Subscription   Feedback   New User   Login      
Tax Management India .com
TMI - Tax Management India. Com
Articles Highlights TMI Notes SMS News Newsletters Calendar Imp. Links Database Experts Contact us More....
Extracts
Home List
← Previous Next →

P.T. Sunil Kumar, S/o. Unneirkutty Versus Excise Commissioner, Commissioner of Excise And Others

What is the true scope and intend of Rule 5(1)(a) of the Kerala Abkari Shops Disposal Rules, 2002 and whether discharge of the licencee from the crime for the alleged offences under the provisions other than Section 56 of the Act entails him to the preference even after the conclusion of the proceedings concerning granting the privilege - Held that:- an analysis of the provision of Rule 5(1)(a) reveals the following: (1) While extending the privilege to vend toddy, preference shall be given to t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

rtheless, has a crime registered against him for the alleged offences under Sections 56(b) and 57(a) of the Act. Indeed, indisputably a crime registered under Section 56(b) of the Act does not disentitle the licencee from claiming privilege. The crime registered against the fifth respondent is also for the alleged offence under Section 57(a) of the Act.

A perusal of the above provision makes it manifestly clear that the offence made punishable is adulteration in its various nuances. I .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

it cannot be denied that the allegation in the crime attracts Section 57(a) of the Act, and consequently the crime falls within the mischief of Rule 5(1)(a) of the Rules.

On 05.03.2014, the department put in auction the privilege to vend toddy. On the same day, this Court at the instance of the fifth respondent, issued an interim direction that there should be no confirmation of the licence in petitioner's favour. This Court, through common judgment, directed the Excise Commissioner t .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

re, has come to be fulfilled.

Following the last limb of Rule 5(1)(a), It may further be observed that exoneration of the previous licencee may enure to his benefit in the following year to re-claim his privilege as if no crime had been registered. For the principal needs no reiteration that any acquittal or discharge relates back to the date of the crime. In the same breadth, It is observed further, especially in the light of the ratio laid down in Exhibit R5(c) judgment, that the se .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the proceedings of granting the privilege could attain finality - Held that:- it emerges that the existing licencee has a privilege conferred on him to have his licence renewed or his right to preference reckoned subject to his fulfilling all the conditions. In the same reckoning, it follows that the right of any other person is dependent on, if not subservient to, the right of the existing licencee.

The legislature is conscious that once a policy of preference is to be operational, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ing the privilege in the new licencee's favour, if the previous licencee is exonerated or acquitted at a later point of time, his right to preference gets restored. In sum and substance, viewed from any perspective, it cannot be held that new licencee has any indefeasible right and that the confirmation can be denied only on account of his failure rather than the success of the previous licencee. - Decided against the petitioner - WP (C). No. 20619 of 2015 (B) - Dated:- 29-1-2016 - Dama Seshadri .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ifth respondent was the licencee for the toddy shops of Group No.I in Kunnamangalam till 31.03.2014. While the licence was subsisting, the Excise officials periodically drew samples and sent them for chemical analysis. In two instances, the samples were tested adverse. 4. In elaboration, on 20.12.2012, the Department received Exhibit R5(d) chemical analysis of A-Sample taken from one of the shops of the fifth respondent. Consequently, on 20.02.2013, the authorities registered a crime against the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

negative: it was in favour of the fifth respondent. 6. Armed with Exhibit R5(e), the chemical analysis report of B-Sample, the petitioner filed W.P.(C)No.8094/2013 challenging the Excise Commissioner's order of suspension- cum-show cause dated 17.03.2013. In fact, the fifth respondent obtained an interim stay on 22.03.2013 and continued his business. 7. Soon thereafter, based on the chemical analysis report dated 19.10.2012, obtained on a sample sent earlier, the Excise Department, however, .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

t by filing W.P. (C)No.12135/2013 and obtained an interim stay, whereby he continued his business. 9. It is the contention of the fifth respondent that in 2013, there was no policy of regular allotment of the licence or privilege to vend toddy. In that abkari year, the licence was extended periodically, on three occasions, till 31.04.2014. 10. As it emerges from the record, pending those two writ petitions, the fifth respondent filed Crl.M.C.No. 1606/2013 under Section 482 of Cr.P.C., before thi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ied copy of the final report and filed petitions for his discharge on the premise that the final reports did not contain even a whisper about the chemical analysis reports of B-Samples, leave alone any challenge to their correctness. 12. The Judicial First Class Magistrate through Exhibit R5(k) dated 25.03.2014 and this Court through Exhibit R5(i) order discharged the fifth respondent and other accused from the crimes. In the interim, on the parallel lines, the Government initiated steps, as a m .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

