Dismissed

Ms Pick Up Credit and Trading Co. Pvt. Ltd. through Its Director Mukesh Kumar v. Excise Department

Jharkhand HC6 Sept 2018WPC/6568/2012

Case brief

AI extract

What is this about?

Writ petition by a liquor licensee challenging the sale-notification clause and licence condition imposing an economic penalty for short-lifting the minimum guaranteed quantity, and seeking refund of the forfeited security. The court upheld the conditions as intra vires the Excise Act and Article 14, distinguished the petitioner's authorities and dismissed the petition.

What the court decided

AI extract

Ms Pick Up Credit and Trading Co. Pvt. Ltd. through Its… — Customs and Excise | Jharkhand HC (2018)

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

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W.P.(C). No. 6568 of 2012

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M/s Pick Up Credit & Trading Co. Pvt Ltd., a company incorporated under the Companies Act having its registered office at P – 41, Prencep Street, 6^th Floor, Kolkatta – 700072 and Head Office at 103, Prateek Apartment, Kilburn Colony, Hinoo, P.O. Hinoo, P.S. Doranda, District – Ranchi through its Director Mukesh Kumar, son of Shri Bhagwan Das, resident of Kilburn Colony, P.O. Hinoo, P.S. Doranda, District – Ranchi. … Petitioner

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Versus

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The State of Jharkhand through the Secretary, Department of Excise & Prohibition, Government of Jharkhand, Ranchi, P.O. & P.S. – Dhurwa, District - Ranchi.

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The Member, Board of Revenue, Jharkhand Ranchi, P.O. & P.S. – Dhurwa, District – Ranchi.

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The Excise Commissioner, Jharkhand, P.O. & P.S. – Dhurwa, District – Ranchi.

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The Deputy Commissioner, Deoghar, P.O. & P.S. & District – Deoghar.

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The Superintendent of Excise, Deoghar, P.O. & P.S. & District – Deoghar. … … Respondents

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CORAM: HON'BLE MRS. JUSTICE ANUBHA RAWAT CHOUDHARY

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--For the Petitioner : Mr. Prabhat Kr. Sinha, Advocate For the RespondentsNo.7: Mrs. Chandra Prabha, S.C. IV

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08/06.09.2018 Heard Mr. Prabhat Kr. Sinha, counsel appearing on behalf of the petitioner.

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2. Heard Mrs. Chandra Prabha, counsel appearing on behalf of the respondents.

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3. This writ petition has been filed for the following reliefs:

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i. “For issuance of an appropriate writ for a declaration that clause 17 of the Sale Notification in Excise Form 127 prescribed by the Member, Board of Revenue, Jharkhand for settlement by auctioncum-tender for settlement of retail vends of liquor for 2008-09 and condition XII of license in Form 26C are ultra vires the provisions of the Jharkhand Excise Act, 1915.

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ii. For issuance of an appropriate writ, order or direction for quashing of the order contained in Memo No.1328 dated 25.11.2010, whereby, in terms of the aforesaid clause 17 of the Sale

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Notification, a sum of Rs.7,93,094.00 has been forfeited from the amount of security deposited by the petitioner;

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iii. For issuance of an appropriate writ, order or direction to the respondents to refund to the petitioner the aforesaid forfeited amount along with interest @ 18 % per annum.”

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4. Counsel for the petitioner submits as under:

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a) That a policy decision was taken vide Annexure – 1 dated 07.05.2008 and he refers to clause – 15 of the said policy decision to submit that as per the policy, the consequences in connection with the violation of the terms and conditions of license were provided and it was also indicated that in order to give effect to such conditions, a corresponding amendment in Section 42 of the Jharkhand Excise Act, 1915 (herein after referred to as “the Excise Act”) was required to be carried out.

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b) Thereafter, the petitioner refers to the sale notice as contained in Annexure – 2 and submits that the petitioner duly participated pursuant to the sale notice dated 21.07.2008 and the petitioner was granted the composite license for retail vend in Form - 26 C as prescribed under the Excise Act which inter alia provided for various conditions including conditions in Clause Nos. 11 and 12.

