- (1.) Heard Shri Sudeep Kumar, learned counsel for petitioner and learned Standing counsel.
(2.) The dispute relates to demand notice dated 30.01.2006 issued by Deputy Excise Commissioner, Devipatan Charge, District- Gonda demanding excise duty on liquor on account of transit wastage. Learned counsel for the parties could not dispute that this issue has already been considered by this Court in Writ Tax No. 1595 of 2008, Balrampur Chini Mills Unit Balrampur Distillery Thru Dir. V/S State of U.P. Thru Principal Secretary & Others decided on 28.07.2016 wherein Court has passed following Order:- "Heard Shri Neeraj Sharma, learned counsel for the petitioner and learned Standing Counsel for the respondents. The writ petition is directed against the orders dated 07.12.2007 and consequential demand notices dated 04.05.2008 and 26.05.2008, whereby excise duty on wastage of rectified spirit (Extra Neutral Alcohol) having the strength of more than 90% v/v, during transit, has been charged. The controversy with regard to demand of excise duty on liquor unfit for human consumption has already been settled by the Apex Court as well as by High Courts in series of judgments. The latest being Ganges Sugar and Industries Ltd. Vs. State of U.P and others, 2005 3 AWC 2545 which is turn is based on law laid down by Apex Court in State of U.P and others Vs. Modi Distillery and others, 1995 5 SCC 753. In view of the law so laid down levy of Excise Duty on wastage of liquor higher in the strength than that of rectified spirit which is wholly unfit for human consumption cannot be legally sustained. The impugned orders are, therefore, illegal and cannot sustain. The writ petition is allowed. The impugned orders dated 07.12.2007 and consequential demand notices dated 04.05.2008 and 26.05.2008 are hereby quashed. No costs. If the respondents have realised any amount from petitioner under the aforesaid demand which has been held to be without jurisdiction by this Court, the said amount shall be refunded to petitioner within three months".
(3.) Learned Standing counsel, however placed reliance on a judgment in Kesar Enterprises Ltd Vs. State of U.P & Ors, 2011 13 SCC 733 wherein Rule 633 (7) of U.P. Excise Manual was under consideration which provides for penalty. However, Court held that the aforesaid rule will be applicable only in relation to the liquor which is capable of consumption by human beings.;