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Judgment
Heard learned counsels for the petitioners Companies and learned Advocate General for the State.
As the issues involved in all these writ applications are the same, they have been heard together and are being disposed of by this common order.
The petitioners Companies are engaged in the business of distilling / compounding and blending of foreign liquor and bottling and selling the same,
for which they have been given license by the State Government, and for which they are governed by Rules (herein after referred to as the 'Rules'),
framed by the Board of Revenue, under the Bihar Excise Act, 1915.
In these writ applications, we are concerned with the Rules 9 and 36A of the said Rules, which read as follows:-
“9. The Commissioner shall appoint such officers and establishment as he thinks fit to the charge of a distillery.
In case of a distillery licensed solely for the purpose of the manufacture of denatured spirit or any other commercial spirit the distiller shall
bear the whole cost including leave and pension contributions and cost of uniform of such excise staff and establishment as may be
considered necessary by the Excise Commissioner for proper supervision.
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36A. The Excise Commissioner shall decide as to whether a wholetime or a part time excise staff is necessary for the proper supervision of
such operation in any such premises. The licensee shall pay to the Provincial Government such fees as may be determined from time to time
by the Excise Commissioner as the actual cost of the excise staff, employed for the purpose of this rule. The fees shall be payable by the
licensee at the end of each calendar month I the case of a part-time excise staff and by the 7th of each month in advance in a case of a
whole-time excise staff. These fees shall be in addition to any other fees payable under the Bihar and Orissa Excise Act.â€
Though these writ applications have been filed challenging the vires of Rules 9 and 36A of the aforesaid Rules framed by the Board of Revenue,
but in view of the law laid down by the Hon'ble Apex Court in Shree Krishna Gayanoday Sugar Ltd. Vs. State of Bihar and Others., reported in
(1996) 10 SCC 11, and the subsequent Judgment of the Patna High Court in McDowell & Co. Ltd. Vrs. The State of Bihar & Ors., reported in 2004
(3) PLJR 777, learned counsels for the petitioners have given up the challenge to the vires of the aforesaid Rules.
Having given up the challenge to the vires of these Rules, learned counsels for the petitioners have pointed out that the fees / costs leviable from
them for deployment of the excise staff in their premises, are not predetermined, and from time to time demands are made by the authorities, who
come out with any imaginary amount in the form of fees, without disclosing the actual expenses on such excise staff. In fact, by way of
supplementary affidavit in WP(C) No.1030 of 2012, it has been pointed out that one excise staff has been deputed for more than one distillery /
compounding and blending plants, but the entire expenses incurred upon such staff have been levied from each of the distillery / compounding and
blending plants, i.e., the petitioner company, as also from the other company(s), where such staff was deployed, without dividing the expenses
proportionately.
Learned counsels for the petitioners have also pointed out from the record, that it is not the case that only actual costs incurred in deployment of the
excise staff, in the distillery / compounding and blending plants, either on whole-time basis or on part-time basis, are being levied from the petitioners,
rather there are instances, in which, even the amount, more than actual expenses incurred on such staff have been levied from the petitioners
companies.
Learned Advocate General on the other hand, has opposed the prayer, and has placed reliance upon the decision of the Hon’ble Apex Court in
Government of Andhra Pradesh Vs. M/S. Anabeshahi Wine and Distilleries Pvt. Ltd. reported in (1988) 2 SCC 2, 5wherein the law has been laid
down as under:-
The perusal of the aforesaid provisions of the Act and the Rules leaves no manner of doubt that it was open to the appellant to grant the
exclusive privilege of manufacturing and selling wine etc. to the respondent only provided it was, apart from making any other payment,
also willing to pay the salaries and allowances referred to in the aforesaid provisions which for the sake of convenience have been
described as establishment charges, and which were sought to be recovered as such under the impugned notice of demand. The respondent-
Company was not under any obligation to take the licence. It was open to it to have refrained from taking any licence under the Act and the
Rules if it was not willing to pay the price as required by the government for the grant of privilege to manufacture and sell intoxicants. The
nature of the payment which a licensee such as the respondent is required to make to the State by reason of the State parting with the
privilege in regard to manufacture sale etc. of intoxicants came up for consideration before a Constitution Bench of this Court in Har
Shankar v. Deputy Excise and Taxation Commissioner. It was held that the amounts charged to the licensees are neither in the nature of tax
nor excise duty, but constituted the price or consideration which the government charges to the licensees for parting with its privileges and
granting them to the licensees. ----------------------.
