Judgment Case ID: 1339

Judgment:
Civil Appeals Nos. 356 and 357 of 1961. Appeals by special leave and certificate from the judgment and orders dated October 16	 1959	 and February 16	1960	 of the Madhya Pradesh High Court in L. P. A. No. 93 of 1957 and Misc. Petition No. 254 of 1959 respectively. 152 section T. Desai and N. H. Hingorani	 for the appellant. M. R. Nambiar	 section N. Andley	 Rameshwar Nath and P. L. Vohra	 for respondent No. 1. 1960. October 20. The Judgment of the Court was delivered by HIDAYATULLAH	 J. These two appeals by special leave have been filed by the Municipal Committee	 Raipur	 against two different respondents who carry on business of extraction of oil from oil seeds. The case involves an interpretation of the Byelaws of the Municipal Committee and the determination of octroi duty which was payable by the respondents in the relevant years of assessment on sarso oil seeds brought by them within the area of the appellant Committee for purposes of their business. The Municipal Committee demanded an ad valorem octroi duty Rs. 4 11 0 per cent from the respondents	 claiming to levy it under item 44 of the Schedule of goods liable to octroi duty in the Raipur Municipality	 appended to the Rules framed on June 4	 1951. The respondents	 on the other hand contended that a duty of 2 annas per maund was leviable under item 4 of the same Schedule	 which covered the case of oil seeds. The respondents made representations described as appeals	 but were unsuccessful. Their demand for refund of octroi duty paid by them was refused and they	 therefore	 filed petitions under article 226 of the Constitution in the High Court of Nagpur (later	 of Madhya Pradesh) against the appellants alleging inter alia that this imposition of octroi duty ad valorem at Rs. 4 11 0 percent on sarso oil seeds as against other oil seeds was ultra vires the Municipal Committee under article 14 of the Constitution. They also averred that octroi duty was properly leviable under item 4 and not under item 44. In the High Court	 the petition out of which Civil Appeal No. 356 of 1961 arises	 was heard by a learned single Judge	 who held that 153 sarso oil seeds were chargeable to duty under item 44 and not under item 4. From the order of the learned single Judge	 it does appear that the constitutional question was urged before him. Against this order	 a Letters Patent Appeal was filed	 and the Divisional Bench	 which heard the appeal	 held	 disagreeing with the learned single Judge	 that duty was properly leviable only under item 4. Before the Divisional Bench also	 it does not appear that the constitutional question was argued. The petition	 out of which Civil Appeal No. 357 of 1961 arises was heard by a Divisional Bench	 which	 following the earlier decision	 decided against the appellant Committee. The entries in the Schedule of goods liable to octroi duty in the Raipur Municipality contain eight classes of goods. Under them are grouped 67 items	 the serial numbers running consecutively through all the classes. Class I is headed "Articles of food or drink or use for men or animals". Item 4	 which is in that Class reads "Oil seeds of every description not specifically mentioned elsewhere". Class V is headed "Drugs	 spices and gums	 toilet requisites and perfumes"	 and item 44 reads "Betel nuts	 gums	 spices	 Indian herbs and Indian raw medicines and drugs	 such as nuts	 ilaichi	 laung	 jaiphal	 jaipatri	 dalchini.	 sont	 katha	 zeera	 Dhania garlic	 dry chillies	 pepper	 shahzeera	 maithi	 sarso	 etc. and known as kirana" (groceries). Item 4 is chargeable to a duty of 2 annas per maund	 and item 44 is chargeable ad valorem at Rs. 4 11 0 per cent. In addition to these entries	 there is item 17	 which reads "Vegetable oils (not hydrogenated) not provided elsewhere such as Tilli Tel	 Sarso Tel	 Alsi Tel	 Falli Tel	 Narial Tel	 Andi Tel '	 which are chargeable to a duty of 4 annas per maund. It is conceded on all hands that sarso is an oil seed	 and if there was nothing more in the Schedule a duty of 2 annas per maund would be leviable on sarso as an oil seed. The dispute arises	 because 154 sarso is mentioned again in Item 44 with a very much higher duty	 and it is contended by the appellant Committee that the words "not specifically mentioned elsewhere" in item 4 exclude sarso from that item	 and that its specific mention in item 44 makes it liable to the higher duty indicated there. The learned single Judge of the High Court held in favour of the Municipality. According to him	 this reason was sound and the higher duty demanded was the proper duty payable. The Divisional Bench on the other hand	 points out that the two classes (I and V) are entirely different. Class 