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TMI Blog2022 (12) TMI 1106X X X X Extracts X X X X X X X X Extracts X X X X ..... suant to the said contract, a Work Order Bearing No. DYT/INCOD/12-13/204(d)PL-WEA/FACT 81-TYPHOON//455 (the said work order) was issued to the Petitioner by the Indian Navy. The said work order inter alia specified the details of the spare parts that were to be imported and supplied by the Petitioner to the Indian Navy. 3. On 17th March, 2016, an octroi exemption certificate was issued by the Ministry of Defence to Respondent No.3. The said certificate made reference to the said work order and certified that the items listed therein would be exempted from payment of octroi duty. The said certificate further stated that the items which were being imported were being transported to the Naval Dockyard, Mumbai. 4. It is the Petitioner's case that on 28th March 2016 the Petitioner filed a declaration of the same date with Respondent No. 3 under Rule 194 (2) of the MMC Act. By the said declaration the Petitioner called upon Respondent No.3 to register the Petitioners letter under Section 194 (2) of the MMC Act and also informed Respondent No.3 that the Petitioner would in due course be submitting its claim for refund of octroi duly supported with the octroi exemption certificate from N ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Navy confirming along with good receiving certificate that the items have been supplied to Naval dockyard, Mumbai only. However, since there was no response from the Respondents, Petitioner made further representations to the Respondents seeking a refund of octroi paid. Petitioner had vide a letter dated 1st March, 2017 addressed to Respondent No. 4 and a letter dated 20th March, 2017 to addressed Respondent No. 3 requested for a refund of octroi paid. 8. However, Respondent No. 3 by its letter dated 16th December, 2017 (the impugned communication) informed the Petitioner that its claim for refund of octroi had been rejected and no further correspondence would be entertained with regard to this matter in the future. By the said letter, Respondent No. 3 called upon the Petitioner to collect the original documents failing which the documents would be filed and case would be treated as closed. 9. Thereafter, the Petitioner once again made several representations to Respondent Nos. 2 and 3 and also personally visited the office of Respondent Nos.2 and 3. Vide a letter dated 9th February, 2018, the standing committee of the Mumbai Municipal Corporation set out the grievance of the P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, both the said criteria had squarely been complied with. Insofar as the first requirement namely a written declaration signed by the importer, he invited our attention to the octroi exemption certificate dated 17th March, 2016 issued by the Government of India, Ministry of Defence in favour of Respondent No.3. Insofar as the second requirement namely a certificate signed by an officer empowered by the Government, in this regard he placed reliance upon the Goods Receiving Certificate dated 22nd April, 2016, issued by the Weapons Department. He thus submitted that the requirements and/or conditions for being entitled and eligible for a refund of octroi under Section 194 (2) of the MMC Act had fully been complied with and that the Petitioner was thus entitled and eligible for a refund of octroi paid in terms of Section 194(2) of the MMC Act. 12. Mr. Raichandani submitted that the only reason for rejecting and/or disallowing the Petitioner's claim for refund of octroi was that the Petitioner had failed to produce the original declaration duly certified by the Octroi Inspector. He submitted that even assuming this to be correct the same would not by itself deprive the Petitioner for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e requirement of the declaration under the proviso to Sec. 5(2)(a)(ii) of the Bengal Finance (Sales-tax) Act, 1941, could be established by evidence aliunde. The Court said that the intention of the Legislature was to grant exemption only upon the satisfaction of the substantive condition of the provision and the condition in the proviso was held to be of substance embodying considerations of policy. Shri Narasimhamurthy would say the position in the present case was no different. He says that the notification of 11th August, 1975 was statutory in character and the condition as to 'prior permission' for adjustment stipulated therein must also be held to be statutory. Such a condition must, says counsel, be equated with the requirement of production of the declaration form in Kedarnath's case and thus understood the same consequences should ensue for the non-compliance. Shri Narasimhamurthy says that there was no way out of this situation and no adjustment was permissible, whatever be the other remedies of the appellant. There is a fallacy in the emphasis of this argument. The consequence which Shri Narasimhamurthy suggests should flow from the non-compliance