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TMI Blog2010 (1) TMI 1311X X X X Extracts X X X X X X X X Extracts X X X X ..... he order dated 11th January, 2008 passed below Exhs. 5 and 15 by the Civil Judge, Senior Division, Thane in Municipal Appeal No. 13/2007, whereby and whereunder the prayers for interim reliefs were rejected and the applications filed by the respondent No. 2- Navi Mumbai Municipal Corporation seeking pre-deposit before entertaining appeals (Exh. 15) were allowed and the petitioners herein are directed to make pre-deposit of the amount found due under the order of assessment and demand with interest and penalty within one month from the date of the order. Both these petitions involve identical issues based on common facts between the same parties, as such they were heard together and are being disposed of by this common judgment. The factual ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for short) framed under the Act and issued demand notice in From-J demanding Rs. 80,189/- for the said year. The petitioners not only paid said amount demanded under demand notice but made excess payment of cess in the sum of Rs. 9,46,570/- which was refunded to the petitioners vide assessment dated 3rd August, 2006. 5. On 21st June, 2007, the petitioners were served with letter dated 19th June, 2007 stating therein that refund under Rule 49 was wrongly granted to them as such assessment made on 3rd August, 2006 required to be reopened and re-assessed under Rule 27(1) of the BPMC Rules. Accordingly, show-cause-notice dated 29th June, 2007 was issued to the petitioners calling upon them to produce specified documents and accounts as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oked writ jurisdiction of this Court under Article 227 of the Constitution of India. Rival Submissions: 10. At the outset, Mr. Baya, learned Counsel appearing for the petitioners submits that the entire amount of disputed tax has already been paid by the petitioners since Section 406(2)(c) mandates deposit of the disputed tax as a pre-condition for hearing and determining the appeal. According to him, the term tax has been defined under Section 127 of the Act. It provides for imposition of various taxes under the Act; one of them being cess as enumerated in Clause (aa) of Sub-section (2) of Section 127, as such cess by way of octroi; has been deposited by them. 11. Mr. Baya further submits that the concepts of cess (tax); interest ; and pen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners contending that the petitioners do not carry out any process on the diamonds so purchased by them as such the diamonds per se are not subjected to any physical or chemical process to bring any change in the diamonds so used. Consequently, benefit under Rule 49 of the BPMC Rules is available to the petitioners and has been rightly claimed by them. He, thus, tried to challenge the very right of the Corporation to impose cess on the export of diamonds studded in the jewellery out of India. He also made grievance about the right of the Corporation to resort to the process of re-assessment for the reasons stated in the petition. 14. Per contra, learned Counsel appearing for the respondent Corporation submits that the deposit of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a tax, the amount of disputed tax claimed from the appellant has to be deposited by the appellant with the Commissioner. In fact, deposit of the said tax is condition precedent for entertaining the appeal. The perusal of re-assessment order dated 18th August, 2007 passed by the Deputy Commissioner shows that by and under the said order the demand was for recovery of amount of cess (tax) refunded to the petitioner together with interest calculated thereon and the penalty levied on them, the details of which are as under: Demand for cess Rs. 9,46,570/-(said to be erroneously refunded) Interest Rs. 10,03,364/- Penalty Rs. 35,00,000/- 17. With the aforesaid factual backdrop, in the teeth of the above statutory provisions, one cannot dispute tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed Clause (c) of Sub-section (2) of Section 406 are reproduced side by side for comparison: Unamended clause (c) Amended clause (c) (c) in the case of an appeal against any tax in respect of which provision exists under act for a complaint to be made to the commissioner against the demand, such complaint has previously been made and disposed of (c) in the case of an appeal against any tax including interest and penalty imposed in respect of which provision exists under this act for a complaint to be made to the commissioner against the demand, such complaint has previously been made and disposed of (Emphasis supplied) Comparison of the aforesaid provision would demonstrate that Legislature tried to include interest and penalty in the concep ..... X X X X Extracts X X X X X X X X Extracts X X X X
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