- (1.) THIS second appeal has been filed by the defendants against the decree of the lower appellate Court, affirming the decree of the trial Court.
(2.) THE respondent was a registered firm, carrying on business of sale and manufacture of lime and lime stone. It used to purchase coal for manufacture of lime. The Municipal Council, Murwara, was recovering terminal tax on coal, lime and lime stone on export, import by rail at the rate of 75 paisa, 75 paisa and 50 paisa per wagon. By notification dated 9-12-1960, the rates were enhanced to Rs. 2, Rs. 3 and Rs. 2 per wagon. In Writ Petition M. P. No. 122/1961, Mohanlal v. M. C, Murwara, the levy of terminal tax on gun powder for the first time under this notification was challenged and it was quashed by this High Court on 12-10-1961. Earlier the High Court had quashed similar notification of another municipal council whereby the rates of terminal taxes on some items and fresh imposition on some other items were sought to be enforced. It was held by this Court that after the Constitution, no State or local authority has any jurisdiction to impose or vary the terminal taxes on goods carried by railway, Sea or Air, as terminal tax is a central subject bhikamchand v. M. C. C. Chhindwara (1961 MPLJ 937. ). Inspite of these decisions, the Municipal council, Murwara, continued to collect the terminal taxes at the enhanced rates as Civil Appeal No. 695/1962 was preferred by the Council in the Supreme court. This appeal along with other appeals were dismissed by the Supreme court on 3-3-1964, The Town Municipal Committee, Amraoti v. Ramchandra vasudeo Chimote and another (AIR 1964 SC 1166.) According to the respondent, he had paid terminal taxes at enhanced rates from 1-1-1961 to 7-4-64 on coal, lime and lime stone. The present suit was therefore filed on 29-10-1965 for recovery of rs. 3531. 75 p. towards the excess amount so paid. The suit was resisted by the appellants, mainly contending that the claim is barred by limitation as some payments were beyond 3 years of the filing of the suit.
(3.) THE learned trial Court held that Article 24 (Article 62, old) of the limitation Act, 1963, was applicable and the limitation would start from the last date of payment by relying on T. S. H. W. Co.-op. Society v. S. Sundaram (AIR 1957 Travancore-Cochin 61.)The learned appellate Court held that Article 120 (old) applied and the claim was within limitation as the suit is within 5 years as per section 30 of the new limitation Act in respect of each of the item of payments. Article 120 was applied by relying on a decision of this Court in Govind Singh v. State of M. P. (AIR 1961 MP 320.);