JUDGMENT
Rama Jois, J.
1. In this Writ Appeal presented by the Corporation of the City of Bangalore against the order of the learned single Judge, the following question of law arises for consideration :-
“Whether the appellant Corporation was liable to refund a part of the amount of octroi paid by the 1st respondent on the quantity of the Horlicks powder imported into the City of Bangalore on the respondents-1 and 2 informing the Corporation that they had despatched a part of the same from time to time by filling the same in bottles to places outside the City of Bangalore even though respondents-1 and 2 had not followed the procedure prescribed in Rules 24 and 25 of Bye-law No. 45 framed by the Corporation of the City of Bangalore and even though they had not even informed of such despatches as and when they were made?”
2. The undisputed facts of the case are these: Respondent No. 1 is a Public Limited Company incorporated under the Companies Act. It manufactures ‘Horlicks’ in its two Factories situate at Nabha in the State of Punjab and Rajamundry in the State of Andhra Pradesh. They market the Horlicks manufactured by them throughout the Country. They have their own bottling unit at different places in the Country including the City of Bangalore. According to the first-respondent, it imports the said product into the City of Bangalore in bulk in big Steel Drums. In its Bottling Unit in the City, the said product is put into bottles of the capacity of 800 grams, 450 grams and 250 grams. Thereafter the bottles are sold. By a Notification dated 4th March, 1975 the Corporation of the City of Bangalore levied octroi on various items of goods brought into the City of Bangalore for purpose of consumption, sale or use under Section 98(2) of the City of Bangalore Municipal Corporation Act, 1949. The said Notification continued to be in force even after 1949 Act was replaced by the Karnataka Municipal Corporation Act, 1976. Item No. 17 which is relevant for the purpose of this case reads :-
“17. Confectionery, biscuits, toffee, cho-
colates food essence, food coloured,
aerated water and soft drinks, food
a drinks other than milk in condemnsed
form bottled or canned areconuts both
scented or plaint. 2% ad 0.06 Ps
valorem per 10 Kgs.”
In terms of the aforesaid levy, the first-respondent has been paying octroi on the basis of the total quantity of Horlicks imported into the City of Bangalore from time to time, right from the year 1975. For the first-time on 8-10-1976 the first-respondent addressed a letter to the Commissioner of the Corporation of the City of Bangalore. As the said document is of material importance, it is necessary to set-out the contents of the same. It reads :
“Dear Sir,
Ours is a Public Limited Company having its registered office at Patiala Road, Nabha. We are engaged in the manufacture and sale of Milk food and Dairy Products and sell in market inter-alia, the goods popularly known as “Horlicks”.
Our produce is manufactured (all activities incidental to processing the raw materials etc.) at the factory located in Nabha (Punjab) and in Rajamundry (Andhra Pradesh) but the said produce is packed in bottles at the various packing stations at Howrah, Bangalore and Faridabad. After the produce has been manufactured, it is despatched to the packing station in steel drums where it is put in unit containers(Glass jar bottles) on which a screw capped lid is placed and are bottles after being labelled are arranged in cartons and are cleared from the packing stations, without necessitating or causing any change as regards the ingredients constitution, composition quality or otherwise from the original powder received in drums.
Our goods are brought in the octroi limit but, the same do not undergo any change which make it a different commercial commodity. The goods are not retained in the octroi limits and inasmuch as the goods are not destroyed, wasted sold or ‘used up’ within the octroi limits of Bangalore City they cannot be said to be brought within the octroi limits for ‘use or consumption’ therein.
Vide notification No. B.II/PR.2479A/74-75 dated the 31st December, 1974 levy of octroi on additional items brought for consumption or use was introduced under Section 96(2) of the City of Bangalore Municipal Corporation Act and the levy was to be effective from February 7, 1975. The authority to levy tax by the Municipal Corporation of Bangalore is enumerated in Section 97 of the City of Bangalore Municipal Act, where under Sub-section (e) of the Section qualified that “an octroi on animal or goods or both (will be levied if) brought within the octroi limits for” “consumption or use” therein.
