{"id":110325,"date":"1989-10-04T00:00:00","date_gmt":"1989-10-03T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/hmm-limited-anr-vs-administrator-bangalore-city-on-4-october-1989"},"modified":"2015-02-28T04:09:54","modified_gmt":"2015-02-27T22:39:54","slug":"hmm-limited-anr-vs-administrator-bangalore-city-on-4-october-1989","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/hmm-limited-anr-vs-administrator-bangalore-city-on-4-october-1989","title":{"rendered":"Hmm Limited & Anr vs Administrator Bangalore City … on 4 October, 1989"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Hmm Limited & Anr vs Administrator Bangalore City … on 4 October, 1989<\/div>\n
Equivalent citations: 1990 AIR 47, \t\t 1989 SCR Supl. (1) 353<\/div>\n
Author: S Mukharji<\/div>\n
Bench: Mukharji, Sabyasachi (J)<\/div>\n
           PETITIONER:\nHMM LIMITED & ANR.\n\n\tVs.\n\nRESPONDENT:\nADMINISTRATOR BANGALORE CITY CORPORATION,BANGALORE & ANR.\n\nDATE OF JUDGMENT04\/10\/1989\n\nBENCH:\nMUKHARJI, SABYASACHI (J)\nBENCH:\nMUKHARJI, SABYASACHI (J)\nRAY, B.C. (J)\n\nCITATION:\n 1990 AIR   47\t\t  1989 SCR  Supl. (1) 353\n 1989 SCC  (4) 640\t  JT 1989 (4)\t147\n 1989 SCALE  (2)791\n CITATOR INFO :\n D\t    1992 SC  53\t (4)\n R\t    1992 SC 645\t (24)\n\n\nACT:\n    Bangalore Municipal Corporation Act, 1949: Section 98(2)\nand Bye Law 45\/Rules 24 to 27--Octroi--Levy of--Mere  physi-\ncal entry into city limits--Would not attract levy of octroi\nunless goods brought in for use, consumption or sale.\n    Words  And\tPhrases:  \"Without  Breaking  bulk\"--Not  an\nexpression of art--Should be construed liberally.\n\n\n\nHEADNOTE:\n    The appellant company was engaged in the manufacture and\nsale of a malted milk product marketed under the brand\tname\n\"Horlicks\".  The  appellant brought the product\t within\t the\noctroi limits of Bangalore in bulk containers, rebottled the\nsame in small bottles and exported the major portion of\t the\nrebottled product beyond the octroi limits of Bangalore. The\nappellants  made representation protesting against the\tlevy\nof  octroi  on Horlicks in respect of the  quantity  of\t the\ngoods which was exported outside the municipal limits  after\nbeing rebottled, and sought refund of the octroi duty on the\nground\tthat there was no use or consumption or sale of\t the\nsaid  milkfood\twithin the municipal limits,  and  that\t the\nimposition  of octroi was illegal and unwarranted.  The\t re-\nspondent-Corporation  rejected\tthe  claim.  Thereupon\t the\nappellant filed a writ petition in the High Court  challeng-\ning  the levy\/retention of the octroi duty on  Horlicks\t ex-\nported out of the municipal limits.\n    The\t petition  was resisted by the\tCorporation  on\t two\ngrounds, namely, (i) the transferring the Horlicks  imported\nin bulk into bottles amounted to use of the Horlicks  within\nthe  city; and (ii) the octroi collected was  in  accordance\nwith law and unless the procedure prescribed under rules  24\nand  25\t of Bye-law 45 framed by the  Municipal\t Corporation\nunder the City of Bangalore Municipal Corporation Act,\t1949\nwas  followed no obligation or duty was cast on the part  of\nthe Corporation to refund any part of the octroi collected.\n    The\t learned Single Judge allowed the writ petition\t and\nheld  that  when the Horlicks powder  was  transferred\tinto\nbottles of different sizes,\n354\nthe appellant did not use Horlicks within the city of Banga-\nlore.\n    In\tthe  appeal,  the Division  Bench  agreed  with\t the\nlearned\t Single\t Judge\ton the first point.  On\t the  second\npoint,\thowever, the Division Bench rejected the  contention\nof the appellant that opening or breaking open the drums and\nputting the powder in the bottles amounted to breaking\tbulk\nand as such there was no scope of applying for refund  under\nrule 24 which provided for refund in the case of articles on\nwhich octroi duty had been paid and which were\tsubsequently\nexported  beyond  the octroi limits without  breaking  bulk.\nAccording  to  the Division Bench, no  importance  could  be\nattached to the expression 'without breaking bulk', and\t the\nappellant not having applied in accordance with rules 24 and\n25, no amount could be refunded.\n    Before  this Court, the Corporation sought to  raise  an\nadditional plea that where refund was due in respect of\t the\nduties\tlike this, the amount could not be refunded  because\nthere was possibility of undue enrichment of the claimant.\nAllowing the appeal, this Court,\n    HELD: (1) Octroi in this case is a duty on the coming in\nof the raw materials which is payable by the producer or the\nmanufacturer.  