KESAR ENTERPRISES LIMITED Vs. STATE OF U P

JUDGEMENT

(1.) -By means of the present petition, the petitioner has sought quashing of the order dated 28.11.2006, passed by the State of U. P. in Excise Revision No. 100 of 2006 and mandamus directing the respondents to adjust the bottling licence fee paid by the petitioner distillery during the currency of the excise year, in advance the minimum licence fee of Rs. 2,00,000 at the end of the excise year, as provided under Rule 5 (ii) of the 2003 Rules and to direct the respondents to adjust the amount of Rs. 18,00,000 realised from the petitioner in the subsequent fee to be paid by the petitioner, with other usual reliefs.

(2.) THE petitioner was holder of a licence in form, F.L.-3 for bottling of Indian made spirit/in bond without payment of duty/after payment of duty and a licence in Form F.L.-3A, for bottling of the foreign liquor, on the basis of an agreement for bottling brands of M/s. Amrit Distillery Ltd., Bangalore. It has been further stated that the Excise Commissioner vide order dated 25.7.2005 cancelled the aforesaid licences in Form F.L.-3A holding them to be against the rules. It has granted the said F.L.-3 licences to M/s. Bharat Distillery Ltd., Mumbai and M/s. Amrit Distillery Ltd., Bangalore and also amended F.L.-1A licences in the name of the aforesaid distilleries vide order dated 9.8.2005.

(3.) IN the counter-affidavit filed on behalf of contesting respondents the facts, as stated in the writ petition, have not been disputed or denied. The defence set out in the counter-affidavit is that the petitioner knowingly deposited Rs. 2 lacs at the time of renewal of each licence for all the three years involved in the present writ petition and they subsequently claimed the refund of Rs. 18 lacs which due to mistake was granted by the department. It has been further stated that on a true and correct interpretation of the provisions of the 2003 Rules, the deposit of Rs. 2 lacs with each application for renewal of the licence fee is neither adjustable nor refundable to the petitioner. Alongwith counter-affidavit, copies of the petitioner's application for renewal of F.L.-3A licence for the year 2005-06 and other licences have been annexed to show that the petitioner enclosed treasury challan of Rs. 2 lacs towards renewal of licence.