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1999 Supreme(Ori) 30
High Court Of Orissa
ARIJIT PASAYAT, PRADIPTA RAY
BARADA KANTA MOHANTY - Appellant
Versus
STATE OF ORISSA - Respondent
ORIGINAL JURDN. CASE 1270 Of 1999
Decided On : 03/09/1999
A.K.Baral, A.R.MOHANTY, ARUN MISHRA, G.S.PANDA, L.PRUSTY, M.BHANJA, N.MOHANTY, R.PATIL, S.K.Nayak
The effective date of withdrawal of exemption from octroi is the date of publication of the Notification in the Official Gazette, not the date of the Notification or the date of printing.
Headnote:
OCTROI - EDIBLE OILS - EXEMPTION - WITHDRAWAL - PUBLICATION OF NOTIFICATION - INTERPRETATION - LEGAL EFFECT:
Fact of the Case:
Petitioner, Cuttack Chamber of Commerce, challenged the collection of octroi on imported edible oils under S. 131 (1) (kk) of the Orissa Municipal Act, 1950, claiming exemption granted by Notification dated 30th September, 1985. The Corporation asserted that the exemption was withdrawn by Notification dated 26th November, 1998, and collection of octroi was authorized by SRO No. 92/98 dated 5th March, 1998.
Finding of the Court:
The Court held that the exemption granted by Notification dated 30th September, 1985, was valid and effective until its withdrawal by Notification dated 26th November, 1998. The Court interpreted the term "publication" in the context of the requirement to publish notifications in the Official Gazette and held that the effective date of withdrawal of exemption is the date of publication of the Notification in the Official Gazette, not the date of the Notification or the date of printing.
Issues: 1. Whether the exemption granted by Notification dated 30th September, 1985, was valid and effective? 2. Whether the exemption was withdrawn by Notification dated 26th November, 1998? 3. Whether the collection of octroi on imported edible oils was authorized by SRO No. 92/98 dated 5th March, 1998?
Ratio Decidendi: 1. The Court interpreted Section 188-A of the Orissa Municipal Act, 1950, which empowers the State Government to exempt any class of commodities from levy of octroi, and held that the exemption granted by Notification dated 30th September, 1985, was valid and effective. 2. The Court interpreted the term "publication" in the context of the requirement to publish notifications in the Official Gazette and held that the effective date of withdrawal of exemption is the date of publication of the Notification in the Official Gazette, not the date of the Notification or the date of printing. 3. The Court held that the Notification dated 26th November, 1998, which withdrew the exemption granted by Notification dated 30th September, 1985, was valid and effective from the date of its publication in the Official Gazette.
Final Decision: The Court held that the collection of octroi on imported edible oils before the publication of the Notification dated 26th November, 1998, in the Official Gazette was unauthorized. The Court directed the Municipal Corporation to refund the octroi collected during that period if a prayer is made in that regard.
A. PASAYAT, J.
( 1 ) PETITIONER purporting to be the General Secretary of Cuttack Chamber of Commerce, Malgodown, Cuttack has filed this writ application on behalf of its members challenging collection of octroi under S. 131 (1) (kk) of the Orissa Municipal Act, 1950 (in short 'the Act') in respect of imported edible oils.
( 2 ) WITH reference to a Notification No. 711/85 dated 30th September, 1985 issued by the Housing and Urban Development Department it is pleaded that collection of octroi on imported edible oils is unauthorised. A copy of the said Notification dated 30th September, 1985 is annexed as Annexure-1 to the writ application. Certain receipts have been filed to show that octroi has, in fact, been collected on the imported R. B. D. Palm oil. The Cuttack Municipal Corporation (in short "the Corporation") has taken the stand that the Housing and Urban Development Department by order dated 5th March, 1998 has accorded sanction to the imposition of octroi on various goods and serial No. 4 of the order deals with Dalda, Vanaspati Ghee and all types of oil and, therefore, collection of octroi is legal. The collection is to be made at the rate of 1%. It is further submitted that by Notification dated 26-11-1998 the Government of Orissa in Housing and Urban Development Department decided to withdraw the concession granted in the Notification dated 30-9-1985. A copy of the said Notification is annexed as Annexure-B/2 to the counter affidavit. The Notification is to take effect from the date of its publication in the Orissa Gazette. It is stated that the Notification dated 26-11-1998 (S. R. O. No. 762/98) has been duly published in the Orissa Gazette, Extraordinary, No. 1568 dated 1-12-1998.
( 3 ) THE stand of the Municipal Corporation in short is that when State Government accorded sanction for levy of octroi on different goods brought within the limits of Cuttack Municipal Corporation at the specified rate vide order dated 5-3-1990, it meant that the exemption granted by Notification No. 30318-HUD dated 30th September, 1985 automatically stood revoked, so far as Cuttack Municipal Corporation is concerned.
( 4 ) ACCORDING to the petitioner, even if stand of Corporation is correct, the exemption which was granted has been withdrawn by Notification dated 26-11-1998 and is to take effect from the date of its publication in the Orissa Gazette. Though the Gazette is dated 1-12-1998, as the copy of the Gazette filed shows it was printed on 6-12-1998. That being the position, the stand that in view of SRO No. 92/98 dated 5th March, 1998 the exemption granted earlier stood withdrawn is fallacious.
( 5 ) IN order to appreciate the rival submissions it is necessary to take note of few provisions of the Act. Section 131 appearing in Chapter XIII (Municipal Taxation) relates to the power to impose taxes, and Section 131 (1) (kk) deals with the power to impose octroi on goods brought within the limits of a municipal area for consumption, use or sale therein. Section 188-A by exercise of which the Notification dated 30th September, 1985 was issued reads as follows :-"188-A. Exemption from and compounding of Octroi - (1) The State Government after consultation with the municipality may, by notification, exempt :- (a) any class of commodities; or (b) any new industry established within the municipal area from levy of octroi;provided that in cases coming under clause (b) the exemption shall be for such period, not exceeding five years from the date the industry first goes into production, as may be fixed by the State Government. (2) The State Government may on their own motion or on application made in that behalf and after consulting the municipality revise the rate of octroi. (3) The municipality may in such circumstances and subject to such conditions as may be prescribed, permit any person to compound the octroi payable by him by paying in lieu thereof a lump sum amount to be determined in the prescribed manner. "the Notification r