1 deals with articles of food or drink for use for men and animals while Class V deals with drugs	 spices and gums	 toilet requisites and perfumes. The division indicates clearly that goods belonging to one category are not included in the goods belonging to the other. The Divisional Bench also points out that item 4 must be read as it stood and the specific mention must be in the same manner in which that entry was framed. Item 4 deals with "oil seeds"	 and the specific mention must be as "oil seeds" elsewhere in the Schedule. It was also argued for the respondents that "elsewhere" meant elsewhere in the same Class. But the appellant Committee pointed out that the serial numbers were all consecutive	 and that the specific mention could be anywhere in the Schedule. The two arguments are equally plausible	 and nothing much	 therefore turns upon them. In our opinion	 the Divisional Bench of the High Court was right when it said that the specific mention elsewhere must be as oil seeds and not as something else. Class V deals with spices and groceries and the concluding words of item 44 known as "kirana" determine the ambit of that item. Though sarso might be mentioned there	 it must be taken to have been mentioned as a spice or as kirana and not as oil seed. The extent of item 4	 which deals with oil seeds of every descrip 155 tion	 could only be cut down by a specific mention elsewhere of an item as an oil seed. Item 44 contains fairly long list	 out of which we have quoted a few illustrative items. Each of these items is referable to the general heading either as a drug or a spice or gum	 etc. Sarso	 it is admitted	 is sold as kirana and as a spice. The mention of sarso there is limited by the general heading to which it belongs	 namely	 a spice	 drug or herb sold as kirana. No doubt	 sarso as an oil seed is the same article as sarso sold as kirana but we must take into account the intention behind the bye law and give effect to it. If it was intended that sarso as an oil seed was to be taxed in a special way	 it would be reasonable to expect that it would have be found a specific in mention as an oil seed with a different duty. One would not expect that it would be included in a long list of articles of kirana and in this indirect way be taken out from a very comprehensive entry like item 4	 where oil seeds of every description are mentioned. Though the next argument is not conclusive because there is no logic behind a tax	 still it is to be noticed that sarso oil (a maund of which	 as the affidavit of the respondents shows	 is expressed from three maunds of oil seed) bears only an octroi duty of 4 annas per maund	 while three maunds of sarso oil seed under item 44	 if it were applicable	 bear a duty of Rs. 4 3 6 per maund	 if the price of sarso is taken as Rs. 30 per maund as stated in the affidavit. This leads to an anomaly	 which	 in our opinion	 could hot have been intended. Finally	 it may be said that if there be any doubt	 the Divisional Bench of the High Court very properly resolved it in favour of the taxpayer. We	 therefore	 hold that the judgment of the High Court is correct	 and dismiss these appeals with costs. Appeals dismissed	.

Summary:
The respondents carried on business of extraction of oil from oil seeds. The appellant Municipality charged octroi duty at Rs. 4 11 0 percent ad valorem under item 44 of the schedule of goods attached to the Rules framed by the Municipality. The respondent 's case was that they were liable to pay octroi under item 4 of the said Rules at the rate of 2 as. per maund. The schedule consisted of eight classes with 67 items of goods	 the serial number running consecutively. Class I was headed "Articles of food or drink or use for men or animals". Item 4	 which was in that class	 read "oil seeds every description not specifically mentioned else where". Class V was headed "Drugs	 spices and gums	 toilet requisites and perfumes" and item 44 which was in that class read "betel nuts	 gums	 spices	 sarso etc. and known as kirana" (groceries). 'I`he single Judge who heard the matter in the first instance held in favour of the appellant but the court of appeal held in favour of the respondent. ^ Held	 that the view taken by the Court of appeal must be upheld. The words not specifically mentioned elsewhere" in item 4 of the Schedule must mean mention as an oil seed. The words "known as Kirana" in item 44 clearly indicated that sarso fell within its ambit only as a spice or as Kirana and not as an oil seed. Although there could be no doubt that sarso as an oil seed was the same thing as Kirana	 but the intention behind the bye law to charge oil seeds at a lesser rate was clear and must be given effect to.