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Himachal Pradesh High Court · body

2005 DIGILAW 101 (HP)

Ram Swaroop v. State of Himachal Pradesh

2005-04-20

K.C.SOOD, LOKESHWAR SINGH PANTA

body2005
JUDGMENT : K.C. Sood, J. The petitioners, being successful bidders in the auction were licensees for L-2 and L-14 liquor vends for retail sale of Indian made Foreign Liquor and Country Liquor at various places in the State of Himachal Pig mesh for the year 1996-97. The auction amount is paid as annual license fees under the Himachal Pradesh Liquor Licensing Rules, 1986, hereinafter referred to as "Liquor License Rule". 2. The petitioners would purchase liquor, for retail sale, from the wholesale L-1 and L-13 licences. The liquor so purchased used to be lifted from the ware-houses after due verification of the payment of Excise Duty and sales Tax by the Excise Department. The petitioners were also successful bidders, in the auction, for the retail sale of Indian Made Foreign Liquor and Country Liquor for the year 1997-98. They were granted L-2 and L-14 licenses for the same vends which they were holding for the year 1996-97. 3. The license for retail vends is granted for one year and terminates on 31st of March every year. New licenses are granted for the ensuing year with effect from 1st April each year. 4. On the mid-night of March 31, 1997, the Officers of the Excise Department surveyed the various retail vends of the petitioners and prepared list of the liquor bottles left unsold with the petitioners. The petitioners were asked to deposit additional excise duty for the left over liquor as the excise duty for the year 1997-98 was enhanced under the excise police w.e.f. April 1, 1997. A notice (Annexure PA) was issued by the Excise and Taxation Commissioner, Una on May 14, 1997 calling upon the petitioners to deposit the difference in the excise duty in the shape of fees within seven days of the notice. The notice was issued under sub-rule (34) of Rule 37 of the Liquor License Rules. The petitioners responded to say that the excise duty had already been included in the price at the time of the purchase of the liquor from the whole sale vends and, therefore, they were not liable to pay any additional excise duty. 5. The notice was issued under sub-rule (34) of Rule 37 of the Liquor License Rules. The petitioners responded to say that the excise duty had already been included in the price at the time of the purchase of the liquor from the whole sale vends and, therefore, they were not liable to pay any additional excise duty. 5. The Assistant Excise and Taxation Commissioner by his letter dated August 28, 1997 (Annexure-PC) informed the petitioners that he had sought clarification from the Excise and Taxation Commissioner who has clarified that under Rule 37(34) of the Liquor License Rules, the enhanced duty is recoverable in the nature of fees and, therefore, the petitioners should deposit the demand raised for the additional excise duty on the left over stock on the mid night of April 1, 1997. The petitioners once again represented to the Excise and Taxation Commissioner by their letter dated September 10, 1997. This representation too was rejected by communication of Assistant Excise and Taxation Commissioner dated September 16, 1997 (Annexure PE). 6. Aggrieved, the petitioners are in this petition under Article 226 of the Constitution of India contending that the action of the respondents in raising the demand for additional excise duty is illegal, arbitrary, unconstitutional, ultra vires and void. The petitioners pray for an appropriate writ, order or directions in the following terms :- (i) Directing the respondents to produce unto this Hon'ble Court all records relating to the levy of additional excise duty for the year 1996-97 and the basis on which additional excise duty has been levied on the petitioners; (ii) Quashing Annexures PA, PC and PE as being illegal, arbitrary, ultra-vires, unconstitutional and void. (iii) Directing the respondents to refund the entire amount demanded by them, as deposited vide challans at Annexure PF along with interest @ 18% per annum from the date of deposit till the date the refund is so made; (iv) Any other writ, order or direction deemed just and proper by this Hon'ble Court in the light of facts and circumstances of the case mentioned hereinabove may also be passed in favour of the petitioners. (v) The respondents may be burdened with the cost of this petition throughout." 7. The respondents in their return, controvert the allegations. (v) The respondents may be burdened with the cost of this petition throughout." 