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TMI Blog2013 (7) TMI 602X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Commissioner on 23.05.2001 during continuance of the 2000-Tender. After issuance of the Circular, ten months period was still left. The Appellant continued during this period without raising any objection; it never claimed relief on this account: it was only after completion of this 2000-Tender and expiry of six months of the 2002-Tender that the Appellant started objecting to the price of the holograms – Held that:- There cannot be estoppel and acquiescence against constitutional and statutory provisions - The claim of the Petitioner cannot be denied on the ground of estopple – However, Circular is supported by a statutory provision and has statutory force – Therefore, no refund/return can be claimed – Decided against the Assessee. - Writ Appeal No. 116 of 2007 - - - Dated:- 15-7-2013 - Shri Yatindra Singh, C.J. And Shri Pritinker Diwaker,JJ. For the Petitioner : Shri AM Mathur, Senior Advocate with Shri Abhishek Sinha, Shri Ghanshyam Patel and Shri Abhinav D Dhannodkar For the Respondent : Shri Kishore Bhaduri, Additional Advocate General JUDGMENT 1. The main question involved in this case is: 'Whether the circular dated 23.05.2001 (the Circular ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed with the Circular but after expiry of six months, filed the representations on 20.11.2002 and 24.01.2003 before the Commissioner mentioning that the purchase of the holograms was a financial loss to the Appellant. It was prayed that the representations be considered sympathetically and appropriate direction be issued in regard to purchase and affixing of holograms. 10. The Appellant also gave a legal notice on 03.03.2003. Thereafter, a Writ Petition-909 of 2003 was filed challenging the Circular. In the said writ petition, prayer for interim relief was rejected by the single judge on 07.04.2003. 11. Against the aforesaid order, the Appellant filed LPA-15 of 2003. This LPA and the writ petition were disposed of on 17.07.2003 granting liberty to the Appellant to file a representation before the State Government. 12. The Appellant filed its representation however, the State Government rejected it on 01.08.2003. 13. The Appellant filed Writ Petition-2503 of 2003 challenging the Circular as well as the order dated 01.08.2003 rejecting the representation. It was dismissed on 19.07.2004 on the ground of alternative remedy of filing a civil suit. 14. Against the aforesaid orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fixed and can be ascertained by the State. The amount paid on the holograms is also fixed. There is no dispute on this amount. The dispute between the parties is about the validity of the Circular. And depending on its validity, the Appellant may get back the amount paid on the holograms. 21. In view of the above, there was no justification to dismiss the writ petition on the ground of alternative remedy and we proceed to decide the case on merits. 2nd POINT: REGULATORY IN NATURE 22. Entry 51 list 2 of schedule VII of the Constitution relates to duty of excise and countervailing duties on alcoholic liquors for human consumption as well as opium, Indian hemp, and other narcotic drugs and narcotics. 23. The aforesaid entry does not include the medicinal and toilet preparations containing alcohol, opium, Indian hemp, and other narcotic drugs and narcotics. Nevertheless, the entry confers regulatory powers on the State Government for the items mentioned in it. This was so explained in State of UP vs Saraya Industries {(2006) 11 SCC 129} (the Saraya case): the case strongly relied by the counsel for the Appellant. 24. The Saraya case related to the holograms, but the controver ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r such a direction could be issued under the law or not; and Whether due to financial burden of affixing holograms at the rate of 11.2 paise per hologram, the Appellant could claim revision of rates or damages by way of return of the price paid. This will be discussed, while considering the 3rd and 4th point. 3rd POINT: THERE IS A STATUTORY PROVISION 32. The counsel for the Appellant relied upon the following cases: (i) The Saraya Case; (ii) M/s Gupta Modern Breweries vs State of Jammu Kashmir {2007 (5) SCALE 842} (the Modern-Breweries case); (iii)Nagrik Upbhokta Manch vs Union of India Others {(2002) 5 SCC 466} (the Nagrik-Upbhokta case); (iv) Indian Bank Association vs M/s Devkala Consultancy Service {JT 2004 (4) SC 587} (the Indian-Bank case); (v) Commissioner of Central Excise vs Chhata Sugar Company Limited {(2004) 3 SCC 466} (the Chhata case) And submitted that: The Appellant could not sell country liquor unless the bottles had holograms affixed upon them. It is a compulsory exaction of money and amounts to tax; Article 265 of the Constitution prohibits any taxation without there being any law. No tax or fee can be imposed without being supported b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Government to frame rules regulating the import, export, transport, manufacture, collection, possession, supply or storage. 41. Clause (h) of section 62(2) {62(2)(h)} of the Act empowers the State Government to frame rules prescribing authority, the form, terms and condition and subject to which any licence, permit or pass shall be granted. It further provides some specific matters in sub-clause (i) to (v) of section 62(2)(h) {62(2)(h) (i to v)}. 42. The State Government has framed the Chhattisgarh Country Spirit Rules, 1995 (the Rules) in pursuance of the power conferred under section 62(1) read with section 62(2)(d) and 62(2)(h) of the Act. 43. Rule 4 of the Rules is titled 'Manufacture and Bottling'. Sub-rule (12) of rule 4 {4(12)} (see Appendix-1) provides that cleaning, filling, corking, sealing, labelling, stocking and issuing of bottles shall be done to the satisfaction of the Commissioner by the licensee under the supervision and direction of the officer-in-charge of the warehouse in the manner prescribed therein and in such other manner as the Commissioner may direct from time to time. 44. In case sealing or labelling is not done in accordance with directions of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have to supply plain and spiced spirit on the rate/rates accepted/sanctioned by the Government and shall have no right to ask for revision of rates due to change in any levy, export, import fee or any other taxation in any exporting or importing state during the currency of the contract period. ...' is relevant. It provides that: The successful tenderer will have to supply plain and spiced spirit on the rate/ rates accepted/ sanctioned by the Government; and The successful tenderer shall have no right to ask for revision of rates due to change in any levy, export, import fee or any other taxation in any exporting or importing state during the currency of the contract period. 52. The case of the State Government is that the financial burden of 11.2 paise per hologram is the value of the hologram to be affixed on the bottle. However, it is the case of the Appellant that financial burden of 11.2 paise per hologram is a levy/ tax. Even if it is to be levy, the revision of rate cannot be asked. This can be seen from another angle. 53. It is relevant to point out that the Circular was issued by the Commissioner on 23.05.2001 during continuance of the 2000-Tender. After issua ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... R 2004 SC 1249); and Union of India vs Pramod Gupta (AIR 2005 SC 370) and submitted that: There cannot be estoppel and acquiescence against constitutional and statutory provisions; The claim of the Petitioner cannot be denied on this ground. 59. It is not necessary to consider the aforesaid submission or the cases cited by the counsel for the Appellant as we have already held that the Circular is supported by a statutory provision and has statutory force. 5th 6th POINT: CIRCULAR IS VALID 60. In view of our decision on point number three and four, not only the Circular is valid and is supported by statutory provision, but the Appellant is not entitled to any relief or damages by way of refund of the price of holograms. CONCLUSIONS 61. Our conclusions are as follows: (a) In the writ petition, the validity of a circular is challenged. There is no factual dispute. The writ petition ought not to have been dismissed on the ground of alternative remedy; (b) The Commissioner has issued the circular dated 23.05.2001 in pursuance of the decision of the State Government to avoid smuggling and to protect the State excise duty. It is clearly a regulatory measure and is ..... X X X X Extracts X X X X X X X X Extracts X X X X
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