the appellant Council resisted the claim on merits on the two grounds a that since the raw material had been used or companysumed in the manufacture of bidis and since the exported goods finished products were number the same or identical as the imported raw material on which the octroi duty had been paid numberrefund under Rule 27 b was available to the respondent firm and b that the respondent firm had failed to prove to the satisfaction of the Municipal Council as required by the proviso to Rule 27 b that the same or identical goods were being exported on which import octroi had been paid by them.
The appellant Council went in revision to the State Government but the same was dismissed on 28th September, 1968.
Apart from raising technical pleas such as number maintainability of the appeal, bar of limitation etc.
For both these reasons it was urged that the respondent firms claim to refund of octroi should have been rejected.
1 B of 1964, out of which the aforesaid appeal arises, was filed by the respondent firm M s Vraj Lal Manilal Co. on 7.5.1964 claiming refund in respect of goods exported during the years 1959 1964 in other words, part of the claim from 1959 to 31st January, 1962 arose under 1922 Act while the claim pertaining to the period from 1.2.1962 to April 1964 arose under the 1961 Act, which came into force from 1.2.1962.
Appeals by certificate from the judgment and decree dated the 11th March 15th November 1969 of the Madhya Pradesh High Court Jabalpur in Misc Petition No.
First, since Octroi duty is a levy on imported goods meant for use, companysumption and sale there of within the municipal limits and since the raw material tobacco was used or companysumed in the manufacture of bidis the same or identical goods were number exported by the respondent firms and so numberrefund under Rule 27 b was available to the respondent firms.
In the remaining four matters, being Civil Appeals 845, 1047, 1048 and 1049 of 1971 the claims for refund made by the respondents in similar circumstances were required to be prosecuted by filing civil suits against the appellant Council, inasmuch as when action was companytemplated by the respondents, the new Act, namely, Madhya Pradesh Municipalities Act 1961 had companye into force and numberremedy by way of any appeal to Sub Divisional Officer was available.
The respondents failed in their suits in the two lower companyrts but succeeded in second Appeals in the High Court.
Since, however, it was number possible for it to sort out the refund vouchers which had been certified the High Court by its judgment and decree dated 15.12.1969 remanded the matter to the trial Court for determining the amount payable to the respondent firm.
Secondly numberattempt was made by the respondent firms to satisfy the Municipal Committee that the same or identical goods had been exported as required by the proviso to Rule 27 b .
Appeals by special leave from the judgment and decree dated the 17th April, 1971 of the Madhya Pradesh High Court at Jabalpur in Second Appeal Nos.
415, 416 417 of 1966 respectively.
96 of 1969 and in First Appeal No.
33409.52 minus the amount recovered under 19 vouchers should be refunded to the respondent firm.
The facts in this behalf are these Civil Suit No.
1047 1049 of 1971.
The Judgment of the Court was delivered by TULZAPURKAR, J. The aforesaid five appeals, the first two on a certificate granted by the Madhya Pradesh High Court and the last three by special leave granted by this Court, raise a companymon question in regard to refund of octori duty companylected by the appellant Council from the respondent firms and are, therefore, disposed of by companymon judgment.
The admitted facts in these appeals are that the respondent firms, who carry on the business of manufacturing and selling bidis imported or brought into the municipal limits of Damoh during the relevant period tobacco and other raw material, that they paid the requisite octroi duty on such raw material on its import at the prescribed rates, that they utilised the said raw material for manufacturing bidis and they exported the finished product bidis outside the municipal limits of Damoh and it was at that stage of export of bidis that they claimed under Rule 27 b a refund of octori duty paid by them on the raw material from the appellant Council.
Counsel urged that these points did number arise and were number determined in Allaudin Sahebs case supra .
96 of 1969 but the writ petition was dismissed by the High Court summarily and in doing so the High Court followed its earlier judgment in the case of Municipal Committee, Burhanpur v. Allauddin Aolia Saheb and Co. where in regard to a similar refund rule obtaining in Burhanpur Municipal Committee the Court had taken the view that Octori duty paid on imported tendu leaves and tobacco is refundable under the provisions of Rule 25 b of the Rules framed under s. 85 of the Act when bidis manufactured within the limits of the Municipal Committee are exported.
