ORAL JUDGMENT

R.M.S. Khandeparkar, J.

1. Heard. Perused the records. The petitioners are seeking to challenge the order dated 22nd March, 1996 passed by the Deputy Assessor and Collector i.e. Respondent no.2 in relation to the classification of their product and consequently for direction for refund of the octroi stated to have been paid by the petitioners in excess to the amount legally payable on the said product.

2. The petitioners are inter-alia engaged in the manufacture, import, sale and marketing of data processing machinery. Amongst such machines, the petitioners had imported AS/400 advanced system which is the state of the art IBM computer and which consisted of AS/400 hardware and AS/400 software and such goods were subject to the payment of octroi in terms of the provisions comprised in Bombay Municipal Corporation Act, 1988 read with Octroi Rules made thereunder.

3. On 11th August, 1995, this Court disposed of Writ Petition No.1828/93 filed by the petitioners challenging assessment made by the respondents in relation to the product brought by them, by way of Minutes of Order whereby the respondents were required to dispose of the applications filed by the petitioners for refund in accordance with the provisions of law within a specified period. Under letter dated 28th August, 1995 it was sought to be contended by the petitioners that the goods brought by them were correctly classified under Entry 50 of the Schedule "H" of the said Act and the rules made there under and therefore, octroi payable was at the rate of 2% and not 4% under Entry No.52 of the Schedule as was sought to be claimed by the Corporation. After some correspondence between the petitioners and the Corporation and after hearing the petitioners, the respondent no.2 disposed of the claim by the impugned order thereby rejecting their applications for refund. Hence, the present petition.

4. Drawing attention to the decision of the learned Single Judge of this Court in Misc. Petition No.330/68 in the matter of IBM World Trade Corporation Vs. The Municipal Corporation of Greater Bombay and Another, delivered on 10th August, 1974, the learned Advocate appearing for the petitioners submitted that the goods which were brought by the petitioners were clearly classifiable under Item No.50 being machines and its part as the same were comprised of data processing machinery, and the learned Single Judge in the said writ petition had clearly held that the same were classifiable under Item No.50 and not No.52. The respondent without arriving at the specific finding disclosing the difference between the goods which were subject matter of the decision by the learned Single Judge and the goods which were brought by the petitioners, sought to classify the goods of the petitioners under Item No.52. Taking us through the said decision of the learned Single Judge and referring to the description of the goods brought by the petitioners, the learned Advocate submitted that perusal of the impugned order nowhere discloses the application of mind by the concerned authority to ascertain the difference between the goods brought by the petitioners and which were the subject matter of the petition before classifying the goods under a heading different from the one as was ruled by the learned Single Judge in the said petition. According to the learned Advocate since this Court has clearly held that the data processing machinery is classifiable under Item No.50 and the respondents were not being able to find out any difference between the data processing machinery which was the subject matter of the said petition and the goods which have been brought by the petitioners, the decision of the respondent no.2 is clearly in contravention of the law laid down by this Court, apart from the fact that the perusal of the entries in the schedule and particularly in 50 and 52 would reveal that the product brought by the petitioners by no stretch of imagination can be said to be an apparatus which could be classifiable under Item 52. As regards the finding about failure on the part of the petitioners to produce "B" Form referring to the correspondence between the parties, he submitted that the petitioners have produced sufficient evidence relating to the nature of goods imported. In any case, he submitted that the procedural rules cannot be construed as hurdle to the assessee to get refund of the duty which has been unauthorizedly recovered by the revenue department. He also submitted that the petitioners are always ready and willing to execute necessary document or bond to ensure the Corporation about the fact that the refund is only in relation to the amount which has been unauthorisedly collected from the petitioners in the name of octroi duty and it does not relate to unpaid amount by the petitioners.

5. The learned Advocate appearing for the Corporation, on the other hand, submitted that the respondent having found the product of the petitioners to be different from data processing system and as the same was brought in the form of separate parts as was revealed from the bill of entries in relation to those parts, has correctly classified the said item under Heading 52 and the same could not be found fault with. According to the learned Advocate for the respondent, the concerned authority having arrived at a finding that the description of the imported goods appear to be different from data processing machinery, has proceeded to classify the said item under Heading 52 rejecting the claim of the petitioners for refund. Further, drawing attention to the Rule 26 of Octroi Rules, he submitted it was mandatory for the petitioners to produce "B" form of the document in original regarding the payment of octroi duty and on account of failure thereof, if the authority has rejected the claim for refund, it cannot be found fault with. He further submitted that the decision in this matter will have wide repercussion, therefore, the Court should accept the contention on behalf of the respondent. Matter at the most could be remanded to the concerned authority to consider the claim of the petitioners and to decide the same on the basis of the material already produced or to be produced by the parties.

