said sub-section by any person for manufacture of bidis within the State or by any person for sale outside the State may be transported by such person outside the unit under a permit to be issued in that behalf by such authority as may be prescribed and the permits so issued shall be subject to such conditions as may be prescribed. The High Court also referred to Rule 5-B which deals with disposal of kendu leaves. Particular reference was made to sub-rule (10) and sub-rule (11) of the said rule. Under sub-rule (11) the purchaser is required to execute an agreement in the prescribed Form 'H' within 15 days from the date of receipt of an order relating to his selection as purchaser failing which the said order of selection shall be liable to be cancelled. Sub-rule (13) provides that purchaser shall take delivery of kendu leaves from such depots or stores as indicated by the Divisional Forest Officer during the agreement. Rule 6 deals with grant of transport permit. The High Court relied upon the said rule for its conclusion that the transactions were in the nature of inter-State trade. Reference was made to sub-rule (1) of Rule 6 which lays down that an application for issue of permit under Section 3(2)(b) of the State Act in the prescribed Form 'C' has to be made to the Divisional Forest Officer. The High Court found that the writ petitioners were purchasers duly registered with the Corporation. They have submitted their tenders pursuant to the notice of tender. Their bids were accepted pursuant to which in each case agreement was executed. As an instance regarding the nature of the transaction, reference was made to the factual position in OJC No. 9724 of 2000 filed by Ashok Bidi. They have submitted their tenders pursuant to the notice of tender. Their bids were accepted pursuant to which in each case agreement was executed. As an instance regarding the nature of the transaction, reference was made to the factual position in OJC No. 9724 of 2000 filed by Ashok Bidi. In that case it was noted that the Divisional Manager of the Corporation, Balangir Division in his letter dated 13-11-2000 wrote to the SubDivisional Manager, Padampur Sub-Division, requesting him to give delivery of the stock to Writ Petitioner 1 on receipt of the transport permit from the Divisional Forest Officer, Kendu Leaf, Padampur. In the copy which was forwarded to the Divisional Forest Officer, Kendu Leaf, Padampur Division, the Divisional Manager requested him to issue necessary transport permit in favour of the writ petitioner. The challan indicates that the goods were to travel from Mithapali in Orissa to Aurangabad in West Bengal. The transport permit also noted the destination. It was, therefore, concluded by the High Court that kendu leaves can only be delivered after submission of necessary transport permit and the sale can only be completed after delivery of the goods, that is to say, after the goods have been directed to move to the definite place as mentioned in the transport permit. Such permits clearly indicate the destination and also checking and examination at check gates in between the point of dispatch and destination so as to avoid diversion of the goods. It was, therefore, concluded that the preconditions essential for a sale in course of interState trade were satisfied and the transactions have to be held as inter-State sale within the meaning of Section 3(a) of the Central Act. The writ petitions were accordingly allowed. 6. In support of the appeals, learned counsel for the appellants submitted that unnecessary stress has been laid by the High Court on the transport permit. They submitted that even in case of intra-State trade, the transport permits were required. There was in each case an agreement with the Corporation and nowhere it stipulates that the goods could only be taken outside the State. After the sale was completed in the State of Orissa, the purchaser was free to take it to any destination. 7. The nature of the transaction has to be concluded on the basis of the common intention of the parties. After the sale was completed in the State of Orissa, the purchaser was free to take it to any destination. 7. The nature of the transaction has to be concluded on the basis of the common intention of the parties. The seller had no knowledge as to what is the ultimate destination. Mere knowledge to the seller is not sufficient. Something more is necessary. There was no material to show that the seller's intention was of interState trade. The permit issued for outside units is only for the convenience of the purchasers; where the goods pass is immaterial. 12. The nature of a transaction i.e. whether it is an inter-State or intra-State would depend upon the factual scenario of the case under examination. The Corporation only accepts tenders from purchasers who are duly registered with it. The registration is renewed from time to time. One of the clauses on which the High Court has placed great reliance is Clause 3.7. The same reads as follows: "The tenderer shall be bound by all Forest Department rules and regulations in connection with the purchase and transit of the forest produce." It has been pointed out by learned counsel for the respondents that in the tender document there was clear indication that the principal place of business and additional place of business of the respondents were all outside the State of Orissa. The details of the registrations under the West Bengal Act and the Central Act were indicated. The way bill of transport and consignment of goods dispatched from outside the State of West Bengal to any place in West Bengal was also brought on record. 