Case: Municipal Committee, Khurari Vs. Dhannalal Sethi &amp; Ors

2. The admitted facts before the High Court were, (1) that respondents 1 and 2 had purchased the said foodgrains from certain cultivators; and (a) that those cultivators had in fact paid octroi duty when they brought the said foodgrains for sale within the municipal area. The contention of respondents 1 and 2 before the High Court was that as persons who had exported the said goods they were entitled to the refund of the duty paid by their vendors, the said cultivators, and that the Board misconstrued the rules and was in error in refusing the refund to them. A learned Single Judge of the High Court held that under Rule 9 (c) a declaration had to be made if the goods were intended for consumption or use within the municipal area or if they were intended for immediate export. He observed that Rule 9, however, did not provide for any such declaration if the goods brought into the municipal area were intended for sale. He then observed that R. 27 dealt with refund of octroi on the exportation of dutiable goods outside the municipal limits and the exporter thereunder was entitled to a refund of 7/8th of the duty paid on such goods. He held that the duty having admittedly been paid on such goods by the said cultivators and respondents 1 and 2 having purchased and exported those very goods, they were entitled to the refund. On this basis he quashed the orders of the Deputy Commissioner and the Board and allowed the writ petition. In the Letters Patent appeal filed by the appellant Committee, a division bench of that High Court agreed with the Single Judge on his construction of R. 27 but as the Board had considered only one question, namely, whether respondents 1 and 2 not having themselves paid the duty were not entitled to claim the refund, remanded the case for dealing with the rest of the questions. On remand to the Board, the Committee contended, (1) that respondents 1 and 2 had to establish that duty was paid on the said goods when they were imported into the municipal area: and (2) that they had also to produce the receipts of payment of such duty and that without doing so they were not entitled to the refund. The Board rejected the contention and held on the strength of Rr. 42 and 43 of the said Rules that except in the case of cloth or goods produced or manufactured within the municipal area, no proof by the person claiming refund of duty paid on importation was required and that such payment would be presumed in the case of goods other than the two aforesaid kinds of goods. The Board further held that Rule 27 also did not lay down that the person who has exported the goods had to prove payment of octroi on those goods when they entered the area. The Board on this interpretation allowed the revision application of respondents 1 and 2 and set aside the orders of the Committee and the Deputy Commissioner and directed payment of the refund. The Municipal Committee thereupon filed a writ petition in the High Court for quashing the Boards order contending once again that no octroi duty had been paid on the said foodgrains. The High Court rejected this contention in view of the admission made by the Committee before the Deputy Commissioner, the Board and the High Court in earlier proceedings that the goods exported by respondents 1 and 2 were duty paid. The High Court held that in view of those admissions the Committee could not require respondents 1 and 2, to produce the receipts to prove payment of the duty, apart from the fact that the rules did not require a claimant who had exported dutiable goods to produce receipts of payment of duty. The High Court further held that it was clear from Rr. 28 and 29 that the amount of refund is to be determined from the quantity of foodgrains exported or from their value and: Therefore, even for determining the amount of refund production of receipts by such a claimant was not necessary nor was such production required by Rules 42 and 43 except, as aforesaid, in the case of two categories of goods, viz., cloth and articles produced or manufactured within the municipal area. The High Court held that that being the position and there being no dispute as to the fact that the goods in question were duty paid and those very goods had been exported, there was nothing in the rules which barred respondents 1 and 2 from recovering 7/8th of the duty Paid on those goods. The High Court dismissed the writ petition. The Committee then filed a review petition before the High Court on the ground that it had not considered in its judgment its contention based on Rules 35 to 38 and urged before it. The contention was that compliance of those rules by respondents 1 and 2 was a condition precedent to their being entitled to the refund. The High Court conceded in its judgment on the review petition that the said point was urged before it but observed that it did not deal with it as during the hearing of the writ petition it was pointed out to the counsel for the Committee that there was no substance in it. According to the High Court, Rules 35 to 37 did not require any compliance by respondents 1 and 2 as they dealt with matters to be done by the Octroi Superintendent and the Muharir at the exit post when an application for refund is made by a person exporting the goods out of municipal limits and that the fact that respondents 1 and 2 did not present the challan at such exit post, did not debar them under the rules from claiming the refund. The review petition on this ground was, therefore, rejected. Aggrieved by the dismissal of its writ petition, the appellant committee obtained special leave from this Court and filed this appeal.

Reasoning:
5. It is clear from Rules 35 to 39 that they lay down the procedure for claiming refund. Counsel for the Committee therefore, appears to be right in his contention that an exporter desiring to claim refund has to make his application at the time of exportation of the goods and in the manner prescribed in these rules. It appears also that there is considerable force in his contention that Rules 42 and 43 deal with only two categories of goods, viz., cloth and articles locally produced or manufactured and that Rule 43 is confined to those two kinds of goods only and, therefore, when it provides that no further proof of duty having been paid on them is required, it means that no proof of such payment other than the one mentioned in Rule 42 would be needed in respect of the said two categories of goods. In our view, Rule 43 has to be read in the context of Rule 42 and must, therefore, be read to mean that no further proof of payment other than the one mentioned in Rule 42 would be required in respect of those two classes of goods and, therefore, Rule 43 does not apply to other kinds of goods. The reason is that if Rule 43 is read in the manner in which the High Court has read it, it would render Rules 35 to 39 totally nugatory, a construction which a court having to construe these rules, would be loath to adopt.6. It would seem, therefore, that these rules do provide a procedure which an exporter wishing to claim refund has to follow. But the question iswhether in a case where an exporter has not done so, is he disentitled from claiming thereal difficulty in the way of the appellant Committee is that though the rules lay down a procedure which such an applicant has to follow, they do not provide at the same time that an applicant for refund who has failed to follow the procedure laid down in Rules 35 to 39 would be disentitled to claim the refund. In the absence of such a provision coupled with the categorical language of Rule 27 giving a right to an exporter of dutiable goods to claim 7/8th of the duty paid on such goods on their import, it becomes difficult to uphold the denial by the appellant Committee of the right of respondents 1 and 2 to such a refund.We are, therefore of the opinion that in the present state of the rules, the appeal must fail though for reasons different from those given by the Board of Revenue and the High Court.