- (1.) IN exercise of power conferred by the Bengal Excise Act, 1909, the West Bengal Excise (Country Spirit) Rules, 2009 (hereafter the Rules) have been framed. The rules were notified vide notification no. 1320-EX dated November 12, 2010, published in the Kolkata Gazette dated November 15, 2010. Rule 28 of the Rules providing for "Issue of country spirit only on payment of duty", was amended by notification no. 320-EX/O/1R-5/10 dated March 26, 2012, published in the Kolkata Gazette dated April 12, 2012. Sub-rule (2) of Rule 28 was substituted and sub-rule (3) thereof was deleted.
(2.) THE petitioners are licensees/retailers of country spirit. THEy claim that the amendments in Rule 28 would result in their suffering huge business losses. THEy say that effect given to the amendments in Rule 28 has resulted in a situation where the maximum retail price of a product that the petitioners have been permitted to sell would be lower than the cost of procurement. Feeling aggrieved thereby, this writ petition dated May 16, 2012 was presented before this Court seeking, inter alia, the following relief: "(a) Grant leave to the petitioners under Order 1 Rule 8 of the Code of Civil Procedure, 1908; (b) Declare that the impugned notification as published in the Official Gazette on 2nd April, 2012 as ultra vires Article 14 of the Constitution of India; (c) Issue a Writ in the nature of Mandamus commanding the respondents and their men, agents and assigns to cancel, rescind, withdraw and/or forebear from giving any effect and/or further effect to the impugned decision as contained in the impugned notification dated 26th March, 2012 and to act in accordance with law by acting in the manner as stated hereinabove; (d) Issue a Writ in the nature of Mandamus commanding the respondents and their men, agents and assigns to forthwith and/or immediately decide the petitioners' grievances by affording an opportunity of hearing to the petitioners and to act in accordance with law by acting in the manner as stated hereinabove; (e) Issue a Writ in the nature of Certiorari commanding the respondents to forthwith and/or immediately certify and/or transmit to this Hon'ble Court the entire records and/or proceedings forming subject matter of the instant case so that conscionable justice may therein be administered by setting aside and/or quashing the impugned decision as contained in the impugned notification dated 26th March, 2012; (f) Issue a Writ in the nature of Prohibition prohibiting the respondents from giving any effect and/or further effect to the impugned decision as contained in the impugned notification dated 26th March, 2012;" At the first hearing of this petition on May 17, 2012, Mr. Sengupta, learned senior counsel representing the petitioners submitted that only prayer (d) supra would be pressed, meaning thereby that the rest of the prayers would stand abandoned. According to him, the official respondents have subjected licensees/retailers of country spirit like the petitioners to arbitrary and discriminatory treatment and, therefore, he prayed that a direction be made for consideration of the petitioners' plight by the official respondents. Mr. Mazumdar, learned counsel for the official respondents, raised a preliminary objection in relation to maintainability of the writ petition before this Court. Referring to Sections 5 and 6 of the West Bengal Taxation Tribunal Act, 1987 (hereafter the Act), he contended that the Taxation Tribunal constituted thereunder only has jurisdiction to entertain this writ petition notwithstanding abandonment of all but one of the prayers quoted above.
(3.) HEARING did not conclude on that day and the writ petition has been listed once again for admission hearing. Replying to the objection raised by Mr. Mazumdar, Mr. Sengupta referred to provisions contained in Section 8 of the Act and Rule 5 of the West Bengal Taxation Tribunal Rules, 1998 to contend that an order passed or action taken pertaining to any matter within the jurisdiction of the tribunal could be assailed before it and since in the present case the petitioners have sought for limited relief of consideration of their grievance by the official respondents, the provisions of the Act do not bar entertainment of the writ petition. It is also his contention that the grievance that the petitioners seek to voice is neither relatable to adjudication or trial of any dispute, complaint or offence with respect to levy, assessment, collection and enforcement of any tax under a specified State Act nor is it incidental thereto or connected therewith and, therefore, the objection regarding maintainability of the petition is not well founded.;