TMI Blog2022 (12) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... is well settled law that there is no rule of law, which says Courts under Article 226 of the Constitution cannot enquire into claims despite the passage of time. The test is to see whether the illegality complained of is manifest and whether the same can be sustained solely on the ground of laches. The test is not the physical running of time but the fact that justifiable reasons exist for warranting a Courts action in cases where injustice has been done or justice has been denied. All that the Court has to see is whether the delay and laches on the part of the Petitioner is such as to disentitle a Petitioner of the relief claimed. It is now well settled that where a case has been made out to merit interference under Article 226 relief would not be denied solely on the ground of delay. Thus, both the preliminary grounds of objection are rejected as entirely baseless and without any merit. Eligibility for a refund under Section 194(2) of the MMC Act - HELD THAT:- Inspector would render the Petitioner ineligible for a refund of octroi under Section 194(2) of the MMC Act. We have examined the provisions of Section 194(2) of the MMC Act and find that a plain reading of the sam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ated:- 21-12-2022 - S. V. GANGAPURWALA, ACJ ARIF S. DOCTOR, J. Mr. Bharat Raichandani a/w Mr. Rishabh Jain i/by UBR Legal for Petitioner. Mr. Anoop Patil a/w Smt. Pooja Yadav i/by Mr. Sunil Sonawane for BMC. Mr. Amit Shastri (AGP) a/w Mr. Himanshu Takke (AGP) for State. JUDGMENT:- (PER ARIF S. DOCTOR, J.) 1. The present Writ Petition impugns a letter dated 16th December, 2017 issued by Respondent No.3 i.e. the Deputy Assessor Collector Octroi, by which the Petitioner s claim for refund of octroi came to be rejected. Facts Briefly Stated 2. On 15th July, 2015 the Petitioner entered into a Contract/Agreement with the Weapons Department (Indian Navy) which was essentially in the nature of a repair, refit and service contract. Pursuant to the said contract, a Work Order Bearing No. DYT/INCOD/12-13/204(d)PL-WEA/FACT 81-TYPHOON//455 (the said work order) was issued to the Petitioner by the Indian Navy. The said work order inter alia specified the details of the spare parts that were to be imported and supplied by the Petitioner to the Indian Navy. 3. On 17th March, 2016, an octroi exemption certificate was issued by the Ministry of Defence to Resp ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, and ii. Original declaration duly certified by the Octroi Inspector. Petitioner, by its letter dated 1st March, 2017, addressed to Respondent No.3 informed Respondent No.3 that the Custom House Agent (CHA) engaged by the Petitioner to clear the said consignment had erroneously not mentioned Section 194(2) of the MMC Act when filing in the details of Form-B and therefore the Petitioner was unable to process the said declaration. Petitioner pointed out that this had also resulted in Petitioner s claim for octroi being rejected. Petitioner explained that they had since met several officers in the Octroi Department and tried to explain that this failure to mention Section 194(2) on Form-B was purely on account of human error. That the Petitioner had also re-sent the challan copies duly certified by the Indian Navy confirming along with good receiving certificate that the items have been supplied to Naval dockyard, Mumbai only. However, since there was no response from the Respondents, Petitioner made further representations to the Respondents seeking a refund of octroi paid. Petitioner had vide a letter dated 1st March, 2017 addressed to Respondent No. 4 and a letter dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... behalf certifying that the articles so imported has become the property of Government, is used or intended to be used solely for a public purpose and is not used or intended to be used for purposes of profit. He pointed out from a plain reading of the said Section that in order to be eligible for a refund of octroi under Section 194(2) of the MMC Act the following two criteria were required to be fulfilled viz., i. A written declaration signed by the importer that such article was being imported for the purpose of fulfilling a specified contract with the Government or otherwise for the use of the Government; and ii. A certificate signed by an officer empowered by the Government in this behalf certifying that the article so imported had become the property of the Government. Mr. Raichandani submitted that in the present case, both the said criteria had squarely been complied with. Insofar as the first requirement namely a written declaration signed by the importer, he invited our attention to the octroi exemption certificate dated 17th March, 2016 issued by the Government of India, Ministry of Defence in favour of Respondent No.3. Insofar as the second requirement nam ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on exemption provision was very clear and that once it was established that a person/entity claiming an exemption establishes that such person/entity was eligible to claim the benefit of such exemption, then the entitlement to such benefit ought not to be rejected and/or denied on the ground of technicalities and/or procedural lapses. In support of his contention, he