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2015 DIGILAW 1518 (HP)

MOHAN MEAKIN LIMITED v. STATE OF H. P.

2015-10-14

MANSOOR AHMAD MIR, TARLOK SINGH CHAUHAN

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JUDGMENT : TARLOK SINGH CHAUHAN, J. 1. Since common questions of facts and law are involved in all the above petitions, they are being disposed of by this common order. 2. Two points arise for consideration in these cases; firstly that the claim of the petitioner for exemption from payment of excise duty was disallowed by the authorities below on the ground that the loss on account of pilferage or in transit or for that matter during the process of maturation, being over and above the permissible loss, the petitioner was liable to pay duty and secondly because even though the matured spirit being used and matured for blending and bottling was over proof, yet because it was fit for human consumption by adding water thereto, the petitioner was liable to pay duty thereon. 3. At the time of filing of these petitions, identical issues had already been adjudicated upon by this court in CWP No. 241/2003 and other connected cases titled as Mohan Meakin Ltd. v. State of HP, wherein it was held as under: "We have heard Mr. Sood, learned counsel appearing for the petitioner as also Mr. M.S. Chandel, learned Advocate General, appearing for the respondents. We have also gone through the very well reasoned order of the learned Excise and Taxation Commissioner Cum Financial Commissioner (Excise), Himachal Pradesh, and find that in so far as the first issue is concerned, this being based on a pure question of fact, he has returned a definite finding that the petitioner could not be held entitled to the exemption from payment of excise duty because there was no proof that actually any loss in transit or in the process of maturation had taken place, which was over and above the permissible loss. IN our considered view no interference in this finding of fact is called for or warranted as there does not appear any material to take a contrary view. In so far as the issue relating to the over-proof matured spirit not attracting excise duty is concerned, the learned Commissioner has held that the rectified spirit in the present case can be termed as industrial alcohol as well as liquor, which can be converted into country liquor by just adding water. In so far as the issue relating to the over-proof matured spirit not attracting excise duty is concerned, the learned Commissioner has held that the rectified spirit in the present case can be termed as industrial alcohol as well as liquor, which can be converted into country liquor by just adding water. That being the case, we cannot subscribe to the view that the matured spirit, which was being produced in the Distillery of the petitioner at Kasauli and which was being taken to its Brewery at Solan for blending and bottling was unfit for human consumption. This matured spirit was being taken in "Bond" and therefore it was a dutiable item attracting the levy of duty of excise." 4. The aforesaid decision was assailed by the petitioner before the Hon'ble Supreme Court in CA No. 5939 of 2004 and the judgment passed by this Court in CWP No. 241 of 2003 had been stayed. 5. The precise grievance of the petitioner at the time of admission of these petitions was that in view of the pendency of the appeal before the Hon'ble Supreme Court where similar questions of law and fact were pending adjudication, the Appellate Authority should have stayed its hand and awaited the decision rather than venturing to decide the same. 6. It is not in dispute that the aforesaid appeal has now been dismissed by the Hon'ble Supreme Court on 10.7.2014 in the following terms:-- "It is submitted that the legal issue involved in this case is similar to that of Civil Appeal Nos. 4708-09 of 2002 titled as "State of U.P. & Ors. v. M/s. Mohan Meakin Breweries Ltd. & Anr." which has been disposed of as allowed by this Court on 23.9.2011 and the judgment in the above case has been reported in (2011) 13 SCC 588 . In view of the judgment delivered in case, this appeal deserves dismissal. We order, accordingly, with no order as to costs." Therefore, the issue in the instant case is now squarely covered by the aforesaid judgment. 7. Learned counsel for the petitioner has though tried to question the applicability of the aforesaid decision to the facts of the present case, but then is constrained by his own pleadings to the effect that the issue raised in the instant petitions though decided in CWP No. 241 of 2003 is still pending adjudication before the Hon'ble Supreme Court. 7. Learned counsel for the petitioner has though tried to question the applicability of the aforesaid decision to the facts of the present case, but then is constrained by his own pleadings to the effect that the issue raised in the instant petitions though decided in CWP No. 241 of 2003 is still pending adjudication before the Hon'ble Supreme Court. Here is apt to re-produce the averments contained in para 6 of the petition, relevant extract whereof reads as under: "6. .....The Excise and Taxation Commissioner in his order dated 31.03.2009 Annexure P-7 has primarily relied on the decision of this Hon'ble Court dated 15.09.2004 in CWP No. 241 of 2003 M/s. Mohan Meakin Limited Versus State of Himachal Pradesh and others which related to similar questions of law and facts as involved in this case and which related to the assessment year 1999-2000. It has been pleaded on behalf of the petitioner that SLP No. 1426 of 2004 against the judgment of this Hon'ble Court dated 27.8.2003 in CWP No. 241 of 2003 M/s. Mohan Meakin Versus State of Himachal Pradesh had been granted by the Hon'ble Supreme Court on 10.09.2004 and the matter was pending in appeal before the Hon'ble Supreme Court." 8. It is more than settled that the parties are bound by their pleadings and those pleadings are the basis of the case of the respective parties. In Union of India (UOI) and Others Vs. Jagdish Pandey and Others, the Hon'ble Supreme Court held as under:-- "19. It is a well settled rule that parties are expected to raise specific pleadings before the first forum for adjudication of the dispute. Those pleadings are the basis of the case of the respective parties even before the appellate/higher Courts. The parties would be bound by such pleadings, of course, subject to the right of amendment allowed in accordance with law". 9. Having said so, we are of the considered opinion that the issue in these petitions is squarely covered by the judgment rendered by this Court in CWP No. 241 of 2003 titled Mohan Meakin Ltd. v. State of HP, which in turn has now been affirmed by the Hon'ble Supreme Court vide its order dated 10.7.2014 in Civil Appeal No. 5939 of 2004 titled Mohan Meakin Ltd. v. State of HP & ors. We, therefore, find no merit in these petitions and the same are accordingly dismissed, leaving the parties to bear their costs.