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PETITIONER: HMM LIMITED & ANR.

       Vs.

RESPONDENT: ADMINISTRATOR BANGALORE CITY CORPORATION,BANGALORE & ANR.

DATE OF JUDGMENT04/10/1989

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) RAY, B.C. (J)

CITATION:  1990 AIR   47            1989 SCR  Supl. (1) 353  1989 SCC  (4) 640        JT 1989 (4)   147  1989 SCALE  (2)791  CITATOR INFO :  D          1992 SC  53  (4)  R          1992 SC 645  (24)

ACT:     Bangalore Municipal Corporation Act, 1949: Section 98(2) and Bye Law 45/Rules 24 to 27--Octroi--Levy of--Mere  physi- cal entry into city limits--Would not attract levy of octroi unless goods brought in for use, consumption or sale.     Words  And  Phrases:  "Without  Breaking  bulk"--Not  an expression of art--Should be construed liberally.

HEADNOTE:     The appellant company was engaged in the manufacture and sale of a malted milk product marketed under the brand  name "Horlicks".  The  appellant brought the product  within  the octroi limits of Bangalore in bulk containers, rebottled the same in small bottles and exported the major portion of  the rebottled product beyond the octroi limits of Bangalore. The appellants  made representation protesting against the  levy of  octroi  on Horlicks in respect of the  quantity  of  the goods which was exported outside the municipal limits  after being rebottled, and sought refund of the octroi duty on the ground  that there was no use or consumption or sale of  the said  milkfood  within the municipal limits,  and  that  the imposition  of octroi was illegal and unwarranted.  The  re- spondent-Corporation  rejected  the  claim.  Thereupon   the appellant filed a writ petition in the High Court  challeng- ing  the levy/retention of the octroi duty on  Horlicks  ex- ported out of the municipal limits.     The  petition  was resisted by the  Corporation  on  two grounds, namely, (i) the transferring the Horlicks  imported in bulk into bottles amounted to use of the Horlicks  within the  city; and (ii) the octroi collected was  in  accordance with law and unless the procedure prescribed under rules  24 and  25  of Bye-law 45 framed by the  Municipal  Corporation under the City of Bangalore Municipal Corporation Act,  1949 was  followed no obligation or duty was cast on the part  of the Corporation to refund any part of the octroi collected.     The  learned Single Judge allowed the writ petition  and held  that  when the Horlicks powder  was  transferred  into bottles of different sizes,

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354 the appellant did not use Horlicks within the city of Banga- lore.     In  the  appeal,  the Division  Bench  agreed  with  the learned  Single  Judge  on the first point.  On  the  second point,  however, the Division Bench rejected the  contention of the appellant that opening or breaking open the drums and putting the powder in the bottles amounted to breaking  bulk and as such there was no scope of applying for refund  under rule 24 which provided for refund in the case of articles on which octroi duty had been paid and which were  subsequently exported  beyond  the octroi limits without  breaking  bulk. According  to  the Division Bench, no  importance  could  be attached to the expression ’without breaking bulk’, and  the appellant not having applied in accordance with rules 24 and 25, no amount could be refunded.     Before  this Court, the Corporation sought to  raise  an additional plea that where refund was due in respect of  the duties  like this, the amount could not be refunded  because there was possibility of undue enrichment of the claimant. Allowing the appeal, this Court,     HELD: (1) Octroi in this case is a duty on the coming in of the raw materials which is payable by the producer or the manufacturer.  It is not the duty on going out of  the  fin- ished products in respect of which the duty might have  been charged or added to the costs passed on to the consumers. In such  a  situation, no question of  ’undue  enrichment’  can possibly arise. [362G]     (2)  There  is no dispute that the Horlicks  powder  was brought in bulk in drums. After being imported, the entirety of  the  Horlicks powder had not been sold. A  part  of  the powder has been put in the bottles and exported outside  the city of Bangalore. [361E]      (3) Octroi cannot be levied or collected in respect  of goods  which  are not used or consumed or  sold  within  the municipal limits. [364F]      (4)  Indubitably, amounts have been realised as  octroi on  the entry of the goods on which octroi was not  leviable because  these  were not for use or consumption  within  the municipal  limits. Mere physical entry into the city  limits would  not  attract  the levy of octroi  unless  goods  were brought in for use or consumption or sale. [364C-D] (5)  In this case, putting the powder from the drums to  the bottles 355 for the purpose of exporting or taking these out of the city is  neither use nor consumption of the Horlicks  powder  at- tracting the levy of octroi. Such amounts, therefore  cannot be retained by the respondent corporation. [362D-E]     C.W.P.  No. 19873 of 1977--High Court of  Punjab  Burmah Shell  Oil Storage & Distributing Co. of India Ltd. v.  Bel- gaum Borough Municipality, [1963] 2 Supp. SCR 216,  referred to.     (6) "Without breaking bulk" is not an expression of art, nor is it an expression defined in the Act or the rules.  It has, therefore, to be construed in its literal and  ordinary sense to the extent possible, and construed as it is, trans- ferring  the product from the drums by breaking seal of  the drums  to  bottles cannot be said to  be  "without  breaking bulk".  Certainly the bulk was broken in the procedure  fol- lowed. [361H; 362A-E]     (7)  Rule 24 does not apply. In that view, rules 25  and 26 have no scope of application. [364C]     Kirpal  Singh  Duggal  v.  Municipal  Board,  Ghaziabad, [1968] 2 SCR 551, referred to.

