GEETA ENTERPRISES Vs. STATE OF RAJASTHAN

JUDGEMENT

(1.) BY this writ petition filed under Art. 226 of the Constitution,the petitioner has prayed that a writ of mandamus or any other appropriate writ, order or direction be issued to the respondents striking down a part of s. 3 (4) (1) of the Rajasthan Excise Act, 1950 (for short 'the Act') to the extent it includes denatured spirit and denatured spirituous preparation within the definition of excisable articles being ultravires of the Constitution and being beyond the legislative competence of the State Legislature and further striking down that part of the provisions of ss. 41 and 42 of the Act to the extent it purport to enact any provision conferring any powers on any of the respondents with respect to denatured spirit or denatured spirituous preparation whether it be imposing restrictions or regulating import, export, transport or possession or prescribe any fees for any licence, permit fees or pass etc. The petitioners further claim striking down a part of the provisions of s. 28 of the Act to the extent it purports to authorises the State Govt. to impose on levy any Excise Duty or countervailing duty on denatured spirit or denatured spirituous preparation and striking down any notification that may have been issued by any of the respondents imposing any such Excise Duty or countervailing duty on denatured spirit or denatured spirituous preparation. The petitioners have also prayed for striking down the provisions of r. 69-B of the Rajasthan Excise Rules, 1956 (hereinafter referred to as 'the Rules") to the extent it purports to levy or prescribe any permit fee on import or export or transport of any denatured spirit or denatured spirituous preparation. It was prayed that the Gazette Notification (Annexure-2) dated 16. 3. 1987, the permit (Annexure -3) dated 13. 3. 1989 and the letter (Annexure-4) dated 10. 4. 1989 be quashed and the respondents be restrained from enforcing any levy or recovery of any amount from the petitioners in the name of excise duty or countervailing duty or permit fees for import or export with respect to any denatured spirit or Thinner or denatured spirituous preparation.

(2.) THE facts necessary for the disposal of this writ petition briefly stated are: that petitioner No. 1 M/s Geeta Enterprises is a partnership firm and petitioner No. 2 Shri Mukesh Rahlan is its Manager. THE petitioner firm was established in the year 1988 at Bhiwadi for the manufacture and sale of Thinner after obtaining a licence from the District Excise Officer, Bharatpur. It is alleged that in the manufacture of Thinner, the denatured spirit is used as a raw material and, therefore, the petitioner has to import denatured spirit from the surplus State like U. P. and after the manufacture of the Thinner, it has to sell it outside Rajasthan i. e. in Delhi and U. P. THE respondents by virtue of s. 28 of the Act claimed that they have the power to impose or levy excise duty or countervailing duty on import and possession of industrial alcohol i. e. denatured spirit. THEy have further claimed that they have the power to recover excise duty and countervailing duty as also permit fee etc. not only on the import of the denatured spirit but also on the export of the Thinner because denatured spirit has been included in the definition of the excisable article as per s. 3 (4) (1) of the Act.

(3.) IT was contended that since the writ petition bearing No. S. B. Civil Writ Petition No. 4088 of 1989 only comprehended the controversy regarding denatured spirit as referred to in Annexure-4 and since the demand of permit fee and excise duty was also raised on Thinner on the ground of its being denatured spirituous preparation and as during the pendency of that writ petition, the petitioner was advised to file another writ petition being Writ Petition No. 5416 of 1991 M/s. Geeta Enterprises & Another vs. State inter alia, seeking a direction restraining the respondents from realising or recovering any excise duty on denatured spirit and Thinner as also seeking to restrain them from realising and recovering permit fees on denatured spirit or Thinner on import or export, so also seeking a direction for the refund of Rs. 18,000/- with interest. IT is alleged that in both these writ petitions, the validity of the provisions of Ss. 28,41, and 42 of the Act as also the provisions R. 69-B of the Rules were not challenged. The writ petition bearing No. S. B. Civil Writ Petition No. 5416 of 1991 was also withdrawn with liberty to file a fresh writ petition on 19. 11. 1992 whereas the present writ petition has been filed on 28. 10. 1992, although show cause notices were ordered to be issued to the respondents on 19. 11. 1992.