MODERN HOTEL Vs. COMMISSIONER OF EXCISE

JUDGEMENT

(1.) Challenge in this original petition is against Exts. P4 and P5. The counsel submits that challenge against Ext. P5 is not pressed. Ext. P5 is an amendment to the Foreign Liquor Rules introducing proviso to Rule 13A to the following effect : "Provided further that no defaulter of Abkari arrears due to the Government shall be permitted to renew the licence unless he produces from the Excise Department a certificate to the effect that he has cleared 50% of the Abkari Arrears pending at the time of renewal of the licence." When the provision is on statute, no licence shall be granted unless the defaulter produces from the Excise Department a certificate to the effect that he had cleared at least 50% of the abkari arrears pending at the time of renewal of licence. When challenge against Ext. P5 is not pressed, necessarily Ext. P5 has to be taken as valid. Challenge in this original petition is against Exts. P4 and P5. The counsel submits that challenge against Ext. P5 is not pressed. Ext. P5 is an amendment to the Foreign Liquor Rules introducing proviso to Rule 13A to the following effect : "Provided further that no defaulter of Abkari arrears due to the Government shall be permitted to renew the licence unless he produces from the Excise Department a certificate to the effect that he has cleared 50% of the Abkari Arrears pending at the time of renewal of the licence." When the provision is on statute, no licence shall be granted unless the defaulter produces from the Excise Department a certificate to the effect that he had cleared at least 50% of the abkari arrears pending at the time of renewal of licence. When challenge against Ext. P5 is not pressed, necessarily Ext. P5 has to be taken as valid.

(2.) The petitioner is a partnership firm. The partnership firm obtained Ext. P1 licence . Later the licence was transferred from the name of one partner to another. It was also on behalf of the partnership firm. The licence granted is existing for and on behalf of the petitioner partnership firm is not in dispute even though one Sulekha is named in the licence for statutory purpose. Thus the petitioner, the firm is the licencee.

(3.) One among the partners of the firm is one Sasikumar. Before he was admitted to the partnership, he had been a member of another partnership firm which had conducted abkari business in 1981-82. Admittedly that partnership firm which conducted abkari business in the year 1981-82 committed default in payment of abkari arrears to the extent of Rs. 70 lakhs. It is admitted that it is still pending payment. It is also admitted that the said partner Sasikumar was admitted to the petitioner partnership after the abkari arrears had fallen due from the partnership in which he was a partner. Now the Excise Commissioner has refused renewal of the licence of the petitioner firm for the year 2001-2002, as per Ext. P4, on the ground that the said Sasikumar one among the partners of the petitioner firm, is a defaulter and has not remitted at least 50% of the total abkari arrears in accordance with the last proviso to Rule 13A of Foreign Liquor Rules as introduced by Ext. P5 amendment.