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Judgment
Jawahar Lal Gupta, J.—The petitioner imported a C.T. Scan machine on November 13, 1992. At the time of importing the equipment, the petitioner deposited an amount of Rs. 50,000/- as security for payment of octroi. Almost simultaneously, the petitioner applied to the Deputy Commissioner for grant of exemption from payment of octroi. The petitioner''s request for the grant of exemption was declined. Vide order dated May 6, 1994, the Municipal Council, Hissar served the petitioner with a notice to deposit an amount of Rs. 2,20,790/- as balance of the octroi duty. The petitioner represented and submitted that it was liable to pay only Rs. 4744/-. It requested that after the adjustment of this amount, the balance of Rs. 50,000/- deposited by it be refunded. The Municipal Council moved a petition u/s 95 of the Haryana Municipal Act, 1973 for the recovery of octroi. The petitioner contested this application. The Additional Civil Judge (Senior Division), Hissar, vide his order dated April 25, 1998, accepted the claim of the Municipal Council and held that the present petitioner was liable to pay the amount of Rs. 2,20,790/- as octroi tax. He directed the petitioner to pay this amount within two months. Even a formal decree sheet was also drawn. Aggrieved by the Order passed by the Court and action of the Municipal Council in proceeding to recover this amount, the petitioner has approached this Court through the present writ petition. It complains that proceedings for recovery were initiated even before the liability to pay was determined. The petitioner prays that the order dated April 25, 1998 and the decree sheet passed in pursuance thereto, copies of which have been produced as Annexures P-9 and P-10, be quashed,
In response to the notice of motion, a written statement has been filed on behalf of the Municipal Council, Hissar. The claim made by the petitioner has been controverted and it has been prayed that the writ petition be dismissed.
Counsel for the parties have been heard.
It is the admitted position that no order determining the petitioner''s liability to pay octroi duty has been passed by the competent authority till today. In fact, the petitioner claims that the equipment imported by it is covered by Entry 62 of the Octroi Schedule. On the other hand, counsel for the respondent-Council claims that the relevant entry is 64 and not 62. This is a matter which has yet to be determined by the competent authority.
Despite the fact that no order of determination regarding the petitioner''s liability had been passed by the competent authority, proceedings u/s 95 (which provision relates to recovery of taxes) were initiated. A perusal of this provision shows that it is only when any amount is due to the Municipal Council by way of "arrears of any tax....." that an application u/s 95 can he filed before the Magistrate. However, determination of the amount must precede the filing of the application for recovery. No order of assessment having been passed, proceedings u/s 95 could not have been initiated. Resultantly, the orders passed by the Court on April 25, 1998 copies of which are on record as Annexures P-9 and P-10, cannot be sustained. These are set aside.
In view of the above, the respondent-Council will not proceed to assess the amount of octroi duty due from the petitioner. It shall thereafter proceed to recover the amount. In the process, the petitioner shall be given an opportunity to explain its position.
"On August 6, 1998, the Bench consisting of Hon''ble Mr. Justice G.S. Singhvi and Hon''ble Mr. Justice Iqbal Singh, had passed an interim order by which the operation of the impugned order was stayed. This was, however, subject to the condition that the petitioner shall deposit an amount of Rs. 1,10,000/-. It was also directed that on the decision of the writ petition, the successful party shall be entitled to the amount deposited along with interest @ 18%. Since the petitioner had succeeded, the amount of Rs. 1,10,000/- shall be refunded to it along with interest from the date of the deposit till the date of the refund.
The writ petition, is, accordingly, disposed of. No costs.