20. In order to decide whether sale is inter-State it is sufficient that movement of goods should have been occasioned by sale or should be incidental thereto. What is important is that the movement of goods and the sale must be inseparably connected. It is not necessary that there should be an existence of contract of sale incorporating the express or implied provision regarding inter-State movement of goods. Even if hypothetically it is accepted that such a requirement is necessary in the facts of the present case such implied stipulation does exist. This is referable to Clause 3.7 of the agreement. 25. Above being the position, the inevitable conclusion is that the High Court was justified in its view. Even if hypothetically it is accepted that such a requirement is necessary in the facts of the present case such implied stipulation does exist. This is referable to Clause 3.7 of the agreement. 25. Above being the position, the inevitable conclusion is that the High Court was justified in its view. On the fact situation established no interference is, therefore, called for. The appeals are dismissed with no order as to costs." 10. A contention has also been raised by learned Sr. Counsel for the petitioners that in some of the writ petitions though the Notification came to be issued on 30.07.2003, the tax is collected from 18.07.2003, which is in violation of the basic taxing statute. In that view of the matter, the collection of tax prior to 30.07.2003 is required to be held bad in law. 11. The petitioners, those who are before us are the persons who are dealing with Kendu leaves within the State of Odisha & also outside the State of Odisha. 12. Mr. S.P. Mishra, learned Advocate General has taken us to the definition of "forest produce" under Section 2(d) and also taken us to Section 2(g), section 3 (1), (2),(3), and Section 6 of the Orissa Act 18 of 2003. He has also taken us to Article 366 of the Constitution of India, more particularly sub-Article 12 where goods are defined and has contended that in view of the definition of 'goods' under Article 366 the State Government is all competent to impose the tax within the State on any goods defined under Article 366 and the legislative competence is there under Entry 54 of list-II of Seventh schedule. 12.1 He has also relied upon the same judgment which is sought to be relied upon by learned counsel for the petitioners, more particularly paragraph-67 (i) of the decision of Supreme Court in Synthetics & Chemicals Ltd. etc (supra) and also paragraph-30 of the decision of the Supreme Court in Central Bank of India (supra), but he has relied upon sub-para 1,2,4 and 5 of para-30 of the judgment and contended that the State with a view to develop the forest has imposed this development tax from the purchaser and any transaction within the State is for the purpose of development of the forest. 13. 13. It has come on record that a letter dated 09.08.2006 issued by the Special Secretary to Government, Department of Forest & Environment, Govt. of Orissa to the Managing Director, Orissa Forest Development Corporation Ltd., Orissa, instructing the OFDC Ltd. to delete last sentence of Clause 9 and the word "Forest Development Tax" from Clause-22 of the terms and conditions of sale of Kendu Leaf in general tender and auction communicated vide Memo No.163/5 dated 19.7.2006 of O.F.D.C. Ltd. Hereafter, OFDC Ltd. will deposit the Forest Development Tax on account of sale of Kendu Leaf with the Government. For ready reference, the relevant portion of the said letter is quoted here under: "Sub: Deposit of Forest Developmental Tax on sale of Kendu Leaf. Sir, I am directed to inform you that after careful consideration, Government has decided to instruct OFDC Ltd. to delete last sentence of Clause 9 and the word "Forest Development Tax" from Clause-22 of the terms and conditions of sale of KL in general tender and auction communicated vide Memo No. 163/5 dated 19.7.2006 of OFDC Ltd. Hereafter, OFDC Ltd. will deposit the Forest Development Tax on account of sale of Kendu Leaf with the Government. Therefore, you are requested to implement the aforesaid decision of the Government with immediate effect." 13.1 Referring to the said letter, it is contended that no tax is collected from 09.08.2006 from the dealer and, therefore, the period of dispute involved here is from 18.07.2003 to 09.08.2006. 14. Mr. S.K. Patnaik, learned Sr. Counsel for the Corporation has taken us to the definition of Section 3 and contended that the tax is to be collected from the purchaser. Meaning thereby, it is not a sale and therefore, it is not to be borne by the seller but to be borne by the purchaser. Therefore in a way it was a transaction (within the State of Orissa) tax. In support of such submission, he has relied upon a decision of Hon'ble the Supreme Court in T.N. Godavarman Thirumulpad v. Union of India & Ors., (2008) 7 SCC 126 , more particularly paragraphs-7 and 9, which are quoted hereunder: "7. Based on the ecological importance of forest falling in different eco-value and canopy density classes, relative weightage factors have also been taken into consideration. Based on the ecological importance of forest falling in different eco-value and canopy density classes, relative weightage factors have also been taken into consideration. By using these relative weightage factors, the equalised forest area in eco-value Class I and very dense forest corresponding to forest falling in different eco-value and density classes have been compiled. For example, 17,997 sq km of open forest of Eco-Class IV has been calculated to be equivalent to 7558 sq km of very dense forest of eco-value Class I. Accordingly, the entire forest area of the country has been calculated and found to be equivalent to 5.2 lakhs sq km forest area having highest ecological significance as that of forest falling in eco-value Class I with density above 70%. 