2023 (11) TMI 1318 - HC - Companies Law

Maintainability of petition - availability of alternative remedy - Refund of excise duty and VAT deposited by license holder for the Financial Year (FY) 2016-17 with reference to deposit of interim VAT and excise duty which has not been utilized it was to be refunded on proportionate basis. Refund of Excise Duty - HELD THAT - It is evident that the petitioners have no statutory remedy and identified authority in the absence of Rules framed under Section 92(3) of the Act. As on the date of impugned order excise duty is not leviable in respect of un-sold or unutilized liquor stock since there is no provision for levying of excise duty on unsold liquor stock therefore levying or retention of excise duty paid in advance is in absence of source of law therefore action of the State- respondent in retention of excise duty paid by the petitioner in advance is in the absence of any source of power under the Act 1915 and Rules 1919 read with any excise liquor sourcing policy or notification issued under statute. There are no valid fresh reasons as to why the petitioners are not entitled to refund of excise duty etc. On the other hand Excise Commissioner has reiterated the earlier decision in the impugned order. Maintainability of writ petitions in the absence of exhausting statutory remedies - HELD THAT - Rules 1979 read with Schedule 3(i) is not attracted. It is only for the purpose of administration. Further when there is specific provision under Section 92(3) of Act 2016 for framing of Rules and identification of appellate/revisional authority and the same has not been acted upon hence Rules 1979 is not attracted. Rules 2021 were notified subsequent to the impugned orders and filing of these bunch of petitions. Even Rule 24 of Rules 2021 there is no identification of Appellate authority and on the other hand Revisional authority has been identified as Departmental Secretary. Moreover there are no new reasons assigned by the Excise Department with reference to remand by this Court on earlier occasion. Therefore there is no point in invoking remedy of appeal - the petitioners have made out prima facie case so as to entertain the present writ petitions in the absence of invoking statutory remedy before the appellate and revisional authorities. Levy of Excise duty on sale or liquor for human consumption - HELD THAT - It is necessary to take note of statutory provision of Entry 51 of List II of Constitution of India about power of State to levy excise duties and it could be levied only in respect of alcoholic liquors for human consumption. In respect of the aforementioned unsold stocks the same were not consumed by the end users. In other words there is no sale. Be that as it may such un-sold stock would be wasteful alcoholic liquors for human consumption in view of the fact that excise departmental authorities have destroyed the unsold stocks which were lying in the manufacture unit goods that were in transit and goods which were lying with BSBCL - The overall intention of the State is to levy excise duty on alcoholic liquors for human consumption. Therefore levy of excise duty or retention of petitioners money towards the levy of excise duty or any adjustment of excise duty towards destroyed liquor stocks is without authority of law - the levy could be only on sale or liquor for human consumption and in the present case for destroyed liquor levy of Excise duty is not permissible. Perusal of the records the authorities have determined certain fees like 19C fees bottling fee-19B (BSBCL) stock plus factory stock excise duty label registry fees excise duty-PLA these were not identified under the Excise Department Notification dated 05.04.2006. The State have not apprised this Court with any other notification as to how the excise duty would be levied and its break up like on manufacture bottling labelling transport and sales etc. Further Excise Department have not produced any material to show that what is the principle or structure of levying fees and excise duty as determined by the officials on the terms and conditions - levying of 19-C fees bottling fee-19B label registration fee particular amount is not forthcoming in any of the Government Notification so as to identify the respective fee or excise duty. Therefore there is a non-application of mind insofar as identification of any fees structure. The petitioners are directed to file their respective claim of refund of excise duty before the concerned Excise Commissioner. The Excise Commissioner is directed to verify the records and disburse the withheld excise duty to the respective petitioners within a period of four months from the date of receipt of the respective claim of the each of the petitioners - petition disposed off.

Summary

Issues Involved:

1. Maintainability of writ petitions in the absence of exhausting statutory remedies.
2. Legality of levying excise duty on unutilized liquor stocks.
3. Entitlement to reliefs, including refund of excise duty and other levies.

Detailed Analysis:

1. Maintainability of Writ Petitions:

The court examined whether the writ petitions were maintainable without exhausting statutory remedies under the Bihar Prohibition and Excise Act, 2016. It was noted that the petitioners had a statutory remedy of appeal and revision under Sections 92 and 93 of the Act. However, the appellate authority was not clearly identified in the relevant rules at the time of the impugned orders. The court emphasized that statutory remedies must be exhausted unless there are exceptional circumstances, such as violation of natural justice or lack of jurisdiction. The court found that, in this case, the absence of an identified appellate authority and the arbitrary actions of the Excise Commissioner justified the exercise of writ jurisdiction.

2. Legality of Levying Excise Duty on Unutilized Liquor Stocks:

The court addressed whether excise duty could be levied on unutilized liquor stocks that were not sold or consumed. It was highlighted that excise duty is typically levied on goods intended for human consumption. The court referred to the constitutional provisions and relevant statutes, including the Bihar Prohibition and Excise Act, 2016, and concluded that excise duty could not be levied on unsold or destroyed liquor stocks. The court cited previous judgments, including the USL and Pernod cases, which had already settled this issue. The court reiterated that the Excise Commissioner could not levy or retain excise duty on unutilized stocks, as it lacked legal authority.

3. Entitlement to Reliefs:

The court considered the reliefs sought by the petitioners, primarily the refund of excise duty and other levies. It was determined that the petitioners were entitled to a refund of excise duty paid on unutilized stocks, as the levy was without legal authority. The court set aside the impugned orders of the Excise Commissioner and directed the petitioners to file their claims for refunds. The Excise Commissioner was instructed to verify the claims and disburse the withheld excise duty within four months.

In conclusion, the court allowed the writ petitions, set aside the impugned orders, and directed the refund of excise duty to the petitioners. The court underscored the importance of adhering to legal principles and ensuring that levies are imposed only with proper authority.