Judgment

SEN

( 1 ) THESE are appeals by special leave from a judgment and order of the High Court of Patna dated 30/04/1982 by which the High Court upheld the constitutional validity of sub-section (1) of S. 5 of the Bihar Finance Act, 1981 ("act" short) which provides for the levy of a surcharge on every dealer whose gross turnover during a year exceeds Rs. 5 lakhs, in addition to the-tax payable by him, at such rate not exceeding 10 per centum of the total amount of the tax, and of sub-section (3) of S. 5 of the Act which prohibits such dealer from collecting the amount of surcharge payable by him from the purchasers.

( 2 ) THE Bihar Finance Act, 1981, is not only an Act for the levy of a tax on the sale or purchase of goods but also is an Act to consolidate and amend various other laws. We are here concerned with Section 5 of the Act which finds place in Part I of the Act which bears the heading "levy" of tax on the sale and, purchase of goods in Bihar" and is relatable to Entry 54 of List II of the Seventh Schedule. By two separate notification Saw dated 15/01/1981 the State Government of Bihar in exercise of the Powers conferred by sub-section (1) of S. 5 Of the Act appointed Jam 15, 1981 to be the date from which surcharge under Sec. 5 shall be leviable and fixed the rate of surcharge at 10 per centum of the total amount of the tax payable by a dealer whose gross turnover during a year exceeds Rs. 5 lakhs, in addition to the tax payable by him. The Act was reserved for the previous assent of the President and received his assent on 20/04/1981. There is no point raised as regards the validity of the notifications in question and therefore there is no need for us to deal with it.

( 3 ) THE principal contention advanced by he appellants in these appeals is that the field of price fixation of essential commodities in general, and drugs and formulations in particular is an occupied field by virtue of various control orders issued by the Central Government from time to time under sub-section (1) of Section 3 of the Essential Commodities Act, 1955 which allows the manufacture or producer of goods to pass on the tax liability to the consumer and therefore the State Legislature of Bihar had no legislative competence to enact sub-section. (3) of Section 5 of the Act which interdicts that no dealer liable to pay a surcharge, in addition to the tax payable by him, shall be entitled to collect the amount of surcharge, and thereby trenches upon a field occupied by a law made by Parliament. Alternatively, the submission is that it sub-section (3) of S. 5 of the Act were to cover all sales including sales of essential commodities whose prices are fixed by the Central Government by various control orders issued under the Essential Commodities Act, then there will be repugnancy between the State law and the various control orders which according to Section 6 of the Essential Commodities Act must prevail. There is also a subsidiary contention put forward on behalf of the appellants that sub-section (1) of Section 5 of the Act is ultra vires the State Legislature inasmuch as the liability to pay surcharge is on a dealer whose gross turnover during a year exceeds Rs. 5 lakhs or more i. e. inclusive of transactions relating to sale or purchase of goods which have taken place in the course of inter-State trade or commerce or outside the State or in the course of import into, or export of goods outside the territory of India. The submission is that such transactions are covered by Article 286 of the Constitution and therefore are outside the purview of the Act and thus they can not be taken into consideration for computation. of the gross turnover as defined in Section 2 (j) of the Act for the purpose of bearing the incidence of surcharge under sub-section (1) of Section 5 of the Act.

( 4 ) IT will be convenient, having regard to the course taken in the arguments, to briefly refer to the facts as are discernible from the records in Civil Appeal N