6. Perusal of the impugned order undoubtedly discloses an observation to the effect that the description of the article imported by the petitioners appear to be different from the data processing machinery and the said observation is preceded by the observation that "As regards the contention of the party that data processing machinery imported by them is classifiable under Entry 50 of the Octroi Schedule "H", in view of Judgment in Writ Petition No.330/68, is not proved, as per the literature, Bills of Entries and "B" form produced ...." It has also been observed that no document shows that what was imported in the Greater Bombay was data processing machinery. At the same time, it is undisputed fact that after the dismissal of Writ Petition No.1828/93, the petitioners had put forth their case regarding the goods being classifiable under Item No.50 under letter dated 28th August, 1995 wherein they have not only given the description of their product but it was specifically brought to the notice of the respondent that the relevant Bills of entries whereby the goods had been assessed by the custom authorities disclose the same to be data processing machinery and components and parts thereof. In support of the said claim in the said letter, the petitioners had also produced copies of the relevant bill of entries. In the impugned order, the concerned authority, apart from the observation that the petitioners have not proved from the literature, Bills of entry and "B" form the description of the article, has not taken pain to go through those documents produced by the petitioners or to discuss the contention of the petitioners in relation to the description of the item imported by the petitioners or in relation to the classification approved by the custom authorities with reference to the goods in question, nor has dealt with the aspect as to what way the product in its description differs from the one described by the custom authorities while clearing the goods on importation. It is also pertinent to note that it is not in dispute that the petitioners had produced all such material before the concerned authority at the relevant time. It is not only in this matter but we have observed in various other matters relating to octroi claim, the Corporation has avoided to file any affidavit in reply. It is to be noted that most of these matters relate to the years prior 1977 and we are in the year 2005. There is no explanation forthcoming on behalf of the Corporation inspite of specific query by the Court about reluctance on the part of the Corporation to file their affidavits in such writ petitions.

7. The records before us nowhere disclose that the concerned authority had applied its mind to the facts of the case or having analyzed the material placed before it in proper prospective before observing that description of the goods/article imported by the petitioners appear to be different from data processing machinery. On the other hand, entire material placed before us by the petitioners unequivocally discloses that the articles were nothing but data processing machineries and the components and parts thereof.

8. As regards the contention on the part of Corporation that whether the product is data processing machinery or not, is a disputed question of fact and in case, there is no proper finding in that regard by the concerned authority, it would be appropriate to remand the matter for ascertaining the same by the concerned authority, it is to be noted that once the description of the product disclosed by the petitioners is confirmed by the another revenue authority i.e. custom authority at the time of importation of said goods, it was the duty of the concerned authority to ascertain from the material placed before it as to whether the product is different from the one claimed by the petitioners. The impugned order inspite of the fact which runs into as many as eighteen pages, the concerned authority was not able to refer to any particular data which could reveal that the product imported by the petitioners is in any manner different from the data processing machinery is itself sufficient to reject the contention sought to be raised to the effect that it involves the disputed question of fact.

9. Perusal of the judgment of the learned Single Judge in Writ Petition No.330/68 delivered on 10th August, 1974 discloses detailed consideration of the differentiation between the items which could be classified under Heading 50 and those under 52 as also the justification by classification of the product of the nature imported by the petitioners being data processing machinery under heading no.50 and not under no.52 and the said decision having been not challenged by the respondent, it is not permissible for the respondent to take a different view in relation to the petitioners product which is similar and same as the one which was the subject matter of the said writ petition. The law in this regard is well settled by the consistent view taken by the Apex Court in Union of India & Ors. vs. Kaumudini Narayan Dalal & Anr. (2001) 249 ITR 219 (SC) [LQ/SC/2000/1948] , Commissioner of Income-Tax vs. Narendra Doshi (2002) 254 ITR 606 (SC), Commissioner of Income-Tax vs. Shivsagar Estate (2002) 257 ITR 59 (SC) [LQ/SC/2000/1105] and the latest being Burger Paints India Ltd. vs. Commissioner of Income-Tax, (2004) 266 ITR 99. [LQ/SC/2004/243] This being the law laid down by the Apex Court, it was but necessary for the respondent to disclose in the impugned order as to how the product of the petitioners is different from the one which was the subject matter of the Writ Petition No.330/68. A mere observation to the effect that the product imported by the petitioners appear to be different from data processing machinery, cannot be sufficient to by-pass the law laid down by that Court. We are aware that the statutory bodies are not trained to write the orders in the form of judgment written by the Judges. However, the authorities can not be permitted to arrive at fanciful finding without ascertaining the materials placed before it, without analysing the facts involved in the matter and merely to jump to the conclusion that the item appears to be different from one which was subject matter of a decided case.

