R. K. Agrawal, J. - (1.) -In all these writ petitions the petitioners have challenged the vires of Rule 14 of the Uttar Pradesh Excise (Settlement of Licences for Retail Sale of Country Liquor) Rules, 2001 (hereinafter referred to as the Rules) insofar as it relates to levy of excise duty on unlifted quantity of quota as ultra vires the U. P. Excise Act, 1910 and for quashing of the notice issued by the authorities demanding deposit of excise duty on the unlifted quantity of country liquor by the respective petitioners. Civil Misc. Writ Petition No. 171 of 2002 is being treated as the leading case and the facts giving rise to the said writ petition are as follows :
(2.) THE petitioners had been granted licence under the provisions of the Rules for retail vend of country liquor shop in the District of Sant Ravi Das Nagar, Bhadohi, for the Excise Year 2001-02. THE petitioners could not lift the minimum guaranteed quantity of quota for the month of December, 2001. On 10th January, 2002, the petitioners received separate notices from the Collector demanding a sum of Rs. 1,62,000 being the excise duty at the rate of Rs. 60 per bulk litres on the monthly quota of 2700 bulk litres (in the case of petitioner No. 1) and for Rs. 97,740 in respect of petitioner No. 2. THE demand notice has been challenged on the ground that the excise duty or countervailing duty is leviable on the manufacture and it cannot be levied on liquor which the petitioner has failed to lift. Rule 14 of the Rules as also the demand notice are hit by Article 47 of the Constitution of India and the cancellation of the licence for non-lifting and selling liquor is against the Directive Principles of the State Policy as enshrined in Chapter IV of the Constitution of India and the Preamble. In the counter-affidavit filed by the Sahdeo Prasad Rawat. District Excise Officer, Sant Ravidas Nagar, Bhadohi on behalf of the respondents it has been stated that under the provisions of the Rules the licensees are required to lift minimum month-wise guaranteed quantity and in case of failure to do so the amount of security is to be adjusted towards the duty payable on the unlifted minimum guaranteed quantity which the licensees are required to make good failing which the licence shall stand cancelled. It has also been stated that the licence having been taken by the petitioners with their eyes open they cannot now be permitted to say that they are not liable to pay the duty. Neither Rule 14 of the Rules nor the demand notice is in anyway illegal or ultra vires. In rejoinder it has been stated that the petitioners cannot be asked to abide by the rules which are contrary to the statutory provisions and the Constitution. The excise duty is not payable on the unlifted quantity of liquor.
(3.) WE have heard Sri Mukesh Prasad, Sri K. D. Misra and Shri L. K. Dwivedi learned counsel for the petitioners and Sri S. P. Kesarwani, learned standing counsel for the State-respondents. Sri Mukesh Prasad, learned counsel submitted that under the Rules the excise duty payable on minimum guaranteed quota does not form part of the licence fee and, therefore, cannot be demanded. He further submitted that the duty is leviable on the manufacture of country liquor payable at the time of issue by the distillery/brewery warehouse and not by the petitioners who are the retail sellers of the country liquor. He has relied upon a decision of the Apex Court in the case of Excise Commissioner, U. P., Allahabad and others v. Ram Kumar and others, AIR 1976 SC 2237.;