placed reliance upon a judgment of the Hon ble Supreme in the case of Mangalore Chemicals Fertilizers Ltd. Vs. Deputy Commissioner 1991 (55) E.L.T. 437 (S.C.) with particular reference to paragraph Nos.11 and 12 which read thus viz., 11. We have given our careful consideration to these submissions. We are afraid the stand of the Revenue suffers from certain basic fallacies, besides being wholly technical. In Kedarnath's case, the question for consideration was whether the requirement of the declaration under the proviso to Sec. 5(2)(a)(ii) of the Bengal Finance (Sales-tax) Act, 1941, could be established by evidence aliunde. The Court said that the intention of the Legislature was to grant exemption only upon the satisfaction of the substantive condition of the provision and the condition in the proviso ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made subject to a condition that the person claiming the exemption shall furnish a declaration form in the manner prescribed under the section. The liberal construction suggested will facilitate the commission of fraud and introduce administrative inconveniences, both of which the provisions of the said clause seek to avoid. [See: (1965) 3 SCR 626 at 630] (Emphasis Supplied) Such is not the scope or intendment of the provisions concerned here. The main exemption is under the 1969 notification. The subsequent notification which contains condition of prior-permission clearly envisages a procedure to give effect to the exemption. A distinction between the provisions of statute which are of substantive character and were built-in with certain specific objectives of policy on the one hand and those which are merely procedural and technical in their nature on the other must be kept clearly distinguished. What we have here is a pure technicality. Clause 3 of the notification leaves no discretion to the Deputy Commissioner to refuse the permission if the conditions are satisfied. The words are that he will grant . There is no dispute that appellant had satisfied these conditi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of a provision as to exemption is the one stated by this Court in Union of India Ors. v. M/s. Wood Papers Ltd. Ors., [1991 JT (1) 151 at 155]: ...... Truly, speaking liberal and strict construction of an exemption provision are to be invoked at different stages of interpreting it. When the question is whether a subject falls in the notification or in the exemption clause then it being in nature of exception is to be construed strictly and against the subject but once ambiguity or doubt about applicability is lifted and the subject falls in the notification then full play should be given to it and it calls for a wider and liberal construction .... (Emphasis supplied) He submitted that from the enunciation of law laid down in the case of Mangalore Chemicals Fertilizers Ltd. (supra), there would be no doubt that the Petitioner was eligible to the refund of octroi and wad denied entitlement of the same on the venial and technical grounds. He submitted that such denial to a benefit to which a person/entity was otherwise eligible was totally unjust. 14. He then pointed out that the declaration dated 28th March, 2016 filed by the Petitioner constituted a vali ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner s claim and had therefore requested Respondent No. 2 to consider Petitioner s claim for refund of octroi vide its letter dated 9th February, 2018. Submissions of Mr. Patil behalf of Respondent Nos. 2 to 4 17. Mr. Patil, learned counsel appearing on behalf of the Respondents at the outset submitted that the present Petition ought to be dismissed in limine for the following two preliminary reasons/grounds, namely; i. Alternative remedy: That the Petitioner had an alternate remedy which the Petitioner ought to have availed of; and ii. Delay: That the goods/articles had been imported by the Petitioner on 30 th March, 2016 and octroi had been abolished throughout India in July, 2017. Thus the Petition having been in the year 2021 was filed at a belated stage and thus deserved to be dismissed in limine without going into merits of Petitioner s claim. 18. On merits, Mr. Patil submitted that the Petitioner was not entitled to the refund of octroi as the Petitioner had failed and neglected to comply with the precondition required in Section 194(2) of the MMC Act, namely to furnish a copy of the declaration duly certified by the Octroi Inspector. He submitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was entirely justified. He submitted that, Petitioner, without complying with the mandatory conditions of Section 194(2) of the MMC Act, was not entitled to receive a refund of octroi. 