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c) According to Clause – 11 of the Excise license, the petitioner was bound to lift the fixed monthly minimum guaranteed quantity of each liquor by the end of last working day of every month and the shortfall found in lifting of the minimum guaranteed quantity could be compensated by lifting of another kind of liquor covered by the Excise license, excess to its fixed minimum guaranteed quantity.

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d) He further submits that as per the clause - 12 of the aforesaid excise license, on account of first irregularity found under the Excise law in the premises of the shop, the licensee could be settled with a composition fee and the cap was Rs. 1 lakh for such irregularity.

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e) The petitioner is aggrieved by clause - 12 (b) (i) which provides that equivalent amount of economic penalty is to be imposed on the licensee in addition to total amount of revenue loss (excise duty, other admissible fee including commercial taxes) for the contravention of the condition which resulted in loss of revenue.

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f) Counsel for the petitioner submits that the period involved in this case is 2008-2009 and the license period is from 12.11.2008 to 31.03.2009 and he submits that during this period, the total quantity of beer which was to be lifted by the petitioner was 1,02,656.00 bulk litres but the petitioner had actually lifted 81,432.00 bulk litres and there was a shortfall of 21,224.00 bulk litres, which is equivalent to 2,722 cases of beer.

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g) He submits that issue involved in this case is related only to short lifting of beer.

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h) He submits that after completion of the entire period of license vide order as contained in Annexure – 4 dated 25.11.2010, a penalty in terms of clause - 12 of the Excise license was imposed upon the petitioner which included excise duty, education cess, sales tax and surcharge on the shortfall of beer lifted by the petitioner. This order was passed at the stage when the issue regarding refund of security deposit was being considered by the respondents and the petitioner was held to be entitled to a refund of security amount of only Rs. 22,06,906.00 and an amount of Rs. 7,93,094/- was sought to be forfeited on account of the aforesaid liability imposed under clause 12 of the license.

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i) He submits that against this, the petitioner had filed a representation before the respondents but the respondents vide letter dated 28.08.2012, rejected the representation of the petitioner by a non-speaking order by simply stating that the representation of the petitioner was not worth considering and the same was being rejected after due consideration.

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j) Counsel for the petitioner submits that in such circumstances, the petitioner has challenged the clause 17 of the sale notification which provided similar provision as contained in clause 15 of the policy decision dated 07.05.2008 except the proposal to amend Section 42 of the Jharkhand Excise Act, 1915.

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k) Counsel for the petitioner during the course of arguments has also challenged clause - 12 of the license in Form 26 C and has prayed for a refund.

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l) Counsel for the petitioner submits that as per the policy decision, the implementation of the imposition of penalty etc. was to be done in terms of clause - 15 of the policy decision but the same was to be followed by an amendment in Section 42 of the Jharkhand Excise Act, 1915. He submits that in absence of any amendment in Section 42 of the Jharkhand Excise Act, 1915 pursuant to the policy decision, clause 15 of the policy decision dated 07.05.2008 could not have been given effect to by the respondents and therefore inclusion of clause regarding penalty in the sale notification vide clause - 17 and in the license vide clause – 12 (b) (i) is arbitrary and hence violative of Article 14 of the Constitution of India.

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m) He further submits that the inclusion of the aforesaid clauses in the sale notification and the license are dehors, the provisions of the Excise Act as well as the rules and regulations framed thereunder and accordingly they are not backed by any authority of law.

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n) The counsel has referred to Section 42 of the Excise Act, which was adopted by the State of Jharkhand and was made applicable to the State of Jharkhand with effect from 15.11.2000 and submits that at the relevant point of time, no amendment was made by the State of Jharkhand although there has been an amendment made by the State of Bihar in their Excise Act in the year 2007 which may entitle the State of Bihar to impose penalty on account of non-lifting.

