IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 12459 of 2008(G)
1. NORMANDY BREWERIES AND DISTILLERY PVT.LT
... Petitioner
Vs
1. EXCISE INSPECTORS, NORMANDY BREWERIES
... Respondent
2. CIRCLE INSPECTOR OF EXCISE
3. DEPUTY COMMSSIONER OF EXCISE
4. COMMISSIONER OF EXCISE,
For Petitioner :SRI.E.K.NANDAKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice V.GIRI
Dated :02/04/2009
O R D E R
V.GIRI
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W.P.(C)No.12459 of 2008
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Dated this the 2nd day of April, 2009.
JUDGMENT
The petitioner, a company incorporated under the
Companies Act, holds a licence under the Kerala Distillery and
Warehouse Rules, 1968 framed under the provisions of the
Abkari Act.
2. The rules contemplated payment of
establishment charges by the licensee. The petitioner applied
for renewal of the licence for the period 2008-09 by Ext.P1.
The petitioner was informed that an expert committee has
been constituted to look into the grievance regarding the
fixation of the establishment charges and recovery thereof.
It is further mentioned that the actual fixation of the arrears
due from the petitioner could be done only after the
committee comes out with a revision and that the licence
cannot be renewed till then. Ext.P3 demand was served
thereafter, demanding an amount of Rs.53,37,701/-, stated
to be the arrears from 1995-98, along with a further sum of
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Rs.5,58,478/- stated to be the arrears resultant upon the pay
revision that had benefited the Government employees
during the said period. Ext.P3 has been challenged in this
writ petition.
3. Reference is made to an earlier order passed by
this court, Ext.P5 in W.P.(C)No.13476/04, wherein the
petitioner had challenged another communication from the
Excise Department requiring him to remit the entire arrears
as a condition for renewal of the licence for the period
2004-05. This court granted an interim order staying the
operation of Ext.P19 therein on condition that the petitioner
remits the amount in instalments. It is the petitioner’s case
that the entire amount was thereafter paid in instalments
and ultimately the writ petition was disposed of in terms of
the interim order. According to the petitioner, Rs.90 lakhs
was paid pursuant to the interim order passed by this court.
4. The petitioner contends that it is entitled to
know the basis on which the establishment charges were
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fixed. It is further contended that establishment charges
should be collected from the licensee, only for the persons
who are actually deployed and not for the number which is
notified as proposed to be deployed.
5. A representation was filed by the petitioner as
early as in 2006 as Ext.P9 before the Deputy Commissioner,
inter alia, asserting that the petitioner’s liability towards the
cost of establishment is only Rs.29,22,771/-, but they have
already remitted Rs.90 lakhs as per the High Court order.
The Deputy Excise Commissioner required the Excise
Inspector stationed at the petitioner’s distillery to give the
petitioner the basis of the calculation and calculate the
arrears as per G.O.(P)No.95/98/TD dated 28th April, 1989 and
also to prepare a statement on the basis of G.O.(P)
No.95/98/TD dated 28th April, 1989 and verify whether the
amounts are realisable in terms of the Government Order. In
other words, what is required is the determination of the
actual amounts due from the petitioner by way of
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establishment charges and dues will have to be calculated
with effect from 1995 and made current up to date.
6. I take note of the fact that the petitioner had
remitted Rs.90 lakhs pursuant to the interim order. This
could probably take care of the arrears. But, it is a matter
for determination by the appropriate authority in the first
instance. In the meantime, I do not find any reason for not
permitting the petitioner to carry on the business for the
period 2009-10, subject to payment of an ad hoc amount by
the petitioner to be credited in the course of preparing a
statement of establishment charges and the arrears in this
regard;.
In the result, the writ petition is disposed of in the
following terms:
(a) The 3rd respondent shall treat Ext.P9 as a request
made by the petitioner for drawing up a
calculation of the establishment charges along
with the applicable interest in terms of the Rules
and any other Government order fixing the
establishment charges.
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(b) A statement shall be furnished to the petitioner
within two months from the date of receipt of a
copy of this judgment. It is open to the petitioner
to file objections to the said statement within one
month from the date of receipt of a copy of the
statement.
(c) Thereupon, the Deputy Commissioner shall, within
one month thereafter, pass an order finally fixing
the establishment charges, the arrears and the
interest, if any, due from the petitioner at the
applicable rate. The Deputy Commissioner shall,
in doing so, give credit to any amounts remitted by
the petitioner and a final demand of amounts still
due from the petitioner shall be served along with
the order to be passed by the Deputy
Commissioner in the manner aforementioned.
(d) The entire process shall be completed as early as
possible, at any rate, on or before 5.10.2009.
(e) In the meanwhile, the distillery licence issued to
the petitioner under Rule 3 of the Rules shall be
renewed, subject to compliance with any other
formalities, on condition that the petitioner pays
an amount of Rs.10 lakhs towards establishment
charges on an ad hoc basis.
(f) It is made clear that this amount of Rs.10 lakhs
directed to be paid by this court is over and above
the licence fee that has to be paid by the
petitioner.
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The licence shall be renewed, as and when the
petitioner remits the amount of Rs.10 lakhs and licence fees,
subject to the compliance with the other formalities, as
mentioned above.
Sd/-
(V.GIRI)
JUDGE
sk/-
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