TaxTMI 
TaxTMI 
TaxTMI 
2018 (7) TMI 2056
X X X X Extracts X X X X
X X X X Extracts X X X X
....s) to have suffered unlawful closure of its/their manufacturing and bottling plant. Since the issues involved in all the four cases are common and based on identical contentions of the parties, as prayed for on behalf of the petitioner(s) and consented on behalf of the State, all the writ applications have been heard together for the purpose of disposal. 2. Before we proceed to consider the grievances of the petitioner(s), it would be just and proper to take note of the individual facts of the four writ applications herein. (1) C.W.J.C. No. 8511/2016 3. It is the case of the petitioner that pursuant to a tender notice dated 31st January 2014 inviting applications for grant of exclusive privilege for manufacture and supply of country liquors in PET bottles published by the Department of Excise and Prohibition, Govt. of Bihar, the petitioner participated in the tender for award of the exclusive privilege and after undergoing of the process of the tender the petitioner was awarded exclusive privilege by order dated 04.03.2014 for Zone-11 constituting the districts of Muzaffarpur, Sitamarhi and Sheohar for the period 01.04.2014 to 31.03.2019 at the rate of Rs. 4.07 per 200 ML PET ....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... 2016 whereunder the records of the case were called for by the Hon'ble High Court, he suppressed and did not bring this fact to the notice of the Hon'ble court that on 20th January 2016 he had taken a decision to suspend the license of the petitioner for a period of 90 days. On the strength of the impugned order dated 20th January 2016 passed by the Excise Commissioner, suspending the petitioner's license, the Superintendent of Excise, Muzaffarpur refused to unseal the premises and issued a fresh order dated 30.01.2016 as contained in Annexure-10 to the writ application. 7. The petitioner again moved this court in C.W.J.C. No. 2380/2016 seeking quashing of the impugned order dated 20.01.2016 and also for refund of the license fee and differential amount calculated on the MGQ for the period of unlawful closure. During pendency of the said writ application, the Excise Commissioner, Bihar vide his order dated 04.02.2016 revoked his order dated 20.01.2016 and direction was issued to remove the seal of the manufacturing premises of the petitioner accordingly, the seal from the manufacturing premises of the petitioner was removed. In these circumstances C.W.J.C. No. 2380/2016 was disp....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ide circular no. 501 dated 03.02.2016 issued guidelines to all Collectors of the districts for effective implementation of the new Excise Policy. The same was reiterated vide circular no. 1216 dated 16.03.2016 as annexed vide Annexure-A & B to the counter affidavit. It is further stated that the State legislature enacted the Bihar Excise (Amendment) Act, 2016 amending Bihar Excise Act, 1915, it was published in Bihar Gazette (Extraordinary) bearing no. 258 dated 31.03.2016 and came into force at once. Vide Section 6(i) of the amending Act 2016, Section 19(4)(b) of 1915 Act was deleted and vide Section 6(ii) thereof Section 19(4) provided that "notwithstanding anything contained in this Act and the NDPS Act, 1985 the State Government, by notification, absolutely prohibit the manufacture, bottling distribution, sale, possession or consumption by any manufactory, bottling plant, license holder or any person in the whole State of Bihar or in any specified local area in respect of or all or any of the intoxicants either totally or subject to such condition as it may provide." 10. The counter affidavit further narrates that in exercise of powers under Section 19(4) of Bihar Excise Act,....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Excise Policy, 2015 the license of the petitioner in Excise Form No. 27 for wholesale supply of country liquor was not renewed after 31.03.2016. While admitting the grant in question was for a period of five years i.e. from 01.04.2014 to 31.03.2019, the respondent no. 9 points out condition no. 22 of the Notice Inviting Tender wherein, according to him, it has been made clear that the government reserves its right that in accordance with the legal prohibition policy the government shall stop supply of liquor for which the licensee shall not be entitled to get any compensation. It is stated and submitted that in view of the prohibition policy the grant in question became inoperative after 31.03.2016, and thus the license of the petitioner in Excise Form No. 27 for wholesale supply of country liquor was not renewed after 31.03.2016. The claim of the petitioner has thus been contested mainly on the strength of condition no. 22 incorporated in the tender notice which talks of 'non-payment of compensation'. 13. It appears that during pendency of the writ application the respondents were looking for encashment of the bank guarantee submitted by the petitioner, for recovery of an amoun....
