- (1.) STATE of Rajasthan through the Excise Commissioner, Udaipur, is the appellant in this appeal which is filed against the order dated, 18. 9. 2000, passed by the learned Single Judge of this Court in S. B. Civil Writ Petition No. 3919/99. The said writ petition was filed by the STATE of Rajasthan challenging the order dated, 3. 5. 1999 passed by the Divisional Commissioner, Jaipur, Annex. 1 in the writ petition under Sec. 9a (d) of the Rajasthan Excise Act, 1950.
(2.) THE respondent Company obtained 52 import permits between 21. 5. 94 to 9. 1. 96 for importing the Indian made foreign liquor from distilleries at Bihar, Goa, Hyderabad and Maharashtra. THE goods could not be imported against those permits. THE Excise Officers of the said distilleries issued non-supply certificates. THE Company applied for refund of the Vend Fee and Import Duty deposited for the permits alongwith the non-supply certificates to the District Excise Officer, Jaipur. THE company requested for refunding the duty or renewing the permits or adjusting the said amount against the permits which will be issued in further. THE Excise Commissioner refused to refund the amount. THE appeal was filed by the respondent company. THE State of Rajasthan took two-fold objections before the appellate authority - (i) with regard to the limitation and (ii) merits. THE Divisional Commissioner, after hearing the parties, allowed the appeal filed by the Company and directed the State to adjust the amount of Rs. 19, 91, 362. 50 against the future permits. Aggrieved against the order passed by the Divisional Commissioner, the State of Rajasthan filed the writ petition on the ground that the reasons given by the Divisional Commissioner for not importing the liquor against the permits issued were not justifiable and they have failed because of their own fault and that Rule 24 gives power to the Commissioner to refund the amount is discretionary in nature. The Company filed reply to the writ petition disputing the legal averments. The learned Single Judge dismissed the writ petition vide order dated, 18. 9. 2000 against which the above appeal has been filed by the State. We have heard Mr. R. B. Mathur, learned counsel for the State and Mr. Kamlakar Sharma, learned counsel for the Company Mr. Mathur made the following submissions: i) The company has not assigned any reason for not submitting the permits in time and no reason has been assigned for the inordinate delay for filing application for the refund/adjustment. ii) Rule 24 of the Rajasthan Excise Rules gives discretion to the Excise Commissioner for ordering the refund and that the discretion can be exercised by the Excise Commissioner only when the company has filed to import with justifiable reasons. iii) Rule 77 of the Rules clearly stipulates that except as otherwise expressly provided in these rules, the fee paid for any licence under these rules shall not be refundable except under the specific order of the government. Since the fee is for allowing the import from out side distilleries and when the State has done its duty and allowing the imports, the State cannot be asked to refund or adjust on the failure to import the liquor by the respondent company. iv) The fees or duty recovered by the government has already been used by the State in public interest and accordingly, the budget is declared and that only in exceptional cases, the refund can be allowed to be made. v) The reasons assigned for non-import, such as, shortage of trucks, non-arrangement of Bank Guarantee, labour problem etc. were not beyond the control of the Company and since the permits issued have lapsed after the stipulated time mentioned in the permit, it cannot be renewed. Mr. Mathur invited our attention to the relevant sections and the rules and also cited two decisions reported in the Official Liquidator vs. Dharti Dhan (P) Ltd : (1) and Chief Settlement Commissioner (Rural), Punjab and Another vs. Ram Singh and Others Mr. Mathur also submitted that there cannot be any unjust enrichment so far as the fee paid by the company is concerned. Per contra, Mr. Kamlakar Sharma submitted that the government has no authority to collect import duty unless the goods are imported into the State of Rajasthan and if such an event does not take place, the State would have no right to collect the import duty. Referring to rule 24 (2) of the Rules, Mr. Sharma submitted that all that is required to be seen by the Excise Commissioner for the purpose of Rule 24 (2) is whether in fact, an import has taken pace or not and if no import has taken place, the Excise Commissioner is bound to order refund of excise duty and fees paid. He would also further submit that the reasons given by the answering respondent were absolutely genuine and clearly show that the answering respondent was unable to utilise the permits and import the liquor for the reasons beyond its control. He, therefore, submitted that the order of the Divisional Commissioner and as confirmed by the learned Single Judge are correct and the appeal is liable to be rejected. Mr. Kamlakar Sharma in support of his contentions cited Mafatlal Industries Ltd. and Others vs. Union of India and Others (3), Deputy Commissioner, Andaman, District, Port Blair vs. Consumer Cooperative Stores Ltd : (4), Shri Rangaswami, the Textile Commissioner and Others vs. The Sagar Textile Mills (P) Ltd. and Another (5), L. Hirday Narain vs. Inkcome-Tax Officer, Bareilly (6), S. K. Pattanaik (dead) through LRS. vs. State of Orissa and Others (7) and M/s. Shroff and Co. vs. Municipal Corpn. of Greater Bombay and Anr. vs. Municipal Corpn. of Greater Bombay and Another
(3.) ON the arguments advanced by the counsel appearing on either side, the following basic question will arise for determination: Whether the import duty is paid or is payable on the import of goods in Rajasthan and unless the goods are imported, the State has no jurisdiction or authority to retain the import duty or fees therefor? Rule 24 of the Rajasthan Excise Rules, 1956 reads as follows: 24. Condition of import. (1) A person holding a licence for the sale of Indian made Foreign Liquor and Foreign Liquor or the Commandant of Regimental units of the Armed Forces of the Union of India stationed in Rajasthan may import Indian made Foreign Liquor on prepayment of import duty in Rajasthan and under a permit issued under the next succeeding rule, from a distillery brewery or warehouse of the exporting State. Provided that duty paid Rum possessed by any unit of the Indian Armed Forces may be imported into the State without payment of duty and such import shall not require any permit/pass from the State authorities. (2) If the person authorised to import Indian made Foreign Liquor under sub-rule (1), does not import the liquor for which he has deposited either the duty or the permit fee or both, he may be allowed refund by the Excise Commissioner. " Rule 77 reads as follows: "77. Fees not to be refundable : The fee paid for any licence under these rules shall not be refundable except under the specific orders of the Government. " ;