SKOL BREWERIES LTD Vs. STATE OF HARYANA

JUDGEMENT

(1.) By way of present petition petitioner is assailing orders dated 22.01.2009 (Annexure P-4) passed by Excise and Taxation Commissioner, Haryana, respondent No. 2, and 4.8.2009 (Annexure P-7) passed by Financial Commissioner & Secretary (Taxation), Haryana, respondent No. 1.

(2.) The brief facts of the present case are that in the year 2000-01, Haryana Breweries Ltd. was merged with the present petitioner. The scheme of amalgamation was duly sanctioned by this Court on 19.2.2002. Thereafter, the business of the company is being run under the name & style of "Skol Breweries Ltd.". That is how the present petitioner is filing writ petition, relating to the case of Haryana Breweries Ltd. for the years 1989-90 and 1990-91. It is stated that in the year 1989-90 and 1990-91, the Brewery had paid the excise duty as per the provisions of the Punjab Excise Act read with the Punjab Brewery Rules on the production of beer, effected by it as per the provisions of law. It is further stated that it had actually paid the duty on 8025264.00 bulk ltrs. for the year 1989-90 and on 7341925.00 bulk ltrs. of beer for the year 1990-91 and for the first time, in the year 1991-92, the Excise and Taxation Commissioner, Haryana issued notices to the Brewery asking them as to why there is excess wastage of beer beyond the prescribed percentage of 7%. It is further stated that it appears that the basis of notices itself was wrong as the authorities could not challenge the excess wastage, but could only show cause the Brewery if there is any clandestine removal of goods on which the duty has been paid and if the Department has accepted that the wastage has taken place, then no duty can be levied upon the same. The notice issued for year 1989-90 dated 21.2.1991 is Annexure P-1 to this petition. Similar notice was received for year 1990-91, which is not available on record with the petitioner company.

(3.) In reply to the notice, written submissions were made vide letters dated 16.3.1991 and 28.3.1992 vide Annexures P-2 and P-3. It was submitted by the Brewery that as per Section 35 of the Punjab Brewery Rules, 1956 (as applicable to Haryana), the duty can be charged on the total quantity actually brewed as entered in the brewing book by the licencees or as ascertained by the Inspector and entered in his survey book in Form B6 whichever is higher, minus an allowance of 7% as wastage. It was submitted that the section or the rule does not envisage anything about excess wastage nor does it provide for levying any duty on alleged excess wastage. It was also submitted that the rule being a part of subordinate legislation has to give way to Section 31 of the Punjab Excise Act, 1914 under which the duty can only be charged on exciseable article and once it is established that the Brewery has not produced an amount of beer then no duty can be charged on the same.