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TMI Blog1993 (8) TMI 311X X X X Extracts X X X X X X X X Extracts X X X X ..... octroi bill classifying the said machinery under Entry No. 50 of Schedule H to the Act. Entry 50 of Schedule H relates to machinery, its components and spares not specifically provided for. The rate of octroi is 2% ad valorem. The concerned official of the respondent No. 1, the Bombay Municipal Corporation at the check post, however, insisted on classifying the said packing machine under Entry 52 of Schedule H and demanded octroi at the rate of 4% ad valorem. The reason for doing so was stated to be the word Electronic which appeared in the description of one of the standard features of the said machine in the invoice. The petitioners thereupon discussed the matter with the Assistant Collector of Octroi. He was, however, of the opinion that the said packing machine was not direct productive machinery and therefore it fell under the heading Instruments, apparatus etc. specified in Entry 52 and not under the heading Machinery as specified under Entry 50. Not satisfied with the above interpretation, the petitioners made representation before the Deputy Municipal Commissioner of Greater Bombay (Personnel) - respondent No. 3 and furnished him in writing all the details of the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rips, horn electric (iii) electrical fittings and materials, (iv) electrical domestic appliances, (v) electrical machinery of all kinds, control switch-gear, generators, alternators and dynamos, motors, transformers and turbo generating sets, (b) agricultural machinery and parts, (c) oil engines, diesel engines, steam engines, petrol and gas engines and machines worked by hydraulic pressures, and their parts, (d) tools of all kinds, (e) printing press machines and spares, (f) any other machinery, its components and spares not specifically provided for. 52. Instruments apparatus and 4 per cent appliances and parts thereof :--- ad valorem (a) sewing machines, clocks and watches and typewriters, and their spares, (b) radio, radiograms, television set or apparatus, loud-speakers, gramophones, amplifiers, wireless goods, their components and spares, (c) Photographic machinery, Photo goods and materials including photographic chemicals, films and mounts, and their components and spares, (d) cine projection machinery, their components, spares, and materials used therein, (e) surveying apparatus, (f) scientific appliances, (g) optical goods, their spares and accessories, sur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idently, many of the items mentioned in Entry 52, can be termed as machinery, which could have been covered by Entry 50(f) but they are out of the same because of the specific provision contained in Entry 52. We are, therefore, first to see whether the shell and slide machine , which is used for packing of cigarettes, can be broadly termed as instrument or it falls in any of the items enumerated in Entry 52 under that head. There is no serious dispute about the fact that in common parlance, such machines are not known or termed as instrument, apparatus or appliance . In the industrial and the commercial world, these machines are known and more appropriately termed as machinery . A careful scanning of the various items specified in Entry 52 also clearly goes to show that the said machine does not meet the description of any of the items specified therein. In that view of the matter it cannot be said that the machine in question falls under Entry 52 of the Schedule. The only aspect that remains to be considered, therefore, is whether it is a machinery . I do not think that there can be any serious controversy in that regard. However, as an issue had been raised, in this regard, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g under Entry 52 of the Schedule and in pursuance thereof levying octroi duty at a higher rate. 6. Before concluding, it may be expedient to deal with two preliminary objections of the learned Counsel for the Corporation. Firstly, that the interpretation of taxing items is a question of fact and the High Court in exercise of its writ jurisdiction should not decide the same. Secondly, alternative remedy by way of appeal being available under the Act, this writ petition should not be entertained. I have considered both the objections of the respondents. I, however, do not find any force in either of them. It is no more res integra that interpretation of an item of taxing statute is a question of law which can be decided by the High Court in exercise of powers under Article 226 of the Constitution. It is also well-settled that alternative remedy by way of appeal is not an absolute bar to the exercise of writ jurisdiction by the High Court though in appropriate cases the High Court may refuse to exercise its jurisdiction on that account. The learned Counsel for the Corporation referred to a recent decision of this Court in O.O.C.J. Writ Petition No. 940 of 1989 dated 23rd June, 1993 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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