It is not the duty on going out of  the\tfin-\nished products in respect of which the duty might have\tbeen\ncharged or added to the costs passed on to the consumers. In\nsuch  a\t situation, no question of  'undue  enrichment'\t can\npossibly arise. [362G]\n    (2)\t There\tis no dispute that the Horlicks\t powder\t was\nbrought in bulk in drums. After being imported, the entirety\nof  the\t Horlicks powder had not been sold. A  part  of\t the\npowder has been put in the bottles and exported outside\t the\ncity of Bangalore. [361E]\n     (3) Octroi cannot be levied or collected in respect  of\ngoods  which  are not used or consumed or  sold\t within\t the\nmunicipal limits. [364F]\n     (4)  Indubitably, amounts have been realised as  octroi\non  the entry of the goods on which octroi was not  leviable\nbecause\t these\twere not for use or consumption\t within\t the\nmunicipal  limits. Mere physical entry into the city  limits\nwould  not  attract  the levy of octroi\t unless\t goods\twere\nbrought in for use or consumption or sale. [364C-D]\n(5)  In this case, putting the powder from the drums to\t the\nbottles\n355\nfor the purpose of exporting or taking these out of the city\nis  neither use nor consumption of the Horlicks\t powder\t at-\ntracting the levy of octroi. Such amounts, therefore  cannot\nbe retained by the respondent corporation. [362D-E]\n    C.W.P.  No. 19873 of 1977--High Court of  Punjab  Burmah\nShell  Oil Storage & Distributing Co. of India Ltd. v.\tBel-\ngaum Borough Municipality, [1963] 2 Supp. SCR 216,  referred\nto.\n    (6) \"Without breaking bulk\" is not an expression of art,\nnor is it an expression defined in the Act or the rules.  It\nhas, therefore, to be construed in its literal and  ordinary\nsense to the extent possible, and construed as it is, trans-\nferring\t the product from the drums by breaking seal of\t the\ndrums  to  bottles cannot be said to  be  \"without  breaking\nbulk\".\tCertainly the bulk was broken in the procedure\tfol-\nlowed. [361H; 362A-E]\n    (7)\t Rule 24 does not apply. In that view, rules 25\t and\n26 have no scope of application. [364C]\n    Kirpal  Singh  Duggal  v.  Municipal  Board,  Ghaziabad,<\/a>\n[1968] 2 SCR 551, referred to.\n    (8) Realisation of tax or money without the authority of\nlaw  is\t bad under Article 265 of the  Constitution.  Octroi\ncannot be levied or collected in respect of goods which\t are\nnot used or consumed or sold within the municipal limits. So\nthese  amounts\tbecome collection without the  authority  of\nlaw. The respondent is a statutory authority in the  present\ncase.  It has no right to retain the amount, so far  and  so\nmuch. These are refundable within the period of\t limitation.\n[364E-F]\n\n\n\nJUDGMENT:\n<\/pre>\n
    CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4160  of
\n1989.\n<\/p>\n
    From  the  Judgment\t and Order dated  24.3.1988  of\t the
\nKarnataka High Court in W.A. No. 637 of 1985.
\nS. Ganesh, A.C. Gulati and B .B. Sawhney for the Appellants.
\nT.S. Krishnamurthy Iyer and N. Nettar for the Respondents.
\nThe Judgment of the Court was delivered by
\nSABYASACHI MUKHARJI, J. Leave granted.\n<\/p>\n
356<\/span><\/p>\n
     This  is an appeal from the judgment and order  of\t the
\nDivision  Bench\t of the High Court of Karnataka\t dated\t25th
\nMarch, 1988.\n<\/p>\n
     There  was\t a notification under section 98(2)  of\t the
\nCity of Bangalore Municipal Corporation Act, 1949 dated\t 4th
\nMarch,\t1975  levying  octroi, inter alia,  on\tfood  drinks
\n(including  milkfood) brought into the municipal  limits  of
\nBangalore  for\tsale, consumption or use.  On  8th  October,
\n1976,  representation was submitted on behalf of  the  peti-
\ntioners,  HMM Limited, protesting against levy of octroi  on
\n“Horlicks” milkfood powder brought into the municipal limits
\nin  bulk containers (Large steel drums) for being packed  at
\nthe  packing station in Bangalore in Unit containers  (glass
\nbottles)  and  thereafter  exported  outside  the  municipal
\nlimits.\t In respect of the quantity of the goods which\twere
\nexported  outside the municipal limits after being  bottled,
\nthe  petitioners sought refund of the octroi duty  as  there
\nwas  no\t use  or consumption or sale of\t the  said  milkfood
\nwithin\tthe  municipal limits.\tThe  respondent\t corporation
\nrejected the claim on the ground that rule 24 of the  Byelaw
\n45 framed by the Municipal Corporation had not been complied
\nwith and as such refund could not be given. The\t petitioners
\nagain  sought on 4th February, 1978, refund of\toctroi\tduty
\nfor  the period 1974-75 to December, 1977 amounting  to\t Rs.