In these appeals the self same two companytentions were urged before us on behalf of the appellant council.
1048 of 1970 since the claim for refund to the sum of Rs.
CIVIL APPELLATE JURISDICTION Civil Appeals Nos.
1048 of 1970 845 of 1971.
1 in Civil Appeals Nos.
AND Civil Appeals Nos.
The Sub Divisional Officers decision as well as the State Governments order in revision were challenged by the appellant Council before the High Court by a Writ Petition Miscellaneous Petition No.
44 of 1966 respectively.
2 3 in all the appeals.
1047, 1048 1049 of 1971.
The principal question raised in these appeals relates to the proper companystruction of Rule 27 of the Octroi Rules of Damoh Municipal Council the appellant framed in exercise of powers companyferred by ss.71, 76 and 85 of the Central Provinces Berar Municipalities Act, 1922 which Rules were companytinued in operation even after the companying into force of the new Act, the Madhya Pradesh Municipalities Act, 1961 and the question arises in these circumstances The two respondent firms in the two sets of appeals M s. Vraj Lal Manilal Co. and M s. Prabhudas Kishoredas carry on business of manufacturing and selling bidis in Damoh and other cities in Madhya Pradesh and for that purpose they import tobacco and other raw material into the Municipal limits of Damoh city and after manufacturing bidis out of such imported raw material they export their finished product bidis outside Damoh Municipal limits.
Gopal Subramanium and S.A. Shroff for Respondents Nos.
In Civil Appeal No.
The respondents case was that at the time of import of tobacco and other raw material into the municipal limits of Damoh they paid octroi duty as per Octroi Rules of the appellant Council and after utilising the said raw material for preparing bidis when they exported the manufactured bidis outside the limits of the appellant Council, they were entitled to a refund of the octroi duty paid by them on the raw material so utilized under Rule 27 of the Octroi Rules but inspite of refund vouchers having been issued by the companycerned official of the appellant companyncil and inspite of having companyplied with the Rules and procedure prescribed in that behalf, the appellant Council refused to pay the amounts of the refund vouchers to them.
33,409.52 based on 1866 refund vouchers relating to the period from 4.12.1952 to 12.12.1959 arose under the old Act, namely, Central Provinces and Berar Municipalities Act 1922, the respondent firm M s Vraj Lal Mani Lal Co. filed an appeal before the Sub Divisional Officer Damoh under s. 83 1 A of the Act against the refusal of the appellant Council to make the refund.
V. Patel, S.S. Khanduja and C.L. Sahu for the Appellants in all the Appeals.
Dr.Y.S. Chitale and Rameshwar Nath for Respondent No.
21,023.53 with interest thereon 4 and this decree was drawn up on 23.4.1970.
1 in Civil Appeals Nos.
Rameshwar Nath for Respondent No.
1048/70 845 of 1971.
In each of these suits the appellant Council resisted the claims for refund on merits on the same grounds mentioned above.
The trial Court as well as the High Court took the view that number payment of refund under the 1922 Act companyld be agitated only by way of an appeal under section 83 and other remedies were barred under s. 84 of the Act and, therefore, that part of the respondents claim was dismissed as being number tenable but both the Courts held that number payment of refund after 1.2.1962 companyld be agitated by a suit and the same was tenable On the question of limitation the trial Court held that that part of the claim was number barred but since it had negatived the respondents claim for refund on merits it dismissed the respondents suit entirely but the High Court, which reversed the trial Courts view on merits allowed the respondents claim in respect of refund vouchers which had been certified and presented after 1.2.1962.
The Sub Divisional Officer by his order dated 30th June, 1961 negatived the technical pleas of the appellant companyncil, which order was finally companyfirmed by the High Court on 25th February, 1963.
The Sub Divisional Officer also over ruled the defences raised by the appellant Council on merits and by his final order dated 4th April, 1964 directed that the amount of 1865 refund vouchers aggregating to Rs.
