LexM/S. FORAGE AND CO.(OF LUSHALA) versus MUNICIPAL CORPN. OF GREATER BOMBAY AND ORS.
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A MIS. FORAGE AND CO. (OF LUSHALA) v. MUNICIPAL CORPN. OF GREATER BOMBAY AND ORS. OCTOBER 27, 1999 8 [B.N. KIRPAL, A.P. MISRA AND N. SANTOSH HEGDE, JJ.] Bombay Municipal Corporation Act, 1888~s. 139(4), 192, &hedule H Item 2~ctroi on zinc oxide-Appellant importer of zinc oxide into Bombay-Appellant claim that Octroi could not be levied as Schedule H, C Item 26 fell under Class IV which referred to articles used in construction of buildings, rdads and other structures and articles made of wood and cane; and since zinc oxide was used only by manufacturers of rubber goods, it could not be regarded as an item falling under that class~ingle Judge of High Court.allowing assessee's writ petition held that only a negligible D percentage of zinc oxide was used as a component of paint and that was not sufficient to hold it was an article used in construction of roads and buildings- Division Bench held inf avour of the Municipal Corporation-Held, merely because only 0.25 per cent per value of zinc oxide is mixed with the paint used in the buildings cannot be regarded a ground for holdir.g that zinc oxide is not an article used in construction of buildings-Further. if the item E is mentioned in the &hedule, then irrespective of the heading under which ii is contained, Corporation would be entitled to levy octroi on the import of the said item into Bombay-Appellant would pay to the Corporation the amount of duty alongwith interest. F G H Frick India Ltd. v. Union of India, (19901 1 SCC 400, relied on. Municipal Corpora/ion, Greator Bombay v. Monopool Chemicals, AIR (1988) Bombay 217- disapproved. Interpretation of Statutes: Tax statutes-Interpretation of-Held, heading is not decisive of the question whether an article mentioned in the Schedule can be subjected to tax or not. Frick India Ltd. , .. Union of India, [ 1990) I SCC 400- relied on. 184 L ' " ~. j -~ _.. FORAGE AND CO. v. MUNL CORPN. OF GREATER BOMBAY 185 CIVIL APPELLATE JURISDICTION: Civil Appel No. 2318 of A 1987 Etc. From the Judgment and Order dated 9.6.87. of the Bombay High Court in A.No. SSS of 1981. ' R.S. Suri and Jagjit S. Chhabra for the Appellant. B · S.K. Dholakia, Pallav Shishodia and S. Sukumaran, for Mis. IBO & Co., for the Respondents. The follwoing Order of the Court was delivered by : The only question which arises for consideration in these appeals is c whether import of zinc oxide within the limit of Greater Bombay attract the imposition of octroi. The appellant is in the business of import of zinc oxide into the Greater Bombay. The said item is then sold to rubber manufacturing industry. At the D time of its import into Bombay octroi was sought to be levied under Section 192 of the Bombay Municipal Corporation Act, under Item 26 of Schedule H. On I 0th May, 1978 the appellant objected to the levy of octroi on the import of zinc oxide saying that this article was not used in the construction of buildings, roads or other constructions. The contention of the appellant E was that in Schedule H item No. 26 fell under Class IV which referred to articles used in construction of buildings, roads contention of the appellant was that zinc oxide was used only by the manufacturers of rubber goods and, therefore, it co.uld not be regarded as an item falling under that class and, therefore, no octroi could be levied. F When the respondent rejected the representation of the appellant a writ petition was filed in the High Court at Bombay. The Single Judge of the Bombay High Court came to the conclusion, on the basis of the affidavits which were filed before him, that 'only a negligible percentage of zinc oxi'de was used as a component of paint and that was not sufficient to hold that G zinc oxide was an article used in the construction of roads or buildings. He was further of the opinion that in order that an item should be taxable it must conform to the class indicated in Schedule H and inasmuch as zinc oxide could not be regarded as an article used in the construction of buildings etc., '· therefore, no octroi could be levied thereon. In coming to this conclusion the learned Judge relied upon a decision by Vaidya J., Single Judge of the High H 186 SUPREME COURT REPORTS (1999] SUPP. 4 S.C.R. A Court in the case of Municipal Corporation of Greater Bombay v. Glaxo Laboratories (India) Pvt. Ltd. in Appeal No. 755 of 1976. B c The appellant then filed an appeal and the Division ben
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