\n13,39,652.92 enclosing computation of the duty collected for
\nthe aforesaid period. Again, the’ refund was refused by\t the
\nrespondents  in\t March, 1978. Petitioners  thereafter  filed
\nwrit petition in the High Court of Karnataka challenging the
\nlevy\/retention of octroi duty on “Horlicks” exported out  of
\nthe  municipal limits and seeking refund thereof.  From\t 1st
\nApril,\t1979, levy of octroi on milkfood was  totally  abol-
\nished  in Karnataka. Learned Single Judge of the High  Court
\non 1st February, 1984, allowed the writ petition and direct-
\ned  that the amount of octroi duty collected for the  period
\ncommencing  three  years  prior to the filing  of  the\twrit
\npetition be verified within 3 months and refunded within  45
\ndays  thereof. Learned Single Judge noted that the  case  of
\nthe  petitioners was that it was engaged in the\t manufacture
\nand  sale of a malted milk product marketed under the  brand
\nname “Horlicks”. The petitioner used to manufacture the said
\nproduct in its two factories situated at Nabha in the  State
\nof  Punjab and Rajahmundhry in the State of  Andhra  Pradesh
\nand  marketed these throughout the country through its\tbot-
\ntling  and marketing centers situated in different parts  of
\nthe  country.  One such centre was situated in the  city  of
\nBangalore to which it brought its said product in bulk, then
\nrebottled the same in small bottles of different  capacities
\nlike 800 gms, 450 gms and 250 gms. It was the case of  peti-
\ntioners\t that  small portion of the  product,  rebottled  in
\nsmall bottles, alone was sold within the city of
\n357<\/span>
\nBangalore  to its dealers and the rest was exported  to\t its
\nagents\tsituated in different parts of the State  and  other
\nnearby\tplaces of the country also. In this  connection,  it
\nmay  be mentioned that rules 24 to 27 of the  relevant\tBye-
\nlaws were as follows:\n<\/p>\n
\t      “24. On all articles on which octroi duty\t has
\n\t      been paid and which are subsequently  exported
\n\t      beyond  the  octroi  limits  without  breaking
\n\t      bulk, refunds shall, subject to the  following
\n\t      rules,  be  granted at  the  rates  originally
\n\t      charged  at the time of import; provided\tthat
\n\t      no  such refunds shall, except in the case  of
\n\t      timber  imported\tand re-exported\t in  log
\n\t      be  granted  unless such\tgoods  are  exported
\n\t      within  three  months from the date  on  which
\n\t      octroi was levied.\n<\/p><\/blockquote>\n
\t       25.  Any\t person claiming  refund  under\t the
\n\t      above  bye-laws shall produce the goods to  be
\n\t      exported at the Central Octroi Office, togeth-
\n\t      er  with the Original receipt for octroi\tduty
\n\t      paid  thereon, and an application\t for  refund
\n\t      prepared in triplicate in the form  prescribed
\n\t      in  Schedule V. He shall fill up columns 1  to
\n\t      10  of the application signing and dating\t the
\n\t      same,  before  he presents it at\tthe  Central
\n\t      Octroi Office. He shall produce for record  in
\n\t      office a certified copy of the invoice as\t per
\n\t      which duty was paid on the article at the time
\n\t      of its import.\n<\/p><\/blockquote>\n
\t      26.  Any\tperson who has been  exempted  under
\n\t      bye-law no. 10 from production of goods at the
\n\t      Central Octroi Office on import shall, subject
\n\t      to  the same conditions, he exempted from\t the
\n\t      production of goods to be exported.\n<\/p><\/blockquote>\n
\t       27. The Octroi Superintendent of the  Central
\n\t      Octroi  Office  on being satisfied as  to\t the
\n\t      identity of the goods produced with those\t for
\n\t      which  the  receipt has been  granted  or\t the
\n\t      validity\tof the claim, shall fill up  columns
\n\t      11 to 15 and also the coupon and handover\t the
\n\t      form to the exporter.”<\/p><\/blockquote>\n
    There  is no dispute that on the entire quantity of\t the
\ngoods  brought within the municipal limits, octroi was\tcol-
\nlected\tfrom the petitioner. It claimed for refund  only  in
\nrespect of those quantities which were rebottled and export-
\ned  from the city to outside places. This was  refused.\t The
\ncontention of the petitioners was that only that portion  of
\nthe goods which was imported in drums and was rebottled in
\n358<\/span>
\nbottles and exported outside the city was not liable to duty
\nof octroi. It was contended before the learned Single  Judge
\nthat  portion  of the goods was not dutiable  to  octroi  as
\nthese  did  not fall within the term “sale,  consumption  or
\nuse”  within the local area of the city of  Bangalore.\tWhen
\nthe petitioner approached the High Court, rule 24  aforesaid
\nof  the Bye-law 45 was in force. Octroi was, however,  abol-
\nished  with effect from Ist April, 1979. The  question\tthat
\nwas  canvassed before the learned Single Judge of  the\tHigh
\nCourt was that when the product was imported in bulk in\t the
\ncity only for rebottling and rebottled in small bottles\t for
\nthe  consumer requirements and marketed, there could not  be
\nconsumption  or sale of that product. On the other hand,  it
\nwas  contended that in any event, it is a case of  ‘use’  to
\nattract levy of octroi. The Horlicks powder remains the same
\neven  after packing, as was held by Mittal, J. of  the\tHigh
\nCourt  of Punjab in C.W.P. No. 19873 of 1977. In that  case,
\nthe Horlicks powder in drums was sold direct to bulk consum-
\ners.  It was held that the Horlicks powder remains the\tsame
\nafter  packing. It does not become different  commodity.  It
\nalso  cannot  be held that it acquired\tdistinct  commercial
\nutility, according to Mittal, J. Therefore, in that context;
\nMittal,\t J. held that the packing of the Horlicks powder  in
\nsmall  bottles\tdoes not fall within the ambit of  the\tword
\n‘use’  and, therefore, the petitioner in that case  was\t not
\nliable\tto  the charge of octroi for its import\t within\t the
\nlimits of the city. This decision was affirmed by the  Divi-
\nsion  Bench.  It was contended that in the  judgment  before
\nMittal,\t J, packing was entrusted to a separate agency,\t but
\nit  does  not  make any difference,  according\tthe  learned
\nSingle\tJudge  of Bangalore. Therefore, the  learned  Single
\nJudge in this case found that only on that quantity of\tmilk
\nproduct imported by the petitioner in bulk but rebottled  in
\nsmall bottles at its Bangalore bottling station and  export-
\ning  from the city to other places for sale in those  places
\nand  not using the same in Bangalore city, was not  dutiable
\nto  octroi till that levy was in force. The  learned  Single
\nJudge,\ttherefore, held that the amounts so levied and\tcol-
\nlected\tas octroi for a period of three years prior  to\t the
\npresentation  of the writ petition only and not beyond\tthat
\nare  refundable\t by the respondents to\tthe  petitioner.  He
\ndirected refund and pursuant to this direction, the  learned
\nSingle Judge further directed that the same may be verified.
\nWe were informed that the same has been verified.
\n    There  was an appeal to the Division Bench of  the\tHigh
\nCourt.\tThe question before the Division Bench\twas  whether
\nthe Corporation was liable to refund that part of the amount
\nof  octroi duty paid by the petitioners on the\tquantity  of
\nthe  Horlicks powder imported into the city of Bangalore  on
\nthe petitioners’ informing the Corporation that
\n359<\/span>
\nthey had despatched that part of the same from time to\ttime
\nby filing the same in bottles to places outside the city  of
\nBangalore  even\t though\t petitioners had  not  followed\t the
\nprocedure  prescribed in rules 24 and 25 of Bye-law  No.  45
\nflamed by the Corporation and even though they had not\teven
\ninformed of such despatches as and when these were made?\n<\/p>\n
    Item  17 of the notification dated 4th March,  1975,  as
\nmentioned before, so long as it continued, was as follows:\n<\/p>\n
\t      \"17.   Confectionary,    biscuits,     toffee,\n\t      chocolates    food  essence,  food   coloured,\n<\/pre>\n
\t      aerated  water  and soft drinks,\tfood  drinks
\n\t      other  than milk in condensed form bottled  or
\n\t      canned arecounts both scomted or plain.\n<\/p>\n
\t\t\t\t\t     2% 0.06 ps.\n<\/p>\n
\t\t\t\t\t     ad\t valorem  10
\n\t      Kg.”\n<\/p>\n
    The Division Bench noted that in terms of the  aforesaid
\nlevy, the petitioners were paying octroi on the basis of the
\ntotal quantity of Horlicks imported into the city of  Banga-
\nlore.  Then a letter was addressed on the 8th October,\t1975
\nto  the Corporation of the city of Bangalore, which was\t set
