Disposed

Reji K Varghese v. the Deputy Commissioner of Excise

Kerala HC21 Jul 2022WA/867/2022

Case brief

AI extract

What is this about?

The High Court, instead of finally adjudicating the petitioner's claims for refund of license fees for non-operational periods during the pandemic in various representations, directed the respondents to record remarks and forward the matter for a considered decision by the competent authority with an adherence to the original judgment's benefits.

What did the court decide?

Directed respondents to record remarks on pending representations and forward the matter for a considered decision by the State Government/Taxes Department within specific timelines.

Reji K Varghese Vs the Deputy Commissioner of… — Pension and Retirement Benefits | Kerala HC (2022)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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THURSDAY, THE 21^ST DAY OF JULY 2022 / 30TH ASHADHA, 1944 WA NO. 867 OF 2022

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AGAINST THE ORDER/JUDGMENT WP(C) 17659/2022 OF HIGH COURT OF KERALA

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APPELLANT:

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REJI K VARGHESE AGED 59 YEARS S/O K.V. VARGHESE MANAGING DIRECTOR, SAJ LUCIA, M/S. KANICHAI HOTELS PVT. LTD., TC 80/1134, EAST FORT THIRUVANANTHAPURAM - 695023 RESIDING AT TC 14/352, KANJIRAKATTU HOUSE, KUMARAPURAM, TRIVANDRUM - 11, PIN - 695023 BY ADVS. MILLU DANDAPANI RONIT ZACHARIAH

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RESPONDENTS:

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1 THE DEPUTY COMMISSIONER OF EXCISE OFFICE OF THE DEPUTY COMMISSIONER OF EXCISE EAST FORT, THIRUVANANTHAPURAM - 695 023, PIN - 695023 2 EXCISE COMMISSIONER OFFICE OF THE EXCISE COMMISSIONER, EXCISE HEAD QUARTERS NANDAVANAM, PALAYAM, THIRUVANANTHAPURAM - 695 033, PIN - 695033 3 STATE OF KERALA REPRESENTED BY JOINT SECRETARY, TAXES (G) DEPARTMENT, GOVERNMENT SECRETARIAT, MAHATMA GANDHI ROAD JUNCTION, PALAYAM, THIRUVANANTHAPURAM - 695 001, PIN - 695001

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OTHER PRESENT:

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SRI. SAIGI JACOB PALATTY-SR.GP

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WA No.867 of 2022

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ALEXANDER THOMAS & SHOBA ANNAMMA EAPEN, JJ.

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==================

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WA No.867 of 2022

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(arising out of WP(C) No.17659/2022 dated 01.06.2022)

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==================

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Dated this the 21^st day of July, 2022

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J U D G M E N T

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ALEXANDER THOMAS, J.

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The afore captioned writ appeal has been filed to impugn the judgment dated 01.06.2022 rendered by the learned Single Judge, disposing the instant Writ Petition (Civil), WP(C) No.17659/2022 to the extent it denies the benefits claimed by the petitioner as made out in Exts.P3, P7 and P8 representations. The appellant herein is the petitioner in the WP(C) and the respondents herein are the respondents in the WP(C).

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Heard Sri. Millu Dandapani, learned Counsel appearing for the appellant in the WA/petitioner in the WP(C) and Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the respondents in the WA/respondents in the WP(C).

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The prayers in the instant Writ Petition (Civil) are as follows:

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WA No.867 of 2022

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“(i) To declare that the petitioner is entitled to refund of proportionate licence fee for all non-operational periods.

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(ii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to refund the proportionate license fee for the periods of nonoperation to the petitioner by considering Exts.P3, P7 and P8 representation.

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(iii) To issue a writ, order or direction, directing the respondents to adjust the refund amount outstanding in favor of the petitioner to the license fee to be collected for the renewal of the same in the upcoming financial year.

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(iv) Such other relief as this Hon'ble Court deems fit in the facts and circumstances of the case. (v) award costs.”

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The learned Single Judge, after hearing both sides, has

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rendered the impugned judgment on 01.06.2022, disposing the WP(C) No.17659/2022 filed by the appellant by ordering that the petitioner herein is entitled for the benefit of Ext.P6 GO(Rt) No.242/2022/TAXES dated 01.04.2022 and that benefits in that regard should be extended to the petitioner. The plea of the petitioner is for refund of proportionate licence fee in respect of running of his FL3 and FL11 licenses conducted in his hotel for the non-operational periods during the Covid-19 pandemic period. The claim of the petitioner made out in Ext.P3 representation dated 30.09.2018 submitted before the 1^st respondent is for refund of the alleged excess amount by way of license fee collected for the period 2017-2018 in respect of his FL3 and FL11 licenses. The learned Single Judge has held that the claim for the said prior period of 2017-18 is barred by unexplained and inordinate delay and laches and therefore

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WA No.867 of 2022

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cannot be entertained.

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The claim of the petitioner made out in Ext.P7 representation dated 05.05.2022 is for refund of the license fee for the non-operational period of 39 days in the financial year 2020-21.

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Whereas the claim made out by the petitioner in Ext.P8 representation dated 05.05.2022 is for refund of the license fee for the non-operational period from 01.04.2021 to 23.04.2021 inasmuch as the licence was for the period from 01.04.2021 to 23.04.2021 as well as the subsequent period of 52 days from 22.04.2021 up to 14.06.2021, the latter period of which is covered by Ext.P6 GO(Rt) No.242/2022/TAXES dated 01.04.2022.

