Full Judgment Text
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PETITIONER:
HMM LIMITED & ANR.
Vs.
RESPONDENT:
ADMINISTRATOR BANGALORE CITY CORPORATION,BANGALORE & ANR.
DATE OF JUDGMENT04/10/1989
BENCH:
MUKHARJI, SABYASACHI (J)
BENCH:
MUKHARJI, SABYASACHI (J)
RAY, B.C. (J)
CITATION:
1990 AIR 47 1989 SCR Supl. (1) 353
1989 SCC (4) 640 JT 1989 (4) 147
1989 SCALE (2)791
CITATOR INFO :
D 1992 SC 53 (4)
R 1992 SC 645 (24)
ACT:
Bangalore Municipal Corporation Act, 1949: Section 98(2)
and Bye Law 45/Rules 24 to 27--Octroi--Levy of--Mere physi-
cal entry into city limits--Would not attract levy of octroi
unless goods brought in for use, consumption or sale.
Words And Phrases: "Without Breaking bulk"--Not an
expression of art--Should be construed liberally.
HEADNOTE:
The appellant company was engaged in the manufacture and
sale of a malted milk product marketed under the brand name
"Horlicks". The appellant brought the product within the
octroi limits of Bangalore in bulk containers, rebottled the
same in small bottles and exported the major portion of the
rebottled product beyond the octroi limits of Bangalore. The
appellants made representation protesting against the levy
of octroi on Horlicks in respect of the quantity of the
goods which was exported outside the municipal limits after
being rebottled, and sought refund of the octroi duty on the
ground that there was no use or consumption or sale of the
said milkfood within the municipal limits, and that the
imposition of octroi was illegal and unwarranted. The re-
spondent-Corporation rejected the claim. Thereupon the
appellant filed a writ petition in the High Court challeng-
ing the levy/retention of the octroi duty on Horlicks ex-
ported out of the municipal limits.
The petition was resisted by the Corporation on two
grounds, namely, (i) the transferring the Horlicks imported
in bulk into bottles amounted to use of the Horlicks within
the city; and (ii) the octroi collected was in accordance
with law and unless the procedure prescribed under rules 24
and 25 of Bye-law 45 framed by the Municipal Corporation
under the City of Bangalore Municipal Corporation Act, 1949
was followed no obligation or duty was cast on the part of
the Corporation to refund any part of the octroi collected.
The learned Single Judge allowed the writ petition and
held that when the Horlicks powder was transferred into
bottles of different sizes,
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354
the appellant did not use Horlicks within the city of Banga-
lore.
In the appeal, the Division Bench agreed with the
learned Single Judge on the first point. On the second
point, however, the Division Bench rejected the contention
of the appellant that opening or breaking open the drums and
putting the powder in the bottles amounted to breaking bulk
and as such there was no scope of applying for refund under
rule 24 which provided for refund in the case of articles on
which octroi duty had been paid and which were subsequently
exported beyond the octroi limits without breaking bulk.
According to the Division Bench, no importance could be
attached to the expression ’without breaking bulk’, and the
appellant not having applied in accordance with rules 24 and
25, no amount could be refunded.
Before this Court, the Corporation sought to raise an
additional plea that where refund was due in respect of the
duties like this, the amount could not be refunded because
there was possibility of undue enrichment of the claimant.
Allowing the appeal, this Court,
HELD: (1) Octroi in this case is a duty on the coming in
of the raw materials which is payable by the producer or the
manufacturer. It is not the duty on going out of the fin-
ished products in respect of which the duty might have been
charged or added to the costs passed on to the consumers. In
such a situation, no question of ’undue enrichment’ can
possibly arise. [362G]
(2) There is no dispute that the Horlicks powder was
brought in bulk in drums. After being imported, the entirety
of the Horlicks powder had not been sold. A part of the
powder has been put in the bottles and exported outside the
city of Bangalore. [361E]
(3) Octroi cannot be levied or collected in respect of
goods which are not used or consumed or sold within the
municipal limits. [364F]
(4) Indubitably, amounts have been realised as octroi
on the entry of the goods on which octroi was not leviable
because these were not for use or consumption within the
municipal limits. Mere physical entry into the city limits
would not attract the levy of octroi unless goods were
brought in for use or consumption or sale. [364C-D]
(5) In this case, putting the powder from the drums to the
bottles
355
for the purpose of exporting or taking these out of the city
is neither use nor consumption of the Horlicks powder at-
tracting the levy of octroi. Such amounts, therefore cannot
be retained by the respondent corporation. [362D-E]
C.W.P. No. 19873 of 1977--High Court of Punjab Burmah
Shell Oil Storage & Distributing Co. of India Ltd. v. Bel-
gaum Borough Municipality, [1963] 2 Supp. SCR 216, referred
to.
