Decided on August 10,1988

Niranjan Sen Appellant
State of Orissa and Ors. Respondents


D.P. Mohapatra, J. - (1.)THESE seven writ applications raise common questions of facts and law. By consent of the learned Counsel appearing for the parties, the cases were heard together. They are being disposed of by this judgment.
(2.)THE Petitioners were importers and wholesalers of Indian made foreign liquors (for brevity referred to as 'IMFL ') in different districts in the State. They were issued licences in Form No. F. L. I. for sale to retailers and licences in Form No. FL. 16 authorising them to import foreign liquor. The retailers also held licences for retail vend of the liquor. Such sale is commonly referred to as 'sale to trade '. The Petitioners were required to deposit a lump sum amount with the State Govt. for payment of excise duty. According to the prevailing practice the Petitioners used to import the foreign liquor from other States and the duty payable by them was being adjusted from the lump sum deposit made with the State Government and further sums were being deposited by the Petitioners as and when required by the authorities. The IMFL was stored in bonded warehouses under the control of the Petitioners. When a retailer wanted to purchase any stock from a wholesaler, he used to pay the duty in advance in the manner prescribed under the Rules and on producing evidence of such payment the stock was released from the bonded warehouse in his favour. It is the case of the Petitioners that though this practice was prevailing since long it was discontinued in 1981 and the authorities started adjusting the duty payable by the retailers from the lump sum amount deposited by the Petitioners. The Petitioners were instructed to collect the duty from the retailers at the time of releasing the stock to them. The Petitioners challenge this practice mainly on the grounds that it is not supported by any provision in the Bihar and Orissa Excise Act, 1915 or Orissa Excise Rules, 1965 or the Board 's Excise Rules, 1965. It is the further contention of the Petitioners that since the duty is payable by the retailers to the State Government the Acts and Rules cast no liability for its payment on the Petitioners and they are unnecessarily being completed to discharge the onerous duty. On these averments the Petitioners have prayed for issue of writ of mandamus to the opposite parties directing them to issue permits to the retailers for purchase of IMFL./bear after collecting of excise duty payable therefor. The State Government represented by the Secretary to Government. Revenue and Excise Department, the Commissioner of Excise and Collector and the District Magistrates of the concerned districts have been impleaded as opposite parties in each of the writ applications.
The stand taken by the opposite parties in the return filed to the writ applications in essence is that, though the duty is payable by retailers to the State Government, the rules provided for several alternative -methods for realisation of the amount, one such being through the agency of the wholesaler. The State has the option of choosing the manner of collection of duty from the retailers and in exercise of that option the duty payable by the retailers is being collected from the wholesaler by deducting it from the lump sum deposits made by them with the department and the wholesaler in turn is authorised to collect the duty from the retailer at the time of releasing the stock.

(3.)ON the case of the parties discussed above, the question that arises for decision is whether the Acts and the Rules vest any power with the opposite parties to collect excise duty payable by the retailers to the State from the wholesalers. If the answer to the question is in the negative then the Petitioners are entitled to succeed in the writ applications, notwithstanding the fact that the present procedure has proved to be a convenient method of collection of duty for the opposite parties.

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