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o) He further submits that the State of Jharkhand having not taken any steps to amend Section 42 of the Excise Act, the impugned clauses could not have been included and given effect to by the respondents even if it was mentioned in the sale notice and the license.

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p) Counsel has also referred to Section - 57 of the Excise Act to submit that there is a clear provision that if the holder of a license willfully does any act in breach of the condition of license permit or pass for which a penalty is not prescribed elsewhere in the act he is liable to pay a fine which may extend only to Rs. 500/- and he submits that if there was any violation of terms and conditions of license, then the penalty which could have been imposed was only Rs. 500/- and nothing more.

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q) He further submits that the provision of Section 57 of the Excise Act has been substituted by Jharkhand Excise (Amendment) Act, 2015 in which certain provisions for penalties has been introduced where any loss of excise revenue is involved and he submits that the amendment carried out by the State of Jharkhand is in conformity with the contemplated penalty under Clause 12 (b) (i) of the conditions of license which are involved in this case.

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r) He further submits that the said amendment made by the State of Jharkhand in the year 2015, cannot have a retrospective operation and the penalty imposed by the respondents upon the petitioner cannot be sustained by referring to the subsequent amendment in the Excise Act by the State of Jharkhand in the year 2015.

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s) He has also referred to Section - 90 of the Excise Act ,which deals with power of Board to make rules and he refers to Section 90 (9) of the Excise Act which enables the Board to make rules for prescribing the restrictions under which, or the conditions on which, any license permit or pass may be granted and in particular and without prejudice to the generality of this

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provisions, the board is entitled to make rules for the items mentioned in Section 90 (9) of the Excise Act only.

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t) He submits that there is no provision empowering the Board to make rules in connection with imposition of penalty. Counsel also submits that the terms and conditions of license are prescribed under Section 38 of the Excise Act which provides that the license shall be granted on payment of fees and subject to such restrictions and on such conditions and shall be in such form and contain such particulars as the Board may directs.

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u) The counsel for the petitioner further submits that since there was no sale of the liquor to the extent it was not lifted, therefore the incidence of imposition of excise duty, sales tax etc. was totally absent and the same could not have been imposed by the respondents by including a clause in the sale notification or the license fee.

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v) Counsel for the petitioner has referred to a judgment passed by Hon’ble Supreme Court reported in AIR 1971 SC 517 ; 2006 4 SCC 327 and ( 1975) 2 SCC 633 and he has reiterated that the conditions of license and the sale notification are in conflict with Section 57 ( C ) of the Excise Act.

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5. Counsel appearing on behalf of the respondents on the other hand by referring to para 14 of the counter affidavit submits that the petitioner had participated in the liquor vend with his open eyes and there was clause in the sale notification and also in the license in connection with imposition of the amount and its recovery from the petitioner on account of loss incurred by the respondents due to non-lifting of minimum guaranteed quantity of liquor and the consequences of penalty was also mentioned therein, but the petitioner completed the license period and at the time of refund of the security amount when the penalty was sought to be recovered, he has raised these points for the first time. He submits that as per the licence itself the petitioner was bound to lift the minimum guaranteed

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quantity and the consequences of non -lifting was itself provided in the licence itself and there conditions were followed by the conditions which were already mentioned in the sale notification.

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6. The counsel submits that the licence granted to the petitioner was one of exclusive privilege of the state and the petitioner does not have any right to trade in liquor. She refers to the judgment passed by the Hon’ble Supreme Court (1984) 3 SCC 634 para – 8 to submit that it has been held by Hon’ble Supreme Court that one who makes a bid for grant of such exclusive privilege with full knowledge of the terms and conditions attached to the auction, cannot be permitted to wriggle out of the contractual obligation arising out of the acceptance of his bid. She has also referred to another judgment ( 1996) 5 SCC 740 para 21 and has submitted that it has been held that the extraordinary jurisdiction of High Court under Article 226 of the Constitution of India which is of discretionary nature and is exercised only to advance the interest of justice and it cannot be employed in aid of persons who enter into certain contractual obligations with eyes open and work entire contract, neither justice nor pity is in their favour. Counsel for the respondents also submits that the petitioner do not have any right to trade in liquor and accordingly the submissions made by the petitioner do not call for any interference as the impugned actions of respondents do not violate Article 14 of the Constitution of India. She submits that merely because in the policy document an amendment was contemplated in Section 42 of the Excise Act and such amendment having not been made, does not dis-entitle the respondents from incorporating the clause regarding penalty in the sale notification as well as in the license. She submits that there is no bar under the Excise Act regarding imposition of such clause in the sale notification as well as in the license. The respondent have also relied upon a judgment passed by this

