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M/s. Pernod Ricard India (Pvt.) Limited Versus State of Uttarakhand And Others

2015 (8) TMI 104 - UTTARAKHAND HIGH COURT

Reduced rate of VAT on Liquor - Application to enforce the Notification/Government Order dated 23.06.2014, w.e.f. 01.04.2014 - Held that:- Petitioner has supplied the different brands of Indian Made Foreign Liquor at the M.R.P. so fixed by the Government inclusive of 15% Commercial Tax (VAT). It is also not in dispute that neither any other dealer nor petitioner could have recovered any amount from the customer over and above the M.R.P. fixed by the Government. - all the three Government orders .....

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the three above Notifications/Government Orders shall be deemed to be valid.

Petitioner and all the dealers were having every reasonable expectation and assurance from the Government that entire Commercial Tax (VAT) on different brands of Indian Made Foreign Liquor has been included in the M.R.P., therefore, petitioner /dealers have to pay the same and if Government would modify Commercial Tax(VAT) in that event M.R.P. shall also be modified accordingly. - Applying the principle of p .....

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f 2015 - Dated:- 8-7-2015 - Alok Singh, J. For the Appellant : Mr. Nikhil Agarwal with Mr. S.K. Posti, Adv For the Respondent : Mr. Syed Nadim, Standing Counsel for State of Uttarakhand JUDGMENT Hon ble Alok Singh, J (Oral) For the reason stated in the application, supplementary affidavit filed on behalf of petitioner is taken on record. CLMA No. 7645 of 2015 stands disposed of accordingly. Petitioner has invoked writ jurisdiction of this Court under Article 226 of the Constitution of India, ass .....

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of mandamus commanding the respondents to enforce the Notification/Government Order dated 23.06.2014, w.e.f. 01.04.2014. Undisputed facts of the present case, inter alia, are that the petitioner is a FL-2 licencee to import and supply Indian Made Foreign Liquor within the State of Uttarakhand; vide notification/Government Order No. 379 dated 28.03.2013, the State of Uttarakhand was pleased to fix 20% Commerical Tax (VAT) on Indian Made Foreign Liquor for the Assessment Year 2013-14; vide Notific .....

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tate Government; vide Notification/Government Order No. 216 dated 31.03.2014, Annexure No. 3 to the writ petition, the Government of Uttarakhand was pleased to fix 15% Commercial Tax(VAT) on all the brands of Indian made foreign liquor and has issued direction to fix the MRP of different brands of Indian Made Foreign Liquor inclusive of 15% Commercial Tax (VAT); vide Notification/Government Order No. 43-55 dated 01.04.2014, the Government of Uttarakhand was pleased to fix M.R.P. of different bra .....

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602 dated 23.06.2014, Annexure No. 6 (impugned in the present petition), a show cause notice was issued to the petitioner on 02.07.2014, saying that as per the Government Order dated 23.06.2014, VAT @ 15% shall be recovered w.e.f. 23.06.2014, therefore, as to why, petitioner should not be levied VAT @ 20% w.e.f. 01.04.2014 to 22.06.2014. Petitioner has preferred its reply on 08.08.2014 to the show cause notice and it was stated in the reply that since Government itself has included 15% VAT in t .....

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Order No. 602 dated 23.06.2014, therefore, petitioner had to pay VAT @ 20% w.e.f. 01.04.2014 to 22.04.2015. Feeling aggrieved, petitioner preferred statutory appeal, however, same also came to be dismissed vide Order dated 23.06.2015 for the same reasons as recorded by the Assessing Officer. It is reiterated that the facts as mentioned hereinbefore are undisputed and there is no factual dispute in the present matter. Since, facts are undisputed and only question of law is required to be adjudic .....

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nt Order No. 216 dated 31.03.2014 and Government Order No. 43-55 dated 01.04.2014, cannot be decided by the Assessing Authorities or Appellate Authorities dealing with the assessment, therefore, same question is being agitated before this Court, by invoking writ jurisdiction under Article 226 of the Constitution of India. In my humble opinion, Assessing Officers and Statutory Appellate Authorities have to assess the tax as per the rates fixed by the State Government, however, neither Assessing O .....

