MADHO LAL Vs. EXCISE COMMISSIONER

JUDGEMENT

(1.) THE learned Single Judge hearing this petition felt that there was a conflict between two Division Bench decisions of this Court on the question whether a licensee who is in arrears could initiate proceedings for remission of licence fees under paragraph 179 of U. P. Excise Manual. THE first of these decisions was rendered in writ petition no. 4341 of 1981 and other connected writ petitions on November 30, 1981, while the other petition, namely, writ petition no. 6 of 1985 was decided on February 27, 1985. In writ petition no. 4341 of 1981 the view expressed is that an application for remission under paragraph 179 of U. P. Excise Manual cannot be entertained until the applicant deposits the entire licence fees in respect of which remission is claimed. In writ petition no. 6 of 1985, on the other hand, the Bench issued a direction to the Excise Commissioner to dispose of the petitioner's application for remission on merits without insisting on the deposit of the licence fees. THEre was thus an apparent conflict of views which has led to this reference.

(2.) BRIEFLY, the relevant facts are that the petitioner was the highest bidder at an auction for the retail vend of Bhang for the excise year 1984-85. The auction was held on April 4, 1984 for the period ending March 31, 1985. The petitioner's bid was accepted and a licence was granted to him. It appears that the petitioner did not deposit a part of licence-fee whereupon a notice of demand was issued by the Collector, Allahabad against which the petitioner filed an appeal before the Excise Commissioner- The petitioner alleges that the Excise Commissioner asked the petitioner to approach the Collector himself for necessary relief. Thereafter the petitioner approached the Collector and filed an application for remission on the assertion that for a substantial part of the year in question the petitioner was prevented from operating the licence as he was not supplied Bhang by the Bonded Warehouse. According to the petitioner instead of passing any order on his application for remission, another notice of demand was issued. The petitioner thereupon approached the Excise Commissioner. The Excise Commissioner has while dismissing the appeal refused to consider the petitioner's plea for remission on the ground that the petitioner had not deposited the licence fee demanded by the Collector. In support the Excise Commissioner has placed reliance on the decision ?f this Court in writ petition no. 434 of 1981 Kalicharan Jagdish Prasad, Agra v. Excise Commissioner U. P. Allahabad.

(3.) FURTHER, remission means abatement or relinquishment of a claim or demand. In the context of paragraph 179 of the Excise Manual a plea for remission implies a request that the fiicence fee or part thereof may be waived on account of facts and circumstances which may be relevant for granting remission. Remission cannot hence be equated to the concept of refund. That being so, deposit of the licence fee cannot be held to be a pre-condition for the considera- tion of a plea for remission. This, however, does not mean that a demand for licence fee stands automatically sUayed with the filing of an application for remission under paragraph 179 of Khe Excise Manual. Whether the realisation of arrears of licence fee in respect of which remission is claimed should be stayed or not is a matter which is distinct and different from the consideration of a request for remission.