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Court reported in ( 2014) 2 JLJR 668 para – 59 which reads as follows:

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“59. To summarize our conclusion:-

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In exercise of the delegated powers of legislation under Section 89, the State has the legislative competence to make rules for payment of interest for the period of delay in deposit of one twelfth of annual licence fee. Rule 15 of the Jharkhand Excise (Settlement of Licence For Retail Sale of Liquor) Rules, 2009 is in conformity with the Bihar Excise Act, 1915 and there is no arbitrariness or unreasonableness. In terms of Section 38 read with Rule 15, the provisions under clause 13 (kha) imposing interest at the rate of 5% per day in case of default is one of the terms and conditions for grant of license. Having accepted the terms and conditions of the license and having taken advantage thereunder, the petitioners cannot wriggle out of the contractual obligation. There is no merit in the challenge made to the vires of Rule 15 of the Jharkhand Excise (Settlement of Licence For Retail Sale of Liquor) Rules, 2009 and clause 13 (kha) of the sale notification (dated 2.3.2009) and to the initiation of certificate proceedings.”

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7. After hearing the counsel for the parties and after considering the materials on record, this Court finds as under:

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i. The provisions of liquor vend are governed by the Bihar Excise Act, 1915 and the Rules and Regulations framed thereunder which was made applicable to the State of Jharkhand by its adoption with effect from 2000.

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ii. The period involved in this case is 2008-09. On 7.05.2008, a policy decision was taken by the State Government wherein, it was contemplated to realize the loss of revenue incurred by the respondents due to non-lifting of minimum guaranteed quantities of liquor and also for imposition of penalty due to such non-lifting which was contemplated to be three times and it was also contemplated that an amendment in Section 42 of the said Act was to be carried out.

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iii. However, the respondents came up with the sale notification which incorporated the aforesaid provisions as terms and conditions of the sale notification itself, the petitioner duly participated in the aforesaid sale notification and was granted license in Form No. 26 C which also incorporated such conditions.

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iv. The license of the petitioner was operative from 12.11.2008 to 31.03.2009 and the petitioner completed the entire license period. However, there was a shortfall in lifting which was a total of 21,224 bulk liters of beer and which was equivalent to 2,722 cases.

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v. Section 38 of the Excise Act reads as follows:-

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“ 38. Fees for terms, conditions, and form of, and duration of, licences, permits and passes. – (1) Every licence, permit or pass granted under this Act –

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(a) shall be granted –

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(i) on payment of such fees (if any), and

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(ii) subject to such restrictions and on such conditions, and

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(b) shall be in such form and contain such particulars, as the

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Board may direct.

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(2) Every license, permit or pass under this Act shall be granted for such period (if any) as may be prescribed by rule made by the State Government under Sections 89, clause (e).”

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vi. This Court finds that Section 38 of the Excise Act interalia provides that every license, permit or pass granted under the Excise Act shall be subject to such restrictions and on such conditions, and shall be in such form and contain such particulars as the board may direct.

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vii. Accordingly, the terms and conditions of license is to be laid down by the Board of Revenue. Apart from Section 38, the Board of Revenue has also been empowered to make rules under Section 90 (9) for prescribing the restrictions under which or the conditions on which any license permit or pass may be granted

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under the Excise Act and without prejudice to the generality of this provision, it has been specifically mentioned that the Board may make rules for a number of items mentioned in Section 90 (9) of the aforesaid Act. Section 90(9) of the Excise Act reads as under:

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“(9) For prescribing the restrictions under which or the conditions on which any license, permit or pass may be granted, and in particular, and without prejudice to the generality of this provision, may make rules for –

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(i) prohibiting the admixture with any intoxicant or any article deemed to be noxious or objectionable.

