Case: Nagar Mahapalika, Meerut Vs. M/S.Prem Nath Monga Bottlerspvt.Ltd. And Anr

2. The respondent is a company which runs a bottling plant in Meerut. Inter alia, it bottles a drink known as "Double Seven" under a franchise agreement with M/s Modern Bakeries Limited, New Delhi, a Government of India undertaking. The bottles are sent out of the Meerut local area to various dealers for sale. According to the respondent, the sale is subject to the condition that after the drink is consumed, the bottle is to be returned to it. Accordingly, bottles were being returned to it from time to time. The appellant proposed to levy octroi on the entry of such bottles on the ground that the said bottles were being brought into the Meerut local area for the purpose of use, i.e., for being filled with the drink "Double Seven". According to the appellant-Corporation, the empty bottles being "articles made of glass" within the meaning of Entry 138 of the notification dated 4-1-1975 were subject to the levy of entry tax. The respondent resisted the levy on two grounds, viz., (1) that the entry of empty bottles into the local area for the purpose of being filled with the said drink and meant for being taken out for sale outside the local area does not amount to entry of goods for use within the meaning of the expression "consumption, use or sale therein" within alone attracts the levy within the meaning of Section 128(1)(viii) of the Act and (2) that in any event, the said empty bottles are covered by the exemption clause contained in the said notification and in particular by Entry 13 thereof. Both the contentions were rejected by the appellant whereupon the respondent filed an appeal the learned District Judge under Section 472 of the Act. The learned District Judge upheld the contention of the appellant, which led the appellant-Corporation to approach the High Court by way of a writ petition. The High Court did not go into first of the two contentions mentioned above. It dismissed the writ petition upholding the second contention urged by the respondent

Reasoning: 6. While we agree with the learned counsel for the appellant-Corporation that "mineral water" and "aerated water/cold drinks" are different and distinct articles, whether in common parlance or in the commercial parlance, we are not inclined to interfere in the matter in view of the following findings recorded by the learned SingleThe decision of the High Court was rendered on 13-1-1983. It may be noted that the learned District Judge was also of the same opinion. We are inclined to presume that the High Court and the learned District Judge were aware of the factual situation obtaining in that State both in 1956 and in 1975 and that at this distance of time, it would not be proper and advisable to interfere with their opinion. They have pointed out that the said notification of 1975 was preceded by a notification of 1956 and that in 1956 mineral water as we know today was not known in commercial circles and, therefore, when the notification used the expression "mineral water", it meant aerated water or the cold drinks. This course we are adopting also because it is stated that after 1987 this question would notIn view of the above, it is not necessary for us to go into the question whetherthe entry of empty bottles for the purpose of being filled with cold drinks/aerated water constitutes use within the meaning of the expression "consumption, use or sale therein" occurring in Section 128(1)(viii) of theAct or for that matter in Entry 52 of List II of the Seventh Schedule to the Constitution of