CWP No. 3109 of 1988 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. CWP No. 3109 of 1988 Date of decision 17.7.2009 M/s Hawkins Cookers Ltd. ... Petitioner Versus Municipal Committee, Hoshiarpur and another ... Respondents. CORAM: HON'BLE MR. JUSTICE M.M. KUMAR HON'BLE MR. JUSTICE JASWANT SINGH Present: Mr. A.K.Chopra, Sr. Advocate with Ms. Rupa Pathania ,Advocate for the petitioner Mr. I.P.S.Doabia, Advocate for respondent no. 1. Ms.Sudeepti Sharma, DAG Punjab for respondent no. 2 1. Whether Reporters of local papers may be allowed to see the judgement ? 2. To be referred to the Reporter or not ? 3. Whether the judgement should be reported in the Digest ? M.M.KUMAR, J. The short issue raised in the instant petition filed under Article 226 of the Constitution is whether the petitioner is liable to pay octroi under Entry No. 86 (category 12) of the Octroi schedule incorporated by Section 61(2) of the Punjab Municipal Act, 1911 (for brevity 'the Act') @ Rs. 9/- per quintal or under Entry No. 92 (category 12) @ Rs. 20/- per quintal of the schedule. It is pertinent to mention that when the petition came up for motion hearing on 21.4.1988 a Division Bench of this Court passed a conditional stay order directing the petitioner to keep paying octroi under Entry 86 which was subject to its executing a surety bond in favour of the Municipal Committee- respondent no.1 to the effect that in the event of dismissal of the writ petition the petitioner would make good the deficiency in accordance with Entry 92 to the satisfaction of the Deputy Commissioner, CWP No. 3109 of 1988 2 Hoshiarpur. Eventually the petition was admitted on 5.10.1988 alongwith interim directions by giving liberty to the petitioner to move appropriate application for vacation of the stay order before the Learned Single Judge. However, the interim order has continued to operate till date. Few material facts may be noticed. The petitioner is a firm engaged in the manufacturing of pressure cookers. They have been importing raw material in the local area of Hoshiarpur which constitute mainly aluminum which is received by it in various shapes like sheets, circles, bars , rolls etc. The firm used to be charged octroi on aluminum circle @ Rs. 9/- per quintal under entry 92 (category 12). Their case before the statutory authorities has been that its supplier has been supplying cut sheets while rolling the material in their mill as per the requirement of the petitioner. Likewise they supply cut circles while rolling material as per their demand which is easy for packing and transportation purposes and results in relatively lower scrapings of aluminum which is a scarce metal in this country. The Executive Officer of the respondent Committee, however, clarified that department would be charging @ Rs. 20/- per quintal for aluminum circles. The matter travelled to Deputy Commissioner in an appeal filed by the petitioner under Section 84 of the Punjab Municipal Act, 1911 (P.3). However, the Deputy Commissioner in its appellate order considered the rival contentions and dismissed the appeal upholding the order of the Executive Officer that the aluminum circles were assessable under Entry 86 (category 12). The view of the Deputy Commissioner is discernible from the penultimate para of his order dated 19.1.1988 which reads thus: “ The appellant company is bringing aluminum sheets, CWP No. 3109 of 1988 3 aluminum bars and aluminum circles to this factory premises for manufacturing pressure cookers. Whereas the aluminum sheet and aluminum bars are being charged octroi as specified under Article 86, aluminum circles are being charged octroi as per article 92. The appellant company is manufacturing pressure cookers of various sizes. For manufacturing the pressure cooker vessels, almiumum circles of various sizes are used and these circles are put into machine for giving them a shape of the pressure cooker vessel. Each particular aluminum circle is brought to the factory of a given size, so that the required sized pressure cooker vessel can be machined out of it. Thus aluminum circles are of specific cut sizes, which have been cut to order by the firm from which the appellant company buy these aluminum circles. There, the aluminum circles cannot be treated as sheets or bars defined under article 86. There are very much articles and, therefore, fit to be charged as per the schedule given in article 92 of the schedule of octroi. I have also seen the State Government's notification dated 9.3.1961, vide which it has been specifically mentio9ned that a tax called octroi on the gross weight of consignment, including packing drums and other articles used in packing of the articles shall be imposed. Therefore, the Municipal Committee is justified in charging the octroi on the gross rate.” Mr. Ashwani Chopra, learned senior counsel for the petitioner has vehemently argued that the department itself has clarified the rate of octroi applicable on plain aluminum/ round sheets/ circular planks. He has drawn CWP No. 3109 of 1988 4 our attention to the letter dated 17.10.1990 (P.6) sent by the respondent State to the Executive Officer, Municipal Committee, Kapurthala. He has also submitted that octroi has already been abolished in the State of Punjab. He has further contended that a bare perusal of Entry 86 would show that sheets and bars of all metals like brass, copper, bronze, zinc , tin etc. are covered by that entry which is in rectangular shape while almiumum circles are in the round shape. Ms. Sudeepti Sharma, learned State counsel and Mr. I.P.S.Doabia, learned counsel for the respondents has supported the order passed by the