TMI Blog2018 (7) TMI 2056X X X X Extracts X X X X X X X X Extracts X X X X ..... sealed on different occasions as stated in the writ application without affording the petitioner a reasonable opportunity to show cause. There is no denial of the statement of the petitioner that the order of suspension was passed without show cause notice to the petitioner by the Excise Commissioner and that the Excise Commissioner was not competent in law to pass such order of suspension. The prayer made by the petitioner to hold and declare that the repeated sealing and closure of the licensed premises of the petitioner for a total period of 95 days is wholly without any authority in law, and therefore has no liability for payment of the differential amount and license fee for the period of unlawful and illegal closure is fit to succeed and be allowed. The Principal Secretary, Registration, Excise and Prohibition Department, Government of Bihar and the Excise Commissioner, Government of Bihar, are directed to consider the quantum of the license fee and the excess differential amount recovered from the petitioner(s) in all these cases for the period their premises remained unlawfully sealed/closed and refund the entire excess amount to the petitioner(s) within a period of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ame liable for payment of license fee and differential amount on the entire MGQ of Zone-11. Further the petitioner was required to establish PET bottles manufacturing plant at Muzaffarpur with the effective date for start of production of country liquor in PET bottles from 01.02.2015. 4. It is not in dispute that the petitioner, as per the requirement of tender notice and the order of grant, established a manufacturing plant but on 13.12.2015 vide annexure-4 to the writ application, the Superintendent of Excise, Muzaffarpur sealed the manufacturing premises of the petitioner on the allegation of non-supply of country liquor as per demand. It is stated that the license of the petitioner was neither suspended nor cancelled. 5. The petitioner challenged the action of the Superintendent of Excise, Muzaffarpur in C.W.J.C. No. 1364/2016 before this court. The writ application was filed on 11th January 2016 and on urgent motion the matter was fixed on 20th January 2016. The case was finally heard on 25th of January 2016 by Hon ble Division Bench of this court and after hearing the court was pleased to pass final order quashing the order dated 13th December 2015, holding ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... recording the reasons as aforesaid with liberty granted to the petitioner to approach the court with appropriate application, in future. It is in these conditions that the petitioner, after disposal of the writ application filed an application before the Collector, Muzaffarpur for refund of the license fee and the differential amount for a total period of 55 days i.e. from 13.12.2015 to 04.02.2016 but no action for refund of the amount has been take by the authorities, hence the present writ application has been preferred. 8. A counter affidavit has been filed by the Excise Superintendent, Muzaffarpur in which he has supported his action taken in the matter of sealing of the premises for the alleged non-supply of country liquor as per the demand of the petitioners. It is alleged therein that the petitioner had failed to comply with the departmental instructions issued from time to time. In the counter affidavit filed by a Special Superintendent of Excise (Headquarter), it is stated that in terms of the tender notice the petitioner was required to obtain license in Excise Form No. 27 from the licensing authority of the concerned district and to start manufacture and wholes ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended by Amendment Act 2016) the State Government in the Department of Registration, Excise and Prohibition issued notification no. 1391 dated 31.03.2016 (published in Bihar Gazette Extraordinary No. 258 dated 31.03.2016) imposing absolute ban on manufacture, bottling, distribution, sale, purchase, possession and consumption of country liquor in the whole of the State of Bihar w.e.f. 01.04.2016. For effective implementation of the new Excise Policy, further guidelines were issued vide resolution dated 27th January 2016 published in Bihar Gazette on 4th February 2016 (Annexure-B to the counter affidavit). In terms of the said notification it was clearly stipulated that in view of the ban on sale/manufacture/consumption of country liquor with effect from 01.04.2016, the remaining stocks of country liquor available at the manufacturing premises, BSBCL Godowns and retails shops shall be destroyed after sale hour of 31.03.2016. In view of this decision, the remaining stocks of country liquor available in the various godowns of BSBCL in the State and in the manufacturing premises of various manufacturers including the petitioners and retailers were destroyed after sale hour of 31.03.2016 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of an amount of ₹ 72,85,790/- against demand of differential amount and the petitioner moved this court vide I.A. No. 5509/2017 seeking an order of restraint against the encashment of bank guarantee. This court vide its order dated 02.08.2017 directed that further action in pursuance of the order dated 31.07.2017 shall be kept in abeyance till next date, the interim order was continued thereafter. The Superintendent of Excise, Muzaffarpur has filed a counter affidavit to the Interlocutory Application wherein he has stated that the petitioner is a defaulter in payment of requisite amount of differential money between the base rate and tender rate, therefore, it was rightly decided to adjust the due amount of ₹ 72,85,790/- out of the bank guarantee of ₹ 1 crore deposited by the petitioner, and, accordingly, the bank was requested to send draft of ₹ 72,85,790/-. It is submitted that the petitioner is under a contractual obligation to deposit the differential amount between the base rate and tender rate within the stipulated period. (ii) C.W.J.C. No. 8570/2016 14. In this case the petitioner is seeking refund of the differential amount r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d upon the judgment of Hon ble Supreme Court in the case of Dabur India Limited vs. State of U.P. since reported in 1994 SCC 113 to submit that the government of course is entitled to enforce payment and take all legal steps for recovery of its dues but the government cannot play dirty games with the citizens of this country and force them in making payment which they are not legally obliged to make. If any money is due to the government, government should take steps but not the extra legal steps from manufacturers. It is submitted on behalf of the petitioner that the closure of the premises being totally