2004(4) ALL MR 713
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
D.D. SINHA AND B.P. DHARMADHIKARI, JJ.
M/S. Alok Traders Vs. Corporation For The City Of Nagpur
Writ Petition No.1879 of 1991
14th July, 2004
Petitioner Counsel: Shri. C. S. SAMUDRA
Respondent Counsel: Shri. C. S. KAPTAN
Nagpur Municipal Corporation Octroi Rules, R.14(h) - Octroi Duty - Levy of penalty for false declaration at time of import at entrance naka (Post) - Breach is complete the moment octroi officer notices that declaration by importer is false and does not tally with goods - Plea of petitioner that goods were not supposed to be unloaded in the City and that there was error in transit pass issued by Excise department - Not tenable under the circumstances - Order awarding penalty upheld.
The moment it is noticed by the officer of Octroi department that the declaration given by the importer is either false or fraudulent and does not tally with the goods, the importer was importing in the City, the breach of the rule was complete.
In the instant Case, the declaration which was given by the petitioner under R.14 of the Octroi Rules was found to be false and did not tally with goods which were imported in the city of Nagpur. The Petitioner was found to have committed breach of the said rule and hence was found to be liable for the penalty imposed. His plea that goods were not to be unloaded in the City and that there was mistake in issue of transit pass issued by the Excise Department was found to be not tenable. Since the petitioner was required to make true and correct declaration irrespective of his intention and as it was found to be false, penalty under such rule was attracted. [Para 7,8,9]
2. The learned counsel for the petitioner states that the checking squad of Octroi Department found that though there were in all 169 cartons in the Matador, inclusive of 28 cartons of Binny's dry gin which were not accounted for by the importer firm in the declaration. The original transit pass concerned, issued by the Excise Department, did not find any mention of these 28 cartons though these passes were subsequently corrected by the Excise Department by adding therein these 28 cartons, after seizure of the goods by the Octroi department. It is submitted that the checking squad of the Octroi department thereafter found that the declaration about the goods, tendered on behalf of the firm, was false and therefore, initiated action for recovery of penal Octroi duty from the firm.
3. The Octroi Superintendent vide order dated 21-5-1990 held that the petitioner committed breach of Octroi Rules by giving false declaration at the time of import at the entrance Naka and therefore, the petitioner was asked to remit ten times penal octroi duty amounting to Rs.1,31,239/-. Being aggrieved by the order, the appeal was preferred by the petitioner before the Deputy Municipal Commissioner, Nagpur Municipal Corporation, Nagpur, and the said authority vide order dated 30-6-1990, allowed the appeal and set aside the order/action of Octroi Superintendent dated 21-5-1990. It is submitted that the department being aggrieved by this order, filed a revision before the Municipal Commissioner and the Municipal Commissioner vide impugned order dated 13-6-1990, set aside the order of Deputy Municipal Commissioner dated 30-6-1990 and confirmed the order passed by the Octroi Superintendent dated 21-5-1990. Being aggrieved by the same, the petitioner is constrained to file the present petition.
4. The learned counsel for the petitioner contended that the impugned order is challenged on three grounds. Firstly, that the goods in question, at no point of time, were to be unloaded at Nagpur and therfore, there was no question of evasion of octroi duty as such. It is submitted that if the goods are not meant for sale in the City of Nagpur, question of evasion of Octroi duty in such situation does not arise and therefore, imposition of penalty is bad in law. Secondly, there was admittedly discrepancy between the transit pass issued by the Excise Department in regard to quantity of Indian made foreign liquor loaded in the matador which at the later point of time was rectified by the Excise department and therefore, in the instant case, it cannot be said that the declaration given by the petitioner under Rule 14(h) of Nagpur Municipal Corporation Octroi Rules, in that sense of the term is either false or invalid. Consequently, the penalty imposed is bad in law. Lastly, it is contended that the price of whisky per cartoon was Rs.871/- and the price of Gin per carton was Rs.620/-, which is lower than the whisky and therefore if in place of higher value goods, lower value goods are loaded by mistake, it cannot be construed that the intention of the petitioner was to avoid octroi duty and therefore, on this count also, the imposition of penalty was bad in law. It is contended that the Revisional authority overlooked these vital issues and wrongly allowed the revision and confirmed the penalty imposed in the matter.
