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1990 Supreme(Bom) 170
IN THE HIGH COURT OF BOMBAY
G.H. Guttal V.V. Kamat. JJ.
Indian Aluminium Co, Ltd.... Petitioners.
Versus
Thane Municipal Corporation ... Respondents.
Writ Petition No. 419 of 1990, decided on 18-4-1990.
Advocates appeared :
D. Shroff with Raj Darak i/by Crawford Bayley and Co., for the petitioners.
K.K. Singhvi with H.K. Singahvi and Chitale, for the respondents.
Headnote:Article 226 and 136-Octroi-Already paid-Company claiming refund of after a considerable lapse of time on basis of concession In levy of octroi.
Held, octroi duty paid by company must have naturally passed on to consumers. No jurisdiction to claim refund after a lapse of long time.
MAHARASHTRA MUNICIPALITIES (OCTROI) RULES, 1968
Amended in 1970-Rule 4 (2)-Schedule-II-Part 1-A, Entry 77 - Form l4-Octroi-Claim for concession under Rule (2) In payment of octroi at lower rate rate-Declaration to be med 10 form l4-Failure to file would disentitle company from claiming any such concession.
The concession can be granted only if the raw material is used in the industrial undertaking seeking such concession For that a verification was necessary and that is why in the rule itself it is mentioned that a declaration bas to be filed in Form 14 facilitating verification. Failure to file the same would automatically disentitle the Company from claiming any such concession.
Article 226-Withdrawal of Writ petition-Lengthy argument already held and court was likely to dismiss petition - At this stage prayer for withdrawal of petition can not be accepted.
MAHARASHTRA MUNICIPALITIES (OCTROI) RULES, 1968,
Schedule I, Item No. 77 and Schedule n, Part I-A (as inserted by Notification dated 20 1.1970, cl. I)-Duty on aluminium under Item 77 Schedule 1-Concessional rate of duty under clause (1) of Part l-A-Conditions precedent-Held, for availing concessional rate conditions precedent must be fulfilled, otherwise concessional rate not applicable.
When the Rules came into force on 14-8-1968, all non-ferrous metals which answer the description in entry No. 77 of Schedule I were subject to the minimum of Rs. 0.50% and maximum of Rs. 4.0% on the value of the goods. the concessional rate came into force only from 20-1-1970 when the Government of Maharashtra, in exercise of its power conferred by sub-section (2) Section 321 of the Maharashtra Municipalities Act, 1965 amended the Maharashtra Municipalities (Octroi) Rules, 1968. One of the amendments was that Part I-A was introduced after Part I in the original Rules. Clause (I) of Part I-A to the Schedule lays down, inter alia that the goods specified in entry No. 77 which is relevant to this petition, when imported by an industrial undertaking, shall be subject to octroi at a rate not exceeding 1.25 per cent and not less than 0.25 per cent. But this concessional rate is subject to two conditions:
(i) the goods in item No. 77 must have been imported by an industrial undertaking for use as raw material for processing within that undertaking; and
(ii) the goods in item No. 77 must have been imported by an industrial undertaking for use as raw material for processing within that untertaking ; and
(iii) the undertaking shall have made a declaration in respect thereof in form No: 14.
In view of these two statutory conditions, the concessional octroi prescribed by Part I-A is attracted only when the petitioners fulfil the two conditions set out above. Form No. 14 is annexed to the Rules which contains a declaration by the undertaking that it shall not use the goods for any other purpose for sale or otherwise dispose them of to any other party for any other purpose without paying the difference between the octroi due on such goods at ordinary rates and the octroi paid at concessional rates. The rule is intended to encourage the use of the non-ferrous metals as raw material within the undertaking by reducing the octroi duty. Where the undertaking wishes to use the goods in such manner as it pleases, it is required to pay the difference between the concessional rates and in the normal rates under entry No. 77. The concession in the octroi is subject to the two conditions precedent. If one of them is not fulfilled, the law does not allow the concession.
MAHARASHTRA MUNICIPALITIES (OCTROI) RULES, 1968,
Schedule I, Item No. 77 and Schedule n, Part I-A (as inserted by Notification dated 20 1.1970, cl. I)-Duty on aluminium under Item 77 Schedule 1-Concessional rate of duty under clause (1) of Part l-A-Conditions precedent-Held, for availing concessional rate conditions precedent must be fulfilled, otherwise concessional rate not applicable.