In this connection, learned Advocate General has also placed reliance upon a decision of the Hon’ble Apex Court in State of M.P. and Ors. Vs.
KCT Drinks Ltd., reported in (2003) 4 SCC 748 taking the same view.
Placing reliance on these decisions, learned Advocate General submits that the State is entitled to recover the expenses incurred upon the excise
staff deployed in distillery / compounding and blending plants of the petitioners Companies.
There is no dispute to the submission to the learned Advocate General that the State is entitled to realise the expenses incurred by it in deployment
the excise staff in the distilleries / compounding and blending plants. The point to be decided in these matters are, whether in exercise of such power,
the State Government can levy the amount more than the actual cost incurred upon the excise staff deployed in distilleries / compounding and blending
plants, and further whether if one excise staff is deployed in more than one distillery / compounding and blending plant, can the State Government
recover the entire expenses incurred upon such staff, separately from all the distilleries / compounding and blending plants, in which such staff is
deployed. The only plausible answers to these questions can be, that the State Government can only realise from the distilleries / compounding and
blending plants, the actual expenses incurred on the salary, allowances etc., of the excise staff deployed in such distilleries / compounding and blending
plants, and in case one excise staff is deployed in more than one distillery / compounding and blending plant, the actual cost can be realised
proportionately from each of them. In no case the State Government can be allowed to levy the amount more than the actual cost incurred upon the
excise staff deployed in distilleries / compounding and blending plants, and further, in case one excise staff is deployed in more than one distillery /
compounding and blending plants, to recover the entire expenses incurred upon such staff, separately from all the distilleries / compounding and
blending plants, as allowing such practice shall amount to undue enrichment to the State Government in garb of the Rules 9 and 36A of the aforesaid
Rules, which these rules do not permit. A plain reading of both these rules clearly show, that they only permit the actual cost to be realised. In other
words, no extra amount can be levied from the companies, than the actual cost incurred by the State Government on deployment of the excise staff.
The other point to be kept into consideration is that the cost leviable under Rule 9 shall apply to only those distilleries, which are licensed solely and
wholly for the purpose of manufacturing either denatured spirit or any other commercial spirit, unfit for human consumption, but it would not include
those distilleries which are licensed for manufacturing along with spirits unfit for human consumption, also potable liquor, as clarified by the Hon'ble
Apex Court in Sri Krishna Gyanoday Sugar Ltd.’s case (supra). Similarly the fees leviable under Rule 36-A of the aforesaid Rules shall apply only
to the compounding and blending plants of the foreign liquor, as also clarified by the Patna High Court in McDowell's case (supra).
In the facts of these writ applications, the impugned demand notices are kept in abeyance, and we remand the matter back to the Respondent
Excise Commissioner, for re-determining the fees / costs leviable from the petitioners Companies, keeping in view of the aforesaid guidelines. The
Excise Commissioner, shall notice and give a hearing to the petitioners Companies, in course of re-determining of the costs / fees leviable from them.
In case, it is found, that proper amount had been levied from the company, there shall be no difficulty in such cases and the same amount shall be
charged again. In such cases, where it is found that excess amount had been charged, the concerned company would be entitled to refund /
adjustment of the extra amount, subject to the condition that the cost had not been passed over by the company to the customers. If the cost had been
passed over to the customers, in that case, the extra amount shall not be refunded / adjusted. In case it is found that lesser cost has been charged, the
actual cost shall be charged from the concerned company.
All these writ applications are accordingly, allowed, with the observations and directions as above.