Indresh Kumar Sehgal vs State Of Uttarakhand And Others

Alok Singh, J

Brief facts of the present case are that license to run country made liquor shop was issued in favour of one Shiksha for the year 2018-19 on the basis of her highest bid. Allotment letter was issued on 26.04.2018. On 21.06.2018, Ms. Shiksha Agarwal made an application before District Magistrate, Dehradun to the effect that she has not made any application for including the name of petitioner as co-licensee in the aforesaid liquor shop. Again vide letter dated 08.08.2018 Shiksha protested and objected for making any person as co-licensee before District Magistrate, Dehradun. On 10.08.2018, a demand notice was issued only against Shiksha Agarwal. On 30.08.2018 and 31.08.2018, District Excise Officer directed the petitioner and Shiksha Agarwal to remain present before him. On 01.09.2018, petitioner had filed an affidavit before District Magistrate to the effect that Shiksha Agarwal is running shop solely and he had no role in the functioning and running of the said shop. On 04.09.2018, Ms. Shiksha Agarwal appeared before the District Magistrate and reiterated her stand. On 05.09.2018, Shikha Agarwal submitted an affidavit before District Magistrate to the effect that she is only and sole licensee of liquor shop and now, she wants to register Smt. Geeta Agarwal as her partner. On 07.09.2018, a demand notice was issued to the petitioner and Ms. Shikha Agarwal. Again vide letter dated 13.09.2018, petitioner informed the District Excise Officer that he is not the co-licensee of the shop, therefore, liability to deposit the revenue lies on Ms. Shikha Agarwal. On 27.09.2018, again a demand notice was issued by District Excise Officer against the petitioner and Ms. Shikha Agarwal. On 29.09.2018, petitioner sent a notice through his Advocate to the respondent authorities. Without considering the notice of the petitioner, again a notice was issued to the petitioner and Ms. Shikha Agarwal on 26.10.2018 to the effect that they are debarred from getting any license in future and for recovery of the state revenue. Petitioner preferred an appeal before Excise Commissioner. Learned Excise Commissioner dismissed the appeal of the petitioner on the ground that petitioner has not deposited 25% of the disputed amount of tax in terms of provision of Section 11 of the Excise Act. Thereafter, petitioner preferred a recall/ review application, which was also dismissed by the Excise Commissioner. Feeling aggrieved, petitioner has challenged the orders passed respondents authorities.

Heard Mr. Shobhit Saharia, Advocate for the petitioner and Mr. V.D. Bisen, Brief Holder for the State of Uttarakhand and perused the record.

Mr. Shobhit Saharia, Advocate for the petitioner submits that petitioner has nothing to do with the shop in question. He was neither licensee nor co-licensee in the aforesaid shop. This fact is clear from the letters and affidavit submitted by Ms. Shikha Agarwal. He further submits that Appellate Authority without considering the second proviso of Section 11 (1) of the U.P. Excise Act, 1910 has dismissed the appeal and review application.

As per second proviso of Section 11 of the U.P. Excise Act, 1910, the Appellate Authority may for special and adequate reasons to be recorded in writing waive or relax the requirements of the preceding proviso in respect of such disputed amount of tax, fees, penalty or other dues.

In the present case, prima facie, it appears that petitioner is neither licensee nor co-licensee in the liquor shop in question, therefore, in my opinion, in the peculiar facts and circumstances of the case, Appellate Authority should have waived or relaxed the requirements to deposit 25% of disputed amount.

Accordingly, writ petition is allowed. Orders passed by Excise Commissioner are set aside. Excise Commissioner is directed to hear the appeal of the petitioner by granting benefit of second proviso of Section 11 (1) of the Excise Act. Till decision is taken by the Excise Commissioner on the petitioner's appeal, recovery of the amount qua petitioner pursuant to the order dated 26.10.2018 passed by Collector shall remain stayed.