(6) "Without breaking bulk" is not an expression of art,
nor is it an expression defined in the Act or the rules. It
has, therefore, to be construed in its literal and ordinary
sense to the extent possible, and construed as it is, trans-
ferring the product from the drums by breaking seal of the
drums to bottles cannot be said to be "without breaking
bulk". Certainly the bulk was broken in the procedure fol-
lowed. [361H; 362A-E]
(7) Rule 24 does not apply. In that view, rules 25 and
26 have no scope of application. [364C]
Kirpal Singh Duggal v. Municipal Board, Ghaziabad,
[1968] 2 SCR 551, referred to.
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(8) Realisation of tax or money without the authority of
law is bad under Article 265 of the Constitution. Octroi
cannot be levied or collected in respect of goods which are
not used or consumed or sold within the municipal limits. So
these amounts become collection without the authority of
law. The respondent is a statutory authority in the present
case. It has no right to retain the amount, so far and so
much. These are refundable within the period of limitation.
[364E-F]
JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4160 of
1989.
From the Judgment and Order dated 24.3.1988 of the
Karnataka High Court in W.A. No. 637 of 1985.
S. Ganesh, A.C. Gulati and B .B. Sawhney for the Appellants.
T.S. Krishnamurthy Iyer and N. Nettar for the Respondents.
The Judgment of the Court was delivered by
SABYASACHI MUKHARJI, J. Leave granted.
356
This is an appeal from the judgment and order of the
Division Bench of the High Court of Karnataka dated 25th
March, 1988.
There was a notification under section 98(2) of the
City of Bangalore Municipal Corporation Act, 1949 dated 4th
March, 1975 levying octroi, inter alia, on food drinks
(including milkfood) brought into the municipal limits of
Bangalore for sale, consumption or use. On 8th October,
1976, representation was submitted on behalf of the peti-
tioners, HMM Limited, protesting against levy of octroi on
"Horlicks" milkfood powder brought into the municipal limits
in bulk containers (Large steel drums) for being packed at
the packing station in Bangalore in Unit containers (glass
bottles) and thereafter exported outside the municipal
limits. In respect of the quantity of the goods which were
exported outside the municipal limits after being bottled,
the petitioners sought refund of the octroi duty as there
was no use or consumption or sale of the said milkfood
within the municipal limits. The respondent corporation
rejected the claim on the ground that rule 24 of the Byelaw
45 framed by the Municipal Corporation had not been complied
with and as such refund could not be given. The petitioners
again sought on 4th February, 1978, refund of octroi duty
for the period 1974-75 to December, 1977 amounting to Rs.
13,39,652.92 enclosing computation of the duty collected for
the aforesaid period. Again, the’ refund was refused by the
respondents in March, 1978. Petitioners thereafter filed
writ petition in the High Court of Karnataka challenging the
levy/retention of octroi duty on "Horlicks" exported out of
the municipal limits and seeking refund thereof. From 1st
April, 1979, levy of octroi on milkfood was totally abol-
ished in Karnataka. Learned Single Judge of the High Court
on 1st February, 1984, allowed the writ petition and direct-
ed that the amount of octroi duty collected for the period
commencing three years prior to the filing of the writ
petition be verified within 3 months and refunded within 45
days thereof. Learned Single Judge noted that the case of
the petitioners was that it was engaged in the manufacture
and sale of a malted milk product marketed under the brand
name "Horlicks". The petitioner used to manufacture the said
product in its two factories situated at Nabha in the State
of Punjab and Rajahmundhry in the State of Andhra Pradesh
and marketed these throughout the country through its bot-
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tling and marketing centers situated in different parts of
the country. One such centre was situated in the city of
Bangalore to which it brought its said product in bulk, then
rebottled the same in small bottles of different capacities
like 800 gms, 450 gms and 250 gms. It was the case of peti-
tioners that small portion of the product, rebottled in
small bottles, alone was sold within the city of
357
Bangalore to its dealers and the rest was exported to its
agents situated in different parts of the State and other
nearby places of the country also. In this connection, it
may be mentioned that rules 24 to 27 of the relevant Bye-
laws were as follows:
"24. On all articles on which octroi duty has
been paid and which are subsequently exported
beyond the octroi limits without breaking
bulk, refunds shall, subject to the following
rules, be granted at the rates originally
charged at the time of import; provided that
no such refunds shall, except in the case of
timber imported and re-exported in log
be granted unless such goods are exported
within three months from the date on which
octroi was levied.
