TMI Blog2000 (5) TMI 1059X X X X Extracts X X X X X X X X Extracts X X X X ..... e petitioners redirected their challenge to another circular letter issued by the Commissioner-cum-Secretary, Commercial Taxes Department, Government of Bihar. The result was that at the time of hearing these writ petitions were sought to be argued for reliefs quite different from those prayed for in the writ petitions as those were originally filed. 2. In each of the four writ petitions the contents of paragraph 1 were identical wherein declarations were sought as follows: (i) that no sales tax was payable on the subsequent sale of country liquor; (ii) that the notification dated February 10, 1999 issued by the Commissioner of Excise and prohibition, Government of Bihar, by which the amount of excise duty was added to the cost p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ided that sales tax would be levied at the first point of sale in Bihar. 5.. The imposition of sales tax on country liquor and the other forms of spirit was sought to be challenged before this Court in a batch of writ petitions, some of which were filed at the instance of persons who are petitioners in this batch of cases as well. In the earlier batch an interim order was passed by this Court staying the operation of the notification, dated May 21, 1997 imposing sales tax on country liquor. However, that batch of cases was eventually permitted to be withdrawn on a prayer made on behalf of the respective petitioners. While permitting withdrawal the court also vacated the interim order(s) passed earlier in those cases. 6.. The second ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... wholly unwarranted, unauthorised and without jurisdiction. Learned counsel further submitted that the impugned order issued by the Excise Commissioner was bound to cause interference in the assessment proceeding that would be held against the petitioners under the provisions of the Bihar Finance Act and would come in their way to try to show and persuade the assessing authority that sales tax was leviable on the cost price of the country liquor, excluding the amount of excise duty. 9.. Mr. Jain further submitted that the order issued by the Excise Commissioner tantamounts to charging sales tax without any assessment proceedings by simply co-relating it to the wholesale price fixed by the Excise Commissioner by including the amount of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bihar, by which the earlier order, dated February 11, 1999 was recalled. 14.. The recall of the order coming under challenge in these writ petitions should have fully redressed the petitioners' grievances and one should have expected that that would be the end of the matter so far as these cases are concerned but that was not to be. 15.. Mr. D.V. Pathy, learned counsel, who from that stage appeared on behalf of the petitioners in place of Mr. Jain, insisted on challenging the circular letter dated December 24, 1999 issued by the Commissioner-cum-Secretary, Department of Commercial Taxes, which was brought on record along with interlocutory applications filed on February 14, 2000. According to Mr. Pathy the circular letter issu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pose of levy of sales tax could only be fixed after including the excise duty payable on the liquor sold. In support of his submission he relied upon a decision of the Supreme Court in what is commonly called as the second McDowell case [1985] 59 STC 277; AIR 1986 SC 649. He also relied upon another Supreme Court decision in Mohan Breweries and Distilleries Limited v. Commercial Taxes Officer [1997] 107 STC 212; AIR 1997 SC 3497. Mr. Sinha also relied upon a full bench decision of the Kerala High Court in Hindustan Petroleum Corporation Limited v. State of Kerala [1993] 89 STC 106. 19.. It is only with a sense of fairness to the counsel for the parties that we have taken note of the submissions sought to be advanced before us. But we are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Kerala High Court in Madras Rubber Factory Limited v. State of Kerala [1989] 74 STC 56 and another decision of the Bombay High Court in Gujarat Export Corporation Limited v. State of Maharashtra [1990] 77 STC 110. 18.. Mr. V.N. Sinha, learned Government Pleader IX appearing for the State, on the other hand, contended that the wholesale price of country liquor for the purpose of levy of sales tax could only be fixed after including the excise duty payable on the liquor sold. In support of his submission he relied upon a decision of the Supreme Court in what is commonly called as the second McDowell case [1985] 59 STC 277; AIR 1986 SC 649. He also relied upon another Supreme Court decision in Mohan Breweries and Distilleries Limited v. C ..... X X X X Extracts X X X X X X X X Extracts X X X X
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