HIRALAL AGARWALA Vs. STATE OF ORISSA AND ORS.

JUDGEMENT

(1.) THE Petitioner in this petition under Articles 226 and 227 of the Constitution of India seeks to quash the direction communicated to him in Annexure -l of the Superintendent. Excise, Sambalpur calling upon him to pay an excise duty of Rs. 1,18.526.40 being the duty payable on the medicinal preparation 'Ark podina ' manufactured by him. The Petitioner as the manufacturer of 'Ark podina ' has been levied with the duty under the Medicinal & Toilet Preparation (Excise Duties Act 1955 (Act 15 of 1955) hereinafter referred as the Act at the rate of Rs. 15.50 per L.C.L. and has been directed to pay the duty which has arisen after 12 -8 -1974.

(2.) ADMITTEDLY the duty desired to be collected from the Petitioner relates to the period from 2 -12 -1974 to 5 -3 -1975. A counter affidavit has been filed by opposite party to which a table has been annexed as Annexure -B showing the total amount of duty paid by the Petitioner the total amount payable on the finished goods, and the difference payable by him which amounts to the sum of Rs. l.18,526.40.

(3.) IN the counter affidavit filed by the opposite parties it has been contended that the very same matter was before this Court earlier in O.J.C. No. 935174 in which the levy now sought to be collected and for the period prior to was under challenge. The demand in that case was for an amount of Rs. 12,31942.00 which was made on the basis of the Circular No. 2257 dated 12 -8 -1974 of the Excise Commissioner, Orissa, Cuttack. In the judgment dated 19 -11 -1976 it was held that the Circular would not have any retrospective effect but would be prospectively valid, and hence the demand of Rs. 1,18,526.40 p. has been raised after recalculation of the duty payable after 12 -8 -1974. It has been contended by the learned Additional Government Advocate in his submissions that Rule 11 of the Rules is not attracted to the present case since there is no question of any 'short -levy ' of the duty under the Act. The Petitioner has paid duty only on rectified spirit which he indents for manufacture of 'Ark Podina ' and that 'Ark. Podina, being another finished product, is liable to duty under the Act separately for which duty has not at all been collected from him. There being thus no case of any short levy, it is recoverable under Rule 12 of the Rules which is as follows: