DILLIP KUMAR SAHU Vs. STATE OF ODISHA

JUDGEMENT

(1.) These three writ applications involve common questions of facts and law for which they were heard analogously and are being disposed of by this common judgment. The petitioners in these writ applications are Excise Privilege Holders (Licensees) in respect of different retail country spirit shops for the year 2011-12 and they challenge the legality and propriety of the letter of the Excise Commissioner, Odisha (Opposite party No. 2) bearing No. 8659 dated 12.12.2011 issued to all Superintendents of Excise permitting all retail licensees of C.S. Shops for lifting their short-drawn Minimum Guaranteed Quantity (MGQ) of country, sprit not lifted till November, 2011 along with the current MGQ. Copy of such letter was forwarded to all E.P. Holders of country spirit shops. This letter has been annexed as Annexure-3 in W.P.(C) No. 4255 of 2012 and Annexure-10 in W.P.(C) No. 3068 of 2012. The petitioner in W.P.(C) No. 5111 of 2012 has challenged the order No. 1043 dated 23.12.2011 (Annexure-4) issued by the Superintendent of Excise, Puri (opposite party No. 4 therein) directing the petitioner to lift the short-drawn MGQ in pursuance of the letter dated 12.12.2011 of the Excise Commissioner, Odisha. The petitioner also challenges the letters under Annexure-7 series issued by the Inspector of Excise-in-charge, Puri Sadar demanding Excise duty against short-drawn MGQ for different shops. The petitioner in W.P.(C) No. 3068 of 2012 also challenges the letter dated 24.12.2011 issued by the Excise Deputy Commissioner (CD), Cuttack under Annexure-11 rejecting the prayer of the petitioner therein to exonerate him from lifting short-drawn MGQ of country spirit in view of the letter dated 12.12.2011 of the Excise Commissioner, Odisha as aforesaid. The further prayer of the petitioners is to exempt them from payment of excise duty against short-drawn MGQ of country spirit.

(2.) The facts giving rise to the finding of the writ applications, as per the averments made therein, are that by way of renewal different retail country spirit shops were settled in favour of the petitioners for the year 2011-12 with different amounts of monthly consideration money and monthly MGQ depending upon the location of such shops. As per the conditions of license, the petitioners are bound to pay the consideration money and lift the MGQ each month on pre-payment of cost price and excise duty at the Odisha State Beverages Corporation Depot (in short 'the OSBC) at Khurda. In case of any default, the petitioners are liable to pay the excise duty to the extent of the short-drawn MGQ and in case of failure to pay the duty on short-drawn MGQ, the licence is liable for cancellation and re-disposal at the loss and risk of the licensee, besides his liability to pay such excise duty. The petitioners have accordingly entered into agreement with the appropriate excise authority, i.e., the Superintendent of Excise/Collector as per the provisions of the Orissa Excise Exclusive Privilege Rules, 1970.

(3.) It is the submission of the learned counsel for the petitioners that the petitioners were not responsible for the short supply of MGQ for the month of April, May, June and September, 2011, but it is the OSBC, a Government Corporation through which supply is made, which failed to supply the MGQ because of non-availability of stock and that it was arbitrary and illegal on the part of the State, particularly the Excise Commissioner to insist by his letter dated 12.12.2011 to lift the shortfall of MGQ along with their usual monthly MGQ, as because, the petitioners would not be able to sell the shortfall MGQ of previous months with the current MGQ. They have, therefore, prayed to quash the letter dated 12.12.2011 of the Commissioner of Excise and all other consequential orders and to exempt them from payment of excise duty as against the short-supplied MGQ for the months of April, May, June and September, 2011.