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2016 (9) TMI 355 - MADHYA PRADESH HIGH COURT

2016 (9) TMI 355 - MADHYA PRADESH HIGH COURT - TMI - Taxability - Indian Made Foreign Liquor spirit sold outside the state - benefit by virtue of entry No.18 to Schedule I of the Commercial Tax Act exemption from payment of Commercial Tax and Central Sales Tax on the IMFL Held that: - it is clear that to avoid double taxation in the matter of payment of excise duty on IMFL manufactured in Madhya Pradesh, Rule 12 has been framed, so that the manufacture is required to pay excise duty only .....

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has to be granted exemption available on IMFL. - Statutory remedy of appeal maintainability Held that: - it is well settled principle of law that if any action is found to be contrary to law or unsustainable, then relegating a party to take recourse to the alternate remedy is not necessary. The case relied upon here is Paradip Port Trust Vs. Sales Tax Officer and other [1998 (3) TMI 585 - SUPREME COURT OF INDIA] there is no reason to relegate the petitioners to take recourse to the a .....

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t of conditions statutory in nature etc petition allowed decided in favor of petitioner. - W. P. No. 2366/2016 - Dated:- 26-8-2016 - Shri Rajendra Menon, The Acting Chief Justice And Shri Anurag Shrivastava, JJ. Shri R. K. Khanna, learned Senior Counsel with Shri Puneet Agrawal, Shri Sameer Kumar Shrivastava and Shri Parvez Bapuna, Advocates for the petitioner Shri Purushendra Kaurav, learned Additional Advocate General with Shri Swapnil Ganguly and Shri Pushpendra Yadav, Govt. Advocates f .....

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Commercial Tax Act, 1994 for the financial year 2003-2004. 2. Petitioner is manufacturer of Indian Made Foreign Liquor (IMFL) and spirit. The IMFL manufactured by the petitioner in the State of Madhya Pradesh is sold both within the State and outside. Petitioner holds a valid license issued under the provisions of M.P. Excise Act, 1915 (hereinafter referred to as "Excise Act") including a license under FL-9 i.e. a license for bottling of Indian Made Foreign Liquor. Petitioner is regist .....

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.P. VAT Act and vide assessment order dated 11.1.2007 (hereinafter referred to as "the original assessment order"). In the assessment year 2003-2004 assessment was done and petitioner paid the tax. However, after a period of five years from the date of original assessment respondent No.2 the Divisional Deputy Commissioner, Commercial Tax, Gwalior, is said to have issued notice dated 21.12.2012 vide Annexure P/3 proposing reassessment for the year in question, on the ground that the exe .....

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he assessment. On the basis of the assessment notice so issued, proceedings were held, objections were filed by the petitioner and after the reassessment order was passed vide Annexure P/7 on 30.12.2013, petitioner preferred a revision petition before the Additional Commissioner respondent No.3 and the revision petition having been dismissed, vide order passed on 19.8.2014, this writ petition has been filed under Article 226 and 227 of the Constitution. 3. Shri R. K. Khanna, learned Senior Couns .....

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may be levied under the Excise Act the exemption or benefit provided under Entry 18 to Schedule I is applicable. (b) The show cause notice initiating assessment on the basis that exemption is not available to the petitioner since the condition mentioned in Entry 18 has not been fulfilled is untenable as admittedly under Column No.3 of Entry 18, no condition is mentioned and this column is left blank. It is argued that reason for initiating reassessment is itself unsustainable. (c) That when IMF .....

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K. Khanna, learned Senior Counsel emphasized that right from the year 1958 upto 2009-2010 no duty was paid or tax assessed for IMFL manufactured and sold in the course of Inter State Trade and Commerce such goods were always exempted from payment of Sales Tax as it was treated to be goods on which duty is or may be levied under the Excise Act. However, all of a sudden, for the assessment year in question the duty/ tax is being charged. Shri Khanna, learned Senior Counsel apart from challenging t .....

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it existed prior to 21.12.2009, between 23.12.2009 to 31.3.2013 and after 1.4.2013, definition of an "exercisable article" as appearing in Section 2 sub section (6) of the Excise Act, meaning of the word "export" as defined in Section 2(9) of the Excise Act; meaning of the word "liquor"," spirit" as appearing in Section 2(13) and 2(17) of the Excise Act; duty chargeable under the Excise Act as contemplated under Section 25, Section 28 and Notifications iss .....

