- (1.) RAJES Kumar, J. By means of the present writ petition, petitioner has challenged the order dated 26th July, 2004 passed by Respondent No. 1 by which the revisional authority has confirmed the demand of Rs. 9,87,498/- demanded by Respondent No. 2 vide its order dated 11th March, 2004.
(2.) BRIEF facts of the case giving rise to the present writ petition are that the petitioner is a Company incorporated under the Indian Companies Act, 1956 having its registered office at 15, Sri Ram Road, Civil Lines, Delhi. Petitioner is engaged in the business of manufacture and sale of non-potable alcohol in its distillery situated at Bareilly. Petitioner has been granted licence for the manufacture of non-potable alcohol in Form P. D-2 under the U. P. Excise Act (hereinafter referred to as "act" ). The demand of Rs. 9,87,498/- has been raised by the Respondent No. 3 vide its order dated 11th March, 2004 on the ground that one lac holograms which was issued to the petitioner could not be produced for verification which was claimed to have been stolen/lost in transit, on the basis of the circulars dated 24th March, 2001. 23rd October, 2001 and 19th November, 2001 issued by the Respondent No. 2. Subsequently, the aforesaid amount has been adjusted with the advance duty amount of distillery Revision filed against the said demand has been confirmed by the Respondent No. 1. Petitioner claimed that its authorised representative Sri Rajesh Chaubey took the delivery of one lac holograms of 25 percent v/v from the excise department. Allahabad on 19th February, 2004 Sri Rajesh Chaubey and Sri K. P. Sharma, distillery Manager were carrying the holograms by the train known as Mugalsarai Bareilly passenger and was travelling in Sleeper Class, Coach No. No. S-1, Seat No. 06. When the train stopped/halted at Gangaganj Railway Station at about 4. 30 a. m. on 20th February, 2004, Sri K. P. Sharma checked all his luggage and baggage including the holograms package and to the utter surprise the holograms packets were found missing Sri K. P. Sharma searched thoroughly the packets of holograms, but was unsuccessful. He alighted at the Lucknow Railway Station at Charbagh and immediately lodged the First Information Report at police station G. R. P. , Charbagh Railway Station at 9. 20 a. m. on 20th February, 2004. It is contended that the information about the aforesaid theft was given by the petitioner to the Excise Commissioner, U. P. vide its letter dated 20th February, 2004. It is also contended that the report regarding loss of holograms, which were lost in theft was beyond the control of the petitioner and till date the investigation is going on by the police, but same has not been recovered. Heard learned Counsel for the parties.
(3.) LEARNED Counsel for the petitioner submitted that the holograms which have been issued to the petitioner were lost in theft which was beyond the control of the petitioner for which First Information Report was lodged on 20th February, 2004 itself and necessary information was also given to the Excise Commissioner, U. P. vide letter dated 20th February, 2004. He submitted that till date, there is no information that the petitioner or any one else has misused the holograms, which have been issued to the petitioner. He submitted that in Writ Petition No. 1204 of 2004, Saraya Industries Ltd. v. State of U. P. and Ors. , decided on 6th January, 2005, [since reported in 2005 (3) JCLR 803 (All)] the Division Bench of this Court held that no demand of duty can be raised on account of non-presentation of holograms for verification, in case if such hologram is lost of wasted and for any reason cannot be presented for verification. He submitted that in view of the Division Bench decision, order passed by the respondents are liable to be set aside and the respondents be directed to refund the amount of Rs. 9,87,498/- which has been deducted from the advance amount of the petitioner's distillery. He further submitted that the decision of the Division Bench has been followed by the LEARNED Single Judge of this Court in Writ Petition No. 912 of 2005, M/s. D. C. M. , Shriram Industries Ltd. v. State of U. P. and Ors. , decided on 8th April, 2005 [since reported in 2005 (3) JCLR 894 (All)]. Learned Standing Counsel submitted that under the new policy and circulars dated 24th March, 2001, 23rd October, 2001 and 19th November, 2001 issued by the Respondent No. 2, petitioner has to affix the holograms on the manufactured alcohol. He submitted that the aforesaid scheme has been formulated to check the spurious and illegal manufacturing and sale of liquor. He submitted that the petitioner has furnished indemnity bond dated 26th June, 2003, which is Annexure-4 to the counter- affidavit in which he has voluntarily indemnified that in case of loss of security hologram, it would be liable for excise duty. He submitted that the execution of indemnity bond voluntarily is a matter of contract between the parties and in case of loss of security hologram; petitioner is liable for excise duty. He further submitted that security hologram should be transported under the Scheme, under the insurance cover, while the petitioner's authorised representative have transported without insurance cover at its own risk, negligently.;