\nout  in\t the  judgment of the Division Bench.  In  the\tsaid
\nletter, it was, inter alia, stated that the petitioners were
\nnot  bringing the goods within the municipal limits for\t use
\nor consumption therein and as such the imposition of  octroi
\nwas  illegal  and unwarranted and that the  petitioners\t had
\npaid  under protest the amount and claimed the\trefund.\t The
\npetitioners claimed only the octroi paid on the goods  which
\nwere exported outside the city of Bangalore and not used  or
\nconsumed  within the city. The petitioners  further  stated,
\ninter alia, as follows:\n<\/p>\n
\t      “The  petitioner is willing  to  differentiate
\n\t      the goods intended to be used consumed  within
\n\t      the  octroi limit of Bangalore and  the  goods
\n\t      which are exported out of the limits of Banga-
\n\t      lore  and not used or consumed therein  appro-
\n\t      priately\tin order to facilitate movements  of
\n\t      goods  and  avoid difficulties to\t the  octroi
\n\t      incharge.”\n<\/p><\/blockquote>\n
\t\t  The  Corporation turned down\tthe  demand.
\n\t      The Division Bench noted that the petition was
\n\t      resisted by the respondent on to grounds:
\n\t      “1.  The transferring of Horlicks imported  in
\n\t      bulk into the
\n\t      360<\/span>
\n\t      city of Bangalore into bottles amounts to\t use
\n\t      of  the Horlicks within the city of  Bangalore
\n\t      notwithstanding  the fact that a part  of\t the
\n\t      total  number of bottles were despatched\tout-
\n\t      side the city of Bangalore.\n<\/p><\/blockquote>\n
\t      2.  The octroi collected on the  Horlicks\t im-
\n\t      ported  into  the\t city of  Bangalore  was  in
\n\t      accordance  with law and unless the  procedure
\n\t      prescribed under rules 24 and 25 of Bye-law 45
\n\t      was  followed, no obligation or duty was\tcast
\n\t      on  the part of the Corporation to refund\t any
\n\t      part of the octroi collected.”<\/p><\/blockquote>\n
    The\t Division  Bench of the High Court in  the  decision
\nunder appeal observed that as far as the first ground raised
\nwas  concerned,\t the learned Single Judge had  rejected\t the
\nclaim and held that when the Horlicks powder was transferred
\ninto  bottles  of different sizes it did  not  use  Horlicks
\nwithin the city of Bangalore. In this connection, the  Divi-
\nsion  Bench  referred to the decision of  Burmah  Shell\t Oil
\nStorage\t & Distributing Co. of India Ltd. Belgaum v.  Belgam
\nBorough Municipality, Belgaum,<\/a> [1963] 2 Supp. SCR 2 16. This
\nCourt  in  that case held that mere transferring of  a\tbulk
\nproduct\t into small containers like packets or\tbottles\t for
\nthe  purpose of sale does not amount to use of the goods  in
\nthe sense the word is used in relation to levy of octroi. On
\nthis  aspect,  the Division Bench agreed  with\tthe  learned
\nSingle Judge. So far as the second contention raised by\t the
\nCorporation was concerned, the Division Bench noted that the
\nrelevant provision of the rules was not considered. We\thave
\nset  out hereinbefore the said rules. In the Schedule  there
\nis a form for refund. The contention of the petitioners\t was
\nthat  rule  24 did not apply. Rule 24, as  we  have  noticed
\nhereinbefore, provided that in respect of articles on  which
\noctrio\thas been paid and which are  ‘subsequently  exported
\nbeyond\tthe  octroi limits without breaking  bulk’,  refunds
\nshall be subject to the rules indicated therein. So, accord-
\ning  to the petitioners, after opening or breaking open\t the
\ndrums and putting the powder in the bottles, as in this case
\namount\tto breaking bulk, and as such there was no scope  of
\napplying  for  refund  under Rule 24.  But  the\t Corporation
\ncontended  that it was not so. The Division Bench,  however,
\naccepted the contention of the Corporation. It is  indubita-
\nbly true that the petitioners had not claimed the refund  in
\naccordance with the law because according to the petitioners
\nthe  said  rules would have no application as the  bulk\t was
\nbroken.\t The  Division\tBench, however,\t observed  that\t the
\npetitioners  in their letter addressed to  the\tCommissioner
\nhave  specifically stated that the goods  were\tsubsequently
\nexported outside the city of Banga-\n<\/p>\n
361<\/span><\/p>\n
lore  as  envisaged  by\t Bye-law  24  of  notification\t No.
