HINDUSTAN COCA-COLA BEVERAGE PVT. LTD.versusSANGLI MIRAJ & KUPWAD MUNICIPAL CORPORATION & ORS.

                       [2011] 7 S.C.R. 766


A       HINDUSTAN COCA-COLA BEVERAGE PVT. LTD.
                                 V.
    SANGLI MIRAJ & KUPWAD MUNICIPAL CORPORATION
                          & ORS.
              (Civil Appeal No. 4917 of 2011)
8                          JULY 4, 2011
              [DR. MUKUNDAKAM SHARMA AND
                     ANIL R. DAVE, JJ.]

C       Bombay Provincial Municipal Corporation Act, 1949:

        s.2(42) - 'Octroi' - Levy of on glass bottles and plastic
  crates containing aerated beverages - Plea that bottles and
  crates are reusable and durable and were repeatedly used by
0 manufacturer - Further plea that the prices of bottles and
  crates were amortized and included in retail. sale price of
  aerated beverages - HELD: If the oottles and crates have not
  finally rested in Municipal limits of the Corporation in which
  they are imported, the company can make an application for
  refund under the Rules with the relevant evidence - In case
E the cost of bottles and crates is amortized and included in the
  retail sale price of the aerated beverages, evidence can also
  be placed in that regard in order to claim refund - The
  authorities may consider the proposal of the manufacturer or
  on their part devise a more convenient and workable
F mechanism for levy and collection of octroi.
       The appellants, engaged in the manufacture and sale
  of aerated beverages, filed writ petitions before the High
  Court challenging the bills of the respondent-Municipal
G Corporation levying octrol separately on the glass bottles
  and plastic crates utilized by the appellants to pack and
  transport the aerated beverages manufactured by them.
  It was contended for the appellants that the glass bottles
  and plastic crates were both re-usable and durable and
H                               766
 HINDUSTAN COCA-COLA BEVERAGE PVT. LTD. v. SANGLI MIRAJ 767
              & KUPWAD MUNICIPAL CORP.

  were repeatedly used by the appellants. It was further         A
  contended that the cost of glass bottles and crates were
  amortized and included in the retail sale price of the
. aerated beverages. It was, therefore, pleaded that octroi
  could not be levied on the value of the glass bottles and
  crates and the impugned bills were, therefore, illegal and     B
  arbitrary. The High Court, relying on the case of
  Acqueous Victuals* dismissed the writ petitions. However,
  liberty was granted to the appellants to claim refund by
  filing appropriate applications in case the bottles and
  crates were not sold, used or consumed in the Municipal        c
  limits of the respondent-Corporation. Aggrieved, the
  manufacturer filed the appeals.
     Dismissing the appeals, the Court
       HELD: 1.1. The instant case is squarely covered by 0
  the decision of this Court in the case of Acqueous
 Victuals.* The difference of the mode of computation of
  the octroi ·will not affect the applicability of the ratio of the
  said decision to the instant case and the same applies
  to the instant case on all fours. Accordingly, In case the E
  appellant-company is sending out the same bottles for
  recycling and if the bottles and crates are not sold, used,
  or consumed in the Municipal limits of the respondent-
  Corporation, that is to say, if they have not finally rested
  in the Municipal limits of the respondent-Corporation in
  which they are imported, the appellant-company can F
  always make an application for refund under the Rules.
  The appellant-company will have to produce evidence on
  the points detailed in the case of Acqueous Victuals*. In
  the instant case, the definition of "octroi" is contained in
  s. 2(42) of the. Bombay Provincial Municipal Corporation G
  Act, 1949. Relevant entry in respect of aerated water in
  the octroi schedule uo_der the Rules is at serial no.11 (0).
  Relevant entry as regards bottles is at serial no.52.
  Relevant entry as regards barrel crate and individual
~ crate, is at serial No.53E. The Rules contain detailed H
    768    SUPREME COURT REPORTS              [2011] 7 S.C.R.

A provisions under which an importer can make .an
  application for refund. [para .18,22 and 23] (777-D-G; 780-
  B-G] .

