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2008 DIGILAW 1428 (JHR)

Naresh Kumar Mehta v. State of Jharkhand

2008-12-11

N.N.TIWARI

body2008
ORDER Narendra Nath Tiwari, J.: The petitioner is a wholesale licensee for trading Indian Made Foreign Liquor and Beer. 2. The petitioner, in this writ petition, has prayed for quashing Memo No.674 dated 24th August, 2007, contained in Annexure10, whereby the petitioner has been directed to deposit Rs.8,41,502=70 paise towards the arrears of dues in addition to the renewal fee of the wholesale licence for Indian Made Foreign Liquor of Rs.5,00,000/-for the financial year 2007-08. 3. According to the petitioner, he holds wholesale licence for trading Indian Made Foreign Liquor and Beer since the year 1990. The said licence is renewed from time to time. The petitioner’s Licence No.1 of 2001-02 was valid up to 31st March, 2002. For the licence for the financial year 2002-03, the petitioner, as per the prevalent procedure in the department, had deposited a sum of Rs.1.50 lacs as advance on 8th March, 2002. 4. The petitioner suddenly received notice (Annexure-1) from the Excise Department, demanding deposit of Rs.8,41,502=70 paise as additional excise duty allegedly payable on account of enhancement of the excise duty as per Inspection Report No.MEA1j2/2001-02. In the notice, it was also mentioned that on failure to deposit the said amount within a week, the petitioner shall be liable for an action prescribed by Section 42 of the Excise Act. 5. The petitioner protested against the said demand by way of representation dated 8th February, 2002 before the Superintendent of Excise, Singhbhum West. It was stated, inter alia, that the petitioner is not legally liable to pay the difference amount of the enhancement of the excise duty, as the increased rate of duty cannot be made applicable to the stock in hand as has been earlier held in the judicial pronouncements. 6. The Excise Superintendent rejected the petitioner’s representation by order dated 6th March, 2002, observing that in the opinion of the Public Prosecutor, Chaibasa, the decisions of the Courts are not applicable to the case of the petitioner and that the petitioner is liable to deposit the demanded sum of Rs.8,41,502=70 paise. 7. The petitioner, thereafter, made representation before the Commissioner, Excise and Prohibition Department, Government of Jharkhand, with a copy to the Deputy Commissioner, Department of Excise, Headquarters, Ranchi. The said representation was not heeded upon. 8. 7. The petitioner, thereafter, made representation before the Commissioner, Excise and Prohibition Department, Government of Jharkhand, with a copy to the Deputy Commissioner, Department of Excise, Headquarters, Ranchi. The said representation was not heeded upon. 8. It has been contended by the petitioner that the similar issue has been decided in several decisions of the Apex Court, Patna High Court as well as of this Court. It has been consistently held that the enhanced rate of duty cannot be made applicable to the stocks in hand. The petitioner has relied on the decisions of the Patna High Court in the cases of Ambuj Kumar Shaw & Ors. Vs. State of Bihar & Ors. [1995(1) PLJR 823] and Braj Kishore Jaiswal Vs. State of Bihar & Ors. [1997(2) PLJR 370]. 9. When the petitioner did not receive any response, he filed a writ petition before this Court, being W.P.(C) No.2049 of 2002. In the said case, a counter affidavit was filed by the then Superintendent of Excise, Singhbhum West. It was falsely stated that the petitioner had realized the enhanced duty from retail vendors of the foreign liquor and the same has to be deposited in the government account. On the said baseless and misleading statement, the writ petition was dismissed by order dated 24th June, 2003. 10. Against the said order, the petitioner preferred Letters Patent Appeal before this Court, being L.P.A. No.725 of 2003. The said appeal was dismissed by order dated 5th December, 2005. 11. The petitioner then filed review, being Civil Review No.23 of 2006, stating, inter alia, that the petitioner has not collected enhanced rate of duty from the retail vendors and is not liable to pay the additional excise duty. He enclosed invoices, excise pass, transport pass and challans etc. in support of his claim. However, the review application was also dismissed by order dated 4th January, 2007. 12. In the meanwhile, the petitioner’s licence was renewed on the basis of indemnity bond furnished by the petitioner till the financial year 2006-07, which expired on 31st March, 2007. 