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2013 DIGILAW 781 (PAT)

Umeri Distillery v. State of Bihar

2013-07-09

ASHWANI KUMAR SINGH, R.M.DOSHIT

body2013
ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) This Petition under Article 226 of the Constitution is filed by manufacturer of liquor against communication dated 16th November 2012 issued by the Superintendent of Excise, Kaimur, Bhabua. Under the impugned communication, the petitioner has been called upon to pay excise duty on the quantity of spirit claimed to be usual waste in transit. 2. Pursuant to the said communication the petitioner has paid a sum of Rs.14,30,555.00 on 21st November 2012. 3. Learned advocate Mr. Satyabir Bharti has appeared for the petitioner. He has submitted that the commodity is the rectified spirit, not exigible to excise duty. It is apparent that under the instructions of the concerned Secretary, the Superintendent of Excise has, without application of mind, issued such communication. He has submitted that the aforesaid amount has been paid by the petitioner under duress and coercion. 4. Although the learned Principal Additional Advocate General Mr. Lalit Kishore is unable to support the action of the Superintendent of Excise, he has submitted that let the Superintendent of Excise initiate the adjudication proceeding within one month from today and if any amount is found payable by the petitioner, the same may be adjusted against the amount already paid by the petitioner. 5. We are completely at loss. The procedural provisions are especially designed to ensure uniformity and transparency and to protect the citizens from arbitrary or illegal actions by the State authorities. It is, therefore, necessary that if any amount is receivable by the State, the same is recovered after following due procedure of adjudication and recovery. In the present case there is no doubt that the Superintendent of Excise has, under the instructions of the concerned Secretary, in colourable exercise of power issued demand notice without adjudication. As has been submitted by Mr. Satyabir Bharti, the demand was made at a time when the existing licence was about to expire and the petitioner had to obtain a new licence. Apparently, the recovery had been made by the Superintendent of Excise under duress and coercion. The action of the Superintendent of Excise is ex-facie illegal and amounts to abuse of the authority. Such an action cannot be sustained by a Court of law. 6. For the aforesaid reason, the Petition is allowed. The impugned communication dated 16th November 2012 is quashed and set aside. The action of the Superintendent of Excise is ex-facie illegal and amounts to abuse of the authority. Such an action cannot be sustained by a Court of law. 6. For the aforesaid reason, the Petition is allowed. The impugned communication dated 16th November 2012 is quashed and set aside. The respondent Superintendent of Excise will refund the aforesaid sum of Rs.14,30,555.00 collected under duress and coercion to the petitioner with interest @ 12% per annum. The interest will be calculated from the date the amount was paid till the date of refund. The aforesaid payment will be made within three weeks from today. In the event, the respondent Superintendent of Excise fails to make the aforesaid payment, within three weeks as directed, the petitioner will be entitled to interest @ 15% per annum. 7. Registry will send copy of this order to the respondent nos. 2 and 4 forthwith.