- (1.) PETITIONER, Udaipur Distillery Company Limited, dealing in liquor business within the State and out side the State has filed this petition under Article 226/227 of the Constitution of India praying that a writ of certiorari be issued against the impugned order passed by the Excise Commissioner, respondent No. 2, on 31. 8. 96 (Annex. 1) and the same may be quashed. It is also prayed to declare that the petitioner is entitled to waiver of interest under Section 30-AA of the Rajasthan Excise Act, 1950 (for short, `the Act') and also to declare that the respondents are not entitled either to impose interest or recover the same from the petitioner under Section 30-A of the Act.
(2.) ON 23. 9. 96, this petition was straight away admitted by this Court (Ouorum P. P. Naolekar, J.) and the notice was ordered to be issued. ON the same day, i. e. on 23. 9. 96, on stay petition also, this Court ordered to issue notice to the other side and till further orders the respondents were restrained from taking coercive action for recovery of the amount. ON 10. 10. 96, statement was made before this Court by learned counsel Shri Joshi for the petitioner that the petitioner will deposit Rs. 15,00,000/- on or before 25. 10. 96 and further Rs. 15,00,000/- on or before 15. 11. 96 at first instance. ON that statement, the exparte stay granted earlier was modified by this Court on the condition that the petitioner will deposit the aforesaid amount, as stated earlier, failing which it was ordered to be vacated automatically. ON 20. 11. 96 statement was made by the learned counsel for the petitioner that the order passed by this Court on 10. 10. 96 was complied with by the petitioner and in all Rs. 30 lakhs were deposited. Therefore, the matter was adjourned from time to time due to sickness of the learned counsel Shri Vyas and for other reasons. However, today the matter was heard on 11. 3. 97 finally along with similar writ petition viz. , S. B. Civil Writ Petition No. 3048/96 Herbertsons Ltd. Unit Sona Distillieries, Alwar vs. State of Raj. etc. The petitioner, Udaipur Distillery Co. Ltd. , earlier challenged the imposition of excise duty before this Court by way of writ petition No. 716/90 wherein a blanket stay was granted in favour of the petitioner but later on the said writ petition came to be dismissed. The principle amount towards excise duty was about Rs. 1. 40 crore. After the dismissal of the writ petition by this Court, the petitioner filed S. L. P. before the Apex Court but they have failed to obtain any stay order from the Supreme Court against the principle amount of about Rs. 1. 40 crore. Hence, the said amount was paid by the petitioner to the respondents. It is stated at the bar by learned counsel Shri Joshi that the said S. L. P. is yet pending before the Supreme Court without any stay being granted in it. Thereafter, by an order dated 16. 12. 95, the Excise Commissioner demanded interest for about ten years i. e. from 1984 to 1995 of about Rs. 1. 85 crore on the principle amount of excise duty of about Rs. 1. 40 crores. An application was moved by the petitioner before the Excise Commissioner under Section 30-AA of the Act for waiving the interest on the grounds mentioned in it. The petitioner deposited Rs. 53 lakhs on 31. 3. 96 against the demand of Rs. 1. 85 crores as interest on the request made by the Excise Commissioner on his assurance that the case of the petitioner for waiving the interest will be considered sympathetically. Later on, the department found out its mistake in calculation, therefore, corrected it by reducing the interest amount of Rs. 1. 85 crore to Rs. 1. 45 crore only. Thereafter, the Excise Commissioner, after hearing the petitioner rejected the application for waiver filed by the petitioner by an order dated 31. 8. 96 (Annex. 1 ). Therefore, the petitioner was required to pay balance amount of interest of Rs. 92,38,464/ -. But the same was not paid, therefore, the respondents started recovery proceedings of the balance interest amount of Rs. 92,38,464/ -. Though, statutory appeal was maintainable under Section 9-A of the Act against the impugned order dated 31. 8. 96 (Annex. 1) passed by the Excise Commissioner to the Divisional Commissioner but the sa- me was not filed. Instead of that, the petitioner has filed this petition directly before this Court under Art. 226/227 of the Constitution of India and challenged the impugned order at Annex. 1 passed by the Excise Commissioner. The grounds for not filing an appeal by the petitioner, which is sought to be made out in this petition is that the petitioner was required to deposit 75% of the demanded amount then only the appeal could be entertained. It is also contended that the alternative remedy of appeal is not a speedy or effacious remedy, therefore, the appeal was not filed by the petitioner and directly this petition was filed before this Court. Learned counsel Shri Rajendra Vyas raised the preliminary objection regarding the maintainability of this petition on the ground that there was an alter- native and effacious remedy by way of an appeal available to the petitioner, which was not availed of by the petitioner, therefore, this court should not entertain this petition and dismiss it only on this ground. As against that, learned counsel Shri Joshi, for the petitioner vehemently submitted that though there was statutory remedy of appeal, the petitioner did not avail of the same and directly filed this petition before this Court under Article 226/227 of the Constitution of India because the remedy of appeal is neither effacious nor a speedy remedy. Mr. Joshi further submitted that the provision to deposit 75% of amount at the time of filing of appeal is very harsh, therefore, the petitioner has filed this petition instead of filing an appeal before the Divisional Commissioner against the impugned order passed by the Excise Commissioner.
(3.) ON merits, Mr. Joshi submitted that the impugned order at Annexure 1 is liable to be set aside as the same is in clear violation of Section 30a and 30aa of the Act. Mr. Vyas for the respondents, however, submitted that the impugned order at Annexure 1 does not suffer from any infirmity. The Excise Commissioner has passed a reasoned order, which is not required to be interfered with by this Court in exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India or the supervisiory powers under Art. 227 of the Constitution of India. He sub- mitted that writ of certiorari cannot be issued in such cases where the decision of the authority is otherwise just and proper. In my opinion, there is lot of substance in the preliminary objection raised by Mr. Vyas regarding the maintainability of the writ petition in view of the alternative remedy of appeal being available to the petitioner and not availed of. The Full Bench of five Judges of this Court in case of Gopi Chand Teli vs. State of Raj. etc. (1), held that entertainment of writ petition by this Court under Article 226 of the Constitution of India without exhausting the remedies should be with great care and caution and in very exceptional cases. It has also been held that violation of the principles of natural justice, the normal course is to pursue the remedy provided under the Act and power under Article 226 of the Constitution of India is such cases should be sparingly exercised. This petition therefore is required to be dismissed on this ground alone. Under Section 9-A of the Act appeal lies against the order passed by the Excise Commissioner before the Divisional Commissioner within 60 days from the order complained of. Proviso to sub-section (4) of Section 9-A provides that no appeal shall be entertained unless 75% of the amount of demand created by the order appealed against is deposited. ;