7. The respondents in their return, controvert the allegations. It is pleaded that the license granted to the petitioners was subject to the provisions of the Punjab Excise Act as applicable to the State of Himachal Pradesh and the rules made there under. The Liquor License Rule regulate the various license including the licenses granted to the petitioners. The conditions for such grant are announced to all the bidders at the time of the auction of the vend and, therefore, the licenses are subject to the conditions announced at the time of the auction. As per condition No. 43 of the conditions announced at the auctions held for the year 1996-97, the un-sold stock of country liquor at the end of the Excise year was required to be surrender to the Collector and counted towards the quota of the successful bidder of the concerned vend for the next year. The petitioners, it is submitted, surrendered the un-sold liquor on the mid night of March 31, 1997 to the Collector. The petitioners had participated in the auction of the excise vends for the next excise year 1997-98 and were successful bidders and were granted L-2 and L-14 licenses. Therefore, unsold stock surrendered by the petitioner on March 31, 1997 was once again transferred to them and additional excise duty was recoverable from them as fees under Rule 37.34 of the Liquor License Rule, 1986. 8. It is the case of the respondents that it is not open to the petitioners to challenge the provisions of the Rules after having accepted the same at the time of the auction. The petition is also opposed on the grounds that the petitioners have an equally efficacious remedy by way of appeal/revision under the Punjab Excise Act and for this reason alone, the petition deserves to be dismissed. The petition is also opposed on the grounds of delay and laches. 9. Heard Mr. D.D. Sood, learned Senior Counsel for the petitioners and Mr. M.S. Chandel, learned Advocate General. 10. The petition is also opposed on the grounds of delay and laches. 9. Heard Mr. D.D. Sood, learned Senior Counsel for the petitioners and Mr. M.S. Chandel, learned Advocate General. 10. Entry 51 of List-II of the Seventh Schedule of the Constitution of India empowers the State Legislature to make law providing for levy of excise duty on alcoholic liquors for human consumption manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced else where in India. Entry 51 of List-II reads :- "51. Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced else wherein India : (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry." (Emphasis given) 11. It may be noticed that State Legislature is competent to make law to levy duty on alcoholic liquors for consumption by human beings. The incident of levy of duty is related to production or manufacture of the liquor meant for human consumption. 12. Section 31 of the Act is the charging Section for excisable articles, including the excisable articles manufactured in any distillery established or any distillery or brewery licensed under Section 21 of the Act as also on the import, export or transport of the excisable articles under Section 16 of the Act. Section 31 may be reproduced for convenience : "31 Duty on exercisable articles : An excise duty, or a countervailing duty, as the case may be, at such rate or rates as the State Government shall direct, may be imposed, either generally or for any specified local area, on any excisable article : (a) imported, exported or transport in accordance with the - provisions of Section 16; or (b) manufactured or cultivated under any license granted under Section 20; or (c) manufactured in any distillery established; or any distillery or brewery licensed under Section 21 : Provided that the duty shall not be so imposed on any article, which has been imported into India and was liable on importation to duty under the Customs Tariff Act, 1975 or the Customs Act, 1962. Explanation. Explanation. - Duty may be imposed under this Section at different rates according to the places to which any excisable article is to be removed for consumption, or according to the varying strength and qualify of such articles." (Emphasis given) 13. Sub-section (6) of Section 3 defines excisable articles to mean : (a) any alcoholic liquor for human consumption; or (b) any intoxicating drug; 14. Sub-section 19 of Section 3 defines' "spirit" to mean any liquor containing alcohol obtained by distillation, whether denatured or not Sub-section 6(b) defines "excise duty" and "countervailing duty' to mean any such excise duty or countervailing duty, as the case may be, as is mentioned in entry 51 of List-11 in the Seventh Schedule to the Constitution of India. 15. A bare reading of Section 31 shows that excise duty is leviable on the Indian. Made foreign Liquor or other liquor for human consumptign the moment such liquor is manufactured or produced in a distillery or a brewery licensed under Section 21 of the Act. 16. Section 59 of the Act empowers the Financial Commissioner to make rules by notification regulating the manufacture, supply, storage or sale of any intoxicant, place, time, duty and fee. Section 32 provides for the manner in which duty is to be levied. Section 32 reads : "32 Manner in which duty be levied. 