JUDGMENT 1. - Petitioner firm is engaged in manufacturing aerated water at its factory situated at Vishwakarma Industrial Area, Jaipur. In order to carry out its business the petitioner has been importing raw material and packing material in the form of empty bottles and crates. Aerated water manufactured by the petitioner Company is filled in the bottles and according to the petitioner these bottles are returned to the petitioner firm for refilling. These bottles are neither sold nor are they consumed or used by anybody. According to the petitioner since. 1965 no octroi has been claimed by the Municipal Council, Jaipur on these empty bottles. However, in the year 1987 some of the officers of the Municipality made attempt to charge octroi on empty bottles. Revenue Officer of the Municipality then issued directions that octroi be charged only on new bottles. A specific order dated 21.4.89 (Annexure 2) was issued for not charging octroi one empty bottles which arc returned for being refilled. However, after a period of over two years the respondent Municipality again started collecting octroi and it is this action of the Municipality which has been made subject matter of challenge in this writ petition filed by the petitioner under Article 226 of the Constitution of India. Petitioner has questioned the levy of octroi by asserting that this action of respondent No. 2 is without jurisdiction. 2. In reply, respondent No. 2 has contested petitioner's assertion that the same very bottles are returned to the petitioner firm for refilling. It has been alleged by respondent No. 2 that every time the petitioner has been using bottles for selling its product and the petitioner was taking undue advantage by not paying octroi. While staling that Annexure-2 was not in accordance with law, respondent Municipality stated that use of empty bottles shows that the same were used again by the manufacturer and, therefore, octroi duty is chargeable. The respondent has justified levy of octroi on the empty bottles by making reference to Section 104(2) as amended in the year 1990. It has also been stated by respondent No. 2 that notice have been issued for realisation of octroi in accordance with the amended Section 104(2). Argument of Shri Mathur, learned counsel for the petitioner, is that respondent No. 2 does not have jurisdiction to levy and collect octroi on the empty bottles received by it at Jaipur. It has also been stated by respondent No. 2 that notice have been issued for realisation of octroi in accordance with the amended Section 104(2). Argument of Shri Mathur, learned counsel for the petitioner, is that respondent No. 2 does not have jurisdiction to levy and collect octroi on the empty bottles received by it at Jaipur. According to Shri Mathur no element of consumption, use or sale in involved in the receipt of bottles. Shri Bhandari, learned Additional Advocate General, and Shri Tiwari, learned counsel for respondent No. 2, argued that as per amended Section 104, the word 'use' has to be given a wider meaning and, therefore, the use of empty bottles for the purpose of refilling, will fall within the scope of Section 104 of the Rajasthan Municipalities Act. 3. In order to appreciate the rival contentions it will be appropriate to refer to Entry 52 of II List of VII Schedule of the Constitution of India as well as Section 104(1)(1) and 104(1)(2), as it stood prior to amendment and as it stands after amendment :Schedule-VII "52. Taxes on the entry of goods into a local area for consumption, use or sale therein. Taxes on the entry of goods into a local area for consumption, use or sale therein. 1959 Act prior to amendment104 Obligatory taxes (1) 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, the following taxes, namely : (1) a tax on the annual letting value of buildings or lands or both, situated within the municipality; (2) an octroi on goods and animals brought within the limits of the municipality for consumption, use or sale therein; After amendment104 Obligatory taxes (1) 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, the following taxes, namely : (1) a tax on the annual letting value of buildings or lands or both, situated within the municipality; (2) an octroi on goods and animals brought within the limits of the municipality for consumption or use or sale therein. Explanation-I. For the purpose of this sub-section meaning of the word `consumption' shall, with reference to, goods and animals brought within the limits of the municipality include the goods brought inside the area by any person to be delivered to another for using them up whether or not that other person is the ultimate consumer of the goods or animals so delivered in that area. Explanation-IL For the purpose of this sub-section meaning of the word 'use' shall, with reference to goods and animals brought within the limits of the Municipality include the goods brought inside the area for use of any other person whether or not that other person ultimately consumes or uses up the goods or animals. Explanation-HI. Explanation-IL For the purpose of this sub-section meaning of the word 'use' shall, with reference to goods and animals brought within the limits of the Municipality include the goods brought inside the area for use of any other person whether or not that other person ultimately consumes or uses up the goods or animals. Explanation-HI. For the purpose of this sub-section, sale of goods or animals shall be deemed to have taken place within the municipal limits if these were brought by the seller within the municipal limits and a contract of sale as contemplated by section 5 of the Sale of Goods Act, 1930 has taken place between the buyer and seller within the municipal limits whether or not the delivery of payment was deferred at the time of entering into the contract. Deferment of such delivery or payment or both shall be deemed to be an act of postponement of the delivery or payment of both as contemplated by the said section 5 of the said Act of 1930." 