- (1.) This appeal by special leave is directed against the judgment and order of the High court of Rajasthan at Jodhpur in D. B. Civil Special Appeals Nos. 9 and 31 of 1977 and which raised common questions of law and fact, and were disposed of together.
(2.) Writ Petition No. 17 of 1976 was filed by M/s Parekh Automobiles, respondent 1 in C. A. No. 1552 of 1981. The said appeal may be taken up and disposal of the same would lead to the disposal of other appeals. In the said writ petition, the petitioner prayed for a direction or an order restraining the respondents therein from realising any tax on diesel, etc. which are supplied to the respondent herein at Dangiawas by the Indian Oil Corporation, being respondent 2 herein. It was further prayed that the respondents therein be ordered to refund the octroi tax as mentioned in the Schedule to the said petition which, it was alleged, had been illegally realised from the petitioner. It was further prayed that respondent 1 be directed to provide transport passes to the Indian Oil Corporation under Rule 13 of the Rajasthan Municipal Octroi Rules, 1962 read with S. 133 of Rajasthan Municipalities Act. It was the case of the petitioner in the High court, respondent 1 herein, that the Municipal council had no jurisdiction to levy octroi tax on the goods brought within the municipal limits but not sold, consumed or used therein and subsequently exported outside the said limits. The case of respondent 2 was that HSD (diesel) which was brought by the Indian Oil Corporation within the local limits of Jodhpur Municipality was ultimately exported and sold to respondent 1 at Dangiawas for use, consumption or sale outside the municipal limits and as such the Municipal council had no jurisdiction to levy octroi tax on the same. In reply to the said writ petition, it was stated by the Municipal council, being the appellant herein, that the sale of HSD (diesel) by respondent 2 to respondent 1 took place at Jodhpur, and only the delivery was effected at Dangiawas as respondent 1 did not have its own tankers but for this respondent 2 was charging mileage for transmission of goods from its depot to Dangiawas. It was stated that the appellant was charging octroi from respondent 2 and not from respondent 1. It was stated that the question whether the contract of sale between respondent 2 and respon dent 1 took place at Jodhpur or at Dangiawas was a disputed question of fact to be decided by reference to the original agreement qua each trans action. It was further stated that the disputed question of fact could not be adjudicated under Article 226 of the Constitution. In reply to para 6, it was stated that the current account facility was still provided and had not been stopped, that respondent 2 did not make the declaration as required by Rule 9 and Rule 13 (4) of the Rajasthan Municipal Octroi Rules, 1962 and that the goods exported were to be lessened only if suchgoods had not been sold within the municipal limits and were exported out within a period of six months from the date of entry. The relevant provisions of S. 104 of the Rajasthan Municipalities Act, 1959 (hereinafter referred to as 'the Act') are as follows : "104.Obligatory taxes.-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:
(3.) The Rules, being Rajasthan Municipal Octroi Rules, 1962, framed thereunder are relevant and Rule 13 of the said Rules provides as follows : "13.Facilities for Current Accounts.- (1) The Board shall maintain a list, in Form No. 6, of all persons whether firms or individuals allowed special facilities under S. 133 of the Act for the payment of octroi. The list shall be kept corrected up-to-date and a copy of the list signed by the Executive Officer shall be kept at each octroi outpost. (2) The person to whom such facilities are given, printed books of entry passes in duplicate shall be supplied in Form No. 7 on payment of such price as may be fixed by the Board. When such a per son wishes to bring his goods into the municipality, he shall fill up the entry pass, the goods shall be dealt with under the ordinary rules. On receipt of the entry pass, the in-charge of the octroi out post shall 372 see that the person who has signed it is named on his list, and if so, he shall, after satisfying himself that the goods agree with the details entered in the entry pass, fill up the certificate at the foot thereof as well as the coupon. He shall then tear off the coupon, deliver it to the person who presents the entry pass, and admit the goods named in the pass. He shall send the entry passes to the Octroi Superintendent, where they shall be examined that the certificate covers the details of the entry pass and the amount of octroi due shall be debited to the account of the person concerned. (3) The persons to whom special facilities have been given, a printed book of transport passes shall be supplied in Form No. 5 on payment of such a price as may be fixed by the Board. When such a person wishes to transport his goods from the municipality, he shall fill up a transport pass and send it with his goods to the octroi out post of exit. On receipt of the transport pass, the in-charge of octroi outpost shall see that the person who has signed it is named on the list; and if so, he shall after satisfying himself that the goods to be transported agree with the details entered in the transport pass, fill up the certificate at the foot thereof as well as the coupon. He shall then tear off the coupon and deliver it to the person who presents the transport pass. He shall send the transport passes to the Octroi Superintendent, where they shall be examined to see that the certificate covers the details of the transport pass and shall be filed separately under the name of each such person. (4) In cases provided for in sub-rule (3) amount of octroi duty payable shall be based on the total amount of the octroi as shown by the entry passes less the total amount of goods transported outside the municipal limits as shown by the transport passes : Provided that in computing the octroi duty payable under sub rule (4) , the goods transported outside the municipal limits shall be lessened only if such goods have not been sold within the municipal limits and if they have been exported out of such limits within a period of six months from the date of their import in such limits. (5) Payments by such person shall be made strictly in advance, and at the expiry of his period for which facilities have been given, the name of the person shall immediately be struck off. ";