It is submitted further that as the levy of octroi is only maintainable when the goods are brought in the octroi limits of Bangalore for use or consumption therein and as the goods brought by us are not used or consumed in the octroi limits, the levy of octroi is unsustainable and illegal.
Entry of goods within the local area for consumption use or sale therein is made taxable by the State Legislature, and the authority to impose a general levy of tax on entry of goods into a local area is conferred on the State Legislature by Item 52 of List II of Schedule VII of the Constitution. The Municipality derives its power to tax from the State Legislature and can obviously itself cannot have authority more extensive than that the authority of the State Legislature. Thus we are not bringing the goods in the octroi limits Bangalore for use or consumption therein, the imposition of octroi is illegal and unwarranted.
The petitioner has been paying octroi under protest and petitioner submits that there is no basis for the recoveries being made in this behalf by the Municipal Corporation. The procedure adopted by Corporation is unfair and illegal and is against the principles of natural justice and or the other provisions of law.
The petitioner is entitled for refund of all the octroi paid under protest and to a direction restraining preventing the Municipality from charging levying and/or collecting any octroi in future.
As petitioner’s goods are subsequently exported out of Bangalore octroi limits as envisaged in Bye law 24 of notification N.A.1(53) of 1952-53 dated April 5, 1954, the petitioner may be given the refund.
The petitioner is willing to differentiate the goods intended to be used consumed within the octroi limit of Bangalore and the goods which are exported out of the limits of Bangalore and not used or consumed therein appropriately in order to facilitate movements of goods and avoid difficulties to the octroi incharge.
In view of what has been stated above we claim that we should be given refund of the octroi changed on the goods which are exported out of Bangalore octroi limits as the same is ultravirus the power of the Municipality and is illegal.
We also want a personal hearing, through Counsel in order to explain the whole concept of levy etc.”
The substance of the demand made in the aforesaid letter was that out of the total quantity of Horlicks brought on different occasions by the 1st respondent into the City after transferring the powder into different sizes of bottles of different size, large quantity of horlicks was being despatched to places outside the City. As that quantity of Horlicks was neither consumed, or used or sold within the City of Bangalore that quantity of Horlicks was not liable to octroi and therefore it was obligatory for the Corporation to refund the amount of octroi in proportion to the quantity of Horlicks despatched outside the City of Bangalore. The demand was turned down by the Corporation in their letter dated 8-11-1976. The relevant portion of the letter reads:
“Please refer to your letter cited above. In this connection I am to inform you that no claim refund, the goods should have been exported under Refund Rehedari as laid down in Rule 24 of the Octroi Bye-law. You are therefore not eligible for refund of octroi duty paid in respect of the goods exported out of the Corporation limits as you have not followed the above rules.
Further, I am to inform you to export the goods under Refund Rehadari as laid down in Rule 24 of the Octroi-Bye-laws to get the refund in future.”
The reply of the Corporation was that as the first-respondent had not followed the procedure prescribed under Rule 24 of the Octroi-Bye-law 45, the claim for refund was untenable. Aggrieved by the endorsement, once again the first-respondent addressed a letter on 4-2-1978 reiterating the demand for refund for the period commencing from 1974-75 to 1977-78. In the said letter, the first respondent stated that the amount which the Corporation was liable to refund was Rs. 13,39,659.92 paise.
3. A Statement (Annexure-A) also enclosed to the letter which indicated(i) the quantity of Horlicks imported into the City of Bangalore in bulk and its value, (ii) the quantity of Horlicks sold within the City of Bangalore and (iii) the quantity of Horlicks despatched to place outside the City of Bangalore during each of the years commencing from 1974-75 to 1977-78 and also specifying the amount of octroi paid and the amount required to be refunded. By the letter dated 6-3-1978 (Annexure-F) addressed to the first-respondent by the Corporation, the request made for refund of octroi was turned-down. Thereafter respondents-1 and 2 filed the Writ Petitions.
