Full Judgment Text
2012:BHC-OS:4757-DB
1 WP No. 167 of 2002
Hvn
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
WRIT PETITION NO. 167 OF 2002
1. Tata Motors Ltd. formerly known as
Tata Engineering & Locomotive Company
Limited, a Company incorporated under
the Indian Companies Act, 1913 and having
its Registered Office at Bombay House,
24, Homi Mody Street, Mumbai 400 001
2. Shri H. Rohinesh of Mumbai Indian Inhabitant
residing at 34, Amit Tata Society, Murari Ghag
Marg, Prabhadevi, Mumbai-400 025 and Ors. ... Petitioners
Versus
1. Brihanmumbai Mahanagarpalika a Municipal
Corporation, established under the Bombay
Municipal Corporation Act, 1888, and having
its office at Chhatrapati Shivaji Market, Fort,
Mumbai 400 001.
2. The Assessor & Collector,
Municipal Corporation of Greater Mumbai,
having its office at Shri Chhatrapati Shivaji
Maharaj Market, Mata Ramabai Ambedkar
Marg, Mumbai 400 001.
3. The Deputy Assessor & Collector (Octroi/Refund)
Municipal Corporation of Greater Mumbai,
having its office at Shri Chhatrapati Shivaji
Maharaj Market, Mata Ramabai Ambedkar Marg,
Mumbai 400 001.
4. Octroi Inspector, Air Cargo Complex, having
his office at Air Cargo Complex, Sahar Airport,
Mumbai 400 099. ... Respondents
::: Downloaded on - 26/06/2024 07:31:39 :::
2 WP No. 167 of 2002
Mr. V. Sridharan, Sr. Advocate a/w Chirag Bulsara, H. N. Vakil and Sunil
Chavan i/b M/s. Mulla & Mulla for petitioners.
Mr. Jimmy Poochkhanwalla, Sr. Advocate a/w Ms. Vidya Gharpure &
Ms. Komal Punjabi for respondent-BMC.
CORAM : S.A. BOBDE &
R.D. DHANUKA,JJ.
RESERVED ON : FEBRUARY 02, 2012
PRONOUNCED ON : MARCH 29, 2012
JUDGMENT (Per : R. D. Dhanuka, J.)
The writ jurisdiction of this court under Article 226 of the
Constitution of India is invoked against the order dated 12th October,
2001 passed by respondent municipal Corporation rejecting the request
of the petitioners to grant refund of differential octroi of Rs.29,54,808/-
holding that as the aircraft was exported from Mumbai to USA for
repairs, the petitioners ought to have opted for "R" form procedure and
since the petitioners failed to do so at the time of export, the octroi was
correctly recovered from the petitioners.
2. The facts to be cited for adjudication of the above petition are
stated thus :
The first petitioner is owner of "Falcon 200" aircraft manufactured
by M/s. Dassault Aviation, France. On 1st April, 1996 the first
::: Downloaded on - 26/06/2024 07:31:39 :::
3 WP No. 167 of 2002
petitioner imported the said aircraft as a second hand aircraft from
France. The Government of India, Civil Aviation Department registered
the said aircraft in the first petitioner's name, which was then Tata
Engineering and Locomotive Company with effect from 19th April,
1996 under registration No. VT-TTA . The address given in the
registration certificate was first petitioner's registered office address in
Mumbai. It is the case of the petitioners that when the said aircraft was
imported in the year 1996 no octroi duty was payable on aeroplanes.
3. Section 192 of the Mumbai Municipal Corporation Act inter alia
provides for tax at the rate specified in schedule "H" to be levied on
the articles mentioned in the schedule and the octroi on the said articles
into Greater Mumbai. The said schedule "H" was amended in the year
1998 by notification No. BMC/2398/2587/C.R./279/98/U.D.21 of 22nd
July, 1998, various articles liable to payment of octroi duty were
inserted in Schedule "H" of the said Act. Item 60 of Group D reads as
under :
"Aeroplanes of all kinds including helicopters, components,
parts and accessories of any of them".
4. It is the case of the petitioners that even after the said notification
::: Downloaded on - 26/06/2024 07:31:39 :::
4 WP No. 167 of 2002
dated 22nd July, 1998 came to be issued by the Corporation, the said
aircraft imported by the petitioners did several flights in and out of
Mumbai and abroad. However, the respondent did not ask the first
petitioner to pay any octroi duty on any of such subsequent entries in the
city of Mumbai.
5. In January, 2001, the said aircraft required repairs and for that
purpose it had to be sent to the U.S.A. After obtaining permission from
the Reserve Bank of India to send the said aircraft for repairs and after
obtaining permission to remit the repair cost, the first petitioner exported
the said aircraft for repairs. The first petitioner also filed shipping bill
with the Customs Authorities at the time of export of the aircraft for
repairs. The said aircraft returned to India after repairs in March, 2001.
