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M/s. Gemini Distillery And Another Versus State of Odisha And Others

2016 (9) TMI 222 - ORISSA HIGH COURT

Validity of the demand for the period prior to the deletion of Rule 6-C of the Rules, 1989 - deletion of rule of Section 6-C to the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 - Notification dated 20th May, 2002, published in Orissa Gazette on 6th July, 2002 - Held that: - the actual repeal of Rule 6-C of the Rules, 1989 did take place vide Notification dated 30.05.2002 but, much prior thereto i.e. 31.03.2001, the State Government had created a State monopoly of wholesale trad .....

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ted:- 12-7-2016 - Indrajit Mahanty And D. P. Choudhury, JJ. For the Petitioners : M/s. Asim Amitav Das (Sr. Advocate) B.K.Parida, S.A.Pattnaik & A.N.Pattanayak For the Opp. Addl. Government Advocate, M/s.Nilambar Jena & Kintara Jena ORDER I. Mahanty, J. The short issue that arises for consideration in the present writ application is as to whether repeal of rule of Section 6-C to the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 (hereinafter referred to as the Rules 1989 .....

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eliance on the judgment of Hon ble Supreme Court in the case of Kolhapur Canesugar Works Ltd. and another v. Union of India and others, (2000) 2 SCC 536 in which, the Hon ble Supreme Court stated that law is well settled that repeal of statute or deletion of a provision, unless covered by Section 6(1) of the General Clauses Act or a saving provision, totally obliterates it from the statute book, and the proceedings pending thereunder stands discontinued and came to conclude as follows: In this c .....

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brief facts leading to the present challenge are as follows: A. The State Government framed Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 under Section 89 of the Bihar & Orissa Excise Act, 1915 and published the same on 14.08.1989. B. The petitioners herein applied for and granted licenses by the Collector, Khurda on 15.12.1995 for (i) bottling of portable foreign liquor (ii) for compounding and blending of foreign liquor and (iii) foreign liquor warehouse in or outside bond .....

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apacity of their bottling plants in a year, as the minimum guaranteed quantity. In case of any shortfall in the minimum guaranteed quantity fixed for the plant by the Excise Commissioner, the licensee of the bottling plant shall be liable to make payment of the duty for the shortfall quantity and the amount will be recovered as arrears due from the licensee. D. It is also admitted that with the introduction of Rule 6-C of the Rules, 1989 for the period from 1997-98 till 2000-01, the Commissioner .....

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A. Notwithstanding anything contained in this Act, the right to carry on wholesale trade and distribution of foreign liquor and country liquor in the State shall, on and from such date as the State Government may, by notification, appoint, solely vest in the State Government and subject to such rules as may be made in this behalf, an agency of the State Government as may be specified in the said notification or a Corporation established, or incorporated under the Companies Act, 1956 and wholly o .....

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Thereafter the State Government issued a Gazette Notification vide SRO No.50/2001 dated 30th January 2001 under Section 20-A of the Bihar and Orissa Excise Act, 1915 forming the Orissa State Beverage Corporation Ltd. and vesting such Corporation the exclusive authority to carry on wholesale trade and distribution of foreign liquor in the State of Orissa with effect from 01.02.2001. The said notification is quoted as hereunder: S.R.O.No.50/2001- In exercise of the powers conferred by Section 20- .....

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quor in the State on behalf of the State Government for the whole of the State of Orissa, and no other person shall be entitled to any privilege or licence for importing, exporting and supplying the same in wholesale, or distributing the same in any part of the State. 4. When the applications were invited by Orissa State Beverage Corporation from the manufacturers of foreign liquor for supply of IMFL and thereafter agreements were entered into by all the manufacturers with the said Corporation f .....

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country liquor made representations to the State Government seeking waiver of MGQ on and from the date of creation of the OSBC (State s monopoly Corporation) and on such representations, the Joint Secretary to the Govt. of Orissa in the Excise Department addressed the communication to the Excise Commissioner stating therein that since the OSBC became the sole monopoly wholesaler on and from 31.01.2001, therefore, any shortfall in MGQ after the date of establishment of Corporation till the end o .....

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into force at once. Now, therefore, in exercise of the powers conferred by sub-section (1) of Section 89 of the Bihar and Orissa Excise Act, 1915 (Bihar and Orissa Act 2 of 1915), read with the proviso to sub-section, (3) of the said section, the State Government do hereby make the following rules further to amend the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989, namely:- I. (1) These rules may be called the Orissa Excise (Exclusive Privilege) Foreign Liquor Amendment Rules, 20 .....

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uent thereupon, various representations made by the bottling manufactures to the State Government on 26.04.2003 under Annexure-9 and since no response to the same is received and further since the Superintendent of Excise, Khurda reiterated its demand of shortfall MGQ for the year 2001-02 vide its communication dated 11.02.2005 (Annexure-10), the present writ application has come to be filed seeking to challenge the said demand. 7. Learned Addl. Government Advocate on behalf of the State essenti .....

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