25. Any person claiming refund under the
above bye-laws shall produce the goods to be
exported at the Central Octroi Office, togeth-
er with the Original receipt for octroi duty
paid thereon, and an application for refund
prepared in triplicate in the form prescribed
in Schedule V. He shall fill up columns 1 to
10 of the application signing and dating the
same, before he presents it at the Central
Octroi Office. He shall produce for record in
office a certified copy of the invoice as per
which duty was paid on the article at the time
of its import.
26. Any person who has been exempted under
bye-law no. 10 from production of goods at the
Central Octroi Office on import shall, subject
to the same conditions, he exempted from the
production of goods to be exported.
27. The Octroi Superintendent of the Central
Octroi Office on being satisfied as to the
identity of the goods produced with those for
which the receipt has been granted or the
validity of the claim, shall fill up columns
11 to 15 and also the coupon and handover the
form to the exporter."
There is no dispute that on the entire quantity of the
goods brought within the municipal limits, octroi was col-
lected from the petitioner. It claimed for refund only in
respect of those quantities which were rebottled and export-
ed from the city to outside places. This was refused. The
contention of the petitioners was that only that portion of
the goods which was imported in drums and was rebottled in
358
bottles and exported outside the city was not liable to duty
of octroi. It was contended before the learned Single Judge
that portion of the goods was not dutiable to octroi as
these did not fall within the term "sale, consumption or
use" within the local area of the city of Bangalore. When
the petitioner approached the High Court, rule 24 aforesaid
of the Bye-law 45 was in force. Octroi was, however, abol-
ished with effect from Ist April, 1979. The question that
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was canvassed before the learned Single Judge of the High
Court was that when the product was imported in bulk in the
city only for rebottling and rebottled in small bottles for
the consumer requirements and marketed, there could not be
consumption or sale of that product. On the other hand, it
was contended that in any event, it is a case of ’use’ to
attract levy of octroi. The Horlicks powder remains the same
even after packing, as was held by Mittal, J. of the High
Court of Punjab in C.W.P. No. 19873 of 1977. In that case,
the Horlicks powder in drums was sold direct to bulk consum-
ers. It was held that the Horlicks powder remains the same
after packing. It does not become different commodity. It
also cannot be held that it acquired distinct commercial
utility, according to Mittal, J. Therefore, in that context;
Mittal, J. held that the packing of the Horlicks powder in
small bottles does not fall within the ambit of the word
’use’ and, therefore, the petitioner in that case was not
liable to the charge of octroi for its import within the
limits of the city. This decision was affirmed by the Divi-
sion Bench. It was contended that in the judgment before
Mittal, J, packing was entrusted to a separate agency, but
it does not make any difference, according the learned
Single Judge of Bangalore. Therefore, the learned Single
Judge in this case found that only on that quantity of milk
product imported by the petitioner in bulk but rebottled in
small bottles at its Bangalore bottling station and export-
ing from the city to other places for sale in those places
and not using the same in Bangalore city, was not dutiable
to octroi till that levy was in force. The learned Single
Judge, therefore, held that the amounts so levied and col-
lected as octroi for a period of three years prior to the
presentation of the writ petition only and not beyond that
are refundable by the respondents to the petitioner. He
directed refund and pursuant to this direction, the learned
Single Judge further directed that the same may be verified.
We were informed that the same has been verified.
There was an appeal to the Division Bench of the High
Court. The question before the Division Bench was whether
the Corporation was liable to refund that part of the amount
of octroi duty paid by the petitioners on the quantity of
the Horlicks powder imported into the city of Bangalore on
the petitioners’ informing the Corporation that
359
they had despatched that part of the same from time to time
by filing the same in bottles to places outside the city of
Bangalore even though petitioners had not followed the
procedure prescribed in rules 24 and 25 of Bye-law No. 45
flamed by the Corporation and even though they had not even
informed of such despatches as and when these were made?