4. In the Writ Petition, the claim made by respondents-1 and 2 was that the provisions of the Act as also the Notification Annexure-B only authorised the levy of octroi on goods imported into the City of Bangalore for the purpose of consumption, use or sale and as a part of the quantity of Horlicks imported into the City of Bangalore was only for bottling purpose there was no consumption nor sale within the City of Bangalore and therefore the Corporation had no authority to retain the entire amount paid by the first-respondent and it was in a duty bound to refund that part of the amount of octroi which related to the quantity of Horlicks despatched outside the City after bottling.
5. The petition was resisted by the appellants on two
1) The transferring of Horlicks imported in bulk into the City of Bangalore into bottles amounts to use of the Horlicks within the City of Bangalore notwithstanding the fact a part of the total number of bottles were despatched outside the City of Bangalore?
2) The octroi collected on the Horlicks imported into the City of Bangalore was in accordance with law and unless the procedure prescribed under Rules 24 and 25 of Bye-law 45 was followed, no obligation or duty cast on the part of the Corporation to refund any part of the octroi collected.
6. As far as the first ground raised by the Corporation was concerned, the learned single Judge rejected the contention and held that when the Horlicks powder was transferred into bottles of different sizes it did not amount to use of Horlicks within the City of Bangalore.
7. The learned Counsel for the Corporation, Sri R.C. Castelino, in this appeal again reiterated the contention that the transfer of Horlicks into the bottles in the bottling unit belonging to the first-respondent amounted to use of Horlicks within the City of Bangalore. What is the meaning of the word ‘used’ in the context of levy of octroi has been explained by the Supreme Court in BURMAH-SHELL OIL STORAGE AND DISTRIBUTING CO. OF INDIA LTD. BELGAUM v. BELGAUM BOROUGH MUNICIPALITY, BELGAUM . The Supreme Court said that the word used does not always mean used up and pointed out that certain goods are capable of being used without being consumed but in order to attract octroi the goods must be meant for use. Therefore an article or goods can be said to have been used in a local area, only when the goods or article which is capable of being used without being consumed to wit a machinery or vehicle, it is put to use in the local area or when it is an article or goods which is meant to be used in the manufacture or production of other goods, it is used for such purpose in a local area. Mere transferring of a bulk product into small containers like packets or bottles for the purpose of sale does not amount to use of the goods in the sense the word is used in relation to levy of octroi. We are in respectful agreement with the view taken by the learned single Judge on the point and reject the contention of the learned Counsel for the Corporation.
8. As far as the second-contention is concerned it is seen that though the point was raised by the Corporation, the same was not considered by the learned single Judge on the ground that the Bye-law was no longer was in-force. The relevant portion of the Judgment in paragraph-9 reads :
“9. When the petitioner approached this Court Rule 24 of Bye-law No. 45 was in force. But, with the abolition of octroi from 1-4-1979 that Rule is no longer in force necessiating this Court to examine its validity and pronounce on the same. In this view, the same is not examined and is rejected as having become unnecessary.”
The learned Counsel for the Corporation submitted that Bye-law was no longer is in-force because octroi was abolished, but during the period with reference to which the first-respondent was claiming the refund the bye-laws were in force and unless the procedure prescribed in the Bye-laws had been followed by the first-respondent, no right to claim refund accrued to the first-respondent and no obligation arose on the Corporation to make any such refund. In order to appreciate the contention it is necessary to set-out the relevant part of the Rules 24 to 27 of Bye-laws which read :
“On all articles on which octroi duty has been paid and which are subsequently exported beyond the octroi limits without breaking bulk, refunds shall, subject to the following rules, be granted at the rates originally charged at the time of import; provided that no such refunds shall, except in the case of timber imported and re-exported in log be granted unless such_goods are exported within three months from the date on which octroi was levied.”