orities went ahead and declared that the petitioner was successful to have the privilege for the year 2014-2015. 14. This Court eventually disposed of W.P.(C)No. 6324/2014 through Exhibit P6 common judgment. Since there were other writ petitions involving the same issue of granting the privilege, the direction in Exhibit P6 judgment was to the Excise Commissioner to consider the rival claims of the incumbent licencees and the new allottees. 15. In compliance with Exhibit P6 judgment, the Excise .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

on, the fifth respondent obtained a stay against the confirmation in petitioner's favour; this time, it was the petitioner's turn to obtain a similar direction against the fifth respondent. 17. Later, this Court through Exhibit P9 common judgment, which is elaborate, further directed the Excise Commissioner to consider the issue afresh taking into account all the issues raised by the parties. Eventually, the Excise Commissioner passed Exhibit P10 order reiterating his earlier stand as wa .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

till the penultimate day. He approached this Court only on 04.03.2014. He has further submitted that this Court consciously did not stymie the entire process; instead, it only directed that there should not be any confirmation of sale. 19. According to the learned counsel, had this Court been even prima facie satisfied that there was any merit in the fifth respondent's claim, it would have stalled the entire process instead of granting limited relief that the sale should not be confirmed. 2 .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. Though he made his efforts, without the preference certificate, to participate in the auction, his application was rightly rejected in the scrutiny. According to the learned counsel, despite the rejection of his application by the authorities, the fifth respondent was very much present at the time of the allotment. 22. In other words, it is the singular contention of the learned counsel for the petitioner that since Rule 5 mandates that any allotment must be subject to the objections, nothing .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

submitted that the provisional allotment is subject to the confirmation in terms of Rule 5(15) of the Rules. He contends that any disqualification or objection to having the allotment confirmed must be attributable to the lapses or latches on the petitioner's part. In this case, even in Exhibit P10, the Excise Commissioner, avers the learned counsel, has not found any shortcoming or any statutory violation or non-compliance by the petitioner. It is, therefore, axiomatic that the provisional .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

Exhibit P10, the Excise Commissioner has not found any shortcomings on the petitioner's part; and (5) that he ought to have recognised the petitioner's vested right to have the confirmation. In the end, the learned counsel has urged this Court to allow the writ petition. 26. Per contra, the learned counsel for the fifth respondent has strenuously contended that the officials in these instances have taken recourse to gross abuse of process. To begin with, he has submitted that the officia .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ould be filed, the reports of B-Sample were very much available, and the findings were in petitioner's favour. For the reasons not fathomable, the respondent officials, contends the learned counsel, filed final reports entirely disregarding the B- Sample reports. Under those circumstances, the Judicial First Class Magistrate has discharged the fifth respondent from the crime. 28. The learned counsel, addressing the issue whether the fifth respondent had been indolent in his approach, has sub .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

. The reason for rejection was that crimes were registered against the fifth respondent. 29. It is the specific contention of the learned counsel for the fifth respondent that only under those circumstances, as the rejection was just a couple of days prior to the date fixed for allotting the privilege, did the fifth respondent rush to the Court and seek its intervention. 30. The learned counsel has laid a heavy stress on twin aspects: First, in the light of the B-Sample reports, it ought to be c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

the fifth respondent has not violated any of the statutory provisions. As a consequence, without much ado, contends the learned counsel, the privilege statutorily recognised in fifth respondent's favour automatically springs into action. In support of his submissions, the learned counsel has placed reliance on Exhibit R5(c) judgment rendered by a learned Division Bench of this Court. 32. The learned counsel has also submitted that this Court has time and time again deprecated the cavalier ma .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

taken into account the rival pleas and rendered his findings, especially based on the binding judicial pronouncements of this Court. 34. The learned counsel lays specific emphasis on the fact that all the judgments he has referred to, the Excise Commissioner himself is a party. They squarely bind him. The learned counsel has further contended that on the very 05.03.2014, when the allotment had to take place, the fifth respondent made a complaint to the District Collector about the officials' .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

