BALIA, J. - (1.) HEARD learned counsel for the parties.
(2.) THIS petition was filed in 1990 before this court. On constitution of Rajasthan Taxation Tribunal, the petition was transferred to said Tribunal. However, the petition could not be decided by the Tribunal during the life of that Tribunal and on its abolition, the petition has been re-transferred to this court and has been re-numbered 1931/99, the original number of the Writ Petition was 3540/90. The facts in brief leading to this petition are that the petitioners were granted privilege/licence for the retail shop for a sum of Rs. 16,06,666. 72. The shop for which the retail licence was granted was situated at Sadul Sahar. The petitioners had lifted requisite quantity of liquor and have paid the entire contract money for the year 1977-78. However, at the close of the year stock of the country liquor at the issue price value of Rs. 2,33,238/- remained with the petitioners on which rebate has been allowed to the petitioners at the time of issue. As per term 1 (Cha) on stock remaining with the licensees at the end of the period of licence, rebate granted on issue price was to be recalled, whether the licence has been terminated or term of licence has been expired in normal course. As per term 25 (ka) of the licence, the stock on which the rebate was to be recalled, the licensee was required to return the stock as per directions of DEO and was entitled to return of the amount equal to issue price. However, term 25 (ka) further envisaged that if for the succeeding year the licence has been granted in favour of the same previous licence-holder, in that event he was permitted to sale the liquor remaining with him as closing stock at the expiry of licence, after informing the Excise Department, subject to condition that for selling of the liquor the stock is not required to be taken out of the town for which it has been issued and this would be facility in addition to the requirement of minimum quantity of liquor to be lifted by him under the current licence. In the light of aforesaid condition the petitioners were awarded the retail licence for the same shop for the financial year, 1978-79 and they were allowed to hold the balance stock with them at the close of the financial year 1977-78 to sell it during the period of licence for financial year 1978-79. During the continuance of the licence for the financial year 1978-79 the petitioners were served with notice dt. 20. 10. 78 (Annexure-3) calling upon them to pay Rs. 1. 84,190. 40 as an amount of rebate granted to them under clause 1 (Cha) which was required to be withdrawn at the close of the period of licence for 1977-78 on the issue price of the stock remaining unsold on 1. 4. 78.
(3.) THIS order Annexure/3 was challenged before the Board of Revenue by way of revision. By its order dt. 28. 01. 1983 the board of Revenue set aside the demand notice by holding that the demand has been raised without notice to the petitioners and was in breach of principles of natural justice. Subsequent thereto after hearing the petitioners, order Annexure/5 was made by the District Excise Officer on 22. 10. 1984 holding the petitioners were responsible for returning the rebate on the issue price of the closing stock for 1977-78 amounting to the aforesaid sum of Rs. 1,84,190. 40. He was of the opinion that condition No. 1 (cha) would not be applicable only in case where the licence lifts in the current period of licence the quantity of liquor in excess of quantity covered under the guarantee amount, otherwise to the extent the country liquor has been issued within the guarantee amount, any rebate has been availed by the petitioners during the last previous year that benefit he cannot continue to retain on the sale of said excisable article on the subsequent year. This decision of the District Excise Officer was affirmed on appeal by the Commissioner of Excise vide his order dt. 31. 12. 1984. The learned Commissioner was of the opinion that benefit of 25 (ka) is applicable only in case the licensee has lifted the liquor more than the required amount of guarantee otherwise he is not entitled to that benefit. ;