SHAW BROTHERS Vs. N B SINHA

JUDGEMENT

(1.) In this application under Articles 226 and 227 of the Constitution the petitioners, Shaw Brothers, have challenged the validity of the order of the Commissioner of Excise, Bihar (opposite party No. 2) as intimated to the petitioners by the Superintendent of Excise (opposite party No. 1) by Memo No. 177(10)E, dated the 1st of February, 1968, a copy of which has been made Annexure "I" to the application, and the order dated the 30th of July, 1968, passed by the Board of Revenue, Bihar in Excise Case No. 85 of 1968, a copy of which has been made Annexure "9" to the application. The petitioners have made a prayer for quashing the aforesaid two orders by ah appropriate writ.

(2.) The petitioners are wholesale dealers in foreign liquor and they hold a license for sale of foreign liquor (overseas and India made) to the trade, that is, other licensed dealers. The petitioners are required to pay fee annually for the license granted to them. By annexure '1' to the application, the Superintendent of Excise, Patna, directed the petitioners to deposit a sum of Rs. 13,840/- as the amount of license fee for the year 1967-68. As stated in the application, the petitioners paid the license fee as demanded but they sent a letter of protest to the Superintendent of Excise (opposite party No. 1) on the 9th of February, 1968. A copy of the said letter has been made Annexure "2" to the application. Subsequently on the 2nd of April. 1968, the petitioners filed a writ application in this Court which was numbered as C. W. J. C. 230 of 1968. That application was permitted to be withdrawn on the 4th of April, 1968, with the following observation. "The petitioners' main contention is that the fee has been so steeply enhanced as to become a tax and not a fee. He urged that the amount collected is quite disproportionate to the services rendered. This is primarily a question of fact. The petitioners may raise this point before the Board, whether in revision or appeal according to law where both parties will get ample opportunity to lead evidence to show that the rate of levy on account of its steep enhancement has ceased to be a fee and has become a tax. In view of this observation Mr. Ramanugrah Prasad wants to withdraw this writ. Permitted to be withdrawn." Thereafter the petitioners moved the Board of Revenue by filing a petition in revision under Section 8(3) of the Bihar and Orissa Excise Act, 1915 (hereafter to be called "the Act"). The Member, Board of Revenue, called for a report from the Commissioner of Excise on the various points raised by the petitioners in their revisional application. On receipt of the report from the Commissioner of Excise, the Member, Board of Revenue, heard the counsel appearing for the petitioners and ultimately by the order dated the 30th of July, 1968 (Annexure 9) rejected the application holding that the fees demanded by the Superintendent of Excise, under the orders of the Commissioner of Excise, are perfectly valid. The petitioners thereafter filed the present writ application under Articles 226 and 227 of the Constitution on the 15th of November, 1968.

(3.) In order to appreciate the contentions which have been raised by learned counsel appearing for the petitioners, it is necessary to refer to the relevant provisions of the Act and the Rules, "Intoxicant", as defined by Sub-section (12a) of Section 2 of the Act, "means any liquor or intoxicating drug". "Liquor" has been defined in Sub-section (14) of Section 2 and it "includes all liquids consisting of or containing alcohol, such as spirits of wine, spirit, wine, fermented tari, pachai and beer, and also unfermented tari, and also any other substance which the State Government may, by notification, declare to be liquor for the purposes of this Act". As provided under Section 20 of the Act a license is required for the sale of intoxicant. Section 38 of the Act lays down as follows: