LAXMINARAYAN MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioner was a licencee in respect of three I.M.F.L. 'OFF' shops in the district of Balasore for the years 1997 98, 1998 99 and 1999 2000. For each of the three shops, an agreement was executed between the petitioner and the Collector, Balasore which, inter alia, provided that the petitioner will sell a Minimum Guaranteed Quantity (for short, 'MGQ') per month. The petitioner submitted a representation dated 5.12.2000 for reduction of MGQ for the said three shops and by Order dated 26.4.2002 the Government of Orissa in the Excise Department allowed a reduction of 20% on the existing MGQ for the three shops for the years 1997 98,1998 99 and 1999 2000. Pursuant to the said Order dated 26.4.2002 the petitioner has been asked to deposit arrear Government revenue amounting to Rs. 59,79,401/ towards short drawn MGQ of IMFL and Beer for the aforesaid three shops during the years 1997 98 to 1999 2000 by a demand notice dated 22.7.2003 issued by the Superintendent of Excise, Balasore in Annexure 9 to the Writ Petition. Aggrieved, the petitioner has filed this Writ Petition under Article 226 of the Constitution praying for quashing the said demand notice dated 22.7.2003 in Annexure 9 to the Writ Petition.

(2.) MR . N. Patra, Learned Counsel for the petitioner submitted that under Rule 6 A of Orissa Excise (Exclusive Privilege) Foreign Liquor, Rules, 1989 a licencee is required to lift the MGQ of foreign liquor every month, but if he lifts less than the MGQ in any month, he will not be liable for any duty for short drawn MGQ if he sells the entire MGQ of foreign liquor for the excise year before expiry of the term of the licence. He submitted that in the present case, during all the three years, 1997 98, 1998 99 and 1999 2000 the petitioner had sold the entire MGQ of IMFL and Beer fixed for the excise years for the three shops, and therefore, even if the petitioner was not able to Iift the MGQ in any particular month he was not liable to pay any excise duty on account of short drawn MGQ during any particular month. Mr. Patra cited the decisions of the Supreme Court in Mohammad Ali Khan and Ors. v. Commissioner of Wealth tax, AIR 1997 SC 1165, State of Maharashtra and Ors. v. Nanded Parbhani, Z.L.B.M.V., AIR 2000 SC 725 and Grasim Industries Ltd. v. Collector of Customs, Bombay, AIR 2002 SC 1706 for the proposition that a provision of a statute has to be given its plain and literal meaning. He submitted that it will be clear from the plain and literal language of Sub rule (5) of Rule 6 A of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 that a licencee can sell the entire MGQ of foreign liquor fixed for the excise year before expiry of the term of the licence.

(3.) MR . D. Das, Learned Additional Government Advocate, on the other hand, submitted relying on the different averments in the counter affidavits filed by the Opp. Parties that a plain reading of Rule 6 A of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 would show that the MGQ has to be lifted every month and any short drawn MGQ of the previous month can be made good in the succeeding month if the Collector or the Commissioner permits such adjustment but in no case the short drawn MGQ of a subsequent month can be made good by excess drawal over and above the MGQ in a previous month. Mr. Das submitted that the petitioner, therefore, cannot claim that the short drawn MGQ of different months can be adjusted against the excess MGQ of the previous months and that he will not be liable for any duty on account of short drawn MGQ during a month if he has lifted the MGQ fixed for the entire excise year during the term of his licence.