X X X X Extracts X X X X
X X X X Extracts X X X X
....the appeal on the oral direction of the Principal Secretary, Department of Excise, Govt. of Bihar the premises of the petitioner was sealed on the pretext of the failure of the petitioner to pay the penalty. On 03.03.2016, the Member, Board of Revenue, stayed the order dated 22.02.2016 during pendency of the appeal. On 04.03.2016 vide Annexure-14 to the writ application the petitioner filed an application before the respondents authorities with a request to unseal the manufacturing premises but the request of the petitioner was not accepted and the order passed by the Board of Revenue was not complied with. Instead of complying with the order, the Excise Commissioner vide Annexure-19 to the writ application passed an order directing that unless the petitioner deposits the amount, the premises shall not be unsealed. It is the case of the petitioner that a licensed premises under the Excise Act can be sealed only upon suspension or cancellation of the license, admittedly in the present case the license of the petitioner during the period in question was active and had not been suspended or cancelled. The petitioner has relied upon the judgment of Hon'ble Supreme Court in the case of ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n on the oral direction of the Principal Secretary and the Assistant Commissioner of Excise, Rohtas. The license of the petitioner was neither suspended nor cancelled. The license period expired on 31.03.2016 and the petitioner could not operate the manufacturing premises. The submission of the petitioner is that the sealing and closure of the premises of the petitioner was totally unlawful, the petitioner had suffered unlawful closure from 29.02.2016 to 04.03.2016 and from 18.03.2016 to 31.03.2016, and hence he would be entitled for refund of its deposits i.e. the differential amount and license fee for the period in question. (iv) C.W.J.C. No. 12823/2016 17. In this case the petitioner was granted exclusive privilege and the consequential license for manufacturing and supply of country liquor in Zone-5 for the period 2014-19 vide order dated 04.03.2014. The petitioner's license was suspended on 02.02.2016 vide Annexure-4 to the writ application. The order of suspension was challenged by the petitioner in C.W.J.C. No. 2704/2016 before this court. During pendency of the writ application, the license of the petitioner was cancelled which was again challenged by filing ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....similar kind of submissions as the respondents have sought to justify their action and denial of claim for refund of the license fee and the differential amount. Out of four writ applications, at least in three writ applications, there is clear finding and judgment of the competent court of law holding the action of the respondent authorities in the matter of sealing of the manufacturing premises of those petitioners as illegal, arbitrary and the courts have set aside the impugned action of the respondent authorities. In one case of Welcome Distilleries Private Limited the premises of the petitioner was lastly sealed on 17.03.2016 and the period of license expired on 31.03.2016. The petitioner has challenged the impugned action of sealing and closure of the premises and has claimed refunds accordingly. CONSIDERATION 21. In the case of M/s Welcome Distilleries, the total period of closure is 95 days in the manner stated in the writ petition. In paragraph-29 of the writ application a specific statement has been made that the manufacturing premises of the petitioner was again sealed on 17.03.2016 by the Inspector of Excise, Sadar stating that the Secretary, Excise and Prohibition D....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... in paragraph 31 of the counter affidavit which reads as under: "31. That the averments made in paragraphs 26 to 34 of the writ petition are matters of record and require no comment except the facts stated in the preceding paragraphs." 23. It is apparent from the pleadings available on the record of this case that the statement of the petitioner that he had deposited Rs. 1 Crore under protest on 21.02.2016 but the Assistant Commissioner of Excise unlawfully sealed the premises on 29.02.2016 against which the petitioner had represented before the Excise Commissioner, Bihar on 29.02.2016, but no action was being taken, has remained uncontroverted and uncontested. Similarly the statements made in paragraph-26A of the writ application stating that being aggrieved by the order dated 25.02.2016 (demand notice) in pursuance of which the manufacturing premises of the petitioner was unlawfully sealed on 29.02.2016 on the allegation of non-payment of the dues of the differential amount, without any order of suspension of the license and without any show cause notice, the petitioner had moved before the Board of Revenue, Bihar and the impugned order was stayed to the extent of the demand....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Excise Commissioner. The petitioner has relied upon a number of judgments of this court as contained in Annexure-14 series of the writ application. 27. In order to consider this plea of the petitioner when we revert to the statements made in paragraph-28 & 29 of the counter affidavit, we find that regarding statements made in paragraph 3 to 22 of the writ petition, it is stated that those are matters of record and require no comment except the facts stated in the preceding paragraphs. A vague statement has been made that the premises of the petitioner was sealed on some occasions in accordance with the rules and there was nothing wrong in it. It is also stated in the counter affidavit but without any documentary evidence in support thereof that a reasonable opportunity was granted to the petitioner to have its say in the matter and thus there is no question of violation of principles of natural justice. 28. Considering the pleadings available on the record, we find that in the case of M/s Welcome Distilleries also the premises of the petitioner was sealed on different occasions as stated in the writ application without affording the petitioner a reasonable opportunity to show ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....led by the Collector for a given period when the petitioner had sought some time for construction of shop at new premises and later on the license was granted. This court held that for the period when the petitioner was not running the shop, he cannot be saddled with the license fee. 31. As we have already held that in all these cases during the recorded period the petitioner(s) were not allowed to run their manufacturing units/bottling plants/breweries due to unlawful sealing of the manufacturing premises, as a consequence thereof following the various judgments cited at the bar, we are constraint to take a view that the State is liable to suffer for the wrongs committed by its functionaries i.e. the officials of the Department of Excise, Government of Bihar in unlawfully sealing the manufacturing premises of the petitioner(s) from time to time. 32. We, therefore, direct the Principal Secretary, Registration, Excise and Prohibition Department, Government of Bihar and the Excise Commissioner, Government of Bihar, to consider the quantum of the license fee and the excess differential amount recovered from the petitioner(s) in all these cases for the period their premises remaine....