9911796707
TMI Blog1998 (8) TMI 593X X X X Extracts X X X X X X X X Extracts X X X X ..... charges for incoming quarter was fixed for the said quarter, cannot now be permitted to go back on their said representation and demand additional amount, more so with retrospective effect. Thus the impugned demand of differential supervision charges retrospectively cannot be sustained and accordingly the judgment under appeal is set aside. Appeal allowed. - 3494 OF 1991 - - - Dated:- 4-8-1998 - M.M. PUNCHHI AND K. VENKATASWAMI, JJ. JUDGMENT The short question that arises for our consideration in this appeal is whether the State Government is empowered to collect differential supervision charges with retrospective effect under Section 58-A of the Bombay Prohibition Act, 1949? The facts leading to the filling of this ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... action to recover the amount as arrears of land revenue would be taken. Aggrieved by the said demand of differential supervision charges retrospectively, the company moved the High Court by filing a writ Petition No. 1672/83 under Article 226 of the Constitution of India. The said Writ Petition was heard along with writ Petition No. 940/82 and the main judgment was rendered in Writ Petition No. 940/82. A Division Bench of the Bombay High Court upheld the impugned demand of differential supervision charges retrospectively. The Company, aggrieved by the judgment of the Bombay High Court dated 12.9.90, has preferred this appeal by special leave. Learned counsel appearing for the appellants-company submitted that the impugned judgment of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion placed reliance on a single Judge's judgment in Writ Petition No. 631/82. As a matter or fact, we find that the judgment of the learned Single judge in Writ Petition No. 631/82 was expressly overruled by an earlier Division Bench of the Bombay High Court on 1.8.89 in M/s J.E. Bilmoria's case (supra). We presume that this Division Bench judgment was not brought to the notice of the latter Division Bench, otherwise they would not have taken diametrically opposite view without referring the issue to a larger Bench. We further notice that the judgment in M/s J.E. Bilmoria's case was not challenged by the Revenue as per the information passed on by Mr. Nargolkar, learned counsel for the respondents. In M/s J.E. Bilmoria's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .............. We must bear in mind the nature of excise duty as indicated in M/s Mc Dowell Co. 's case, A.I.R. 1977 S.C. 1459 (supra) that it is an indirect duty which the manufacturer or producer passes on to the ultimate consumer, that is, ultimate incidence will always to be on the customer. By attempting to pass on the incidence of upward revision of pay-scales to the licensees, several years after the removal of the articles from the bonded warehouse, the respondents would make it impossible for the petitioners to pass on the cost of storing the articles in the bonded warehouse to the ultimate consumer, and this clearly the respondents cannot be permitted to do, because such a situation had never been anticipated by the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... know in advance the costs payable by them so as to enable them to fix the price of goods, and the respondents, having acted in the manner and permitted to the petitioners to sell the goods on the effective representation that the cost of supervision charges for incoming quarter was fixed for the said quarter, cannot now be permitted to go back on their said representation and demand additional amount, more so with retrospective effect from 5.5.1970. On a scrutiny of these two Division Bench judgments, the view taken in M/s J.E. Bilmoria's case commends to us and we are of the view that the reasonings given therein are well-founded. We are, therefore, of the view that the impugned demand of differential supervision charges retrospec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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