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(ii) regulating or prohibiting the reduction of liquor by a licensed manufacturer or licensed vendor from a higher to a lower strength,

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(iii) prescribing the nature and regulating the arrangement of the premises in which any intoxicant may be sold, and prescribing the notices to be exposed at such premises,

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(iv) prohibiting or regulating the employment by the licensee of any person or class of persons to assist him in his business,

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(v) prohibiting the sale of any intoxicant except for cash,

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(vi) prescribing the days and hours during which any licensed premises may or may not be kept open, and providing for the closing of such premises on special occasions,

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(vii) prescribing the accounts to be maintained and the returns to be submitted by licensees, and

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(viii) regulating the transfer of licenses.”

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viii. This Court finds that the power of Board under Section 90 (9) is not exhaustive and the items mentioned therein are only illustrative.

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ix. This Court also finds that as per Section 38 of the Excise Act, the Board has got the power to frame the terms and conditions on which the license is to be granted and exercise of power under Section 38 is not depending upon any other provisions of the Act. However, certainly no such terms and conditions be put by the Board of Revenue which is in conflict

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with the provisions of the Excise Act and the rules and regulations framed thereunder.

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x. Counsel for the petitioner has not been able to show any provisions from the Excise Act which deals with consequences of non-lifting of minimum guarantee. He has referred to Section 42 which deals with power to cancel or suspend license permit or pass. He has referred to Section 57 of the Excise Act which provides for consequence of any act done in breach of the conditions of license.

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xi. This Court finds that there is no provisions under the Act or the rules dealing with consequences of non-lifting of minimum guarantee quota.

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xii. This court finds that the requirement of lifting the minimum guarantee quota and consequences of its non-lifting has been provided in the sale notice as well as in the licence issued to the petitioner. The petitioner in this writ petition has only challenged the clause of the sale notification and has not challenged the similar clause in the licence issued to the petitioner.

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xiii. This Court also finds that although in the policy document dated 07.05.2008, it was contemplated that the consequences of non-lifting of minimum guaranteed quota will be incorporated in the Excise Act by virtue of an amendment in Section 42, but the fact remains that no such corresponding amendment was carried out by the State of Jharkhand and the Excise Act remained totally silent in connection with the consequences of non-lifting of minimum guaranteed quota.

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xiv. That there is no provision under the Excise Act regarding the consequences of any action of the party which leads to revenue loss to the State.

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xv. Accordingly, this Court finds that it was open to the respondents to put a condition in the sale notification regarding the consequences which has to follow on account of non-lifting

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of minimum guaranteed quota which certainly led to loss of revenue to the State. However, the conditions of license which have been incorporated by the Board in exercise of power under Section 38 of the Excise Act and the conditions to be put in the license has been left to the wisdom of the Board.

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xvi. This Court finds that there being no such provisions under the Act regarding the consequences of action of the petitioner causing revenue loss therefore there was no illegality in incorporation of such condition.

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xvii. No person has a right to trade in liquor and it is the exclusive privilege of the State which is being granted to various persons through auction sale of liquor vend and consequent issuance of license enabling them to enter into liquor trade.

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xviii. In aforesaid circumstances, this Court does not find the clause - 17 of the sale notice or clause - 12 of the license violative of Article 14 of the Constitution of India or in conflict with any of the provisions of the Excise Act. However the clause 12 of the licence is not under challenge as per the prayer made by the writ petitioner in the writ petition.

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xix. This Court also finds that the petitioner duly participated pursuant to the sale notice with his open eyes and also entered into the license with similar condition and therefore after the end of the license period, it is not open to the petitioner to turn around and say that he is not bound by the aforesaid clauses of the sale notice or the license.

