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Judgment
Heard Mr. K.N. Choudhury, learned senior counsel assisted by Mr. D.J. Das, learned counsel for the petitioners. Also heard Mr. P.N. Goswami,
learned Additional Advocate General appearing for respondent nos.1, 3, 4, 6 and 7, Mr. B. Gogoi, learned standing counsel appearing for respondent
no.2 and Mr. K. Gogoi, leaned Additional Senior Govt. Advocate appearing for respondent no.5.
The petitioner no.1 was formerly a licensee of bonded warehouse and the petitioner no.2 is one of the partners in the said firm. The learned senior
counsel for the petitioners submits that up to 31.08.2016, the licence of the petitioners were covered by the provisions of Assam Excise Act and
Assam Bonded Rules, 1965 and as per the provisions therein, excise duty etc. were leviable only on the excise with the bonded werehouse.
The Assam Excise Act, 2000 as well as the Assam Excise Rules, 2016 came into force w.e.f. 01.09.2016. It is also projected that by virtue of Order
No.EX.107/2016/19 dated 29.08.2016, the respondent no.3 had notified, amongst others, that the stocks held by the warehouses would be transitional
goods and would be liable for taxes and other duty as on the day the Assam Excise Rules, 2016 came into force. Accordingly, the learned senior
counsel for the petitioners submits that as there is no provision in the Act giving retrospective effect to the incidence of tax, levy or duty by way of
executive instructions, the retrospective effect to tax cannot be imposed. It is also submitted by referring to the documents annexed to the writ petition
that majority of the stocks of liquor on which tax was leviable have been rendered unfit for human consumption and therefore, it is submitted that tax
cannot be imposed on goods which is not fit for human consumption nor they can be sold because the licence of the petitioners has already been
cancelled. Accordingly, it is submitted that by the impugned order nos.III-103/2020-2021/11 dated 16.01.2021 and KA/EX-266/2019-2020/13 dated
30.01.2021, not only the Excise Department had initiated action against the petitioners as defaulter, but direction has been issued to the Deputy
Commissioner to take measures for recovery of the arrear levy and vat. Apprehension is expressed that the authorities may initiate coercive action
and take appropriate criminal action against the petitioners. Accordingly, the learned senior counsel for the petitioners presses for interim relief as
prayed in the writ petition, which is filed under Article 226 of the Constitution of India.
Opposing the prayer for interim relief, the learned Additional Advocate General for the State has submitted that the law as exists on date, the
incidence of duty, taxes and other leviables arise w.e.f. 01.09.2016, when the Assam Excise Act, 2000 and rules framed thereunder came to force
and therefore, notwithstanding that the liquor held by the petitioners was not consumable, incidence of levy of taxes had already occurred and
therefore, the State is within its rights to enforce recovery of duty and taxes.
Let a notice returnable on 04.08.2021 be issued.
As all the respondents are represented by respective departmental counsel and the learned Additional Advocate General, requisite additional copies of
the writ petition be furnish to them within 2 (two) days.
Considered the prayer for interim relief. The Court is of the considered opinion that in view of what is projected in this writ petition, the case calls for
a further enquiry. A prima facie case has been made out by projecting that incidence of tax and duty cannot be given retrospective effect and
moreover, the learned senior counsel for the petitioners has been able to satisfactorily project that the liquor on which demand of excise dues and
other refund has been made, is not fit for human consumption. Accordingly, the Court is of the considered opinion that an interim direction is called for
in this case restraining the respondents from taking coercive action against the petitioners for recovery of the excise dues till the next date of listing.
The Court is of the further opinion that it would be appropriate that the petitioners be directed to submit a detail representation to the respondent no.2,
i.e. the Commissioner of Excise, Assam and annex all the documents on which they intend to rely upon to be submitted by hand or by e-mail within 10
(ten) days from today and the respondent no.3 shall made an endeavour to pass appropriate orders thereon on or before 03.08.2021 so that result can
be communicated to the learned Additional Advocate General so as to place the same before the Court.
List on 04.08.2021.