JUDGMENT - Dr. B.P. SARAF, J.:-By this writ petition, the petitioner has challenged the order of the Deputy Assessor and Collector (Octroi) of the Municipal Corporation of Greater Bombay ("Corporation" hereinafter) rejecting her claim for refund of octroi paid by her in respect of goods which were later re-exported from Bombay on the ground that the rate of octroi prescribed under Item No. 8 of Schedule `H' for the goods in question was "Non-refundable". 2. The petitioner carries on business in the name and style of "Sun Export Corporation". Sometime in August, 1989, the petitioner imported from USA a consignment of 880 bags of "Almonds" which arrived at the Port of Bombay per the vessel "Sea Navigare". The goods were brought by the petitioner into the limits of Greater Bombay and at that time octroi at the prescribed rate was paid by the petitioner to the Corporation which amounted to Rs. 47,856/-. Thereafter on or about 23rd August, 1989 the petitioner exported the said consignment of almonds from Bombay to New Delhi. The petitioner claimed refund of an amount equivalent to 933/4 percent of the amount of octroi paid by him on the said consignment under section 195(1) of the Bombay Municipal Corporation Act, 1888 ("the Act") and the rules framed thereunder. An application was made for the purpose in the prescribed form on 23rd September, 1989. The said application was, however, rejected by the Deputy Assessor and Collector (Octroi) by an endorsement on the application itself on the ground that while fixing the rate of octroi on almonds under Item 8 of the Schedule `H', the Corporation had made the same non-refundable. The petitioner is aggrieved by this action of the Deputy Assessor and Collector (Octroi), Bombay. 3. The contention of the petitioner is that the scheme of the Act is clear. It permits the Corporation to levy octroi on entry of the goods into Greater Bombay for consumption, use or sale therein at the rates prescribed by it not exceeding those specified in Schedule 'H' of the Act. Section 128(1)(a) empowers the Corporation to prescribe the rates of octroi subject to the limits specified in Schedule 'H'. It may be expedient to set out some of the provisions, so far as relevant, for the purpose of the present controversy. Section 128(1)(a) empowers the Corporation to prescribe the rates of octroi subject to the limits specified in Schedule 'H'. It may be expedient to set out some of the provisions, so far as relevant, for the purpose of the present controversy. Section 192 deals with the powers of the Corporation to levy octroi on the entry of articles into Greater Bombay for consumption, use and sale therein. This section, so far as relevant, as it stood at the material time, reads as under : 192. Octroi on what articles and at what rates leviable : (1) Except as hereinafter provided, a tax, at rates not exceeding those respectively specified in Schedule H, shall be levied in respect of the several articles mentioned in the said Schedule, or so many of them or such of them as the Corporation shall from year to year in accordance with section 128 determine, on the entry of the said articles into Greater Bombay for consumption, use or sale therein. The said tax shall be called an "octroi". (2) ........ (3) In determining the articles to be taxed, the Corporation may select all or any one or more of the articles specified in any entry in the said Schedule, and in determining the rates at which articles are to be taxed, the Corporation may fix different rates for different articles comprised in the same entry. (4) On a request being made by the Corporation, the State Government may, by notification in the Official Gazette, from time to time vary the rates specified in Schedule H; and where the rates are increased, the increased rates shall not be more than twice the rates specified in that Schedule on the commencement of the Bombay Municipal Corporation (Second Amendment) Act, 1964, or 7 per cent ad valorem, whichever is less; and thereupon, the Schedule shall be deemed to have been amended accordingly. (5) Notwithstanding anything contained in this section, where the tax is, immediately before the commencement of the Bombay Municipal Corporation (Second Amendment) Act, 1982, leviable by the Corporation on any article or articles mentioned in Schedule H on any basis other than on ad valorem basis, the Corporation may, with the previous sanction of the State Government, levy the tax on such article or articles on ad valorem basis, at such rate of tax and subject to such conditions (if any) as may be specified by the State Government, by notification published in the Official Gazette; and thereupon the Schedule shall be deemed to have been amended accordingly : Provided that the rate of ad valorem tax leviable - (i) on articles mentioned in Entries 1, 2(a) and (b), 6, 11, 12, 13, 14, 22(a) and (aa) and 23 in Schedule H shall not exceed one per cent; (ii) on articles mentioned in entries 4, 5, 9, 10, 18, 19, 20, 24, 27, 38, 39, 42, 47, 48, 49 and 53 in the said Schedule shall not exceed four per cent; and (iii) on articles mentioned in entries 55, 59 and 60 in the said Schedule shall not exceed seven per cent. Section 128 provides for fixing rates of municipal taxes including octroi. It reads as under: 128. Fixing rates of municipal taxes and of fares and charges of Bombay Electric Supply and Transport Undertaking : (1) The Corporation shall, on or before the (Twentieth day of March) after considering the Standing Committee's proposals in this behalf,- (a) determine, subject to the limitations and conditions prescribed in Chapter VIII, the rates at which municipal taxes shall be levied, and the articles on which octroi shall be levied, in the next ensuing official year; and (b) approve, subject to the limitations and conditions