JUDGMENT :- This is plaintiff' s ap­peal against the appellate decree of the District Judge, Ratnagiri allowing the defendant' s appeal against the decree passed by the Civil Judge, Senior Divi­sion, Ratnagiri.

2. The appellant-plaintiff is a firm doing transport business with its Head Office at Ratnagiri. The firm owns many trucks. In Dec. 1962, the plaintiff brought two trucks bearing registration Nos. M. H. T. 501 and M. H. T. 502 with goods. The octroi was paid on the goods brought by the trucks but no octroi was paid on the trucks. On 9th Feb. 1963 and 4th April 1964, the Municipal Council issued notices demanding octroi duty on those trucks on the ground that the plain­tiff had brought those trucks for use in the octroi limits of the Municipal Coun­cil. The plaintiff paid the octroi duty on 16th June 1964 under protest. The ap­pellant then served a notice on the de­fendant demanding the refund of the octroi stating that the octroi was illegally collected because the motor trucks were not goods and that the plaintiff had not brought those trucks for use in the Municipal limits. The Municipal Council did not refund the amount and the plaintiff filed a suit in the Court of Civil Judge, Senior Divi­sion, Ratnagiri. This suit was resisted by the defendant on the ground that the plaintiff had brought those trucks with­in the octroi limits for use and that the trucks were goods and, therefore, the octroi was validly levied.

3. The learned Judge framed neces­sary issues. The parties led evidence. The learned Judge, after examining the mate­rial, came to the conclusion that the de­fendant has wrongly levied the octroi duty on those two trucks. He, therefore, decreed the plaintiff' s suit. The defendant, thereafter, filed an appeal before the District Judge, Ratnagiri, who, after hearing the parties, held that the motor trucks were goods as understood by clause (iv) of sub-sec. (1) of S. 73 of the Bombay Municipal Boroughs Act and that the plaintiff had brought those trucks for use within the octroi limits. Therefore, the octroi has been validly levied. He, therefore, allowed the appeal and dismissed the plaintiff' s suit. It is against this judgment that the present appeal has been filed.

4. Mr. Abhyankar, the learned coun­sel for the appellant, took me through both the judgments and the relevant provisions of the Bombay Municipal Boroughs Act. He invited my attention to the decision of this court in Chunilal Jethalal v. Ahmedabad Borough Munici­pality reported in 41 Bom LR 1249 : (AIR 1940 Bom 41) and urged that the learned Judge ought to have followed that decision. It is not possible to accept this contention of the learned counsel for the appellant. That case deals with cl. (ii) of sub-sec. (1) of S. 73 of the Bombay Municipal Boroughs Act. Under that clause, the Municiplity is authorised to levy a tax on all vehicles, boats, or animals used for riding draught or bur­den and kept for the use within the said Borough, whether they are actually kept within or outside the said Borough. Un­der cl. (iv) of sub-sec. (1) of S. 73, the octroi duty is levied on animals or goods or both, brought within the octroi limits for consumption, use or sale. Under cl. (ii), tax is leviable when these things are kept for use within the octroi limits, while under cl. (iv), introduction of the goods and animals for sale, use and con­sumption invites the incidence of the tax. Therefore, the decision cited is not applicable with the facts of this case. As stated earlier, the incidence is on the introduction of the animals and the goods within the octroi limits for sale, use and consumption.

5. Here, in this particular case, it has been found that the plaintiff was doing transport business with its Head Office at Ratnagiri. He had a workshop there and he paid Wheel Tax on these vehicles also. When these two vehicles were re­gistered with the Regional Transport Officer, the address supplied by the ap­pellant in respect of these vehicles was also of Ratnagi

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