9911796707
TMI Blog2015 (8) TMI 946X X X X Extracts X X X X X X X X Extracts X X X X ..... nt of annual rental proportionately”. It is therefore clear that Rule 14 would not impede or inhibit the charging of annual proportionate fee so long as no failure is placed on the licensee or it is blameworthy itself. Licensee was entitled to remission of payment of kisht because of being disabled to conduct its business on account of the interim orders passed by the Court. We affirm the conclusions arrived at in these decisions. We hold that a party is entitled to seek a remission in the payment of licence fee if it is precluded from transacting business on the strength of that licence because of factors and reasons extraneous to it and/or if it is granted the licence on the direction of a Court for only a portion of the financial year. In order to eradicate any possibility of misunderstanding our present Judgment, we hasten to clarify that had the Appellant’s application for renewal of the FL-3 licence found approval instead of rejection on 4.9.2002, the Appellant would have been liable to pay the entire fee for the year 2001-2002. This is so for the simple reason that there was no third party interference or intervention which led to the non-utilization of that licence f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ent would not be permitted to claim interest on belated payments. It is the admitted case that in order to avail of this indulgence and advantage the balance amount has been duly paid. However, the legality of the demand to pay the fee for the entire year, despite the truncated period of user by the Appellant for no fault ascribable to her is what has been brought into question before us. 3. We have commented on the brevity of the impugned Judgment for the reason that the learned Single Judge of the Kerala High Court in O.P. No. 18145 of 1994 had, in its detailed Judgment, considered various legal aspects including the topicality of the maxim Actus curiae neminem gravabit , that an act of Court prejudices no one, as well as the pronouncement of this Court in R.Vijaykumar v. Commissioner of Excise 1993(4) SCALE 386, which indubitably held the field and was facially in favour of the Appellant. It seems to us that the attention of the Division Bench was not drawn to this binding precedent, since otherwise its conclusion would in all likelihood have been diametrically different. 4. The facts are neither disputed nor are they convoluted. The Appellant had submitted an application ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling in that case, that the Department could not interfere with the utilization of the FL3 licence, provided that the licensee complied with all other conditions as well as payment of annual rental proportionately . It is therefore clear that Rule 14 would not impede or inhibit the charging of annual proportionate fee so long as no failure is placed on the licensee or it is blameworthy itself. We must be quick to clarify that in the event that a party applies for a period which is obviously not effective for the entire financial year, such as applying for a licence mid-way that financial year, the full fee for that year may be claimable or chargeable and, therefore, would have to be paid. In other words, had the Appellant applied for the licence even with the knowledge that because of external factors such as a pre-existing injunction order etc., she would not have been able to exploit it for the entire year, she may not have been liable to pay the licence fee for the entire year. This is not the factual matrix which obtains in the case at hand; the licence could only be granted for the period from 21.12.1999 to 31.3.2000, i.e. till the close of that financial year, owing to unfo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -2003 by his Judgment dated 27.1.2003. The Appellant preferred an Appeal, and on the first day of its hearing, the Division Bench passed an ad interim Order directing the Appellant to pay 15 lakhs. Shortly after making this payment, on 25.3.2003, the licence was renewed. The Division Bench of the High Court of Kerala noted Rule 14 of the Foreign Liquor Rules as well as the fact that it had not been challenged. The Division Bench accepted the argument of the Appellant that for the reason that it could not utilize the licence for the year 2001-2002 as its application had been disallowed it was not liable to pay any fee; viz. during this period it was prevented by extraneous elements and factors from utilizing the licence. However, the Division Bench held that since the licence was renewed in March 2003, even though the Appellant could conduct its business for less than a fortnight in that licence year, nevertheless the Appellant was liable to pay the full fee for the year 2002-2003. It is these circumstances which have constrained the Appellant to file the present Appeal before us. 8. In order to eradicate any possibility of misunderstanding our present Judgment, we hasten to clar ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