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   (8) Realisation of tax or money without the authority of law  is  bad under Article 265 of the  Constitution.  Octroi cannot be levied or collected in respect of goods which  are not used or consumed or sold within the municipal limits. So these  amounts  become collection without the  authority  of law. The respondent is a statutory authority in the  present case.  It has no right to retain the amount, so far  and  so much. These are refundable within the period of  limitation. [364E-F]

JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No. 4160  of 1989.     From  the  Judgment  and Order dated  24.3.1988  of  the Karnataka High Court in W.A. No. 637 of 1985. S. Ganesh, A.C. Gulati and B .B. Sawhney for the Appellants. T.S. Krishnamurthy Iyer and N. Nettar for the Respondents. The Judgment of the Court was delivered by SABYASACHI MUKHARJI, J. Leave granted. 356      This  is an appeal from the judgment and order  of  the Division  Bench  of the High Court of Karnataka  dated  25th March, 1988.      There  was  a notification under section 98(2)  of  the City of Bangalore Municipal Corporation Act, 1949 dated  4th March,  1975  levying  octroi, inter alia,  on  food  drinks (including  milkfood) brought into the municipal  limits  of Bangalore  for  sale, consumption or use.  On  8th  October, 1976,  representation was submitted on behalf of  the  peti- tioners,  HMM Limited, protesting against levy of octroi  on "Horlicks" milkfood powder brought into the municipal limits in  bulk containers (Large steel drums) for being packed  at the  packing station in Bangalore in Unit containers  (glass bottles)  and  thereafter  exported  outside  the  municipal limits.  In respect of the quantity of the goods which  were exported  outside the municipal limits after being  bottled, the  petitioners sought refund of the octroi duty  as  there was  no  use  or consumption or sale of  the  said  milkfood within  the  municipal limits.  The  respondent  corporation rejected the claim on the ground that rule 24 of the  Byelaw 45 framed by the Municipal Corporation had not been complied with and as such refund could not be given. The  petitioners again  sought on 4th February, 1978, refund of  octroi  duty for  the period 1974-75 to December, 1977 amounting  to  Rs. 13,39,652.92 enclosing computation of the duty collected for the aforesaid period. Again, the’ refund was refused by  the respondents  in  March, 1978. Petitioners  thereafter  filed writ petition in the High Court of Karnataka challenging the levy/retention of octroi duty on "Horlicks" exported out  of the  municipal limits and seeking refund thereof.  From  1st April,  1979, levy of octroi on milkfood was  totally  abol- ished  in Karnataka. Learned Single Judge of the High  Court on 1st February, 1984, allowed the writ petition and direct- ed  that the amount of octroi duty collected for the  period commencing  three  years  prior to the filing  of  the  writ petition be verified within 3 months and refunded within  45 days  thereof. Learned Single Judge noted that the  case  of the  petitioners was that it was engaged in the  manufacture and  sale of a malted milk product marketed under the  brand name "Horlicks". The petitioner used to manufacture the said product in its two factories situated at Nabha in the  State of  Punjab and Rajahmundhry in the State of  Andhra  Pradesh and  marketed these throughout the country through its  bot-