9. Based on this, NPV was fixed and the following recommendations have been made: (i) for non-forestry use/diversion of forest land, NPV may be directed to be deposited in the Compensatory Afforestation Fund as per the rates given below: Ecovalue class Very dense forest Dense forest Open forest Class I 10,43,000 9,39,000 7,30,000 Class II 10,43,000 9,39,000 7,30,000 Class III 8,87,000 8,03,000 6,26,000 Class IV 6,26,000 5,63,000 4,38,000 Class V 9,39,000 8,45,000 6,57,000 Class VI 9,91,000 8,97,000 6,99,000 (in Rs per hectare) (ii) the use of forest land falling in national parks/wildlife sanctuaries will be permissible only in totally unavoidable circumstances for public interest projects and after obtaining permission from the Hon'ble Court. Such permissions may be considered on payment of an amount equal to ten times in the case of national parks and five times in the case of sanctuaries respectively of NPV payable for such areas. The use of non-forest land falling within the national parks and wildlife sanctuaries may be permitted on payment of an amount equal to NPV payable for the adjoining forest area. The use of non-forest land falling within the national parks and wildlife sanctuaries may be permitted on payment of an amount equal to NPV payable for the adjoining forest area. In respect of non-forest land falling within marine national parks/wildlife sanctuaries, the amount may be fixed at five times the NPV payable for the adjoining forest area; (iii) these NPV rates may be made applicable with prospective effect except in specific cases such as Lower Subhanshri Project, mining leases of SECL, field firing ranges, wherein pursuant to the orders passed by this Hon'ble Court, the approvals have been accorded on lump sum payment/no payment towards NPV; and (iv) for preparation and supply of district-level maps and GPS equipments to the State/UT Forest Departments concerned and the regional offices of the MoEF, the Ad-hoc CAMPA may be asked to provide an amount of Rs 1 crore to the Forest Survey of India out of the interest received by it." 15. We have heard learned counsel for the parties and gone through the provisions of the Orissa Act 18 of 2003 and the relevant Entries of the Constitution of India upon which reliance has been placed by the learned counsels for the parties. Taking into consideration the Entry 54 of List-II, it is very clear that the State Government is competent to legislate an Act for the purpose of imposing tax of purchase of sale of goods. 16. Tax on sale and purchase of goods other than the newspaper is subject to the provisions of Entry 92A. Therefore, it will be very difficult for us to hold that the State has no competence to enact the Act, but while interpreting the provisions of the Act and the charging Section i.e. Section 3 of the Act, we are of the view that the Act in question, which came into force, will operate only for intra-State sales i.e. sales within the State of Orissa. In so far as transactions which are clearly inter-state transactions in nature, as in the present cases, there can be no levy of the said tax in view of the clear provisions under Entry-92A of List-I of the Constitution of India. 17. In that view of the matter, we are of the opinion that the transactions which are within the State of Orissa, this tax can be levied. 17. In that view of the matter, we are of the opinion that the transactions which are within the State of Orissa, this tax can be levied. But, the transaction which is inter-State, the provisions of the Act cannot be operated in view of Entry 92A. 18. Considering the entire fact situation of the case, relevant provisions of the Act and the decisions referred to above, the writ petitions are disposed of with declaration that for transactions which are inter-State in nature, the provision of the Act, 2003 will not be enforced. Therefore, the Corporation will examine facts of each of the matter individually and recommend the State Government or the competent authority for refund of the Tax collected. 19. So far as the argument of Mr. R.P. Kar, learned counsel, with regard to collection of tax from 18.07.2003 to 30.07.2003, in view of the Notification which came to be published for the first time on 30.07.2003, tax collected prior thereto is declared to be bad in law, hence the same is also required to be refunded. 20. It is made clear that the amount of tax collected, which is lying with the Corporation, will be refunded by the Corporation and if it is lying with the State Government, the same will be refunded by the State Government. 21. The refund shall be made within a period of four months from the date of receipt of a copy of this judgment along with application for refund from the petitioners individually. If the amount is not refunded, as directed, within four months, then claimant will be entitled to interest at the rate of 8% from the date of depositing the amount. The writ petitions are allowed to the extent indicated above. No order as to cost.