TMI Blog2018 (10) TMI 145X X X X Extracts X X X X X X X X Extracts X X X X ..... ct - Rectified spirit is not fit for human consumption and by notification dated 01.04.2011, rectified spirit is not an excisable article. The Constitution Bench of the Apex Court in Mohd. Hanif Quareshi & others v. State of Bihar, [1958 (4) TMI 110 - SUPREME COURT] while dealing with the meaning, scope and effect of Article 14, reiterated what was already explained in earlier decisions that to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) such differentia must have rational relation to the object sought to be achieved by the statute in question. The Apex Court further stated that classification might be founded on different basis, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. Petition dismissed. - W.P. No.6317/201 - - - Dated:- 18-9-2018 - Shri P.K. Jaiswal And Shri Vivek Rusia, JJ. For the Pet ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... undue hardship. The petitioner has prayed for the following relief :- a. Issue a writ of certiorari or any other appropriate order or direction in the nature of certiorari under Article 226 of the Constitution of India calling for all paper and proceedings of the Petitioner's case pertaining to the for the period 2015-16, and after examining the validity, legality and propriety thereof, quahs and set aside the Assessment order dt. 24.7.2017 (Annexure P/3) passed by the respondent No.2, for the period 2015-16, under Madhya Pradesh Vat, Act, 2002. b. to declare that the Assessment order dated 24.7.2017 (Annexure P/3) passed by the respondent No.2, is ultra vires Article 14, 19, 265 of the Constitution of India and also ultra vires the provisions of the Madhya Pradesh Vat, Act, 2002. c. to issue an appropriate writ, order, direction or declaration, that spirit (Rectified Spirit/ Extra Neutral Alchohol) used for manufacturing of potable liquor, falls within the meaning and scope of 'liquor' as provided for in the Madhya Pradesh Vat, Act, 2002 read with Madhya Pradesh Excise Act, 1915; d. issue a Writ of Prohibition or any other appropriate writ, order or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Constitution of India directing the respondents to hear the Petitioner's statutory appeals under Section 46(5) or thereafter Section 46(6) or thereafter Section 53(5) of the Madhya Pradesh VAT Act, 2002, unconditionally and without requiring any pre-deposit to be made thereunder; j. pass any other relief(s), which this Hon'ble Court deems fit and proper including the cost of the Petitioner, looking to the facts and circumstances of the case may be granted in the interest of justice. 5. The main ground is that the issue involved in this writ petition is covered by the decision of the Division Bench of Principal Seat at Jabalpur, in the case of Gwalior Alcobrew Pvt. Ltd. V/s. State of M.P. Ors. , passed in W.P.No.2366/2016 on 26.8.2016. 6. Shri P. Jain, learned Government Advocate for the respondents/State submitted that the legislative provision cannot be struck down as being arbitrary, irrational or unreasonable. 7. The contention of the learned counsel for the respondent is that Section 46 of the M.P. VAT Act, 2002, provides appeal against the order passed by any officer subordinate to Commissioner, Commercial Tax, appeal will lie before th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... te authority to waive or reduce the quantum of pre deposit when such provision exists in other Act. The Division Bench of M.P. High Court in Writ Petition No.5159/2012, ( M/s. K.S. Oils Ltd V/s. State of M.P. Ors. ) wherein alternative prayer of such petitioner was thus :- (ii) that the common order dated 29.5.2012 Annexure P/1 may kindly be quashed and the matter may kindly be remanded to the appellate Authority for decision of merits without insisting for deposit of percentage amount as required under the provisions of Section 46 (5) of the VAT Act. 10. The Division Bench dismissed the writ petition with the following observations :- Indeed, there is no provision of any exemption under the vat act and no power are vested in the appellate authority to pass a contrary order de hors to Sec. 45(5) of the VAT Act. According to us, such provision is mandatory and the appeal before the Appellate Authority cannot be admitted until and unless 5% of the tax is deposited since the assessment order was passed in exparte. If the statue does not permit to file any appeal without depositing the aforesaid tax, not only the Appellate Authority but this court too under writ j ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pplication within a period of one month from the date of the order shall be subject to petitioner's depositing 10% amount as indicated herein above on or before 3rd February, 2015 and appearing before the Appellate Authority on 3rd February, 2015. 