16. Section 59 of the Act empowers the Financial Commissioner to make rules by notification regulating the manufacture, supply, storage or sale of any intoxicant, place, time, duty and fee. Section 32 provides for the manner in which duty is to be levied. Section 32 reads : "32 Manner in which duty be levied. Subject to such rules regulating the time; place and manner as the Financial Commissioner may prescribe, such duty shall be levied ratably, on the quantity of excisable article imported, exported, transported or manufactured in, or issued from, a distillery brewery or whorehouse : Provided that duty may be levied :- (a) On intoxicating drugs by an acreage rate levied on the cultivation of the hemp (omitted) plant, or by a rate charged on the quantity collected; (b) on spirit or beer manufactured in any distillery or brewery established, or any distillery or brewery licensed, under this Act in accordance with such scale of equivalents calculated on the quantity of materials used, or by the degree of attenuation of the wash or wort, as the case may be, as the (State) Government may prescribe; (c) on tari, by a tax on each tree from which the tari is drawn Provided further that, where payment is made upon issue of an excisable article for sale from a warehouse established or licensed under Section 22(a), it shall be made :- (a) if the (State) Government by notification so directs, at the rate of duty which was in force at the date of import of that article, or (b) in the absence of such direction by the (State) Government, at the rate of duty which is in force on that article on the date when it is issued from the warehouse." 17. A combined reading of Section 31, 32 clearly indicates that the excise duty can only be levied on the manufacture or production of liquor in any distillery or brewery licensed under Section 21 or on the import, export or transport in accordance with the provisions of Section 16 of the Act. Section 16 provides that no intoxicant can be imported or exported or transported except after payment of any duty to which it may be liable under the Actor execution of a bond for such payment. Section 16 provides that no intoxicant can be imported or exported or transported except after payment of any duty to which it may be liable under the Actor execution of a bond for such payment. Similarly, any brewery or cristilery licensed under Section 21 of the Act is liable to pay excise duty as may be imposed under Section 31 of the Act by the State Government. 18. It may once again the emphasised that the duty leviable on excisable articles are not on the consumption or sale of excisable articles. Such levy is directed related to the production and manufacture of the excisable articles. In other words, the taxable event is the production and manufacture of the liquor and not its subsequent sale or consumption. The Apex Court in A.B. Abdulkadir v. State of Kerala, AIR 1962 SC 922 , held that an excise duty imposed on manufacture and production of excisable articles does not cease to be so merely because the duty is levied at a stage subsequent to the manufacture or production. This ratio was approved in State of U.P. and others v. Delhi Cloth Mills and another, 1991 (1) SCC 454 . 19. Section 23 of the Act mandates that no intoxicant can be removed from any distillery, brewery, warehouse, or other place or storage established or licensed under the Act unless the duty if any payable under Chapter V) has been paid or a bond has been executed for the payment thereof. 20. It, thus, is clear that excise duty as levied under Section 31 of the Act is paid before any liquor is removed from any distillery, brewery, warehouse or other place of storage. In other words, when liquor is purchased or other place of storage. In other words, when liquor is purchased by L-2, L-14 licenses from the whole sale liquor vends i.e., L-1, L-13 licenses, the price of such liquor includes the excise duty already paid. 21. In other words, when liquor is purchased or other place of storage. In other words, when liquor is purchased by L-2, L-14 licenses from the whole sale liquor vends i.e., L-1, L-13 licenses, the price of such liquor includes the excise duty already paid. 21. The question which arises for our consideration is whether the left over liquor from a previous year, on which excise duty has been paid, can be subjected once again to excise duty In this case, the difference between the excise duty paid and the excise duty which was payable on the manufacture of liquor in the next year even though the liquor in question had been removed from the distillery or the warehouse or the place of storage in the previous year. In our view, the liquor which has already been subjected to excise duty cannot be subjected to such duty again if it remains unsold in the hands of the retail licensees for the next even if the excise duty for the next year on the liquor is enhanced. 22. Learned Advocate General refers to sub-rule (32) to (34) of Rule 37 of the Liquor License Rule and contends that sub-rule (34) of Rule 37 read with its proviso enables the Collector to realise the increase in the rate of the duty from the incoming licensee in the nature of fees on the liquor left over by the outgoing licensee and given to the incoming licensee. 