which may have been prescribed by or under any of the enactments or any licence referred to in Clause (i-a) of sub-section (2) of section 126-B, the rates at which the fares and charges in respect of the Bombay Electric Supply and Transport Undertaking shall be levied. (2) Except under sections 134, 196, 460-H and 460-I, the rates so fixed and the articles so appointed shall not be subsequently altered for the year for which they have been fixed. Section 195 provides for refund of octroi on export of goods from Greater Bombay. (2) Except under sections 134, 196, 460-H and 460-I, the rates so fixed and the articles so appointed shall not be subsequently altered for the year for which they have been fixed. Section 195 provides for refund of octroi on export of goods from Greater Bombay. It is in the following terms : 195. Refund of (octroi) on export : (1) When any article upon which (octroi) has been paid shall be exported from Greater Bombay such amount of tax levied as is specified in sub-section (1-A) shall, subject to the provisions contained in sub-sections (2) and (3), be refunded. (1-A) The amount of tax to be refunded under sub-section (1) shall be 933/4 per centum of octroi levied upon the articles. The balance of 61/4 per centum shall be credited to the municipal fund as a fee for collection and refund. (2) Such refunds shall be paid under such rules as the Commissioner, with the approval of the Standing Committee, shall from time to time frame in this behalf : (3) Provided that- (a) any article imported into Greater Bombay and not exported within six months of such entry of the article shall, unless the contrary is proved, be deemed to have been imported for consumption, use or sale in Greater Bombay ; (b) a refund shall be claimable on all flour exported from Greater Bombay without proof of the importation of the same into Greater Bombay, equal to 705/16 per centum of the amount of tax at the time being leviable on the grain from which such flour has been prepared; (c) no refund shall be paid unless the same is applied for within one month from the date of exportation or within such longer period as the Commissioner may in any special case or class of cases allow ; (d) no refund shall be made of any less amount than ten rupees; (e) no rule framed by the Commissioner under this section shall have effect unless and until it is confirmed by the State Government. 4. A conjoint reading of the above sections makes it clear that octroi is leviable on entry of certain goods into Greater Bombay for "consumption, use and sale therein". The maximum rate of octroi than can be levied on various articles have been specified in Schedule `H'. 4. A conjoint reading of the above sections makes it clear that octroi is leviable on entry of certain goods into Greater Bombay for "consumption, use and sale therein". The maximum rate of octroi than can be levied on various articles have been specified in Schedule `H'. The Corporation has been given power under section 128 of the Act to prescribe the articles on which the octroi shall be levied and the rates at which it shall be levied. This, however, is subject to the limitations and conditions prescribed in Chapter VIII of the Act which includes sections 192 and 195. Section 195 deals with the situation where any article on which octroi had been paid at the time of its entry in Greater Bombay is later exported from Greater Bombay. In such cases, it provides that such amount of tax as specified in sub-section (1-A) of the said section subject, however, to the provisions contained in sub-sections (2) and (3) thereof, shall be refunded. Sub-section (1-A) provides that 933/4 per centum of octroi levied upon the article shall be refunded under sub-section (1) and the balance 61/4 per centum shall be credited to the Municipal fund as a fee for collection and refund. 5. From the perusal of the scheme of these three sections, it is clear that in case of export of goods on which octroi has been paid at the time of entry out of Greater Bombay, the amount of octroi collected is to be refunded save and except 61/4 per centum thereof which is retained as a fee for collection and refund. This is so because octroi is essentially a duty on entry of goods within the territorial jurisdiction of the Corporation. A provision might have been made in the law for postponment of payment of octroi at the entry point on furnishing of declaration that the goods were intended for the purpose of re-export but instead of doing so, the law provides for payment of octroi on all goods chargeable thereto at the entry point and refund of the same, except a small fraction thereof which is retained as a fee for collection and refund, in the event of export of such goods from Greater Bombay. The maximum rate of octroi that can be levied by the Corporation on various items has been fixed by the legislature itself and the amount that can be retained in case of export of duty-paid goods has also been specified as 61/4 per centum. The maximum rate of octroi that can be levied on almonds is 7 per centum (Item 8 of Schedule 'H'). Even if this rate would have been levied by the Corporation, in the event of export of such goods, the Corporation would have been entitled to retain only 61/4 per centum thereof i.e. O. 433/4 per centum ad valorem as administrative charges. The Act nowhere empowers the Corporation to prescribe non-refundable rates of octroi. In the instant case, the rate of octroi prescribed for almonds is : Edibles - Bacon and ham, table butter, butter other 7 per cent ad than table butter, margarine, dried or valorem. preserved fruits and nuts excluding fresh fruits and 31/2 per cent betel nuts, canned fish, cheese, confectionery, jams ad valorem and jellies, milk condensed and preserved, all sorts (non-refundable) for