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TMI Blog2004 (3) TMI 812X X X X Extracts X X X X X X X X Extracts X X X X ..... 7511 of 1991 is holding licence in Forms No. 1, 19, 19B, 20 and 28A granted by the Board of Revenue under the provisions of the Act. 3. The Petitioner (United Distillers Ltd.) in CWJC Nos. 8180 of 1991 and 1856 of 1993 is holding licence in Forms No. 1, 19, 19B, 20, 25 28A. The other Petitioners are having licence in Form No. 25(for the manufacture of denatured spirit) and in Form 28A (licence to manufacture spirit in a distillery for use in the manufacture of potable liquors). 4. The demands issued by the Respondents-authority though do not refer the specific provision but according to the same demands for establishment charge has been made either under Rule 9 or Rule 36A of the Rules under Bihar Excise Act. Rule 9 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s (Pvt.) Ltd. one of the Petitioners in the present case v. State of Bihar and Ors. reported in MANU/SC/0659/1996 : (1996) 10 SCC 11; 1997 (1) PLJR (SC) 34 and it has been held that Rule 9 is intra vires and referable to Section 38(1)(a)(ii) read with Sub-sections (1)(a) and (9)(i) and (ii) of Section 90 of the Act. But it has further been held that demand of establishment charge can be made under proviso to Rule 9 only with regard to distillery which are licensed solely and wholly for the purpose of manufacture of denatured sprit or other commercial spirit. In paragraph 15 of the judgment it was held as follows: It must, therefore, be held that second part of Rule 9 will apply to only those distilleries which are licensed solely a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e having composite licence a not only for manufacturing denatured spirit, but they are also engaged tin compounding and blending of potable foreign liquor and bottling for sale of the same. 9. From perusal of Rule 36A of the Rules it is clear that establishment charge can be demanded from the distillers with regard to excise staff engaged for whole time or part time to perform the duties as mentioned in Rule 34 of the Rules. 10. Learned Counsel appearing for the Petitioners submitted that Rule 36A is ultra vires of Section 90 of the Act. He further submitted that establishment charge is not a grant for any privilege and as such the same is not permissible in law. 11. This Court should not detain itself for conside ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charge only with regard to those employees who were solely engaged in compounding, blending etc. 14. The said submission is worth acceptance because in view of the settled law that in case of composite licence no charge of establishment can be demanded under Rule 9 then the demand is referable only under Rule 36A and there the establishment charge can be demanded only with regard to those who are solely engaged for the aforesaid purpose. 15. From perusal of the demands annexed to the writ applications, it is not clear that the establishment charge has been demanded by referring to the excise staff exclusively engaged in compounding, blending etc. In that view of the matter, the demand notices in the aforesaid four cases ar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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