The classification of imported machinery under specific entries in the octroi schedule prevails over general entries, confirming liability for octroi tax and penalties.

JUDGMENT

Mrs. Sudeepti Sharma, J.

Challenge in the instant writ petition is to order dated 05.09.1998 issued by the Commissioner, Municipal Corporation, Faridabad; order dated 07.05.1999 passed by Commissioner, Gurgaon Division and order dated 04.03.2002 passed by Commissioner and Secretary to Government of Haryana Urban Development Department, Chandigarh.

2. Brief facts of the case are that petitioner-company is running the business of manufacturing and exporting garments since 1994. For manufacturing of garments, it required Embroidery Machine and subsequently, the petitioner-company imported "Electronic Embroidery Machine" within the Municipal Limits of Faridabad Corporation, without payment of the octroi tax. The Inspecting Team of the department found that the said "Electronic Embroidery Machine" had been brought within the limits of the Corporation in two containers. Since one container was found inside the factory premises of M/s BPL on one gate and other container was lying outside the gate, the Inspecting Team asked the Gate security of M/s BPL to produce the relevant papers and the Octroi receipt of the said consignment but there was no receipt of payment of octroi tax. Therefore, the petitioner-company was also held liable to deposit the assessed amount of Rs. 2,49,192/- as actual octroi under Entry 76 (ii) and penalty @ 10 times of the octroi assessable i.e Rs. 24,91,920/- totaling Rs. 27,41,112/- to the Municipal Corporation Faridabad, as per Section 112 of the Haryana Municipal Act, 1994.

3. The petitioner instead of depositing the above payment, filed CWP No. 13801-1998, seeking relief to allow the petitioner to unpack and use the embroidery machine by installing the same in their factory and to charge the octroi tax at the machine under Entry No 100 of the Octroi Schedule instead of Entry No. 76 (ii). This Court, vide order dated 02.09.1998 disposed of the writ petition and the order is reproduced below:-

"This petition has been filed for quashing the action taken by the respondent Municipal Corporation, Faridabad to realise the octroi from the petitioner under item 76 of the octroi schedule and levy of penalty which is equivalent of 10 times the amount of octroi. Since the respondent Municipal Corporation has entered caveat and the copy of the petition was made available, we asked Shri. Girish Agnihotri, Counsel representing respondent no.2 and 3 to produce the record of the petitioner's case before the court.

We have heard Shri. I.K. Mehta, Senior Advocate appearing for petitioner and Shri. Girish Agnihotri, Counsel for the respondent nos. 2 and 3 and have gone through the record produced by Shri. Agnihotri. It is revealed from the record that the orders of assessment passed by the competent authority for levy of octroi and penalty were not communicated to the petitioner depriving it to avail the statutory remedy of appeal under section 138 of the Haryana Municipal Corporation, Act 1994 (Hereinafter referred to as the Act). Learned Counsel for the respondents could not give any plausible explanation why the authorities of the Municipal Corporation did not communicate the orders of assessment and imposition of penalty to the petitioner. However, keeping in view the fact that statutory remedy of appeal is available to the petitioner, we refrain from exercising our jurisdiction under Article 226 of the Constitution to interfere with the orders of assessment and penalty. Instead, we deem it proper to dispose of the writ petition with the following directions:-

(i) Within two days from today the petitioner shall deposit the amount of octroi i.e. Rs. 2,49,192/- in the form of Bank Draft with the Commissioner, Municipal Corporation, Faridabad and also furnish bank guarantee in respect of the amount of penalty.

(ii) Within the period of two days, the Municipal Corporation shall communicate the orders of assessment and penalty to the petitioner.

(iii) Within twelve hours of receipt of bank draft and documents of bank guaran