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TMI Blog2017 (6) TMI 304X X X X Extracts X X X X X X X X Extracts X X X X ..... bove, is not by the consumers. The challenge is only by the vendors. In a case, where vendors have already collected the sales tax pursuant to these notifications/circulars, there remain no doubt that they have to make the payment of sales tax to the Department in accordance with law. Petition dismissed - decided against petitioner-assessee. - WRIT PETITION NO. 32 OF 1999 - - - Dated:- 31-5-2017 - ANOOP V. MOHTA AND M. S. KARNIK, JJ. Adv. Veena A. Thadhani for the petitioner. Adv Abhay L. Patki, Addl. G.P. for Respondents/State. ORAL JUDGMENT (Per Anoop V. Mohta, J.): Called out from final hearing board specifically listed in summer vacation. 2 The Petitioner Association ( the retailers ) is a registered body comprising of licensees, holding FLII Licence under the provisions of the Bombay Prohibition Act, 1949 (the Prohibition Act) and the Rules made thereunder, for selling foreign and country liquor in retail. They have filed the present Petition on 23.12.1998 and prayed as under: (a) that this Hon ble Court be pleased to issue a Writ of Certiorari or a Writ in the nature of Certiorari or any other appropriate writ, order or direction of this Hon ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Vendors holding FL II licences at the rate of 45% on mild liquor and 35% on hard liquor. Thereafter the Sales Tax levied was brought down to 35% on mild liquor and 25% on hard liquor which was again payable by the Vendors holding FL II licences. 5 In 1979, subsequently, 2nd Respondent (the State of Maharashtra) decided to abolish the separate levy of Sales Tax on liquor Vendors and merge sales tax with excise duty into a single levy which was collected at source i.e. in advance at the manufacturing level. Excise duty was therefore hiked and exemption was granted under Section 41 of the Bombay Sales Tax Act (the Sales Tax Act) to liquor Vendors holding FL II licences. collecting Excise Duty. By the new duty structure, excise duty including all taxes, octroi, transport, packaging etc was fixed at double the cost of production in the case of Indian Made Foreign Liquor and 33.33% of maximum retail price in case of Beer, Wine and Country liquor. Hence, by the new duty structure, excise duty was collected on the basis of the maximum retail sale which was required to be printed on the labels. 7 After 1st January, 1997, each bottle has a label bearing the slogan of Maximum Retail P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... We, however, direct that for the period upto 3rd February, 1999 when the advertisement appeared in English daily, the respondent shall not insist on deposit of tax from vendors (FL II Licence vendors) who have not collected the same. This is by way of interim order subject to the outcome of the writ petition. Liberty to apply for expeditious hearing. 11 All the parties have acted accordingly. No sales tax was collected at least till the date of advertisement dated 3rd February 1999, is the case. The retailers have been collecting the sales tax after 3rd February, 1999. The Taxing Statutes and the binding circulars. 12 The Prohibition Act and the various Rules made thereunder including the Rules called The Maharashtra Distillation of Spirit and Manufacture of Potable Liquor (Amendment), Rules 1966 (the Potable Liquor Rules) and the Maharashtra Potable Liquor (The Fixation of Maximum Retail Prices) Rules, 1996 (The Fixation of Retail Prices Rules) govern the issues revolving around the facts and circumstances of this case. So also, the Sales Tax Act and the Rules made thereunder. 13 The impugned circular dated 9.12.1998 issued by the Finance Department as sales ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... zetted the explanation as under : Explanation II. Sales tax on potable liquor excluding country liquor sold through FL II Vendor's licence issued under Rule 25 of Bombay Foreign Liquor Rules, 1953 levied vide Government Notification, Finance Department, No. STA.1097/CR1/ Taxation-2, dated the 8th December 1998 is also recoverable over and above Maximum Retail Price on such potable liquor manufactured prior to the 9th December 1998 and sold on or after the 9th December 1998. 17 By another notification dated 22.1.1999 it is explained as under : 2 In rule 11 of the Maharashtra Manufacture of Beer and Wine Rules, 1966, in sub-rule (2), after clause (a), the following Explanation shall be inserted, namely: Explanation . Sales tax on beer or wine sold through FLII Vendor's licence issued under rule 25 of the Bombay Foreign Liquor Rules, 1953, levied under Government Notification, Finance Department, No. STA1097/ CR1/ Taxation-2, dated the 8th December 1998 is also recoverable over and above Maximum Retail Price on such beer and wine manufactured prior to the 9th December 1998 and sold on or after the 9th December, 1998. 18 Both these Acts are constitu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the vendor as well as to the consumers/customers to collect the tax and/or to pay the sales tax in addition to the maximum retail price mentioned on the label. This issue, therefore, need no further discussion, as rested in view of the fact that all have been acting upon it since 3.2.1999. The sales tax collected or not by the retailers. 21 The statement is made by the learned counsel for the Respondent that the Respondent/Department has already issued individual demand notices to the members/vendors/retailers pending this writ petition, after interim order dated 8.2.1999. Even otherwise, it is necessary for the concerned Departments to collect the factual and material data, to verify and/or enquire whether such retailers/licensees have actually collected the sales tax under the provisions in question and/or not, at the relevant time. The basic liability to collect the sales tax and make the payment to the Department in view of the valid provisions need no debate. All the concerned are bound to collect and deposit the amount in accordance with law. The concerned members, if able to show and demonstrate that they have not actually collected and/or unable to collect f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... llected the same. It is important to note ultimately the vendors/retailers are entitled to collect the sales tax in addition to the maximum retail price mentioned on the label. The State/Department has permitted to sell the product by amending the labels, thereby permitting such vendors/licensees to collect the sales tax from the consumers. Therefore, the vendors are under obligation to collect and pay the sales tax accordingly. Ultimately, the consumers who are required to make the payment of the sales tax so imposed and not the vendors directly from their profit. The Petition, as recorded above, is not by the consumers. The challenge is only by the vendors in the background so referred above. The collected sales tax, required to be deposited by the vendors/retailers. 24 Therefore, in a case, where vendors have already collected the sales tax pursuant to these notifications/circulars, there remain no doubt that they have to make the payment of sales tax to the Department in accordance with law. We also find no illegality and/or any irregularity in imposing such sales tax. It is well within the frame work of law and the record. The Government, as recorded above, even ..... X X X X Extracts X X X X X X X X Extracts X X X X
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