TMI Blog2011 (7) TMI 1100X X X X Extracts X X X X X X X X Extracts X X X X ..... o. 16771 of 2011] CC No. 2284 of 2011 - - - Dated:- 4-7-2011 - SHARMA, MUKUNDAKAM AND DAVE, ANIL R., JJ. JUDGMENT Dr. MUKUNDAKAM SHARMA, J. 1. Delay condoned. 2. Leave granted. 3. As both the appeals involve identical question of law the same were heard together and are disposed of by this common judgment. Both the present Civil Appeals are filed against the judgment dated 08.10.2010 in the Writ Petition No. 5510 of 2010 and against the judgment dated 08.10.2010 in the Writ Petition No. 5867 of 2010, passed by the Division Bench of the High Court of Judicature at Bombay whereby the Division Bench has dismissed the writ petitions filed by the appellants herein challenging the validity of the bill issued by the Respondent Corporation, levying and demanding octroi from the appellants on glass bottles and crates. 4. In the Civil Appeal filed against the judgment dated 08.10.2010 in the Writ Petition No. 5510 of 2010 the appellant company is, inter alia, engaged in the manufacture of aerated beverages marketed under different brands. The products of the company are distributed from its plant located at Pirangut Taluka, Mulshi, District Pune to amongst other pl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plastic crates and glass bottles are durable and reusable. They are used a number of times by the appellant. The bottles and crates are not sold. They are not consumed. The bottles are used but again sent out and refilled. The crates are also similarly sent back. 8. It was further submitted that as per the definition of the term octroi as found in Section 2(42) of the Bombay Provisional Municipal Corporation Act, 1949 (for short BPMC Act ), octroi means a cess on the entry of goods into the limits of a city for consumption, use or sale therein and as in the present case there is no consumption, use or sale, the levy of octroi is unjustified. 9. Strong emphasis was placed on the submission that, the cost of the bottles and crates is amortized and included in the retail sale price of the aerated beverage. Since the cost of glass bottles and crates is already included in the price of the beverage on which the octroi is levied and collected, no further octroi can be levied on the glass bottles and crates. 10.All the above said submissions and contentions were refuted by the learned senior counsel appearing for the respondents. It was submitted that the issue in the present ca ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... special orders of the State Government in this behalf, the taxes which a Board may impose can consist of Octroi on goods or animals brought within the Municipality for consumption, use or sale therein. The rates of levy were given in Schedule I. Schedule I referred to aerated water but not to aerated water bottles. This Court considered the main charging provision i.e. Section 128(1)(viii) which stated that Octroi can be charged on goods which were brought within the Municipality for consumption, use or sale and held that packing which contains the consignment of octroiable beverages would remain liable to be included in the taxable gross weight of consignment provided such packing is shown to be brought within the Municipal limits for the purpose of its sale, consumption, or use within the Municipal limits. But, if the packing is found to have been taken out of the Municipal limits after its contents were discharged within the Municipal limits, then the weight of such packing cannot be brought to octroi tax or if such tax is levied at the entry point, it would become liable to be refunded. This Court further observed that the claim of refund would involve disputed questions su ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt observed that the word 'use' occurs in Entry No.52 of List II of Seventh Schedule sandwiched between 'consumption' and 'sale', and it must take colour from the context in which it occurs. This Court further observed that the coupling of three words 'consumption', 'use' and 'sale' connotes that the underlying common idea was that either the title of the owner is transferred to another or the thing or commodity ceases to exist in its original form. 15.However, this Court did not approve of the High Court's reasoning that the bottles and shells were used as containers till final consumption of contents and, therefore, the bottles which contained the beverage were used till the final consumption stage and were, therefore, liable to levy of Octroi leaving aside the question whether they were brought within the Municipal limits for consumption thereof. Referring to Burmah Shell's case, this Court held that though the use of the bottles may not amount to its destruction or total using up, but to attract octroi, the bottles must have finally rested within the Municipal limits and not taken out. This Court concluded that to attr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... then it would be entitled to claim proportionate refund of the octroi duty assessed on the weight of such empty bottles only subject to the burden of such amount of duty not being shown to have been passed on to consumers of beverages or to anyone else, i.e. there is no unjust enrichment. 17.Setting aside the High Court's order to the above extent, this Court permitted the petitioner-Company to lodge its claim for refund by producing evidence on the following points: (a) Nature of the consignments concerned with their dates and the number of bottles packed with beverages brought within the municipal limits with their weight; (b) Proof regarding the fact that these bottles were not sold within the municipal limits to wholesalers, retailers or to any other person; (c) Number of bottles covered by the consignments concerned which were subsequently taken out as empty bottles beyond the municipal limits for recycling and weight of such empty bottles; (d) Whether the bottles which are actually found to have been taken out of the municipal limits were the very same bottles containing beverages brought within the municipal limits by way of relevant consignments; (e) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... municipal limits and does not go out subsequently, or the commodity concerned must be shown to have been brought within the municipal limits for the purpose of sale within the said limits. Having thus laid down the aforesaid legal position concerning the imposition of octroi in the penultimate paragraph of the Report at p. 234, the Court observed that the Burmah Shell was liable to pay octroi tax on goods brought into local area (a) to be consumed by itself or sold by it to consumers direct and (b) for sale to dealers who in their turn sold the goods to consumers within the municipal area irrespective of whether such consumers bought them for use in the area or outside it. The Company was, however, not liable to octroi in respect of goods which it brought into the local area and which were re-exported. But to enable the Company to save itself from tax in that case it had to follow the procedure laid down by rules for refund of taxes. 16. The aforesaid authoritative pronouncement of the Constitution Bench of this Court, therefore, sets at rest the controversy in the present case. If it is the case of the writ petitioner that during the relevant period from 1980 to 1987 it brought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r refund. 23.Accordingly, in our opinion, as also laid down by this Court in Acqueous Victuals (supra), in case the appellantcompany is sending out the same bottles for recycling and if the bottles and crates are not sold, used, or consumed in the Municipal limits of the respondent-Corporation, that is to say, if they have not finally rested in the Municipal limits of the respondent-Corporation in which they are imported, the appellant-company can always make an application for refund under the said Rules. The appellant-company will have to produce evidence on the points detailed in the Acqueous Victuals (supra) which we have quoted hereinabove. As submitted by the appellant, in case, the cost of the bottles and crates is amortized and included in the retail sale price of the aerated beverage, the evidence can also be placed in that regard, in order to claim refund on any such amount. Besides, it was also pointed out that bottles in which beverages are brought are recycled and used bottles and therefore levy of octroi cannot be at the same rate as that of the new bottles. These are also disputes on the facts, which would require production of evidence. On the appellantcompany ma ..... X X X X Extracts X X X X X X X X Extracts X X X X
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