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PETITIONER: THE MUNICIPAL COMMISSIONER, THANE & ANR.

       Vs.

RESPONDENT: H & R JOHNSON (INDIA) LTD. & ANR.

DATE OF JUDGMENT:       06/08/1996

BENCH: THOMAS K.T. (J) BENCH: THOMAS K.T. (J) BHARUCHA S.P. (J)

CITATION:  JT 1996 (7)   473        1996 SCALE  (5)590

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T THOMAS. J.      The question to be determined in this appeal has boiled down to a very narrow compass-whether the "clay" imported by the respondents  for  manufacturing  ceramic  tiles  can  be brought within  the ambit of the item described as "earth of any other  kind ",  in Entry No.47 of class IV of Schedule I of the  Maharashtra Municipalities (Octroi) Rules,1968. (for short  the   Rules.  Respondents  contended  that  the  clay imported by  them within  the said category which contention was found  favour with  the high Court of Bombay in the writ petition filed  by the  respondent.The said  decision is now being challenged in this appeal.      The question  came up  through the  facts of  this case which are summarized as follows;      Respondents are  manufacturing ceramist  tiles in their factory  situated  within  the  limits  of  Thane  Municipal Corporation (Maharashtra  State) .  The main ingredient used for the  said product is clay which respondent used get down from Rajasthan  and Andhra Pradesh. Under Section 105 of the Maharashtra   Municipalties   Act,   1965,   the   municipal corporation is  empowered to  levy octroi  duty on the goods brought  into   the  territorial  limits  of  the  municipal corporation at  a  rate  not  exceeding  the  maximum  limit prescribed by  the Rules.Goods  are classified in Schedule I of the  Rules for  fixing different rates of octroi duty. In this case,  we are  only concerned  with the  classified  in Entries 45 and 47 of the Schedule.      Entry  No.45  thereof  consists  of  coal  tar,asphait, bitumen, flooring  stone, mangenese,  emery stone or powder, chalk powder,  stone chips,  stone powder, Agra stone, stone for building clinker and coal ash. In respect of those goods Thane Municipal  Corpration  decided  to  levy  the  maxmium octroi duty  of 4%  on the  value prescribed  by the  Rules. Entry 47  consists of  yellow earth  and earth  of any other kind, sand,  metal, rubble,  murum and gravel, for which the

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Corporation is  empowered to  levy a  maximum of Rs. 2/- per metric tonne.  However, as  for those goods. Thane Municipal Corporatiopn has  resolved to  levy octroi  duty only at the rate of Re.1/- per metric tonne.      Respondents pleaded  that the  clay  imported  by  them shall be  counted as  "earth of  any other  kind".  But  the Municipal Corporation  insisted that  the respondents should pay  higher  octroi  duty  as  the  clay  is  "stone  power" mentioned in Entry No.45.      Respondents filed  the writ  petition in the High Court contending  that   the  sand  of  municipal  corporation  is erroneous and  hence they  may be  inhibited from collecting octroi duty  at the higher rats. The High Court found in the impugned judgment  that this  clay would  fall within  Entry No.47 and  as such respondents are liable to pay octroi duty only at  the lesser  rate of Re.1/- per metric tonne. On the strength of  the said  finding the  High Court  directed the Corporation to  refund the  excess amount collected from the respondents on and after the date of writ petition.      Learned counsel  for the appellant Corporation assailed the  conclusion  of  the  High  Court  contending  that  the expression  "clay"  as  understood  in  common  parlance  is contradistinct the  meaning attached  to the  word  "earth". Counsel also  contended that  the raw  material used  by the respondents being  a special  guilty of chins clay, the same could only  have been  classified as "stone power" mentioned in entry 45 of the Schedule. Alternatively, it was contended that High Court should not have ordered refund if the amount already collected.      In support of the first contention a reference was made to the  observation contained  in the decision of a Division Bench of the Calcutta High Court in state and ors. (AIR 1969 Calcutta High  Court in  state  of  west  Bengal  &  ors.vs. Jagdamba Prasad Singh and ors. (AIR 1*969 Calcutta 281) that "ordinary earth  is not ordinary clay and cannot be called a minor mineral  and the  word  clay  is  not  identical  with "earth". Counsel  brought to  our notice  that the aforesaid observation was approved by the full Bench of the Punjab and Haryana High  Court in M/s. Amar Singh Modi Lal vs. State of Haryana and  ors. (AIR  1972 Punjab  & Haryana  356.)  After going through  the relevant  passage in  the decisions cited before us, we do not think that any such passing observation would be  of   help to decides this dispute. That apart, the Calcutta High  Court was not inclined to extricate clay from earth for  all purposes by pointing out in the decision that there are  some kind of earth which may be clay. The full in Amar Singhs  case (supra)  has in fact skipped that issue by observing that  the said  aspect does not have even a remote connection   with the  question involved  in the case before them.      Amount the  goods catalogued  in  Entry  No.45  of  the Schedule only  one item  need be  considered in this context and that is "stone power" because no other item mentioned in the said  entry in  the said entry has even a semblance with the clay  involved in  this case. Nor did the appellant make any attempt to; show that is clay anything other than power.      We must point out in this context that the burden is on appellant to  show that  clay imported by the respondents is stone power  when they  entry . But no material, whatsoever, has been produced in proof of their stand.      The  meaning   or  definition   provided  in   standard dictionaries to  word   " clay" would not help the appellant who made  an endeavor  to trace  out some  support from such lexicons. In  the websters  Dictionary   "clay" is shown "a" natural earthy  material  ...used chiefly for making bricks:

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used in  earth or  mud". In  the Concise   Oxford Dictionary "clay" is  given the  meaning as "stiff tenacious earth." In Chambers   (Twentieth Century  )Dictionary it  is defined as "earth in fine particles."      Therefore, we  find no  merit in  the contention of the appellant  Corporation   that  the   clay  imported  by  the respondents must  be kept outside the amount of Entry  47 of Schedule I of the Rules.      The alternative  contention  regarding  refund  of  the amount (as ordered by High Court )   was advanced before  us on the  premiss that  it would  badly  erode  the  financial position of  the Corporation-at  any rate, the appellant may be denied  of the  higher duty  only from  the date when the controversy is  set  at  rest.  and  all  that  is  done  or collection till then need not be reimbursed.      We may  point out  that when  respondents maved  for an interim order  before the  High Court  of Bombay for stay of collection of  octroi duty  at the higher rate the following order was passed on the application on 13th March 1992.      "Heard  counsel.   Interim   relief      refused. The payment of Octroi duty      be  stayed.   In  case   petitioner      succeeds   the   respondents   will      refund the excess duty."      Parties are  bound by  the said order it is too late in the day  for the appellant to make a plea on the strength of financial burden etc. Refund has rightly been ordered by the High Court and it calls for no intervention by us.      We dismised this appeal without any order as to costs.