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2025 Supreme(Bom) 1286
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
N.J. JAMADAR, J.
Jindal Poly Films Ltd. - Appellant
Versus
Navi Mumbai Municipal Corporation - Respondent
Writ Petition No. 1325 of 2022
Decided On : 09-06-2025
Advocate Appeared:
For the Appellants : Amrut Joshi, Tejas S. Mahamuni
For the Respondent: Sandip D. Ghaterao
Appellate proceedings under Section 406 of the Maharashtra Municipal Corporations Act are distinct from original proceedings, necessitating strict adherence to procedural rules.
Headnote:The petitioner contends against the rejection of an application for additional evidence in an appeal concerning cess assessment under the Maharashtra Municipal Corporations Act. The court affirms that appeal proceedings under Section 406 are to be treated strictly as appellate, not original proceedings. The petition is dismissed, confirming the learned Judge's discretion in such matters.
JUDGMENT :
N.J. JAMADAR, J.
1. Rule.
2. Rule made returnable forthwith and, with the consent of the counsel for the parties, heard finally.
3. The Petitioner takes exception to an order dated 27th April 2021 passed by the learned Civil Judge, Senior Division, Thane, on an Application for production of additional evidence, in Municipal Appeal No. 16 of 2004 (Exhibit “48”), whereby the said Application preferred by the Petitioner came to be rejected holding, inter alia, that the Petitioner-Appellant failed to satisfy the conditions prescribed in Rule 27 of Order 41 of the Code of Civil Procedure 1908 (“the Code”) for grant of permission to lead additional evidence.
4. Shorn of unnecessary details, the background facts leading to this Petition can be stated as under:
5. The Petitioner was engaged in import of various types of goods which were stored in its godown at Navi Mumbai, before sale. The Petitioner had imported goods into the area of Navi Mumbai Municipal Corporation, the Respondent, for use, consumption or sale therein. Under the provisions of Section 127 (2)(aa) of the Maharashtra Municipal Corporations Act 1949 (“the Act of 1949”), as it then stood, the Respondent was authorized to levy cess on those goods. The Petitioner was assessed under the Bombay Provincial Municipal Corporation (Cess on Entry of Goods) Rules 1996 (“the Rules of 1996”). The Petitioner had filed returns claiming refund of the cess paid by it under Rule 49 of the Rules 1996, claiming that the goods were exported outside the city.
6. Under Rule 25(3) of the Rules 1996, assessment proceedings were initiated. Eventually, by an Assessment Order dated 17th April 2004, the Deputy Municipal Commissioner (Cess), disallowed the refund claimed by the Petitioner holding, inter alia, that the sale and delivery of goods was completed within the limits of Navi Mumbai and the goods were not exported, as claimed. The Petitioner was held liable to pay total dues of Rs.18,64,533/-.
7. Being aggrieved, the Petitioner preferred an Appeal under the provisions of Section 406 of the Act of 1949, being Municipal Appeal No. 16 of 2004, before the learned Civil judge, Thane. It may not be necessary to elaborately note that the proceedings which ensued in the said Appeal. Suffice to note that the Respondent filed a Written Statement, issues were settled and, by an order dated 13th January 2020,an Application preferred by the Petitioner to amend the Appeal memo came to be allowed.
8. Thereafter, the Petitioner preferred an Application seeking permission to produce additional evidence (Exhibit “48”) asserting that the Petitioner had transferred the goods from the godown at Navi Mumbai to various other branch offices of the Petitioner and the said fact was evidenced by the check-post receipts, account books, gate pass- delivery challans as well as sales register etc. However, the concerned Deputy Municipal Commissioner (Cess) did not take on record and consider those documents. It was, therefore, necessary to allow the Petitioner to produce additional evidence before the learned Judge.
9. The Application was resisted on behalf of the Respondent by filing a Reply contending, inter alia, that the proceeding before the learned Judge was an Appeal under Section 406 of the Act of 1949 and not the original proceeding. Therefore, the Petitioner was not entitled to lead additional evidence as a matter of right. On facts as well, the Respondent countered the claim of the Petitioner. It was contended that the documents, then produced by the Petitioner, were duly considered by the Assessing Officer.
10. By the impugned order, the learned Judge was persuaded to reject the Application observing that the proceeding before the learned Judge under Section 406 of the Act of 1949 was required to be treated as an Appeal and, thus, the Petitioner-Appellant was required to satisfy the conditions prescribed under Order 41 Rule 27 of the Code.
11. Being aggrieved the Petitioner has invoked the writ jurisdiction.
