2012(4) ALL MR 802
IN THE HIGH COURT OF JUDICATURE AT BOMBAY

S.A. BOBDE AND R.D. DHANUKA, JJ.

Tata Motors Ltd. & Anr. Vs. Brihanmumbai Mahanagarpalika A Municipal Corporation & Ors.

Writ Petition No. 167 of 2002

29th March, 2012

Petitioner Counsel: Mr. V. SRIDHARAN, Sr. Advocate a/w CHIRAG BULSARA, H. N. VAKIL AND SUNIL CHAVAN i/b M/s. MULLA & MULLA
Respondent Counsel: Mr. JIMMY POOCHKHANWALLA, Sr. Advocate a/w Ms. VIDYA GHARPURE & Ms. KOMAL PUNJABI

Mumbai Municipal Corporation Act (1888), S.192, Sch.H Group D Item 60 - Payment of Octroi duty - Second hand Aircraft imported by petitioner in 1996 - No octroi payable at that time - By amendment in 1998 vide notification No. BMC/2398/2587/CR/279/98/U.D.21 Dt.22-7-1998, Aeroplanes of all kinds were levied octroi duty by inserting Item 60 in Group D of Schedule H - On subsequent entry of said Aircraft in 2001 after carrying out repairs in USA within Municipal limit of Mumbai, octroi cannot be levied. (Para 11)

JUDGMENT

R. D. DHANUKA, J. :- The writ jurisdiction of this court under Article 226 of the Constitution of India is invoked against the order dated 12th October, 2001 passed by respondent municipal Corporation rejecting the request of the petitioners to grant refund of differential octroi of Rs.29,54,808/- holding that as the aircraft was exported from Mumbai to USA for repairs, the petitioners ought to have opted for "R" form procedure and since the petitioners failed to do so at the time of export, the octroi was correctly recovered from the petitioners.

2. The facts to be cited for adjudication of the above petition are stated thus:

The first petitioner is owner of "Falcon 200" aircraft manufactured by M/s. Dassault Aviation, France. On 1st April, 1996 the first petitioner imported the said aircraft as a second hand aircraft from France. The Government of India, Civil Aviation Department registered the said aircraft in the first petitioner's name, which was then Tata Engineering and Locomotive Company with effect from 19th April, 1996 under registration No. VT-TTA. The address given in the registration certificate was first petitioner's registered office address in Mumbai. It is the case of the petitioners that when the said aircraft was imported in the year 1996 no octroi duty was payable on aeroplanes.

3. Section 192 of the Mumbai Municipal Corporation Act inter alia provides for tax at the rate specified in schedule "H" to be levied on the articles mentioned in the schedule and the octroi on the said articles into Greater Mumbai. The said schedule "H" was amended in the year 1998 by notification No. BMC/2398/2587/C.R./279/98/U.D.21 of 22nd July, 1998, various articles liable to payment of octroi duty were inserted in Schedule "H" of the said Act. Item 60 of Group D reads as under :

"Aeroplanes of all kinds including helicopters, components, parts and accessories of any of them".

4. It is the case of the petitioners that even after the said notification dated 22nd July, 1998 came to be issued by the Corporation, the said aircraft imported by the petitioners did several flights in and out of Mumbai and abroad. However, the respondent did not ask the first petitioner to pay any octroi duty on any of such subsequent entries in the city of Mumbai.

5. In January, 2001, the said aircraft required repairs and for that purpose it had to be sent to the U.S.A. After obtaining permission from the Reserve Bank of India to send the said aircraft for repairs and after obtaining permission to remit the repair cost, the first petitioner exported the said aircraft for repairs. The first petitioner also filed shipping bill with the Customs Authorities at the time of export of the aircraft for repairs. The said aircraft returned to India after repairs in March, 2001. The first petitioner filed a bill of entry in respect of the repair charges and paid the necessary customs duty thereon.