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re, for the questions raised in the present petition, present petition is maintainable under Article 226 of the Constitution of India. Mr. Sayed Nadim, learned Standing Counsel appearing the State, has vehemently submitted that what should be the rate of VAT falls within the domain of the Department of Finance, therefore, rate of VAT can only be fixed by the Department of Finance and Excise Department has no business to reduce the rate of VAT as fixed by the Department of Finance. Further conten .....

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y the legal right of the Department of Finance to recover the tax, which was prevailing prior to the Government Order dated 23.06.2014. Sub-Section (4) of Section 4 of the Uttarakhand VAT Act, 2005 reads as under: (4). The State Government may, by notification in the official gazette, declare different rates in respect of different goods, or add or remove any schedule (s), or add to, amend or alter any Schedule of this Act. A bare reading of sub-section (4) of Section 4 of the Act, would demonst .....

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him either directly or through officers subordinate to him in accordance with this Constitution. (2) Nothing in this article shall - (a) be deemed to transfer to the Governor any functions conferred by any existing law on any other authority; or (b) prevent Parliament or the Legislature of the State from conferring by law functions on any authority subordinate to the Governor. 166. Conduct of business of the Government of a State.- (1) All executive action of the Government of a State shall be .....

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the Government of the State, and for the allocation among Ministers of the said business in so far as it is not business with respect to which the Governor is by or under this Constitution required to act in his discretion. As per Article 154 of the Constitution of India, the executive power of the State shall vest in the Governor and shall be exercised by the Governor either directly or through officers subordinate to him in accordance with the Constitution. As per Article 166 of the Constitut .....

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nstrument made or executed by the Governor. Bare perusal of Annexure No.1 to the writ petition, Notification/Government Order No. 126 dated 28.02.2014, would reveal that it was issued in the name of the Governor of the State of Uttarakhand and as per Rule 22 of Annexure No.1, Notification/Government Order dated 28.02.2014 no dealer shall supply or sell liquor over and above the M.R.P. fixed by the Government and M.R.P. shall be inclusive of Commercial Tax (VAT). At the bottom of Annexure No.1, i .....

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inclusive of 15% Commercial Tax (VAT). All the above three Notifications/Government Orders are not under challenge. Nor have been recalled, repealed, revoked, superseded or rescinded, therefore, all the three above Notifications/Government Orders still stand good and cover the field. It is not in dispute that the petitioner has supplied the different brands of Indian Made Foreign Liquor at the M.R.P. so fixed by the Government inclusive of 15% Commercial Tax (VAT). It is also not in dispute tha .....

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reduce the rate of Commercial Tax (VAT) from 20% to 15% w.e.f. 01.04.2014 and M.R.P was fixed inclusive of Commercial Tax (VAT) @ 15%. In view of Article 154 and 166 of the Constitution of India, all the three above Notifications/Government Orders shall be deemed to be valid. There is another aspect of the matter. If acting upon three different Government Orders as mentioned hereinbefore, petitioner has sold/supplied the different brands of liquor on the rates fixed by the State Government incl .....

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in the harmonious interpretation of the Government Orders. As observed, hereinbefore, that vide earlier Government Orders dated 31.03.2014 and 01.04.2014, Government of Uttarakhand has decided to charge the Commercial Tax (VAT) @ from 20% to 15% w.e.f. 01.04.2014 and by the impugned Government notification dated 23.06.2014 once again, it was reduced @ from 20% to 15%, the intention of the Government is clear that for the assessment year, Commercial Tax (VAT) should be charged @ 15% instead of 2 .....

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ommercial Tax @ 15%, petitioner was bound to sell the liquor on the M.R.P. ,therefore, now Government is estopped to allege that since, Department of Finance has not reduced the Commercial Tax @ 15% w.e.f. 01.04.2014 and has reduced it w.e.f. 23.06.2014, therefore, petitioner should pay Commercial Tax @ 20% from 01.04.2014 to 22.06.2014. Petitioner and all the dealers were having every reasonable expectation and assurance from the Government that entire Commercial Tax (VAT) on different brands o .....

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