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TMI Blog1995 (2) TMI 443X X X X Extracts X X X X X X X X Extracts X X X X ..... itric Acid and other goods are purchased and transported from Gujarat and Punjab etc. It has been contended en behalf of the petitioners that during all material times, they have been paying all taxes direct and indirect, levies of excise and other fees and duties levied by the Central Government, State Government and other concerned Authorities. As stated above the present writ petitions concern the levy and collection of octroi duty on the movement of the goods by the respondents like Soda Ash, Nitric Acid and other goods as referred to above which are neither manufactured nor produced anywhere in the State of Rajasthan and hence the contention of the petitioners is that no actroi duty is leviable by the respondents on the movement of goods in the State of Rajasthan under the relevant provisions of Constitution of India. 3. It has been further contended on behalf of the petitioners that in the year 1959 the Government of Rajasthan enacted a legislation, namely, Rajasthan Municipalities Act, 1959 (Act No. 38 of 1959) (hereinafter referred to as The Act ) which received the assent of the President of India on 7-9-1959, and was enacted with a view to consolidate and amend the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 8 in question being purely of fiscal nature, cannot be said to constitute reasonable restriction on the freedom of trade, commerce and intercourse within the territory of India and hence the same are not saved by Article 304(b) of the Constitution of India as held by the Apex Court in Kalyani Stores v. State of Orissa, AIR 1966 SC 1686 and A.B. Abdul Kadir v. State of Kerala, AIR 1976 SC 182. It has been further contended by the learned counsel for the petitioners that not being aware of the correct position, the petitioners under mistake or misconception of law paid octroi duty on the above goods which are neither manufactured nor produced in the State of Rajasthan and that a sum of ₹ 1,74,365.37 has been recovered by respondent No. 2 towards the octroi duty. It has been further contended that on 16-4-1984 the petitioners vide notice of demand for justice requested respondent No. 2 to refund the above amount illegally collected from them which has been not been refunded by the respondents. It has been further contended that respondent No. 2 is bent upon realising the octroi duty on the above goods and the said respondent has neither refunded the amount of octroi tax illegall ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce no reply has been filed by the respondents till date. 7. We have heard learned counsel for the parties and examined their rival claims and contentions and also perused the relevant documents on the record. 8. In S. B. Civil Writ Petition No. 590/1983, M/s. Delhi Cloth General Mills Ltd., Delhi v. State of Rajasthan decided on 22nd November, 1983 this court (D. L. Mehta, J.) has occasion to deal with a similar question of law which was raised in a writ petition filed under Article 226 of the Constitution of India wherein the prayer was made to the court that Rajasthan Municipalities Act, 1959 and the Notification dated 13-5-1968 published in Rajasthan Gazette dated 13-5-1968 imposing octroi duty on the goods in question, do not apply to the goods imported from outside the State of Rajasthan which are neither manufactured nor produced in the State of Rajasthan and hence no octroi duty can be imposed on such imported goods. The petitioner-company had challenged the validity of the Notification referred to above and had prayed for a declaration that the impugned notification may be declared ultra vires in so far as it applies to the goods imported from outside the State of R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s on trade or intercourse if they are indeed in the public interest and are in conformity with entry 52 of List II of VIIth Schedule. It will be pertinent to refer to the relevant provisions of the Rajasthan Municipalities Act, 1959 (Act No. 38 of 1959), which received the assent of the President of India on 7th day of September, 1959, Section 104 of the Act deals with imposition of obligatory taxes such as octroi on goods which reads as under:-- (1) Every board shall levy, at such rate and from such date as the State Govt. may in each case direct by notification in the official Gazette and in such manner as is laid down in this Act and as may be provided in the Rules made by the State Government in this behalf, the following taxes, namely, -- (i) ... (ii) an octroi on goods and animals brought within the limits of the municipality for consumption, use or sale therein; and..... It will also be pertinent to refer to Rule 9 of the Rules which reads as under:-- Declaration of goods brought into the Municipal limits -- (1) Every person bringing within the Municipal limits goods liable to payment of octroi shall produce such goods at the octroi outpost and shall dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... goods which are not manufactured or produced in the State at all and covers such goods. Hence the contention of the petitioners that the Municipality has no power to impose levy of octroi duty on the goods brought from outside the State or imported from other foreign country, is not well sounded. 10. It has been held by the Apex Court in the matters of Western India Theaters v. Municipal Corporation of the City of Poona, AIR 1959 SC 586, Automobile Transport v. State of Rajasthan, AIR 1962 SC 1406 and City Municipality representated by the Executive Officer v. Mahadeo, AIR 1967 AP 363 that taxation per se under authorised heads of the State list would not amount to violation of Article 301 of the Constitution of India if it does not directly affect free-flow or movement of goods, and is meant for the bona fide purpose of collecting revenue although such taxation may indirectly or incidentally place burden on trade, commerce or intercourse. It was held by the Apex Court that since the tax is meant for the bona fide purpose of collecting revenue and that it does not put heavy burden on the trade so as to call it an infringement of the freedom of trade and that it does not offend ..... X X X X Extracts X X X X X X X X Extracts X X X X
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