TMI Blog1994 (4) TMI 324X X X X Extracts X X X X X X X X Extracts X X X X ..... he law and in the light of this order" and the further direction to the authorities "to refund the amount to which each of the petitioners is entitled within three months" as well as the directions to the said effect in the several orders under appeal are set aside - Civil Appeal No. 4263, 4264 of 1992, 260-264, 3580-3605 of 1993, & 2521-2530 of 1994 C.A. Nos. 4265 To 4456 of 1992, - - - Dated:- 18-4-1994 - JEEVAN REDDY B.P. AND VENKATACHALA N. JJ. R.N. Narasimha Murthy, Senior Advocate, and B.V. Acharya, Advocate-General (M. Veerappa and K.H. Nobin Singh, Advocates, with them), for the appellants. Harish N. Salve, Senior Advocate (Ahok Sharma, Narender Kaushik, B.P. Gandhi, Mukul Mudgal, V. Balachandran and S. Aravindh, Advoca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mption or use within such local area. In other words, it held that where the goods sold are not intended for use or consumption within the local area but are meant to be and are taken out of the area for use or consumption elsewhere, no levy is permissible under the said Act. It is this view Sri Murthy disputes. He submits that Burmah-Shell [1963] Supp 2 SCR 216; AIR 1963 SC 906, Hiralal Thakorlal AIR 1976 SC 1446 and Parekh Automobiles [1990] 1 SCC 367 dealt with cases where the levy was by the municipality/local authority, no doubt under an enactment of the State Legislature. In those cases, he says, there may be justification for taking a restrictive view and for construing the levy imposed by the municipality as one in the nature of oct ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of this Court and while we are inclined to the view that the thrust of the judgment is in favour of limiting taxability to such sales within the territory as are intended to be consumed or used in part or in whole within the territory there are observations which strike a different note. A plain reading of the words used impose no qualification of the expression 'sale therein' but the judicial construction based on the history of octroi has also been an input in the interpretative exercise in Burmah-Shell [1963] Supp 2 SCR 216; AIR 1963 SC 906. Be that as it may, we feel that there are blurred areas of sale within the territory which may attract a tax under entry 52 left uncertain by the decision of this Court. We, therefore, regard th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ds are sold within a local area for the purpose of being taken out of that local area and are actually taken out, no levy is permissible under entry 52. It is not possible to distinguish the said decisions on the grounds suggested by Sri Murthy. There is yet another reason. Octroi or any impost in the nature of that impost has always been looked upon with certain amount of disfavour. Acceptance of the State's contention in this case would ultimately result in driving up the price of these goods to the consumer. It would become another sales tax in effect. In the circumstances, we are inclined to-indeed we have no option but to-affirm the decision of the Karnataka High Court on the meaning of the words "sale therein" in section 3 of the Karn ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the octroi duty, there is no equity in favour of the IOC to claim a refund of the same. Learned counsel for the appellant also conceded that the question of refund, in the facts and circumstances of the case, does not arise and we, therefore, hold that the appellant shall not be entitled to any refund of the octroi duty already deposited by the appellant with the Municipal Corporation." We are in respectful agreement with the above principle. In this case also, it is not brought to our notice that the respondents have alleged and/or established that they have not passed on the duty to the purchasers/consumers. The normal presumption is that they have done so. If they say otherwise, it is for them to allege and establish the same. In the a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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