JUDGMENT : R.K. Dash, J. - M/s. Rungta Sons Private Ltd. owns mines in the districts of Keonjhar and Sundargarh and by virtue of agreements it has been supplying ores to outside purchasers. So far as the mines in the district of Keonjhar are concerned, the ores are carried either by road transport and/or railway using the rail head/railway siding at Barbil. Since ores are transported through Barbil Municipal area, the Municipal authority has been levying and collecting octroi on sales effected within the Municipal jurisdiction even though the ores sold are meant to be consumed elsewhere. Levy of such tax although has no sanction under any statute, the petitioner has been complying with such illegal demands of the municipality on the apprehension that transportation of ores may be brought to a halt by the authority. Referring to a judicial pronouncement of the Hon'ble Supreme Court reported in Entry Tax Officer, Bangalore Vs. Chandanmal Champalal and Co. Etc. Etc. where it has been ruled that goods meant to be transported for use or consumption elsewhere shall not be levied with octroi tax, the petitioner made a request to the municipality for immediate stoppage of levy of octroi, vide its letter under Annexure-2 series but it was not heeded to. Instead, the municipality enhanced the octroi and notified the same vide Annexure-3 series. Petitioner, therefore, has urged that since the ores sold for use and consumption by the customers outside Barbil Municipal area, levy and collection of octroi on sale of such goods is illegal and contrary to law and so the Municipal authority be ordered to desist from further levy of octroi on sales and to refund the amount already collected. 2. Barbil Municipality, opp. party No. 2, through its Executive Officer has filed counter denying most of the averments made in the writ application. Admitting levy and collection of octroi, it has emphatically urged that the petitioner-company has been selling ores within Municipal limit of Barbil for use and consumption within that limit. Section 131 (1) (kk) of the Orissa Municipal Act (for short, 'the Act') provides that a Municipal Council may impose octroi on goods brought within the limits of the Municipality for consumption, use or sale therein. To give effect to the said provision Barbil Municipal Council framed bye-laws of its own. Section 131 (1) (kk) of the Orissa Municipal Act (for short, 'the Act') provides that a Municipal Council may impose octroi on goods brought within the limits of the Municipality for consumption, use or sale therein. To give effect to the said provision Barbil Municipal Council framed bye-laws of its own. It is provided in the said bye-laws that when the goods are brought within the Municipal area, the person-in-charge thereof shall give a declaration in a prescribed form whether the goods are intended for consumption, use or sale within the limits of the Municipality or for immediate export or for temporary retention within the Municipal area and eventual export. If the goods are intended for immediate export, the same shall not be subject to tax at the octroi check-post and after the declaration in prescribed form is made, a transit pass shall be given by the Octroi Collector. The goods will then be allowed to be transported through the Municipal area under the escort of a Peon and as soon as the same go out, the transit pass will be surrendered to the Octroi Collector of the check-post. The bye-laws further provide that if the goods are detected to have been kept within the Municipal area for more than 24 hours, the same will be charged with octroi tax and fine. In view of such provisions, petitioner is required to submit declaration in the prescribed form and obtain transit pass as and when it intends to export ores outside municipal limit. At no point of time asserts the opp. party No. 2, the petitioner resorted to such procedure if at all it transported ores to outside consumers. The further case of the opp. party No. 2 is that the petitioner-company has been storing ores within Barbil Municipal area for months together and transacting business. In the facts and circumstances, therefore, levy and collection of octroi being in accordance with the provisions of the Act and the Bye-laws as aforesaid, no interference is called for in the present proceeding. 3. In view of the pleadings of the parties, the crux of the issue is whether the ores brought within Barbil Municipal area by the petitioner and sold to different buyers who transport the same for use and consumption outside the said Municipal area are liable to be levied with octroi duty. It need be mentioned that Barbil Municipality-opp. 3. In view of the pleadings of the parties, the crux of the issue is whether the ores brought within Barbil Municipal area by the petitioner and sold to different buyers who transport the same for use and consumption outside the said Municipal area are liable to be levied with octroi duty. It need be mentioned that Barbil Municipality-opp. party No. 2 has not specifically pleaded in the counter that there are industries within the Municipal area to which iron ores are supplied for use and consumption. On the other hand, it is the specific case of the petitioner that ores are transported to outside purchasers and since the same are not used and consumed within the Municipal area, levy of octroi duty is contrary to law. The petitioner in support of its case that ores are sold for export to outside Barbil Municipal limit has filed a copy of agreement, Annexure-1 entered into between it and the MMTC. The aforesaid agreement reveals that MMTC purchases ores from the petitioner and transports to buyers of foreign countries through Paradeep Port. This part of the petitioner's case has not been controverted by opp. party No. 2. It has rather admitted that ores transported through railway wagons from Barbil railway station which is situated within Barbil Municipal limits are levied with octroi and accordingly octroi is being collected from the petitioner as par the Government Order vide Annexure-B/2. Government of Orissa in Urban Development Dept. letter dated 11th October, 1972, Annexure-B/2 intimated the District Magistrate, Keonjhar that sale of goods effected at the railway station or railway wagons are liable to be levied with octroi. It would be useful to refer the said letter, relevant for the purpose, as under : "3. It appears from the letter No. 2787 dated 24-11-1971 of the Executive Officer, Barbil Municipality to your address that the mine owners transport the minerals at Barbil Railways Station in three different methods (1) Ex-plot basis (ii) F. O. R. basis and (iii) F. O. B. basis." 4. According to ex-plot basis, the mine owners sell the minerals to MMTC on the railways plot and latter takes the responsibility of transporting through railways wagons. The sale of minerals of the mine owners ends on the railway plot which is within a Municipal area before the minerals are loaded in the railway wagons. 