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As regards the matters in Ext.P3, the appellant's counsel would contend that the finding made by the learned Single Judge in the impugned judgment, ie, claim for the said prior period of 2017-18 is barred by inordinate delay etc is not tenable inasmuch as there is no specific period of limitation for refund of license fee and therefore the limitation period specified in Article 113 of the Limitation Act, 1963 would be applicable, ie, 3 years from the date which the right so accrues and that in the instant case, for refund of the proportionate license fee for the financial year 2017-18 accrued on the appellant on 31.03.2018 and

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WA No.867 of 2022

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therefore, limitation period would have otherwise expired only by 31.03.2021. Further that, by virtue of the orders of limitation exclusion ordered by the Apex Court due to Covid – 19 pandemic issues, the period from 15.03.2020 up to 28.02.2022 will stand excluded for computing the period of limitation etc. That in the instant case, petitioner has filed Ext.P3 representation on 30.09.2018, which is well within the said period of limitation so computed. Per contra, Sri. Saigi Jacob Palatty, learned Senior Government Pleader would contend that claim for refund of fee made out in Ext.P3 is not maintainable going by the provisions contained in the Abkari Act and the rules framed thereunder and further that, even if it is assumed that the claim may be maintainable, the same should be made at the earliest and therefore the finding of the learned Single Judge is not liable for interference.

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After hearing both sides, we are of the view that the abovesaid contentions raised by the petitioner as enumerated in ground B regarding the limitation etc, need not be decided by us and it is for the 1^st respondent or the competent authority among the respondents to consider and take a decision on the various aspects, in Ext.P3 representation dated 30.09.2018 after affording opportunity of being heard to the petitioner, without much delay and in that process, the

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WA No.867 of 2022

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matters relating to maintainability of the claim as well as the issue as to whether the claim is otherwise barred by delay etc, could also be evaluated by competent authority among the respondents.

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The matter relates to Ext.P7 representation, so also the competent authority among the respondents may take decision on Ext.P7 representation for the period mentioned therein without much delay after affording reasonable opportunity of being heard. As regards the matter in Ext.P8, it is seen that P8 representation dated 05.05.2022, the claim therein is for the period from 01.04.2021 to 23.04.2021 as well as for the period from 24.04.2021 to 14.06.2021 which is the subject matter of Ext.P6 claim. As regards the former period from 01.04.2021 to 23.04.2021, it is the case of the appellant that he was actually issued a licence only on 10.05.2021 due to Covid-19 pandemic issues and relief is granted by Ext.P6 GO dated 01.04.2022 for a 52 days period from 24.04.2021 to 14.06.2021 and therefore, petitioner is also entitled for getting refund of the licence fee for the non-operational period from 01.04.2021 to 23.04.2021 etc. The learned Single Judge has already ordered that the petitioner is entitled to get the benefit of Ext.P6 GO(Rt) No.242/2022/TAXES dated 01.04.2022 which is for the period from 24.04.2021 to 14.06.2021. The claim in Ext.P8 may also be considered

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WA No.867 of 2022

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and decided by the competent authority among the respondents after hearing the petitioner, within a reasonable period and also taking note of the fact that the learned Single Judge as per the impugned judgment has already directed that the benefit in terms of Ext.P6 is to be granted etc. We are told by both sides that though the representation is formally filed before the 1^st respondent Deputy Commissioner of Excise, he will have to give his remarks and forward the matter to the 2^nd respondent Commissioner of Excise and the ultimate decision may have to be taken by the 3^rd respondent competent authority among the State Government in the Taxes Department.

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Accordingly it is ordered that respondents 1 and 2 may give their remarks in the matter on the claims put forward by the petitioner in Exts.P3, P7 and P8 representations and then forward the matter to the competent authority among the State Government in the Taxes Department. Copy of the remarks so made by respondents 1 & 2 on the matters in Exts.P3, P7 and P8 should also be furnished to the appellant in advance. Thereafter the competent authority among the 3^rd respondent State Government in the Taxes Department will afford reasonable opportunity of being heard to the petitioner, either in person or through authorised representative / counsel if any, and then should take a

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WA No.867 of 2022

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considered decision on the matters raised in Ext.P3, P7 and P8 representations in accordance with law and also taking note of the directions issued by the learned Single Judge in the impugned judgment that the petitioner is entitled for the benefit as per Ext.P6 GO. While taking a decision on the claim at Ext.P3, due regard may also be made to the contentions raised by the petitioner regarding the limitation aspect and his explanation for the delay. The 1^st and 2^nd respondents should ensure that their remarks in the matter may be furnished with the 3^rd respondent within one month with copy to the appellant and thereafter the 3^rd respondent should take final decision in the matters in Exts.P3, P7 and P8 within two months thereafter preferably at any rate, within 3 months. The directions and orders of the learned Single Judge as per the impugned judgment will stand modified and substituted as above.

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With these observations and directions, the above WA will stand disposed of.

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Sd/-

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ALEXANDER THOMAS, JUDGE

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Sd/-

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SHOBA ANNAMMA EAPEN, JUDGE

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Nsd

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APPENDIX OF WA 867/2022

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PETITIONER ANNEXURES

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Annexure A1 TRUE COPY OF THE MEMORANDUM OF WRIT PETITION ALONG WITH EXHIBITS P1 TO P8 AND AFFIDAVIT FILED IN W.P. (C) NO. 17659/2022

Reji K Varghese v. the Deputy Commissioner of Excise

Case brief

What is this about?

What did the court decide?

Reji K Varghese v. the Deputy Commissioner of Excise

Case brief

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