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ct and emphasized that if the intention of the legislature or the Law makers as is evident from these entries are given its true meaning, then goods subjected to tax/duty under the M.P. Excise Act or if tax or duty may be levied on the goods under the M.P. Excise Act, the same is exempted from payment of tax/duty under the Commercial Tax Act or the VAT Act. He submitted that if the judgment in the case of Alembic Distributors Ltd. and Anr. Vs. Assistant Commissioner of Sales Tax - [1962]13 STC 6 .....

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d, the same is nothing but in the nature of excise duty payable under the Excise Act and once a duty is paid or payable under the Excise Act by virtue of the provisions of the entry made vide Entry 18 to Schedule I or Entry 47 to Schedule I of the Commercial Tax Act and VAT Act respectively, the exemption is liable to be granted as the goods will fall in the category of tax free good as provided under Section 15 or 16 of the Commercial Tax Act and VAT Act respectively. Apart from making these su .....

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he following judgments :- Alembic Distributers Ltd. and Anr. Vs. Asstt. Commissioner of Sales Tax - [1962]13 STC 64 (MP); Karnataka Cement Pipe Factory Industrial Estate Vs. Superintendent of Central Excise and Anr. - (1986)23 ELT 313 (Kar.); Tamil Nadu (Madras State) Handloom Weavers Cooperative Society Ltd. Vs. Assistant Commissioner of Central Excise - 1978(2) ELT 57 (Mad.); Assistant Collector of Central Excise, Calcutta Division Vs. National Tobacco Co. of India Ltd. - (1972)2 SCC 560; Wall .....

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took us through the judgments in the case of Alembic Distributers Ltd. and Anr. (supra); McDowell & Co. (supra); S. K. Pattnaik (supra); R. C. JallParsi (supra) and argued that mere remission/exemption/ refund or adjustment of the duty paid by the assessee, does not mean that duty was not levied or that the goods are not amenable to levy under the M.P. Excise Act. He argued that the words used in the entry in question i.e. "is or may be levied" would mean that an excisable article .....

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ble article other than medical and toilet preparation, irrespective of the fact that the goods are imported, exported or transported, a product manufactured in the State being a excisable article is exempted and non- payment of excise duty is of no consequence for determining the taxability of the good. Learned Senior Counsel took us through various judgments in this regard, particularly, the judgment in the case of Alembic Distributers Ltd. and Anr.(supra); Lilasons Breweries Pvt. Ltd. Bhopal ( .....

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y, it is said that when the levy itself is per se illegal and when the jurisdiction exercised for imposing the liability is contrary to settled principles of law and justice, relegating the petitioner to take recourse to the alternate remedy is not proper. Reliance is placed on judgments of the Supreme Court in the cases of Paradip Port Trust Vs. Sales Tax Officer and others †(1998)4 SCC 90; Balco Captive Power Plant Vs. National Thermal Power Corporation - (2007) 14 SCC 234 and the .....

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urav, learned Additional Advocate General appearing for the State Government refuted the aforesaid contention and argued that against the order impugned, as a statutory remedy of appeal under Section 46 of the VAT Act is available and when mixed questions of law and facts are involved,which can be more appropriately dealt with by the statutory Appellate Authority, this Court should not exercise its extra ordinary jurisdiction in the matter under Article 226 and 227 of the Constitution. Learned A .....

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ith license required for sale of intoxicants; Section 26 with regard to levy of duties, Section 28 dealing with Form and conditions of license etc. Section 62 and sub section (2)(d), (j) of M.P. Excise Act with regard to rule making power of the State Government, the M.P. Foreign Liquor Rules, 1966, Rule 8 pertaining to various categories of license granted like, FL9, FL9A, etc. Rule 12 in the matter of export of foreign liquor, Rule 9 with regard to registration of leviable duties on sale withi .....

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levy can only take place when an article is leviable to duty, as IMFL which is exported and which forms a separate class being not leviable for duty under the M.P. Excise Act, Entry 47 to Schedule I or Entry 18 of the Commercial Tax Act would not apply. It is said that leviability of duty being the determining factor and as no tax is levied on IMFL, exported, the contention of the petitioners is not correct. It was argued that on IMFL exported to other States, no advance tax is charged. He took .....

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t of his contention, learned counsel relied upon the following judgments :- Gram Panchayat Gorakhpur Vs. Khushali Dindayal Sahu - AIR 1973 MP 19 (FB); Bhagwati Prasad Vs. Govt. of M.P. - 1966 MPLJ 557; Surinder Singh Vs. Central Govt. - (1986)4 SCC 667; Orissa State (Prevention & Control of Pollution) Board Vs. Oriental Paper Mill - (2003)10 SCC 421; Printers (Mysore) Ltd. Vs. M.A. Rashid - (2004)4 SCC 460; Some Distilleries Vs. State of M.P. - 1997(I) JLJ 319; Orient Weaving Mills Vs. UOI - .....

