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TMI Blog1991 (9) TMI 162X X X X Extracts X X X X X X X X Extracts X X X X ..... otification 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 aluminium and other goods mentioned therein at the minimum rate of 0.5% and at the maximum of 4%. The respondent Corporation was levying octroi duty on the imports of aluminium raw materials made by the petitioner Company into Kalwa at the rate of 1.3% from 1-10-1982 to 14-4-1987. Then with effect from 15-4-1987 the respondent Corporation was levying octroi at the rate of 2%. On 18-5-1987 the Thane Manufacturers' Association made a representation to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed 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 only after the lapse of long time that the petitioner Company has made a claim for refund. The learned Counsel for the petitioner Company submitted that a procedural failure should not disentitle the petitioner Company provided if otherwise the Company could have legitimately claimed. The learned Counsel appearing for the respondent Municipal Corporation submitted that the concessional rate would be available only if the raw material was utilised b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sp; 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 Company has definitely failed to fulfil an important obligation under the law though procedural. The learned Counsel, however, su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 is in that context this Court observed that the Municipality was under a statutory obligation once the procedure followed i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tta 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 substantive clause gives the exemption and the proviso qualifies the substantive clause. In effect the proviso says that part ..... X X X X Extracts X X X X X X X X Extracts X X X X
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