6. We have given our anxious thoughts to the contentions canvassed by the learned counsel for the parties and perused the impugned order as well as provisions of Rule 14(h) of the Nagpur Municipal Corporation Octroi Rules. In the instant case, most of the facts are not disputed. The petitioner at the relevant time was carrying on the business of liquor as a whole seller. On 1-5-1990, 169 cartons of liquor were brought by the petitioner firm inside the City of Nagpur. The transit pass issued by the Excise department. 28 cartons of Binny's dry gin were not mentioned in the transit pass issued by the Excise department. On 1-5-1990, the staff of Octroi department intercepted the vehicle i.e. Matador where the petitioner's goods were transported and the contents thereof were unloaded and verified with the transit pass issued by the Excise department and it was found that though the transit pass issued by the concerned Octroi Mohrir working at Naka No.10 was for 169 cartons, was inclusive of 28 cartons of Binny's dry gin. The importer had not mentioned the details in the declaration filed at Naka No.10 while entering the jurisdiction of Nagpur Municipal Corporation. Thus, the declaration was of 97 cartons of A.C. Whisky as against actual 72 cartons and 72 cartons of S. Whisky as against actual 69 cartons and thereby the petitioner firm has not mentioned about 28 cartons of Binny's dry gin in the declaration required under Rule 14(h) of Octroi Rules.
"14(h) - If at any time it is noticed by any officer or official of the Octroi Department that the importer or his agent has filed a false declaration or produced a fraudulent document or otherwise attempted to evade the duty in part or in full, he shall be liable to pay tent times the amount of duty leviable and may in addition be liable to be prosecuted for giving false declaration or for producing fraudulent document and for evasion of duty also."
The above referred rule makes it evident that if the importer or his agent files a false declaration or produces a fraudulent document, he is liable for penalty provided under this rule. The breach of rule is complete, the moment it is noticed by the officer of Octroi department that the declaration given by the importer is either false or fraudulent and does not tally with the goods, the importer is importing in the City.
8. In the instant case, it is not in dispute that the declaration which is given by the petitioner under Rule 14 of the Octroi Rules was found to be false and did not tally with goods which were imported in the City of Nagpur. In our considered view and in the light of the scheme of sub-rule (h) of Rule 14 of Octroi Rules, the petitioner has committed breach of the said rule and therefore, the Revisional authority was justified in maintaining the penalty imposed on the petitioner under the said Rule. The defence of the petitioner that at the later point of time the mistake which occurred in the transit pass was corrected by the Excise department and hence petitioner's declaration cannot be construed as false, is difficult for us to accept this defence. We are unable to appreciate as to how the petitioner knowing fully well the quantum of liquor loaded in the matador and was imported in the City of Nagpur, gave a false declaration about the same. It is equally difficult for us, in the circumstances of the case, to appreciate the contention that because of the mistakes committed by the Excise department in mentioning the quality and quantity of the goods, the petitioner gave such declaration. In the circumstances, the contention canvassed by the learned counsel for the petitioner in this respect is rejected.
9. Similarly, the contention of the learned counsel for the petitioner that the goods, at no point of time, were to be unloaded at Nagpur and therefore, the question of evasion of octroi duty does not arise, is also misconceived in view of the Scheme of provisions of sub-rule (h) of Rule 14 of Octroi Rules. As we have already observed hereinabove, the petitioner was required to make true and correct declaration irrespective of his intention and if it is found to be false or fraudulent, penalty under such Rule is attracted and therefore, this contention of the learned counsel also suffers from merits.
10. Lastly, it was contended that the price of Binny's dry gin per carton was less than the price of whisky per carton and therefore, there was no benefit to the petitioner even if he gives the declaration excluding the quantity of dry gin cartons. It is difficult for us to hypothetically consider the contention as canvassed by the learned counsel for the petitioner as against the factual scheme of sub-rule (h) of rule 14. Therefore, we are not impressed by the said contention canvassed by the learned counsel for the petitioner.
11. For the reasons stated hereinabove, there is no case made out for interference. Since the penalty awarded is already ten times the octroi payable, therefore, in the interest of justice, we are not inclined to award interest thereon. However, we direct the petitioner to pay the amount of Rs.1,31,239/- to the respondent within a period of eight weeks.