l, any such consideration, otherwise, would lead to incongruity and uncertainty. 36. It is also the specific contention of the learned counsel for the petitioner that just because there is a semblance of justification in the fifth respondent's claim, the vested rights of the third parties cannot be defeated. According to him, only in the absence of any objection at the time of allotment, despite the presence of the fifth respondent, was the petitioner made to pay the entire licence fee and i .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

expressed doubt about the manner of registering the crime. According to the learned counsel, no such situation prevails in the present instance as the registration of crime against the fifth respondent had not been doubted. As regards Exhibit R5(c) judgment, the learned counsel would contend that it was rendered at an interlocutory stage. On these grounds, the learned counsel has urged this Court to allow the writ petition. Issues: I. What is the true scope and intend of Rule 5(1)(a) of the Ker .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e is exonerated of the criminal charges before the proceedings of granting the privilege could attain finality? Issue Nos.I & II: 39. As it is a pure question of law, it needs, I reckon, a careful analysis. Rule 5(1)(a) which is the pivot for our purpose of adjudication reads as follows: "While giving privilege, preference shall be given to those licensees who has conducted toddy shops during the preceding three years consecutively from 2006-07, 2007-08 and 2008-09, provided no Abkari c .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

to vend toddy, preference shall be given to those licencees who have conducted the toddy shops during the preceding three consecutive years; (2) The incumbent licencee shall not have any crime registered against him under any provision of the Act other than Section 56 thereof; and (3) If the incumbent licencee has not been preferred because of his facing criminal charges, any subsequent exoneration should revive his claim to preference. 41. In the present instance, the fifth respondent admitted .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

fifth respondent had been discharged by a competent court in both the crimes that had been registered against him for the offence under all provisions, including Section 56(a). He has further contended that this Court has earlier held that to attach the stigma of disqualification to the incumbent licencee, a crime ought to have been validly registered. 43. The issue, thus, turns upon the expression "validly registered". Indeed, the learned counsel for the petitioner has submitted that .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

crime has not been validly registered renders the issue fait accompli and the criminal trial a mere mockery, or rather otiose. 44. In the light of the above rival claims, it is apposite for us to examine Section 57(a) of the Act. The said provision to the extent relevant reads as follows: "57. For adulteration, etc., by licensed vendor or manufacturer.- Whoever being the holder of a licence for the sale or manufacture of liquor or of any intoxicating drug under this Act, (a) mixes or permi .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

makes it manifestly clear that the offence made punishable is adulteration in its various nuances. If a person mixes with the liquor sold or manufactured by him any other drug or ingredient likely to add to its actual or apparent intoxicating quality, etc., the liquor thus mixed and sold by the licencee is an adulterated one attracting the penal provision. In both the crimes registered against the fifth respondent, the allegation is that the toddy being sold by him is adulterated. In other words .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

e reports relating to B-Samples, obtained at the behest of the fifth respondent, both turned out to be negative. 47. In fact, on the strength of the B-Sample reports, the fifth respondent has been discharged from both the crimes. Chronologically examined, the samples were drawn in and around December 2012. The two crimes were registered in February and April 2013. The B-Sample reports were received thereafter. The fifth respondent soon got discharged from the crimes. 48. On 05.03.2014, the depar .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

issioner passed Exhibit P7 order upholding the fifth respondent's claim that he was entitled to preference, the said order was once again called into question by the petitioner. And it resulted in another direction from this Court to the Excise Commissioner to re-consider the issue afresh. Eventually, in Exhibit P10 order the Commissioner has reiterated his earlier findings. 50. Viewed narrowly, it can be held that Rule 5(1)(a) contemplates registration of a crime to be a pre-condition to di .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ifth respondent has come out clean-exonerated. At this juncture, it is pertinent to observe that Rule 5(1)(a), in fact, provides for a contingency: If the licencee is subsequently exonerated, he could also re-assert his claim for preference. In the present instance, the learned counsel for the fifth respondent would have concluded that since the fifth respondent has been exonerated, the licencee has suffered no disqualification. In other words, at the very inception, the crime has not been valid .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

of law that the crime ought to have been validly registered. 53. In Exhibit R5(c) judgment, another learned Division Bench has considered a case somewhat similar to the one present before me. Considering the impact of the second analysis report, their Lordships have observed that even if a criminal case has been registered and still pending, once the second analysis report is in the negative, the very crime becomes untenable and will have to end in acquittal. Their Lordships have also tellingly .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