\nN.A.I(53)  of 1952-53 dated 5th April, 1954.  Regarding\t the
\nexpression  “without breaking bulk”, the Division  Bench  of
\nthe High Court was unable to accept the contention that\t the
\nbulk  of  the goods on which the octroi has  been  paid\t was
\ntransferred  to\t containers of small  sizes  and  despatched
\noutside the city, the bulk was broken. But the question\t was
\nwhether in such a situation, it can be said that it was done
\nwithout\t breaking  the bulk. The Division Bench was  of\t the
\nview that having regard to the rule and having regard to the
\nfact  that it was imported into the city of  Bangalore,\t and
\nwas  to be despatched outside the city of Bangalore  in\t the
\nsame  form, i.e., without the same having been used or\tsold
\nor  consumed in the production or manufacture  other  goods,
\nthe  person  concerned can only claim refund  in  accordance
\nwith the rules. Therefore, according to the Division  Bench,
\nno  importance\tcan be attached to the\texpression  “without
\nbreaking  bulk” on despatches of the goods. Refund could  be
\nclaimed\t only on despatches of the goods outside  the  city,
\nfor  octrio is leviable only if the goods imported into\t the
\ncity are consumed, used or sold within the city.  Therefore,
\n‘bulk’,\t in  the view of the Division Bench, was,  in  fact,
\nbroken\tand the petitioner not having applied in  accordance
\nwith  rules  24 and 25, no amount could be refunded  to\t the
\nappellant.  In that view of the matter, the appeal  was\t al-
\nlowed by the Division Bench and the judgment of the  learned
\nSingle Judge was reversed.\n<\/p>\n
    It\tmay be mentioned that there is no dispute  that\t the
\nHorlicks  powder was brought in bulk in drums. At the  rele-
\nvant  time,  there was levy of octroi at the entry  of\tsuch
\ngoods.\tAfter  being imported, it has been  found  that\t the
\nentirety of the Horlicks powder had not been sold. A part of
\nthe powder has been put in the bottles and exported  outside
\nthe  city  of Bangalore. It has been found by  the  Division
\nbench  that  putting powder from the drums  to\tthe  bottles
\ninside the city, is not user or consumption as\tcontemplated
\nby  the\t rule. And on that no octroi duty was  leviable.  In
\nthis  case also, it has been found pursuant to the order  of
\nthe learned Single Judge how much octroi will be  refundable
\non account which has been paid by the petitioners. The\tonly
\nground\ton which the Division Bench had resisted the  refund
\nwas  that the petitioners did not apply in  accordance\twith
\nthe procedure envisaged by rules 24 and 25 of the  aforesaid
\nBye-laws.  Mr. Krishnamurthi Iyer, learned counsel  for\t the
\nrespondent,  contended that the High Court was right in\t the
\nview it took on the construction of rules 24, 25 and 26.  We
\nare  unable to agree with this submission. As we have  indi-
\ncated  before, “without breaking bulk” is not an  expression
\nof  art, nor is it an expression defined in the Act  or\t the
\nrules. It has, therefore, to be construed
\n362<\/span>
\nin  its literal and ordinary sense to the  extent  possible,
\nand  construed\tas it is, in our opinion,  transferring\t the
\nproduct\t from  the drums by breaking seal of  the  drums  to
\nbottles,  cannot  be  said to be  “without  breaking  bulk”.
