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2000 DIGILAW 1115 (PAT)

Ashok Kumar v. State Of Bihar

2000-09-14

AFTAB ALAM, RAVI S.DHAVAN

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Judgment 1. The petitioners in these four writ petitions seek identical reliefs and bring under challenge before this court the same orders passed initially by the Excise Commissioner which were later affirmed by the Member, Board of Revenue. All these writ petitions were, therefore, heard together and are being disposed of by this common order. 2. Heard Mr. Ram Balak Mahto, learned Senior counsel appearing for the petitioner in CWJC No. 9084 of 2000 and Mr. Jayanand, Advocate appearing on behalf of the petitioners in the other three writ petitions; also heard Mr. R.K. Dutta, S.C. IV on behalf of the State in all the four writ petitions. 3. The petitioners in all the four cases were granted by the State Government exclusive privilege for supply of country liquor in different zones of the state for the period commencing from 1.7.1995 and ending on 31.3.1999. Each of the four petitioners now claim adjustments/refund on payment of excise duty for the period 28.5.1996 to 1.10.1996. The adjustment/refund of the excise duty is claimed on the plea that during the period in question they were obliged to supply country liquor at the rate fixed by the Board of Revenue which was later held by the High Court to have been erroneously determined and was in fact revised with effect from 1.10.1996 in compliance with the directions given by this Court. 4. It is an admitted position that on the basis of the agreement arrived at between the State on the one hand and the parties to whom exclusive privilege was granted on the other, the petitioners were initially obliged to make wholesale supply of country liquor to the retail licencees at the following unified rates : Rs. 4.40 per 200 M.L. sachet Rs. 8.10 per 400 M.L. sachet Rs. 15.05 per 600 M.L. bottle It is not in dispute that the aforesaid prices were inclusive of (i) Excise Duty, (ii) Licence fee, (iii) all kinds of shortages/ wastages and (iv) cost of spirit etc. It is also admitted that at the time the aforesaid prices were determined, the excise duty leviable on country spirit was @ Rs. 26/- per L.P. litre. Later on, during the subsistence of the privilege period of the rate of excise duty was raised from Rs. 26.00 per L.R litre to Rs. 35.00 per L.P. litre. This also necessitated the revision of the price of wholesale supplies. 5. 26/- per L.P. litre. Later on, during the subsistence of the privilege period of the rate of excise duty was raised from Rs. 26.00 per L.R litre to Rs. 35.00 per L.P. litre. This also necessitated the revision of the price of wholesale supplies. 5. The Board of Revenue then by its notification, dated 21.5.1996 revised the prices in the following manner : Rs. 4.88 per 200 M.L. Rs. 9.06 per 400 M.L. Rs. 15.05 per 600 M.L. bottle. It is also undeniable that while making the revision in the prices the Board of Revenue took into account the enhanced rate of excise duty at Rs. 35/- per L.P. litre but also taking into consideration that the prices of alcohol had fallen down in the meanwhile it fixed the revised prices as indicated above. 6. A number of parties holding exclusive privilege, including some of the present petitioners were aggrieved by the prices so revised by the Board of Revenue and the prices revised came under challenge before this court in a batch of writ petitions being CWJC No. 4454 of 1996 and its analogous cases. In the writ petitions it was primarily contended that the price of alcohol had formed part of the unified price fixed at the time of the commencement of the privilege period and the price of alcohol was, therefore, not amenable to any revision on account of its falling down or going up. According to the writ petitions, the unified prices were therefore required to be revised only taking into consideration the enhanced rate of excise duty and no other constituent of the unified price earlier fixed because all the other constituents were concluded by an agreement between the parties. 7. At this stage it is significant to note that in those writ petitions no prayer was made that in case the petitioners contentions were upheld, the Board of Revenue should be asked to re-determine the prices retrospectively from 1.5.2000, the date on which the impugned notification was issued fixing the revised prices. 8. The earlier batch of writ petitions was allowed by a bench of this court (of which one of us, Alam, J, was a member) by judgment and order, dated 23.8.1996. 8. The earlier batch of writ petitions was allowed by a bench of this court (of which one of us, Alam, J, was a member) by judgment and order, dated 23.8.1996. In that judgment this court upheld the petitioners contention that the unified prices were to be revised taking into consideration only the enhanced excise duty and no other constituent of the unified prices. This court accordingly directed the Member, Board of Revenue "to re- determine the wholesale price of country liquor taking into account only the increase in the rate of excise duty and on the basis of the cost of rectified spirit being Rs. 10/- per L.P. Litre". 9. The direction of this court was duly carried out by the Board of Revenue and it re-determined the unified price for retail supply of country liquor in the following manner : Rs. 5.12 per 200 M.L. sachet Rs. 9.54 per 400 M.L. sachet Rs. 17.21 per 600 M.L bottle The supply of country liquor by the petitioners started on those rates fixed by the Board of Revenue on and from 4.10.1996. 10 It is also significant to note that even at that stage the petitioners or any other wholesale supplier of country spirit did not raise any objection that the prices so re-determined should be made effective retrospectively from 28.5.1996. And it was only after the period of their exclusive privilege came to an end on 31.3.1999 that it seems to have occurred to the petitioner to raise this claim for adjustment/refund for the period 28.5.1996 to 4.10.1996. 11. in the earlier round of litigation before this court it was open to the petitioners to make a prayer that in case their contention was upheld the prices redetermined by the Board be made effective from 28.5.1996. However, no such prayer was made and this court also did not make any such direction. The present claim of the petitioners is thus clearly barred by the principle of constructive res judicata also. 12. Apart from that both the Commissioner Excise and the Member, Board of Revenue have examined the claim of the petitioners on merits. It has been found that at all stages the petitioners have charged excise duty at the rates fixed by the State Government. Earlier, as noted above, the rate was Rs. 26/- per litre and it was later enhanced to Rs. 35/- per litre. It has been found that at all stages the petitioners have charged excise duty at the rates fixed by the State Government. Earlier, as noted above, the rate was Rs. 26/- per litre and it was later enhanced to Rs. 35/- per litre. The petitioners have been charging excise duty from their retail supplies @ Rs. 35/- per litre for the date of enhancement of the duty. The Excise Commissioner has also come to record a definite finding, on an analysis of the sale figures, that the whole sellers (the petitioners) were allowed to pass on the burden of enhanced excise duty to the retail licencees. It is, therefore, evident to us that any direction for adjustment/ refund at this stage will only lead to unjust enrichment of the petitioners and such a direction or order can not be granted by this court. 13. On hearing counsel for the parties, we are satisfied that the petitioners are not entitled to the reliefs claimed by them and we find no merit in these writ petitions. All these writ petitions are accordingly dismissed.