SKGSUGARLTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) This application raises a question aa to whether the State is entitled to impose penal duty on the alleged was stage rectified spirit during transit which was unfit for human consumption. The petitioner has a distillery at Mirgang where rectified spirit i.e. spirit of 65.5 to 68.00 overproof strength containing 95% alcohol is manufactured which is unfit for human consumption. The petitioner has been granted exclusive privilege under Section 22 of the Bihar and Orissa Excise Act (hereinafter referred to as 'the Act') for whole sale supply of rectified spirit to the Government warehouses situated in Bhojpur District.

(2.) Allegedly one tanker of spirit was despatched for three country spirit ware-bouses situated in Bhojpur district namely, Behea, Koransarai and Garhani in 3 different chambers of the tanker meant for the three aforesaid ware houses. According to the petitioner a leakage in the said tanker took place resulting in late arrival of the aforementioned tanker in the warehouses. According to the petitioner as there had been a purported transit wastage of 268.7 L. P. liters, by the Commissioner of Excise passed the impugned order dated 21-7-1981 as contained in Annexure-1 to the writ application. The petitioner moved the Member of the Board of Revenue against the said order who by reason of hia order dated 9-2-1983 as contained in Annexure-2 dismissed the petitioner's application.

(3.) In this case a counter affidavit has been filed stating Inter alia therein that as the tanker took long time to reach its destination from Muzaffarpur where the same was loaded, suspicion arose and the matter was inquired into. It has been contended that in terms of sub-rule (4) of Rule 33 of the Rules framed under the said Act, the Collector of the district was the competent authority to realise penal duty and in this case the Superintendent of Excise, Bhojpur has taken action to realise the said duty on behalf of the Collector. The order of the superintendent of Excise, Bhojpur, was affirmed by the Commissioner of Excise, It has been accepted in the said counter affidavit that the strength of the rectified spirit manufactured by the petitioner varied between 65.0 to 68.0 O. P, but according to the respondents, the same was being transported for the purpose of sale as potable spirit and the spirit manufacture by the petitioner was meant for human consumption.