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tling  and marketing centers situated in different parts  of the  country.  One such centre was situated in the  city  of Bangalore to which it brought its said product in bulk, then rebottled the same in small bottles of different  capacities like 800 gms, 450 gms and 250 gms. It was the case of  peti- tioners  that  small portion of the  product,  rebottled  in small bottles, alone was sold within the city of 357 Bangalore  to its dealers and the rest was exported  to  its agents  situated in different parts of the State  and  other nearby  places of the country also. In this  connection,  it may  be mentioned that rules 24 to 27 of the  relevant  Bye- laws were as follows:               "24. 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, togeth-               er  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, he 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 handover  the               form to the exporter."     There  is no dispute that on the entire quantity of  the goods  brought within the municipal limits, octroi was  col- lected  from the petitioner. It claimed for refund  only  in respect of those quantities which were rebottled and export- ed  from the city to outside places. This was  refused.  The contention of the petitioners was that only that portion  of the goods which was imported in drums and was rebottled in 358 bottles and exported outside the city was not liable to duty of octroi. It was contended before the learned Single  Judge that  portion  of the goods was not dutiable  to  octroi  as these  did  not fall within the term "sale,  consumption  or use"  within the local area of the city of  Bangalore.  When the petitioner approached the High Court, rule 24  aforesaid of  the Bye-law 45 was in force. Octroi was, however,  abol- ished  with effect from Ist April, 1979. The  question  that

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was  canvassed before the learned Single Judge of  the  High Court was that when the product was imported in bulk in  the city only for rebottling and rebottled in small bottles  for the  consumer requirements and marketed, there could not  be consumption  or sale of that product. On the other hand,  it was  contended that in any event, it is a case of  ’use’  to attract levy of octroi. The Horlicks powder remains the same even  after packing, as was held by Mittal, J. of  the  High Court  of Punjab in C.W.P. No. 19873 of 1977. In that  case, the Horlicks powder in drums was sold direct to bulk consum- ers.  It was held that the Horlicks powder remains the  same after  packing. It does not become different  commodity.  It also  cannot  be held that it acquired  distinct  commercial utility, according to Mittal, J. Therefore, in that context; Mittal,  J. held that the packing of the Horlicks powder  in small  bottles  does not fall within the ambit of  the  word ’use’  and, therefore, the petitioner in that case  was  not liable  to  the charge of octroi for its import  within  the limits of the city. This decision was affirmed by the  Divi- sion  Bench.  It was contended that in the  judgment  before Mittal,  J, packing was entrusted to a separate agency,  but it  does  not  make any difference,  according  the  learned Single  Judge  of Bangalore. Therefore, the  learned  Single Judge in this case found that only on that quantity of  milk product imported by the petitioner in bulk but rebottled  in small bottles at its Bangalore bottling station and  export- ing  from the city to other places for sale in those  places and  not using the same in Bangalore city, was not  dutiable to  octroi till that levy was in force. The  learned  Single Judge,  therefore, held that the amounts so levied and  col- lected  as octroi for a period of three years prior  to  the presentation  of the writ petition only and not beyond  that are  refundable  by the respondents to  the  petitioner.  He directed refund and pursuant to this direction, the  learned Single Judge further directed that the same may be verified. We were informed that the same has been verified.     There  was an appeal to the Division Bench of  the  High Court.  The question before the Division Bench  was  whether the Corporation was liable to refund that part of the amount of  octroi duty paid by the petitioners on the  quantity  of the  Horlicks powder imported into the city of Bangalore  on the petitioners’ informing the Corporation that 359 they had despatched that part of the same from time to  time by filing the same in bottles to places outside the city  of Bangalore  even  though  petitioners had  not  followed  the procedure  prescribed in rules 24 and 25 of Bye-law  No.  45 flamed by the Corporation and even though they had not  even informed of such despatches as and when these were made?     Item  17 of the notification dated 4th March,  1975,  as mentioned before, so long as it continued, was as follows:               "17.   Confectionary,    biscuits,     toffee,               chocolates    food  essence,  food   coloured,               aerated  water  and soft drinks,  food  drinks               other  than milk in condensed form bottled  or               canned arecounts both scomted or plain.                                              2% 0.06 ps.                                              ad  valorem  10               Kg."     The Division Bench noted that in terms of the  aforesaid levy, the petitioners were paying octroi on the basis of the total quantity of Horlicks imported into the city of  Banga- lore.  Then a letter was addressed on the 8th October,  1975 to  the Corporation of the city of Bangalore, which was  set out  in  the  judgment of the Division Bench.  In  the  said

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letter, it was, inter alia, stated that the petitioners were not  bringing the goods within the municipal limits for  use or consumption therein and as such the imposition of  octroi was  illegal  and unwarranted and that the  petitioners  had paid  under protest the amount and claimed the  refund.  The petitioners claimed only the octroi paid on the goods  which were exported outside the city of Bangalore and not used  or consumed  within the city. The petitioners  further  stated, inter alia, as follows:               "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 Banga-               lore  and not used or consumed therein  appro-               priately  in order to facilitate movements  of               goods  and  avoid difficulties to  the  octroi               incharge."                   The  Corporation turned down  the  demand.               The Division Bench noted that the petition was               resisted by the respondent on to grounds:               "1.  The transferring of Horlicks imported  in               bulk into the               360               city of Bangalore into bottles amounts to  use               of  the Horlicks within the city of  Bangalore               notwithstanding  the fact that a part  of  the               total  number of bottles were despatched  out-               side the city of Bangalore.               2.  The octroi collected on the  Horlicks  im-               ported  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 was  cast               on  the part of the Corporation to refund  any               part of the octroi collected."     The  Division  Bench of the High Court in  the  decision under appeal observed that as far as the first ground raised was  concerned,  the learned Single Judge had  rejected  the claim and held that when the Horlicks powder was transferred into  bottles  of different sizes it did  not  use  Horlicks within the city of Bangalore. In this connection, the  Divi- sion  Bench  referred to the decision of  Burmah  Shell  Oil Storage  & Distributing Co. of India Ltd. Belgaum v.  Belgam Borough Municipality, Belgaum, [1963] 2 Supp. SCR 2 16. This Court  in  that case held that 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. On this  aspect,  the Division Bench agreed  with  the  learned Single Judge. So far as the second contention raised by  the Corporation was concerned, the Division Bench noted that the relevant provision of the rules was not considered. We  have set  out hereinbefore the said rules. In the Schedule  there is a form for refund. The contention of the petitioners  was that  rule  24 did not apply. Rule 24, as  we  have  noticed hereinbefore, provided that in respect of articles on  which octrio  has been paid and which are  ’subsequently  exported beyond  the  octroi limits without breaking  bulk’,  refunds shall be subject to the rules indicated therein. So, accord- ing  to the petitioners, after opening or breaking open  the drums and putting the powder in the bottles, as in this case amount  to breaking bulk, and as such there was no scope  of applying  for  refund  under Rule 24.  But  the  Corporation contended  that it was not so. The Division Bench,  however, accepted the contention of the Corporation. It is  indubita-

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bly true that the petitioners had not claimed the refund  in accordance with the law because according to the petitioners the  said  rules would have no application as the  bulk  was broken.  The  Division  Bench, however,  observed  that  the petitioners  in their letter addressed to  the  Commissioner have  specifically stated that the goods  were  subsequently exported outside the city of Banga- 361 lore  as  envisaged  by  Bye-law  24  of  notification   No. N.A.I(53)  of 1952-53 dated 5th April, 1954.  Regarding  the expression  "without breaking bulk", the Division  Bench  of the High Court was unable to accept the contention that  the bulk  of  the goods on which the octroi has  been  paid  was transferred  to  containers of small  sizes  and  despatched outside the city, the bulk was broken. But the question  was whether in such a situation, it can be said that it was done without  breaking  the bulk. The Division Bench was  of  the view that having regard to the rule and having regard to the fact  that it was imported into the city of  Bangalore,  and was  to be despatched outside the city of Bangalore  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 only claim refund  in  accordance with the rules. Therefore, according to the Division  Bench, no  importance  can be attached to the  expression  "without breaking  bulk" on despatches of the goods. Refund could  be claimed  only on despatches of the goods outside  the  city, for  octrio is leviable only if the goods imported into  the city are consumed, used or sold within the city.  Therefore, ’bulk’,  in  the view of the Division Bench, was,  in  fact, broken  and the petitioner not having applied in  accordance with  rules  24 and 25, no amount could be refunded  to  the appellant.  In that view of the matter, the appeal  was  al- lowed by the Division Bench and the judgment of the  learned Single Judge was reversed.     It  may be mentioned that there is no dispute  that  the Horlicks  powder was brought in bulk in drums. At the  rele- vant  time,  there was levy of octroi at the entry  of  such goods.  After  being imported, it has been  found  that  the entirety of the Horlicks powder had not been sold. A part of the powder has been put in the bottles and exported  outside the  city  of Bangalore. It has been found by  the  Division bench  that  putting powder from the drums  to  the  bottles inside the city, is not user or consumption as  contemplated by  the  rule. And on that no octroi duty was  leviable.  In this  case also, it has been found pursuant to the order  of the learned Single Judge how much octroi will be  refundable on account which has been paid by the petitioners. The  only ground  on which the Division Bench had resisted the  refund was  that the petitioners did not apply in  accordance  with the procedure envisaged by rules 24 and 25 of the  aforesaid Bye-laws.  Mr. Krishnamurthi Iyer, learned counsel  for  the respondent,  contended that the High Court was right in  the view it took on the construction of rules 24, 25 and 26.  We are  unable to agree with this submission. As we have  indi- cated  before, "without breaking bulk" is not an  expression of  art, nor is it an expression defined in the Act  or  the rules. It has, therefore, to be construed 362 in  its literal and ordinary sense to the  extent  possible, and  construed  as it is, in our opinion,  transferring  the product  from  the drums by breaking seal of  the  drums  to bottles,  cannot  be  said to be  "without  breaking  bulk". "Breaking bulk" is an expression not unknown to legal termi- nology especially in England. In the Cyclopedic Law Diction-

