TMI Blog1991 (9) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... Kalwa in Thane District (Maharashtra). The Company obtains aluminium as raw materials for consumption from another factory of theirs situated in a different State. With effect from 1-10-1982 the Company at Kalwa was included in the municipal jurisdiction of Thane. Prior to that date the factory was not within the jurisdiction of Thane Municipality and did not have to pay any octroi on the raw materials brought into its factory at Kalwa. By a Notification dated 23-8-1982, the Government of Maharashtra constituted the Municipal Corporation of the City of Thane and Kalwa was brought within the jurisdiction of the Thane Municipal Corporation, the respondent herein and all goods imported into the area of the Thane Municipal Corporation were subjected to octroi at the rates mentioned in Schedule I to the Maharashtra Municipalities (Octroi) Rules, 1968 (`Rules for short). Schedule I to the said Rules contains description of various goods and articles which were liable to octroi and minimum and maximum rates are prescribed. Item No. 77 in the said Schedule I to the said Rules covered non-ferrous metals, including aluminium and the Entry provided for the levy of octroi duty on the alumini ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mount so paid should be refunded. The respondent Corporation in their reply dated 16-5-1988 stated that the petitioner Company had not complied with the procedure specified in Part IA of the Schedule II to the said Rules for availing such concessional rates therefore the refund cannot be sanctioned. However, the petitioner Company by their letter dated 19-4-1989 claimed a refund of total amount of ₹ 13,54,101.79 p. The respondent again rejected the claim reiterating that the procedure specified in Part IA of Schedule II to the rules was not complied with. Being aggrieved the Company filed a Writ of mandamus seeking refund. A Division Bench of the High Court dismissed the same holding that the concessional rate of octroi duty was available only if the declaration in Form 14 was filed with the octroi authorities. Questioning the said Order, this Special Leave Petition has been filed and it is being disposed of at the admission stage itself after notice. 2. Most of the facts in this case are not in dispute. Admittedly the aluminium raw material was imported by the petitioner Company and octroi duty at the normal rate was paid and no declaration in Form 14 was filed. It is onl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere give full name and address of the undertaking)... and I shall not use them for any other purpose for sale or otherwise dispose them of to any other party for any other purpose, except, having previously paid the difference between the octroi due on such goods at ordinary rates and the octroi paid on concessional rates under Schedule II to the Maharashtra Municipalities (Octroi) Rules, 1968. Date................ Signature of the Importer The declaration contemplated in Form 14 is to the effect that the goods imported shall not be used for any other purpose for sale or otherwise etc. It can thus be seen that an incentive is sought to be given to such entrepreneurs by such concession if the raw material which is imported is also utilised in the industrial undertaking without selling or disposing of otherwise. That being the object a verification at the relevant time by the octroi authorities becomes, very much necessary before a concession can be given. In the absence of filing such a declaration in the required Form 14, there is no opportunity for the authorities to verify. Therefore the petitioner Compan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the date of payment of the toll. It has to be accompanied by the original receipts. If these procedural requirements are not fulfilled, the Municipality may decline to refund the toll and relegate the claimant to a suit. It would then be open to the party claiming a refund to seek the assistance of the Court, and to prove by evidence which is in law admissible that the goods transported by him fell within the order issued under Section 157(3) of the Act. The rules framed by the Government relating to the procedure to be followed in giving effect to the exemptions on April 15, 1939, do not purport to bar the jurisdiction of the Civil Court if the procedure is not followed. Relying on these observations, Shri Ganesh, learned Counsel for the petitioner Company contended that in the instant case though the procedural requirement is not fulfilled by filing a declaration in Form 14, still that is not a bar to invoke the jurisdiction of the Civil Court or the High Court by way of a writ and seek a refund. We are unable to agree. In Duggal s case, (1968) 3 SCR 551 the appellant, as a matter of fact, obtained certificate but failed to make the application for refund within time. It ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... duty to grant a rebate. (emphasis supplied) 7. In Kedarnath Jute Manufacturing Co. v. Commercial Tax Officer, Calcutta and Ors. the appellant which was a Public Limited Company, sought exemption under the provisions of the Bengal Finance (Sales Tax) Act, 1941 in respect of certain sales but did not produce before the Officer the declaration forms from the purchaser dealers required to be produced under the proviso to that sub-clause granting exemption. It was contended on behalf of the appellant that proviso to the sub-clause was only directory and the dealer is not precluded where the proviso is not strictly complied with from producing other relevant evidence to prove that the sales were for the purposes mentioned in the said sub-clause. The contention on behalf of the respondent was that the dealer can claim exemption under the sub-clause but he must comply strictly with the conditions under which the exemption can be granted. Rejecting the appellant s contention, this Court held thus : Section 5(2)(a)(ii) of the Act in effect exempts a specified turnover of a dealer from sales tax. The provision prescribing the exemption shall, therefore, be strictly construed. The subs ..... X X X X Extracts X X X X X X X X Extracts X X X X
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