would, inde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e on the other must be kept clearly distinguished. What we have here is a pure technicality. Clause 3 of the notification leaves no discretion to the Deputy Commissioner to refuse the permission if the conditions are satisfied. The words are that he "will grant". There is no dispute that appellant had satisfied these conditions. Yet the permission was withheld-not for any valid and substantial reason but owing to certain extraneous things concerning some inter-departmental issues. Appellant had nothing to do with those issues. Appellant is now told "we are sorry. We should have given you the permission. But now that the period is over, nothing can be done". The answer to this is in the words of Lord Denning: "Now I know that a public authority cannot be estopped from doing its public duty, but I do think it can be estopped from relying on a technicality and this is a technicality" [See Wells v. Minister of Housing and Local Government: 1967 (1) WLR 1000 at 1007]. Francis Bennion in his "Statutory Interpretation", 1984 edition, says at page 683: "Unnecessary technicality: Modern Courts seek to cut down technicalities attendant upon a statutory procedure where these cannot be ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied entitlement of the same on the venial and technical grounds. He submitted that such denial to a benefit to which a person/entity was otherwise eligible was totally unjust. 14. He then pointed out that the declaration dated 28th March, 2016 filed by the Petitioner constituted a valid and proper declaration. He pointed out that the same made specific reference to Section 194(2) of the MMC Act as also made specific reference to the said work order. The said declaration specifically stated that the goods were being supplied to the Naval Dockyard, Mumbai. Thus the mere failure/omission to mention the Bill of Entry number thereon would not invalidate the said declaration or dis-entitle the Petitioner from the substantive benefit of Section 194(2) of the MMC Act. 15. Without prejudice, Mr. Raichandani submitted that, in any event Form-B was nothing but a declaration which a supplier was required to submit to the Octroi Inspector. He submitted that the mere absence of the specific mention of Section 194(2) of the MMC Act in the Form-B would not by itself render the same as being an invalid declaration. He pointed out that Form-B contained information of the octroi duty paid as well a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... titioner was not entitled to the refund of octroi as the Petitioner had failed and neglected to comply with the precondition required in Section 194(2) of the MMC Act, namely to furnish a copy of the declaration duly certified by the Octroi Inspector. He submitted that this was a mandatory precondition for the Petitioner to be eligible for a refund of octroi and thus failure to comply with the same would dis-entitle the Petitioner from claiming the benefit of the refund of octroi. He submitted that it is only when such a precondition was fulfilled that the Petitioner would be considered eligible for a refund of octroi. 19. He submitted that the declaration relied upon by the Petitioner was dated 28th March, 2016 while the date of import of articles took place on 30th March, 2016 which itself disproved the very contention of the Petitioner that the declaration had been submitted. Without prejudice to this contention, he submitted that the said declaration relied upon by Petitioner was merely a proforma of declaration which contained blanks and thus the same was bereft of the necessary details. He also submitted that the said declaration bore no proof of submission by way of any end ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ying if on the date of import of the articles by the Petitioner i.e. 30th March, 2016 the Petitioner had in fact registered its claim or submitted its declaration as required under Section 194(2) with the concerned authorities. He submitted that upon such information being sought, a reply dated 27th July, 2016 was received from the Superintendent, Sahar Cargo confirming that no such entry in the name of the Petitioner was found in the official register maintained under Section 194(2). 22. He submitted that even otherwise as the application for refund filed by the Petitioner was incomplete as regards the documents to be submitted for consideration of the application for refund of octroi under Section 194(2). He submitted that, despite letters and reminders the Petitioner failed and neglected to submit the required information/ documents and hence Respondent No.3 was left with no other alternative but to reject the claim for refund vide its letter dated 16th December, 2017. 