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Judgment
These are 156 first appeals where the parties are same. The issue involved is relating to Octroi payable by respondent for the goods imported for the period of the year 1995.
These First Appeals are filed under the provisions of Section 217 of the Mumbai Municipal Corporation Act (hereinafter referred to as ‘the Act’) by the Municipal Corporation which challenges the judgment and order dated 17 May 2006 which is passed in Municipal Appeal by the Small Causes Court at Mumbai, which had set aside the order passed by the Assessing Officer of the Municipal Corporation.
2.1) First Appeal No. 671 of 2007 is considered as a lead case, which arises out of Municipal Appeal No.104/1995.
2.2) Since there are different products with varing sizes, for sake of convenience, the product of Vicco Vajradanti Ayurvedic Paste of 200 gm. is considered hereinbelow.
There is no dispute that the issue involved in the present proceeding falls under Rule 2(7)(b) of the Bombay Municipal Corporation (Levy) of Octroi Rules, 1965 (hereinafter ‘the Rules’ for short). The said Rule 2(7)(b) reads as under:-
Rule 2(7)(b) - where the value as at (a) above is not ascertainable on account of non-availability or non-production of the original invoice at the time of import or when the genuineness of the invoice produced is in doubt it shall mean the wholesale cash price less trade discount for which the articles of like kind or quality are sold or are capable of being sold at the time and place of import, without any abatement or deduction whatever except of the amount of Octroi payable on importation thereof.
It is the case of the appellant-Corporation that the words as mentioned under sub-rule (b) of Rule 2(7), wholesale cash price in the present proceedings would be Rs.2059.09 paisa, for a quantity of 60 pieces of Vicco Vajradanti Ayurvedic Paste – 200 gms.
However, it is the case of the assessee that the wholesale cash price less trade discount should be only Rs.540.53 paisa for 60 pieces of Vicco Vajradanti Ayurvedic Paste-200 gms. Though it was the case of the assessee before the Lower Court the said amount to be Rs.509.69 paisa for 60 pieces of Ayurvedic Paste of 200 gms. However, today before me the figure agreed is Rs.540.53 paisa. It is the case of the assessee that along with letter dated 27 January 1995, addressed to the Assistant Accessor and Collector, certain documents were handed over which included as stated in paragraph no.2 “price list” as of 1 March 1994. So also, the said paragraph mentioned about wholesale trade price as per invoices.
The price list as mentioned of 1 March 1994, which is enclosed at page 93 of the convenience compilation includes two major figures which according to both parties as far as last column is concerned, is a price of Rs.38.60 per piece which is Maximum Retail Price (MRP). If we consider rate of Rs.38.60 per piece, for 60 pieces the amount would Rs.2316/-. Only other figures in the said price list is Rs.2059.20 paisa. This according to the assessee is a figure which applies to a retailer of the assessee and according to the assessee before the retailer there is distributor and before the distributor there is a stockist. The figure at which assessee sold their goods to the super stockist has not been mentioned in the said invoices.
Learned counsel appearing on behalf of the Corporation has submitted before me that the figure of Rs.2059.20 paisa as mentioned in the said price list dated 1 March 1994 is the figure at which the assessee has sold its goods to its stockist/retailer, hence that figures would be important figures to conclude the Octroi Tax and the order passed by the Assessing Officer is giving a 20% trade discount as per the provisions of Rule 2(7)(b) on the figures Rs.2059.20 and hence, the figure of Rs.1647/- has been arrived at.
7.1) Being dissatisfied by the figure arrived by the Accessor, the assessee challenged the same by way of Municipal Appeals before the Small Causes Court. The Small Causes Court decided the issue and came to a finding that the octroi should be charged on Rs.509/- per 60 pieces.
With the help of both the parties, I have gone through the impugned judgment and documents on record.
Learned Judge has not taken into consideration and has not framed issues as expected in the present proceedings, neither he has taken into consideration the provisions of Rule 2(7)(b) of the Rules. Hence, I am disposing of these 156 first appeals, by setting aside the impugned judgment and order dated 17 May 2006, passed by the Judge of Small Causes Court, Mumbai, in Municipal Appeals and remanding the proceedings back to the Chief Judge of the Small Causes Court, Mumbai so that the Municipal Appeals be reheard by considering the provisions of Rule 2(7)(b) and allowing the parties to lead their evidence on this limited issue.
9.1) The said Municipal Appeals can be heard by the Chief Judge of the Small Causes Court, Mumbai or by another Judge who is assigned to hear the said Municipal Appeals.
9.2) Both the parties are permitted to lead evidence by examining their witnesses and by producing relevant documents in order to prove their case.
9.3) Learned Judge will decide the Municipal Appeals by considering on record the evidence which was earlier led the said Municipal Appeals and which will be freshly led by the parties on remand.
9.4) This Court is expecting learned Judge of the Small Causes Court who would hear said Municipal Appeals, to decide these Municipal Appeals as expeditiously as possible and in any case, decide the same within a period of one year.
9.5) Both parties would co-operate in early disposal of said Municipal Appeals.
9.6) Both the parties agree that they will file their written arguments, after the evidence is led and the matters are posted for final arguments.
9.7) The record and proceedings received in the present first appeals would be remanded back to the Small Causes Court as soon as possible.
9.8) First Appeals are accordingly disposed of. In sequel, pending Civil Applications in First Appeals are also disposed of.
Both the parties are permitted to approach the Chief Judge of the Small Causes Court on 10 August 2026 and produce the authenticated copy of this order and remain present in the Court at 11.00 a.m.
Registrar (Judicial-I) is directed to communicate this order to the Chief Judge of the Small Causes Court, by e-mail.
All concerned to act on the authenticated copy of this order.
This Court also expresses its appreciation for the valuable assistance and contribution rendered by the learned Amicus Curiae, Mr. Sham Walve.