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xx. So far as the contention of the petitioner that excise duty and other statutory levies are being realized on unlifted quantities and the incidence of those taxes are totally absent, is concerned, this Court finds that the clause 12 of the license is only a method of calculation to arrive at the revenue loss / economic penalty to be imposable upon the petitioner and the same does not amount to realization of statutory taxes or duties on nonlifting.

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xxi. The judgment which has been relied upon by the petitioner reported in AIR 1971 SC 517 is clearly distinguishable on account of fact that the clause which was subject matter in that particular judgment is totally distinct.

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xxii. In the said judgement, there was a clear provision that the petitioner of the said case was required to make payment of the duty in relation to the unlifted quantity. On the other hand , in the instant case, the impugned clause of the sale notice and corresponding clause of the licence merely quantifies the loss incurred to the State on account of the omission or failure on the part of the petitioner to lift the minimum guaranteed quantity and it is the loss or penalty being levied pursuant to such quantification and cannot be termed as realization of any excise duty or any other statutory levy for short lifting of liquor. Accordingly, this Court finds that the judgment which is relied upon by the petitioner reported in AIR 1971 SC 517 is clearly distinguishable on the facts and circumstances of this case.

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xxiii. So far as the judgment reported in ( 2006) 4 SCC 327 is concerned, it has been held by Hon’ble Supreme Court that while imposing terms and conditions in terms of Section 18 A of the Kerela Act involved in the said case, the State cannot take recourse to something which is not within the jurisdiction or what is otherwise prohibited in law.

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xxiv. This Court finds that the impugned clause in this case is not contrary to any provision of the Excise Act or the rules and regulations framed thereunder or any other law and was within the jurisdiction of the Board of Revenue who had introduced the clause in exercise of power under the Excise Act. In view of this finding, this Court finds that the judgment passed by Hon’ble Supreme Court reported in (2006) 4 SCC 327 does not apply to the facts and circumstances of this case. Para 22 to 28 of the said judgment has been quoted herein below for ready reference:

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“22. It is, furthermore, not in dispute that Article 14 of the Constitution would be attracted even in the matter of trade in liquor.

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23. In State of M.P. v. Nandlal Jaiswal this Court opined: (SCC pp. 604-05, para 33)

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“The State under its regulatory power has the power to prohibit absolutely every form of activity in relation to intoxicants—its manufacture, storage, export, import, sale and possession. No one can claim as against the State the right to carry on trade or business in liquor and the State cannot be compelled to part with its exclusive right or privilege of manufacturing and selling liquor. But when the State decides to grant such right or privilege to others the State cannot escape the rigour of Article 14. It cannot act arbitrarily or at its sweet will. It must comply with the equality clause while granting the exclusive right or privilege of manufacturing or selling liquor. It is, therefore, not possible to uphold the contention of the State Government and Respondents 5 to 11 that Article 14 can have no application in a case where the licence to manufacture or sell liquor is being granted by the State Government. The State cannot ride roughshod over the requirement of that article.”

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24. In Khoday Distilleries Ltd. v. State of Karnataka6 a Constitution Bench of this Court upon referring to a large number of decisions summed up its findings in the following terms: (SCC p. 609, para 60) “60. (e) For the same reason, the State can create a monopoly either in itself or in the agency created by it for the manufacture, possession, sale and distribution of the liquor as a beverage and also sell the licences to the citizens for the said purpose by charging fees. This can be done under Article 19(6) or even otherwise.

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(f) For the same reason, again, the State can impose limitations and restrictions on the trade or business in potable liquor as a beverage which restrictions are in nature different from those imposed on the trade or business in legitimate activities and goods and articles which are res commercium. The restrictions and limitations on the trade or business in potable liquor can again be both under Article 19(6) or otherwise. The restrictions and limitations can extend to the State

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carrying on the trade or business itself to the exclusion of and elimination of others and/or to preserving to itself the right to sell licences to do trade or business in the same, to others.

