J. SRINIVAS RAJU Vs. STATE OF ORISSA

JUDGEMENT

(1.) This writ petition has been filed for quashing demand notice No.329/2009 Ex. dated 10.07.2009 (Annexure-8), notice No.1007/ Ex dated 28.10.2010 (Annexure-16) and the letter dated 12.10.2010 (Annexure-15). Annexures-8 and 16 are demand notices issued by the Collector, Nabarangpur and the Superintendent of Excise, Nabarangpur respectively to the petitioner to deposit arrears of dues amounting to Rs.1,21,81,528/- towards duty on account of short drawn Minimum Guaranteed Quantity (for short, MGQ ) for the year 2001-02. Annexure- 15 is a communication sent by the Additional Secretary to Government to the Superintendent of Excise, Nabarangpur intimating that theGovernment order dated 26.11.2001 is not a general circular and it was with reference to representation of an individual licensee. The said communication further contains that in view of the decision of this Court in the case of Laxmi Narayan Mohanty vs. State of Orissa and others,2005 Supp1 OrissaLR 423, wherein this Court held that the licensee cannot be exempted from the liability to pay the duty on account of short drawn MGQ, the petitioner cannot take advantage of the letter dated 26.11.2001 to avail the exemption.

(2.) The facts and circumstances giving rise to the present writ petition, in a nutshell are that the State Government in Excise Department in their Excise Policy dated 30.03.2001 have decided that the I.M.F.L. OFF shops will be settled afresh through auction followed by tender/negotiation for the year 2001-02. The State Government also issued letter dated 25.04.2001 for realization of MGQ of IMFL OFF Shops in the entire State and fixation of MGQ would be as per ratio of 22 LPL of IMFL and 33 BL of Beer per Rs.1,000/- of consideration money/licence fees of the shop for the said years. Accordingly, opposite party No.2 issued a sale notice dated 22.05.2001 for settlement of I.M.F.L. OFF Shops in the District of Nabarangpur for the year 2001-02 on the condition that the monthly MGQ in respect of IMFL OFF Shops will be 22 LPL of IMFL and 33 BL of Beer per Rs.1,000/- of consideration money/licence fee. The petitioner being the highest bidder was issued with licenses in respect of Umorkote No.II, Nabarangpur No.III, Tribeni Chowk and Papadahandi IMFL OFF shops by opposite party No.2. The monthly licence fee and monthly MGQ fixed by opposite party No.2 in the licences of the petitioner in respect of the above four IMFL OFF Shops are given below: <FRM>JUDGEMENT_93_TLORI0_2011_1.html</FRM>

(3.) The State Government in Excise Department vide their letter dated 24.08.2001 took a decision fixing target for each shop at 3.31 times of the MGQ fixed at the time of settlement of the shops and directed that attempt/persuasion should be made to the individual licensee to lift the additional targeted quantity over and above the MGQ fixed for seven months i.e. September, 2001 to March, 2002. In the said letter it is further stated that in case there is any short fall in lifting IMFL and Beer, charges may be framed against the concerned Superintendent of Excise for loss of the Government Revenue. Pursuant to the said letter, opposite party No.3-Superintendent of Excise, Nabarangpur issued letter dated 29.09.2001 to the licensees of IMFL OFF shops in the district of Nabarangpur and directed to lift the targeted IMFL and Beer according to shop wise/month wise statements for the year 2001-02 from the date of licence and the balance un-lifted quantity of target to be lifted during the remaining period of seven months i.e. September, 2001 to March, 2002. The petitioner on receipt of letter dated 29.09.2001 immediately wrote letter dated 06.10.2001 to opposite party No.2 that it was impossible to lift the target quantity of IMFL and Beer and requested to fix the MGQ as per licence. The petitioner, being aggrieved by the said decision of the Government and opposite party No.3 fixing the target to lift IMFL and Beer, also filed a writ petition bearing O.J.C. No.13788 of 2001 before this Court for quashing order dated 29.09.2001 of opposite party No.3 under Annexure-4. According to the petitioner, he lifted the MGQ of IMFL and Beer fixed in the licences and opposite No.3 certified that there was no short fall of MGQ during the year 2001-02. Since there is no due against the petitioner, the Collector renewed the licences of the petitioner for the years 2002-03 to 2009-10. While the matter stood thus, opposite party No.2 issued demand notice dated 10.07.2009 to the petitioner that he was liable to pay Rs.1,21,81,528/- towards duty on unlifted MGQ for the year 2001-02. On receipt of the same, the petitioner filed representation dated 08.10.2009 before opposite party No.2 to recall the demand notice as he was not liable to pay the same as per law and applied for renewal of his IMFL Off shops at Umorkote No.II, Tribeni Chowk and Papadahandi for the year 2010-11 and deposited four months advance licence fee amounting to Rs.9,02,012/- and opposite party No.3 renewed the said three licences upto to 30.09.2010. The petitioner again filed a representation dated 02.08.2010 before opposite party No.2 to recall demand notice dated 10.07.2009, but opposite party No.2 rejected the said representation. Opposite party No.3 vide letter dated 19.08.2010 again directed the petitioner to deposit the duty on the un-lifted quantity as per the target. The licences of the petitioner were renewed for the period 01.10.2010 to 31.03.2011. Opposite party No.2 on 28.10.2010 issued a letter calling upon the petitioner to deposit the arrears of dues on un-lifted MGQ of IMFL and Beer as per the target fixed for the year 2001-02 vide letter dated 29.09.2001. Pursuant to the letters of opposite party Nos.1 and 2 under Annexures-15 and 16, opposite party No.3 has issued distress warrant dated 17.11.2010 and letter to the Tahasildar, Nabarangpur to supply property list of the petitioner to institute a certificate case under the O.P.D.R. Act for realization of the arrears of dues. Hence, the present writ petition.