IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 18324 of 2008(F)
1. TONY SIMON M
... Petitioner
Vs
1. THE ASSISTANT EXCISE COMMISSIONER
... Respondent
2. THE EXCISE CIRCLE INSPECTOR ,
3. THE DEPUTY TAHSILDAR (RR)
4. THE VILLAGE OFFICER
For Petitioner :SRI.C.A.CHACKO
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :24/07/2008
O R D E R
ANTONY DOMINIC, J.
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No. 18324 OF 2008 F
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Dated this the 24th day of July 2008
J U D G M E N T
The challenge in this writ petition is against Ext. P4, revenue
recovery notice issued to the petitioner for realising his Abkari dues.
Petitioner was the licensee of a foreign liquor shop during 1997-98.
According to the petitioner, recognizing the fact that he had no
amount in default, even the interest on security deposit released as
per Ext. P1, way back in 1998.
2. Petitioner submits that despite this, in 2004, by Ext. P2 an
amount of Rs.35,551/- was demanded from him. On receipt of Ext.
P2 he replied by Ext. P3 asserting that no amount was due from him
and that inspite of this, recovery proceedings have been initiated.
3. In this writ petition, counter affidavit has been filed by the
2nd respondent. According to the respondents, in the audit report
for 1997-99 it was found that an amount of Rs.19,246/- was in
arrears from the petitioner. It is stated that after adjusting
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Rs.4,086/- paid by the petitioner on 2.2.1998, the balance amount
due from the petitioner was found to be Rs.15,160/-. According to
the respondents when notice was issued calling upon the petitioner
to pay the amount, he contested the notice. As he did not pay the
amount due the recovery proceedings were initiated.
4. I have heard the counsel for the petitioner and also the
learned Govt. Pleader.
5. Ext. R2(a) is the audit report relied on by the respondents.
From Ext. R2(a) what is seen is that monthly kist payable by the
petitioner was Rs.4,05000/-. It is stated that the petitioner
committed default in paying the aforesaid amount for October
1997. From out of the additional security, Rs.3,36,900/- was
adjusted on 23.1.1998 towards the kist due for the month of
October, 1997 and that the balance amount was remitted by the
petitioner only on 2.2.1998 and hence interest is claimed for the
belated payment.
6. Counsel for the petitioner contends that since deposit was
available for the department, the department could have
immediately appropriated the same in October, 1997 itself.
According to him, he cannot be penalised for the default of the
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respondents in taking timely action.
7. In my view that cannot be a justification to exonerate the
petitioner from his liability for interest. The question of
appropriation arises only when default is committed by a licensee.
In this case, petitioner committed default in October, 1997 and it
was therefore that, after complying with all the formalities,
appropriation was made from out of the additional security. Even
that amount was insufficient and the shortage was made up by the
petitioner only on 2.2.1998. If that be so, the appropriation was
necessitated on account of the default committed by the petitioner
and as a consequence thereof, delay was caused in the respondents
realising the amount. If delay was caused as above, in terms of the
rules, licensee is bound to be saddled with the liability for interest
as well.
8. In this view of the matter, I do not find anything erroneous
in Ext. P4.
Writ petition flails and is dismissed.
ANTONY DOMINIC
JUDGE
jan/-