TMI Blog2018 (5) TMI 1063X X X X Extracts X X X X X X X X Extracts X X X X ..... e fee' and is remaining part of the consideration for the licence - MMGQ is nothing but 1/12th part of the AMGQ and the ''monthly installment of licence fee' is nothing but 1/12th of the part of the ''licence fee' in addition to the ''basic licence fee' and is payable every month. This in nutsell is the ''fixed fee system' referred in the long title of the Rules, 2002 and Rule 3 thereof which was accepted by the petitioner while accepting the licence and is the fee referred in Section 36 of the Act, 1910 - Rules 12 and 14 are not attracted in the present case. The petitioner is liable to pay the 'basic licence fee' and 'licence fee' in terms of Section 2(d) and 2(m) of the Rules, 2002 read with Section 36 of the Act, 1910 and Rule 19 of the Rules, 2002, which includes the monthly installment licence fee in respect of MMGQ which was part of AMGQ, which the petitioner had guaranteed to lift at the time of grant of licence and was also very well aware about the said facts - As regards the consequence of surrender of licence and cancellation as far as the State is concerned, they are similar, as, they entail a going back by the licence on the contractual obligation accepted by him. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t. Indira Devi Vs. State of U.P. and Ors. relying upon the Division Bench Judgment of this Court rendered in the case of Brij Kishore Jaiswal and Anr. Vs. State of U.P. and Ors. reported in 2011 (4) ADJ 558 (DB). As regards the judgment of the Division Bench in Rakesh Singh's case (supra) the learned Additional Chief Standing Counsel submits that the direction therein for refund of the security amount has been stayed by the Supreme Court in S.L.P. No. 32915(C) of 2012, which is still pending. The learned Additional Chief Standing Counsel has invited the attention of the Court to the Rules, 2002 in this regard to oppose the writ petition. It is not in dispute that the petitioner was granted a licence for retail sale of country made liquor for year 2002-03 (01.04.2002 to 31.03.2003) in District Lalitpur. He paid the basic licence fee, security money etc. and operated a retail liquor shop. He surrendered his licence on 28.10.2002. He was liable to deposit licence fee in respect of MMGQ till 31.03.2003 to the tune of ₹ 19,92,600/- but failed to deposit ₹ 2,97,778/-. Thereafter, recovery notices were issued to him for depositing of licence fee consequent to the surren ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urrender is the liability to pay the fee payable for the whole period of the licence. The licence in question was granted for one year i.e. 01.04.2002 to 31.03.2003 which is also the excise year. The proviso to Section 36 is revealing as it says that if 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 i.e. the licence fee referred hereinabove or any portion thereof, meaning thereby, in the normal course such licence fee has to be paid and if not paid it has to be recovered unless the Excise Commissioner orders the remittance of such fee or any part thereof under the proviso to Section 36. Now, the term ''fee' used in Section 36 has not been defined in the Act, 1910. Under Section 41(c) of the Act, 1910 the Excise Commissioner is empowered to make Rules prescribing the scale of fees or manner of fixing the fees payable for any licnece, permits or pass including any consideration for the grant of any exclusive or other privilege granted under Section 24 or Section 24-A or for storing of any intoxicant. The manner of fixing such fee is prescribed in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... art thereof' on such rates as notified by the Excise Commissioner in consultation with the State Government from time to time. The term ''licence fee' is defined in Rule 2(m) to mean ''the remaining part of consideration for grant of licence' for exclusive privilege of retail sale of country liquor under Section 24 of the Act, payable by the licensee ''in addition to the basic licence fee'. This sum shall be equal to the excise duty leviable on the AMGQ fixed for the shop. Thus, it is evident that the ''fee' for the licence in question as referred in Section 36 of the Act, 1910 comprises of the ''basic licence fee' and a ''licence fee'. The ''licence fee' is the excise duty leviable on the AMGQ which the licensee guarantees to lift for his retail shop during an excise year for the purpose of retail sale. This is a guarantee given by the Licensee at the time of grant of licence and he is bound by it, it being a contractual obligation entered into by him with open eyes. This is in addition to the ''basic licence fee' and is remaining part of the consideration for the licence. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Excise Commissioner. Clause (b) of Rule 20 is important, which shall be dealt with hereinafter. Rule 21 of the Rules, 2002 deals with cancellation of licence. In view of the scheme of the Act and Rules discussed hereinabove, it is evident that the fee payable by the licencee consequent to surrender of licence, as mentioned in Section 36 is the fee referred in Section 41(c) in respect of which the Excise Commissioner has the power to make Rules which have been made and they are the Rules, 2002, therefore, it is the ''basic fee' defined in Section 2(d) and ''licence fee' as defined in Rule 2(m), therefore, the term ''fee' used in Section 36 of the 1910 has to be read conjointly with provisions of the Rules discussed hereinabove and would accordingly mean as aforesaid. To elucidate further AMGQ is guaranteed by the licensee to be lifted by him for his retail shop during an excise year for the purpose of retail sale. MMGQ is nothing but 1/12 quantity of AMGQ, and monthly installment of licence fee is nothing but 12th installment of the licence fee as defined in Rule 2(m). It is part of fee payable by the licencee in terms of Section 36 con ..... X X X X Extracts X X X X X X X X Extracts X X X X
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