5. According to ex-plot basis, the mine owners sell the minerals to MMTC on the railways plot and latter takes the responsibility of transporting through railways wagons. The sale of minerals of the mine owners ends on the railway plot which is within a Municipal area before the minerals are loaded in the railway wagons. 5. According to F. O. R. basis the mine owners deliver the minerals to MMTC only on the loading of the materials into the railway wagons. As such, their term of contract of sale ends on the railway wagons within the Barbil Railway Station. 6. According to F. O. B. basis, the term of contract of sale of the mine-owners only ends at the concerned port to which the materials are despatched for shipment. So when the sale of the mineral ores according to ex-plot basis or F. O. R. basis is made at the railway station, i. e. either at the railway plot or the railway wagons, the goods are liable to be levied with octroi, octroi cannot be imposed on the goods sold on F. O. B. basis, as the sale transaction is not completed at the railway station within the Municipal area." 4. Clause (kk) of Sub-section (1) of Section 131 of the Act which came into the statute book by Amendment Act 3 of 1954, provided that the Municipal Council may impose octroi tax on goods brought within the limits of Municipality for consumption, use or sale therein. Interpreting this clause. Government was of the opinion that goods sold either at the railway plot or railway wagons are liable to be levied with octroi. 5. Word 'sale' occurring in Section 131 (1) (kk) of the Act cannot be read without reference to the use or consumption. 'Sale' simpli-citer cannot attract the levy of octroi unless the goods sold are meant for use or consumption within the Municipal area. A similar case like the present one came up for consideration before the apex Court in the case of Municipal Council, Jodhpur Vs. Parekh Automobiles Ltd. and Others. The provisions for levy of octroi in Rajasthan Municipalities Act is analogous to that of the Act. Section 104 (2) of the Rajasthan Municipalities Act envisages that octroi on goods and animals brought within the limits of the Municipality for consumption, use or sale therein shall be levied by the Board. Parekh Automobiles Ltd. and Others. The provisions for levy of octroi in Rajasthan Municipalities Act is analogous to that of the Act. Section 104 (2) of the Rajasthan Municipalities Act envisages that octroi on goods and animals brought within the limits of the Municipality for consumption, use or sale therein shall be levied by the Board. In the aforementioned case, M/s. Parekh Automobiles approached the Rajas than High Court in a writ application and contended that the Municipal Council, Jodhpur, had no jurisdiction to levy octroi tax on BSD (diesel) brought within the Municipal limits, but not sold, consumed or used therein and consequently exported outside the said limits. In reply it was stated by the Municipal Council that sale of HSD (diesel) by Indian Oil Corporation to M/s. Parekh Automobiles Ltd. took place at Jodhpur and only delivery was effected at Dangia was as the latter did not have its own tankers and for this the Corporation was charging mileage for transmission of goods from its depot to Dangia was. It was, therefore, urged on behalf of M/s. Parekh Automobiles that goods brought by the Corporation and exported to the retail outlet at Dangia was were in the first place not sold at all within the Municipal limits and secondly, even if the sale of goods so exported was held to have taken place within the Municipal limits then too the taxable event had not taken place, as such goods were not meant for sale or use or consumption of the ultimate consumers residing within the local limits of the Municipality but were meant for consumption of the ultimate consumers residing outside its local limits. For deciding the question involved, their Lordships referred to two earlier decisions in the case of (sic) Burmah Shell Oil Storage and Distributing Co. India Ltd. Vs. The Belgaum Borough Municipality, and Hiralal Thakorlal Dalal Vs. Broach Municipality and Others, In Burmah Shell's ca e the complainant had objected to the, levy of octroi on goods which were sent by it out of the octroi limits for the outside consumers. After examining the history of 'octroi', the Court held that 'octroi' was tax on goods brought into the local area for consumption, use or sale and that they were leviable in respect of goods put to some use or other in the area but only if they were meant for such use. After examining the history of 'octroi', the Court held that 'octroi' was tax on goods brought into the local area for consumption, use or sale and that they were leviable in respect of goods put to some use or other in the area but only if they were meant for such use. The decision in this case was approved in Hiralal Thakorial. Relying upon these two decisions, their Lordships approved the conclusion of the High Court that even if the sale took place within the octroi limits of Jodhpur Municipal Council for use and consumption of ultimate consumer outside the octroi limits of Jodhpur, then the taxable event did not take place in the octroi limit of Jodhpur and therefore, the Municipal Council had no jurisdiction to levy octroi on the goods so exported. 6. In view of the aforesaid authoritative pronouncements of the apex Court, we are of the considered opinion that levy of octroi on the ores sold by M/s. Rungta Sons Pvt. Ltd., the present petitioner, within the Municipal area of Barbil Municipality for ultimate consumption and use outside the octroi limits of the said Municipality is illegal and unjustified. 7. So far as the question of refund of octroi already collected is concerned, the same cannot be ordered to be refunded, the reason being that the petitioner nowhere has stated in the petition that octroi so paid by it has not been collected from the ultimate consumers. Octroi is levied and collected by the Municipality for ultimate benefit of the residents of the Municipality. On the basis of tax collected and also with the aid of the State Government, budget is prepared and developmental works are taken up. So octroi already collected by Barbil Municipal Council must have been spent for the benefit of the people. In such a situation, if order for refund of the octroi tax is made, it will affect the financial condition of the Municipality and it is because of this, we are not inclined to allow the petitioner's prayer. 8. In the result, we allow the writ application in part and hold that levy of octroi tax on the ores sold for the purpose of use and corruption of the ultimate consumers outside octroi limits of Barbil Municipality is illegal. No costs. D.P. Mohapatra, A.C.J. I agree.