23. He submitted that despite the aforementioned letter being issued to the Petitioner intimating the rejection of its claim, the Petitioner approached the Chairman of the Standing Committee who in turn referred ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lay as the Petitioner had been diligently following up and making representations to the Respondents seeking justice and that since Respondents had failed and neglected to act upon the said representations, the Petitioner had filed the present Writ Petition within a reasonable time. 26. Insofar as Respondent No.3's contention that tax was paid under Section 192 and not 194(2) of the MMC Act. He submitted that Section 192 of the MMC Act relates to rate of tax to be levied and the tax would be payable at the rates specified in Section 192. He pointed out that it was Section 194(2) of the MMC Act which provided for refund. Therefore, Petitioner could not have made payment of tax under Section 194(2) of the MMC Act as submitted by Respondent No.2. He submitted that this argument was one of desperation and was totally bogus and without application of mind. 27. On merit, Mr. Raichandani submitted that insofar as compliance with Section 194(2) of the MMC Act was concerned, Petitioner had fully complied with the same as was evidenced by viz., i. The contract dated 15th July, 2015 entered into between the Hon'ble President of India and the Petitioner. ii. The octroi exemption certific ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot enquire into claims despite the passage of time. The test is to see whether the illegality complained of is manifest and whether the same can be sustained solely on the ground of laches. The test is not the physical running of time but the fact that justifiable reasons exist for warranting a Courts action in cases where injustice has been done or justice has been denied. All that the Court has to see is whether the delay and laches on the part of the Petitioner is such as to disentitle a Petitioner of the relief claimed. It is now well settled that where a case has been made out to merit interference under Article 226 relief would not be denied solely on the ground of delay. Thus, both the preliminary grounds of objection are rejected as entirely baseless and without any merit. 29. Now coming to the issue on merits, we find that what we really have to consider in the facts of the present case is viz., i. Whether the Petitioner was eligible for a refund under Section 194(2) of the MMC Act, and ii. Whether failure to provide a declaration duly certified by the Octroi Inspector would render the Petitioner ineligible for a refund of octroi under Section 194(2) of the MMC Act. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... laim entitlement to the benefit of such refund of octroi under Section 194(2) of the MMC Act. We say "if any" because nothing was shown to us by the Respondents either from the provisions of the MMC Act or the relevant octroi rules which mandated the requirement of declaration duly certified by the Octroi Inspector. In any event we find that even assuming that the MMC Act or the octroi rules provide/mandate for such declaration duly certified by the Octroi Inspector we find that the failure to provide such declaration would not by itself render the Petitioner ineligible for a refund of octroi. Once the Petitioner has established its eligibility by complying with the provisions of section 194 (2) of the MMC Act the Octroi Inspector would be duty-bound in law to issue/certify such declaration to the Petitioner. In the present case, the Petitioner has explained that the only reason why section 194 (2) was not mentioned on was on account of inadvertence on the part of Petitioner's CHA in omitting to mention the same. We find that the Petitioner has explained and in fact made repeated representations to the Respondents explaining that this was the reason as to why there was no mention o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ers of the Municipal Corporation of Greater Bombay to levy octroi on natural gas that was being imported by the Petitioner in that case (ONGC) within the Municipal limits of the Municipal Corporation of Greater Bombay. In the facts of that case Section 139 of the MMC Act specifically conferred powers upon the Municipal Corporation to impose four different types of taxes including octroi in terms of Entry 22(a) of Schedule-H. Entry 22(a) of Schedule-H reads as under: "22(a) Mineral Oils of all sorts, diesel oil, petrol, aviation spirit, all kinds of lubricating oils, while oil, spindle oil, furnance oil, petroleum products, mava oil, sevasol, solvent oil, other fuel oils, oils used as insecticides, natural gasoline, paint solutions and compositions, Turkey Red Oil, and by-products of mineral oils, but nothing herein before contained shall include kerosene and Crude Oil ..... 1 percent ad-valorem." It was in this context that the Municipal Corporation of Greater Bombay had demanded octroi on natural gas imported by the Petitioner in that case (ONGC) on the ground that natural gas was similar to liquefied petroleum gas and was therefore chargeable under Class-IV Entry 22(a). Theref ..... X X X X Extracts X X X X X X X X Extracts X X X X
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