21. He submitted that the Application for refund of octroi which was received by the Respondents on 2nd July, 2016 did not contain any documents which would provide proof of submission of the declaration under Section 194(2) or the declaration itself. He submitted that upon receipt of the said Application, the office of Respondent No. 3 through the Administrative Officer (Excess Wrong Recovery) with a view to verify the correctness of the claim for refund and to further verify if the Petitioner was in fact entitled to claim refund of octroi under Section 194(2) wrote to the Superintendent, Sahar Cargo (Import Section) and sought for entries of the register maintained at the Octroi Collection Centre at Sahar Cargo under Section 194(2) for verifying if on the date of import of the articles by the Petitioner i.e. 30th March, 2016 the Petitioner had in fact registered its claim or submitted its declaration as required under Section 194(2) with the concerned authorities. He submitted that upon such i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ard, Alwar Vs. Commissioner of Central Excise Service Tax, Alwar (2022) 5 SCC 62 ii. State of Jharkhand and Ors. Vs. Ambay Cements and Anr. (2005) 1 SCC 368 iii. Commissioner of Central Excise, Delhi Vs. Hari Chand Shri Gopal and Ors. (2011) 1 SCC 236 iv. State of Maharashtra Vs. Shri Vile Parle Kelvani Mandal and Ors. (2022) 2 SCC 725 v. Essar Steel India Limited Anr. Vs. State of Gujarat and Anr. (2017) 8 SCC 357 vi. ONGC Commission of India Vs. MCGM (2017) 8 SCC 35 (2017) SCC Online Bom 9206 Submissions of Mr. Raichandani in Rejoinder 25. Mr. Raichandani submitted that there was no merit in the preliminary objections raised by the Respondents. He pointed out that while Respondents had claimed that the Petitioner had an alternate remedy, the Respondents did not specify or set out what the alternate remedy available to the Petitioner was. Insofar as the contention of delay, he pointed out that there had in fact been no delay as the Petitioner had been diligently following up and making representations to the Respondents seeking justice and that since Respondents had failed and neglected to act upon the said represent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rties and have perused the pleadings and considered the relevant case law cited. Before however dealing with the merits of the case, we shall first deal with the two preliminary grounds on which the Respondents have sought dismissal of the present Writ Petition, namely, (i) the alternate remedy and (ii) delay. We have considered both these preliminary grounds and find that there is no merit in either of them. We find that while the Respondent has alleged the availability of an alternate remedy, we find that no specific provision and/or details of the same have been stated. In any event we find in the facts of the present case, that the Petitioner is justified in approaching this Court under Article 226 of the Constitution of India. In so far as delay is concerned, we find that there has in fact been no delay so as to deny the Petitioner relief if the Petitioner is otherwise entitled to the same. It is well settled law that there is no rule of law, which says Courts under Article 226 of the Constitution cannot enquire into claims despite the passage of time. The test is to see whether the illegality complained of is manifest and whether the same can be sustained solely on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lity criteria as is evident from the following documents, viz. i. The contract dated 15th July, 2015 entered into between the Hon ble President of India and the Petitioner. ii. The octroi exemption certificate dated 17th March, 2016 issued by the Indian Navy. iii. The goods receiving certificate dated 22nd April, 2016 issued by the Weapons Department of the Indian Navy. Most pertinently, we find that the Respondents in their Reply are totally silent on this aspect. The only contention raised by the Respondents to hold Petitioner ineligible is failure to furnish a declaration duly certified by the Octroi Inspector. We find that Section 194(2) of the MMC act does not mandate the production of a declaration duly certified by the Octroi Inspector as a criteria to determine the eligibility for refund of octroi under Section 194 (2) of the MMC Act. This requirement (if any) of the production of such declaration duly certified by the Octroi Inspector is therefore merely a procedural requirement to enable an eligible party to claim entitlement to the benefit of such refund of octroi under Section 194(2) of the MMC Act. We say if any because nothing was shown to us by th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is of no assistance to the Respondents in the facts of the present case and in view of our finding above that in the facts of the present case, the Petitioner has complied with the substantive provision of section 194 (2) of the MMC act and that the submission of the duly certified octroi exemption form was not a substantive requirement of section 194 (2) of the MMC Act but was one of procedure so as to entitle the Petitioner to claim the benefit of refund of octroi to which the Petitioner was eligible having complied with the substantive requirements of Section 194 (2) of the MMC Act. We find that even the judgment of this Hon ble Court in the case of Oil and Natural Gas Commission of India Vs. Municipal Corporation of Greater Bombay Ors. 2017 SCC OnLine Bom 9206 upon which heavy reliance was placed since the same dealt with Section 194 of the MMC Act is of no assistance to the Respondents as the facts in the said case are entirely different from the facts in the present case. In the case of ONGC the issue involved pertained to the powers of the Municipal Corporation of Greater Bombay to levy octroi on natural gas that was being imported by the Petitioner in that case (ONGC ..... X X X X Extracts X X X X X X X X Extracts X X X X
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