Decided on February 23,1982



Tulzapurkar, J. - (1.) The aforesaid five appeals, the first two on a certificate granted by the Madhya Pradesh High Court and the last three by special leave granted by this Court, raise a common question in regard to refund of octroi duty collected by the appellant-Council from the respondent firms and are, therefore, disposed of by common judgment. The principal question raised in these appeals relates to the proper construction of R. 27 of the Octroi Rules of Damoh. Municipal Council (the appellant) framed in exercise of powers conferred by Ss. 71, 76 and 85 of the Central Provinces and Berar Municipalities, Act, 1922 - which Rules were continued in operation even after the coming into force of the new Act, the Madhya Pradesh Municipalities Act, 1961 and the question arises in these circumstances:
(2.) The two respondent firms in the two sets of appeals (M/s. Vraj Lal Manilal and Co. and M/s. Prabhudas Kishoredas) carry on business of manufacturing and selling bidis in Damoh and other cities in Madhya Pradesh and for that purpose they import tobacco and other raw material, into the municipal limits of Damoh city and after manufacturing bidis out of such imported raw material they export their finished product (bidis) outside Damoh municipal limits. The respondents' case was that at the time of import of tobacco and other raw material into the municipal limits of Damoh they paid octroi duty as per Octroi Rules of the appellant Council and after utilising the said raw material for preparing bidis when they exported the manufactured bidis outside the limits of the appellant Council, they were entitled to a refund of the octroi duty paid by them on the raw material so utilized under R. 27 of the Octroi Rules but in spite of refund vouchers having been issued by the concerned official of the appellant council and In spite of having complied with the Rules and procedure prescribed in that behalf, the appellant Council refused to pay the amounts of the refund vouchers to them. In Civil Appeal No. 1048 of 1970 since the claim for refund to the sum of Rs. 33,409.52 based on 1866 refund vouchers relating to the period from 4-12-1952 to 12-12-1959 arose under the old Act, namely, Central Provinces and Berar Municipalities Act, 1922, the respondent firm, M/s. Vraj Lal Mani Lal and Co. filed an appeal before the Sub-Divisional Officer, Damoh under S. 83 (1-A) of the Act against the refusal of the appellant-Council to make the refund. Apart from raising technical pleas such an non-maintainability of the appeal, bar of limitation etc. the appellant Council resisted the claim on merits on the two grounds:(a) that since the raw material had been used or consumed in the manufacture of bidis and since the exported goods (finished products) were not the same or identical as the imported raw material on which the octroi duty had been paid no refund under R. 27 (b) was available to the respondent firm and (b) that the respondent firm had failed to prove to the satisfaction of the Municipal Council as required by the proviso to R. 27 (b) that the same or identical goods were being exported on which import octroi had been paid by them. The Sub Divisional Officer by his order dated 30th June, 1961 negatived the technical pleas of the appellant council, which order was finally confirmed by the High Court on 25th February, 1963. The Sub Divisional Officer also overruled the defences raised by the appellant Council on merits and by his final order dated 4th Apr. 1964 directed that the amount of 1866 refund, vouchers aggregating to Rs. 33,409.52 minus the amount recovered under 19 vouchers should be refunded to the respondent firm. The appellant Council went in revision to the State Government but the same was dismissed on 28th Sept., 1968. The Sub Divisional Officer's decision as well as the State Government's order in revision were challenged by the appellant Council before the High Court by a writ petition (Miscellaneous Petition No. 96 of 1969) but the writ petition was dismissed by the High Court summarily and in doing so the High Court followed its earlier judgment in the case of Municipal Committee, Burhanpur v. Allauddin Aolia Saheb and Co. reported in 1957 MPLJ 278, where in regard to a similar refund rule obtaining in Burhanpur Municipal Committee the Court had taken the view that "Octroi duty paid on imported tendu leaves and tobacco is refundable under the provisions of R. 25 (b) of the Rules framed under S. 85 of the Act when bidis manufactured within the limits of the Municipal Committee are exported." , In the remaining four matters, being Civil Appeals 845, 1047, 1048 and 1049 of 1971 the claims for refund made by the respondents in similar circumstances were required to be prosecuted by filing civil suits against the appellant Council, inasmuch as when action was contemplated by the respondents, the new Act, namely, Madhya Pradesh Municipalities Act, 1961 had come into force and no remedy by way of any appeal to Sub Divisional Officer was available. In each of these suits the appellant Council resisted the claims for refund on merits on the same grounds mentioned above. The respondents failed in their suits in the two lower Courts but succeeded in second appeals in the High Court.
(3.) In these appeals the self-same two contentions were urged before us on behalf of the appellant-council. First, since Octroi duty is a levy on imported goods meant for use, consumption and sale thereof within the Municipal Limits and since the raw material (tobacco) was used or consumed in the manufacture of bidis the same or identical goods were not exported by the respondent firms and so no refund under R. 27 (b) was available to the respondent firms. Secondly no attempt was made by the respondent firms to satisfy the Municipal Committee that the same or identical goods had been exported As required by the proviso to R. 27 (b). For both these reasons it was urged that the respondent firms' claim to refund of octroi should have been rejected. Counsel urged that these points did not arise and were not determined in Allaudin Saheb's case (supra).;

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