“25. Any person claiming refund under the above bye-laws shall produce the goods to be exported at the Central Octroi Office, together with the original receipt for octroi duty paid thereon, and an application for refund prepared in triplicate in the form prescribed in Schedule V. He shall fill up columns 1 to 10 of the application signing and dating the same, before he presents it at the Central Octroi Office. He shall produce for record in office a certified copy of the invoice as per which duty was paid on the article at the time of its import.”
26. Any person who has been exempted under bye-law No/10 from production of goods at the Central Octroi Office on import shall, subject to the same conditions, be exempted from the production of goods to be exported.
27. The Octroi Superintendent of the Central Octroi Office on being satisfied as to the identity of the goods produced with those for which the receipt has been granted or the validity of the claim, shall fill up columns 11 to 15 and also the coupon and hand over the form to the exporter.”
Schedule No. V (Form No. V) referred to Rule 25 reads:
SCHEDULE NO.V. (Bye-law No.25)
M.A.M.42
CORPORATION OF BANGALORE
Form of Application for Refund of Octroi on goods exported from
Corporation
1.
Description of goods
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}
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To be filled up by the exporter
2.
Quantity, number Of value
3.
Nature of exporter with address in full.
4.
Name of person presenting this
application with address in full.
5.
Place to which the goods are to
be exported.
6.
Name of Consignee, with address
in full.
7.
Name of oakad at which the
goods are to be exported.
8.
Date and hour at which the
goods to be exported.
9.
Means of Conveyance
10.
Particulars of packages. bags,
baskets, etc..
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}
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To be filled up
by the verifying Officer
11.
Deduction to be made from the
quantity
12.
Why deducted
13.
Net quantity, value or number
14.
Rate of Octroi Rs P.
15.
Amount of Refund. Rs. P.
I intend exporting the goods mentioned above from this
Corporation. Please refund the duty thereon to……who is my authorised
agent.
Signature of Exporter or his Authorised Representative.
Endorsement by
Verifying Officer.
I have, as far as possible, examined the
goods mentioned in this application and made entries in columns 11 to 15.
I have this
day at A.M./ P.M. satisfied myself
that they agree with details of the application.
Application No…………
(See reverse)
Endorsement by the Mutsaddi at the Ookad of export
I certify that the goods numbering/weighing mentioned in his application passed out of the Municipal
limits in my presence on...... at...........
Signature of Mutsaddi
at
Export Ookad.
Signature of Verifying Officer.
9. As can be seen from Rule 24, it provides that a person who has already paid octroi on any goods at the time of bringing the goods into the City would be entitled to claim the refund of octroi at the rates originally charged, provided he despatches the goods outside the City within 3 months from the date on which octroi was levied. Rule 25 provides that for the purpose of claiming refund, the person concerned has to fill up columns 1 to 10 of the prescribed form and to present it at the Central Octroi Office. He is also required to produce the original receipt for having paid the octroi and also a certified copy of the invoice as per which the duty was paid. Rule 27 of the Rules prescribes the procedure to be followed after an application is made as prescribed in Rule 25. As can be seen from Rule 27 extracted earlier the Octroi Superintendent before whom the application is made has to be satisfied as to the identity of the goods produced with reference to the goods on which the octroi was paid. Rules require the recording of a certificate in the prescribed form extracted above as to the quantity of the goods on which octroi had been paid, and which was being despatched outside the City of Bangalore. Once a person who had paid the octroi follows the procedure prescribed under Rules and gets the certificate in the prescribed form, from the Octroi Superintendent, he acquires the right to get refund full or part of the octroi, as the case may be and further on the issue of the certificate by the Octroi Superintendent, it becomes obligatory on the part of the Corporation to refund the said amount. In the present case, the procedure prescribed under Rules 24 to 27 was not at all followed by the first-respondent. It is not the case of the first-respondent that on each of the occasions on which part of the goods on which octroi had been paid was despatched outside the City of Bangalore, an application was made before the Octroi Superintendent and the requisite certificate was obtained. It is not even the case of the first respondent that it had informed the Octroi Superintendent or the Commissioner of the Corporation on each of the occasions that part of the goods on which octroi had been paid at the time of importing into the City of Bangalore was being despatched, after transferring the powder into bottles. It was only, on 8-10-1976, for the first time the 1st respondent addressed a letter to the Commissioner calling upon the Commissioner to refund a part of the octroi paid relatable to that part of the quantity of Horlicks which according to the first-respondent had been despatched outside the City of Bangalore. It is for this reason Sri. R.C. Castelino, learned Counsel for the Corporation, contends that there no obligation at all had arisen on the part of the Corporation to refund any part of the octroi paid by the first-respondent.