      *Acqueous Victuals Private Limited vs. State of Uttar
B Pradesh & Ors. 1998 (3) SCR 290 =[1998] 5 SCC 474; and
  Burmah Shell Oil Storage & Distributing Company of India
  Limited v. Belgaum Borough Municipality 1963 Suppl.
  SCR 216 =AIR 1963 SC 906 - relied on

      S. M. Ram Lal & Co. v. Secretary to Government of
C Punjab 1969 UJ 373 (SC), referred to.

       1.2. In case, the cost of the bottles and crates is
  amortized and included in the retail sale price of the
  aerated beverage, the evidence can also be placed in
0 that regard, in order to claim refund on any such amount.
  [para 23] (780-E-F]
        1.3. As regards the plea that the bottles in which
  beverages are brought are recycled and used bottles and,
  therefore, levy of octroi cannot be at the same rate as that
E of the new bottles, these are also disputes on the facts,
  which would require producing of evidence. On the
  appellant-company making an application for refund, the
  authority concerned will consider it in its proper
  perspective and, if a case is made out, shall grant refund.
F In case the appellant is aggrieved by the valuation of the
  bottles and crates on the basis of which the impugned
  bill is issued they are at liberty to file objections before
  the appropriate authority, which will adjudicate the same
  in accordance with law. [para 23-24] (780-E-H; 781-A-B]
G
       1.4. The appellant has expressed its concern about
  the mechanism by which the levy could be computed and
  collected. According to it, the existing procedure ·is very
  cumbersome and unworkable at both the end$, and
H moreover, the same would result into incurring of huge
HINDUSTAN COCA-COLA BEVERAGE PVT. LTD. v. SANGLI MIRAJ 769
             & KUPWAD MUNICIPAL CORP.

managerial time and administrative cost. The appellant          A
has also given proposals to the respondent-Corporation
for devising a suitable and convenient mechanism. The
said request requires consideration. Accordingly, the
respondent-Corporation shall consider the said proposal
in accordance with law and even otherwise on their part         B
devise a suitable, convenient and workable mechanism
for levy and collection of octroi. [para 25) [781-8-D]
                    Case Law Reference:
    1998 (3) SCR 290            relied on.          para 6      c
    1963 Suppl. SCR 216         relied on           Para 13
    1969 UJ 373 (SC)            referred to         Para 14
    CIVIL APPELLATE JURISDICTION : Civil Appeal No.             D
4917 of 2011.
     From the Judgment & Order dated 8.10.2010 of the High
Court of Judicature at Bombay in Writ Petition No. 5510 of
2010 and Judgment and order dated 20.10.2010 in Review
Petition No. 207 of 2010 in Writ Petition No. 5510 of 2010.     E
                           WITH
C.A. No. 4918 of 2011.

    S.K. Bagaria, L. Nageshwara Rao, Vikram Nankani, Tarun      F
Gulati, Sparsh Bhargava, Praveen Kumar, Dheeraj Nair,
Chetan Chopra, Santosh Krishnan for the Appellant.

      Shyam Diwan, Vijay Kumar, Sudhir Mehta, Vishwajit Singh
for the Respondents.                                            G
    The Judgment of the Court was delivered by

    DR. MUKUNDAKAM SHARMA, J. 1. Delay condoned.
    2. Leave granted.                                           H
      770    SUPREME COURT REPORTS                  [2011] 7 S.C.R.


.6.    3. As both the appeals involve identical question of law the
  same were heard together. and are disposed' of by this
  common judgment. Both the present Civil Appeals are filed
  against the judgment dated 08.10.2010 in the Writ Petition No.
  551 O of 2010 and against the judgment dated 08.10.2010 in
B the Writ Petition No. 5867 of 2010, passed by the Division
  Bench of the High Court of Judicature at Bombay whereby the
  Division Bench has dismissed the writ petitions filed by the
  appellants herein challenging the validity of the bill issued by
  the Respondent Corporation, levying and demanding octroi
c from the appellants on glass bottles and crates.

       4. In the Civil Appeal filed against the judgment dated
  08.10.2010 in the Writ Petition No. 5510 of 2010 the appellant
  company is, inter alia, engaged in the manufacture of aerated
  beverages marketed under different brands. The products of
D the company are distributed from its plant located at Pirangut
  Taluka, Mulshi, District Pune to amongst other places like Sangli
  Miraj and Kupwad.

