LAKSHMANAN, CJ. - (1.) CIVIL Writ Petition No. 2683/98 was filed by M/s Herbertsons Ltd. to quash the notice as also the impugned orders Anx. 1 dated 16. 8. 97 passed by the Commissioner, Excise Department, Udaipur and Anx. 2 dated 29. 7. 98 passed by the Rajasthan Taxation Tribunal, Jodhpur Bench and to declare that no interest is leviable on the due enhanced bottling fees since the payability of the dues was arrested during the period in which the stay order passed by this Court was in vogue. Therefore, the respondents be directed to make refund of the Rs. 33,91,500/- which have been deposited by the petitioner against the interest, with interest at the rate of 24% per annum.
(2.) WRIT Petition No. 2684/98 was filed by M/s. Udaipur Distillery Company Ltd. to quash the impugned orders Annex. 1, 2 and 3 and to declare that no interest is leviable on the due enhanced bottling fees on the petitioner company, since the payability of the due enhanced bottling fees was arrested during the period in which the stay order was in vogue and granted by the High Court and to refund a sum of Rs. 83, 00, 000/- which have been deposited by the petitioner against interest with interest at 24% per annum. The brief facts of the case are as follows, - Since these two writ petitions involve the consideration of common question of fact and law, they are being disposed of by this common judgment, by consent of parties. The petitioner-Company, in 2684/98 challenged the Notification dated 16. 3. 92 issued by the respondents enhancing the bottling fees in the year 1984 by filing the writ petition before this Court. The writ petition was admitted and an interim order was passed which was lateron confirmed, after hearing the parties in 1986. Ultimately, the writ petition came to be dismissed by the Division Bench of this Court vide judgment dated 17. 8. 95 by the Division Bench comprising of Hon'ble Justice Jas Raj Chopra and Hon'ble Justice P. K. Palli ). Though the writ petition was dismissed on 17. 8. 95 this Court allowed interim stay to continue for six weeks, to enable the petitioner to obtain relief from the Supreme Court of India. The petitioner filed SLP before the Supreme Court. No interim order was passed. As such the petitioner, without receiving any notice deposited Rs. 1, 41, 88, 972/- against the dues of bottling fees. It is the case of the petitioner that after enhancing the bottling fees by Notification dated 16. 3. 82, till the writ petition was dismissed, no notice or demand was raised by the respondents and that the petitioner voluntarily deposited the above amount of Rs. 1, 41, 88, 972/ -. For the first time a notice was given on 29. 12. 95 raising the demand of interest for late payment of dues to the extent of Rs. 1,45,38,464/ -. This notice was for the payment of interest. After the rejection of the writ petition, the petitioner moved an application before the Excise Commissioner for waiver of interest u/s. 30aa of the Act, which application was rejected,against which the petitioner filed another writ petition before this Court, in which the interim stay was given. Ultimately, the writ petition was dismissed vide order dated 20. 3. 97 in SBCW Petition No. 2983/96 (Hon'ble B. J. Shethna, J. ). In the above writ petition, the petitioner has also challenged the jurisdiction of the respondent under Sec. 30a of the Act which was dealt with in detail by the learned Single Judge. Being aggrieved by the said decision, the petitioner filed a special appeal being DBC Spl. Appeal No. 377/97 which was disposed of by a Division Bench on 30. 4. 97 remanding the matter back to the Commissioner for reconsideration.
(3.) IT is relevant to notice the observations made by the Division Bench:- "1. . . . . . . The controversy involved in these appeals is that the appellants questioned the imposition of excise duty on them. The imposition of excise duty was questioned by the appellants before this Court unsuccessfully and liability to pay the excise duty was maintained even upto Supreme Court. Since the appellants were litigating and had stay orders operating in their favour at some intervals while they were litigating the imposition of the excise duty they ignored the liability to pay tax over the same. IT is admitted fact that appellants have paid the amount as far as the excise duty is concerned. 2. Since the law provided for imposition of interest on delayed payment of the excise duty, the Excise Commissioner issued an order dated 16. 12. 1995, whereby interest for about 10 years, that is from 1984 to 1995, was demanded from the appellants. This amount was disputed by the appellants and in the meantime they sat with the respondents and arrived at an amount which, according to them, was the correct calculation of interest. The Department earlier demanded a sum of Rs. 1. 85 crores as interest which was later on corrected to Rs. 1. 45 crores only. This amount was calculated against the appellants in terms of Sec. 30-A. 3. With the payment of excise duty the challenge by the appellants against imposition of excise duty came to an end. As regards imposition of interest, the appellants got the same corrected by sitting with the respondents and no steps were taken by the appellants to file any appeal against the order of imposition of interest to the tune of Rs. 1. 45 crores on the amount of excise duty. However, the appellants preferred an application u/s. 30-AA of the Rajasthan Excise Act, 1950 (hereinafter referred to as the Act') for waver of the interest because they were ready and willing to co-operate with the Department as regard realisation of interest. The respondent- Commissioner by order dated 31. 08. 1996 rejected the application of the appellant-petitioners. Against the order of the Commissioner whereby he refused to waive the amount of interest imposed or to reduce the same, petitioners preferred the writ petitions mentioned above and impugned this impugned order Annex. 1 to the writ petitions. " The Bench has also observed in paragraph 5 as follows:- "5. We have given our thoughtful consideration. As regard argument of appellant-petitioners about legality of imposition of interest under Sec. 30-A, we are afraid that this ground could not have been raised by the petitioner-appellants even before the learned Single Judge or this Court in appeal because neither have they impugned the order under Sec. 30-A before this Court in the writ petition nor could they otherwise challenge the same because that order had to be challenged in a different proceedings. The argument of the counsel for the petitioner regarding Sec. 30-A cannot be entertained by this Court and has rightly not been entertained by the learned Single Judge because there is a regular remedy of appeal under Sec. 9a of the Act. The Writ Petitions have been designed basically against the orders passed under Sec. 30-AA of the Act. Thus, we are of the considered opinion that appellants had remedies before the Excise authorities under Sec. 9a of the Act and then under Sec. 5 of Act of 1995, before the Rajasthan Taxation Tribunal. " The Bench has remanded the matter to the original Authorities, without expressing their opinion on the merits of the case, for, on merits, a fresh examination has to be done by the excise authorities under the Act and then by the Rajasthan Taxation Tribunal under the Act of 1955. ;