IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 30265 of 2006(C)
1. P.K.CHANDRAN, S/O.KUMARAN,
... Petitioner
2. K.N.PHALGUNAN, S/O.NARAYANAN,
Vs
1. THE STATE OF KERALA REPRESENTED BY
... Respondent
2. THE COMMISSIONER OF EXCISE,
3. THE ASSISTANT EXCISE COMMISSIONER,
For Petitioner :SRI.M.C.JOHN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :28/05/2008
O R D E R
ANTONY DOMINIC, J
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W.P.(C).NO.30265/2006
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Dated this the 28th day of May, 2008
JUDGMENT
Challenge in this writ petition is against Exts.P6 and
P7.
2. Petitioners were defaulters of Abkari dues as on
31.3.1997. The Government of Kerala introduced Ext.P1
scheme offering reduction of 75% of the amount of interest
accrued on the rental and other dues as on 31.3.1997.
According to the petitioners, they have submitted Exts.P2
and P3 claiming benefit of Ext.P1 and orders were not
passed. As the cut off date for payment in terms of the
scheme was running out, petitioners approached this court
by filing O.P.No.25046/00, in which Ext.P4 interim order
was passed directing the petitioners to remit the admitted
amount in terms of the claim and furnish bank guarantee
for the disputed liability. Accordingly, the petitioners
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complied with the said order. The Original Petition was
finally disposed of by Ext.P5 judgment. In Ext.P5, this court
directed as follows.
“In the circumstances, the second respondent is
directed to call for the records pertaining to
payments and verify the liability after ensuring
that credit is given for full payments made by
the petitioners. The petitioners in any case will
be given amnesty benefit as petitioner has
complied with the interim order of this court.
However, if any balance liability is due i.e, if any
liability is left after granting rebate of 75% of
interest due up to 30.11.2000, then petitioners
will pay such amount along with 12% interest
per annum on the same before 31.1.2006. The
second respondent will immediately on
production of copy of this judgment verify
payments and adjustments and give a fresh
statement to the petitioners for clearing liability
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as above. In the event of default in payment by
the petitioners as above, they will forfeit the
amnesty benefit granted above.”
3. In pursuance there of, petitioners’ liability has been
quantified as per Exts.P6 and P7 and in terms there of
petitioner will have to make an additional payment of
Rs.5,15,67/- towards the liability. It is challenging this
quantification, made as per Exts.P6 and P7, that the writ
petition has been filed.
4. As is evident from Ext.P6 order, the liability has
been quantified, adding interest on the principal at 4.5%
and it is on that basis additional amount is found to be due
from the petitioner.
5. A reading of the extracted portion of the judgment
in O.P.No.25046/2000 shows that the respondents were
required to quantify the petitioners’ liability towards
principal and interest at the rate as applicable up to
30.11.2000. Thereafter, the petitioners should have been
given the benefit of Ext.P1 by reducing their liability to the
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extent of 75% there of. It is the amount so quantified which
the petitioners are made liable. The judgment further
directed for adjusting the amount that the petitioners have
paid in terms of Exts.P4 interim order including the bank
guarantee and if the liability stands discharged the
petitioner will be exonerated entirely and in case any
additional amount is payable, the petitioners are liable for
interest at 12%. Therefore, what is required is that the
respondents have to first quantify the petitioners’ liability
as on 30.11.2000 by adding interest at the rate applicable
and then give reduction applying Ext.P1.
6. Respondent No.3 has filed a counter affidavit. It is
stated that pursuant to Ext.P4 order petitioner remitted
Rs.3,18,087/- and furnished Bank guarantee for
Rs.3,05,000/-. It is stated that out of the amount remitted,
the entire arrears due in respect of shop No.4/93-94 of
Manjeri Range was adjusted and after closing that liability
the balance account available was Rs.203762. According to
the 3rd respondent, this amount was also adjusted against
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his liability as shown in Ext.P7, and even thereafter,
Rs.3,04,548/- was due from the petitioner. Respondent
would also contend that along with 12% interest as allowed
by this court, the total liability of the petitioner was
Rs.515067/-.
7. The factual position as above, is reflected in Ext.P7
statement of accounts also and I have not been able to find
anything irregular in the quantification of the petitioners’
liability. However, in the statement and the affidavit, what
remains unexplained is regarding the appropriation of the
Bank guarantee that was furnished by the petitioners as
ordered by this court in Ext.P4 order. Admittedly the
petitioners had furnished the bank guarantee and the
affidavit does not say that the same was encashed towards
any of their liabilities. If bank guarantee was available, that
ought to have been appropriated, and if it was done, a
substantial portion of the liability would have been wiped
off.
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8. For this reason, I find the matter needs to be re-
examined by the 3rd respondent. Accordingly, I dispose of
the writ petition, upholding Ext.P7 and the quantification of
the liability, but however, directing that the 3rd respondent
shall consider whether the Bank guarantee was appropriate
towards the liability of the petitioners and if it is not done,
the said respondent shall appropriate bank guarantee, if the
same is still valid, and quantify the liability of the
petitioners afresh. Once liability is quantified as above, it
will be intimated to the petitioners and thereupon, amount
if any due, will be paid by them, within one month
thereafter.
Writ Petition is disposed of.
ANTONY DOMINIC
JUDGE
vi.
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