unlawful, the petitioner would be entitled for recovery as claimed. (iii) C.W.J.C. No. 7423/2016 16. In this case the petitioner was awarded the exclusive privilege and consequential license for manufacture and supply of country liquor in Rohtas Zone (Zone-4) for the period 2014-19 by order dated 13.10.2014 as contained in Annexure-2 to the writ application. The petitioner s case is that his premises were closed for the period 29.02.2016 to 04.03.2016 and from 18.03.2016 to 31.03.2016 on totally unlawful grounds. It is submitted that while suffering from un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rit application, the license of the petitioner was cancelled which was again challenged by filing an amendment application in this court. On 20.04.2016 vide Annexure-10 to the writ application, the writ application filed by the petitioner was allowed and the impugned order suspending and cancelling the petitioner s license was quashed and set aside. It is submitted that the petitioner filed his application for refund of differential amount, license fee from 02.02.2016 to 31.03.2016, excise duty paid in advance, cost of unutilized raw material and packaging material for the period and cost price of country liquor supplied to BSBCL and the quantity which was destroyed on 31.03.2016. A copy of the application dated 29.04.2016 has been brought on record as Annexure-11 to the writ application. Submission of the petitioner is that they are entitled for payments and refunds as claimed in the writ application. 18. In course of hearing, the attention of this court has been drawn towards the conclusive part of the judgment of the Hon ble Division Bench in C.W.J.C. No. 2704/2016 wherein it is recorded that the authorities have not only assumed a power not bestowed upon them, but ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ring premises of the petitioner was again sealed on 17.03.2016 by the Inspector of Excise, Sadar stating that the Secretary, Excise and Prohibition Department has directed to seal the premises on the pretext of Inspecting the premises. In this connection, reference has been made to Annexure-19 19/1 to the writ application wherein, according to the petitioner conflicting stands have been taken by the Inspector, Excise, Sadar, Rohtas. In Annexure-19 while making allegations that the management is manufacturing country made liquor in PET bottles in half hearted manner, it is also stated that there are arrears of wages to the workmen and that despite directions given to the management to remove the discrepancies appearing in the manufacturing premises and to make adequate arrangement of workmen in order to maintain the supply, the management had supplied to BSBCL Sasaram and Bhabhua only 36400.0 LPL and 20800.0 LPL during the month of February 2016. According to Annexure 19 due to lesser supply by the management of this company, there were chances of litigations against the department at the instance of the retailers licensee who have deposited the cost price and tax for the purpose ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sion of the license and without any show cause notice, the petitioner had moved before the Board of Revenue, Bihar and the impugned order was stayed to the extent of the demand which has remained unpaid and disputed and only thereafter the manufacturing premises of the petitioner was unsealed on 04.03.2016, have also remained uncontroverted. 24. Further statement of the petitioner in paragraph-29 of the writ application and the statement that due to unlawful sealing certain number of tankers containing rectified spirit grade-1 which were brought to the factory on permit issued by the Excise authorities could not be unloaded and the same was returned to the concerned factory by the Excise Department but the petitioner has not been paid the value of the aforesaid quantity of rectified spirit Grade-1 to which the petitioner is entitled to are also not specifically controverted in the counter affidavit. 25. One thing is admitted that prior to sealing of the premises on various occasions the license of the petitioner was neither suspended nor cancelled by the authorities of the Excise Department, on one occasion when the Excise Commissioner passed an order dated 20.0 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that in the case of M/s Welcome Distilleries also the premises of the petitioner was sealed on different occasions as stated in the writ application without affording the petitioner a reasonable opportunity to show cause. There is no denial of the statement of the petitioner that the order of suspension was passed without show cause notice to the petitioner by the Excise Commissioner and that the Excise Commissioner was not competent in law to pass such order of suspension. The various judgments of this court as contained in Annexure-14 series are there to support the contention of the petitioner. 29. We are, therefore, of the view that the prayer made by the petitioner to hold and declare that the repeated sealing and closure of the licensed premises of the petitioner for a total period of 95 days is wholly without any authority in law, and therefore has no liability for payment of the differential amount and license fee for the period of unlawful and illegal closure is fit to succeed and be allowed, and we do so accordingly. 30. In the aforesaid view of the matter now in all the four writ applications there are adjudications to the effect that the sealing of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... epartment, Government of Bihar and the Excise Commissioner, Government of Bihar, to consider the quantum of the license fee and the excess differential amount recovered from the petitioner(s) in all these cases for the period their premises remained unlawfully sealed/closed and refund the entire excess amount to the petitioner(s) within a period of three months from the date of receipt/production of a copy of this orders. 33. As regards the claim of the petitioner(s) for compensation to the extent of the value of the finished foods and raw materials including packing materials which according to them could not be liquidated by 31.03.2016 due to unlawful closure of manufacturing premises, we further direct the aforesaid authorities to consider the claim of the petitioner(s), examine the materials which may be brought before them by the petitioner(s) and take a decision with respect to their claim for compensation in accordance with law within a period of six months from the date of receipt/production of a copy of this order. In case the petitioner(s) do not feel satisfied with the decision of the competent authority as regards the claim of the petitioner(s) for refund of l ..... X X X X Extracts X X X X X X X X Extracts X X X X
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