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ary, 3rd Edn., "breaking bulk" has been stated to mean  that for  a  bailee to open a box or packaging entrusted  to  his custody   and  fradulently  appropriate  its  contents.   In Stroud’s  Judicial Dictionary, 4th Edn., Vol-1, it has  been stated that to ’break bulk’ is not now necessary to  consti- tute  larceny  or theft by a bailee. It is stated  that  the cases were very numerous and turned on nice distinctions  as to  what amounted to "breaking bulk". In the  Dictionary  of English Law by Earl Jowitt "breaking bulk" has been  defined as  that  at common law there could be no larceny  of  goods which had originally been lawfully obtained by a person  who subsequently  wrongfully  converted  them to  his  own  use, unless  such  conversion  was preceded by some  new  act  of taking.  It  that  is so, we are unable to  agree  with  the construction  suggested by the Division Bench. It  was  con- tended  that  the octroi was leviable on the  entry  of  the goods  in the municipal limits of the city but the  Horlicks powder  had not entered into the local limits  of  Bangalore for the purpose of use or consumption, as understood in  the decision  of  the Burmah Shell’s case (supra) and  as  found both by the learned Single Judge and the Division Bench that putting  the  powder from the drums to the bottles  for  the purpose of exporting or for taking this out of the city,  is neither use nor consumption of the Horlicks powder, attract- ing  the levy of octroi. Certainly, the bulk was  broken  in the procedure followed. The High Court was wrong in  putting the  construction  on  the expression as it  did.  Mr.  Iyer sought  to  raise before us the plea that in  a  case  where refund  is  due in respect of the duties like  this  whether petitioners  would be entitled to refund on the  basis  that refund  cannot  be given because there  was  possibility  of undue  enrichment  of the claimant, is  pending  before  the Seven-Judge Constitution Bench in this Court. Therefore,  it was  submitted  that we should await the  said  decision  or refer  the matter to the Constitution Bench. Octroi in  this case is a duty on the entry of the raw materials for  coming in.  It  is the duty on the coming in of the  raw  materials which is payable by the producer or the manufacturer. It  is not  the duty on going out of the finished products  in  re- spect of which the duty might have been charged or added  to the  costs passed on to the consumers. In such a  situation, no question of ’undue enrichment’ can possibly arise in this case.  If  that  is the position then the  pendency  of  the question  before the Constitution Bench should not deter  us from proceeding with this adjudication. 363     Shri  Ganesh  drew our attention to a decision  of  this Court in Kirpal Singh Duggal v. Municipal Board,  Ghaziabad, [1968]  3  SCR 551. There, the  appellant  had  transported, between  August  1953 and March 1955, certain  materials  in execution  of  a  contract to supply goods for  use  by  the Government  of India. The respondent Municipality  collected toll  while the appellant’s trucks were passing through  the toll barrier. The appellant, in that case, obtained in June, 1955,  a certificate from the authority concerned  that  the goods  transported were "meant for Government work  and  had become  the property of the Government". The appellant  then applied  to the Municipality for refund of the  amount  paid pursuant to the exemption granted by the Government of India under  the  U.P. Municipalities Act,  1916.  The  respondent declined  to  refund the amount. In an  action  against  the respondent,  the  trial court decreed the  claim.  The  High Court affirmed the order of the Civil Judge. Both the  Civil Judge  and  the High Court took the view that by  the  rules framed  under the Act an application for refund  within  six

