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2004 DIGILAW 98 (ORI)

MAGATI SAHOO v. STATE OF ORISSA

2004-02-17

A.K.PATNAIK, M.M.DAS

body2004
JUDGMENT : A. K. Patnaik, J. - In this writ petition the petitioner has challenged the demand notice dated 9.5.2003 issued to the petitioner by the Superintendent of Excise, Ganjam, Chatrapur asking him to pay a sum of Rs. 6,24,500/-towards balance consideration money and M.G.Q. duty for the year 2002-2003 failing which steps will be taken to recover the said amount from the petitioner. 2. To a query by the Court as to why an appeal has not been preferred against the said notice, Mr. Ashok Mohanty, learned counsel for the petitioner submitted that under the Bihar and Orissa Excise Act, 1915 (hereinafter referred to as "the Act") and the Rules made thereunder no appeals are normally filed against the demands of excise duty. He contended that demand of excise duty is calculated in accordance with the Act and the Rules made thereunder and strictly speaking are not an order under the Act and the rules which are appealable. 3. Sections 8 and 89(c) of the Act and Rules 59 and 60 of the Orissa Excise Rules, 1965 are quoted herein below : Sections 8 and 89(c) of the Act: "8. Control appeal and revision :(1) The Collector shall, in all proceedings under this Act, be subject to the control of the Excise Commissioner and shall, in such matters as the (State Government) may direct, be subject also to the control of the Commissioner of the division. (2) Orders passed under this Act or under any Rule hereunder shall be appealable in such cases, to such authorities and under such procedure as may be prescribed by Rule made u/s 89, Clause (C). (3) The Board may revise any order passed by a Collector, the Excise Commissioner or the Commissioner of a division." "89. Power of State Government to make Rules : (1) The (State Government) may make Rules to carry out the objects; of this Act or any other law for the time being in force relating to the excise-revenue. (2) In particular, and without prejudice to the generality of the foregoing provisions, the State Government may make Rules. Power of State Government to make Rules : (1) The (State Government) may make Rules to carry out the objects; of this Act or any other law for the time being in force relating to the excise-revenue. (2) In particular, and without prejudice to the generality of the foregoing provisions, the State Government may make Rules. (a) and (b) **** **** **** (c) for declaring in what cases or classes of cases and to what authorities appeal shall lie from orders; whether original or appellate passed under this Act or under any Rule made hereunder, and for prescribing the time and manner for presenting and the procedure for dealing with, such appeals. (d) to (n) **** **** **** (3) *** *** *** Rules 59 and 60 of the Orissa Excise Rules, 1965 : "59. Appeals to Collector from orders of Officers subordinated: An appeal shall lie to the Collector from an order of any officer subordinate to him and discharging functions under the Act or under any Rule or order made under the Act : Provided that this power of the Collector may be exercised by the Additional District Magistrate. 60. Appeals to Commissioner from Orders of Collector: An appeal shall lie to the Commissioner from any order made by Collector or the Additional District Magistrate : Provided that there shall be no Appeal against an order increasing or decreasing in the number of licences under the proviso to Rule 32 of these Rules for the sale of foreign liquor." 4. A plain reading of Sub-section (2) of Section 8 quoted above would show that orders passed under the Act or under any Rule made under the Act shall be appealable in such cases to such authorities and under such procedure as may be prescribed by Rule made u/s 89 of the Act. Section 89(1) of the Act provides that the State Government may make Rules to carry out the objects of the Act or any other law for the time being in force relating to excise revenue. Section 89(1) of the Act provides that the State Government may make Rules to carry out the objects of the Act or any other law for the time being in force relating to excise revenue. Section 89(2)(c) of the Act provides that without prejudice to the generality of the provisions of Section 89(1), the State Government may, in particular, make Rules for declaring in what cases or classes of cases and to what authorities appeal shall lie from orders, whether original or appellate, passed under the Act or under any Rule made thereunder and for prescribing the time and manner for presenting and the procedure for dealing with such appeals. In exercise of such power u/s 8*9 of the Act, the State Government has made the Orissa Excise Rules, 1965 and Rules 59 and 69 thereof provide for appeals to Collector from orders of Officers subordinate to the Collector and appeals to Commissioner from orders of the Collector. Rules 59 and 60 use words wide enough to indicate that an appeal shall lie