Back
1992 Supreme(Bom) 184
IN THE HIGH COURT OF BOMBAY
M.L. Pendse M.G. Chaudhari, JJ.
Asmaco Plastic Industries and another ... Petitioners.
Versus
Municipal Corporation for City of Thane and others ... Respondents.
Writ Petition No. 940 of 1984, decided on 25/26-3-1992.
Advocates appeared :
M.O. Chinoy, D.Y. Chandrachud i/by Bootwala Co., for the petitioners.
K.K. Singhvi with P.K. Singhvi, for respondent Nos. 1 and 3.
Headnote:BOMBAY PROVINCIAL MUNICIPAL CORPORATION ACT, 1949 Section 127 and Maharashtra (Octroi) Rules, 1968 Sch. I, Items 40 (b), and 53 (c)-Poly vinyl Chloride Resin imported by petitioner-Within octroi limits of Corporation-Was neither plastic nor plastic powder, not chemical.
Held-PVC Resin liable to octroi duty under Item 40 (b) of Schedule I to Octroi Rule.
Section 127-Maharashtra Municipalities (Octroi) Rules 1968-Sch. I, items 40 and 53-Import of PVC resin-Levy of Octroi on- Whether liable to duty-PVC resin neither plastic nor plastic powder, but chemical-Consequently liable to octroi duty under item 40 (b)-PVC resin-Whether plastic or chemical-Determination of.
The heading annexed to each of the classes in schedule I to the octroi rules serves as an integral part of the schedule itself and the entries in different classes should be read in association with the headings to fix the identity of the articles. Thus PVC Resin imported by the petitioners within the octroi limits of the respondents-corporation is neither plastic nor plastic powder but chemical and consequently liable to octroi duty under item 40 (b) of Schedule f to the Octroi Rules.
Further taking into consideration the placement of expression plastic powder in item no. 53 under class TV clearly indicates that the article is not intended to be used for industrial purpose. The plastic powder may he a chemical but it would certainly not fall under item 40 (b) under class III, as the chemicals under item 40 must have been imported for industrial use.
Section 406-Constitution of India. Article 226-Levy of octroi on import of PVC film used In manufacture of PVC film-Appeal against Maintainability of-Alternative remedy of statutory appeal.
Corporation not resisted petition at time of admission by raising plea of alterative remedy. Writ petition pending for last about eight years. No dispute on facts requiring examination in statutory appeal. Appropriate if claim of petitioners examined and decided in exercise of writ jurisdiction.
There was no dispute as regards the nature of the articles imported and for what Use PVC resin was imported. In these circumstances, it would be improper to drive the parties to fresh bout of litigation and it would be appropriate if the claim of the petitioners was examined and decided in exercise of writ jurisdiction.
Section 406 and 127.
See Constitution of India, Article 226.
Article 226 and Bombay Provincial Municipal Corporation Act (59 of 1949) Sections 406 and 127 and Maharashtra Municipalities (Octroi) Roles, 1968, Schedule I, Items 40 (b) and 53 (c) Levy of Octroi duty whether on PVC Resin under Item (c) Petition against Petitioners to be desired relief under Article 226-Petition pending in High Court for last about eight years Perusal of petition indicating that there was no dispute on fact requiring examination in a statutory appeal- Not proper to drive parties to fresh about of litigation on ground availability to petitioners efficacious alternative remedy of filing appeal as provided in Section 406 of the Act - High Court not to refuse to exercise jurisdiction under Article 226.
Schedule I, Items 40 (b), 53 (c) and Constitution of India, Article 226-Octroi duty on PVC Resin-Pain in excess by petitioners during pendency of petition on direction of High Court.
Corporation undertaking to refund excess amount of Octroi duty in case petitioners succeeded. Liability of Corporation. Not open to Corporation to plead ground of unjust enrichment when Corporation gave solemn undertaking to court to refund amount in case of success of petitioners in petition. Corporation bound to refund excess duty to petitioners.
Schedule I, Items 40 (b) and 53 (c). See Constitution of India, Article 226.
Schedule I, Items 40 (b) and 53 (c).
See Bombay Provincial Municipal Corporation Act, 1949, Section 127.
"40(a) All kinds of inedible fats, tallow, lards etc. not used as food.
(b) Chemicals of all sorts, Sodium sulphate, Sizing salt, Sulphate or iron, Sulphate of Copper, Sulphate of alumina, Silicate of Soda, Caustic Soda and other salts not otherwise specified, Sulphur Chlorate of potash, Strauntia, Zinc Chloride, Magnesium Chloride, Salt petre, Acids of all kinds, Salamoniac, Borax, Sizing flour."
Item No. 53 is covered by Class V. The head note of which reads-Perfumes, toilet requisites, Colours and Household goods.
53(a) Hair oil, perfumed oils, perfumery of all kinds, scents, attars, scented material, incense sticks, aromatic chemicals, toilet requisites of all kinds, shaving cream, shaving sticks, tooth powder, tooth paste, pomade, combs, brushes, looking glasses, hairpins, braces garters and suspenders.
(b) Scissors, razors, safety razors, blades, knives, pen knives, spoons, forks, cutlery of all kinds, needles of all sorts, locks and keys, stoves and petromax and their part and accessories and hardware articles.
(c) Laces, tapes, rings of wood and metal, embroidery articles, celluloid and celluloid articles, beads of all sorts, imitation pearls, plastic and plastic goods, plastic powder, bakelite and bakelite goods, articles made of ivory and bones and all sorts of buttons and haberdashery.
(d) All kinds of furniture such as wooden, iron, steel, cane etc.
(e) Umbrellas, rain coats, rain hats, and caps.
The octroi duty is levied at a rate of 2% on the value of the goods which falls under item No. 53(c) while the octroi duty payable in respect of articles falling under item 40(b) are at the rate 0.5% of the value of the goods.
2. The petitioners are regularly importing within the octroi limits of the Corporation, PVC Resin (Poly Vinyl Chloride Resin) for the purpose of consumption in their factory for manufacture of PVC films, tubings and laminated cotton fabrics etc. The petitioners were initially paying octroi duty at the rate of 2% on assumption that the imported articles fall under item 53(c) of schedule I. The petitioners claim that on realisation that certain other importers of the same articles were charged duty at the rate of 0.52% only, the petitioners made representation to the Corporation and the Chief Officer of the Municipal Corporation granted permission to pay octroi duty at 0.6% which was the increased rate prevailing at the relevant time. The octroi duty at 0.6% was levied on the basis that the imported articles fall within item 40(b) of schedule 1.
3. On January 21, 1984 the Additional Octroi Recovery Officer of the Corporation informed the petitioners that the petitioners are liable to pay octroi duty under item No. 53(c) at 2.5% of the value of the goods. The petitioners made representation pointing out that the items imported by the petitioners is not used as a household article but is used or consumed for industrial propose. The Corporation informed the petitioners by letter dated Febru