Item 17 of the notification dated 4th March, 1975, as
mentioned before, so long as it continued, was as follows:
"17. Confectionary, biscuits, toffee,
chocolates food essence, food coloured,
aerated water and soft drinks, food drinks
other than milk in condensed form bottled or
canned arecounts both scomted or plain.
2% 0.06 ps.
ad valorem 10
Kg."
The Division Bench noted that in terms of the aforesaid
levy, the petitioners were paying octroi on the basis of the
total quantity of Horlicks imported into the city of Banga-
lore. Then a letter was addressed on the 8th October, 1975
to the Corporation of the city of Bangalore, which was set
out in the judgment of the Division Bench. In the said
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letter, it was, inter alia, stated that the petitioners were
not bringing the goods within the municipal limits for use
or consumption therein and as such the imposition of octroi
was illegal and unwarranted and that the petitioners had
paid under protest the amount and claimed the refund. The
petitioners claimed only the octroi paid on the goods which
were exported outside the city of Bangalore and not used or
consumed within the city. The petitioners further stated,
inter alia, as follows:
"The petitioner is willing to differentiate
the goods intended to be used consumed within
the octroi limit of Bangalore and the goods
which are exported out of the limits of Banga-
lore and not used or consumed therein appro-
priately in order to facilitate movements of
goods and avoid difficulties to the octroi
incharge."
The Corporation turned down the demand.
The Division Bench noted that the petition was
resisted by the respondent on to grounds:
"1. The transferring of Horlicks imported in
bulk into the
360
city of Bangalore into bottles amounts to use
of the Horlicks within the city of Bangalore
notwithstanding the fact that a part of the
total number of bottles were despatched out-
side the city of Bangalore.
2. The octroi collected on the Horlicks im-
ported into the city of Bangalore was in
accordance with law and unless the procedure
prescribed under rules 24 and 25 of Bye-law 45
was followed, no obligation or duty was cast
on the part of the Corporation to refund any
part of the octroi collected."
The Division Bench of the High Court in the decision
under appeal observed that as far as the first ground raised
was concerned, the learned Single Judge had rejected the
claim and held that when the Horlicks powder was transferred
into bottles of different sizes it did not use Horlicks
within the city of Bangalore. In this connection, the Divi-
sion Bench referred to the decision of Burmah Shell Oil
Storage & Distributing Co. of India Ltd. Belgaum v. Belgam
Borough Municipality, Belgaum, [1963] 2 Supp. SCR 2 16. This
Court in that case held that mere transferring of a bulk
product into small containers like packets or bottles for
the purpose of sale does not amount to use of the goods in
the sense the word is used in relation to levy of octroi. On
this aspect, the Division Bench agreed with the learned
Single Judge. So far as the second contention raised by the
Corporation was concerned, the Division Bench noted that the
relevant provision of the rules was not considered. We have
set out hereinbefore the said rules. In the Schedule there
is a form for refund. The contention of the petitioners was
that rule 24 did not apply. Rule 24, as we have noticed
hereinbefore, provided that in respect of articles on which
octrio has been paid and which are ’subsequently exported
beyond the octroi limits without breaking bulk’, refunds
shall be subject to the rules indicated therein. So, accord-
ing to the petitioners, after opening or breaking open the
drums and putting the powder in the bottles, as in this case
amount to breaking bulk, and as such there was no scope of
applying for refund under Rule 24. But the Corporation
contended that it was not so. The Division Bench, however,
accepted the contention of the Corporation. It is indubita-
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bly true that the petitioners had not claimed the refund in
accordance with the law because according to the petitioners
the said rules would have no application as the bulk was
broken. The Division Bench, however, observed that the
petitioners in their letter addressed to the Commissioner
have specifically stated that the goods were subsequently
exported outside the city of Banga-
361
lore as envisaged by Bye-law 24 of notification No.
N.A.I(53) of 1952-53 dated 5th April, 1954. Regarding the
expression "without breaking bulk", the Division Bench of
the High Court was unable to accept the contention that the
bulk of the goods on which the octroi has been paid was
transferred to containers of small sizes and despatched
outside the city, the bulk was broken. But the question was
whether in such a situation, it can be said that it was done
without breaking the bulk. The Division Bench was of the
view that having regard to the rule and having regard to the
fact that it was imported into the city of Bangalore, and
was to be despatched outside the city of Bangalore in the
same form, i.e., without the same having been used or sold
or consumed in the production or manufacture other goods,
the person concerned can only claim refund in accordance
with the rules. Therefore, according to the Division Bench,
no importance can be attached to the expression "without
breaking bulk" on despatches of the goods. Refund could be
claimed only on despatches of the goods outside the city,
for octrio is leviable only if the goods imported into the
city are consumed, used or sold within the city. Therefore,
’bulk’, in the view of the Division Bench, was, in fact,
broken and the petitioner not having applied in accordance
with rules 24 and 25, no amount could be refunded to the
appellant. In that view of the matter, the appeal was al-
lowed by the Division Bench and the judgment of the learned
Single Judge was reversed.