23. Sub-rule (32) to sub-rule (34) to Rule 37, which are relevant in the present case, may be reproduced for convenience :- "(32) If any person, what, has held a licence under these Rules, shall have in his possession on the expiry of determination from any other cause of his licence, any intoxicant which he is unable to dispose of, he shall at once surrender the same to the Collector. The Collector shall make such intoxicant over, in any quantity not exceeding that which the transferee is likely to sell within two months, to the incoming licensee or otherwise to any licensee within he distinct who is licensed to sell intoxicants of the kind surrendered, provided that if any such intoxicants be declared unfit for use, after chemical analysis, the collector shall cause the same to be destroyed. (33) A licensee to whom any intoxicant is made over in the preceding clause shall be bound to pay such price for the same as may be determined by the Collector, keeping in view the actual amount spent thereon or prevailing market price. (34) The Collector shall tender the price so paid to the outgoing licensee by whom the intoxicant was surrendered after deducting there from any amount of fee, duty or penalty, if any, recoverable from the licensee in respect of his licence, and such licence shall not be entitled to any price, payment or compensation whatsoever in respect of any intoxicant so made other than the sum so tendered to him, by the Collector : Provided further that in the case of increase in the rate of excise duty, the difference attributable to increase of the excise duty shall be recovered in the nature of fee from the incoming licensee in respect of the stocks of Indian Made Foreign Liquor, cider, wine or country liquor as the case may be tendered by the outgoing licencee." 24. A reading of above sub-rule shows that if licensee is left with any unsold liquor on the expiry of his license, then he is to surrender the same to the Collector. The Collector, in turn, shall hand over such unsold liquor to the incoming licensee or to any other licensee within the District who is licensed to sell the kind of the liquor which is surrendered. Sub-rule (33) stipulates that the licensee to whom such article is handed over is to make payment as may be determined by the Collector for the same keeping in view the actual amount spent thereon or the prevailing market price. Sub-rule (34) mandates that the Collector shall pay the price so collected from the incoming licensee to the out going licensee who surrenders the liquor to the Collector under sub-rule (32). Proviso to sub-rule (34) says that in case of increase in the rate of excise duty realizable on the liquor surrendered by the outgoing licensee, then the same shall be recoverable in the nature of fees for incoming licensee. 25. There is no dispute that the excise duty which was leviable on the liquor, surrendered by the petitioners had already been paid and there was no increase in the duty during the year 1996-97, i.e., for the period from 1.3.1996 to 31.3.1997. 25. There is no dispute that the excise duty which was leviable on the liquor, surrendered by the petitioners had already been paid and there was no increase in the duty during the year 1996-97, i.e., for the period from 1.3.1996 to 31.3.1997. To subject the left over liquor in the hands of the outgoing licensee for the increase duty w.e.f. 1.4.1997, in our view, amounts to double taxation which is not permissible under the Excise Act. Levy of such duty is not authorised by the Legislature under the Act. 26. Learned Advocate General would submits that what is being charged is not excise duty but fee under sub-rule (34) to Rule 37. 27. Mr. D.D. Sood, learned Senior Counsel for the petitioner, on the other hand, submits that what is sought to be recovered is excise duty under the garb of license fee. 28. Demand notice served upon the petitioner by the Department (Annexure-PA) clearly indicates that what is sought to be recovered is "difference of excise duty" though clothed as "fee". There is a clear cut distinction between "tax" and the "fees". A tax is compulsory exaction of money by different authorities for different purposes enforceable by law, whereas, the fees are charged for services rendered to individuals by Governmental agencies. Such charge has an element in it of a quid pro quo as observed by the Apex Court in Har Shankar and others etc. etc. v. The Deputy Excise and Taxation Commissioner and others, AIR 1975 SC 1121 . It is true that license fees is charged by the State Government from the whole sale or retail licensees in terms of the auction money of the vends or fixed fee even though there is no quid pro quo. The expression "fees" is not used in the Excise Act or the Rules framed there under in the technical sense of the expression. As observed by the Apex Court in Har Shankar and others, "licence fee" or "fixed fee" is meant the price or consideration which the Government charges from the licensees for parting with its privileges and granting them a trade or business. As observed by the Apex Court in Har Shankar and others, "licence fee" or "fixed fee" is meant the price or consideration which the Government charges from the licensees for parting with its privileges and granting them a trade or business. Such a charge is normal incident of trading or, business transaction." Their Lordships observed : "The amount charged to the licensees is not a fee properly so called nor indeed a tax but is in the nature of the price of a privilege, which the purchaser has to pay in any trading or business transaction." 