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months from the date of actual payment is a condition prece- dent  for  refund of the toll. The party  appealed  to  this Court. This Court was unable to accept this contention Shah, 3, as the learned Chief Justice then was, speaking for  this Court  noted that the respondent therein had contended  that the  rules framed by the Government regarding the  procedure constituted  a  condition precedent to the exercise  of  the right to claim refund and recourse to the civil court  being conditionally  strict,  compliance  to  that  procedure  was necessary for obtaining any decree in civil court.  Allowing the appeal, this Court held that this contention was untena- ble. Shah, J. observed at p. 555 of the report as under:               "The rules framed by the Government merely set               up the procedure to be followed in  preferring               an application to the Municipality for obtain-               ing  refund of the tax paid. The  Municipality               is  under  a statutory  obligation,  once  the               procedure  followed  is  fulfilled,  to  grant               refund to the toll. The application for refund               of  the toll must be made within fifteen  days               from the date of the issue of the  certificate               and within six months from the date of payment               of  the toll. It has to be accompanied by  the               original  receipts.  If these  procedural  re-               quirements are not fulfilled, the Municipality               may  decline to refund the toll  and  relegate               the claimant to a suit. It would then be  open               to  the  party claiming a refund to  seek  the               assistance  of  the  court, and  to  prove  by               evidence  which is in law admissible that  the               goods transported by him fell within the order               issued under s. 157(3) of the Act.               364               The rules framed by the Government relating to               the procedure to be followed in giving  effect               to  the exemptions on April 15, 1939,  do  not               purport  to bar the jurisdiction of the  civil               court if the procedure is not followed. In our               judgment,  the Civil Judge and the High  Court               exalted what were merely matters of procedure,               which the Municipality was entitled to require               compliance  with  in  granting  refund,   into               conditions precedent to the exercise of juris-               diction  of the civil court. It is  impossible               on  a bare perusal of the order issued by  the               Government and the rules framed by it to  give               to the order and the rules that effect."     These  observations,  in  our opinion, in  view  of  the contentions  raised on behalf of the Municipality  here  are apposite in this case. The aforesaid Rule 24 does not apply. In that view, rules 25 and 26 have no scope of  application. Indubitably,  amounts  have been realised as octroi  on  the entry of the goods on which octroi was not leviable  because these  were not for use or consumption within the  municipal limits.  Mere physical entry into the city limits would  not attract the levy of octroi unless goods were brought in  for use or consumption or sale. In this case, putting the powder from  the drums to the bottles for the purpose of  exporting or taking these out of the city is neither use nor  consump- tion  of the Horlicks powder attracting the levy of  octroi. Such amounts, therefore, cannot be retained by the  respond- ent-Corporation.  There is no dispute as to the  quantum  in view  of the fact that the amount has now been found  to  be certified  to be credited pursuant to the direction  of  the learned Single Judge of the High Court. We see no ground  as

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to why amount should not be refunded. Realisation of tax  or money without the authority of law is bad under Article  265 of the Constitution. Octroi cannot be levied or collected in respect  of  goods which are not used or  consumed  or  sold within the municipal limits. So these amounts become collec- tion  without  the  authority of law. The  respondent  is  a statutory authority in the present case. It has no right  to retain the amount, so far and so much. These are  refundable within  the  period of limitation. There is no  question  of limitation.  There is no dispute as to the amount. There  is no  scope of any possible dispute on the plea of  undue  en- richment  of  the  petitioners. We are,  therefore,  of  the opinion that the Division Bench was in error in the view  it took.  Where  there is no question of undue  enrichment,  in respect  of money collected or retained, refund, to which  a citizen is entitled, must be made in a situation like this. We, therefore, hold that amounts should be refunded  subject to 365 the verification directed by the learned Single Judge of the High  Court  of the amount of refund. The appeal  is,  thus, allowed. The Judgment and the order of the Division Bench of the  High Court are, therefore, set aside. In the facts  and the circumstances, there will be no orders as to costs. R.S.S.                                                Appeal allowed. 367