TaxTMI 
TaxTMI 
2013 (7) TMI 602
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....ting tenders (the 2000-Tender) on 07.03.2000 for bottling and supplying of country made liquor in sealed bottles to retail sellers for the erstwhile State of Madhya Pradesh. 3. The Appellant as well as some others were the applicants in the 2000-Tender. The following three tenderers were successful to supply country made liquor for the areas mentioned below: (i) The Appellant for Raipur and Durg; (ii) Well Come Distillery Ltd. for Bilaspur, Raigarh and Korba; (iii) SOM Distillery Ltd. for Rajnandgaon and Bastar. 4. The State of Chhattisgarh was created on 01.11.2000. The aforesaid areas fell within the state of Chhattisgarh. The Commissioner issued the Circular requiring affixation of a hologram on the liquor bottles. 5. The Circular was applicable to the five districts namely, Raipur, Rajnandgaon, Durg, Dhamtari and Mahasamund only. The area of operation of the aforesaid three persons fell within the districts, where holograms were to be affixed. 6. The holograms were to be issued by the State Excise Department (the Department) at the cost of Rs. 1,120/- per ten thousand or 11.2 paise per hologram. 7. The Appellant complied with the same and the period of the 2000- Tender ....
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.... remand from the Supreme Court, the writ appeal of the Appellant was numbered as Writ Appeal - 116 of 2007. It has come up for final hearing before us. 17. It is relevant to point out that no dispute regarding price of holograms was raised by the other two successful tenderer namely SOM Distillery and Well-Come Distillery for any period. POINTS FOR DETERMINATION 18. We have heard counsel We are thankful to the counsel for the parties for looking into part of the judgement under the heading 'THE FACTS', 'POINTS FOR DETERMINATION', 'Ist POINT: NO DISMISSAL FOR ALTERNATIVE REMEDY' and 'APPENDIX'. Even then, if there are any mistakes, then they are ours. for the parties. The following points arise for determination in the case: (i) Whether the writ petition should be dismissed on the ground of alternative remedy; (ii) What is the nature of the Circular; (iii)Whether the Circular is supported by any statutory provision; (iv)Whether the Appellant is entitled to revision of rates because of the financial burden due to affixing of hologram; (v) Whether the Circular is valid; (vi) In case, the answer to the third point is in negative, then what relief may be granted to the Appellan....
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....quor covered by those wasted holograms. 26. In the Saraya Case, some wasted holograms could not be produced before the committee. Thus, in terms of the circulars, penalty equivalent to excise duty on the quantity of liquor covered by these wasted holograms was imposed. This imposition along with the circulars were challenged. 27. The Supreme Court upheld the challenge. The court observed that: 'A provision which confers powers upon a statutory authority in terms whereof a penalty is to be imposed, damages are to be paid for non-payment of excise duty, which in our opinion, must be done through a valid subordinate legislation and not by way of issuance of a circular letter.' 28. Nonetheless, the court also observed, 'The legislative field in regard to levy of excise duty is covered by Entry 51, List II of the Seventh Schedule of the Constitution of India. It may be true that the resort to regulatory measures can be taken by the State, but the same must be done in the manner laid down under the Act.' 29. In the present case, neither penalty nor damages equivalent to the excise duty on the liquor covered by the wasted holograms is being recovered nor challenged. The respondents a....
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....e charges of Rs. 10/- per quintal were levied by the State Government. The question was whether it could be included in the assessable value of molasses under the Central-Act or not. 36. The Supreme Court held that: * The cost of administrative charges did not fall within the normal price; * There was no question of deducting the same; and * It can not form a part of the normal price. However, the court also looked the problem from another point of view and observed that: * Under the UP-Act, the administrative charges amounted to tax; and * It could not be included in the assessable value under section 4(4)(d)(ii) of the Central Act. Other Cases 37. In the Modern-Breweries, and the Nagrik-Upbhokta cases, the court held that tax or fee cannot be levied without authority of law. In the Indian-bank case, the court held that a tax cannot be imposed without there being any authority of law. In these cases, the tax/ fee was stuck down as it was not supported by statutory provision, it was stuck down. 38. There is no dispute with the preposition that the tax cannot be levied without authority of law. But the question is, is there any authority of law for issuing the Circular req....
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.... has read and understood the Act and the Rules made thereunder as well as the terms and conditions of the tender form. The Appellant cannot say that he had no knowledge of the Rules. 46. Holograms are affixed on the top of the cap of the liquor bottle and are broken on opening of the cap. This was done in pursuance of the decision taken by the State Government to stop smuggling and evasion of excise duty (see discussion on the previous point). 47. The entire process of affixing holograms is nothing but a kind of sealing of the cap of the bottle by a kind of label ie hologram. 48. The affixation of holograms is merely a regulatory measure. This decision was taken by the State Government and direction in the form of the Circular was issued by the Commissioner to stop smuggling and evasion of excise duty under rule 4(12) of the Rules framed under the power conferred on the State Government under section 62 of the Act. It is supported by a statutory provision. 49. In the cases cited by the Appellant, the Supreme Court struck down the tax or fee as there was no statutory provision but it is not so in the present case; there is a statutory provision. 4th POINT: DAMAGES, RETURN OF PR....
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....it was disposed of when the use of national emblem was stopped; there was no challenge to the price of the hologram. However, the present petitioner never objected to the price of the hologram on any other ground during continuance of the 2000-Tender. 55. The second notice inviting tender was published on 05.03.2002. At that time, the circular was in existence. The Appellant knew very-well that it was to affix holograms on every bottle, which it was already doing from last ten months in the 2000-Tender. The Appellant undoubtedly gave its offer the second time after considering this aspect. 56. After being successful in the 2002-Tender for the period 01.04.2002 to 31.03.2004, the Appellant initially did not object to the same. He objected it for the first time after expiry of six months on 20.11.2002. Both times, there were two other successful tenderers. It is relevant to point out that the other successful tenderers never claimed any relief on account of charging 11.2 paise per hologram. 57. The Circular has statutory support as held in the preceding point. In the 2000-Tender, the Appellant never objected. In the 2002-Tender the offer was after considering price of the hologram....