BATLIBOI AND COMPANY LTD Vs. CUTTACK MUNICIPAL COUNCIL

JUDGEMENT

(1.) BATLIBOI and Company Ltd., a company registered under the Companies Act, 1956 filed this application under Arts, 226 and 227 of the Constitution of India against the Cuttack Municipal Council, represented by its Octroi Superintendent seeking a direction to it to release the consignment of diesel engine meant for sate by the petitioner to Hart Machines, Rajgangapur, which passed through the Cuttack Municipality in course of transit.

(2.) THE case of the petitioner, shortly stated, is that in Course of its trading activities it had negotiated for sale of diesel engine, manufactured by Kirleskar Cummins Ltd. at Pune to Hari Machines Ltd., at Rajgangpur in Orissa and had arranged for transport of the said diesal engine from the factory at Pune to Rajgangpur through Kaharasht a Road Carrier Pvt. Ltd. Copies of the envoice and the delivery note issued by Kirloskar Cummins Ltd. and copy of the consignment note issued by the Carrier are filed as Annexures 1,2 and 3 respectively to the writ application. For handling its business in Orissa, the petitioner has a depot at Cuttack registered under the Central Sales Tax Act. 1956 and the Orissa Sales Tax Act. 1947. The said depot also reised an invoice on Hari Machines Ltd., Rajgangpur in respect of the diesel engine in question. A copy of the said invoice/bill dated 7 -9 -1992 raised by the petitioner on Hari Machines Ltd., Rajgangpur is annexed to the writ application as Annexure -5. When the diesel engine in question was being transported by the truck bearing No. OSC 15 it was stopped at Gopalpur Check -post by functionaries of the Cuttack Municipality who insisted on payment of octroi on the consignment. The official in charge of the petitioner's depot at Cuttack addressed the letter dated 21 -9 -1992 (Annexure -6) to the Officer -in -charge of Gopalpur Check -post stating that the consignment is to be sold to Hari Machines Ltd., Rajgangpur under 'Inter -State Subsequent Sate Rules o1 C. S T. Act' and that it is in transit to Rajgangpur and therefore no octroi is payable on the consignment. The plea was not accepted and the consignment was detained. Under such compelling circumstances the petitioner filed the writ application seeking the reliefs noted earlier. By the order dated 29 -9 -1992 in Misc. Case No. 6640 of 1992 this Court directed release of the consignment referred to in Annexures -2 and 3 on deposit of the tax demanded making it clear that the Interim arrangement is without prejudice to the rights and claims made in the writ petition and shall be subject to the result of the case. It is the contention of the petitioner that since the diesel engine in question was not intended for use or consumption or sale inside the limits of Cuttack Municipality, no octroi could be levied on it by the said Municipality under law and, therefore, the demand was illegal and unsustainable.

(3.) SHRI A. Patnaik, learned counsel for the petitioner, reiterated the stand taken in the writ application discussed earlier and submitted that from the materials available on record, particularly the documents filed as Annexures -2 to 5 to the writ application and those annexed to the rejoinder, there can be little scope for doubt that the diesel engine in question was despatched from Pune for delivery at Rajgangpur which amply proves the tact that the consignment was brought to Cuttack in course of transit. It is the contention of Shri Patnaik that in such circumstances no octroi can ' be levied by the Cuttack Municipality. Though in the writ application it was alleged that the Cuttack depot of the petitioner is not situated within the Municipal limit of Cuttack. Shri Patnatk did not press the point at the hearing of the case. Shri S. K. Nayak, learned counsel for the opposite party submitted, on the other hand, that from the documents filed by the petitioner it is clear that the petitioner's company was the consignor and also the consignee of the goods and the sale letter was issued from Cuttack depot of the Company. According to Shri Nayak, the sale by the petitioner's company to Hari Machines Ltd., Rajgangpur took place at the Cuttack depot of the company which is within the limits of Cuttack Municipality. It is also clear that the consignment was brought from Pune to Cuttack for sale within the limits of the Municipality. In such circumstances the demand and collection of octroi by the authorities of Cuttack Municipality is legal and valid.