JAFAR ALI Vs. STATE OF U P

JUDGEMENT

(1.) Heard Shri Satya Prakash and Murtuza Ali, Advocates for the petitioners and Shri S.P. Kesarwani, learned Additional Chief Standing Counsel for the State respondents.

(2.) The petitioners, licensees of Country Liquor Retail Shops in District Bijnore for the Excise Year 2006-2007 and 2007-2008 have challenged the demand notices issued by the District Excise Officer, Bijnore dated 17/3/2009 and 20/3/2009 requiring them to deposit the amount equivalent to less quantity of monthly guarantee quota lifted by the petitioners for the month in question within a week failing which the same be adjusted from their security deposit.

(3.) The brief facts giving rise to the writ petition are: The petitioners were granted licence for retail sale of Country Liquor Shop in District Bijnore. Some of the petitioners were licensees for the Excise Year 2006-07 and some of the petitioners were licensees for the Excise Year 2007-2008. Petitioners deposited the basic licence fee and the monthly instalment of the licence fee during the excise year. With regard to the Excise Year 2006-07, a notice was issued by the District Excise Officer dated 21/1/2008, asking the petitioners to pay excise dues for the year 2006-07 for less lifting of the monthly quota relating to one month, the notice was replied by the petitioners and subsequently the proceedings were dropped. The Excise Commissioner issued a letter dated 09/3/2009, with regard to Excise Year 2009. The Commissioner by the said letter impressed upon all the Excise Officers to ensure lifting of country liquor according to Minimum Guaranteed Quota (hereinafter referred to as the "MGQ"). Reference of receipt of revenue for the month of February, 2009, was mentioned in the letter opining that lifting of quota is not in accordance with the "MGQ" which is adversely affecting the revenue. Notices dated 17/3/2009 and 20/3/2009, were issued to five petitioners i.e. (Petitioner Nos.4,19,25,32 and 33) informing that the quantity of country liquor lifted by them in the month of March, 2007/January, 2007, was less even after adjusting the 20% in the monthly "MGQ", hence they are liable to pay the difference of the amount as excise dues. Similar notices were issued for the year 2007-2008, to the petitioners mentioning about lifting of less quantity of country liquor in one month i.e. (March, 2008/ July, 2007). All the notices had been issued demanding excise dues on the basis of less lifting of quantity of country liquor in one particular month i.e. the month of March, 2007 or January 2007 for the excise year 2006-2007 and in the month of March, 2008 or July 2007 for the excise year 2007-2008. The petitioners after end of Excise year requested the District Excise Officer to refund the security amount deposited by the petitioners, but the same was not permitted to be withdrawn and the same was permitted to be withdrawn only after adjustment of the amount which were sought to be realised from the petitioners. On an application submitted by the petitioners for refund of their security amount, recommendation was made by the Excise Inspector on 23/6/2009, for refund of the security amount after adjustment of the amount due against the petitioners. Petitioners gave a detail notice on 06/7/2010, to the State Government, Excise Commissioner, Deputy Excise Commissioner, District Magistrate/Licensing Authority and District Excise Officer, Bijnore, requesting that their deducted security deposits and interest amount be refunded for the Excise Year 2006-2007 and 2007-2008. In the notice it was stated that all the petitioners have lifted the entire "MGQ" which was fixed for the whole excise year and they were not liable to pay any excise duty on the ground of alleged deficit in lifting the monthly "MGQ". Reference was also given to the licensees of Unnao and Lucknow who were issued similar demand notices after letter of the Commissioner dated 09/3/2009. It was mentioned that the Commissioner Excise U.P. has passed the orders with regard to Unnao and Lucknow licensees where only a penalty of Rs 5000/- was imposed and refund of the security deposit was allowed. Petitioners claim similar treatment as given to them. The District Government Counsel (Civil), Bijnore replied to the notice given by the petitioners vide letter dated 17/8/2010, on behalf of the State Government, Commissioner Excise and other Excise Authorities. In the reply Rule 15(c) of The Uttar Pradesh Excise (Settlement of Licences for Retail Sale of Country Liquor) Rules, 2002 (hereinafter called the "2002, Rules") was relied and it was stated that dues have been directed to be paid by the petitioners since in the months as mentioned in the notices they had lifted less than 80% of the monthly "MGQ". It has been stated in the notices that after giving adjustment of 20%, dues have been demanded. It is stated that the order has already been passed for refund of the security after adjusting the amount of duty on 20/7/2007 which was accepted by the petitioners, hence they are estopped from challenging the action. The copy of the notice as well as the reply given by the District Government Counsel dated 17/8/2010 are filed as Annexures-2 and 3 to the writ petition. The petitioners have come in the writ petition praying for following reliefs: