S.C. Dharmadhikari, J.

1. The writ petition and the appeals were heard together. Since common questions of fact and law are raised therein, so also common submissions canvassed, that we dispose them off by this common judgment.

2. The essential relief sought in this writ petition is that this Court should declare that Low Sulphur Fuel Oil and Low Sulphur Waxy Residue brought from abroad are not liable to the levy of entry tax, and the levy and assessment thereof by the Maharashtra Tax on the Entry of Goods into Local Areas Act, 2002 (for short “The Maharashtra Entry Tax Act, 2002) is ultra vires the Constitution of India, being beyond the legislative competence of the State of Maharashtra.

3. We shall advert to the provisions of The Maharashtra Entry Tax Act, which are challenged in these proceedings, a little later. First, we shall briefly make a reference to the facts.

4. The writ petition is filed by the Tata Power Company Limited and its Head Corporate (Legal) who is also a shareholder of the company against the State of Maharashtra and the Commissioner of Sales Tax, Maharashtra State. It is contended that the 2nd respondent-Commissioner appointed under Section 10 of the Maharashtra Value Added Tax Act, 2002 (for short “MVAT Act”) is responsible for administering the Maharashtra Entry Tax Act and reference is made in that regard to section 6 of the Maharashtra Tax Act, 2002.

5. The 3rd respondent is a Tribunal, which, though functional under the then Bombay Sales Tax Act, 1959 and its successor enactment MVAT Act, is also a Tribunal empowered to hear appeals under the Maharashtra Entry Tax Act.

6. It is contended that when the Maharashtra Entry Tax Act, 2002, was introduced, its constitutional validity was challenged by the petitioners in Writ Petition No.429 of 2003 before this Court. The question raised was that insofar as this Act purports levy of an entry tax on the entry of Low Sulphur Waxy Residue (for short, referred to as “LSWR”) and Low Sulphur Fuel Oil (for short, referred to as “LSFO”) into the local area in the State of Maharashtra for the consumption, use or sale therein, it is ultra vires the Constitutional provisions and some of the other laws referred therein.

7. The claim of the petitioners therein, as well as here, is that the raw material for their power plant at Chembur, Mumbai was imported from abroad through the Port of Mumbai. Writ Petition No.429 of 2003 was disposed of finally by a Division Bench judgment delivered on 16th January 2004. This Court, in paragraph 38 of its detailed judgment in the earlier petition, held that the levy of entry tax on furnace oil and low sulphur waxy residue oil created an imbalance between imported goods and local goods, and that this defeated the very purpose of enacting the Maharashtra Entry Tax Act. This Court also declared the levy of entry tax to be discriminatory and non-compensatory in nature. This Court relied upon an earlier judgment of the Hon’ble Supreme Court of India in the case of M/s. Jindal Strips Ltd. & Ors. vs State of Harayana & Ors. (2003) 8 SCC 60 to reach this ultimate conclusion. Thus, Entry No.13 of the Schedule appended to the Maharashtra Entry Tax Act was declared as unauthorized and unconstitutional.

8. The 1st respondent-State preferred a Special Leave Petition before the Hon’ble Supreme Court of India being SLP NO.7468-7469/2004. At the time of hearing, the challenge was restricted to that part of the High Court judgment that held the levy to be discriminatory. In other words, the Petitioners’ case to the extent of the nature of the levy being non-compensatory ’was not challenged. However, the Supreme Court dismissed the SLP as infructuous by an order dated 25th October 2004. We would prefer to reproduce the short order of the Hon’ble Supreme Court. It reads as under :

“Delay condoned.

Heard parties

In our view, by virtue of The Mahar