TMI Blog2015 (8) TMI 999X X X X Extracts X X X X X X X X Extracts X X X X ..... cipal and interest which clearly find mention in the certificate dated 10.11.2008 to I.A. No.1 on which appellant itself has placed reliance. - since there was no challenge to the proviso to Rule 13A(5) of the Foreign Liquor Rules, the respondents were well within their legal rights to insist that at least 50% of the excise dues against the partners of the appellant was required to be paid in accordance with the proviso, to get the desired renewal. Such decision of the High Court in our considered view does not require any interference. Factum of excise dues of one of the partners of the appellant and its subsequent payment under the Amnesty Scheme is not in dispute or controversy. This is apparent from the certificate dated 10.11.2008. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he produces from the Excise Department a certificate to the effect that he has cleared 50% of the abkari arrears pending at the time of renewal of the licence. 3. The facts of the case need not detain us for long except noting that the appellant firm was having a FL-3 licence to run a bar attached to a hotel at Kundara in Kollam District. The partnership firm was re-constituted on 01.10.1995 and one Shri J. Sasikumar was admitted as one of the partners. On 11.05.2001 the request of the appellant firm for renewal of its FL-3 licence was rejected by the Excise Commissioner on the ground that one of the partners had conducted abkari business in the year 1981-1982 and had incurred dues to the Government of ₹ 70 Lacs which had further ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ts of ₹ 50 Lacs in total. The writ appeal itself was heard on merits and dismissed by the impugned judgment dated 09.01.2008 following earlier Division Bench judgment dated 24.06.2005. 4. On behalf of appellant our attention was drawn to a subsequent development mentioned in I.A.No.1 of 2009 filed in this appeal. Paragraphs 9, 10 and 11 of the I.A. disclose that the Government of Kerala declared an Amnesty Scheme (One Time Settlement Scheme) on 26.05.2008 wherein, if the other conditions were satisfied, a lump sum payment of 75% of the principal dues could be sufficient to waive the remaining principal as well as all the penalty and interest. Taking advantage of that scheme the defaulting partner Mr. J. Sasikumar along with his par ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hearing learned counsel for the appellant initially took the stand that due to passage of time and other reasons the appellant was not keen to press the appeal provided the appellant was absolved of its liability created by furnishing of security for ₹ 50 Lacs. In other words, he wanted this Court to order for discharge of security furnished by him to the Commissioner of Excise. This prayer of the appellant was strongly contested by Ms. Bina Madhavan, learned counsel appearing for the respondents by placing reliance upon averments made in the counter affidavit (additional) filed in response to I.A. No.1 of 2009. In paragraph 6 of the counter affidavit the respondents have relied upon relevant proviso to Rule 13A(5) of the Foreign Liqu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the relevant facts and the rules we find ourselves in agreement with the submission on behalf of the respondents that appellant is not entitled to receive refund of ₹ 50 Lacs on account of subsequent deposit of required percentage of principal dues under the Amnesty Scheme of 2008. The amnesty earned in 2008 must be confined to the arrears of interest outstanding at the relevant time in 2008 and by that date the earlier deposits of ₹ 50 Lacs had already been appropriated towards interest. No fault can be found in appropriating that amount because there is no dispute regarding the actual outstanding amounts of principal and interest which clearly find mention in the certificate dated 10.11.2008 (Annexure P-6) to I.A. No.1 on whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y Scheme of 2008. In such circumstances exercise of writ jurisdiction to help the defaulter would be inappropriate. It would be unjust to direct for refund of ₹ 50 Lacs on the premise that its recovery in the manner made is being questioned by the appellant. 12. For the aforesaid reasons we find no merit in this appeal and it is dismissed accordingly. It is clarified that appellant is now required to redeposit ₹ 50 Lacs to meet its liability under the security furnished as per interim order of this Court dated 18.1.2010. It is directed to do so within six weeks along with interest at the rate of 6% per annum from the date of receipt of that amount till its redeposit. There shall be no order as to costs. - - TaxTMI - TMITa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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