Case: M/S. Acqueous Victuals Pvt. Ltd Vs. State Of U.P.

suffers waste or deterioration to some extent, though not totally destroyed or used up and, therefore, it could be held to have been used up to that extent. On the facts and circumstance of the present cases, the aforesaid decision is of no avail to the respondent-Municipalities as it is nobodys case that if empty bottles were actually taken out of the municipal limits after their contents were discharged within the municipal limits, they would get used up even partially only because they remained for some time within the municipal limits containing the beverages without having reposed therein.Learned counsel for the State of Uttar Pradesh placed reliance on the Dictionary meaning of the term repose as found in Shorter Oxford Dictionary, Volume 2, 3rd Edition, p. 1799, wherein one of the meanings of the word repose is mentioned as temporary rest or cessation from activity. That may be the dictionary meaning but the term repose in the context of octroi duty is treated by the Constitution Bench of this Court in Burmah Shells case (supra) as a synonym for final resting of the commodity without being later on taken out of municipal limits. It must, therefore, be held that the commodity which is imported within the municipal limits must either be sold or consumed or used up completely or must be subjected to a continuous the without total exhaustion but in every case the commodity concerned must not have left the municipal limits. The word repose as explained by the Constitution Bench in the aforesaid decision, therefore, has a special meaning and, therefore, the dictionary meaning of the word repose cannot be of any assistance in the context of the octroi levy as interpreted by this Court in Burmah Shells case (supra). 13. We may also mention that our attention was invited by learned counsel for the parties to certain decision of this Court dealing with sales tax in deciding the question whether the value of the bottles could be subjected to sales tax and liable to be included in the taxable turn over including the value of the Beer contained therein. The decisions in Premier Braveries vs. State of Kerala and Tata Engineering &Locomative Company Ltd. &Anr. vs. Municipal Corporation of the City of Thane &Ors. [(1 9930 (1) Suppl(SCC) 361] cannot be of any avail to the learned counsel for the writ petitioner as strictly speaking we are not concerned here with such a quest ion in these proceedings, and especially when we have direct decisions of the Constitution Bench of this Court in Burmah Shells case (supra) and S.M. Ram Lals case (supra).As a result of the aforesaid discussion, therefore, we hold that if beverages in liquid from contained in bottles are brought within the municipal limits and after such beverages are taken out of these bottles, those very empty bottles are found to have been re-exported from the municipal limits without being sold therein, the octroi duty paid on the weight of such bottles earlier could be subjected to claim for refund by the exporter of such empty bottles if the relevant factual data is found to the satisfaction of the authorities before whom such claim id lodged. The first point is, therefore, answered by holding that if the writ petitioner proves to the satisfaction of authorities that very bottles in which beverages were imported in given contingency for sale and consumption within the municipal limits were actually taken out of municipal limits as empty bottles for re-cycling without meanwhile, the octroi duty paid at the time of their entry on the weight of bottles could be subjected to claim for refun d subject to the rider that it is also shown by the writ petitioner that the octroi duty on such empty bottles had not been passed on to the consumers or any other person so that the writ petitioner will not be found to be guilty of unjust enrichment by getting such refund. This question was also to be examined by the authorities before whom claim of refund is lodged. As held by the Constitution Bench of this Court in Mafatlal Industries Ltd. &Ors. vs. Union of India &Ors., the question of unjust enrichment pertaining to such refund claims has to be examined by the authorities concerned. Before parting with discussion on Point No.1, we may also mention that one decision of this court in Nagar Mahapali ka, Meerut vs. Prem Nath Monga Bottlers pvt. Ltd. &Anr. was pressed in service by learned counsel for the writ petitioner. In our view that decision is of no avail to the writ petitioner on the facts of the present case. This Court in the said decision was concerned with the question whether the exemption of octroi granted to mineral water bottles would include aerated water bottles also. It was held that the mineral water bottles would include latter type of bottles also. Such is not the controversy before us. Point No.1 is answered accordingly.In the light of the decision on Point No.1 Point No.2 will naturally require consideration of the question as to what type of directions can be issued in the present case. It is obvious that the dispute centres round the levy of octroi on the weight of the containers, namely, the bottles imported and brought within the municipal limits of four respondent-Municipalities between 1980 and 1987 s there was already stay of recovery of octroi duty from the High Court on the weight of such bottles from 1983 pending the writ petitions till 1987, the writ petitioner had no occasion to put forth their claim for refund till then. It is of course true that for earlier period from 1980 to 1983 when there was no stay from any court, the writ petitioner could have lodged claims for refund but presumably because the writ petitioner thereafter raised this contention before the High Court and the writ petitions remained pending before the High Court for a number of years such claims were not lodge.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
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