Deputy Commissioner and argued that the matter is covered by Entry 92 and the octroi is assessable @ Rs. 20/- per 100 kgs. It has been submitted that the petitioner company is bringing in the local area aluminum sheets, aluminum bars and aluminum circles for manufacturing pressure cookers. There is no controversy with regard to aluminum sheets and bars which have been specified in Entry 86 and the same are charged @ Rs. 9/- per 100 kgs. whereas aluminum circles are charged @ Rs. 20/- per 100 kgs as per Entry 92. According to her aluminum circles are brought to the local area which is of a size made by the dealer according to the requirement of the petitioner so that pressure cookers of different sizes could be made out of them. Therefore, the aluminum circles cannot be treated as sheet or bar as per the definition given in Entry 86. Mr. I.P.S. Doabia has placed reliance on a judgement of Hon'ble the Supreme Court in the case of Chheda Industries v. Collector of Customs, Madras (1997) 6 SCC 88 and argued that before Hon'ble the Supreme Court a question had arisen with regard to stainless steel circles and it was held that stainless circles cannot be classified under the term CWP No. 3109 of 1988 5 'sheet'. Referring to para 8 of the judgement, learned counsel has submitted that stainless steel circles which is quite different from a sheet. In commercial parlance stainless steel circles is a commodity distinct from stainless steel sheet. Having heard learned counsel for the parties and perusing the paper book with their able assistance we are of the considered view that this petition merits acceptance. It would be appropriate first to examine Entry 86 and Entry 92 which reads thus: Rate per Q. Entry 86 Sheets and bars of all metals like brass, copper bronze, zinc, lead, tin and german silver, black lead, antimony except iron and stainless steel. Rs.9/- Entry 92 Articles and utensils made of other metals exclusively or of alloys including Moradabadi and aluminum wares, german silver wares and EPNS wares, brass wares enamel wares.” Rs. 20/- A perusal of Entry 86 which attract octroi duty @ Rs.9/- per quintal shows that sheets and bars of all metals like brass, copper, bronze, zinc, lead, tin etc are to be assessed under Entry 86. The admitted position is that the petitioner has been importing in the local area aluminum sheets and bars which are concededly assessable under Entry 86. The aluminum circle is also a sheet although it may be in a round shape. The circle shape of the sheet would not change its character. Merely because circular sheet is torn or is not of rectangular shape would not result in changing its character of sheet. It would not become aluminum under ' Articles' and 'Utensils' so as CWP No. 3109 of 1988 6 to bring it under Entry 92. The provisions of entry 92 has to be construed by applying the well known principles of interpretation of statute known as 'ejusdem generis'. The principle has been defined by Jowitt as follows: “..... general words following an enumeration of particulars are to have their generality limited by reference to the proceeding enumeration, and to be construed as including only all other articles of the like nature and quality.” When we apply the aforesaid principles to the language of Entry 92 it becomes obvious that the general words used are “Articles' and 'Utensils' which are made of metals etc. The use of these words would inevitably suggest a finished product capable of use. The preceding words 'Articles and Utensils' would imply that it would not include raw material to make 'Articles and Utensils'. The expression 'sheets and bars' used in Entry 86 must include sheets of all types whether rectangular or triangular or circle. In any case such aluminum circle cannot fit in under Entry 92. It does not require much imagination that aluminum circles as they are cannot be put to any use like 'Utensils'. Furthermore, the respondent State in a communication dated 17.10.1990 issued to the Executive Officer, Municipal Committee, Kapurthala has clarified as under: “ The case under reference has been re-examined. Since the aluminum rings imported by the firm is raw material with which finished product cooker is manufactured/ commodity and can't thus be equated with the finished product. The Government has decided to clarify that this item may be charged under Item 86. This over-rides the opinion of ELFA CWP No. 3109 of 1988 7 given vide No. XIX (39)-Vol. XXXIX/5151 dated 15.6.1990.” It is thus obvious that the Government itself has treated almiumum ring sheets or circles as an item covered under Entry 86. Therefore, the writ petition deserves to be allowed. Therefore Entry 92 by no stretch of imagination would be attracted. Consequently octroi @ Rs. 20/- per 100 kgs. Under Entry 92 could not be charged. The reliance of the learned counsel for respondent no. 1 on the judgement of Hon'ble the Supreme Court in the case of Chheda Industries (supra) is wholly misplaced because Hon'ble the Supreme Court was seized of Tariff Entry 73.15 which in turn refers to heading Nos. 783.06/07 to 73.14. On the language of these entries and their contents no comparison is possible with Entry Nos. 86 and 92 which are subject matter of dispute in the present petition. The entries are not pari materia Therefore, we hold that the judgement of Hon'ble the Supreme Court in Chheda Industries's case (supra) has no application to the issue raised in the instant petition. For the reasons mentioned above, this petition succeeds and the same is allowed. Consequently, order dated 19.1.1988 (Annexure P.4) is quashed. (M.M.Kumar) Judge (Jaswant Singh) 17.7.2009 Judge okg