TMI Blog1989 (8) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... n goods in transit. Therefore, the judgment of the High Court could not be sustained. The appeal is, therefore, allowed. The judgment of the High Court is set aside and it is held that Standing Order No. 3 passed by the appellant-Municipal Corporation is valid and enforceable. - Civil Appeal No. 1086 of 1971, - - - Dated:- 16-8-1989 - Judge(s) : K. N. SAIKIA., G. L. OZA JJ. V.J. Francis (N.P.). Krishan Kumar, Vimal Dave Co. and M.N. Shroff (N.P). Girisha Chandra, Advocates, for the respondents. R.F. Nariman, A.K. Verma and D.N. Misra, Advocates, for the appellant. JUDGMENT The judgment of the court was delivered by OZA J. - This appeal, on certificate by the High Court of Gujarat, is filed against the judgment of the Gujarat High Court dated April 28, 1971, holding. Standing Order No. 3 framed under section 466(1)(A)(f) read with section 147 of the Bombay Provincial Corporations Act, 1949 ("Act" for short), as illegal and without the authority of law. This Act applies to the City of Baroda and the present appellant, the Municipal Corporation of Baroda, is governed by this Act. It is not in dispute that octroi on the import of goods is chargeable under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re, no standing orders could be framed under section 466(1)(A)(f) and, therefore, standing order providing for fees as discussed above was beyond the authority of the Commissioner under this Act. The High Court also accepted the second contention of the respondent that, although the Corporation claims to charge the fee as a fee for the convenience of the transporter, but after examining the scheme, the learned judges of the High Court came to the conclusion that there is no quid pro quo established nor is it established that the charge and the collection made on the basis of this charge had any rational nexus with the services rendered by the Corporation. Aggrieved by this decision of the High Court, the Municipal Corporation has come up in appeal. The main contention advanced on behalf of the appellant was that imposition of this fee by the Corporation could not be said to be an imposition as it was optional as, when a transporter brings goods and enters into the corporation limits, it was open to him either to choose to take advantage of this standing order by paying supervision fees and taking the goods straight under the supervision of the corporation authorities without th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed that Rs. 5 per vehicle suggested by the Corporation would be too much and that it should be reduced to Rs. 2 and it was on this representation that, in fact, the Corporation, the present appellant, chose to reduce the supervision charges to Rs. 2 per vehicle. It was, therefore, contended that now it is not open to the respondent-association to say that this is not in accordance with law. Learned counsel for the respondent stated that although a representation about the supervision fee was made by the association, it could not be said that there was any agreement entered into by the association nor could it be said that the association could enter into such an agreement with the Corporation. It was contended that the High Court was right in reaching the conclusion that the Commissioner had no authority under section 466 and that, in fact, a quid pro quo is not satisfied as no service is rendered to the transporter. Learned counsel for the parties referred to the decisions of this court on the question of fee and the principle of quid pro quo. Section 466(1)(A)(f) reads: "466. (1) The Commissioner may make Standing Orders consistent with the provisions of this Act and the ru ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom the place of import to the place of export, by such routes, within such time, under such supervision and on payment of such fees therefor as shall be determined by the Standing Orders." It is clear from this section that, when any goods are brought within the corporation limits, a presumption arises that they have been brought in for the purposes of sale or consumption and that the burden lies on the person who imports the goods to prove that they are not for sale or consumption and it is on the basis of the language of section 147 that the normal procedure, before this Standing Order was introduced, was that when goods entered into the corporation limits they have to stop at the checkpost and pay octroi duty on the goods as provided by the Rules. For getting out of the local limits, the transporter has to satisfy the checkpost authorities that the goods on which he has paid octroi and imported are being exported out of the city and it is only after satisfying the authorities that the goods on which octroi is paid are being exported that the transporter can claim refund of the octroi duty already paid. It is, therefore, clear that the language of section 147 in the scheme of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e view that Standing Orders which the Commissioner could frame under section 466 could be in respect of goods on which octroi is payable and not pertaining to goods on which the octroi is not payable. It appears that, while taking this view, the High Court was examining the fee prescribed as a tax and it is on the basis of this that the High Court took the view that no such tax could be levied on goods on which no octroi is payable. So far as the question as to whether this fee could be said to be a tax is concerned, there is no difficulty as even learned counsel appearing for the appellant do not contend that it can be said to be a tax and, as it is not a tax, the imposition could not be said to be bad because the State Legislature had no authority to impose it. It was contended by learned counsel that, in view of section 147 quoted above, any import within the local limits would draw a presumption that it is for consumption or sale and, therefore, octroi duty on the goods becomes payable. By this standing order, the Corporation has attempted to make it convenient to the transporter not to involve himself in the payment of octroi duty at the entry and after satisfying the authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laining the amount expected to be collected and spent in the process of supervision is examined, it could not be said, as was stated by the High Court, that it did not satisfy the quid pro quo principle. It is in this background that the question that this Standing Order does not impose a compulsory levy but it only gives an option to the transporter to take the advantage of this provision makes it further clear that it is not levy or an imposition of tax but merely a fee charged for the privilege or services rendered to the payer. In Sreenivasa General Traders v. State of Andhra Pradesh [1983] 3 SCR 843 ; AIR 1983 SC 1246, this court considered a series of decisions on the question and observed (at page 1262 of AIR 1983 SC): "There is no generic difference between a tax and a fee. Both are compulsory exactions of money by public authorities. Compulsion lies in the fact that payment is enforceable by law against a person in spite of his unwillingness or want of consent. A levy in the nature of a fee does not cease to be of that character merely because there is an element of compulsion or coerciveness present in it, nor is it a postulate of a fee that it must have direct relation ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