10. Sri. Naganand, learned Counsel for the respondents, contended that Rule 24 was not at all applicable to this case. Elaborating his submission he said that Rule 24 specifically states that refund of octroi can be claimed only in respect of articles imported into the City of Bangalore and subsequently exported out the octroi limits without breaking bulk, and as in the present case, as it was the case of the 1st respondent that the bulk was broken and the Horlicks was transferred into bottles, the said Rule did not apply and consequently Rules 25 to 27 were also inapplicable.
11. We are not impressed by the above submission. In fact the first-respondent in their letter addressed to the Commissioner on 8-10-1976 specifically stated that the goods of the first-respondent were subsequently exported outside the City of Bangalore as envisaged by Bye-law 24 Of Notification N.A.I (53) of 1952-53 dated April 5. 1954. It is true the word, ‘without breaking the bulk’ has been used in Rule 24 and at first sight it appears that the Rule may not apply to cases, in which bulk of the goods on which octroi was paid was transferred to containers of small sizes and despatched outside the City. But on a careful reading of the Rule and other relevant Rules as also the prescribed form, the meaning becomes clear. What the Rule provides is if any article or goods on which octroi was paid at the time of its import, into the City of Bangalore was to be despatched outside the City in the same form i.e., without the same having been used or sold or consumed in the production or manufacture other goods, the person concerned can claim refund of the octroi paid at the time of the entry of the goods into the City provided such despatch outside the City was within three months from the date of import.
12. Therefore, no much importance can be attached to the words without breaking the bulk. This Rule read with Rules 25 and 27 and also Form V would show, on despatch of the goods outside the City, refund of octroi paid can be claimed, for, octroi is leviable only if the goods, imported into the City are consumed, used or sold within the City. The Rule is intended for the benefit of persons who are required to bring octroiable goods into the City, for purpose other than consumption, use or sale to wit as in the present case for bottling. Therefore, the words without breaking the bulk, in the contest means, “without making any substantial change in the nature of the goods.” In other words the real purport of the Rule is to provide for refund of octroi, if the identity of the goods which is being despatched outside the City of Bangalore is established and it is proved that they were being sent out, in the same form, and without the same having been sold or used or consumed in the manufacture or production of other goods. Therefore there can be no doubt, as the respondents were only transferring Horlicks powder imported into the City, to bottles which did not amount to use or consumption and were transporting a part of it outside the City, without effecting any change in the goods they could have claimed refund under Rule 24 on each of the occasions on which part of the goods were being despatched by making an application under Rule 25 and establishing the identity of the goods with the goods on which the octroi was paid provided such despatch was within three months. It should be noted that Rules 24 to 27 are not mere technical but they are intended to enable the person concerned to establish the quantity and identity of the goods imported on which octroi was paid with the goods despatched outside the City of Bangalore in order to claim refund. In other words, the following of the procedure, and securing of a certificate regarding the identity and quantity of the goods despatched is a condition precedent for acquiring the right to refund. Therefore it is clear that any person who wants refund has to follow the procedure prescribed under the Rules. Without securing a certificate regarding the identity of the goods, issued by the Octroi Superintendent, no person acquires a right to refund and no liability arises on the part of the Corporation to refund a part or whole of the octroi already paid.