4. A perusal of Section 104(1)(2) clearly shows that every Municipality is required to 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 the Act and as may be provided in the rule made by the State Government in this behalf, an octroi on goods and animals brought within the limits of municipality for consumption, use or sale therein. 5. In Burmah-shell Oil Storage and Distributing Company of India Ltd., Belgaum v. Belgaum Borough Municipality, AIR 1963 SC 906 , their Lordships of the Supreme Court were concerned with the interpretation of the words `consumption' and 'use' used in Bombay Municipal Boroughs Act, 1925. After making detailed discussion on the subject, their Lordships held that the expressions 'use' and `consumption' together connote the bringing in of goods and animals not with a view to taking them out again but with a view to their retention either for use when used them up or for consumption in a manner which destroys, wastes or uses them up. It was held that the word 'consumption' must receive a wider meaning than merely the act of consuming as is generally understood. It was held that the word 'consumption' must receive a wider meaning than merely the act of consuming as is generally understood. Their Lordships further held that the goods brought for re-export by the Company or through dealers outside the area will entitle the Company to refund of tax. 6. In Firm Ramsarandas v. State of Rajasthan, S.B. Civil Writ Petition No. 875/79. D/d. 8.10.80 , a learned Single Judge held that where empty bottles were brought within the local limits of the Municipality, after use by the consumers, for the purpose of refilling, octroi was not chargeable. The learned Single Judge further held that the element of retention of bottles within the municipal limits may levy octroi. 7. In Hamid Khan v. Municipal Council, Sriganganagar, S.B. Civil Writ Petition No. 1625 of 81. D/d. 1.3.82 D.P. Gupta, J., as he then was, held that in case the petitioner submits a declaration under clauses (ii) and (iii) of Rule 9(1) of the Rajasthan Municipalities (Octroi) Rules, 1962, then the Municipality was not entitled to charge octroi on empty bottles imported by the petitioner within the municipal limits on the ground that such empty bottles were meant for temporary retention and eventual transportation outside the municipal limits, after being refilled. The same view has been reiterated in S.B. Civil Writ Petition No. 2160 of 86, Ganganagar Sugar Mills v. Municipal Council, Mandore, D/d. 29.7.86 . 8. In M/s. Jai Hind Bottling Co. v. Nagar Mahapalika, 1978 Tax Law Rep. (NOC) 102 , it was held that where the bottles used by firm for bottling soft drinks were specially manufactured and were required to be returned by the wholesale distributors of such drinks to the firm under an agreement, after the soft drinks had been sold or consumed, such use of empty bottles was not covered by the Entry 'empty bottles' in the notifications dated 1.4.73 and 1.9.76 issued in connection with the levy of octroi. 9. 9. In J.K. Synthetics v. Municipal Council , Kota, a learned single Judge of this Court made reference to large number of decisions of the Supreme Court and this Court and held that once an item involved in the manufacture of goods is used, there cannot be a second time levy of octroi on such article Learned Single Judge specifically approved the ratio of decisions in Ramsarandas v. State (supra), Hamid Khan v. Municipal Council, Sriganganagar (supra) and further observed that rules should be amended so as to avoid charging of double octroi. In Tata Engineering & Locomotive Co. Ltd. & another v. The Municipal Corporation of the City of Thane & others, AIR 1992 SC 645 , their Lordships of the Supreme Court held that where octroi was paid on some goods and they were exported, the municipality was bound to refund the amount of octroi collected by them. 10. In the light of these decisions it must be held that once the bottles have already been subjected to levy of octroi, they cannot be subjected to charge of octroi once again merely because the empty bottles are returned to the manufacturer for the purpose of refilling. The word 'use' as set out in the amended Section 104, has to be given a meaning in consonance with Entry 52 of II list of VII Schedule of the Constitution. Any other meaning to the word 'use' would render the Section itself unconstitutional. 11. Thus, it is held that the Municipal Council has acted illegally in charging octroi from the petitioner on the bottles on which octroi had been paid earlier. The M Municipal Council (now Corporation) is directed not to levy and collect octroi on the empty bottles which are used by the petitioner for the purpose of refilling of soft drinks. In so far as the question of refund of octroi realised by the Municipality is concerned, the same shall be governed by the stay order passed by the Court on 9.7.1991 and the respondents are directed to take action in accordance with the stay order dated 9.7.1991. 12. Parties are left to bear their own costs.Petition Allowed *******