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ld outside, is subject to the exemption available under Entry 18 to Schedule I of the Commercial Tax Act or Entry 47 to Schedule I of the VAT Act ? (b) Whether the petition is maintainable in view of availability of an alternate remedy ? (c) Whether the re-assessment proceedings conducted in the matter is in accordance with law ? 9. We are of the considered view that if the first question, whether Indian Made Foreign Liquor exported from the State is exempted from payment of Commercial Act / VAT .....

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sions as are contained in the M.P. General Sales Tax Act, the M.P. Commercial Tax Act, 1994, the M.P. VAT Act, 2002 and the M.P. Excise Act, 1950. However, before considering the statutory provisions, we may take note of an admitted fact which was canvassed by Shri Khanna, learned Senior Counsel before us, it is said that right from the year 1958 upto 2009-2010, IMFL manufactured in the State but sold in the course of Inter State Trade and Commerce was always treated as exempted from payment of .....

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under the Madhya Pradesh Excise Act, 1915 (No. 2 of 1915) [........] other than i) medicinal and toilet preparations specified for the time being in the schedule to the Medicinal and Toilet Preparations (Excise duties) Act, 1995 (No. 16 of 1955); and. ii)............................" Thereafter, when the M.P. Commercial Tax Act, 1994 came into force. Entry 18 to Schedule I to Section 15 provided as under :- "Goods on which duty is or may be levied under the Madhya Pradesh Excise Act, 1 .....

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eparations specified for the time being in the Schedule to the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (No.16 of 1955). From 22.12.2009 entry 47 was :- 47. Goods on which duty is or may be levied under the Madhya Pradesh Excise Act, 1915 (No.2 of 1915) other than medicinal and toilet preparations specified for the time being in the Schedule to the Medicinal and Toilet Preparations (Excise Duties) Act, 1955 (No.16 of 1955). And from 1.4.2013 onwards it is - 47. Goods on which .....

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able on the sales or purchase of goods specified in the second column of Schedule I, subject to the restriction and exceptions, if any, set out in the corresponding entry in the third column thereof." 12. After coming into force of the VAT Act of 2002, Section 16 of the VAT Act provided for tax free good and this Section contemplates that "no tax shall be payable on the sale or purchase of goods specified in Schedule I, subject to conditions and exceptions, if any, set out in the corre .....

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is only from 23.12.2009 that certain conditions are carved out in column No.3 with regard to restricting the applicability of this provision when sold by a dealer other than a dealer who holds the license of the category specified therein. This condition is not relevant for the present in this petition as the same is only applicable after 23.12.2009. 13. That apart, Section 2(6) of the M.P. Excise Act defines an "excisable article" to mean - (a) any alcoholic liquor for human consumpti .....

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e, shall, if the State Government so directs, be levied on all excisable articles other than medicinal and toilet preparations, as may be specified in the schedule, when they are imported, exported, transported, manufactured, cultivated or collected etc. Proviso to this Section contemplates that it shall be lawful for the State Government to exempt any excisable article from any duty to which the same may be liable under the Act. Section 28 of the Excise Act deals with Forms and conditions of li .....

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levied and this include alcoholic liquor for human consumption. 14. If we analyze the statutory provisions as are indicated herein above, it would be seen that by virtue of Section 2(6) of the Excise Act of 1950, any alcoholic liquor which is fit for human consumption or a intoxicating drug is an excisable article and if an article is excisable as defined therein, the State Government under Section 25 of the Excise Act may, if it so directs, levy excise duty on such excisable article and under .....

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cts, these notifications were referred to and it was argued that exercising the powers available under Section 25 i.e. the charging Section read with Section 28 of the Excise Act, excise duty is being charged on foreign liquor and spirit including payment of export fee in cases of export. At this stage, it would be appropriate to take note of Rule 12 of the M.P. Foreign Liquor Rules, 1996 as this rule is very relevant with regard to the issue in question. Rule 12 of the M.P. Foreign Liquor Rules .....

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quate solvent sureties for the amount in Form F.L.23. After the receipt of the verification report in respect of the despatched consignment from the officer-in-charge of the importing unit, further consignment of foreign liquor involving the same or lesser amount of duty may be exported on the strength of the same cash deposit or bank guarantee or bond. ... 13. Securing the Verification Report - The exporter shall obtain a verification report from the officer-in-charge of the importing unit and .....

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r shall furnish documentary evidence that the consignment has actually left the country." 15. Under Entry 18 to Schedule-I of the M.P. Commercial Tax Act, certain goods are exempt from payment of tax, these are the goods on which duty is or may be levied under the M.P. Excise Act. Similarly, under Entry 47 of the VAT Act, particulars of tax free good as contemplated under Section 16 of the VAT Act are specified and it includes good on which duty is or may be levied under the Excise Act. Shr .....

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M.P. Excise Act, such goods are also exempt from payment of tax or duty. According to him, it is evident from the words used in the statute, that it is not necessary that only such goods are exempted on which excise duty is in fact paid. There may be cases where duties is leviable under a statute but for various reasons the Government may not be levying duty, even such goods are exempted from payment of duty. This was rebutted by Shri Kourav by saying that grant of exemption is of no consequence .....

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ning is clear, effect should be given to the provisions by interpreting it in a manner which goes in furtherance to the intention for which a particular rule was legislated. If we analyze the words used in the entries in question, i.e. the relevant entries under all the statutory provisions as detailed herein above, we find that the words used are goods on which duty is levied under the M.P. Excise Act or goods on which duty may be levied under the M.P. Excise Act. Therefore, we are now required .....

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e is empowered under the Excise Act to levy duty on the same. It is also a admitted position that IMFL manufactured in the State and when sold within the State it is subjected to payment of excise duty. 17. At this stage, we deem it appropriate to take note of certain judgments having bearing on the issue in question. In the case of Alembic Distributers Ltd. and Anr. (supra), Entry 32 to Schedule II of the Central Provinces and Berar Sales Tax Act, 1947 was considered by a Division Bench of this .....

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he application, of this entry. It is sufficient if there is power under the relevant Act to impose such a duty. In the present case, the material Act is the Excise Act. In Section 2(6), 'excisable article' has been defined to mean 'any alcoholic liquor for human consumption'. 'Liquor' as defined in Section 2(13) includes 'all liquid consisting of or containing alcohol', Reading these two definitions together, medicinal and toilet preparations, which are liquids an .....

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h of the Karnataka High Court has held that an excisable good will not become a non excisable good only because it is granted exemption from payment of duty, the High Court was interpreting certain provisions of the Central Excise Act and the rules framed thereunder wherein the words used were "as being subject to a duty of excise". In the case of S. K. Pattnaik (supra), the Hon'ble Supreme Court considered certain questions while interpreting the provisions of Bihar and Orissa Exc .....

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t held that "excise duty" is essentially a duty on manufacture of goods and the taxable event is the manufacture of the excisable goods and "countervailing duty" according to the Hon'ble Supreme Court on the other hand is imposed when excisable articles are imported into the State. The Hon'ble Supreme Court referred to Section 27 of the Bihar and Orissa Excise Act and found that Section 27 is the charging section for both excise duty and countervailing duty and Sectio .....

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eld that since the taxable event for attracting excise duty or countervailing duty is the manufacture or import of excisable goods into the State, the charge of incidence of duty stands attracted as soon as the taxable event takes place and the facility of postponement of collection of duty under the Act or the rules framed thereunder, can in no way effect the incidence of duty on the imported goods. If we apply this principle to the facts and circumstances of the present case, then, the moment .....

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h an excisable good, merely because the State Government thought it appropriate not to levy any duty or deffer its collection that cannot be a ground to say that the exemption or protection available under the provisions of Section 15 or 16 of the Commercial Tax Act or the VAT Act is not applicable. In this regard, we may also take note of certain observations made by the Hon'ble Supreme Court in the case of McDowell & Co. (supra). In Para 25, 27, 28 and 29 various judgments of the Supre .....

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a duty, because it is much more convenient administratively to collect the duty tax in the case of most of the Indian Excise Acts) when the commodity leaves the factory for the first time, and also because the duty is intended to be an indirect duty which the manufacture or producer is to pass on to the ultimate consumer, which he could not do if the commodity had, for example, been destroyed in the factory itself. It is the fact of manufacture which attracts the duty, even though it may be coll .....