29. In the present case, what is sought to be recovered is increase in the excise duty, though not leviable to the stocks of previous year, in the garb of fees. This exaction of the excise duty is without the authorisation of the Legislature to collect such excise duty. 30. Liquor License Rules have been framed by the State Government in exercise of the powers under Section 59 of the Punjab Excise Act. Section 59 of the Act confer powers on the Financial Commissioner to make rules relating to the manufacture, supply, storage or sale of any intoxicant and, also prescribing the scale of fees or the manner of fixing the fees payable in respect of any licence, permit or pass in respect of the storing of any intoxicant. Subjecting liquor to additional excise duty, in any event, is beyond the scope, of rule making powers of the Financial Commissioner under Section 59 of the Act. 31. Liquor Licence Rules have been framed by the State Government in exercise of the powers under Section 59 of the Punjab Excise Act. Section 59 of the Act confer powers on the Financial Commissioner to make rules relating to the manufacture, supply, storage or sale of any intoxicant and also prescribing the scale of fees or the manner of fixing the fees payable in respect of any licence, permit or pass in respect of the storing of any intoxicant. Subjecting liquor to additional excise duty, in any event, is beyond the scope of rule making powers of the Financial Commissioner under Section 59 of the Act. 31. Subjecting liquor to additional excise duty, in any event, is beyond the scope of rule making powers of the Financial Commissioner under Section 59 of the Act. 31. In the present case, the excisable liquor was manufactured and purchased by the retail licensee prior to 1.4.1997 whereas, the enhanced rate of duty came into force with effect from 1.4.1997 and as the levy of excise is relatable to the manufacture of the liquor and not to its sale to retailer, therefore, such liquor is not subject to enhanced duty. We draw support for the view we have taken from Ponds India Ltd. v. Collector of Central Excise, Madras, 1997 (2) SCC 577 . 32. In Ponds India Limited, special excise duty was leviable from 1.3.1987 to 28.2.1988 under a provision of the Finance Act, 1987 but during that period, by reason of a notification issued under Rule 8 of the Central Excise Rules, there was a total exemption from levy. By the Finance Act, 1988, special excise duty was levied but there was no exemption notification. The question arose whether the goods which were manufactured prior to the 28.2.1988 but cleared after 1.3.1988 after coming into force of the Finance Act, 1988 were subject to the payment of special excise duty. Their Lordships ruled in negative. Their Lordships held : "In the instant case, therefore, the said goods must be deemed to have been cleared on the last date of the levy of the special excise duty that was in force when they were manufactured; that is to say, they must be deemed to have been cleared on 28.2.1988. On that day the said goods were, by reason of the exemption notification aforementioned, wholly exempt from the special excise duty. The appellants were, therefore, not liable to pay any special excise duty upon the said goods." 33. The Supreme Court in S.K. Pattanaik (Dead) through LRs. v. State of Orissa and others, 2000 (1) SCC 413 - observed that "Excise Duty" is essentially a duty on manufacture of goods, and the taxable event is the manufacture of the excisable goods. This view was reiterated in Aristocrat Agencies Hyderabad-Excise Superintendent, Hyderabad and others, (2001) 1 SCC 496 . The Supreme Court in S.K. Pattanaik (Dead) through LRs. v. State of Orissa and others, 2000 (1) SCC 413 - observed that "Excise Duty" is essentially a duty on manufacture of goods, and the taxable event is the manufacture of the excisable goods. This view was reiterated in Aristocrat Agencies Hyderabad-Excise Superintendent, Hyderabad and others, (2001) 1 SCC 496 . Their Lordships relying upon S.K. Patnaik held that excise duty being essentially a duty on production or manufacture of excisable goods, the event attracting tax is the manutiacture or production of the excisable goods. Whereas, countervailing duty, is required to be levied, assessed and collected when excisable articles are imported into the State. 