13. In our view, the respondent who on account of inadvertance or negligence have failed to follow the prescribed procedure, on each of the occasions during the year 1974 to 1976 when part of the Horlicks on which the Octroi was paid was said to have been despatched outside the City, suddenly, woke up from slumber in 1976, and made on omnibus claim for refund and when that claim was rejected by the Corporation referring to 24 of the Rules, they have come forward with the contention that the rule was inapplicable. This is clearly an after-thought for the respondents in their letter dated 8-10-1976, extracted earlier, have expressly stated that they were claiming refund as envisaged by Bye-law 24. It is only when they realised that refund ought to have been claimed in accordance with the Rules and they had not done so they have taken the stand that the Rule itself was inapplicable. As can be seen from the Rules, the two conditions to be fulfilled for claiming refund are (i) the despatch of the goods within three months from the date on which the octroi was paid and (ii) the identity of the goods despatched with the goods on which the octroi was paid as evidenced by the certificate secured from the prescribed Officer of the Corporation. A mere statement by a person that he had sometime ago despatched whole or part of the goods on which the octroi was paid, before the authorities of the Corporation, would not entitle him to the refund of the octroi and that is exactly the position in this case.
14. Even on the assumption that the alternative submission made by the learned Counsel for the respondents that the Rules were not applicable and therefore refund could be claimed otherwise than following the procedure prescribed under Rules 24 to 27 is correct, such claim for refund ought to have been made on each of the occasions on which a part of the goods was despatched outside the City by informing the Corporation authorities about such despatch and calling upon them to identify the goods if they so desired. Unless that was done, the respondents acquired no right and no obligation on the part of the Corporation was created, to refund a part of the amount of octroi collected. In this behalf, it is apposite to refer to the observations in the decision by this Court in JYOTHI HOME INDUSTRIES v. STATE OF KARNATAKA 1984(1) KLJ 394. That was a case relating to entry tax which like octroi, is leviable on goods brought into a local area for consumption, use or sale. In that case, this Court considered as to what is the point at which the liability for payment of entry tax arises and what is the occasion on which the right to refund arises. The relevant portion of the Judgment reads:
“The taxable event is entry of goods for purposes of consumption, use or sale. The actual consumption, use or sale for the purposes of which the goods enter a local-area would indeed be subsequent to -and not contemporaneous with the taxable event, for the coming into being of the taxable event it would be sufficient if the goods entered into a local area for the purpose of consumption, use or sale therein. The idea of consumption connotes the goods being used-up or wasted or destroyed or susceptible to use without being used-up in the course of their use. The expression ‘use’ is of wider import than ‘consumption’. The expression ‘Sale’ in Section 3 connotes merely a means for putting the goods in the way of consumption or use. The expressions ‘consumption’ or ‘use’ therefore imply the bringing in of the goods not with a view to taking them out again; but with a view to their retention either for use without using them up or for consumption in a manner which destroys, wastes or uses up the goods. The goods come to repose in the local area.
“Re-export out of the local-area is negation of and detracts from the concept of consumption, use or sale therein. In respect of goods which, at the time of entry satisfy the requirements and attracts the taxable event but are, ultimately re-exported, the appropriate provisions are of exemptions and refunds.”
From the aforesaid observations it is clear that the taxable event in the case of octroi is the entry of the goods into a particular local area; in this case the City of Bangalore; therefore on each of the occasions during the several years, whenever the first-respondent imported Horlicks in bulk into the City of Bangalore, the taxable event took place and at that point of time the authorities of Corporation levied and collected octroi and the respondents have paid it. Therefore, the levy at that point of time was correct and was in accordance with law. The application to refund whole or part of it would arise only on despatch of the part of the goods outside the City of Bangalore. That is not a matter within the knowledge of the Corporation. In order to claim refund it was for the first-respondent to have followed the procedure prescribed under Rules 24 to 27 of the Bye-laws. Even assuming that the said Rules were not applicable, if respondents were interested in getting a refund, they ought to have notified on each of the occasions the concerned authorities of the Corporation that, part of the goods on which the octroi had been paid was being despatched outside the City of Bangalore without being sold or used within the City. As neither of this had been done by the respondent they did not acquire any right for refund and consequently no duty was cast upon the Corporation to refund any amount.
