IMPORTANT POINT
A claim for tax refund requires proof that the burden was not passed on to consumers, and failure to protest payments undermines the claim.

JUDGMENT :

M.S. SONAK, J.

1. Heard learned counsel for the parties.

2. The Petitioner, by instituting this Petition, seeks the following reliefs:

“(a) that this Honourable Court be pleased to declare that the determination of the value for the purposes of levy of octroi by the Respondents In the Petitioners' case under Rule 2(7)(b) of the Octroi Rules 1965 is unconstitutional, illegal and ultravires the provisions of Rule 2(7) of the Octroi Rules, 1965 and/or the provisions of the Municipal Corporation Act, 1888.

(b) that this Honourable Court be pleased to issue a writ of certiorari or a writ in the nature of certiorari or any other appropriate writ, order or direction, calling for the papers pertaining to this case and after going into the question of legality and thereof to quash and set aside the assessment of octroi duty in respect of the said goods brought into the limits of Greater Bombay by the Petitioners on the basis of MRP less ad hoc deductions in terms of Rule 2 (7) (b) of the Octroi Rules, 1965.

(c) that this Honourable Court be pleased to issue a writ of mandamus or a writ in the nature of mandamus or any other appropriate writ order or direction ordering and directing the Respondents, their officers, subordinates, servants and agents (i) to forthwith forebear and/or desist from levying the octroi duty on the basis of the MRP in terms of Rule 2(7)(b) of the Octroi Rules, 1965, (ii) to forthwith levy and collect octroi duty on the basis of the invoice value under Rule 2(7)(4) of the Octroi Rules, 1965; (iii) to forthwith refund the amount of 1,12,87,269/- together with interest thereon at the rate of 24% per annum being the additional amount levied, and wrongly collected towards payment of octroi duty by the Respondents from the Petitioners as per the details contained in (Exhibit-H hereto).

(d) that this Honourable Court be pleased to issue a writ of prohibition or a writ in the nature of prohibition or any other appropriate writ, order or direction, restraining the Respondents their servants and agents from levying and collecting octroi duty on the said goods brought in to the limits of Greater Bombay by the Petitioners on the basis of the MRP in terms of Rule 2(7)(b) of the Octroi Rules, 1965.

(e) that pending the hearing and final disposal of this Petition, this Honourable Court be pleased to restrain the Respondents, their servants and agents from levying and collecting octroi duty on the said goods brought in to the limits of Greater Bombay by the Petitioners on the basis of the MRP in terms of Rule 2(7)(b) of the Octroi Rules, 1965 and to direct the Respondents their servants and agents to forthwith levy and collect octroi duty on the basis of the invoice value under Rule 2(7)(a) of the Octroi Rules, 1965.”

3. This Petition was directed to be taken up along with First Appeal No. 431 of 2002. However, Mr. Motwani, learned counsel for the Petitioner, submitted that First Appeal No. 431 of 2002 has been dismissed for non-prosecution. Accordingly, we proceed to consider Writ Petition No. 2302 of 2001.

4. The rule was issued in this Petition on 20 February 2002, and Interim Relief was granted in terms of prayer clause (e).

5. This Petition concerns the octroi duty paid by the Petitioner to the Respondent- Corporation between April 1995 and March 2001. There is neither any record nor any clear averment in the Petition that the octroi duty for the said period was paid by the Petitioner “under protest” or “without prejudice” to the Petitioner’s rights to question the levy or to question the alleged overcharging.

6. However, from March 2001, the Petitioner protested the alleged overcharging and required the Deputy Assessor and Collector (Octroi) - Respondent No. 2 to decide on the merits of the Petitioner’s Application dated 16 March 2001. Therefore, by an Interim Order dated 27 November 2001 made in this Petition, we directed the 2nd Respondent to decide the Petitioner’s Application dated 16 March 2001 on merits within six we