- (1.) G. P. Mathur, J. This petition under Article 226 of the Constitution of India has been filed for quashing four orders dated 25-3-1981 (Annexure IV-A to IV-D to the writ petition) passed by the Excise Commis sioner, U. P. imposing excise duty and addi tional excise duty over wastage occurring during manufacture and bottling process of beer.
(2.) THE petitioner company owns a Brewery which is situated at Mohan Nagar, Ghaziabad and manufactures beer therein under a licence granted by the Excise Com missioner, U. P. in Form B-l in exercise of power conferred by Section 17 (2) of U. P. Excise Act (herein after referred to as the Act ). THE petitioner has also been granted a licence in Form F. L. 3 for in bond bottling of beer, for sale, by the Excise Commissioner in exercise of power conferred by Section 17 (1) (d) of the Act. Para 918 of U. P Excise Mannual, Volume I provides for main tenance of registers, some by the Officer-in-charge who is of the rank of an Excise In spector and some by brewer in a brewery. One such register which is mentioned in para 918 (a) (iv) of the U. P. Excise Manual has to be maintained by the Officer-in-charge in Form B-16 is called the Register of Manufacture and Issue of Beer. The Officer-in-charge, Mohan Nagar, Brewery gave a notice dated 25-9-1973 to the petitioner to show cause within three days why a penalty of, Rs. 1,45,639. 56 be not realised on excess wastage of 55,165. 5 B. L. for the quarter ending June, 1973 The notice was accompanied with 'excess Wastage Statement which showed that watage of beer was 6,71,862. 9 B. L. which was 10-9 per cent of the total production and penalty was levied on the excess part namely on 0. 9 per cent which amounted to 55,165. 5 B. L. The notice was given under Rule 912 of U. P. Excise Mannual. The petitioner gave a reply to the notice on the ground, inter alia, that Rule 912 was being misconceived and misinterpreted and the basis for ascertaining the deficiency in stock of beer in the brewery was wrong. A copy of the reply sent by the petitioner has been filed as Annexure III to the writ petition. It appears that no decision was taken by the Authority on the reply sent by the petitioner for a long time and meanwhile Section 28-A was inserted with retrospective effect in U. P. Excise Act by U. P. Act No. IX of 1978 which was published on 25-4-1978. Section 28-A reads as follows: "28-A. Imposition of additional duty in cer tain cases.- (1) Where the quantity of spirit or beer in a brewery is found, on examination by such Officer of the Excise Commissioner in this behalf, to exceed the quantity in hand as shown in the stock account, the brewery shall be liable to pay duty on such excess at the ordinary rates fixed under Section 28. (2) Where the quantity of spirit or beer is less than that shown in the stock account on such examination and deficiency exceeds ten per cent, (allowance to that extent being made to cover losses due to evaporation, sullage and other con tingencies within the brewery, and also to cover loss in bottling and storage) the Excise Commis sioner shall levy an additional duty at the rate of one hundred per cent of ordinary rates of duty in respect of such deficit as exceeds ten per cent over and above the ordinary rates of duty. " The Excise Commissioner, however, without issuing any fresh notice passed or ders exercising power under Section 28-A (2) on 253-1981 imposing excise duty and an equal amount of penalty on wastage of 55,165. 50 B. L. which exceeded 10 per cent of the deficiency in the quantity of beer found less than that shown in the stock ac count. Exactly identical four separate or ders were passed on the same date for four quarters or the year, 1973 and copies of the same have been filed as Annexure IV-A to IV-D to the writ petition. It is these orders which are impugned in the present writ peti tion.
(3.) THE case of the petitioner in the Stock respondents have calculated deficien cy in the stock of beer in a wrong manner inasmuch as while taking the stock of beer in the brewery, the account of beer as a finished product was not taken but some thing in the intermediate state which was still in the process of manufacture was taken in to consideration. This has been stated in paragraphs 8,68 and 69 of the writ petition which are being reproduced below: "8. That the process of manufacturing beer ends when the sullage and yeast cells are removed by filteation and fermentation ceases and manufactured bulk beer is ready to be trans ferred: (a) for bottling in bond; and (b) to casks for sale and human consump tion as draught beer. " "68. That under Section 28-A (2) the per missible wastage has to be considered from the stage after the beer has been manufactured and allowance upto ten per cent for wastage has to be given after that stage. " "69. That neither paragraph 912 of the U. P. Excise Manual, as enforced in the year 1961, nor after its amendment permitted that the quantity of material undergoing process of manufacture or production at various stage to be treated as beer in stock for the purposes of determination of per missible wastage and the impugned assessment orders are vitiated inasmuch as they have been passed by treating various quantities of material undergoing process of manufacture as beer in stock along with finished beer and working of wastage percentage on the said added quantities. " Similar plea has been raised in ground No. XIII of the writ petition. The stand of the State, however, is that as soon as wort along with yeast in received, the process of manufacture of beer is complete. This has been elaborated in paragraph 6 of the counter affidavit filed on behalf of the respondents which reads as follows: "6. That the contents of paragraph No. 8 of the writ petition are not admitted. It is submitted that wort is passed into the fermentation vat and fermenting yeast are added to the wort by a simul taneous process. As soon as the wort along with yeast is received in the fermenting vessels or in fermenting votes it ferments and process of manufacture of beer is complete. It is gauged to find out its quantity and this quantity is entered in the register in Form B-4. In the said register in Form B -4 the dip and gravity of the wort is taken. As fermentation starts simultaneously the quan tity determined by dip and gravity in taken to be beer produced. On the register in Form B-4 the breweries representative and the Officer-in-charge of the brewery have to put in their initials. It is denied that the process of manufacture of beer ends when sullage and yeast cells are removed by alteration. In fact quantity of yeast and sullage filtered out may vary from one filteration to another in different processes. Even after filteration beer contains both some yeast and sul lage and petitioner cannot say that he is only entitled to pay excise duty on such quantity after excluding all such yeast and sullage. The filtera tion is only a process to make it more marketable in this competitive business but could not be a part of manufacture. Thus the anticities and suspen sions in beer are itself beer for the purpose. " In paragraph 13 of the counter affidavit, it is stated that excise duty is imposed on beer at the stage of manufacture and can be collected, realised or recovered at any stage before it is consumed. In paragraph 29 it is stated that the beer is manufactured as soon as fermenting agen cies are added to the wort. (Emphasis supplied ).;