2011 (7) TMI 1100

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....orporation, levying and demanding octroi from the appellants on glass bottles and crates. 4. In the Civil Appeal filed against the judgment dated 08.10.2010 in the Writ Petition No. 5510 of 2010 the appellant company is, inter alia, engaged in the manufacture of aerated beverages marketed under different brands. The products of the company are distributed from its plant located at Pirangut Taluka, Mulshi, District Pune to amongst other places like Sangli Miraj and Kupwad. 5. According to the appellant, their products are distributed and sold in returnable and reusable glass bottles. Glass bottles are stored in plastic crates. Glass bottles and crates are owned by the appellant. They are never sold to any distributor or retailer. Once the product in the glass bottles kept in crates is consumed, glass bottles along with crates are returned to the appellant for filling after cleaning and washing them. The appellant pays octroi levied on the aerated beverages when they enter octroi limits of Municipal Corporations. The impugned bill has the effect of levying octroi separately on the glass bottles and plastic crates utilized by the appellant to pack and transport the aerated bever....

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....s amortized and included in the retail sale price of the aerated beverage. Since the cost of glass bottles and crates is already included in the price of the beverage on which the octroi is levied and collected, no further octroi can be levied on the glass bottles and crates. 10.All the above said submissions and contentions were refuted by the learned senior counsel appearing for the respondents. It was submitted that the issue in the present case stands settled by this Court, long back, in the case of Acqueous Victuals (supra) and the High Court has rightly dismissed the Writ Petition by following the ratio laid down in the said judgment of this Court. Further, it was submitted that the appellant cannot be aggrieved by the said levy of the octroi on glass bottles and crates, as in case the appellant can satisfy the authorities that they were not used, consumed or sold in the Municipal limits but were taken out for recycling, in the said case they can claim refund and as such are not burdened with the liability of octroi on such bottles and crates. 11.Before we proceed further it would be relevant to refer to the judgment of this Court in the case of Acqueous Victuals (supra). ....

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....the purpose of its sale, consumption, or use within the Municipal limits. But, if the packing is found to have been taken out of the Municipal limits after its contents were discharged within the Municipal limits, then the weight of such packing cannot be brought to octroi tax or if such tax is levied at the entry point, it would become liable to be refunded. This Court further observed that the claim of refund would involve disputed questions such as whether such consignments with the packing were actually sold with their contents to the local consumers, or wholesalers, whether they were consumed or used up within the local limits or whether they were used for an indefinite period and ultimately rested within the Municipal limits and had not been taken out. These disputed questions of fact are required to be examined and adjudicated upon when claims for refund are considered by the appropriate authorities. 13.While arriving at the above conclusion, this Court referred to the Constitution Bench judgment in Burmah Shell Oil Storage & Distributing Company of India Limited v. Belgaum Borough Municipality reported at AIR 1963 SC 906 where it was dealing with the question whether oct....

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....nsumption stage and were, therefore, liable to levy of Octroi leaving aside the question whether they were brought within the Municipal limits for consumption thereof. Referring to Burmah Shell's case, this Court held that though the use of the bottles may not amount to its destruction or total using up, but to attract octroi, the bottles must have finally rested within the Municipal limits and not taken out. This Court concluded that to attract the levy of octroi on the goods brought within the Municipal limits, there must be proof of the fact that the goods got consumed completely within the Municipal limits or were used for an indefinite period in such a way that they come to rest finally and permanently within the Municipal limits or sold within the said limits. 16.With reference to the facts of the case before it, this Court observed that the moot question was whether the bottles which were filled in with beverages imported for sale within the Municipal limits could be said to have been consumed or used within the Municipal limits. The question whether the bottles were really sold by the petitioner-Company within the Municipal limits requires resolution on consideration....

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....s, retailers or to any other person; (c) Number of bottles covered by the consignments concerned which were subsequently taken out as empty bottles beyond the municipal limits for recycling and weight of such empty bottles; (d) Whether the bottles which are actually found to have been taken out of the municipal limits were the very same bottles containing beverages brought within the municipal limits by way of relevant consignments; (e) Whether the value of such bottles and amount of octroi duty on their weight was passed on to the consumers or not?" 18.In our considered opinion the present case is squarely covered by the above said decision of this Court in the case of Acqueous Victuals (supra), and the said decision was passed on the similar facts as of the present case, the only difference being that in the case of Acqueous Victuals (supra) octroi was computed and levied on the basis of the weight of the bottles and crates, whereas in the present case, the impugned bill seeks to levy octroi on the basis of value of the bottles and value of the crates. It was suggested by the learned senior counsel appearing for the appellant that due to the said difference the judgme....

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....owever, not liable to octroi in respect of goods which it brought into the local area and which were re-exported. But to enable the Company to save itself from tax in that case it had to follow the procedure laid down by rules for refund of taxes. 16. The aforesaid authoritative pronouncement of the Constitution Bench of this Court, therefore, sets at rest the controversy in the present case. If it is the case of the writ petitioner that during the relevant period from 1980 to 1987 it brought within the municipal limits of the four respondent-Municipalities beverages packed in bottles and the bottles were not sold within the municipal limits and after the beverages were taken out of these bottles, these very bottles were returned to the petitioner and were taken back to Bareilly, then for claiming the refund of the octroi paid on the weight of these bottles during the relevant period when the consignments entered the municipal limits from time to time, the writ petitioner had to follow the procedure laid down by the Municipality concerned under its rules for refund of taxes and had to comply with the statutory gamut of these rules. It had also to show that the burden of disputed....