        5. According to the appellant, their products are distributed
E and sold in returnable and reusable glass bottles. Glass bottles
  are stored in plastic crates. Glass bottles and crates are owned
  by the appellant. They are never sold to any distributor or
  retailer. Once the product in the glass bottles kept in crates is
  consumed, glass bottles along with crates are returned to the
F appellant for filling after cleaning and washing them. The
  appellant pays octroi levied on the aerated beverages when they
  enter octroi limits of Municipal Corporations. The impugned bill
  has the effect of levying octroi separately on the glass bottles
  and plastic crates utilized by the appellant to pack and transport
G the aerated beverages manufactured by them. The aerated
  beverages cannot be separated from bottles and crates. The
  bottles and crates are neither consumed nor sold but are
  returned. The glass bottles and plastic crates are both reusable
  and durable and are repeatedly used by the appellant.
  Moreover, it is alleged that the cost of the glass bottles and
H
HINDUSTAN COCA-COLA BEVERAGE PVT. LTD. v. SANGLI MIRAJ 771
& KUPWAD MUNICIPAL CORP. [DR. MUKUNDAKAM SHARMA, J.)

crates is amortized and included in the retail sale price of the      A
aerated beverages. Hence, it was suggested that Octroi cannot
be levied on the value of the glass bottles and crates and the
impugned bills are, therefore, illegal and arbitrary.

     6. The said challenge did not find favour with the High          8
Court and the High Court after placing reliance on the judgment
of this Court in the case of Acqueous Victuals Private Limited
v. State of Uttar Pradesh & Ors. reported at (1998) 5 SCC 474
dismissed the Writ Petition. However, liberty was granted to the
appellant company to claim refund by filling appropriate              C
application, in case, the bottles and crates are not sold, used,
or consumed in the Municipal limits of the respondent-
corporation, that is to say, if they have not finally rested in the
Municipal limits of the respondent-corporation; and a further
directionwas issued that if such an application is filed, the same
will be considered in its proper perspective by the concerned         D
authority and if a case is made out the refund shall be granted.

     7. We heard the learned senior counsel appearing for the
parties at length. Similar submissions, as were made before
the High Court, were also made before this Court. It was              E
submitted by the learned senior counsel appearing for the
appellant that plastic crates and glass bottles are durable and
reusable. They are used a number of times by the appellant.
The boUles and crates are not sold. They are not consumed.
The bottles are used but again sent out and refilled. The crates      F
are also similarly sent back .

    . 8. It was further submitted that as per the definition of the
term octroi as found in Section 2(42) of the Bombay Provisional
Municipal Corporation Act, 1949 (for short "BPMC Act"), "octroi"
means a cess on the entry of goods into the limits of a city for      G
consumption; use or sale therein and as in the present case
there is no consumption, use or sale, the levy of octroi is
unjustified.

     9. Strong emphasis was placed on the submission that,            H
    772     SUPRE;ME COURT REPORTS                 [2011] 7 S.C.R.


A the cost of the bottles and crates is amortized and included in
  the retail sale price of the aerated beverage. Since the cost of
  glass bottles and crates is already included in the price of the
  beverage on which the octroi is levied and collected, no further
  octroi can be levied on the glass bottles and crates.
B
        10. All the above said submissions and contentions were
  refuted by the learned senior counsel appearing for the
  respondents. It was submitted that the issue in the present case
  stands settled by this Court, long back, in the case of
  Acqueous Victuals (supra) and the High Court has rightly
C dismissed the Writ Petition by following the ratio laid down in
  the said judgment of this Court. Further, it was submitted that
  the appellant cannot be aggrieved by the said levy of the ociroi
  on glass bottles and crates, as in case the appellant can satisfy
  the authorities that they were not used, consumed or sold in the
D Municipal limits butwere taken out for recycling, in the said
  case they can claim refund and as such are not burdened with
  the liability of octroi on such bottles and cra.tes.

