2024 (5) TMI 982 - HC - Indian Laws

Rejection of prayer for grant of renewal of license - requirement of minimum distance between L-10BB and L-2 vend - Section 68 (2) of the Himachal Pradesh Excise Act, 2011. Financial Commissioner (Excise), Himachal Pradesh, Shimla while passing order dated 16.04.2024 specifically concluded that license in form L-10BB granted to application was approved and granted only in respect of branch at 269 Ward No.4, The Mall Road, Manali and not for the principal place of business and as such, same cannot be renewed. HELD THAT - This Court finds that it is not in dispute that in the financial year 2020-21, petitioner-firm was granted license form L-10BB for retail sale of beer, wine, cider and RTD beverages and BIO brands in departmental stores at Manali. Aforesaid license issued initially in year 2021 was renewed continuously till financial year 2023-24. It is also not in dispute that prior to issuance of clarification dated 20.12.2023 (Annexure P-4), license holder in form L-10BB were entitled to run their business from branch office. It is only after issuance of aforesaid clarification dated 20.12.2023, condition of doing business from principal place of business came to be imposed as per condition No. 10.8 of Excise Policy for year 2023-24. Careful perusal of clarification issued by respondent-department vide communication dated 20.12.2020 reveals that after issuance of aforesaid communication, business in terms of license in form L-10BB could only be done in terms of condition No. 10.8(vi) of Excise Policy 2023-24, meaning thereby, after issuance of aforesaid clarification, L-10BB license holder are not permitted to function from the branches of departmental store, but there is nothing in the aforesaid announcements, especially detailed in condition No. 10.8 that prayer, if any made, for renewal of license in form L-10BB made on behalf of such of the licensees, who though earlier in terms of aforesaid license were doing their business from branch but had eventually decided to shift their branch to principal place of business, cannot be accepted. Reliance is also placed upon judgment by Principal Division Bench in MOHAN MEAKIN LTD. AND ORS. VERSUS STATE OF H.P. AND ORS. 2019 (9) TMI 1728 - HIMACHAL PRADESH HIGH COURT , wherein it specifically came to be ruled that till the time, amendment is not made in the Rules, the conditions contained in Excise Policy cannot be enforced, especially when same is in contradiction with the provision contained in the Rules - It is quite apparent from the law laid down by the Division Bench of this Court that conditions contained in Excise Announcements made for a particular financial year cannot be enforced, in case, same are contrary to the Rules, whereunder licensee is granted license to do the business of liquor, be it in form of L-10BB or L-2 vend. This Court finds merit in the present petition and as such, same is allowed and impugned order dated 16.04.2024 passed by Financial Commissioner (Excise), Himachal Pradesh (Annexure P-10) is quashed and set aside with the direction to respondents to accept the prayer made by the petitioner for grant of renewal of license L-10BB on account of the fact that premises, wherein business was being run in previous years in terms of form L-10BB stands upgraded to principal place of business, as is evident from the amended GST Registration Certificate issued by the authority concerned. Petition allowed.

Summary

Issues Involved:
1. Validity of the non-renewal of the L-10BB license.
2. Applicability of Excise Policy conditions versus statutory rules.
3. Impact of GST Registration Certificate amendment on license renewal.

Summary:

1. Validity of Non-Renewal of L-10BB License:
The petitioner challenged the order dated 16.04.2024 by the Financial Commissioner (Excise), Himachal Pradesh, which dismissed the appeal against the Collector (Excise)-cum-Joint Commissioner (ST&E), Central Zone, Mandi's order dated 30.03.2024. The petitioner, a license holder in form L-10BB since 2021-22, had his license initially issued and subsequently renewed for 2022-23 and 2023-24. A clarification dated 02.08.2021 allowed licenses if the gross annual turnover was more than Rs. 2 crore, but this was withdrawn on 20.12.2023, enforcing that licenses be granted strictly as per condition No. 10.8 of the Excise Policy for 2023-24. The petitioner's license was made operative only from the principal place of business, not branches. Despite applying for an amendment of the GST Registration Certificate to shift the business to the principal place of business, the renewal was denied.

2. Applicability of Excise Policy Conditions versus Statutory Rules:
The petitioner argued that the Excise Policy's condition No. 10.8(vi) for 2023-24 and condition No. 9.8 for 2024-25, which stated that L-10BB licenses shall not function from branches, did not preclude renewal after shifting to the principal place of business. The petitioner also highlighted that Rule 19-A of The Himachal Pradesh Liquor License Rules, 1986, does not mention the requirement of a minimum distance between L-10BB and L-2 vend, which was a condition in the Excise Policy. The court observed that conditions in the Excise Policy cannot override statutory rules unless amended.

3. Impact of GST Registration Certificate Amendment on License Renewal:
The petitioner's application for amending the GST Registration Certificate to change the business location from branch to principal place was approved on 09.04.2024, effective from 14.03.2024. The court noted that the amendment should have been considered favorably for the renewal of the license. The Financial Commissioner should have taken into account the subsequent development of the GST Registration Certificate amendment while deciding the appeal.

Conclusion:
The court found merit in the petition and quashed the impugned order dated 16.04.2024 by the Financial Commissioner (Excise). It directed the respondents to renew the L-10BB license, acknowledging the change of business premises to the principal place as per the amended GST Registration Certificate. The needful was to be done expeditiously within ten days to prevent financial loss to the petitioner and the State Exchequer. The petition and pending applications were disposed of accordingly.