TRADE LINKS LTD Vs. STATE OF U P

JUDGEMENT

(1.) In all these four petitions two of which have been filed by M/s Trade Links Ltd. and the remaining two have been filed by Sita Ram Sheoharey and others, the validity of the Uttar Pradesh Excise (Amendment) Act, 1998 (U.P. Act No. 7 of 1998) has been challenged. As the controversy involved in all these writ petitioners are the same, the writ petition filed by M/s Trade Links Ltd., being Civil Misc. Writ Petition No. 328 of 1999 is being treated as the leading writ petition and its facts are given below:

(2.) M/s Trade Links Ltd.(hereinafter referred to as the petitioner) is a company duly incorporated under the provisions of the Companies Act, 1956 having its registered office at 17 Rajendra Place, New Delhi. The Excise Commissioner, U.P. Allahabad vide notification dated 15th October, 1982 issued under Section 41 of the U.P. Excise Act, 1910 (hereinafter referred to as the Act) had fixed the wholesale price of foreign liquor and beer. The State Government took a decision to discontinue the wholesale vend in foreign liquor after 31st March, 1983 and directed that subsequent to 31st March, 1983 licences for wholesale vend of foreign liquor shall be issued on Punjab pattern. It was accordingly decided that for the excise year 1983-84 wholesale licencee will be issued on payment of fixed fee furnishing security to any distiller or to authorised agent of the distillery. However, on 23rd March, 1983 the State Government issued a notification under Section 75 of the Act amending the notification dated 30th September, 1982 and directed that wholesale vend of foreign liquor to licencees in Form F.L.5, F.L.6, F.L.7 and F.L.8 shall be exempt from the operation of the present rule under Section 41 of the Act and necessary directions were issued to the Excise Commissioner to take requisite steps. The Excise Commissioner asked the various distillers to obtain licences for wholesale vend of foreign liquor in Form F.L.2 fulfilling certain conditions. The petitioner after being appointed as an Agent of a distillery, applied for grant of separate licence in Form F.L.2 in respect of twelve districts. The licence was granted on deposit of licence fee as also on furnishing security. The licence fee and assessed fee was also demanded. The fixed fee and assessed fee for whole sale licence was fixed vide notification dated 25th May, 1983 issued under Section 30 of the Act. Feeling aggrieved with the fixed fee and the assessed fee the petitioner as also several other persons challenged the same before this Court. All the writ petitions were allowed by a Division Bench of this Court vide judgment and order dated 23rd November, 1983. The operative portion of the order dated 23rd November, 1983 is reproduced below:

(3.) The State Government, feeling aggrieved by the aforesaid judgment and order filed Special Leave to Appeal before the Hon'ble Supreme Court being Civil Appeal Nos. 1312, 1320, 1323, 1335, 1340, 1341, 1342, 1343, 1344, 1374, 1375 and 1378 of 1984. An interim order was granted on 1st March, 1984 wherein the licencees were directed to furnish bank guarantee. On an application being filed by the petitioner herein that it may be permitted to deposit the assesseed fee in place of furnishing bank guarantee with a condition that in the event the appeal is dismissed the amount be refunded along with interest @ 18%, the Hon'ble Supreme Court vide order dated 27th March, 1984 granted the permission. The petitioner deposited a sum of Rs. 39, 94,782.50 by various challans between 9.5.1984 to 3.3.1986. The aforementioned civil appeals filed by the State Government have been dismissed by the Hon'ble Supreme Court vide judgment and order dated 17th September, 1996. The State Government was directed to refund the amount deposited by the licencees along with interest @ 18% within two months. Instead of complying the direction given by the Hon'ble Supreme Court a review application was filed by the State of U.P. on 16th November, 1996 along with another application dated 22nd November, 1996. The aforesaid applications were filed by the State of Uttar Pradesh relying upon the Amending Act No. 23 of 1984 as enforced on 15th October, 1984 in which provision has been made to the effect that the notification dated 25th May, 1983 made by the State Government in exercise of power under Section 30 shall have effect and to be deemed always to have effect from 1st April, 1983 and, therefore, there is no question of refunding the amount. The review applications were dismissed by the Hon'ble Supreme Court vide order dated 28th January, 1997. Another application was filed on 28th May, 1997 purporting to be under Article 142 of the Constitution of India which was declined to be registered by the Registry of the Hon'ble Supreme Court. Thereafter, the Governor of U.P. promulgated an Ordinance No. 13 of 1997 which has since been replaced by U.P. Act No. 7 of 1998 (hereinafter referred to as the Amendment Act). A new Sub-section 3 has been inserted in Section 30 of the Principal Act with retrospective effect from 1st April, 1983. As the order dated 17th September, 1996 passed by the Hon'ble Supreme Court has not been complied with, the petitioner filed contempt petition before the Hon'ble Supreme Court. A stand was taken by the State of U.P. that in view of the provisions of the Amendment Act the amount cannot be refunded. The Hon'ble Supreme Court vide order dated 10th November, 1998 while directing to refund the amount along with interest to the petitioner granted liberty to the State to take all steps permissible under law for recovery of the amount of assessed fee in view of the Amendment Act with an equal remedy to the petitioner to challenge the provisions of the said amendment. The Excise Commissioner vide order dated 2nd January, 1998 asked the Collectors of the respective districts to ensure that necessary recovery of the assessed fee along with interest thereon is made from the licencees in view of the Amendment Act. The Excise Commissioner also send fax message to various licencees to come and collect the necessary bank drafts towards refund of the assessed fee in compliance of the judgment and order of the Hon'ble Supreme Court dated 17th September, 1996. The petitioner collected the Bank draft on 9th March, 1999 along with interest @ 18%. However, on 19th March, 1999 the petitioner has been served with recovery certificates issued by the Collector, Allahabad and Collector, Kanpur Nagar demanding assessed fee for the year 1983-84 plus interest. The recovery certificates have been forwarded to the Assistant Collector, Karol Bagh, Delhi. The said recovery certificates have been challenged in Civil Misc. Writ Petition No. 232 of 1999 in which this Court has been pleased to stay the recovery proceedings. Thereafter fresh demand notice has been issued on 1st April, 1999 which has been challenged in Civil Misc. Writ Petition No. 328 of 1999. The validity of the Uttar Pradesh Excise (Amendment) Act, 1998 (U.P. Act NO. 7 of 1998) has been challenged in the present writ petition on the ground that by means of the aforesaid Act an attempt has been made to negate the order of the Hon'ble Supreme Court which has become final between the parties and raise a demand from the petitioner to pay assessed fee which is not permissible under law. However, the amendment made by the U.P. Act No. 23 of 1984 and U.P. Act No. 7 of 1998 did not bring any change in the legal position and cannot be relied upon by the respondents to raise any demand of assessed fee from the petitioner. It is arbitrary and violative of Article 14 of the Constitution of India and is an effort to wriggle out from the liability of refund of the assessed fee.