io of Exhibits R5(a) and R5(c) judgments rendered by two learned Division Benches bind me. There lies a catch, however. Interlocutory orders-Binding Nature: 55. The learned counsel for the petitioner has submitted that in both instances-Exhibits R5(a) and R5(c) judgments-the learned Division Benches were called upon to examine the legality of interim orders passed in the writ petitions. According to him, Exhibits R5(a) and R5(c) do not have any precedential value because they were rendered in in .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

aryana 1995 Supp (1) SCC 461, the Apex Court has held that in the matters of interlocutory orders, the principle of binding precedent cannot be said to apply. However, the need for consistency of approach and uniformity in the exercise of judicial discretion respecting similar causes and the desirability to eliminate occasions for grievances of discriminatory treatment require that all similar matters should receive similar treatment except where factual differences require a different treatment .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

nt finally rendered in the writ petition. 59. It is essential, at this juncture, to observe that such a course of events, as has been indicated above, does not abdicate the judicial observation provided the said observation stands, as a matter of law, least dependent on the facts or the conclusion of proceedings; in other words, if it is a declaration on a pure question of law, it persuades-if not binds. 60. It is too well settled to be ignored that there can be no precedent based on the facts; .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ct. 61. As Exhibits R5(a) and R5(c) judgments fall within the exceptions indicated above, I justifiability feel persuaded to follow the dictum, for the judicial priority demands. 62. Without hesitation, we may accept that in Exhibit R5(a) judgment the learned Division Bench, while holding that a crime ought to have been registered, has inter alia taken into account the observation of the Commissioner of Excise that there is something amiss in the authorities' registering the crime. Thus, the .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

present instance, the fifth respondent, I believe, stands on a better footing. It is not a case of any pending criminal proceedings in the face of a negative second sample report; on the contrary, it is the case of a clean discharge. Validly Registered Crime: 64. Coming back to the issue of registering a crime validly, I may have to tread carefully for any sweeping observation in this regard may have far-reaching consequences, especially if the crimes are still pending adjudication before compe .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

ght to continue with the licence. 66. Following the last limb of Rule 5(1)(a), I may further observe that exoneration of the previous licencee may enure to his benefit in the following year to re-claim his privilege as if no crime had been registered. For the principal needs no reiteration that any acquittal or discharge relates back to the date of the crime. 67. In the same breadth, I am to observe further, especially in the light of the ratio laid down in Exhibit R5(c) judgment, that the secon .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

he existing licencee has a privilege conferred on him to have his licence renewed or his right to preference reckoned subject to his fulfilling all the conditions. In the same reckoning, it follows that the right of any other person is dependent on, if not subservient to, the right of the existing licencee. 69. The legislature is conscious that once a policy of preference is to be operational, until the right under the said policy has been conclusively rejected, the right of any other person is .....

X X X X X X X

Extract - Part text only
Click here to Access Full Contents

X X X X X X X

 

 

 

 

 

what is new what is new
  ↓     Latest Happenings     ↓  

Article: SERVICES UNDER REVERSE CHARGE UNDER GST REGIME

Forum: Duty Drawback & Input Credit - under GST

Forum: Excise duty credit on finished stock at additional place of business.

Forum: Credit on Repair of Company Car & Its Insurance

Highlight: Rate of exchange of conversion of the foreign currency with effect from 22th September, 2017 - Notification

Highlight: Companies (Acceptance of Deposits) Second Amendment Rules, 2017 - Notification

Highlight: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. — reg. - Circular

Highlight: Amendment to Paragraph 2.72 (b) of the Handbook of Procedures of the Foreign Trade Policy (FTP) 2015-20 - Public Notice

Notification: Amendment in Appendix 3 (SCOMET items) to Schedule- 2 of ITC (HS) Classification of Export and Import Items 2012

Circular: Amendment to Paragraph 2.72 (b) of the Handbook of Procedures of the Foreign Trade Policy (FTP) 2015-20

Notification: Companies (Acceptance of Deposits) Second Amendment Rules, 2017

Notification: Rate of exchange of conversion of the foreign currency with effect from 22th September, 2017

Forum: Trans1 return

News: Exchange Rate of Foreign Currency Relating To Imported and Export Goods Notified

Circular: Promote the officers of the Indian Revenue Service (Customs and Central Excise) to the grade of Principal commissioner of customs, GST & CX

Circular: Allocate the charges amongst the Members of the Central Board of Excise and Customs