It may be mentioned that there is no dispute that the
Horlicks powder was brought in bulk in drums. At the rele-
vant time, there was levy of octroi at the entry of such
goods. After being imported, it has been found that the
entirety of the Horlicks powder had not been sold. A part of
the powder has been put in the bottles and exported outside
the city of Bangalore. It has been found by the Division
bench that putting powder from the drums to the bottles
inside the city, is not user or consumption as contemplated
by the rule. And on that no octroi duty was leviable. In
this case also, it has been found pursuant to the order of
the learned Single Judge how much octroi will be refundable
on account which has been paid by the petitioners. The only
ground on which the Division Bench had resisted the refund
was that the petitioners did not apply in accordance with
the procedure envisaged by rules 24 and 25 of the aforesaid
Bye-laws. Mr. Krishnamurthi Iyer, learned counsel for the
respondent, contended that the High Court was right in the
view it took on the construction of rules 24, 25 and 26. We
are unable to agree with this submission. As we have indi-
cated before, "without breaking bulk" is not an expression
of art, nor is it an expression defined in the Act or the
rules. It has, therefore, to be construed
362
in its literal and ordinary sense to the extent possible,
and construed as it is, in our opinion, transferring the
product from the drums by breaking seal of the drums to
bottles, cannot be said to be "without breaking bulk".
"Breaking bulk" is an expression not unknown to legal termi-
nology especially in England. In the Cyclopedic Law Diction-
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ary, 3rd Edn., "breaking bulk" has been stated to mean that
for a bailee to open a box or packaging entrusted to his
custody and fradulently appropriate its contents. In
Stroud’s Judicial Dictionary, 4th Edn., Vol-1, it has been
stated that to ’break bulk’ is not now necessary to consti-
tute larceny or theft by a bailee. It is stated that the
cases were very numerous and turned on nice distinctions as
to what amounted to "breaking bulk". In the Dictionary of
English Law by Earl Jowitt "breaking bulk" has been defined
as that at common law there could be no larceny of goods
which had originally been lawfully obtained by a person who
subsequently wrongfully converted them to his own use,
unless such conversion was preceded by some new act of
taking. It that is so, we are unable to agree with the
construction suggested by the Division Bench. It was con-
tended that the octroi was leviable on the entry of the
goods in the municipal limits of the city but the Horlicks
powder had not entered into the local limits of Bangalore
for the purpose of use or consumption, as understood in the
decision of the Burmah Shell’s case (supra) and as found
both by the learned Single Judge and the Division Bench that
putting the powder from the drums to the bottles for the
purpose of exporting or for taking this out of the city, is
neither use nor consumption of the Horlicks powder, attract-
ing the levy of octroi. Certainly, the bulk was broken in
the procedure followed. The High Court was wrong in putting
the construction on the expression as it did. Mr. Iyer
sought to raise before us the plea that in a case where
refund is due in respect of the duties like this whether
petitioners would be entitled to refund on the basis that
refund cannot be given because there was possibility of
undue enrichment of the claimant, is pending before the
Seven-Judge Constitution Bench in this Court. Therefore, it
was submitted that we should await the said decision or
refer the matter to the Constitution Bench. Octroi in this
case is a duty on the entry of the raw materials for coming
in. It is the duty on the coming in of the raw materials
which is payable by the producer or the manufacturer. It is
not the duty on going out of the finished products in re-
spect of which the duty might have been charged or added to
the costs passed on to the consumers. In such a situation,
no question of ’undue enrichment’ can possibly arise in this
case. If that is the position then the pendency of the
question before the Constitution Bench should not deter us
from proceeding with this adjudication.
363
Shri Ganesh drew our attention to a decision of this
Court in Kirpal Singh Duggal v. Municipal Board, Ghaziabad,
[1968] 3 SCR 551. There, the appellant had transported,
between August 1953 and March 1955, certain materials in
execution of a contract to supply goods for use by the
Government of India. The respondent Municipality collected
toll while the appellant’s trucks were passing through the
toll barrier. The appellant, in that case, obtained in June,
1955, a certificate from the authority concerned that the
goods transported were "meant for Government work and had
become the property of the Government". The appellant then
applied to the Municipality for refund of the amount paid
pursuant to the exemption granted by the Government of India
under the U.P. Municipalities Act, 1916. The respondent
declined to refund the amount. In an action against the
respondent, the trial court decreed the claim. The High
Court affirmed the order of the Civil Judge. Both the Civil
Judge and the High Court took the view that by the rules
framed under the Act an application for refund within six
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months from the date of actual payment is a condition prece-
dent for refund of the toll. The party appealed to this
Court. This Court was unable to accept this contention Shah,
3, as the learned Chief Justice then was, speaking for this
Court noted that the respondent therein had contended that
the rules framed by the Government regarding the procedure
constituted a condition precedent to the exercise of the
right to claim refund and recourse to the civil court being
conditionally strict, compliance to that procedure was
necessary for obtaining any decree in civil court. Allowing
the appeal, this Court held that this contention was untena-
ble. Shah, J. observed at p. 555 of the report as under:
"The rules framed by the Government merely set
up the procedure to be followed in preferring
an application to the Municipality for obtain-
ing refund of the tax paid. The Municipality
is under a statutory obligation, once the
procedure followed is fulfilled, to grant
refund to the toll. The application for refund
of the toll must be made within fifteen days
from the date of the issue of the certificate
and within six months from the date of payment
of the toll. It has to be accompanied by the
original receipts. If these procedural re-
quirements are not fulfilled, the Municipality
may decline to refund the toll and relegate
the claimant to a suit. It would then be open
to the party claiming a refund to seek the
assistance of the court, and to prove by
evidence which is in law admissible that the
goods transported by him fell within the order
issued under s. 157(3) of the Act.
364
The rules framed by the Government relating to
the procedure to be followed in giving effect
to the exemptions on April 15, 1939, do not
purport to bar the jurisdiction of the civil
court if the procedure is not followed. In our
judgment, the Civil Judge and the High Court
exalted what were merely matters of procedure,
which the Municipality was entitled to require
compliance with in granting refund, into
conditions precedent to the exercise of juris-
diction of the civil court. It is impossible
on a bare perusal of the order issued by the
Government and the rules framed by it to give
to the order and the rules that effect."
These observations, in our opinion, in view of the
contentions raised on behalf of the Municipality here are
apposite in this case. The aforesaid Rule 24 does not apply.
In that view, rules 25 and 26 have no scope of application.
Indubitably, amounts have been realised as octroi on the
entry of the goods on which octroi was not leviable because
these were not for use or consumption within the municipal
limits. Mere physical entry into the city limits would not
attract the levy of octroi unless goods were brought in for
use or consumption or sale. In this case, putting the powder
from the drums to the bottles for the purpose of exporting
or taking these out of the city is neither use nor consump-
tion of the Horlicks powder attracting the levy of octroi.
Such amounts, therefore, cannot be retained by the respond-
ent-Corporation. There is no dispute as to the quantum in
view of the fact that the amount has now been found to be
certified to be credited pursuant to the direction of the
learned Single Judge of the High Court. We see no ground as
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to why amount should not be refunded. Realisation of tax or
money without the authority of law is bad under Article 265
of the Constitution. Octroi cannot be levied or collected in
respect of goods which are not used or consumed or sold
within the municipal limits. So these amounts become collec-
tion without the authority of law. The respondent is a
statutory authority in the present case. It has no right to
retain the amount, so far and so much. These are refundable
within the period of limitation. There is no question of
limitation. There is no dispute as to the amount. There is
no scope of any possible dispute on the plea of undue en-
richment of the petitioners. We are, therefore, of the
opinion that the Division Bench was in error in the view it
took. Where there is no question of undue enrichment, in
respect of money collected or retained, refund, to which a
citizen is entitled, must be made in a situation like this.
We, therefore, hold that amounts should be refunded subject
to
365
the verification directed by the learned Single Judge of the
High Court of the amount of refund. The appeal is, thus,
allowed. The Judgment and the order of the Division Bench of
the High Court are, therefore, set aside. In the facts and
the circumstances, there will be no orders as to costs.
R.S.S. Appeal
allowed.
367