of farinaceous foods, pickles, cocoa, cocoa beans and Dry Fruits and Dried Nuts. chocolates, biscuits and cakes, lard, or edible animal fat, 3 per cent ad valorem mawa, milk cream, chakka and curds, fruit juices and for frozen mutton all beverages, Glucose, Dextrose or any fruit sugar, carcasses. oilman stores (except edible oils), preserved 3 per cent ad valorem for provisions, baking or curry powder, sachharin, biscuits costing not more all kinds of food colours and essences, glucose than Rs. 16 per kg. of all other kinds, malt extract, honey, papad, meat-fresh or preserved for whatever use, and all kinds of food or drink not specifically provided for, excepting whole milk, toned milk and skimmed milk powder. (Emphasis supplied) 6. The contention of the learned Counsel for the Corporation is that the rate of octroi on dry fruits and dried nuts which includes almonds has been prescribed as 31/2 per cent ad valorem (non-refundable). It is fairly stated by the learned Counsel that it is the only item in respect of which a non-refundable rate of octroi has been prescribed. In respect of other items the rates are usual rates subject to the refund provision contained in section 195. It is fairly stated by the learned Counsel that it is the only item in respect of which a non-refundable rate of octroi has been prescribed. In respect of other items the rates are usual rates subject to the refund provision contained in section 195. This distinction, according to the learned Counsel, was made at the instance of the Bombay Kharek Bazar and Meva Merchants' Association Indo Afghanistan Merchants Chamber of Commerce which are recognised organisations of Dry Fruits dealers. Counsel submits that the Corporation intended to prescribe a rate of 7 per cent but at the request of the association it agreed to prescribe 31/2 per cent (non-refundable). In other words, the submission of the learned Counsel is that to facilitate the working of dealers in dry fruits and dried nuts at their request 'non-refundable' rate was prescribed. The learned Counsel referred to the following resolution of the Standing Committee of the Corporation dated 16 March, 1984 : "Ref : (i) Letter to the Chairman, S.C., dated 15-11-1983, from Shri Baburao Shelar, Municipal Councillor-Forwarding therewith a letter, addressed to the Chairman, S.C., dated 22-10-1983, from Shri T.M. Sanghvi, President, Indo-Afghanistan Merchants' Chamber of Commerce; and (ii) M.C.'s Report, No. MCP/7945 (OCT/485/HCCI), dated 27-2-1984. That it be recommended to the Corporation with reference to their Resolution, No. 1586, dated the 25th March, 1983, that in modification of previous orders passed in the matter, sanction be given, under sections 128 and 192(4) of the B.M.C. Act, to octroi being levied on Dry Fruits and Dried Nuts at a concessional rate of 31/2 per cent ad valorem non-refundable instead of the present rate of 7 percent ad valorem (refundable) with effect from 1st April, 1984 as proposed and in reply to this letter, dated the 15th November, 1983, Shri B.S. Shelar, Municipal Councillor, be informed of the orders passed in the matter. 2. That this Resolution be brought as Urgent Business before any current Meeting of the Corporation." The counsel submits that having regard to the above background the claim of the petitioner has been rightly rejected. 7. The learned Counsel for the petitioner, on the other hand, submits that the entire submission of the learned Counsel for the Corporation is contrary to the very scheme of the Act and directly in conflict with the provisions of section 195 of the Act. 7. The learned Counsel for the petitioner, on the other hand, submits that the entire submission of the learned Counsel for the Corporation is contrary to the very scheme of the Act and directly in conflict with the provisions of section 195 of the Act. It is submitted that the petitioner is not a member of any of the associations and Corporation cannot deny his claim which is payable in accordance with law on the basis of any understanding arrived by it with any Association of Dry Fruit Merchants' to which the petitioner was not a party. The learned Counsel submits that even if there is such an agreement, in case of conflict between the resolution of the Corporation and the provision of law, law will prevail over the resolution. 8. I have carefully considered the rival submissions. I find merit in the contention of the learned Counsel for the petitioner that there being clear provision in section 195 of the Act for refund of 933/4 per centum of the octroi levied by the Corporation, the Corporation has no power to reject the claim on the ground that they have prescribed the rate of octroi as 'non-refundable'. By using the expression 'non-refundable', the Corporation can not act contrary to provisions of section 195 of the Act and refuse to refund the octroi collected by it on goods exported from Greater Bombay which it is obliged to refund under the statutory provision contained in section 195. 9. In that view of the matter, I am of the clear opinion that the action of the Corporation in refusing to refund the octroi to the petitioner is contrary to section 195 of the Act and the same is therefore not tenable in law. The impugned order of the Deputy Assessor and Collector (Octroi) dated 2 December, 1989 is therefore set aside and the Corporation is directed to refund the octroi to the petitioner to the extent specified in section 195 of the Act. The refund may be made within three months from today. The petitioner shall produce the necessary documents for the purpose, if so required. 10. In the result, the writ petition is allowed. The rule is made absolute. 11. Under the facts and circumstances of the case, there shall be no order as to costs. 12. Certified copy expedited. Petition allowed.