9911796707
TMI Blog1991 (4) TMI 363X X X X Extracts X X X X X X X X Extracts X X X X ..... D KASLIWAL N.M. JJ. Florence Gabriel Sequeria, petitioner No. 2 in person for the petitioners. -------------------------------------------------- The judgment of the Court was delivered by N.M. KASLIWAL, J.- We have heard Mr. Florence Gabriel Sequeria who appeared in person and perused the written arguments submitted by him. The petitioners challenged the vires of rule 15 of the Bombay Sales of Motor Spirit Taxation Rules, 1958 (hereinafter referred to as "the Rules"). The learned single Judge as well as the Division Bench of the Bombay High Court dismissed the writ petition and as such the petitioners have now come before this Court by special leave petition filed under article 136 of the Constitution. In order to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hence the provisions of sub-rule (3) of rule 15 did not come into play. It was further held that to sustain a claim for refund under this rule, it was required and it must be established that refund was granted by the selling trader [Caltex (India) Ltd.] to the purchasing trader in respect of quantity of motor spirit lost on account of evaporation or leakage. The High Court in these circumstances dismissed the petitions. The petitioners now started a second set of litigation by filing Writ Petition No. 2974 of 1989 challenging the vires of rule 15(3) of the Rules. The learned single Judge held that after going through the affidavit-in-reply and reading the provisions of rule 15(3), he was satisfied that the petition was misconceived. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioners. Rule 15(3) of the Rules reads as under: "15. Liability of trader to pay tax.-(1)............... (2)................ (3) Where any motor spirit purchased by any trader has been stored in the storage installation belonging to a trader who sells it, the quantity of motor spirit lost on account of leakage or evaporation shall be deducted from the total sales on which the tax is payable, if a refund in respect of such quantity is allowed by the trader who has sold such motor spirit." So far as the above rule is concerned, it comes into play only where the purchasing trader stores the motor spirit in a storage installed and belonging to the selling trader and the loss on account of evaporation or leakage takes place while the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioners have been considered as resales which are not liable to any tax. In view of these circumstances there is no question of claiming any refund by the petitioners from the Government. So far as the provisions of rule 15(3) are concerned, which allow the refund in case the motor spirit is stored in the storage installation belonging to a trader who sells it is perfectly in order and does not suffer from any illegality inasmuch as the motor spirit still remains in the storage installed by the trader who sells it and the quantity of the motor spirit is reduced on account of evaporation or leakage at the stage of first sale which is liable to tax. So far as the petitioners are concerned, they purchase the motor spirit and make the payme ..... X X X X Extracts X X X X X X X X Extracts X X X X
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