12. The Orissa High court in the case of Jindal Stainless Ltd V/s. State of Orissa in W.P.No.(C)15962 of 2014 by order dated 07.8.2012 in Para 23 of the order has held thus :- 23. In view of the above, we are of the considered view that the provisions of Sec.77(4) of OVAT Act requiring deposit of 20% of the tax or interest or both in dispute as a precondition for entertaining an appeal against the order enumerated under Sec.77 (1) of the OVAT Act does not make the right of appeal illusory and such a condition is within the legislative power of the State Legislative and cannot be held to be unreasonable and violative of Article 14 of the Constitution. 13. The Delhi High court in the case of Schneider Electric India Pvt Ltd . V/s. Government of NET of Delhi in C.M. No.11118/2006 wherein petitioner contended that if a sum is disputed then its deposit cannot be made a precondition for entertaining the appeal, in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ticle as per Section 25 of Excise Act, 1915, but after notification No.F B-1-30-2008-2-v(13) dated 01.04.2011, the State Government makes the following amendment in the Department's notification dated 04.07.1959, namely :- Amendment In the said notification, in Chapter II, in section I, in Clause XII, in the Schedule, in item 3, sub-item (e), regarding the duty on rectified spirit or absolute alcohol, and entries relating thereto shall be omitted. 16. Therefore, it is clear that rectified spirit is not alcohol and not fit for human consumption and hence, not an excisable article. In absence of such excise ability under the M.P. Excise Act, the question of levying excise or power to levy does not arise and hence the goods in question do not fall within preview of Entry 47, List I of VAT Act to be considered Tax free goods. 17. Section 2(6) of M.P. Excise Act, 1915 says that excisable article means (a) any alcoholic liquor for human consumption, hence liquor is fit for human consumption and excisable article, but after 1.4.2013 liquor is also taxable by Entry 56 Schedule II of VAT Act. Rectified spirit is not fit for human consumption and by notification dated ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... shi others v. State of Bihar, reported as AIR 1958 SC 731 while dealing with the meaning, scope and effect of Article 14, reiterated what was already explained in earlier decisions that to pass the test of permissible classification, two conditions must be fulfilled, namely, (i) the classification must be founded on an intelligible differentia which distinguishes persons or things that are grouped together from others left out of the group and (ii) such differentia must have rational relation to the object sought to be achieved by the statute in question. The Apex Court further stated that classification might be founded on different basis, namely, geographical, or according to objects or occupations or the like and what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. 21. In Mohd. Hanif Quareshi ( supra ), the Constitution Bench further observed that there was always a presumption in favour of constitutionality of an enactment and the burden is upon him, who attacks it, to show that there has been a clear violation of the constitutional principles. It stated in paragraph 15 (at pgs. 740- 741) of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t some constitutional infirmity has to be found (iii), the court is not concerned with the wisdom or unwisdom, the justice or injustice of the law as the Parliament and State Legislatures are supposed to be alive to the needs of the people whom they represent and they are the best judge of the community by whose suffrage they come into existence (iv), hardship is not relevant in pronouncing on the constitutional validity of a fiscal statute or economic law and (v), in the field of taxation, the Legislature enjoys greater latitude for classification. 24. On due consideration and the law laid down by the Apex court in Petition (s) for Special Leave to Appeal (C) No. (s)No.2895/2017 ( State of M.P. Ors. V/s. Gwalior Alcobrew Pvt. Ltd. ) dated 17.4.2017, and Vijay Prakash D. Mehta Anr. V/s. Collector of Customs (Preventive) Bombay , reported as 1988 (4) SCC 402, we are not inclined to struck down the validity of the aforesaid provisions. However, liberty is granted to the petitioner to assail the order by filing a statutory appeal before the appellate authority. In case, such an appeal is filed along with predeposit and the application for condonation of delay as well as ..... X X X X Extracts X X X X X X X X Extracts X X X X
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