BALIA, J. - (1.) THIS writ petition has been filed to challenge the amendments brought in rule 69-B of the Rajasthan Excise Rules vide Notification dated 2. 11. 1999 and consequential raising of demand by the respondent vide Annx. 7 dated 19. 11. 99 as permit fees for bringing Indian Made beer in Rajasthan from State of Haryana.
(2.) THE petitioner is a company incorporated under the Companies Act, 1956 having its registered office at Delhi and its brewery at Daruheda in the State of Haryana. In favour of `. he petitioner, the respondent State of Rajasthan has parted with its exclusive privilege of wholesale vend of Indian Made Foreign Liquor (IMFL) and beer for the Financial year 1998-99 ending on 31. 03. 1999. THE licence Annx. 1 dated 22. 7. 98 also contained the special conditions relating to the grant of licence in favour of manufacture of Indian Made Foreign liquor,/beer who are situated outside the State of Rajasthan. These conditions included that the licensee shall pay the duties of excise leviable under Sec. 28 read with Rule 69 before import of IMFL/beer. Apart from that, licensee is also r-equired to obtain a permit under special condition No. 2 and to furnish details of the import made by him as required under the condition and make payment of the requisite fees. for. such permit alongwith application. On furnishing of such application alongwith payment of permit fees, the District Excise Officer, if he has no objection thereto, and after, satisfying himself that all particulars required in Condition No. 2 have been furnished and that the applicant has either paid the permit fees or executed a bond for the payment of the fees is r-equired to issue a permit in four copies of which one to be delivered to the applicant, another shall be sent to the Excise Officer of the District from which the IMFL/beer is to be exported, third copy is to be sent to the concerned Inspector of the circle where the warehouse is situated and fourth is to be retained by the District Excise Officer. Such permit could be utilized within the time stipulated therein. With the other conditions, we are not presently concerned in the, present petition. The petitioner has in the first. instance challenged the validity of imposition of import duty vide notifications dt. 31. 7. 97 and 9. 7. 98 issued under Section 28 of the Rajasthan Excise Act, 1950, mainly on ground that no authority ,vests in the State to impose a duty on import of the potable liquor under the provisions of the Constitution or u/s. 28 of the Rajasthan Excise Act, because levy of import duty on potable liquor is beyond the legislative competence of the State legislature, the same could not have been even levied by the delegated authority while framing the rules or by issuing notification thereunder. That challenge in respect of notifications purported to have been issued under Sec. 28 of the Excise Act is subject matter of another writ petition No. 1694/99 in which an interim order has been issued on 19. 8. 99 in favour of the petitioner that `state shall not charge the import duty from applicant as mentioned in Notification dated 9. 7. 9e until further orders, although there will be no restriction to charge the counter-vailing duty, if any, from the applicant'. Thereafter, Rule 69-B of the Rajasthan Excise Rules, 1956 was amended vide Notification dated 2. 11. 99 (Annexur-e 6) and the petitioner was required to deposit Rs. 1,36,500/- as permit fee for bringing in Excisable Articles as per Table under Rule 69-B before petitioner's application dated 3. 11. 98 could be granted for importing beer manufactured by it from outside State of Rajasthan to his bonded warehouse within the State of Rajasthan. Aggrieved with the aforesaid amendment of Rule 69-6 (Ex. 6) and the communication dt. 19. 11. 99 (Ex. 7) this petition has been filed with the following prayer. "it is, therefore, most respectfully prayed that this writ petition may kindly be allowed and the Notification dated 2. 11. 99 and order dated 19. 11. 99 may be quashed and set aside"
(3.) IT was contended by the petitioner that by amending Rule 69- B, the word "bringing" has been substituted by word "bringing" and word "export" has been substituted by word "sending" in the Rule 69b and for issuing a permit for. bringing Indian made beer within the State of Rajasthan from outside, a fee at the rate of Rs. 5 per bulk liter has been imposed, and a fee of Rs. 2 per bulk liter as permit fee for sending Indian Made Bear from the Rajasthan to any other, place in India was imposed. Prior to this, under the existing provisions of Rule 69~b alongwith its table, no permit fee for import of IMFL or Indian made beer into Rajasthan or for export of IMFL and Indian made beer outside Rajasthan was imposed but a permit fee only for Transporting Indian made beer within Rajasthan @ Rs. 4 per bulk liter was prescribed. The petitioner does not have any grievance about the prescribing of transport fee chargeable under Rule 69-8. However, his grievance is that by amending rule 69-B, not only the nomenclature of permit fee For import -and permit fee for export has been changed for permit fees for bringing' and `permit fees for sending out' of State, but separate permit fees have also been levied for each type of permit as. stated above. While contending that no change can be spelt out from the use of word "bringing" in place of `import' and "sending" in place of `export', the levy of permit fee for bringing in ,and sending out excisable article in question is invalid. Firstly because the Rajasthan Excise Act does not provide for imposition of bringing in and sending out permit fees, secondly the imposition is ultra vires the provision of Constitution of India because a fee can be imposed only in consideration of some service rendered by the State to the person from whom fee is charged. In other words, there has to be an element of quid pro quo to sustain the levy of a fee as distinguished from a tax. A fees can be charged' only in lieu of some services rendered by the State to the petitioner. It was contended that no other service is being provided by the State except that the petitioner-is permitted to keep the goods in bonded warehouse for which the petitioner is paying a separate fees. As no additional service is rendered by the State for bringing its the excisable article in question within the State, no fee can be levied and as there is no element of quid pro quo, in charging the permit fee, it is nothing but levy of tax on import, which is not permissible under Entry 51 of the State List of the VII Schedule of the Constitution. The provisions have also been challenged on the anvil of violation of Article 301 and 304 of the constitution of India as it imposes much more heavier duty on excisable article brought within the State in comparison to like goods manufactured in the State. The levy of bringing fees is therefore discriminatory and violates Article 301 because it impedes free inter-course of business or trade in excisable articles as envisaged under Article 301 of the Constitution. The levy of fee @ Rs. 5 per bulk liter has also been challenged on the ground of being exhorbitantly excessive. Referring to his earlier petition No. 1694/99, the petitioner has contended that the amendment made in Rules by the delegate authority is malafide. Realizing that no tax by way of import duty can be levied, the State Govt. has devised this method of charging the same amount of duty from the petitioner by way of permit fees which also it otherwise cannot recover by way of fees and therefore, Annexure-6 has been issued in colourable exercise of power by the State in amending Rule 69-8. ;