Circular: Strategy for audits in 2017-18 consequent to GST - Audit by Central Excise and service Department to continue for the accounting year 2016-17 and for the past period

Circular: Appoint the IRS (C&CE) officers as Principal Commissioner (Revision Application) and ex-officio Additional Secretary

Circular: Time limit for filing intimation for composition levy under Rule 3(1) of the CGST Rules, 2017 extended to 16-8-2017

Circular: Extension of time limit for submitting the declaration in FORM GST TRAN-1 under rule 120A of the Central Goods and Service Tax Rules, 2017

Circular: C.B.E. & C. Advisory on Customs related matters on introduction of Goods and Services Tax regime

Circular: List of Reduced Tax Liabilities under GST regime in comparison to present combined Indirect Tax rates

Circular: Works Contract for construction of Flats, Complex — Builders to pass on GST benefit to buyer otherwise anti-profiteering provisions of Section 171 of GST Act to apply

Circular: Clarification regarding applicability of section 16 of the IGST Act, 2017, relating to zero rated supply for the purpose of Compensation Cess on exports – Regarding.

Circular: Clarification on Inter-state movement of various modes of conveyance, carrying goods or passengers or for repairs and maintenance- regarding

News: RBI Reference Rate for US $

Highlight: Addition u/s 23(1)(a) - deemed rent - once the property is let out and at any point of time this remained vacant during the same cannot be brought to tax under the head House properties income.

News: Haryana constitutes screening committee on anti-profiteering

Highlight: Valuation of imported goods - it is necessary to re-examine the matter of both license agreement as well as supply contract simultaneously, to see if the enhanced royalty was in the guise of adjustment of the price of components.

Notification: Levy of anti dumping duty on New/unused pneumatic radial tyres with or without tubes and/or flap of rubber (including tubeless tyres) having normal rim dia code above 16 originating in, or exported from China PR

Highlight: Cenvat credit availed on Club Membership for the Director is not admissible as it cannot be said to be remotely connected with the activity of manufacture

Circular: Amendments in Hand Book of Procedures 2015-20 –reg.

News: Jaitley asks biz not to wait till last day to file GST returns

Circular: Implementing Electronic Sealing for containers by exporters under self-sealing procedure prescribed by Circular 26/2017-Cus dated 1st July, 2017 and Circular 36/2017 dated 28 th August, 2017. — reg.

Article: 20 Things You must know about E Way Bills in GST Law

Article: ‘DUTY DRAWBACK’ CANNOT BE EQUATED WITH ‘REBATE OF DUTY’

Highlight: Notification regarding GST rate for branded cereal, pulses and flour

News: Notification regarding GST rate for branded cereal, pulses and flour

Highlight: Anti-dumping duty on import of bus/truck tyres from China

Highlight: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Non-payment of service tax - maintenance and repair charges - appellants had knowingly and deliberately shown the repair charges as job work charges to mislead about their taxability - demand confirmed.

Highlight: BAS - execution of the project of smart card for vehicle registration – implementing the SOC-VRC project - The fact that the Government has outsourced some part of the work and paid certain consideration for such outsourced work, does not make the activity subject to service tax.

News: Cabinet approves Extension of time period of the Scheme "Special Industry Initiative for J&K" (Sll J&K) - Udaan

Highlight: Constitution of National Anti-profiteering Authority (NAA) under GST-reg. - Trade Notice

Highlight: Amendments in Hand Book of Procedures 2015-20 –reg. - Various amendments are made in Chapter-4 of Hand Book of Procedures 2015-2020.

Circular: Constitution of National Anti-profiteering Authority (NAA) under GST-reg.

Highlight: Sharing of expenses - BAS - promotion of business of group companies - sharing of expenditure for common facilities cannot be treated as service by one to another in such arrangement.

News: RBI Reference Rate for US $

Article: Credit of unsold stock [Section 140(3)] - Actual Credit as well as Notional Credit - Part-I - GST Transitional provisions

Circular: Certain Clarifications sought on Construction Services provided in the Real Estate Sector – reg.



|| Home || Acts and Rules || Notifications || Circulars || Schedules || Tariff || Forms || Case Laws || Manuals ||

|| About us || Contact us || Disclaimer || Terms of Use || Privacy Policy || TMI Database || Members || Site Map ||

© Taxmanagementindia.com [A unit of MS Knowledge Processing Pvt. Ltd.] All rights reserved.

Go to Mobile Version