- (1.) The petitioners M/s Sham Lal & Company, a partnership concern, held a licence in Form L-XIV of the Punjab Excise Rules from the Excise and Taxation Department for the retail vend of country liquor at Ropar for the year 1967-68. Under the Punjab Liquor Licence Rules, a retail vendor of the urban area as the petitioners, were entitled to get the supply of country spirit direct from the distillery against the price to be paid by them, which was fixed at Rs. 17.03 per 9 proof litres i.e. 24 bottles (one bag) of 750 mililitres each. According to the petitioners, when the said spirit was brought within the municipal limits of the Municipal Committee, Ropar, the Committee according to its rules and bye-laws was competent to levy octroi duty ad valorem at the rate of 1 paisa per rupee of the price of the goods imported within the municipal limits. It was further averred in the petition that this price has to be calculated on the basis of the invoices or the cash-memos representing the price at which the liquor was purchased. It was at this rate that the Municipal Committee, respondent No. 2, had been charging octroi on the current price, i.e. the purchase price plus excise duty, which the petitioners were required to pay to the Government. According to the Municipal Committee, the octroi was leviable on the current sale price and not on the basis of the invoices representing the price at which the liquor was purchased. When the petitioners approached the Municipal Committee with their grievance, the Executive Officer of the Municipal Committee, ordered them to pay the octroi on the sale price of liquor by including excise duty (a copy of the said order is Annexure B-1 to the petition). In this Annexure, it was stated that the petitioners "are hereby informed that in accordance with the Punjab Government letter No. 5498 L.B. 50/II/5994 dated 15th September, 1950, the octroi duty is recoverable on the sales of liquor, including excise duty, etc." However, when the Municipal Committee failed to accede to their request, the present petition was filed, with the prayer that the order of the Municipal Committee, respondent No. 2, in so far as it seeks to levy octroi on the licence fee i.e. over and above the price at which the liquor was purchased by the petitioners from the manufacturers, as fixed by the Government and which was mentioned in the invoices and the cash-memos, be quashed. In the return filed on behalf of the Municipal Committee, as well as on behalf of the State of Punjab, respondent No. 1, it is the common ground that the Committee is entitled to charge octroi on the current price, i.e. the purchase price plus excise duty. However, in the return filed by the State of Punjab in para No. 6 thereof it has been stated as under :- "I deny the contents of para 6 of the petition. The octroi is leviable on the current price i.e. sale price which includes excise duty. Instructions in this behalf have already been issued by the Government vide Memo. No. 5498-LB-50/II-5949 dated the 15th September, 1950 (Annexure A). Since the sale price of liquor includes licence fee, the octroi on liquor is, therefore, charged on the amount of licence fee also."
(2.) The learned counsel for the Municipal Committee has raised a preliminary objection as taken in the return also filed on its behalf that the petitioners should have filed an appeal within seven days to the Committee from the date of assessment of octroi as provided under Rule V.63 of the Municipal Account Code or exercised right of appeal under Section 84 of the Punjab Municipal Act, 1911, and since they have not resorted to those remedies, the present petition is barred under Article 226 of the Constitution of India. In support of this proposition, reliance has been placed on Messrs Avon Scales Company V. The State of Haryana and others, 1978 80 PunLR 644 Manjit Singh V. Sh. Kabul Singh, Assistant Registrar, Co-operative Societies Sangrur and others, 1978 PunLJ 111 Kehar Singh V. The State of Punjab and others, 1978 PunLJ 87 Ranjit V. The Authorised Chief Settlement Commissioner, Haryana and others, 1978 PunLJ 299 and Ramji Lal and others V. The State of Haryana and others, 1977 79 PunLR 507, of course, it is the settled law as regards this Court is concerned that if there is an alternative remedy available to the petitioners, the jurisdiction of this Court under Article 226(3) of the Constitution is barred and this is so even with regard to the writ petitions filed earlier, i.e. before the Constitution (Forty-Second Amendment) Act, 1976. In the present case, there is no order as such made by the Octroi Superintendent as contemplated by Rule V.63 of the Municipal Account Code (Octroi), which reads as under :- "Any person dissatisfied with the assessment of octroi payable in respect of his goods when such assessment is made by the Octroi Superintendent, shall pay the amount of octroi assessed, but may, within seven days from the date of such payment, appeal to the Committee against such assessment." As regards an appeal under Section 84 of the Punjab Municipal Act is concerned, an appeal is provided against the assessment or levy of any tax or against the refusal to refund any tax within a month. Thus, the question of resorting to any appeal etc., in the circumstances of the case, could not arise. Moreover, the stand taken by the Municipal Committee as well as by the Government in the returns filed by them is quite clear. There is Annexure 'A' filed with the return on behalf of the State of Punjab, which is very relevant and for facility of reference is produced hereunder :- "Subject : Levy of Octroi on tobacco. Reference your Memorandum No. L.F.E. 76II-B-50/3378 dated the 10th August, 1950. 2. Government agree with the view taken by you that octroi is leviable on the current price i.e. the sale price which includes excise duty. It is, however, presumed that this particular reference relates to pre-partition period as there is no Shahpur Municipality in the Punjab (India) State." In this view of the matter and the decision taken by the Municipal Committee vide Annexure B-I, it was futile to suggest to approach the Municipal Committee again by way of appeal. The Committee had already decided the matter on the basis of the Government instructions as conveyed to it, vide Annexure 'A' quoted above. Thus, the preliminary objection, under the circumstances of this case, has no force.
(3.) As regards the merits of the case, the learned counsel for the petitioners, has relied upon a judgment of the Delhi High Court (Himachal Bench) reported as Jai Dayal V. The Municipal Committee, Nahan and others, 1971 73 PunLR 138 in which the same question as to the levy of octroi on liquor came up in a writ petition. The same provisions of the Municipal Account Code as are relevant to the present case, were required to be interpreted in that case as well. Relevant Rule V.17, dealing with the Agency and method of assessment, reads as under :- "(1) The octroi payable in respect of goods imported otherwise than by rail for consumption, use or sale within octroi limits shall be assessed - (a) by the officer-in-charge of the barrier of import, if :- (i) the octroi is leviable by weight or sale, or (ii) the octroi is leviable ad valorem according to the provisions of rule V.12. (b) by the Octroi Superintendent. (2) When octroi leviable ad valorem is to be assessed by an officer-in-charge for a barrier, he shall calculate their value on the information at this disposal with regard to the invoice produced by the importer or the value declared by the importer. (3) When octroi leviable ad valorem is to be assessed by the Octroi Superintendent, he shall, if no invoice is presented with the goods, calculate the value of the goods on the information at his disposal with due regard to the value declared by the importer, and, if an invoice is presented, calculate the value on the value entered in the invoice plus the cost of freight unless he has reason to suspect that the invoice is not genuine, in which case he shall proceed as if no invoice had been presented." Sub-rule (3) thereof expressly states that in a case in which an invoice is presented, the Octroi Superintendent shall calculate the value 'on the value entered in the invoice' plus the cost of freight. Admittedly, the cost price of the liquor paid to the whole-sale supplier only is entered in the invoice. A Municipal Committee had power to levy octroi on the value of the liquor entered in the invoices plus the cost of freight as provided by the said rule and had no power to levy octroi on the amount arrived at by adding the excise duty to the value of the liquor entered therein. The learned counsel for the Municipal Committee had no reply to this contention. As a matter of fact, his whole stress was on the alternative remedy, which has already been discussed by me above and rejected. The judgment of the Delhi High Court is fully applicable to the facts of the present case.;