15. The learned Counsel for the respondents, strenuosly contended that, as the respondent had factually, all these years, despatched part of the Horlicks on which the Octroi was paid, outside Octroi limits of Bangalore a Writ of Mandamus issued by the learned single Judge directing the Corporation to compute the amount of Octroi refundable and to refund was correct and should beaffirmed. In support of his submission the learned Counsel relied on the following Judgments of the Supreme Court:
1) SHIVASHANKAR DAL MILLS ETC., v. STATE OF HARYANA & ORS. AIR 1980 SC 1033.
2) SHRI VALLABH GLASS WORKS LTD.v. UNION OF INDIA AND ORS. .
4) SALONAH TEA CO. LTD. v. SUPERINTENDENT OF TAXES, NOWGANG .
In all the above decisions, the Supreme Court has held that under Article 226 of the Constitution of India, the High Court has the power to issue a Writ of Mandamus directing the Authorities to refund a tax or levy collected without authority. There is no dispute at all about the proposition. In fact it is not also the contention of the Corporation that this Court cannot issue a Writ of Mandamus directing the Corporation to refund the amount of tax collected without authority of law. But the stand taken by the Corporation is that the taxable event being the entry of the goods into the City of Bangalore the octroi was paid and collected in accordance with law and as far as claim for refund relatable to that part of the goods said to have been despatched outside the City of Bangalore, on the basis of which the respondent claimed refund, was concerned such a right would have accrued if only on each of the occasions of despatch the procedure prescribed under Rules 24 and 27 was followed and the same not having been followed, no obligation arose on the. part of the Corporation to refund any part of the octroi collected and therefore it cannot be said that the Corporation has Collected or retained any amount without authority of law.
16. In this context, it is necessary to point out the difference between a tax or octroi collected without authority of law and this case. For instance if no octroi was leviable on any particular item of goods and still on a wrong interpretation of an entry, octroi was demanded and collected at the instance of the party aggrieved, the Courts could and should direct the Corporations to compute the amount so collected and to refund the same. Therefore, if no octroi was leviable on Horlicks, the contention of the learned Counsel would have been unexceptionable. It is not the contention of the respondents that octroi was not leviable on Horlicks and even so it was collected. But the plea is, retention of part of octroi relatable to that part of Horlicks despatched outside the City was unlawful. We fail to appreciate how the retention is unlawful and how the liability to refund at all arises for, the fact of despatch was not made known to the authorities and no claim was lodged before despatch whether it be in term of Rules 24 to 27 or even otherwise. Therefore, in our opinion, the very basis of the plea of the respondents that the Corporation was retaining any part of the amount unlawfully does not exist, and therefore no Writ of Mandamus can be issued for enforcing a right not accrued and a liability not incurred.
17. The learned Counsel for the respondents next contended that the period of three months prescribed under Rule 24 could not constitute a bar for the issue of a Writ of Mandamus by this Court for refund of octroi. In support of this, the learned Counsel relied on the Judgment of this Court in UNION OF INDIA AND ORS. v. I.T.C. LTD. & ORS. 1985(21) Excise Law Times 655 (Karnataka). This question would have arisen for consideration provided the respondents had on each occasion on which a part of the Horlicks was despatched outside the City of Bangalore had informed the Corporation of the quantity of the goods despatched and also established its identity with the goods on which the octroi had been paid, and the Corporation had refused to refund on the ground that the goods were not despatched within three months. Therefore, the ratio of the said case is not at all apposite to the facts and circumstances of the case.
18. In the result, we answer the questions set-out first in the negative and make the following order:
(i) Writ Appeal is allowed.
(ii) In reversal of the order made by the learned single Judge Writ Petition No. 6212 of 1978 is dismissed.
(iii) Parties shall bear their own cost.
