LODHA, C.J. - This is a petition under article 226 of the Constitution of India, whereby it has been prayed that Notification No. FTX. 98/62/84, marked annexure C, be cancelled and the opposite parties may be directed not to enforce it against the petitioner. It has been further prayed that an amount of Rs. 49,048.97 paid by the petitioner as sales tax be ordered to be refunded.

The petitioner deals in onion, gralics, potatoes, etc., in Fancy Bazar of Gauhati and, in the course of his business, imports among other things onions from outside the State of Assam. He is a registered dealer within the meaning of the Assam Finance (Sales Tax) Act, 1956 (hereinafter to be referred to as the Act) and the Rules farmed thereunder. His case is that he had to deposit under protest a sum of Rs. 49,048.97 up to the period ending 31st March, 1970, as sales tax on the onion imported by him form outside the State of Assam. The contention of the petitioner is that, in the first place, "onion" is not a bulb and, at any rate, onion grown within the territory of Assam cannot be subjected to sales tax as it is neither made nor manufactured nor processed and, therefore, the levy of sales tax on the onion imported by the petitioner form outside the State is discriminatory and liable to be struck down under article 301 of the Constitution.

We shall deal with the points raised by the learned counsel for the petitioner in due course. But before we do so, we consider it necessary to point out that the schedule, annexure C, filed by the petitioner along with the petition does not represent the correct state of affairs inasmuch as item No. 56, which is the subject-matter for decision before us, has been amended. In annexure C, item 56 reads as under :

"56 Dried fruits, bulbs and plants 5 paise in the excluding orchids. rupee."

In this connection, we may point out that item No. 56 has been amended by insertion of the words "including onions and garlics" after the word "bulbs" and before the word "and" by Act No. 18 of 1967 with effect form 25th October, 1967.

Some argument was advanced in the beginning by the learned counsel that "onion" does not fall within the definition of the term "bulb" and, therefore, onion is not taxable. He also referred to the dictionary meaning of the word "bulb" in this connection. But, in view of the amendment referred to above, we consider it unnecessary to address ourselves to this argument. Irrespective of the fact whether the term "bulb" embraces "onion" within its definition, it is clear from the amended item No. 56 that onion has been expressly included within the term "bulb" and, therefore, so far as the impugned schedule is concerned, we have to proceed on the basis that "onion" is "a bulb" whatsoever may be the dictionary meaning of the word "bulb".

Now, we may come to the second branch of the learned counsel's argument that the levy of sales tax on the imported onion is bad as it is discriminator, the onion grown in Assam not being subjected to sales tax. Before examining the legal aspect of the case, we consider it necessary to point out hear and now that in the reply filed by the State of Assam, it was asserted in unequivocal terms in para 3 that "onion produced in the State of Assam is equally taxable with onion imported form outside the State of Assam". This factual position alleged in the reply to the petition has not been controverted on behalf of the petitioner and, therefore, we have no alternative but to accept that as a matter of fact onion produced in the State of Assam does attract the levy of sales tax and factually there is no discrimination so far as the levy of this tax is concerned between the onion produced in Assam and the onion imported from outside the State of Assam. However, the learned counsel was at pains to argue that whatever may be the actual state of affairs, the levy cannot be justified under the law. In this connection he has drawn o