When the Rules came into force on 14-8-1968, all non-ferrous metals which answer the description in entry No. 77 of Schedule I were subject to the minimum of Rs. 0.50% and maximum of Rs. 4.0% on the value of the goods. the concessional rate came into force only from 20-1-1970 when the Government of Maharashtra, in exercise of its power conferred by sub-section (2) Section 321 of the Maharashtra Municipalities Act, 1965 amended the Maharashtra Municipalities (Octroi) Rules, 1968. One of the amendments was that Part I-A was introduced after Part I in the original Rules. Clause (I) of Part I-A to the Schedule lays down, inter alia that the goods specified in entry No. 77 which is relevant to this petition, when imported by an industrial undertaking, shall be subject to octroi at a rate not exceeding 1.25 per cent and not less than 0.25 per cent. But this concessional rate is subject to two conditions:
(i) the goods in item No. 77 must have been imported by an industrial undertaking for use as raw material for processing within that undertaking; and
(ii) the goods in item No. 77 must have been imported by an industrial undertaking for use as raw material for processing within that untertaking ; and
(iii) the undertaking shall have made a declaration in respect thereof in form No: 14.
In view of these two statutory conditions, the concessional octroi prescribed by Part I-A is attracted only when the petitioners fulfil the two conditions set out above. Form No. 14 is annexed to the Rules which contains a declaration by the undertaking that it shall not use the goods for any other purpose for sale or otherwise dispose them of to any other party for any other purpose without paying the difference between the octroi due on such goods at ordinary rates and the octroi paid at concessional rates. The rule is intended to encourage the use of the non-ferrous metals as raw material within the undertaking by reducing the octroi duty. Where the undertaking wishes to use the goods in such manner as it pleases, it is required to pay the difference between the concessional rates and in the normal rates under entry No. 77. The concession in the octroi is subject to the two conditions precedent. If one of them is not fulfilled, the law does not allow the concession.
2. This petition is placed before us for admission. We have heard Counsel for the petitioners and the respondents for over two hours. Learned Counsel for the petitioners made elaborate arguments and cited certain judicial decisions in support of his submission. We have not been persuaded in admit this petition.
3. The petitioner's case is this :---
They were misled into believing that the rate of octroi duty on aluminium, a non ferrous metal, under Entry No. 77 in Schedule-1 of the Maharashtra Municipalities (Octroi) Rules, 1968, hereinafter referred to as the Rules, was 2% ad-valorem. Under Entry No. 77 in Schedule-1, Octroi duty leviable on non-ferrous metals is between Rs. 0.50 and Rs. 4.00. The respondents have been levying and recovering the octroi at the rote of 2% ad- valorem. According to the petitioners the rate of octroi on aluminium is between 0.25% and 1.25% ad-valorem. They rely upon Clause (l) of Part 1-A of the Schedule to the Rules introduced by the Maharashtra Municipalities (octroi) Amendment Rules, 1970 which prescribes concessional rate of Octroi, on goods specified inter alia in entry No. 77 which are imported for processing "within the (importer's) undertaking and when declaration in respect thereof is issued by the undertaking in Form No. 14"1.
The respondents always led the petitioners to believe that the petitioners were not eligible to the concessional rate of octroi. The respondents published a booklet setting out the Schedule-1 of the Rules. This booklet does not state that import of aluminium carries octroi at the concessional rate. Similarly, the respondents in their Resolution No. 243 dated 6th December, 1973, referred to Part I-A of the Schedule to the Rules and sanctioned levy of octroi at concessional rates in respect of goods referred to in entries Nos. 4, 64, 65 and 70 of the Schedule, Since entry No. 77 under which aluminium falls, was not mentioned in the Resolution or the booklet, the petitioners thought that import of aluminium did not attract the concessional rate of octroi duty.
According to the petitioners, they paid excess octroi at 2% ad valorem notwithstanding the concessional rate of Rs. 0.25 to Rs. 1.25 to which they are entitled under Part 1-A of the Schedule to the Rules.
1. Rule (1) of Part 1-A
All goods specified in entries 6(c), 35, 40, 64, 66, 71, 77 and 86 in Schedule 1, and Khobra mentioned in entry 25, raw rubber and latex mentioned in entry 70 in that Schedule, when imported by an industrial undertaking for use as raw material for processing within that undertaking and when declaration in respect thereof is issued by the undertaking in Form 14, shall be subject to octroi by any Council at a rate not exceeding 1.25 per cent and not less then 0.25 per cent.
4. Neither the booklet published by the Respondents nor the Resolution can be the source of law in regard to concessional rate of octroi duty available on certain items. The law in regard to the payment, recovery and concessions in the payment of octroi duty is contained in the Maharashtra Municipalities (Octroi) Rules, 1968. Schedule to these Rules sets out the goods liable to octroi duty and the maximum and minimum rules leviable by the Rules. Item No. 77 of Schedule 1 reads:
"Non-ferrous metals, that is to say, brass, copper, tin, aluminium, lead, zinc, German, silver stainless steel, their alloys, wires, wares and sheets, ignots and circles".
Therefore, when the Rules came into force on 14- 8-1968, all non-ferrous metals which answer the description in entry No. 77 to Schedule I were subject to minimum of Rs. 0.50% and maximum of Rs. 4.0% on the value of the g