10. It is absolutely necessary for the concerned authorities to arrive at clear finding based on proper appreciation of the evidence placed before it in relation to classification of the product. It is to be noted that the constitutional mandate does not permit the authorities to recover the tax otherwise than legally recoverable in accordance with the statutory provisions. Wrong classification would definitely result in illegal recovery of tax and therefore, it is the duty of the authority to be vigilant in not only recording proper finding about liability of the tax but also to be careful in not levying tax on the items which they cannot be subjected to levy of tax or which could be levied at a rate other than that the one sought to be levied.

11. For the reasons stated above, therefore, we do not find any substance in the contention sought to be raised on behalf of the respondents that the product imported by the petitioners should have been classified under 52. Hence, the impugned order as regard classification cannot be sustained and it is to be held that the product which was imported by the petitioners and which was the subject matter of the impugned order was classifiable under item no.50 and not under no.52.

12. Rule 26 of the Octroi Rules requires the party to produce adequate and cogent material in support of claim for refund to the satisfaction of the concerned authorities. Undoubtedly, the claim in that regard has to be genuine and the authorities must be satisfied about the correctness and genuineness of such claim before the refund is ordered. But mere failure of the party claiming refund, to produce the some original document that by itself cannot be a justification to reject the claim outright. There can be various reasons for non-production of the original document in a given case. In such a case, it would be appropriate for the authorities to require the party to establish his claim to be genuine by producing other cogent material in support of its claim. Certainly, procedural rules are meant to help the parties to justify their claim and to enable the adjudicating authority to arrive at the correct finding regarding such claim. Such rules cannot be interpreted in such a manner that it would defeat the very purpose for which the rules are made. Hyper technical approach on the part of the authorities would not only defeat very purpose of the rules but it can result in flouting the constitutional mandate which prohibits the revenue department from collecting tax otherwise than in accordance with the provision of law. Once it is found that the authority had collected any tax over and above which was legally due and payable, it is primary obligation of such authority to refund the same to the person from whom such tax is collected. Merely, because the party fails to produce the original document alongwith the application for refund or even thereafter that by itself cannot be a justification to reject such claim. In such matters, it will be the duty of the authority to give fair opportunity to the parties to establish the genuineness and correctness of such claim. This can be done by producing secondary evidence albeit to the satisfaction of the concerned authority. Needles to say that the satisfaction has to be arrived at on proper analysis of the evidence produced by the claimant and a proper application of mind thereto.

13. Being so, a mere failure on the part of the petitioners to produce "B" form or to produce original invoice or bill of entry in relation to some of the items, by itself cannot be a justification to reject the claim. The authorities will have to consider the other evidence produced by the petitioners and decide about the genuineness and correctness of the claim of the petitioners in that regard. In the case in hand, the petitioners were required to produce certain original documents and particularly bill of entry No.6711 dt.17.7.93, No.176, 180, 181 and 179 all dated 2.7.93 and inspite of that, the petitioners having not being able to produce certain original documents, had produced secondary document in the form of actual payment for the octroi duty. There is no consideration of such material by the respondents at the time of rejecting the claim of the petitioners. The impugned order discloses that mere failure on the part of the petitioners to produce "B" form, has been the cause for rejection of the claim. Such a hypertechnical approach cannot be appreciated and therefore, on that count, rejection cannot be sustained.

14. In the result, therefore, the classification of the petitioners product which was subject matter of the refund claim in terms of order dated 11th August, 1995 in Writ Petition No.1828/93 and dealt with in the impugned order, cannot be sustained and it is to be dealt with as the product classifiable under Entry No.50 of Schedule "H" of the said Act and the octroi duty having already been paid under protest on the basis of its classification under Entry No.52, the excess amount paid is liable to be refunded to the petitioners. In case, any refund claimed in that regard as if the original documents are not produced in relation to those items, the petitioners are at liberty to produce any further document and the respondent shall consider those documents so produced in that regard and decide about the claim for refund based on the classification of the product under Entry No.50 of the Schedule "H" of the said Act, within a period of eight weeks from today and refund the amount within two weeks from the date of decision. Rule is made absolute accordingly with no order as to costs.