- (1.) R. K. Agrawal, J. Civil Misc. Writ Petition No. 584 of 1999 has been filed by Rajesh Kumar Tiwari whereas Civil Misc. Writ Petition No. 585 of 1999 has been filed by B. D. Tiwari wherein identical relief for quashing the order dated 21st March, 1999 passed by the Excise Commissioner, U. P. Allahabad has been sought. They further seek refund of Rs. 11,33,500/- paid by the petitioner in Writ Petition No. 584 of 1999 and Rs. 3,13,550/- on foreign liquor and Rs. 22,683/- on low strength rum paid by the petitioner of Writ Petition No. 585 of 1999 as difference of the excise duty on the left over stock of previous year 1998-99.
(2.) BRIEFLY stated the facts giving rise to the present petitions are as follows. Rajesh Kumar Tiwari has been granted a licence in Form FL-2 for the wholesale vend of foreign liquor for the Excise Year 1999-2000 whereas B. D. Tiwari alongwith other fifteen persons has been granted a licence jointly in Form FL-5a for the retail vend of foreign liquor, comprising of 73 shops and licence in Form CL- 5b for the retail vend of country liquor comprising of 97 shops in the District of Kanpur Nagar for the Excise Year 1999-2000. Under the terms and conditions of the licence issued to the petitioners they were required to obtain supplies of foreign and country liquor from the bonded warehouses and the distilleries in respect of the wholesale vend and from the wholesaler of the district in respect of the retail vend. They had obtained the supplies after paying excise duty leviable on foreign liquor/country liquor as the case may be. During the Excise Year 1998-99, the excise duty on Indian Made Foreign Liquor was being levied at the rate of Rs. 40/- per alcoholic litres, on beer having alcohol up to 5 per cent v/v was being levied at the rate of Rs. 2 per bottle containing 570 millilitres or more but not more than 750 millilitres and on beer having alcohol more than 5 per cent v/v and up to 8 per cent v/v, it was being levied at the rate of Rs. 3. 25 per bottle containing 650 millilitres. The Excise Commissioner U. P. Allahabad vide order 20th March, 1999 had directed the District Magistrates of all the districts to verify the left over stock of the previous Excise Year 1998-99 in view of the new rates of excise duty fixed by the State Government with effect from 1st April, 1999. The revised rates were also mentioned in the said order. The excise duty had been revised in respect of foreign liquor from Rs. 40/- to Rs. 48/- beer of 5 per cent v/v from Rs. 2/- to Rs. 3/- per bottle and beer from 5 per cent v/v to 8 per cent v/v from Rs. 3. 25 to Rs. 5/- per bottle. This excise duty was applicable for the Excise Year 1999-2000. By another order dated 21st March, 1999, the Excise Commissioner, U. P. Allahabad directed the District Magistrates of all the districts to charge the difference of excise duty on the left over stock of the previous year before granting permission to sell the left over stock. The District Excise Officer, Kanpur Nagar made an inventory of the left over stock and vide order dated 8th April, 1999 directed the petitioners to pay the differential amount in the duty as a result of the enhancement before selling the left over stock. The petitioners had no other option but to pay the amount of difference as demanded by the District Excise Officer, Kanpur Nagar. Thus, Rajesh Kumar Tiwari deposited a sum of Rs. 11,33,500/- on 8th April, 1999 whereas B. D. Tiwari deposited a sum of Rs. 3,13,550/- as difference of excise duty on left over stock of foreign liquor and Rs. 22,683/- as difference of excise duty on low strength rum. After depositing the amount of duty they have approached this Court by means of the present writ petitions seeking refund of the amount so deposited as also quashing of the order dated 21-3-1999 of the Excise Commissioner, U. P. Allahabad on the ground that the excise duty is a single point duty, leviable at the time of issuance of liquor from the distillery which in the instant case had already been paid by the petitioners being licensees for the year 1998-99 and, therefore, no duty could be levied subsequently on the left over stock of the said year. Moreover, the same can be levied only by the State Government after publication in the official Gazette. Reliance has also been placed on a Division Bench decision of this Court in Civil Misc. Writ Petition No. 458 of 1982, Kundan Lal, Dinesh Kumar v. Excise Commissioner, U. P. & Anr. , decided on 23rd January, 1991 which has been followed subsequently in Civil Misc. Writ Petition No. 843 of 1991, Ram Sagar Jaiswal & Ors. v. The State of U. P. & Ors. , decided on 25th of July, 1991. In the counter-affidavit filed by K. R. Sonkar, District Excise Officer, Kanpur Nagar on behalf of respondent Nos. 1 to 3 it has been stated that the demand of difference in excise duty is justified and the same is to be made in the new excise year. The plea of unjust enrichment has also been raised for denying the refund.
(3.) IN the rejoinder affidavit the averments made in the counter- affidavit has not been accepted and the stand taken in the writ petition has been reiterated. We have heard Sri Mukesh Prasad, learned Counsel for the petitioners and Sri S. P. Kesarwani, learned Standing Counsel appearing for the respondents.;