- (1.) D. S. Sinha, J. The controversy involved in these two petitions is identical and as such they are decided and disposed of jointly by this common judgment.
(2.) THE petitioners, who are the manufacturers of Indian-made foreign liquors, pray that the order, dated 1st January, 1983 (Anneuxre-3 to the petitions) demanding from. hem the excise duty for the period between 1st April 1982 and 14th December, 1982 be quashed. The material facts, emerging from the averments made in the petition, counter affidavit, rejoinder affidavit and from the annexures appended thereto, are these: The petitioners were granted licence for supplying Indian-made foreign liquors under bond and were permitted to store the liquor in the Bonded Warehouses estab lished by the Excise Commissioner, U. P. at 12 places in she State of Uttar Pradesh during the period between 1st April, 1982 and 14th December, 1982. They were granted issues from their distilleries under bond for transporting the liquor to the said Bonded Warehouses. The liquors so transported to and stored at the Bonded Warehouses were supplied to the Government whole-sale shops for the purpose of sale to the retail vendors on their depositing the price of the liquor which, indis putably, included the cost-price, excise duty, sales tax, octroi duty (if any) and Government profits. Thus, the excise duty payable on the liquors supplied by the petitioners to the Government whole-sale shops was deposited by the retail vendors who obtained the liquors from the Government whole-sale shops. The petitioners contend that the excise duty payable on the liquors supplied by them having already been collected by the Government along with the price of the liquor could not be realised from them again inasmuch as their liability for payment of the excise duly stood discharged.
(3.) THE case set up on behalf of the respondents is that the petitioners had statutory obligation to pay excise duty before the issue of liquors from the Bonded Warehouses or to execute a bond therefor at such issue but they neither executed bond nor paid the excise duty before the issue of the liquors from the Bonded Warehouses for sale to the Government whole-sale shops. THErefore, they were liable to pay the excise duty notwithstanding the fact that the price realised by the Government from the retail vendors of the liquor included the excise duty also as the excise duty collected from the letail vendors was paid back to the petitioners by crediting to their advance duty account at the time of payment of the price of liquor payable to them. According to the respondents, the challenge by the petitioners to the demand of the excise duty is, in fact, a design to evade the payment of sales-tax at the rate of 26 per cent payable on the price of the liquors supplied by them to the Government whole-sale shops in which the excise duty has to be included for the purpose of computing the sales-tax payable under the U. P, Sales Tax Act, 1948. Under Section 28 of the U. P. Excise Act, 1910, hereinafter called the Act, an excise duty may be imposed on excisable articles imported, or exported, or transported, or manufactured in accordance with the relevant provisions of the Act. Section 13 of the Act prohibits the export or transport of an intoxicants, unless duty imposed thereon under Section 28 of the Act has been paid or bond has been executed for the payment thereof.;