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1998 DIGILAW 602 (PAT)

Premchand Shah v. State Of Bihar

1998-08-25

AFTAB ALAM, S.N.JHA

body1998
Judgment S.N.Jha, J. 1. The petitioners, 14 in number, seek quashing of the order of the Assistant Commissioner of Excise, East Singhbhum, chaibasa dated 16.3.1994 asking the licensees of the spiced country spirit shops of East Singhbhum district to deposit the difference of excise duty in accordance with the Notification of the State Government No. SO 22 dated 22.1.1994. Copy of the said notification dated 22.1.1994 has been marked Annexure-1 to the writ petition while copy of the order of the Assistant Commissioner of Excise dated 16.3.1994 has been marked Annexure- 3. 2. The grievance against the impugned Notification/Order is based on a wrong hypothesis. Para IX-A of Notification No. 470-F dated 15.1.1919, issued under the Bihar Excise Act, which has been amended by the impugned Notification, is not the charging provision. The charging provision is contained in Section 27 of the said Act which empowers the State Government to impose excise duty, either generally or in some specified area, on the import, export, transport or manufacture of any excisable article under licence issued under Section 13 of the said Act. It is not in dispute that spice country spirit is manufactured under licence issued under Section 13(a) of the Excise Act and therefore falls under clause (d) of Section 127. Para IX-A merely provides the rates of duty. It may be mentioned that Notification No. 470-F dated 15.1.1919 contains various orders in the form of paragraphs, made by the State Government under different provisions of the Act, in order to give effect to those provisions, as mentioned in the Notification. The order as contained in paragraph IX-A has been made under Section 27 of the Act with respect to spiced country spirit. Similar provisions, it may be mentioned, have been made with respect to country spirit in paragraph IX of the said Notification. 3. The rates of duty have been mentioned in the form of table appended to paragraph IX-A. It is these rates which have been received by the impugned notification. While earlief the spiced country spirit of the strength of 40 U.P. carried excise duty @ Rs. 25/-per L.P. Litre, now by reason of the impugned Notification, duty has been imposed @ Rs. 30/- per L.P. Litre of 35 U.P. Strength. While earlief the spiced country spirit of the strength of 40 U.P. carried excise duty @ Rs. 25/-per L.P. Litre, now by reason of the impugned Notification, duty has been imposed @ Rs. 30/- per L.P. Litre of 35 U.P. Strength. By the impugned order the Assistant Commissioner of Excise has merely directed the retail vendors of spiced country spirit to deposit the amount of difference from the date of Notification. 4. The admitted position in this case is that the retail vendors have been collecting the excise duty at the old rates from the customers and depositing the same with the agency of the Government. The power to impose excise duty is not under challenge. Entry 51 of List-II of the 7th Schedule of the Constitution, in fact, empowers the State Government to impose excise duty and countervailing duty on excisable articles. What has been challenged is the power to recover the amount of duty from the retail vendors. According to the petitioners, it is the manufacturers of the spiced country spirit who are liable to pay such excise duty. This plea, again, is based on wrong hypothesis as if the retail vendors have to bear the burden of the duty. The fact of the matter is that burden is passed on to the customers. By virtue of the terms of licence, it is the obligation of the retail vendors to collect the excise duty and deposit the same in the Government. 5. Mr. P. Gangopadhyaya, learned Counsel for the petitioners was at pains to submit that the mere fact that the petitioners paid the excise duty in the post under ignorance of law can be no ground to deny them the right to challenge the validity of the demand in future. While there can be no quarrel with the proposition that payment of tax or duty under ignorance of law can be no ground to non-suit the petitioners, inasmuch as the burden of deputy does not lie on them and it is to be passed on to the customers, the argument has simply to be ignored as irrelevant and academic in nature. 6. in these premises, I do not find any merit in the writ petition which is, accordingly, dismissed. The interim order restraining the respondent-authorities from taking any action pursuant to the impugned order/notice dated 16.3.1994 stands vacated. 6. in these premises, I do not find any merit in the writ petition which is, accordingly, dismissed. The interim order restraining the respondent-authorities from taking any action pursuant to the impugned order/notice dated 16.3.1994 stands vacated. In the circumstance, would make no order as to cost.