Kan Singh, J.
1. I This is a defendants' appeal directed against the judgment and decree of the learned Additional District Judge, Sikar dated 244.69 awarding a sum of Rs. 668/ against the defendants appellants on account of octroi duty for the liquor purchased by the defendants-appellants from the Government warehouse at Sikar.
2. The Municipal Council, Sikar alleged that the defendants were carrying on the vend of country liquor within the municipal limits of Sikar Between July, 1965 the defendants had obtained liquor worth Rs. 1,05,-557.17 paise from the Government warehouse, but had not mid octroi duty to the Municipal Council according to law at the rate of 2% The defendants admitted that they were vending liquor within the limits of the Municipal Council, Sikar. They also admitted to have obtained liquor of the value as alleged, but denied their liability to pay any octori duty. The contended that octroi duty was chargeable on goods that are brought into the municipal limits for consumption, use or sale therein and as the defendants had never brought this liquor into the municipal limits, but had only purchased it from Govt, warehouse, they had not become liable to pay octroi on the aforesaid liquor.
3. The learned Additional District Judge framed the following issues:
1. Whether from July, 1965 to October, 1965 the defendants got issued from the Sikar warehouse liquor for sale and that the plaintiff is entitled to charge octroi duly at 2 percent?
2. Whether the plaintiff is entitled to a decree for Rs. 2111.25
It was not disputed that the Government warehouse at Sikar was situated within the municipal limits As already observed, the defendants too had not disputed the quantity of liquor obtained by them or its value. In the alternative an argument was also advanced on behalf of the defendants that they were not liable to pay the octroi duty even if their liability is otherwise established for the period prior to the Government notification dated 22.7.65. The last mentioned contention prevailed with the learned Additional, District Judge and he assessed the defendants' liability at Rs. 698/-. Regarding the liability of the defendants the learned Judge held that as they had obtained liquor, from the warehouse they are liable to pay octroi duty in terms of the Government notification dated 22.7.65. The essentials of the judgment, of the learned Additional District Judge are contained in the following passage:
It is an admitted fact that the Govt. warehouse is within the municipal; limits of the Municipal Council, Sikar and that country liquor worth Rs. 105557, 17 Np. was issued to the defendants, the only question that remains for decision is whether the plaintiff is entitled to recover the amount from the defendant. In this connection the plaintiff drew our attention to the Government notification No. Tax(A)F. (71)(32)(AF)DLH 156 dated 22.7.65. In this notification the Government has authorised the Municipalities to charge octroi duty at the rate of 2% oft the issue price of the country liquor brought in the Municipal limits for consumption, experimentation and for sale. From a reading of this notification it seems that the condition for the levy of the octroi duty is the bringing of the country liquor within the municipal limits. The plaintiff counsel has drawn our attention to Rule 8 of the Rajasthan Municipalities (Octroi) Rules, 1962. In this rule it is the duty of the importer to inform the Municipal authorities for bringing or receiving dutiable goods within the municipal limits. When we read both of them together it follows that it makes no difference whether the warehouse is situated within the municipal limits or not the duty is leviable. At the same time the counsel for the defendants has drawn our attention to Section 104 of the Rajasthan Municipalities Act 1959 Under Section 104 the Municipality can under law levy taxes at such rate and from such date as the State Govt, may direct by notification in the official Gazette and in such a manner as is laid down in the Act and also under the rule made by the Govt. In the Sub-clause (2) there is a reference to the levy of octroi duties. This section does not help the defendant. Reading the notification and Rule 8 it seems to be the intention of the legislature that whatever country liquor is consumed, brought for experiment purpose and brought for sale is leviable under the law. Under Rule 8, the duty is chargeable from the person receiving dutiable goods. As such the Govt. is not liable for this octroi duty, as it is not denied that the defendant did not receive the country liquor.
