MAGATI SAHOO Vs. STATE OF ORISSA

JUDGEMENT

(1.) IN this writ petition the petitioner has challenged the demand notice dated 9.5.2003 issued to the petitioner by the Superintendent of Excise, Ganjam, Chatrapur asking him to pay a sum of Rs. 6,24,500/ towards balance consideration money and M.G.Q. duty for the year 2002 2003 failing which steps will be taken to recover the said amount from the petitioner.

(2.) TO a query by the Court as to why an appeal has not been preferred against the said notice, Mr. Ashok Mohanty, learned counsel for the petitioner submitted that under the Bihar and Orissa Excise Act, 1915 (hereinafter referred to as 'the Act') and the Rules made thereunder no appeals are normally filed against the demands of excise duty. He contended that demand of excise duty is calculated in accordance with the Act and the Rules made thereunder and strictly speaking are not an order under the Act and the rules which are appealable.

(3.) A plain reading of Sub section (2) of Section 8 quoted above would show that orders passed under the Act or under any Rule made under the Act shall be appealable in such cases to such authorities and under such procedure as may be prescribed by Rule made under Section 89 of the Act. Section 89(1) of the Act provides that the State Government may make Rules to carry out the objects of the Act or any other law for the time being in force relating to excise revenue. Section 89(2)(c) of the Act provides that without prejudice to the generality of the provisions of Section 89(1), the State Government may, in particular, make Rules for declaring in what cases or classes of cases and to what authorities appeal shall lie from orders, whether original or appellate, passed under the Act or under any Rule made thereunder and for prescribing the time and manner for presenting and the procedure for dealing with such appeals. In exercise of such power under Section 8*9 of the Act, the State Government has made the Orissa Excise Rules, 1965 and Rules 59 and 69 thereof provide for appeals to Collector from orders of Officers subordinate to the Collector and appeals to Commissioner from orders of the Collector. Rules 59 and 60 use words wide enough to indicate that an appeal shall lie to the Collector from an order of any officer subordinate to him and an appeal shall lie to the Commissioner from any order made by the Collector or by the Additional District Magistrate. The proviso to Rule 60, however, states that no appeal shall lie against an order increasing or decreasing the number of licences under the proviso to Rule 32 of the Rules for selling of foreign liquor. Thus except in the case of an order increasing or decreasing the number of licences under the proviso to Rule 32 of the Rules for the sale of'foreign liquor, an appeal is available to the Collector from an order passed by any officer subordinate to him and to the Commissioner from any order made by the Collector or the Additional District Magistrate. The word 'order' has not been defined in the Act or the Rules and has been defined in Black's Law Dictionary (Sixth Edition) to mean 'A mandate; precept; command or direction authoritatively given; Rule or Regulation. Brady v. Inter State Commerce Commission, D.C.W. Va.,43 F. 2d 847, 850. 'Direction of a Court or Judge made or entered in writing, and not included in a judgment, which determines some point or directs some step in the proceedings.' Hence, any direction given in writing to a person which if not obeyed will have legal consequences is an 'Order'. The impugned notice requires the petitioner to pay the amount indicated therein failing which the amount would be recovered from him under Law. The impugned demand notice, therefore, is an 'order' appealable under Rules 59 and 60 of the Rules.