S K G SUGAR LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) The petitioner has questioned the validity of rule 106 -A, which was framed by the Board of Revenue in exercise of the powers conferred on it by Sec. 90 of the Bihar and Orissa Excise Act, 1915 (hereinafter to be referred to as 'the Act'). The petitioner holds licence for manufacture and sale of India made foreign liquor. In view of the rule under challenge the India made foreign liquor can be exported to a place outside Bihar only on payment of export pass fee at the rate of 60 paise per litre. Rule 106 -A is as follows: - -

(2.) The validity of Rule 106 -A aforesaid has been challenged on the ground that while purporting to impose a fee, in fact, duty or a tax has been imposed by the Board of Revenue which is beyond the purview of Sec. 90 of the Act. According to the petitioner, the export pass fee in substance being a duty or tax it should have been imposed by the State Government in exercise of the powers under Ss. 27 and 28 of the Act. Alternatively, it was submitted that if it is held to be a 'fee' then the amount realised as export pass fee must be correlated to the expenses incurred by the Government in rendering services to the petitioners.

(3.) Sec. 2(6) defines "excisable article" to mean (a) any alcoholic liquor for human consumption, or (b) any intoxicating drug. Sec. 12 provides that no intoxicant exceeding such quantity as the State Government may prescribe by notification shall be imported, exported or transported, except under a pass. Chapter IV of the Act contains provisions which require licence for manufacture, possession and sale of intoxicant. Sec. 22, which is in the same Chapter, prescribes that the State Government may grant to any person on such condition and for such period as it may think fit, the exclusive privilege of manufacturing or supplying wholesale or selling any country liquor or intoxicating drug within any specified fatal area. Chapter V of the Act deals with the duty. The relevant part of Sec. 27 is as follows: - -