        11. Before we proceed further it would be relevant to refer
E to the judgment of this Court in the case of Acqueous Victuals
  (supra). In Acqueous Victuals (supra), the petitioner-Company
  was engaged in the business of bottling soft drinks. After
  bottling these beverages at its plants at Bareilly, the petitioner-
  Company distributed the same to wholesalers in Districts of
F Uttar Pradesh. Section 128 of the Uttar Pradesh Municipalities
  Act, 1916 conferred powers on the Municipal Boards to impose
  octroi on goods or animals brought within the Municipality for
  consumption, use or sale therein. Byelaws of the Municipalities
  provide for levying octroi on soft drinks. As the Municipalities
G were seeking to levy Octroi on the basis of gross weight not
  only of the beverages but also of the bottles containing the
  beverages which were brought within the Municipal limits, the
  petitioner~Company filed writ petition in the Allahabad High
  Court challenging the said levy. According to the petitioner-
  Company, the bye-laws provided for levying octroi on soft
H
. HINDUSTAN COCA-COLA BEVERAGE PVT. LTD. v. SANGLI MIRA.I 77 3
  & KUPWAD
       .   MUNICIPAL CORP. [DR. ..MUKUNDAKAM SHARMA.
                -                                  .  '
                                                       J.]

. drinks but not on the weight of bottles which contained those       A
  soft drinks. The High Court dismissed the petition. The High
  Court held that the bottles in which the soft drinks were carried
  could be said to have been used within the Municipal limits for
  the purpose of storing them till they were ultimately utilized by
  the consumers concerned. Therefore, even the weight of bottles      B
  containing these liquids could legitimately be taken into
  consideration by the Municipalities for imposing the octroi duty
  thereon.

        12. Dealing with the petition challenging the High Court's
  decision, this Court referred to Section 128 (1) (viii) of the Uttar C
  Pradesh Municipalities Act, 1916 which states that subject to
  any general rules or special orders of the State Government in
  this behalf, the taxes which a Board may impose can consist
  of Octroi on goods or animals brought within the Municipality
· for consumption, us.e or .sale therein, The rates of levy were D
  given in Schedule I. Schedule I referred to aerated water but
  not to aerated water bottles. This Court considered the main ·
  charging provision i.e.· Section 128(1)(viii) which stated that
  Octroi can be charged on goods which were brought within the
  Municipality for consumption, use or sale and held that packing E
  which contains the consignment of octroiable beverages would
   remain liable to be included in the taxable gross weight of
  consignment provided such packing is shown to be brought
  within the Municipal limits for the purpose of its sale,
   consumption, or use within the Municipal limits. But, if the F
   packing is found to have been taken out of the Municipal limits
   after its contents were discharged within the Municipal limits,
  then the weight of such packing cannot be brought to octroi tax
  or if such tax is levied at the entry point, it _would become liable
  to be refunded. This Court further observed that the claim of G
  refund would involve disputed questions such as whether such
  consignments with the packing were actually sold with· their
  contents to the local consumers, or wholesalers, whether they
  were consumed or used up within the local limits or whether
  they were used for an indefinite period and ultimately rested H
    774      SUPREME COURT REPORTS                   [2011} 7 S.C.R.


A within the Municipal limits and had not been taken out. These
  disputed questions of fact are required to be examined and
  adjudicated upon when claims for refund are considered by the
  appropriate authorities.

          13. While arriving at the above conclusion, this Court
8
    referred to the Constitution Bench judgment in Burmah Shell
    Oil Storage & Distributing Company of India Limited v.
    Belgaum Borough Municipality reported at AIR 1963 SC 906
    where it was dealing with the question whether octroi was
C   leviable on the goods. brought within the limits of Belgaum for
    consumption by Burmah Shell, for re-export and for sale. While
    interpreting the words found in Entry No.52 of the State list in
    the Constitution dealing with taxes on the entry of goods into a
    local area for consumption, use or sale therein, this Court
    observed that the two expressions, "use" and "consumption"
D   together connote the bringing in of goods and animals with a
    view to their retention either for use without using them up or
    for consumption in a manner which destroys, wastes or uses
    them up. This Court observed that this authoritative
    pronouncement of the Court makes it clear that before a
E   Municipality can impose octroi duty on any commodity, it has
    to be shown that the commodity concerned was brought within
    the Municipal limits for consumption, that is, for being totally
    used up so that it ceases to exist within the Municipal limits or
    it was to be used for an indefinite period within the Municipal
F   limits so that it ultimately rests within the Municipal limits and
    does not go out subsequently, or the commodity concerned
    must be shown to have been brought within the Municipal limits
    for the purpose of sale within the said limits.

