B.P.Jeevan Reddy, J. - (1.) This appeal is preferred by the Nagar Mahapalika, Meerut against the judgment of a learned single Judge of the Allahabad High Court dismissing the writ petition filed by it. The matter arises under the Uttar Pradesh Municipalities Act. 1960 (the Act) and pertains to levy of octroi.
(2.) The respondent is a Company which runs a bottling plant in Meerut. Inter alia, it bottles a drink known as "Double Seven" under a franchise agreement with M/s. Modern Bakeries Limited. New Delhi, a Government of India Undertaking. The bottles are sent out of the Meerut local area to various dealers for sale. According to the respondent, the sale is subject to the condition that after the drink is consumed, the bottle is to be returned to it. Accordingly, bottles were being returned to it from time to time. The appellant proposed to levy octroi on the entry of such bottles on the ground that the said bottles were being brought into the Meerut local area for the purpose of "use", i. e., for being filled with the drink "Double Seven". According to the appellant-Corporation, the empty bottles being "articles made of glass" within the meaning of Entry 138 of the Notification dated January 4, 1975, were subject to the levy of entry tax. The respondent resisted the levy on two grounds, viz., (1) that the entry of empty bottles into the local area for the purpose of being filled with the said drink and meant for being taken out for sale outside the local area does not amount to entry of goods for "use" within the meaning of the expression "consumption, use or sale therein" which alone attracts the levy within the meaning of Section 128 (1) (viii) of the Act, and (2) that in any event, the said empty bottles are covered by the exemption clause contained in the said Notification and in particular by Entry 13 thereof. Both the contentions were rejected by the appellant whereupon the respondent filed an appeal before the learned District Judge under Section 472 of the Act. The learned District Judge upheld the contention of the appellant, which led the appellant-Corporation to approach the High Court by way of a writ petition. The High Court did not go into first of the two contentions mentioned above. It dismissed the writ petition upholding the second contention urged by the respondent.
(3.) The Notification dated January 4, 1975, appears to be in two parts. The first part mentions the articles subject to entry tax. They are as many as 190 entries (according to the copy placed before us.). The second part contains a list of articles which are exempt from octroi and this part contains 37 entries. Entry 40 of the taxable items (first part) mentions "aerated water, cold drinks of all kinds" among other goods. The entry reads: "Lime juice and lime cordid gas of all kinds and aerated water, cold drinks of all kinds and sweetened milk." ;