\n“Breaking bulk” is an expression not unknown to legal termi-
\nnology especially in England. In the Cyclopedic Law Diction-
\nary, 3rd Edn., “breaking bulk” has been stated to mean\tthat
\nfor  a\tbailee to open a box or packaging entrusted  to\t his
\ncustody\t  and  fradulently  appropriate\t its  contents.\t  In
\nStroud’s  Judicial Dictionary, 4th Edn., Vol-1, it has\tbeen
\nstated that to ‘break bulk’ is not now necessary to  consti-
\ntute  larceny  or theft by a bailee. It is stated  that\t the
\ncases were very numerous and turned on nice distinctions  as
\nto  what amounted to “breaking bulk”. In the  Dictionary  of
\nEnglish Law by Earl Jowitt “breaking bulk” has been  defined
\nas  that  at common law there could be no larceny  of  goods
\nwhich had originally been lawfully obtained by a person\t who
\nsubsequently  wrongfully  converted  them to  his  own\tuse,
\nunless\tsuch  conversion  was preceded by some\tnew  act  of
\ntaking.\t It  that  is so, we are unable to  agree  with\t the
\nconstruction  suggested by the Division Bench. It  was\tcon-
\ntended\tthat  the octroi was leviable on the  entry  of\t the
\ngoods  in the municipal limits of the city but the  Horlicks
\npowder\thad not entered into the local limits  of  Bangalore
\nfor the purpose of use or consumption, as understood in\t the
\ndecision  of  the Burmah Shell’s case (supra) and  as  found
\nboth by the learned Single Judge and the Division Bench that
\nputting\t the  powder from the drums to the bottles  for\t the
\npurpose of exporting or for taking this out of the city,  is
\nneither use nor consumption of the Horlicks powder, attract-
\ning  the levy of octroi. Certainly, the bulk was  broken  in
\nthe procedure followed. The High Court was wrong in  putting
\nthe  construction  on  the expression as it  did.  Mr.\tIyer
\nsought\tto  raise before us the plea that in  a\t case  where
\nrefund\tis  due in respect of the duties like  this  whether
\npetitioners  would be entitled to refund on the\t basis\tthat
\nrefund\tcannot\tbe given because there\twas  possibility  of
\nundue  enrichment  of the claimant, is\tpending\t before\t the
\nSeven-Judge Constitution Bench in this Court. Therefore,  it
\nwas  submitted\tthat we should await the  said\tdecision  or
\nrefer  the matter to the Constitution Bench. Octroi in\tthis
\ncase is a duty on the entry of the raw materials for  coming
\nin.  It\t is the duty on the coming in of the  raw  materials
\nwhich is payable by the producer or the manufacturer. It  is
\nnot  the duty on going out of the finished products  in\t re-
\nspect of which the duty might have been charged or added  to
\nthe  costs passed on to the consumers. In such a  situation,
\nno question of ‘undue enrichment’ can possibly arise in this
\ncase.  If  that\t is the position then the  pendency  of\t the
\nquestion  before the Constitution Bench should not deter  us
\nfrom proceeding with this adjudication.\n<\/p>\n
363<\/span><\/p>\n
    Shri  Ganesh  drew our attention to a decision  of\tthis
\nCourt in Kirpal Singh Duggal v. Municipal Board,  Ghaziabad,<\/a>
\n[1968]\t3  SCR 551. There, the\tappellant  had\ttransported,
\nbetween\t August\t 1953 and March 1955, certain  materials  in
\nexecution  of  a  contract to supply goods for\tuse  by\t the
\nGovernment  of India. The respondent Municipality  collected
\ntoll  while the appellant’s trucks were passing through\t the
\ntoll barrier. The appellant, in that case, obtained in June,
\n1955,  a certificate from the authority concerned  that\t the
\ngoods  transported were “meant for Government work  and\t had
\nbecome\tthe property of the Government”. The appellant\tthen
\napplied\t to the Municipality for refund of the\tamount\tpaid
\npursuant to the exemption granted by the Government of India
\nunder  the  U.P. Municipalities Act,  1916.  The  respondent
\ndeclined  to  refund the amount. In an\taction\tagainst\t the
\nrespondent,  the  trial court decreed the  claim.  The\tHigh
\nCourt affirmed the order of the Civil Judge. Both the  Civil
\nJudge  and  the High Court took the view that by  the  rules
\nframed\tunder the Act an application for refund\t within\t six
\nmonths from the date of actual payment is a condition prece-
\ndent  for  refund of the toll. The party  appealed  to\tthis
\nCourt. This Court was unable to accept this contention Shah,
\n3, as the learned Chief Justice then was, speaking for\tthis
\nCourt  noted that the respondent therein had contended\tthat
\nthe  rules framed by the Government regarding the  procedure
\nconstituted  a\tcondition precedent to the exercise  of\t the
\nright to claim refund and recourse to the civil court  being
\nconditionally  strict,\tcompliance  to\tthat  procedure\t was
\nnecessary for obtaining any decree in civil court.  Allowing
\nthe appeal, this Court held that this contention was untena-
\nble. Shah, J. observed at p. 555 of the report as under:\n<\/p>\n
\t      “The rules framed by the Government merely set
\n\t      up the procedure to be followed in  preferring
\n\t      an application to the Municipality for obtain-
\n\t      ing  refund of the tax paid. The\tMunicipality
\n\t      is  under\t a statutory  obligation,  once\t the