6. It is the case of the petitioners that when the said aircraft returned to India after repairs in March, 2001, the respondents purported to demand octroi duty on the original value of the aircraft as also on the repair cost and customs duty paid on the repair charges. It is the case of the first petitioners that without prejudice to their rights and contentions, the first petitioner tendered banker's cheque for Rs. 1,70,695/- being the octroi duty calculated on the repair charges and customs duty paid under the aforesaid bill of entry for repair charges. The Petitioners were informed by the respondents that unless the petitioners pay the octroi duty amounting to Rs.31,25,503/- calculated on both the cost of the aircraft as per the shipping bill and repair cost and customs duty, the first petitioner would not be given the facility of octroi exemption available to it under "N" form produced in respect of their imports and exports made through Mumbai which are in transit only and not for use, consumption or sale in Mumbai. The respondent also threatened that the aircraft of the petitioners would be seized and confiscated for recovery of octroi. It is the case of the petitioners that in view of the said threats, the first petitioner deposited the sum of Rs. 31,25,503/- under protest on 29th March, 2001. By letter dated 29th March, 2001 the first petitioner informed the Assistant Assessor and Collector that it would be filing separately in due course their claim for refund of the differential octroi duty and that the payment of Rs. 31,25,503/- was being made under protest.

7. By letter dated 16th April, 2001 by the petitioners to the Deputy Assessor and Collector requested for refund of the differential octroi duty of Rs.29,54,808/-.

8. By letter dated 12th October, 2001, the respondents rejected the said request for refund of octroi on the ground that as the aircraft was exported from Mumbai to USA for repairs, the petitioner ought to have opted for "R" form procedure and having failed to do so at the time of export, the octroi was correctly recovered from the petitioners.

9. By letter dated 11th October, 2001 the Assessor and Collector conveyed approval granted by the Joint Municipal Commissioner (I) allowing exemption to the petitioners from payment of octroi on the said aircraft to be exported to France for repairs and return under the "R" form procedure subject to keeping interest free deposit of Rs. 3,15,000/- i.e. 10% of the paid octroi and "R" form procedure and that the petitioner would undertake not to claim refund of the octroi duty paid earlier on the said aircraft.

10. Being aggrieved by the said letter/order dated 12th October, 2001 passed by the Deputy Assessor and Collector rejecting the request for refund of octroi duty, the petitioners filed the present petition for writ of certiorari seeking quashing of the said order dated 12th October, 2001 and for seeking refund of the octroi duty collected by the respondents. The above writ petition was admitted on 30th January, 2002. The respondents through their learned counsel made a statement that the Corporation would not insist for undertaking as per letter dated 11th October, 2001.

11. At the time of final hearing of the present petition, the learned senior counsel for respondent Mr. Pochkhanwala fairly stated that the octroi duty was payable by the petitioners only at the time of first entry of the aircraft. It is admitted position that the petitioners imported their aircraft i.e. Falcon 200 on 1st April, 1996 for the first time and that when the said aircraft entered the Municipal limits of Mumbai, in the year 1996 , there was no item 60 by which the aeroplanes of all kinds including helicopters, components, parts and accessories were included in the schedule H. It is also admitted position that when the aircraft which was exported to USA for carrying out repairs and returned in March, 2001, the said entry was not the first entry of the said aircraft within the jurisdiction of the municipal limits. In view of the statement made by the Municipal Corporation through their learned counsel and in view of the fact that the first entry of the said aircraft was much prior to insertion of Item 60 in schedule H, the petitioners are not liable to make any payment for octroi duty on its return back in the year 2001. In view thereof, the following order is passed :

ORDER

(a) The impugned order dated 12th October, 2001 passed by the respondents thereby rejecting the application of the petitioners for refund of octroi duty is quashed and set aside. The respondents are directed to refund the octroi duty collected from petitioners in the sum of Rs.31,25,503/- within four weeks from the date of this order.

Petition is disposed of accordingly in the aforesaid terms.

Petition allowed.