G        14. This Court also referred to its judgment in S.M. Ram
    Lal & Co. v. Secretary to Government of Punjab reported at
    1969 UJ 373 (SC), where this Court was dealing with the
    question, whether the wool imported within the Municipal limits
    of Faridabad in raw form for dyeing within the Municipal limits
    could be said to have been used in the Municipal limits or
H
.-llNDUSTAN COCA-COLA BEVERAGE PVT. LTD. v. SANGLI MIRAJ 77 5
& KUPWAD MUNICIPAL CORP. [DR. MUKUNDAKAM SHARMA, J.]

consumed therein so as to attract Octroi duty thereon. This            A
Court observed that the word 'use' occurs in Entry No.52 of List
II of Seventh Schedule sandwiched between 'consumption' and
'sale', and it must take colour from the context in which it occurs.
This Court further observed that the coupling of three words
'consumption', 'use' and 'sale' connotes that the underlying           B
common idea was that either the title of the owner is transferred
to another or the thing or commodity ceases to exist in its
original form.

      15. However, this Court did not approve of the High
Court's reasoning that the bottles and shells were used as             C
containers till final consumption of contents and, therefore, the
bottles which contained the. beverage were used till the final
consumption stage and were, therefore, liable to levy of Octroi
leaving aside the question whether they were broughtwithin the
Municipal limits for consumption thereof. Referring to Burmah          D
Shell's case, this Court held that though the use ofthe bottles
may not amount to its destruction or total using up, bat to attract
octroi, the bottles must have finally rested within the Municipal
limits and not taken out. This Court concluded that to attract the
levy of octroi on the goods brought within the Municipal limits,       E
there must be proof of the fact that the goods got consumed
completely within the Municipal limits or were used for an
indefinite period in such a way that they come to rest finally and
permanently within the Municipal limits or sold within the said
 limits.                                       ·                       F

      16. With reference to the facts of the case before it, this
Court observed that the moot question was whether the bottles
which were filled in with beverages imported for sale within the
Municipal limits could be said to have been consumed or used
within the Municipal limits. The question whether the bottles          G
were really sold by the petitioner-Company within the Municipal
limits requires resolution on consideration of relevant facts. If
empty bottles are taken out of Municipal limits, they cannot be
said to have been consumed or destroyed within the Municipal
                                                                       H
    776       SUPREME COURT REPORTS                 [2011] 7 S.C.R.


A  limits. The question which needs investigation is whether out
   of the total consignment of bottled beverages imported within
   the Municipal limits, the entire consignments of the very bottles
   after getting emptied got re-exported or whether some of the
   said bottles forming part of the original consignments got
s  destroyed by way of breakage, etc. or were never returned by
  the consumers concerned and only rest of the imported bottles
  were re-exported by enabling the consumers and retailers or ·
  wholesalers to get refund of the price of the bottles paid by way
  of advance security from the petitioner-Company on return of
c these empty bottles for recycling. It is axiomatic that if the bottles
  in which beverages were brought within the Municipal limits for
  sale to consumers had themselves got destroyed by breakage,
  etc. or were not returned by consumers, they could be said to
  be consumed within the Municipal limits and, hence, there .
  would be no occasion for their export at any time thereafter. In
0
  the said circumstance the intention with respect to the fact that
  whether or not, the said goods were brought for consumption
  and usage will become clear only at the subsequent stage i.e.
  when the bottles are re-exported. In the view that it had taken,
  this Court held that if the petitioner-Company satisfied the
E authorities concerned that the bottles containing the original
  consignments after getting emptied within the Municipal limits
  were actually taken out of the Municipal limits for recycling, then
  it would be entitled to claim proportionate refund of the octroi
  duty assessed on the weight of such empty bottles only subject
F to the burden of such amount of duty not being shown to have
  been passed on to consumers of beverages or to anyone else,
  i.e. there is no unjust enrichment.

       17. Setting aside the High Court's order to the above
G extent, this Court permitted the petitioner-Company to lodge its
  claim for refund by producing evidence on the following points:

          "(a) Nature of the consignments concerned with their dates
          and the number of bottles packed with beverages brought
          within the municipal limits with their weight;
H
HINDUSTAN COCA-COLA BEVERAGE PVT. LTD. v. SANGLI MIRAJ 777
& KUPWAD MUNICIPAL CORP. [DR MUKUNDAKAM SHARMA, J.]