\n\t      procedure\t followed  is  fulfilled,  to  grant
\n\t      refund to the toll. The application for refund
\n\t      of  the toll must be made within fifteen\tdays
\n\t      from the date of the issue of the\t certificate
\n\t      and within six months from the date of payment
\n\t      of  the toll. It has to be accompanied by\t the
\n\t      original\treceipts.  If these  procedural\t re-
\n\t      quirements are not fulfilled, the Municipality
\n\t      may  decline to refund the toll  and  relegate
\n\t      the claimant to a suit. It would then be\topen
\n\t      to  the  party claiming a refund to  seek\t the
\n\t      assistance  of  the  court, and  to  prove  by
\n\t      evidence\twhich is in law admissible that\t the
\n\t      goods transported by him fell within the order
\n\t      issued under s. 157(3) of the Act.\n<\/p><\/blockquote>\n
\t      364<\/span><\/p>\n
\t      The rules framed by the Government relating to
\n\t      the procedure to be followed in giving  effect
\n\t      to  the exemptions on April 15, 1939,  do\t not
\n\t      purport  to bar the jurisdiction of the  civil
\n\t      court if the procedure is not followed. In our
\n\t      judgment,\t the Civil Judge and the High  Court
\n\t      exalted what were merely matters of procedure,
\n\t      which the Municipality was entitled to require
\n\t      compliance  with\tin  granting  refund,\tinto
\n\t      conditions precedent to the exercise of juris-
\n\t      diction  of the civil court. It is  impossible
\n\t      on  a bare perusal of the order issued by\t the
\n\t      Government and the rules framed by it to\tgive
\n\t      to the order and the rules that effect.”<\/p><\/blockquote>\n
    These  observations,  in  our opinion, in  view  of\t the
\ncontentions  raised on behalf of the Municipality  here\t are
\napposite in this case. The aforesaid Rule 24 does not apply.
\nIn that view, rules 25 and 26 have no scope of\tapplication.
\nIndubitably,  amounts  have been realised as octroi  on\t the
\nentry of the goods on which octroi was not leviable  because
\nthese  were not for use or consumption within the  municipal
\nlimits.\t Mere physical entry into the city limits would\t not
\nattract the levy of octroi unless goods were brought in\t for
\nuse or consumption or sale. In this case, putting the powder
\nfrom  the drums to the bottles for the purpose of  exporting
\nor taking these out of the city is neither use nor  consump-
\ntion  of the Horlicks powder attracting the levy of  octroi.
\nSuch amounts, therefore, cannot be retained by the  respond-
\nent-Corporation.  There is no dispute as to the\t quantum  in
\nview  of the fact that the amount has now been found  to  be
\ncertified  to be credited pursuant to the direction  of\t the
\nlearned Single Judge of the High Court. We see no ground  as
\nto why amount should not be refunded. Realisation of tax  or
\nmoney without the authority of law is bad under Article\t 265
\nof the Constitution. Octroi cannot be levied or collected in
\nrespect\t of  goods which are not used or  consumed  or\tsold
\nwithin the municipal limits. So these amounts become collec-
\ntion  without  the  authority of law. The  respondent  is  a
\nstatutory authority in the present case. It has no right  to
\nretain the amount, so far and so much. These are  refundable
\nwithin\tthe  period of limitation. There is no\tquestion  of
\nlimitation.  There is no dispute as to the amount. There  is
\nno  scope of any possible dispute on the plea of  undue\t en-
\nrichment  of  the  petitioners. We are,\t therefore,  of\t the
\nopinion that the Division Bench was in error in the view  it
\ntook.  Where  there is no question of undue  enrichment,  in
\nrespect\t of money collected or retained, refund, to which  a
\ncitizen is entitled, must be made in a situation like this.
\nWe, therefore, hold that amounts should be refunded  subject
\nto
\n365<\/span>
\nthe verification directed by the learned Single Judge of the
\nHigh  Court  of the amount of refund. The appeal  is,  thus,
\nallowed. The Judgment and the order of the Division Bench of
\nthe  High Court are, therefore, set aside. In the facts\t and
\nthe circumstances, there will be no orders as to costs.\n<\/p>\n
R.S.S.\t\t\t\t\t\t      Appeal\nallowed.\n367<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Hmm Limited & Anr vs Administrator Bangalore City … on 4 October, 1989 Equivalent citations: 1990 AIR 47, 1989 SCR Supl. (1) 353 Author: S Mukharji Bench: Mukharji, Sabyasachi (J) PETITIONER: HMM LIMITED & ANR. Vs. RESPONDENT: ADMINISTRATOR BANGALORE CITY CORPORATION,BANGALORE & ANR. DATE OF JUDGMENT04\/10\/1989 BENCH: MUKHARJI, SABYASACHI (J) BENCH: […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-110325","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nHmm Limited & Anr vs Administrator Bangalore City ... on 4 October, 1989 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/hmm-limited-anr-vs-administrator-bangalore-city-on-4-october-1989\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Hmm Limited & Anr vs Administrator Bangalore City ... on 4 October, 1989 - 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