V S VENKATACHALA GOUNDER Vs. SECRETARY GOVT OF TAMIL NADU PROHIBITION AND EXCISE II DEPT FORT ST GEORGE

JUDGEMENT

(1.) THE petitioner has sought for a Writ of Certiorari to quash G.O.Ms. No. 81 dated 5.4.2004 issued by the 1st respondent and the consequential proceedings issued by the 2nd respondent in Na.Ka.Va.Pa.15/97/J1 dated 16.5.2005.

(2.) FACTS of the case, as deduced from the affidavit are as follows: The petitioner was the successful bidder of Arrack Shop No. 36, Kanakkampalayam Village, Gobichettipalayam Taluk, Erode District, for the year 1984-1985 on a licence fee of Rs.15,401/- with effect from 18.7.1984 to 30.6.1985. The petitioner wound up his business and got back the initial security deposit and there was no arrears of kist. While so, the 2nd respondent issued a notice dated 8.12.1993 to the effect that a decision had been taken by the Commissioner of Excise and Land Revenue regarding payment of kist amount on account of short supply of molasses. It was further stated in the notice that without taking into consideration the short supply of molasses, remission had been granted. Therefore, the 2nd respondent issued a notice dated 8.12.1993, demanding a sum of Rs.51,459.10 towards arrears of kist. Subsequently, by order dated 18.2.1994, the District Collector, Erode, directed the petitioner to pay the above said sum. Aggrieved by the same, the petitioner filed W.P. No. 11663 of 1994 and by order dated 19.6.2001, the same was dismissed. After the dismissal of the writ petition, the petitioner has paid the entire sum of Rs.51,459.10 in installments from February 2004 to December 2004. The respondents had accepted the payments without any objection whatsoever and the petitioner was under the bona fide impression that he had discharged the entire amount. However, by order dated 16.5.2005 in Na.Ka.Va.Pa.15/97/J1, the 2nd respondent directed the petitioner to pay a sum of Rs.1,14,567/- towards interest on the sum of Rs.51,459/- from 1.7.1986 to 30.6.2005 calculated @ 12% p.a. citing G.O.Ms. No. 81 dated 5.4.2004 issued by the 1st respondent. On receipt of the order dated 16.5.2005, the petitioner made representations on 27.5.2005 and 30.5.2005 to the 2nd respondent for which, a rejoinder dated 6.6.2005 was sent by the 2nd respondent confirming that the petitioner should make the payment of interest of Rs. 1,14,567/-. Aggrieved by the same, the petitioner has filed the above writ petition.

(3.) ASSAILING the Government Order and the consequential demand towards interest, Mr.M. Duraiswamy, learned counsel for the petitioner submitted that G.O. Ms. No. 81 dated 5.4.2004 can only have prospective effect and it cannot be given any retrospective effect. He further submitted that when the 2nd respondent issued the demand notice for payment of arrears of kist amount for the period 1984-85, interest on the said amount was not claimed and in the absence of any show cause notice, the 2nd respondent is estopped from claiming interest for the above said period. It is further submitted by the learned counsel for the petitioner that the arrears of kist amount has already been paid in instalments and the entire arrears was cleared on 21.12.2004 and when there was no whisper regarding payment of interest, the respondents cannot apply G.O.Ms.81 dated 5.4.2004 retrospectively and demand interest. In support of the above contention, he relied on the judgment of the Supreme Court reported in 2005 4 SCC 472 (Commissioner of Trade Tax V. Kanhai Ram Thekedar) and a judgment of this Court reported in 2005-2-L.W.215 (M/s. Ganapathy Lunghi Company & 8 Others V. Tamil Nadu Handloom Development Board).