    (b) Proof regarding the fact thatthese bottles were not sold      A
    within the municipal limits to wholesalers, retailers or to any
    other person;
    (c) Number of bottles covered by the consignments
    concerned which were subsequently taken out as empty
                                                                      8
    bottles beyond the municipal limits for recycling and weight
    of such empty bottles;
    (d) Whether the bottles which are actually found to have
    been taken out of the municipal limits were the very same
    bottles containing beverages brought within the municipal         c
    limits by way of relevant consignments;
    (e) Whether the value of such bottles and amount of octroi
    duty on their weight was passed on to the consumers or
    not?"
                     .            .                                   D
     · 18: In our considered opinion the present case is squarely
covered by the above said decision of this Court in the case
of Acqueous Victuals (supra), and the said decision was
passed on the similar facts as of the present case, the only
difference being that in the case of Acqueous Victuals (supra)        E
octroi was computed and levied on the basis of the weight of
the bottles and crates, whereas in the present case, the
impugned bill seeks to levy octroi on the basis of value of the
bottles and value of the crates. It was suggested by the learned
senior counsel appearing for the appellant that due to the said
                                                                      F
difference the judgment in the case of Acqueous Victuals
(supra) will not be applicable to the present case. In our opinion
the said difference of the mode of computation of the octroi will
not affect the applicability of the ratio of the said decision to
the present case and the same applies to the present case on          G
all fours.
     19.lt was also suggested by the learned senior counsel
appearing for the appellant that the· decision in the case of
Acqueous Victuals (supra) cannot be said to be the correct law
as the said decision did not correctly appreciate the law laid        H
          778       SUPREME COURT REPORTS                   [2011] 7 S.C.R.


A down by the Constitution Bench of this Court in the case of
  Burmah Shell Oil (supra). In order to appreciate the said
  submission it would be appropriate to extract the relevant
  portion of the judgment in the case of Acqueous Victuals
  (supra) wherein thi~ Court has elaborately considered the law
B laid down by the Constitution Bench in the case of Burmah
  Shell Oil (supra):-

                "15. In view of the aforesaid decision, it becomes obvious
                that the word "retention" is held to be a synonym with the
                word "repose", meaning thereby the article concerned
c               must finally rest within the municipal·Hmits. In the light of
                the aforesaid judgment of the Constitution Bench of this
                Court, therefore, it is obvious that before a municipality can
                impose octroi duty on any commodity, it has to be shown
                that the commodity concerned .was brought within the
D               municipal limits for consumption, that is, for being totally
                used up so that it ceases to exist within the municipal limits
    ' '         themselves or it was to be used for an indefinite period
                within the municipal limits so that it ultimately rests within
                the municipal limits and does not go out subsequently, or
E               the commodity concerned must be shown to have been
                brought within the municipal limits for the purpose of sale
                within the said limits. Having thus laid down the aforesaid
                legal position concerning the imposition of octroi in the
                penultimate paragraph of the Report at p. 234, the Court
F               observed that the Burmah Shell was liable to pay octroi
                tax on goods brought into local area (a) to be consumed
                by itself or sold by it to consumers direct and (b) for sale
                to dealers who in their turn sold the aoods to consumers
                within the municipal area irrespective of whether such
G               consumers bought them for use in the area or outside it.
                The Company was, however, not liable to octroi in respect
                of goods which it brought into the local area and which
                were re-exported. But to enable the Company to save itself
                from tax in that case it had to follow the procedure laid
H               down by rules for refund of taxes.
HINDUSTAN COCA.COLA BEVERAGE Pvr LTD. v. SANGLI MIRAJ 779
& KUPWAD MUNICIPAL CORP. [DR. MUKUNDAKAM SHARMA, J.]