4. The above passage shows that the learned Additional District Judge was labouring under a misconception. The liability to pay octroi duty is created by Section 104 of the Rajasthan Municipalities Act, 1959, hereinafter to be referred as the 'Act'. It, inter alia, provides that every Board shall levy at such rate and from such date as the State Government may in each case direct by notification in the Official Gazette and in such manner as is laid down in this Act and as may be provided in the Rules made by the State Government in this behalf an (sic) goods and animals brought within the limits of the Municipality for consumption, use or sale therein. This section which is the charging section makes it obligatory for the Municipal Boards to levy (sic) duty on goods and animals brought within the limits of Municipality for (sic), use or sale therein, but the rate at which and the date from which the duty has to be charged will have to be provided by a Government notification. Then the manner of collecting such duty has to be in accordance with the provisions of the Act and the Rules made by the State Government in this behalf Thus, it is the bringing within the Municipal limits of the goods and animals for consumption, use or sale therein that attracts the incidence of (sic) duty. Necessary it is the person who brings the goods or animals within the municipal limits who is liable to pay octroi duty. The admitted position is that the defendants had not brought the liquor within the municipal limits, but they had purchased the same from the Government warehouse. In other words, it is the Government or their agents who had brought the liquor within the municipal limits to the warehouse situated therein and the defendants had only taken the liquor from the Government warehouse. Thus the charging section namely, Section 104 of the Act does not create any liability on the defendants. Rules or notification issued tinder the Act, to my mind, would not create any liability where the Act had created none. Even so I have gone through the Government notification on which learned Additional District Judge has placed reliance. It is Government notification dated 22-7-65. It reads as follows:
t;iqj tqykbZ 22]1965
la[;k VSDl ,,Q7132,0,Q0Mh0,l0ch0@56
,rn~ lEcU/kh jkT; ljdkj }kjk nh x;h leLr vkKkvks dk vf/kdze.k djrs gq, jktLFkku uxj ikfydk vf/kfu;e 1959 jktLFkku vf/kfu;e la0 38 l= 1959 dh /kkjk 104 ds [k.M 2 }kjk iznRr 'kfDr;ks dk iz;ksx djrs gq, jkT; ljdkj ,rn~}kjk funsZ'k nsrh gS fd ns'kh 'kjkc ij tks fd jktLFkku ds uxj ikfydk e.M+y dh lhekUrjxr miHkksx] iz;ksx rFkk fodz;kFkZ ykbZ tkosxh uxj ikfydkvks ifj'kn e.M+y }kjk bl vf/klwpuk ds jktLFkku jkt i= es izdkf'kr gksus dh frfFk l fujxeu ewY; vku nh b';w izkbl 2 :0 izfr lSdM+k dsk nj ls pqaxh dj olwy fd;k tkosxk A
jkT; ljdkj dh vkKk ls
ch0 ,e0 esgrk
This notification has only authorised the Municipal Boards to collect octroi duty on country liquor coming into the municipal limits for consumption, use or sale therein. It does not say and could not possibly say that a person who purchases liquor from the Government warehouse shall be liable to pay octroi duty. Rule 8 of the Municipalities (Octroi) Rules, 1962 too does not create any liability on a person who purchases liquor from a Government warehouse situated within the municipal limits. This rule casts a duty on a person bringing or receiving dutiable goods to communicate all such information or exhibit or produce all such bills, invoices, receipts or other documents of a like nature relating to the goods to enable the Octroi Officials to asses and collect the amount of octroi leviable in respect of such goods. This rule too does not create liability to pay octroi on the person who purchases the goods within the municipal limits but who had himself not imported such goods into the municipal limits. Thus, by no stretch of imagination could the defendants have been held liable to pay octroi duty to the Municipal Council in respect of the country liquor purchased by them from the Government warehouse.
5. In the result, I allow this appeal, set aside the judgment and decree of the learned Additional District Judge dated 24-4-69 and hereby dismiss the suit. As the Municipal Council, Sikar has not appeared to contest the appeal, the appellants shall get as costs only the court fee paid by them in this Court.