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(g) When the State permits trade or business in the potable liquor with or without limitation, the citizen has the right to carry on trade or business subject to the limitations, if any, and the State cannot make discrimination between the citizens who are qualified to carry on the trade or business.”

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25. While imposing terms and conditions in terms of Section 18-A of the Act, the State cannot take recourse to something which is not within its jurisdiction or what is otherwise prohibited in law. Sub-sections (c) and (d) of Section 24 of the Act provide that every licence or permit granted under the Act would be subject to such restrictions and on such conditions and shall be in such form and contain such particulars as the Government may direct either generally or in any particular instance in this behalf. The said provisions are also subject to the inherent limitations of the statute. Such an inherent limitation is that the rules framed under the Act must be lawful and may not be contrary to the legislative policy. The rule-making power is contained in Section 29 of the Act. At the relevant time, sub-section (1) of Section 29 of the Act provided that the Government may make rules for the purpose of carrying out the provisions of the Act which has been amended by Act 12 of 2003 with effect from 1-4-2003 empowering the State to make rules either prospectively or retrospectively for the purposes of the Act. 26. Its power, therefore, was to make rules only for the purpose of carrying out the purposes of the Act and not dehors the same. In other words, rules cannot be framed in matters that are not contemplated under the Act.

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27. The State may have unfettered power to regulate the manufacture, sale or export-import sale of intoxicants but in the absence of any statutory provision, it cannot, in purported exercise of the said power, direct a particular class of workers to be employed in other categories of liquor shops.

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28. The Rules in terms of sub-section (1) of Section 29 of the Act, thus, could be framed only for the purpose of carrying out the provisions of the Act. Both the power to frame rules and the power to impose terms and conditions are, therefore, subject to the provisions of the Act. They must conform to the legislative policy. They must not be contrary to the other provisions of the Act. They must not be framed in contravention of the constitutional or statutory scheme.”

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xxv. In the instant case, this Court is of the considered view that the impugned clause of the sale notice conforms to the legislative policy of the State as mentioned in the policy document contained in annexure-1 to the writ petition and the same is in neither in contravention of the Constitutional scheme, nor in contravention of any of the provisions of the Excise Act, rules and regulations and within the domain of the Board to revenue who has been empowered to fix the terms and conditions of the liquor vend.

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xxvi. The third judgment which has been relied upon by the petitioner reported in (1975) 2 SCC 633 is also not applicable to the facts and circumstances of this case. The petitioner has relied upon para 28 and 29 of the said judgement and the matter related to the issue price and it was held that issue price relates only to liquor drawn by the contractor and does not pertain to undrawn liquor and therefore no excise duty can be collected on undrawn liquor.

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xxvii. As this Court has already held that by virtue of the impugned clause of the sale notice as well as license the respondents are not realizing the excise duty and other statutory levies and it is only referred to for the purposes of quantification of the consequences of non-adherence to the terms and conditions of the license which includes non-lifting of minimum guaranteed quantity of liquor causing loss to the respondents. Therefore, this particular judgment which has been relied upon by the petitioner also does help the petitioner in any manner.

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xxviii. This Court finds that what is sought to be recovered from the petitioner is the consequence already contemplated in the license on account of failure on the part of the petitioner to lift the minimum guaranteed quantity.

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xxix. As a cumulative effect to the aforesaid findings, this Court does not find any illegality or perversity in the impugned action of the respondent as well as the impugned clause of the sale notice. This is over and above the aforesaid finding that the petitioner duly participated pursuant to the sale notice with his open eyes and also entered into the license with similar condition and therefore after the end of the license period, it is not open to the petitioner to turn around and say that he is not bound by the aforesaid clauses of the sale notice or the license. Accordingly, this writ petition is dismissed.

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(Anubha Rawat Choudhary, J.)

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Saurav /A.F.R.

Ms Pick Up Credit and Trading Co. Pvt. Ltd. through Its Director Mukesh Kumar v. Excise Department

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Ms Pick Up Credit and Trading Co. Pvt. Ltd. through Its Director Mukesh Kumar v. Excise Department

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