1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR WRIT PETITION NO.3727 OF 2009 (Nag Vidarbha Chamber of Commerce and others vs. N.M.C. and another) __________________________________________________________________ Office Notes, Office Memoranda of Coram, appearances, Court's orders Court's or Judge's orders or directions and Registrar's orders. CORAM : D.D. SINHA AND F.M.REIS, JJ. DATED : DECEMBER 9, 2009 Heard Shri Jaiswal, learned Counsel for the petitioners, Shri Kaptan, learned Counsel for the respondent nos. 1 and 2, and Shri Pande, learned Counsel for the interveners. The petition is directed against the Circular dated 17.7.2009 issued by the Assistant Commissioner (Octroi), NMC, Nagpur, which reads thus : “By this Circular it is hereby informed you that the MRP of the goods should be got declared from the importer for the purposes of the assessable value of the octroi leviable goods imported into the city. If the invoice produced by the Importer is at least 80% or more than 2 that of the MRP, then the octroi should be levied on the total invoice price determined after adding all the other charges. After inspection of the invoice and the MRP, if it appears that the invoice price of the goods is less than the 80% of the MRP, then the octroi should be charged from the importers, on the cost as per the M.R.P. (assessable value) on the entire goods.” Shri Jaiswal, learned Counsel for the petitioners, submits that procedure stipulated in the Circular for the purpose of assessing the octroi leviable on the goods imported in the city is wholly inconsistent with the procedure mentioned in the provisions of Rules framed under the City of Nagpur Corporation Act, 1948. It is submitted that Rule 10(a) of the Octroi Rules stipulates that where the duty is chargeable on weight, gross weight including that of the packages or container shall be adopted. Where the duty is chargeable ad valorem, the value thereof shall be the cost price to the importer plus all incidental charges such as custom duty, insurance, excise duty, sales tax and freight and such other charges incurred by the importer, till the arrival of 3 the goods at the entrance naka, if these have not already been included in the cost price. It is contended that Rule 10(d) provides that if the original invoice is not available or produced by the importer at the time of import of the invoice produced by him is found to be not reliable by the import naka official or if it is incomplete or if the importer is unable or refuses to declare the true value of the goods in the declaration form prescribed for this purpose, the octroi naka official shall calculate and recover the duty according to the current price of the goods prevalent in the local market. For the general guidance of the naka staff, a table of current price of the articles shall be prepared by the Octroi Superintendent, in consultation with the registered trade unions and chamber of commerce, which should be brought up-to-date at least once a month. Current price shall mean the wholesale price of such goods including local taxes : provided that where the price of articles imported cannot be ascertained from the local market, then in such cases Octroi Superintendent may after due verification direct the naka oficial to accept duty provisionally on declared 4 value which should be subject to the adjustment on production of invoice or other documents in original. It is further contended by the learned Counsel for the petitioners that if the invoice purchased by the importer is found to be not reliable by the Naka official or is incomplete or improper, in that event, the procedure for calculating and recovering the duty is stipulated in Clause (d) of Rule 10, which the respondents are entitled to follow and not the procedure, which is stipulated in the impugned Circular. It is, therefore, contended that the Circular issued by the respondents is not proper. Shri Jaiswal, learned Counsel for the petitioners, further submits that administrative fee of rupees five is deducted by the respondents on every consignment, which is brought in the city and same is without authority of law and, therefore, cannot be sustained in law. Shri Kaptan, learned Counsel for the respondent nos. 1 and 2, does not dispute the legal position contended by the learned Counsel for the petitioners and states that procedure stipulated in Rule 10 of the said Rules would be followed. 5 However, the Circular issued by the Department is only for the purpose of guidance of the Officers of the Department and does not have any statutory force. It is submitted that procedure stipulated in the Act and Rules shall be followed while assessing and recovering octroi duty. It is further submitted that payment of administrative fee of rupees five is optional and not compulsory and hence, petitioners should not have any grievance in this regard. In the circumstances, grievance of the petitioners appears to be redressed. The petition is disposed of accordingly. JUDGE JUDGE khj