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d of collection does not affect the essence of the duty but only relates to the machinery of collection for administrative convenience." ... 27. In M/S. Guruswamy & Co. etc. v. State of Mysore & ors (2) Sikri, J. (as he then was), spoke for the majority and stated the ratio thus: "These cases establish that in order to be an excise duty (a) the levy must be upon 'goods' and (b) the taxable event must be the manufacture or production of goods. Further the levy need not b .....

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n or manufacture of goods but the method of collection will not affect the essence of the duty." 29. In A.B. Abdul Kadir & Ors. v. State of Kerala, (4) this Court restated the position thus: "Excise duty, it is now well settled, is a tax on articles produced or manufactured in the taxing country, Generally speaking, the tax is on the manufacturer on the producer, yet laws are to be found which impose a duty of excise at stages subsequent to the manufacture or production." Thus .....

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n can be postponed or deferred to a later stage and even exemption granted from collection. The Allahabad High Court in the case of Mohan Meakin Breweries Ltd. Vs. State of Uttar Pradesh & Ors. - (1977)6 CTR All 181 considered similar issues and after taking note of the law laid down by the Supreme Court in the case of R. C. Jall Parsi Vs. Union of India, so also various provisions of the Uttar Pradesh Excise Act of 1910 found that under Section 28 of the Uttar Pradesh Excise Act duty may be .....

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. Ltd. (supra), a Division Bench of this Court took note of Section 25 of the M.P. Excise Act and held that there cannot be any dispute to the effect that the State is not entitled to charge duty of customs including export duty which falls under Entry 83 of the list I of the Constitution. In the case of Lilasons Breweries Pvt. Ltd. (supra) export fee was being charged on Indian Made Foreign Liquor (Beer) and this levy of export fee/ export duty was challenged by saying that export duty cannot b .....

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ed as export duty, in real and infact is a duty of excise which is levied at the point of export of beer from M.P. to another State. It has been held in the aforesaid case after taking note of the provisions of Section 25 sub section (1)(b) and 1(e) of the M.P. Excise Act that when an excisable good manufactured within the State is subjected to duty at the point of its export outside M.P. the real nature of duty is not export duty but only excise duty and for upholding this preposition, reliance .....

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equal amount from a local branch of a Nationalized Bank or execute a bond in Form FL23. It is only after payment of this duty or guarantee for payment of duty by way of security that export is permitted and after the export is affected and duty paid in the State where the material is exported, refund can be claimed by producing a verification report with regard to consignment having paid duty in the exported State. It is therefore, clear from a complete reading of the statutory provisions and t .....

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then claim refund as contemplated under the provisions of Rule 12 and 13 of the M.P. Foreign Liquor Rules and if the verification report as contemplated under Rule 13 is not produced within a reasonable time, the amount paid gets forfeited. The aforesaid factual aspect, if analyzed in the backdrop of various legal provisions as are detailed herein above, clearly shows that IMFL manufactured in Madhya Pradesh and sold outside the State, is an excisable artcle on which duty may or can be levied by .....

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merely because the State Government is not levying any duty or is granting certain exemption or concession it cannot be said that it is not a excisable good on which duty is not levied. It is a good on which duty is leviable and once it becomes a excisable good on which duty is leviable, it comes within the category of tax free good as provided under Section 15 and 16 of the Commercial Tax Act and the VAT Act and imposition of duty under the Commercial Tax Act and VAT Act is clearly impermissibl .....

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ble to duty under the M.P. Excise Act and once it is found to be leviable to duty under the M.P. Excise Act, it becomes a tax free good, not liable for payment of commercial tax, sales tax or VAT, as the case may be, by virtue of Entry 18 or 47. The contention of Shri Kourav to say that there is no leviability on IMFL exported out of Madhya Pradesh is not correct. Once it is a excisable good, excise duty can always be levied, but merely because the State Government does not levy excise duty, in .....

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radesh, Rule 12 has been framed, so that the manufacture is required to pay excise duty only once, i.e. either in the State of M.P. or in the State where it is exported. The Rule as formulated goes to show that the intention of the rule makers were that foreign liquor manufactured in State of M.P. and exported to any other State even though a excisable good is exempted from payment of excise duty in M.P. subject however, to the condition that they pay excise duty in the State to which the good a .....

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t advanced by Shri Kourav in the matter of existence of alternate remedy. The question of existence of alternate remedy has already been considered by the Supreme Court in the case of Paradip Port Trust (supra); Balco Captive Power Plant (supra) and by Division Bench of this Court in the case of Commercial Engineers & Body Builders (supra) and it is well settled principle of law that if any action is found to be contrary to law or unsustainable, then relegating a party to take recourse to th .....

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