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TMI Blog2018 (5) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... an be resettled as an interim measure as also a regular measure for the remaining part of the excise year under Rule 20 of the Uttar Pradesh Excise (Settlement of Licences for Retail Sale of Country Liquor) Rules, 2002 (For short '' the Rules, 2002'). Learned counsel for the petitioner has relied upon a Single Judge Bench judgment of this Court reported in 2005 (3) AWC 2879; Smt. Indira Devi Vs. State of U.P. and Ors., a Division Bench judgment of this Court reported in [2012 (8) ADJ 1 (DB) (LB)]; Rakesh Singh Vs. State of U.P. and certain revisional orders passed by the State Government which support the case of the petitioner as aforesaid. On the other hand learned Additional Chief Standing Counsel has submitted that the ''licence fee' in addition to the ''basic licence fee' is part of the consideration payable for the licence, therefore, the same is also recoverable from the petitioner. As regards the Single Judge Bench judgment in Smt. Indira Devi's case (supra) the learned Additional Chief Standing Counsel informed that the same had been set-aside by the Supreme Court in Special Appeal No. 2161 of 2007 and the matter had been remanded ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Act, 1910 which reads as under:- "36. Surrender of licence to sell by retail. - Any holder of a licence to sell by retail under this Act may surrender his licence on the expiration of one month's notice in writing given by him to the Collector of his intention to surrender the same and on payment of the fee payable for the licence for whole period for which it would have been current but for such surrender : Provided that, if the Excise Commissioner is satisfied that there is sufficient reason for surrendering such a licence, he may remit to the holder thereof the sum so payable on surrender, or any portion thereof. Explanation. - The words "holder of a licence" as used in this section includes a person whose tender or bid for a licence has been accepted, although he may not actually have received the licence." On a bare reading of the said provision what comes out is that one month notice in writing is to be given by the holder of the licence to sell by retail to the Collector making known his intention to surrender the same and on expiry of the said period the licence would stand surrendered but subject to payment of the fee payable for the licence for the whole per ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... city is to be made by the Licensing Authority through daily newspapers having circulation in that area and a list of the retail shops of country liquor for which the Collector proposes to grant licence is required to be exhibited ''along with shopwise basic licence fee, annual minimum guaranteed quantity, licence fee, security amount etc. The term ''Annual Minimum Guaranteed Quantity' (hereinafter referred to as ''AMGQ') has been defined in Rule 2(c) to mean the quantity of "strong" country liquor, as fixed by the Licensing Authority in accordance with the general or specific instructions issued by the Excise Commissioner and ''guaranteed by the licencee to be lifted by him for his retail shop during an excise year for the purpose of retail sale. In the event of a licence being granted after the commencement of the excise year such AMGQ would be reduced proportionately. The term ''basic licence fee' is defined in Rule 2(d) to mean ''part of consideration for the grant of licence' for the exclusive privilege of retail sale of country liquor under Section 24 of the Act payable by the person selected as licencee '&# ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hout delay for the remaining period of the excise year." It, inter alia, speaks of steps to be taken by the Licensing Authority on receipt of an application/notice of surrender, ''for recovery of all outstanding excise dues' from its security deposit and refund the balance amount after obtaining orders of the Excise Commissioner. This provision is to be read with Section 36 of the Act, 1910. It also speaks of the requirement for the Licensing Authority to proceed for resettlement of the shop without delay for the remaining period of the excise year. Much mileage was sought to be drawn by the learned counsel for the petitioner on this provision to submit that there is no question of depositing the fee for the MMGQ, as, the Rule itself postulates the resettlement of the licence for the remaining period of the excise year, therefore, it takes care against loss of revenue to the State. Rule 20 refers to interim settlement of shop i.e. after surrender, suspension or cancellation. This rule does not draw any distinction between surrender, cancellation or suspension as far as such settlement is concerned. Such settlement can be made for a period of 14 days at one stretch but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... thereby, this shall be adjusted against the subsequent regular settlement of the shop with the new licencee and shall not have any favourable bearing on the licensee who has surrendered his licence as has already been held by this Court in Smt. Indira Devi's case (supra), which was decided after remand by the Supreme Court. Although, this point has not been argued on behalf of the petitioner, nevertheless, as it was relevant, therefore, it has been considered. As regards the contention of the learned counsel for the petitioner that there has to be some distinction between surrender and cancellation of licence and that cancellation is on the grounds mentioned in Section 34 of the Act, 1910 read with Rule 21 of the Rules, 2002 and it is a penal action, whereas, surrender of licence is not so, therefore, there has to be some distinction in the matter of forfeiture/ recovery of fee for the remaining period of the licence, though it appears to be attractive at first blush, but, in view of the expressed provision of law discussed hereinabove and the requirement of strict interpretation of a Taxing statute the same is not acceptable. The provisions of the Act and the Rules discussed ..... 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