      16. The aforesaid authoritative pronouncement of the            A
Constitution Bench of this Court, therefore, sets at rest the
controversy in the present case. If it is the case of the writ
petitioner that during the relevant period from 1980 to 1987 it
brought within the municipal limits of the four respondent-
Municipalities beverages packed in bottles and the bottles were       B
not sold within the municipal limits and after the beverages were
taken out of these bottles, these very bottles were returned to
the petitioner and were taken back to Bareilly, then for claiming
the refund of the octroi paid on the weight of these bottles during
the relevant period when the consignments entered the                 c
municipal limits from time to time, the writ petitioner had to
follow the· procedure laid down by the Municipality concerned
under its rules for refund of taxes and had to comply with the
statutory gamut of these rules. It had also to show that the burden
of disputed octroh;luty was borne by it and was not passed on
                                                                      0
to consumers of beverages contained in these bottles. In other
words, it would not be guilty of unjust enrichment if refund was
granted.· 1f the refund claim on furnishing the relevant proofs was
not ultimately granted, the remedy of appeal provided under the
rules had to be followed."
                                                                      E
      20. On a minute and detailed perusal of the judgment of
th.e Constitution Bench in the case of Burmah Shell Oil (supra),
and the above noted inference drawn in the case of Acqueous
 Victuals (supra), we do not agree with the said submission of
the appellant. We respectfully agree with the above noted             F
inference drawn and are of the considered opinion that this
Court in Acqueous Victuals (supra) has correctly appreciated
the law laid down by the Constitution Bench in Burmah Shell
Oil (supra).
     21. Though it was vehemently argued that the cost of the G
bottles and crates is amortized and included in the retail sale
price of the aerated beverage but no facts were placed before
the High Court in that regard. Moreover, even in case the same
were placed, the same being disputed question of fact could .
not have been gone into by the High Court exercisinQ the H
    780     SUPREME COURT REPORTS                  [2011] 7 S.C.R. '


A jurisdiction under Article 226 of the Constitution of India.

         22. In the ,present case, the definition of "octroi!' is
    contained in Section 2(42) of the BPMC Act. Relevant entry in
    respect of aerated water in the octroi schedule under the said
    Rules is at serial no.11 (D). Relevant entry as regards bottles
8
    is at serial no.52. Relevant entry as regards barrel crate and
    individual crate, is at serial No.53E. The said Rules contain
    detailed provisions under which an importer can make an
    application for refund.                 ·

C       23. Accordingly, in our opinion, as also laid down by this
  Court in Acqueous Victuals (supra), in case the appellant-
  company is sending out the same bottles for recycling and if
  the bottles and crates are not sold, used, or consumed in the
  Municipal limits of the respondent•Corporation, that is to say,
D if they have not finally rested in the Municipal limits of the
  respondent-Corporation in which they are imported, the
  appellant-company can always make an applicationfor refund
  under the said Rules. The appellant-company will have to
  produce evidence on the points detailed in the Acqueous
E Victuals (supra) which we have quoted hereinabove. As
  submitted by the appellant, in case, the cost of the bottles and
  crates is amortized and included in the retail sale price of the
  aerated beverage, the evidence can also be placed in that
  regard, in order to claim refund on any such amount. Besides,
F it was also pointed out that bottles in which beverages are
  brought are recycled and used bottles and therefore levy of
  octroi cannot be at the same rate as that of the new bottles.
  These are also disputes on the facts, which would require
  production of evidence. On the appellant-company making an
G application for refund, the concerned authority will consider it
  in its proper perspective and if a case is made out shall grant
  refund.

         24. Needless to say, in case, the appellant is aggrieved
    by the valuation of the bottles and crates on the basis of which
H
HINDUSTAN COCA-COLA BEVERAGE PVT LTD. v. SANGLI MIRAJ 781
& KUPWAD MUNICIPAL CORP. [DR. MUKUNDAKAM SHARMA, J.]

the impugned bill is issued they are at the liberty to file        A
objections before the appropriate authority, and the appropriate
authority will adjudicate the same in accordance with the law,
as against which if still aggrieved, further remedy as available
could be resorted to.
                                                                   8
     25. At this stage it is pertinent to mention that during the
hearing, the appellant has expressed its concern about the
mechanism by which the said levy could be computed and
collected as according to them the present procedure is very
cumbersome and unworkable at both the ends, and moreover, C
the same would result into incurring of huge managerial time
and administratiye cost. After the present judgment was
reserved for pronouncement, the appellant has also given
proposals to the respondent corporation for devising a suitable ·
and convenient mechanism. The said request on the part of the
appellant requires consideration. Accordingly, the re~ponded D
corporation shall consider the said proposal in accordance with
law and even otherwise on their part devise a suitable,
convenient and workable mechanism for levy and collection of
octroi.
                                                                  E
     26. With the above said directions both the appeals are
dismissed with no order as to costs.

R.P.                                      Appeals dismissed. -