J.F. SHROFF Vs. STATE

JUDGEMENT

(1.) THIS is a petition under Article 226 of the Constitution of India for the issue of a writ of mandamus or a direction, quashing the order of the Excise Department in respect of the demands made regarding the Excise duty.

(2.) THE petitioner is a licence -holder for the sale of foreign liquor at Gwalior. He was in possession of some stock of Indian made foreign liquor, which he had purchased after paying the requisite excise duty in force at the time of the purchase. Subsequent to his purchase, the Government of Madhya Bharat issued two Notifications. By Notification No. 42/VII dated 24th March 1955 published in the Madhya Bharat Government Gazettee of 26th March 1955, Excise duty on Indian made foreign liquor was raised from Rs. 42/12/ - to Rs. 56/4/ - per L. P. Gallon with effect from 1st April 1955; by second Notification No. 124/U/SR, dated 16th October 1957 published in the Madhya Pradesh Gazette of 11/18/25 October 1957, the Excise duty was further enhanced from Rs. 56/4/ - to Rs. 60/ - per L. P. Gallon. A couple of months after these Notifications Sub -Inspector, Excise, Gwalior Division, served an order on the petitioner to deposit the difference of duty on his existing stock of Indian made liquor (on which he had already paid Excise -duty) in accordance with the two Notifications referred to above. The petitioner made a representation to the officer concerned that having already paid Excise Duty on the purchases according to the rates then in force, he was not liable to pay the enhanced duty. His representation was turned down. On 11 -2 -58, he served a notice on the Madhya Pradesh Government for demand of justice, but no reply was received from the Government. The petitioner has filed this writ and his main contentions are two: -

(3.) TO enforce his argument, the learned counsel for the petitioner has invited our attention to sections 24, 25 and 14 of the Madhya Bharat Excise Act (hereto -after referred to as "the Act") Section 24 is a charging section. The Government under it, is authorised to levy Excise -duty on all exciseable articles. Section 25 of the Act lays down ways of levying such duty. Clause 2 of Sec 25 of the Act says that where payment is made upon an issue of an exciseable article for sale, it shall be at the rate of duty in force on the date of issue of such article from the warehouse. The word "warehouse" has not been defined in the Act, but it is well understood. It is a stock -room or store -room, where goods are kept and the purchaser can only take away those goods from there after paying the requisite duty. According to this, before the petitioner purchased the liquor, he paid duty at the rate in force on the date of issue. This fact is admitted in the Return.