to the Collector from an order of any officer subordinate to him and an appeal shall lie to the Commissioner from any order made by the Collector or by the Additional District Magistrate. The proviso to Rule 60, however, states that no appeal shall lie against an order increasing or decreasing the number of licences under the proviso to Rule 32 of the Rules for selling of foreign liquor. Thus except in the case of an order increasing or decreasing the number of licences under the proviso to Rule 32 of the Rules for the sale of'foreign liquor, an appeal is available to the Collector from an order passed by any officer subordinate to him and to the Commissioner from any order made by the Collector or the Additional District Magistrate. The word "order" has not been defined in the Act or the Rules and has been defined in Black's Law Dictionary (Sixth Edition) to mean "A mandate; precept; command or direction authoritatively given; Rule or Regulation. Brady v. Inter-State Commerce Commission D.C.W. Va. 43 F. 2d 847, 850. "Direction of a Court or Judge made or entered in writing, and not included in a judgment, which determines some point or directs some step in the proceedings." Hence, any direction given in writing to a person which if not obeyed will have legal consequences is an "Order". Brady v. Inter-State Commerce Commission D.C.W. Va. 43 F. 2d 847, 850. "Direction of a Court or Judge made or entered in writing, and not included in a judgment, which determines some point or directs some step in the proceedings." Hence, any direction given in writing to a person which if not obeyed will have legal consequences is an "Order". The impugned notice requires the petitioner to pay the amount indicated therein failing which the - amount would be recovered from him under Law. The impugned demand notice, therefore, is an "order" appealable under Rules 59 and 60 of the Rules. 5. Mr. Mohanty, learned counsel for the petitioner, however, submitted that under the Act and the Rules, no such power has been vested in the Superintendent of Excise to make a demand of excise duty or to recover any excise duty and the power has been vested in the Collector. In this context, he has referred to the provisions of Section 93 of the Act and Rules 6 and 6-A of the Orissa Exclusive Privilege Rules wherein power has been vested in the Collector to recover the amounts indicated therein. If that be so, the demands of excise duty by the Superintendent of Excise would really be a demand on behalf of the Collector and in such a case, appeal would be available against the demand made by the Collector to the Commissioner under Rule 60 of the Orissa Excise Rules, 1965. 6. It is true that Rule 60 of the Orissa Excise Rules, 1965 does not prescribe the limitation nor indicates the cases in which the appeals can be filed whereas Rule 61 of the Orissa Excise Rules, 1965 mentions 15 days as the period f limitation from the date of the order to be appealed against and also mentions types of cases in respect of which a memorandum of appeal can be filed namely, cancellation, suspension or withdrawal of a licence for retail sale of any intoxicant, but this does not mean that cases to which Rule 61 does not apply, appeal cannot be filed under Rule 60 to the Commissioner against the orders of the Collector or the Addl. District Magistrate. In our view, Rule 61 of the Orissa Excise Rules 1965 gives only specific instances in which appeals can be filed against the order of the Collector or the Addl. District Magistrate. In our view, Rule 61 of the Orissa Excise Rules 1965 gives only specific instances in which appeals can be filed against the order of the Collector or the Addl. District Magistrate to the Commissioner and is not exhaustive of the cases in which appeals can be filed against the orders passed by the Collector or the Addl. District Magistrate to the commissioner under Rule 60 of the Orissa Excise Rules, 1965. 7. Since we have taken a view that a statutory remedy by way of appeal against the impugned demand notice dated 9.5.2003 is available to the petitioner, we are not inclined to entertain this writ petition at this Stage. In stead, we grant a month's time to the petitioner to file an appeal before the Commissioner of Excise under Rule 60 of the Orissa Excise Rules, 1965 along with an application for stay and we further direct that in case such an appeal is filed along with an application for stay, the application for stay will be considered and orders passed thereon by the appellate authority within one month from the date of filing of such application and till such orders are passed on the stay application, the demand of Rs. 6,24,500/- will not be recovered from the petitioner pursuant to the impugned demand notice dated 9.5.2003 and the certificate proceedings in C.C. No. 5 of 2003 before the Sub-Collector, Ghumusar, Bhanjanagar against the petitioner for recovery of the said demand shall remain stayed. The writ petition is accordingly disposed of. M.M. Das, J. 8. I agree.