CO Vs. STATE OF U.P. AND OTHERS

JUDGEMENT

(1.) By means of the present writ petition, the petitioner seeks the following reliefs:

(2.) Brief facts of the case are that the petitioner is a Public Limited Company incorporated under the Indian Companies Act, 1956. The petitioner has a distillery in the name and style "The Cooperative Company Limited, Distillery". Petitioner is engaged in the manufacture of Indian Made Foreign Liquor as well as Country Liquor. The Country Liquor is being manufactured from rectified spirit (hereinafter after referred as "RS"). Country Liquor manufactured by the petitioner is fit for human consumption and accordingly subjected to excise duty under the U.P. Excise Act (hereinafter referred to as "the Act"). Petitioner is carrying on the bottling of the Country Liquor inside the distillery.

(3.) On 25th Sept., 2002 a notice was issued by the Assistant Excise Commissioner, Saharanpur, wherein it was mentioned that for the month of Aug., 2002, in Country Liquor, there was wastage of 1.7 percent, while 0.08 percent is only allowable. In this way, 0.09 percent wastage was in excess. On the excess quantity of 39.7 AL, the petitioner was required to pay Rs.6,60,422.40. Further, it has been stated that in RS, there was excess wastage of 302.09 AL on which Rs. 58,156.80 is payable. Further notice was issued on 14th Oct., 2002 stating therein that there was excess wastage of RS to the extent of 5306.02 AL on which Rs. 10,18,790.40 was payable and in Country Liquor, there is excess wastage of 7850.08 AL on which a sum of Rs.15,07,353.60 was payable. Further, notice dated 3rd Dec., 2002 was issued stating therein that for the month of Aug., Sept., Oct. and Nov., 2002, there was excess wastage to the extent of 20904.01 in Country Liquor on which a sum of Rs.40,13,587.20 was payable. It was also stated that the petitioner was directed to file the explanation, but no explanation was received. Petitioner was further directed to file the explanation. On 8th July, 2002 a sum of Rs.70,18,267.40 was demanded for the months of May, June, Aug., Sept., Oct., Nov., 2002 and for the months of Jan., Feb., March and April, 2003 towards excess wastage in excess of 0.08 percent. Petitioner filed letter dated 11.2.2003, Annexure-5 to the writ petition, which is the reply to the letter no. 472 dated 10.2.2003 stating therein that no wastage can be charged on the storage of RS as well as bottling of the Country Liquor/ IMFL, as per order no. 9937-10114 (E.I.B.)/iv-vidhi-W/131/76 dated 30th Jan., 1992 issued by the Excise Commissioner, U.P., Allahabad. In the writ petition, letter dated 17th Feb., 2003 addressed to Deputy Excise Commissioner, Saharanpur Charge, Saharanpur is annexed in which it was stated that in view of the decision of the Supreme Court dated 6th March, 2002, no excise duty can be charged on excess wastage occurred during bottling of Country Liquor. Being aggrieved by the order dated 8th July, 2003 passed by the Assistant Excise Commissioner, Saharanpur raising the demand of Rs.70,18,267.40 for the months of May, 2002 to Nov., 2002 and from Jan., 2003 to April, 2003. Petitioner filed appeal before the Additional Excise Commissioner (Licensing and Industrial Development), Allahabad. Additional Excise Commissioner (Licensing and Industrial Development), Allahabad vide order dated 26th May, 2006 dismissed the appeal. Being aggrieved by the order, petitioner filed revision before the State Government. The State Government by the impugned order dated 4th Aug., 2006 dismissed the revision.