R.K.Agrawal, J. - (1.) By means of the present writ petition filed under Article 226 of the Constitution of India the petitioner-M/s. Rampur Distillery & Chemical Company, Rampur, seeks the following reliefs : (i) issue a suitable writ, order or direction in the nature of certiorari calling for the record and quashing the demand order dated 27th January, 1999 (Annexure-8 to the writ petition). (ii) issue a writ, order or direction in the nature of mandamus commanding the respondents not to recover any amount in pursuance of the notice dated 27th January, 1999 towards interest. (iii) issue a writ, order or direction in the nature of mandamus commanding the respondents to refund the amount of sum of Rs. 73,380 deposited by the petitioner on 3rd April, 1996 under protest after conferring the similar benefit as has been conferred upon M/s. Mohan Meakins Ltd. in Writ Petition No. 699 of 1996. (iv) issue a writ, order or direction in the nature of mandamus declaring the order of Excise Secretary dated 6.6.1996 as null and void. (v) issue a writ, order or direction in the nature of mandamus commanding the respondents to release the security furnished by the petitioner in pursuance of the interim order within one month."
(2.) Briefly stated the facts giving rise to the present writ petition are as follows : M/s. Rampur Distillery & Chemical Company Ltd., now known as a unit of Redico Khetan Ltd., is a public limited company incorporated under the Companies Act and has its registered office at Bareilly Road, Rampur. It has been granted licence in Form PD-2, i.e., for establishing a distillery for manufacture of potable as well as non-potable alcohol at Bareilly Road, Rampur. According to the petitioner during the excise year 1977-78 one M/s. Shyam Mohan Sita Ram, a partnership firm, hereinafter referred to as the firm was granted licence in Form FL-2, i.e., for whole sale vend of Indian made foreign liquor. The said firm was entitled to make supply of beer and Indian and foreign liquor to retail vendors holding licence in Form FL-5. The firm was liable to pay assessed fee at the rate of Rs. 5 per bottle of wine, spirit and 0.90 paisa per bottle of beer. According to the petitioner under Rule 462 of the U.P. Excise Rules the liability of payment of assessed fee was squarely on the FL-2 licensee which in the present case was with the firm. Regarding some dispute of payment of the assessed fee with the Government of U.P., the firm filed a civil suit in the Court of the District Judge, Rampur which was numbered as Original Suit No. 10 of 1981 in which it had prayed that a permanent injunction be granted restraining the respondents from realizing assessed fee from it. According to the petitioner they were not party in the suit. The suit was decreed vide judgment and order dated 23rd May, 1984 and the State Government was restrained from recovering any amount towards assessed fee from the said firm. On the basis of the findings recorded in the suit, the Excise Commissioner, U.P., Allahabad, issued notice dated 11th/14th April, 1985 calling upon the petitioner to deposit a sum of Rs. 73,380 being the amount of assessed fee which was payable on the alleged sale effected by the petitioner to the said firm. The petitioner challenged the aforesaid notice by means of Writ Petition No. 311 of 1985 before this Court. On 22nd September, 1985, an interim order was passed in favour of the petitioner wherein it was directed that the respondent shall not require the petitioner to deposit the amount of the assessed fee in question. Apart from the petitioner three other distilleries, namely, M/s. Mohan Meakins Ltd., Saraiya Distillery and Daurala Distillery were also served similar notices by the Excise Department calling upon them to pay assessed fee in respect of the alleged sales made by them to the firm. According to the petitioner M/s. Mohan Meakins Ltd. filed a first appeal before this Court against the decree passed in Original Suit No. 10 of 1981 along with an application for leave to file appeal. This Court vide order dated 12th December, 1985, declined to grant leave to M/s. Mohan Meakins Ltd. for filing appeal on the ground that it was not party in the suit, and, therefore the findings recorded in that suit were not binding on it and no cause of action has arisen for filing an appeal. The writ petition filed by the petitioner was finally disposed of vide order dated 24th July, 1989. This Court had held that notice in question should not have been issued without affording an opportunity of hearing to the petitioner. The notice in question was treated as a show cause notice. Directions were issued for giving an opportunity and passing appropriate order thereafter. After considering the reply/objections the Excise Commissioner vide order dated 31st January, 1996 affirmed the demand of Rs. 73,380 against the petitioner. Feeling aggrieved the petitioner preferred a revision under Section 11 (2) of the U.P. Excise Act (hereinafter referred to as the Act) before the State Government. The revision was rejected vide order dated 6th June, 1996. The petitioner had deposited the sum of Rs. 73,380 on 4th April, 1996 under protest. It may be mentioned here that M/s. Mohan Meakins Ltd. which had also filed a revision before the State Government and whose revision had been rejected by the State Government vide order dated 6th June, 1996 challenged the said order before this Court by means of filing Writ Petition No. 699 of 1986 which has been allowed vide judgment and order dated 20th August, 1997. This Court has held that there is no liability of the distillery to pay assessed fee. However, it directed the Excise Commissioner to implead the firm M/s. Shyam Mohan Sita Ram in the proceedings before the Commissioner and determine the liability of the said firm, if any. This Court also directed for refund of the amount deposited by M/s. Mohan Meakins Ltd. and also observed that the Excise Commissioner may file an appeal against the judgment and decree of the Original Suit No. 10 of 1981. The respondents have now issued a notice dated 27th January, 1999, calling upon the petitioner to pay a sum of Rs. 1,45,509.55 which represents the interest on the amount of assessed fee for the period 19th March, 1985 to 4th April, 1996. The notice dated 27th January, 1999, is under challenge in the present writ petition.
(3.) We have heard Sri Manish Goyal, learned counsel for the petitioner and Sri S.P. Kesarwani, learned standing counsel for the respondents.;