TMI Blog1976 (5) TMI 99X X X X Extracts X X X X X X X X Extracts X X X X ..... rmissible limit and no reasonable explanation was tendered by the appellant in respect thereof. There is accordingly no merit or substance in the second contention advanced on behalf of the appellant as well. In the present case, however, the liquor was lifted by the appellant from its distilleries in Uttar Pradesh and a portion thereof remained unaccounted for, as already stated, on arrival of the consignments at their destination. For the foregoing reasons, the respondents were right in demanding the duty on the shortages. Appeals dismissed - Civil Appeal No. 582 of 1971 AND CIVIL APPEAL No. 1418 of 1970 - - - Dated:- 4-5-1976 - SINGH, JASWANT AND GUPTA, A.C., JJ. Tirath Singh Munjral, G. K. Arora, B. C. Das Gupta Co. for the Appellant N. S. Das Behl and o. P. Sharma for the respondent JUDGMENT JASWANT SINGH, J.- There two Civil Appeals Nos. 1418 of 1970 and 582 of 1971, the first by certificate of fitness granted under Article 133(1)(a) of the Constitution by the Punjab and Haryana High Court and the second by special leave granted by this Court which are directed against the Judgments and orders of the said High Court dated December 4, 1969, and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g liquor. The allowance shall be determined by deducting from the quantity despatched the quantity received at the destination, both quantities being that in terms of proof liters of spirit contents or in case of beer bulk liters. 9 If the report of the officer-in-charge shows that the wastage exceeds the prescribed limit, the licensee shall be liable to pay duty at the prescribed rate as if the wastage in excess of the prescribed limit had actually been removed from the Warehouse. Provided that each case of excessive wastage shall be reported to the Financial Commissioner for orders who may in his discretion, on good cause being shown remit it whole or a .. part or the duty leviable on such wastage. 10 Liquor shall be imported/transported under bond in accordance with the Punjab Liquor permit and Pass Rules at the sole risk and responsibility of the licensee. The bond in form L. 37 shall be discharged, after liquor been duly checked and proved by the officer-in-charge and deposited in the Ware-house. Between Junc. 1967 and April, 1969, the appellant transported. for the purpose of bottling, various quantities of Indian made foreign liquors from its aforesaid distil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it refused to so in respect of its order dated July 29, 1970. Though several contentions were raised by the appellant in the aforesaid two writ petitions filed by it in the High Court, counsel appearing on its behalf has assailed before us the correctness of the impugned orders passed by the first respondent on two grounds. He has in the first instance contended that Rules 8 and 9 of the 1957 Rules under which the duty is sought to be imposed are ultra vires the rule making power of the Financial Commissioner. Elaborating this submission, counsel has urged that since the state alone has, by virtue of election 31 of the Act, the power to impose duties mentioned therein, as also the exclusive power under section 58(1) of the Act to make rules for the purpose of carrying out the provisions of the Act including those of section 31 or any other law for the time being in force relating to excise revenue and section 13(a) of the Act prohibits the state Government to delegate the powers conferred on it by sections 14, 21, 31, 56 and 58 of the Act, Rules 8 and 9 of the 1957 Rules are manifestly beyond the competence of the Financial Commissioner. This contention cannot, in our opinion be ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act and Entry Sl of List II of the Seventh Schedule to the Constitution and the connotation of the term countervailing duty. Section 3 (6-b) . excise duty and countervaling duty mean any such excise duty or countervailing duty as the case may be, as is mentioned in Entry Sl of List II in the Seventh Schedule to the Constitution. Section 31. Duty on excisable articles.-An excise duty, or a countervailing duty, as the case may be at such rate or rates as the State Government shall direct, may be imposed, either generally or for any special local area, on any excisable article- (a) imported, exported or transported accordance with the provisions of section 16, or (b) manufactured or cultivated under any licence granted under section 20. Or (c) manufactured in any distillery established or any distillery or brewery licensed under section 21; Provided follows:- (i) Duty shall not be so imposed on any article which has been imported into India and was liable on importation to duty under the India Tarrif Act, 1894, or the Sea Customs Act, 1878. (ii) xx xx xx xx xx xx Explanation.-Duty may be imposed under this section at different rates acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er rates on similar goods manufactured or produced elsewhere in India:- (a) alcoholic liquors for human consumption (b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub-para graph (b) of this Entry. The expression countervailing duty is not defined in the Act but its meaning has been made clear in the Judgment the this Court in Kalyani Stores v. The State of Orissa and or.([1966] 1 S.C.R. 865) where it was observed This bring the consideration of the meaning of the expression countervailing duties used in Entry 51. List II of the Seventh Schedule to the Constitution. The expression countervailing duties has not been defined in the Constitution or the Bihar Orissa Act 2 of 1915. We have, therefore, to depend upon its etymological sense and the context in which it has been used in Entry 51. In its etymological sense, it means to counterbalance; to avail against with equal force or virtue; to compensate for some thing or serve as an equivalent of or substitute for: sec Black s live Dictionary, 4th Edn. 421. This would suggest that a counte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for consumption which is manufactured or produced elsewhere in India. It is immaterial whether the liquor for which permits were obtained was consumed within the Union Territory of Chandigarh or was in existence in that territory or not. What is material is whether permits were obtained for import from Uttar Pradesh of alcoholic Liquor meant for human consumption and the quantity showing in the permits left Uttar Pradesh. In the present case, the liquor for which permits were obtained by the appellant was admittedly in existence and was meant for human consumption and did leave the appellant s distilleries in Uttar Pradesh for being transported to his Warehouse in Chandigarh at his own risk and responsibility. It is also not denied on behalf of the appellant that Portion of the liquor which exceeded the permissible limit of wastage did not reach the appellant s Warehouse and was not found therein and the shortage remained unaccounted for. It is thus evident that duty is not sought to be charged on an excisable article which was not in existence, as contended on behalf of the appellant but is sought to be charged on liquor which was actually manufactured and left Uttar Pradesh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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