13. After dismissal of the review application, the petitioner was contemplating to prefer special leave petition before the Hon’ble Supreme Court. He was advised to collect information and clarification from the Department under the provisions of Right to Information Act. 13. After dismissal of the review application, the petitioner was contemplating to prefer special leave petition before the Hon’ble Supreme Court. He was advised to collect information and clarification from the Department under the provisions of Right to Information Act. When he filed application for such information before the District Information Officer, Singhbhum West, Chaibasa, the petitioner was served with the office memo dated 24th August, 2007 by the respondents. By the said letter, the petitioner was threatened that on failure to deposit the arrears of dues of Rs.8,41,502.70 paise, as the difference of enhanced excise duty, his wholesale licence shall be cancelled. 14. The petitioner under that compulsion deposited the licence fee of Rs.5,00,000/-for the financial year 2007-08 by challan dated 19th September, 2007 and filed application for honouring the indemnity bond of Rs.8,41,502=70 submitted earlier on the basis of which his licence has been renewed for the financial year 2007-08. 15. It has been stated that the information as sought for under the Right to Information Act by the petitioner was made available by the respondents on 19th September, 2007 by letter dated 12th September, 2007. The same included the details of transaction under the various invoices, excise pass, transport pass and challans etc., of the month of August, 2000, showing the details of sales of the petitioner’s wholesale business in the said month. From the said description, it is clear that the petitioner has not realized the duty at the enhanced rate from the retailers for sale of the stocks in hand on 10th August, 2000. Since the petitioner has not realized the difference of enhanced duty from the retailers, he is not liable to pay the alleged arrears of enhanced duty of Rs.8,41,502=70 paise. 16. It has been contended that the petitioner has deposited the said amount of Rs.8,41,502=70 paise under compulsion and for renewal of his licence for the financial year 2007-08 with protest. 17. The state respondents have contested the writ petition. They have strongly challenged the very maintainability of the writ petition, in view of the dismissal of earlier writ petition, dismissal of L.P.A. No.725 of 2003 as also of Civil Review No.23 of 2006 by the Division Bench of this Court. 17. The state respondents have contested the writ petition. They have strongly challenged the very maintainability of the writ petition, in view of the dismissal of earlier writ petition, dismissal of L.P.A. No.725 of 2003 as also of Civil Review No.23 of 2006 by the Division Bench of this Court. It has been stated that the issue raised in this writ petition has already been decided and upheld to the appellate stage of this Court and it is not open for the petitioner to raise the same issue in this writ petition. It has been further contended that the petitioner’s claim that this writ petition has been filed on the basis of the documentary proof and information supplied to him after disposal of the L.P.A. and review application cannot be entertained, as those orders of the higher courts became final and binding on the parties, as also on this Court. The petitioner has himself admitted that he has not preferred special leave petition before the Hon’ble Supreme Court and has not further challenged the said orders till date. 18. I have heard learned counsel for the parties and considered the facts and materials on record. It is an admitted fact that the writ petition filed for the same relief by the petitioner, being W.P.(C) No.2049 of 2002, was dismissed by this Court. The appeal filed against the said order, being L.P.A. No.725 of 2003, was also dismissed by a Division Bench of this Court by order dated 5th December, 2005. His prayer for review in Civil Review No.23 of 2006 was also refused by order dated 4th January, 2007. The petitioner has admitted that he has not challenged the said order in the Apex Court. The said orders thus became final and finding cannot be disturbed in writ jurisdiction. This writ petition has become barred. 19. Once the order attained finality between the parties, the petitioner cannot reopen the same issue by filing a writ petition even on the ground of discovery of some facts subsequently. There is substance in the contentions of the respondents that interfering with the said orders in this writ petition would amount to reopening of the issue, already decided by this Court and confirmed up to the appellate court, which is barred by the principle of res judicata. 20. In view of the above, this writ petition is not maintainable and is, accordingly, dismissed.