KASHMIR DISTILLERIES PRIVATE LTD Vs. STATE OF J&K

JUDGEMENT

(1.) The instant appeal under Clause 12 of the Letters Patent is directed against judgment and order dated 16.11.2012 rendered by the learned Single Judge of this Court rejecting the claim made by the appellant-petitioner for refund of the amount on account of staff charges alongwith interest in terms of Section 24-B of the Jammu and Kashmir Excise Act Svt. 1958 (for brevity 'the Act'). The aforesaid amount was recovered by the respondent-State from the appellant-petitioner as staff charges. The principal ground for rejecting the claim by the learned Single Judge is that the appellant-petitioner had earlier filed OWP No. 246 of 1999 with the prayer for quashing the notice of demand and reminders issued by the respondent-department, asking the appellant-petitioner to pay the amount on account of staff charges of the excise staff posted at the distillery owned by the appellant. The appellant-petitioner had also prayed for issuance of a writ of Mandamus to the respondents not to operate the provisions of Rule 15, 16 and 17 of the J&K Distillery Rules, 1946 (for brevity 'the Rules'). The aforesaid writ petition was dismissed on 16.02.1999. Even the Letters Patent Appeal filed against the view taken by the learned Single Judge also failed. Accordingly, the judgment of the Division Bench has attained finality. The aforesaid adjudication thus binds the appellant-petitioner.

(2.) The Learned Single Judge has refused to entertain the petition by holding that once the matter stood settled by the Letters Patent Bench then a second petition on the same cause of action would not be competent. According to the learned Single Judge it would attract the principles of res judicata. The mere fact that the Supreme Court has subsequently declared Rule 17 of the Rules as illegal and unjust in the case of M/s. Gupta Modern Breweries v. State of J&K and ors. [Appeal (Civil) 2700-2701 of 2000] on 19.04.2007 would not arm the appellant-petitioner with a fresh cause of action. The view of the learned Single Judge is discernible from para 8 of the judgment which reads thus:-

(3.) The learned Single Judge has also found that there is no averment in the petition that the burden of tax has not been passed on to consumer or someone else. Thus on that score also the appellant-petitioner has been non-suited.