34. As already noticed, Section 23 of the Act mandates that no liquor can be issued form the distillery, brewery, warehouse or other place of storage established or licensed under the Act unless the duty payable under Chapter-V has been paid or bond has been executed for the payment thereof. Section 31 of the Act, which is charging Section, falls under Chapter-V and therefore duty on the liquor, is paid before such liquor is removed form the distillery, brewery, warehouse or other place of storage as may be licensed under the Act. The liquor which has been removed form the distillery, brewery, warehouse or place of storage after payment of excise duty cannot once again be subject to duty and such excise duty is payable at the rates prevalent at the time of removal of the liquor form the distillery, brewery, warehouse or the place of storage. 35. Sub-rule (34) to Rule 37 which authorise the Collector to recover differential amount of duty from the incoming licensee is not only beyond the rule making power of the Financial commissioner under Section 59 of the Act but is also ultra vires to the provisions of Sections 23, 31 and view of the Act. 36. The inescapable conclusion is that the demand raised by the Department for the differential exercise duty is village, unauthorized and without Legislative sanction. Proviso to sub-rule (34) to Rule. 37 of the Liquor License Rules being ultra vires and contrary to the provisions of Section 59, 23, 31 and 32 of the Act is liable to be struck down. 36. The inescapable conclusion is that the demand raised by the Department for the differential exercise duty is village, unauthorized and without Legislative sanction. Proviso to sub-rule (34) to Rule. 37 of the Liquor License Rules being ultra vires and contrary to the provisions of Section 59, 23, 31 and 32 of the Act is liable to be struck down. In consequence, the demand notices Annexures PA, PC and PE being illegal, arbitrary, ultra vires of the provisions of the Act are liable to be quashed. 37. Learned Advocate General lastly contended that the present petition is not maintainable as the petitioners have not exhausted alternate remedy by way of appeal provided under the Act. 38. It is true that the High Court in its writ jurisdiction under Article 226 will not normally interfere if statutory appeal is available to the petitioner but, at the same time, existence of statutory remedy does not affect the jurisdiction of the High Court to issue writ. 39. The Apex Court in Harbas Lal Sahnia and another v. Indian Oil Corporation Ltd., and other, 2003 (2) SCC 107 held that rule of exclusion of writ jurisdiction by availability of alternate remedy. Existence of alternate remedy will not be a bar to the exercise of the jurisdiction under Article 226 of the Constitution if the impugned orders are ultra vires to the Statute of Constitution of India. 40. In Raja Jagdambika Pratap Narain Singh v. Central Board of Direct Taxes and others, 1975 (4) SCC 578 , the Supreme Court observed that the writ jurisdiction is not muzzled by statutory finality, regardless of their illegality. If the levy is illegal, the constitutional remedy goes into action. Anine Judges Constitution Bench, in Mafatlal Industries Ltd. and other v. Union of India and others, 1997 (5) SCC 536 held that where excise or custom duty is levied on misinterpretation/misapplication erroneous interpretation of the statutory provisions or unconstitutional provisions or under mistake of law, remedy under Article 226 or Article 32 cannot be shut down. Their Lordships held that suit or writ petition would he not only on grounds of unconstitutionality but also where levy is challenged to be without jurisdiction. Their Lordships further observed that suit or writ petition is maintainable to assail the levy or order which is illegal, void, unauthorized or without jurisdiction. 41. Their Lordships held that suit or writ petition would he not only on grounds of unconstitutionality but also where levy is challenged to be without jurisdiction. Their Lordships further observed that suit or writ petition is maintainable to assail the levy or order which is illegal, void, unauthorized or without jurisdiction. 41. Article 265 of the Constitution mandates that no tax shall be levied or collected except by authority of law. If the impost or tax or duty is sought to be levied and collected without authority of legislature, the writ petition under Article 226-can be invoked by an aggrieved citizen. 42. In view of the facts and circumstances of this case, we are of the view that the remedy under Article 226 of the Constitution of India is not excluded merely because a remedy by way of appeal is available to the petitioners under the Statute. 43. In result, the writ petition is allowed in the following terms : (a) Provision to sub-rule (34) of Rule 37 of the Liquor License Rules being ultra vires contrary to the provisions of Sections 23, 31, 32 and 59 of the Act is quashed. (b) The impugned demand orders Annexure PA, PC and PE being arbitrary, illegal and without the authority of law, are quashed. 44. No costs.