The first petitioner filed a bill of entry in respect of the repair charges
and paid the necessary customs duty thereon.
6. It is the case of the petitioners that when the said aircraft returned
to India after repairs in March, 2001, the respondents purported to
demand octroi duty on the original value of the aircraft as also on the
repair cost and customs duty paid on the repair charges. It is the case of
the first petitioners that without prejudice to their rights and
::: Downloaded on - 26/06/2024 07:31:39 :::
5 WP No. 167 of 2002
contentions, the first petitioner tendered banker's cheque for Rs.
1,70,695/- being the octroi duty calculated on the repair charges and
customs duty paid under the aforesaid bill of entry for repair charges.
The Petitioners were informed by the respondents that unless the
petitioners pay the octroi duty amounting to Rs.31,25,503/- calculated
on both the cost of the aircraft as per the shipping bill and repair cost and
customs duty, the first petitioner would not be given the facility of
octroi exemption available to it under "N" form produced in respect of
their imports and exports made through Mumbai which are in transit
only and not for use, consumption or sale in Mumbai. The respondent
also threatened that the aircraft of the petitioners would be seized and
confiscated for recovery of octroi. It is the case of the petitioners that in
view of the said threats, the first petitioner deposited the sum of Rs.
31,25,503/- under protest on 29th March, 2001. By letter dated 29th
March, 2001 the first petitioner informed the Assistant Assessor and
Collector that it would be filing separately in due course their claim
for refund of the differential octroi duty and that the payment of Rs.
31,25,503/- was being made under protest.
7. By letter dated 16th April, 2001 by the petitioners to the Deputy
::: Downloaded on - 26/06/2024 07:31:39 :::
6 WP No. 167 of 2002
Assessor and Collector requested for refund of the differential octroi
duty of Rs.29,54,808/-.
8. By letter dated 12th October, 2001, the respondents rejected the
said request for refund of octroi on the ground that as the aircraft was
exported from Mumbai to USA for repairs, the petitioner ought to have
opted for "R" form procedure and having failed to do so at the time of
export, the octroi was correctly recovered from the petitioners.
9. By letter dated 11th October, 2001 the Assessor and Collector
conveyed approval granted by the Joint Municipal Commissioner (I)
allowing exemption to the petitioners from payment of octroi on the
said aircraft to be exported to France for repairs and return under the
"R" form procedure subject to keeping interest free deposit of Rs.
3,15,000/- i.e. 10% of the paid octroi and "R" form procedure and that
the petitioner would undertake not to claim refund of the octroi duty
paid earlier on the said aircraft.
10. Being aggrieved by the said letter/order dated 12th October, 2001
passed by the Deputy Assessor and Collector rejecting the request for
refund of octroi duty, the petitioners filed the present petition for writ
::: Downloaded on - 26/06/2024 07:31:39 :::
7 WP No. 167 of 2002
of certiorari seeking quashing of the said order dated 12th October, 2001
and for seeking refund of the octroi duty collected by the respondents.
The above writ petition was admitted on 30th January, 2002. The
respondents through their learned counsel made a statement that the
Corporation would not insist for undertaking as per letter dated 11th
October, 2001.
11. At the time of final hearing of the present petition, the learned
senior counsel for respondent Mr. Pochkhanwala fairly stated that the
octroi duty was payable by the petitioners only at the time of first entry
of the aircraft. It is admitted position that the petitioners imported their
aircraft i.e. Falcon 200 on 1st April, 1996 for the first time and that
when the said aircraft entered the Municipal limits of Mumbai, in the
year 1996 , there was no item 60 by which the aeroplanes of all kinds
including helicopters, components, parts and accessories were included
in the schedule H. It is also admitted position that when the aircraft
which was exported to USA for carrying out repairs and returned in
March, 2001, the said entry was not the first entry of the said aircraft
within the jurisdiction of the municipal limits. In view of the statement
made by the Municipal Corporation through their learned counsel and in
view of the fact that the first entry of the said aircraft was much prior to
::: Downloaded on - 26/06/2024 07:31:39 :::
8 WP No. 167 of 2002
insertion of Item 60 in schedule H, the petitioners are not liable to make
any payment for octroi duty on its return back in the year 2001. In view
thereof, the following order is passed :
O R D E R
(a) The impugned order dated 12th October, 2001 passed by the
respondents thereby rejecting the application of the petitioners for
refund of octroi duty is quashed and set aside. The respondents are
directed to refund the octroi duty collected from petitioners in the sum
of Rs.31,25,503/- within four weeks from the date of this order.
Petition is disposed of accordingly in the aforesaid terms.
(R.D. DHANUKA,J.) (S.A. BOBDE,J.)
::: Downloaded on - 26/06/2024 07:31:39 :::