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TMI Blog1992 (4) TMI 247X X X X Extracts X X X X X X X X Extracts X X X X ..... of breweries. The pay of all such officers shall be met by the Government; provided that when the annual charges exceed five per cent of the duty leviable on the issue made from the brewery to districts within the State excess shall be realised from the brewer . The roots of the Rule, through the provisions of the Madhya Pradesh Excise Act, require to be traced, as well as the nature of the exaction provided in it. A broad framework of the working of the Act would thus be necessary. The State has the exclusive right or privilege of manufacture or sale of liquor. There is no fundamental right of any citizen to carry on trade and business of liquor. This is the Settled position of law. See in this connection Nashirwar v. State of M.P. [1975] 2 SCR 861, a case under the Madhya Pradesh Excise Act and other cases of the same strand. It is open to the State through its Government to part with those rights in regard to liquor and intoxicants for a consideration. Any citizen wanting to do the business in liquor or intoxicants in the State of madhya Pradesh has to seek permission under the Madhya Pradesh Excise Act, 1915. Section 13 of the Act provides inter alia that n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t on the usual pattern. Sub-section(i) of section 62 vests the power for the purpose in the State Government, and sub-section (2) enumerates specific subjects, in particular and without prejudice to the generality otherwise of the rule making power. In particular Clause (h) of sub-section(2)of section 62 permits the State Government to prescribe the authority by, the form in which, and terms and conditions subject to which any licence, permit or pass shall be granted. It is in its rule making power, that the State Government framed the Madhya Pradesh Brewery Rules, 1970, from amongst which Rule 22 stands above-quoted, vires of which was challenged before the High Court, though unsuccessfully, for which purpose effort stands renewed. The appellant is a company carrying on business in the manufacture and sale of beer. For the purpose it has established a brewery in the industrial area at Bhopal. It has obtained three licences in the requisite forms for manufacturing, bottling and sale of beer. It is aggrieved against the recovery of annual charges relating to the pay of the officer-in-charge etc. of the brewery from the brewer to the extent such charges exceed 5 per cent of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction 18 it is contended that a lease is granted subject to payment of duty leviable only under Chapter V and not otherwise. The State Government under Section 27, may forego the excise duty and accept payment of a sum in consideration of the grant of any lease under Section 18 in its stead. The State Government while keeping the duty leviable under Chapter V intact may accept an additional payment of a sum in consideration of the grant of a lease under Section 18. The appellant maintains that the instant demand raised is not referable at all to Sections 27 and 18. The stand of the State is based on the literal reading of Rule 22. The State terms the additional payment as a fur- ther fee apart from licence fee on the brewer in case the charges of supervision exceed 5 per cent of the duty levi- able on the issue made from the brewery to various districts in the State. It has also been maintained that the charge created under Rule 22 is nothing but a further fee or addi- tional consideration, which is neither a further duty nor a further tax. The exaction is suggestive of roots is Sections 27 and 28. Now is the demand a further duty and hence a further tax or is it a furt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if additional excise duty, the three cases afore-quoted would nip the demand outright. But if it is an additional payment under Section 27 as consideration for the grant of licence, or a further fee or condition of licence, as contended by the respondent-State then it may have to be sustained. It would be relevant to take note of another decision of this Court in Panna Lal Ors. etc. etc. v. State of Rajasthan and Ors., [1976] 1 SCR 219 at this stage in which the contractual obligation of the licensee to pay the guaranteed or stipulated sum mentioned in the licence was held not to be dependent on the quantum of liquor held by him and no excise duty was held charged or chargeable on undrawn liquor under the licence. The aforesaid case cannot advance the defence of the State for there is no lumpsum payment stipulated as such in the instant licence. The licence only mentions that the licensee would be bound by the Brewery Rules. The High Court in that situation went on to lean on Sections 62 (2) (h) and 28 when discovering there was no express provision in the Act for realisation of charges in respect of pay of officers posted for control of breweries. But when we analyse the la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case, firm Gappulal's case and Ram Kumar's case (supra), and cannot be sustained. Rule 22 to that extent is ultra vires the Act and beyond the rule making power of the state. Now with regard to the suggested wide amplitude Section 62 (2) (h) and Section 28 and condition of licence, all we need to say is that though under Section 28 licences are issued on the prescribed forms and on payment of such fee as prescribed and licences containing such particulars as the State Gov- ernment may direct etc. this power even though wide is yet confined within its frame and can in no event assume the power to impose or levy a tax or excise duty by means of a rule without the sanction of the Act. As we have analysed earlier, the payment asked on the contingency of events, cannot partake the character of a fee so as to come within the purview of Section 28. And if it does not the support of Section 62 (2) (h) is sterile. Seeking help from Section 27 would also be of no avail because the additional payment conceived of therein is also a payment over and above the duty leviable and as a part consideration towards the grant of any lease under Section 18. The additional consideration conceived ..... X X X X Extracts X X X X X X X X Extracts X X X X
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