1992 Supreme(Bom) 386

IN THE HIGH COURT OF BOMBAY
Dr. Saraf B.P., J.
Bhor Industries Limited another.... Petitioners.
Versus
Municipal Corporation of Greater Bombay others .... Respondents.
Writ Petition Nos. 1146 of 1988 1333 of 1989, decided on 19-8-1992.
Advocates appeared :
S.S. Dharmadhikari i/b. Kanga Co., for petitioners.
R.L. Dalal with G.V. Murthy M.V. Shetty, for respondents.

Headnote:Section 192 (I), Item No. 32 (c) or Schedule H-P. V. C. Resin and Synthetic Hydrocarbon-Resin imported within octroi limits or corporation whether liable to octroi-Held, No.

       Held- PVC Resin and Synthetic Hydrocarbon Resin imported by the petitioners within the octroi limits of the Municipal Corporation of Greater Bombay are neither plastic powder and, as such, not liable to octroi under Item 32 (c) of Schedule H to the Bombay Municipal Corporation Act.

       Section 192 (1) Item No. 32 (g) of Schedule H-Municipal Corporation of Greater Bombay, Octroi Rules, 1965-Rule 26-Con.titution of India-Article 226 and Limitation Act (36 of 1965)-Article 113-Chim for refund of octroi collected without authority of law-Applicability of limitation as prescribed by Rule 26-Petitioner is entitled of refund to octroi.

       The petitioners paid the octroi in respect of P. Y. C. Resin imported and brought by them into the Municipal limits of the respondent Municipal Corporation of Greater Bombay right from September 1984 onwards. In August 1987, the petitioners noticed two judgments of High Court wherein interpreting Item 15 of the First Schedule to the Central Excises and Salt Act, 1944 it had been held, inter alia, that PYC Synthetic Resin was not plastic. The petitioners thereupon made claim, for refund of the octroi paid by them on PYC Resin between September 1984 to September 1987. The first such claim was made on 2nd September, 1987. By another letter dated 17th December, 1987, the petitioner requested the third respondent, Deputy Assessor and Collector (Octroi) to consider the practice of charging octroi on PYC Resin and issue necessary directives exempting PVC Resin from octroi. The petitioners in the said letter specifically referred to the two decisions of High Court and gave reasons in support of their contentions.

       The respondent rejected the claim of the petitioners for refund of the octroi already collected from them on the ground that the goods in question had been correctly charged under Item No. 32 of Schedule H.

       The petitioner, therefore, filed a writ petition on 15-4-1988 seeking refund of octroi duty paid by them for the period September 1984 to September 1987. The Corporation contended that the petitioner had paid octroi duty without protest. it disputed the fact that the petitioner came to know of the earlier decisions of the High Court holding that PYC resin was not plastic only in August 1987. The Corporation also objected to refund on ground of unjust enrichment and being against the public policy. Saying that the Corporation having collected duty had already utilised the same for various development and welfare activities of general public nature and hence refund on the amount would cause hard hip to Corporation and would be against public policy. The plea of unjust richment was on the ground that the petitioner had recovered amounts by way of octroi from dealers or customers to whom it had sold goods and refund order would amount to allowing petitioner to unjustly enrich itself at cost of public to whom burden had already passed. Limitation plea was based on Rule 26 of octroi Rules, 1965 which prescribed limitation period of three months for making refund claim:

       In the alternative the contention was that if the limitation period prescribed by Rule 26 was not applicable to claim of refund of octroi, collected without authority of law such claim would be governed by limitation period prescribed under Article 113 of Limitation Act, which was applicable to snits for recovery of payment made under mistake of law. The petitioner having submitted that principle of unjust enrichment was not applicable to facts of the case as he had not sold the goods imported by them to any body but had used them for manufacture of certain goods.

       Held-In the instant case, there was no case of unjust enrichment of the petitioners nor the refund was against any public policy. The objections to the refund on the ground of unjust enrichment and being against the public policy, therefore did not stand to reason and the same were accordingly liable to be rejected.

       So far as Rule 26 was concerned the period prescribed therein was not inflexible one. The Commissioner had the power under this Rule itself, to allow the application for refund to be filed within such longer period as he might in any special case or class of cases, allow. That however, was not very material in instant case in view of the fact that the said rule was applicable to refund of octroi paid under the Act but was not applicable to refund of octroi collected without any authority of law, as in instant case. So far as limitation period of three years was concerned, though three years period was normally taken as the ordinary period beyond which the courts might not grant relief, that was not an inflexible rule. It depended on the facts of each case.

       Considering the totality of the facts and circumstances of the instant case the claim of refund should be confined to amounts recovered by respondent within a period of three years prior to filing of writ petition which was filed on 15th April, 1988. Accordingly, the refunds in respect of claims covered by writ petition might be restricted to recoveries made on or after 16th April, 1985.