Prakash Krishna - (1.) -By means of the present petition, the petitioner has sought quashing of the order dated 28.11.2006, passed by the State of U. P. in Excise Revision No. 100 of 2006 and mandamus directing the respondents to adjust the bottling licence fee paid by the petitioner distillery during the currency of the excise year, in advance the minimum licence fee of Rs. 2,00,000 at the end of the excise year, as provided under Rule 5 (ii) of the 2003 Rules and to direct the respondents to adjust the amount of Rs. 18,00,000 realised from the petitioner in the subsequent fee to be paid by the petitioner, with other usual reliefs.
(2.) THE petitioner was holder of a licence in form, F.L.-3 for bottling of Indian made spirit/in bond without payment of duty/after payment of duty and a licence in Form F.L.-3A, for bottling of the foreign liquor, on the basis of an agreement for bottling brands of M/s. Amrit Distillery Ltd., Bangalore. It has been further stated that the Excise Commissioner vide order dated 25.7.2005 cancelled the aforesaid licences in Form F.L.-3A holding them to be against the rules. It has granted the said F.L.-3 licences to M/s. Bharat Distillery Ltd., Mumbai and M/s. Amrit Distillery Ltd., Bangalore and also amended F.L.-1A licences in the name of the aforesaid distilleries vide order dated 9.8.2005. The case of the petitioner is that it has been paying the fee for bottling as provided under Rule 2 of Uttar Pradesh Bottling of Foreign Liquor (Thirteenth Amendment) Rules, 2003 (hereinafter referred to as the 2003 Rules). For the excise years 2003-04, 2004-05 and 2005-06, the aforesaid licences were renewed by the Excise Commissioner. The dispute giving rise to the present petition arose when the petitioner received a notice No. 413 dated 11.9.2006 issued by the Assistant Excise Commissioner, Baheri Distillery, Bareilly under which the petitioner distillery has been directed to deposit a sum of Rs. 18,00,000 towards the arrears of fee for bottling. A copy of the said notice has been annexed as Annexure-4 to the writ petition. The said notice has been issued on the premises that deposit of Rs. 2,00,000 alongwith the renewal application for the aforesaid licences were towards renewal fee for each excise year and for each licence and was not liable to be adjusted towards the bottling charges. Further averment in the said notice is that due to mistake on the part of the department, the said amount of Rs. 2,00,000 which was renewal application fee has been wrongly adjusted against the bottling charges. Questioning the legality and validity of the said notice issued by the respondent No. 4, demanding a sum of Rs. 18,00,000 as arrears for bottling licences, the petitioner approached the State Government by means of Excise Revision No. 100 of 2006. The revision having been dismissed by the impugned order dated 28.11.2006, the present writ petition has been filed challenging the order of the State Government dismissing the revision.
(3.) IN the counter-affidavit filed on behalf of contesting respondents the facts, as stated in the writ petition, have not been disputed or denied. The defence set out in the counter-affidavit is that the petitioner knowingly deposited Rs. 2 lacs at the time of renewal of each licence for all the three years involved in the present writ petition and they subsequently claimed the refund of Rs. 18 lacs which due to mistake was granted by the department. It has been further stated that on a true and correct interpretation of the provisions of the 2003 Rules, the deposit of Rs. 2 lacs with each application for renewal of the licence fee is neither adjustable nor refundable to the petitioner. Alongwith counter-affidavit, copies of the petitioner's application for renewal of F.L.-3A licence for the year 2005-06 and other licences have been annexed to show that the petitioner enclosed treasury challan of Rs. 2 lacs towards renewal of licence. When the matter was taken up earlier it was found that a better counter-affidavit is required and, therefore, a detailed order was passed on 10.4.2008. The relevant extract is reproduced below : "Pursuance to the order of this Court dated 8.4.2008 the Excise Commissioner, U. P. Sri Sudhir M. Bodde is present in Court. He prays for and is granted a week's time to file better counter-affidavit coming up with the clear stand as to whether the adjustment of Rs. two lacs as depicted in the order impugned in this writ petition related to the minimum licence fee deposited as per Rule 2, sub-rule (2) of the Rules or it was an inadvertence adjustment of the application fee of Rs. two lacs to be deposited under Rule 4/5 of the Rules. In the counter-affidavit to be filed the application for renewal of all three years in question, submitted by the petitioner will also be annexed. Further the counter-affidavit will also disclose giving example of other bottlers as to how the adjustments have been made with regard to the licence fee/ application money. Counter-affidavit will also clarify with supporting material the stand taken by Sri S. P. Kesarwani today in Court that every renewal also requires the same conditions to be fulfilled as required for grant of new licence. The Excise Commissioner will also consider the language used in existing Rules and if any ambiguity or its interpretation is found to be not clear, he may consider getting the same amended in accordance with law." ;