The liability to pay octroi duty under Section 104 of the Rajasthan Municipalities Act, 1959, falls on the person or authority who brings the goods within the municipal limits for consumption, use, or sale.

1. - These two Civil First Appeals Nos. 40 of 1973 and 64 of 1973 are directed against one common judgment dated September 4, 1972 of District Judge, Kota in Civil Suits Nos. 16 of 1967 and 17 of 1967.

2. The plaintiffs in both the suits are licencees for retail sale of country liquor. They have got their shops in municipal limits of Kota. The Warehouse is located within the municipal limits of Kota. The plaintiffs take liquor from the Warehouse inside the city of Kota. The Municipal Council, Kota, used to realise control duty from these licencees when they take liquor from the Ware house.

3. In suit No. 16 of 1967. The plaintiff paid Rs. 17,320.89 as octroi duty for the period April 1, 1964 to March 31, 1965. In suit No. 17 of 1967, the amount paid by way of octroi duty from April 1, 1965 to March 31, 1966 is Rs. 23,875.89.

4. In both the above suits the Municipality has admitted the realisation of this octroi duty.

5. The case of the plaintiffs was that since they were not begging any goods within the municipal limits, no octroi duty can be charged from them, because they were purchasing liquor from the warehouse located within the municipal limits of Kota.

6. The common question that was raised on behalf of he Municipality was that the liquor was kept in deposit in the Warehouses; that the Government was not selling it from the Warehouses to any retailers but only to the licences on paying the excise duty; that formerly the Excise Department realised the octroi duty and paid it to the Municipality. Thereafter an order was passed by the Government by which it was ordered that the octroi duty was to be paid by the licencee directly and therefore, the octroi posts were installed near the Ware against judgment & decree dated 4-9-72 passed by Shri Umrao Chand Mehta. D.J. Kota in C.S. Nos. 1 & 17/67. houses and the amount was realised before the licensees could get the liquor from the said Warehouses after paying the excise duty, it was them contended that what was realised by the Municipality was in accordance with law and the suit was not maintainable. It was further alleged that the suit was barred under the Rajasthan Municipalities Act, 1959.

7. Issues were framed in each of the suits as under:--Suit No. 16 of 1967 :

1. Whether a sum of Rs. 17,320.89 P. was realised as octroi duty on liquor from the plaintiff ?

2. Whether the octroi duty realised from the plaintiff was illegal and the plaintiff is entitled to the recovery of the same ?

3. Is the suit time barred ?

4. Is the suit barred by the Rajasthan Municipalities Act ?

5. Whether the plaintiff had the right to realise octroi duty from the consumers ?

6. Relief ?
Suit No. 17 of 1967 :

1. Whether the octroi duty was paid by the plaintiff under legal misconception and it was realised illegally by the defendant ?

2. Whether the plaintiffs paid a sum of Rs. 23,875.89 P. as octroi duty and is entitled to get it back ?

3. Relief ?

8. The principal question which requires adjudication in this case is whether even though the plaintiffs have not imported goods from outside within the municipal limits, yet the Municipal Council, Kota, was justified in realising octroi duty under Section 104 of the Rajasthan Municipalities Act, 1959, because the Warehouse was being maintained by the Excise Department for storing of the liquor and the liquor ultimately used to be sold to excise contractors.

9. Section 104 of the Rajasthan Municipalities Act, 1959 reads as under:-

"104. Obligatory taxes - (1) Every board shall levy at such rate and from such date as the State Government may in each case direct by notification in the official gazette and in such manner as is laid down in this Act and as may be provided in the rules made by the State Government in this behalf, the following taxes, namely: (1) a tax on the annual letting value of buildings or lands or both, situated within the municipality;

(2) an octroi on goods and animals brought within the limits of the municipality for consumption use or sa