MOHAN BREWERIES AND DISTILLERIES LTD Vs. COMMERCIAL TAX OFFICER

JUDGEMENT

(1.) ALL these petitions filed by the same company, engaged in the manufacture of Indian made foreign liquor raise a common point for decision. In T.P. No. 1787 of 1987 (W.P. No. 13369 of 1993), the petitioner is seeking to quash the final order dated June 28, 1993, imposing a penalty under Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act, 1959. In T.P. No. 1788 of 1987 (W.P. No. 13370 of 1993), the same petitioner seeks to forbear the respondent from [proceeding with a notice dated September 1, 1992], proposing to impose a penalty under Section 12(5)(iii) for the year 1990 -91.

(2.) IN T.P. No. 1789 of 1997 (W.P. No. 13371 of 1993), the petitioner is seeking a similar writ to forbear the respondent from imposing a penalty under Section 12(5)(iii) for the year 1991 -1992.

(3.) AS already stated the petitioners are engaged in the manufacture of Indian made foreign liquor and the entire sales of their products are sold only to Tamil Nadu State Marketing Corporation Limited (for short, TASMAC). According to the petitioners they had been filing returns regularly under rule 18 of the Tamil Nadu General Sales Tax Rules, 1959 and paying taxes thereon. In G.O. Ms. No. 246 (Home and Prohibition) dated February 18, 1989, the Government raised the excise duty and vend fee and the liability was shifted to the petitioner/manufacturer. The petitioner approached the TASMAC for reimbursement of the escalated excise duty and vend fee. That request being rejected the petitioners showed the excise duty as rebate in their returns. In other words, the petitioners submitted returns declaring the taxable turnover after deducting the rebate towards the escalated excise duty and vend fee. By an order dated January 31, 1992, in respect of the assessment year 1989 -90, it was held that the petitioner was not justified in claiming rebate and not disclosing the same in the taxable turnover. Therefore, a penalty was levied under Section 12(5)(iii) of the Tamil Nadu General Sales Tax Act at 50 per cent of the disallowed excise duty rebate. Against the levy of penalty, an appeal was filed in Appeal No. 215 of 1992 and the same was dismissed on December 28, 1992.