9911796707
TMI Blog1990 (5) TMI 48X X X X Extracts X X X X X X X X Extracts X X X X ..... October 28,1980 and for declaration that no duty is payable in respect of the stock of I.M.F.L. and Beer lying with the petitioner as on April 1,1980 and other consequential reliefs by way of restraining the respondents from levying and/or collecting any duty under the Bengal Excise Act, 1909 on the stock of I.M.F.L. and Beer. It is stated in detail that the petitioner No. 1 company received a purported notice from the Collector of Excise, Calcutta, whereby the petitioner company was directed to pay a sum of Rs. 1,69,335.47 p., being the difference of the duty alleged to be payable on the penal stock of I.M.F.L. as on April 1, 1980. It is alleged that the said notice further demanded duty on any left out quantity of I.M.F.L. on which differ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he date of manufacture or import or export or transport thereof. The purported Explanation seeking to recover higher rate of duty on the stock of .I.M.F.L. and Beer which have been removed after payment of proper duty thereon is illegal and without authority of law. 3. In support of the contention of the petitioners, learned Advocate for the petitioners has drawn the attention of the Court to the decision reported in AIR 1970 S.C. 1171 (supra). He has in particular drawn the Court's attention to paragraph 5 of the said decision. Paragraph 5 is quoted herein below: "Section 28, however, is subject to any rules that may be made by the Board of Revenue, Bihar, under Section 90, Cl. (12). The State of Bihar seeks to justify the levy of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on an excisable article, the licensee to whom the article has been issued on payment of duty prior to such revision is liable to pay the difference of duty on the quantity of such article that may remain in his possession when the revised rate of duty comes into force. The proviso must be construed with reference to the main part of the Rule. A close scrutiny of the Rule reveals that the main part and the proviso deal with the same subject matter. The expression 'an excisable article' in the proviso means foreign liquor imported under bond and other articles on which duty is payable before removal from the excise warehouse or distillery where they are kept. It is for this reason that under the proviso the difference of duty is realised from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... any grievance, far from seeking remedies in the Writ Court. 7. Having heard the learned Advocates for both the sides, at length, this Court has to decide as to whether impugned Explanation is justified or not in law or whether the same is contrary to and/or inconsistent with the provisions of law. The State is expected to exercise the acts not capriciously and whimsically. The State actions must be lawful and justified. It is to be seen that any person affected or hit by any unlawful act is certainly entitled to come to the Writ Court to seek remedies. In the present case, looking at the Explanation, this Court finds there is observation that notwithstanding anything contained in Rule 225 of the Rules published Notification No. 61 S.R. d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r granted to it. 9. With great anxieties, this Court has considered the submissions made by the learned Advocate for the writ petitioners and the Explanation given by the learned Advocate for the respondents State. 10. Considering the materials on record and looking to the principle of law, this Court is of the clear view that when there is no rule any executive action, taken beyond the scope of the rule is bad in law. There, the Court would be justified in striking out the steps taken by the authorities as done in the case of AIR 1970 SC P. 1171 (supra). It is also clear that where there is no Rule at all, the State Authority cannot act in a manner which is otherwise unwarranted in law. In the instant case, there is already a Rule and ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
