TaxTMI 
TaxTMI 
2023 (11) TMI 1318
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....issioner of Excise, Patna (for short 'Assistant Commissioner'). In the cases mentioned herein below; the petitioners have claimed for the refund of similar duties, the cases are: "(1) In CWJC 4882 of 2020, the petitioner has challenged the order dated 25.09.2019 (Annexure-1), passed by the Commissioner of Excise, Bihar, and the order dated 22.07.2019 (Annexure-2) passed by the Joint Commissioner, State Taxes/Commercial Taxes, Barh Circle and consequently, sought refund of Excise Duty (2015-16), Bottling and License Fee (2015-16 & 2016-17), License Fees under Section 19B(2015-16 & 2016-17) and 19C(2016-17) (subject levies) and Value Added Tax (In short 'VAT') for the financial year 2015-16, amounting to Rs. 4,00,00,114/- along with applicable interest from the Respondents therein. Additionally, the petitioner has challenged the order dated 22.01.2020 (Annexure-3), passed by the Assistant Commissioner of Excise, Patna, by which he has directed adjustment of the amount refundable to the petitioner from the dues of the Bihar State Beverages Corporation Ltd. (2) In CWJC 4911 of 2020, the petitioner has challenged the order dated 25.09.2019 (Annexure-1),....
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....ory, Bottling fee on stocks which have been drained out and decanted and Distributor's license fees on stocks which have been drained out, exported to other states and decanted for the year 2015-16 amounting to Rs. 1,199,87,257.00 and Advance excise duty, advance bottling fee, advance distributor's license fee. advance label registration fee and advance license fee for 2016-17 amounting to Rs. 3,47,770.00. (d) Petitioner 4 is claiming refund of Excise Duty deposited on stocks which have been drained out, exported to other states and decanted in the factory, Bottling fee on stocks which have been drained out and decanted and Distributor's license fees on stocks which have been drained out, exported to other states and decanted for the year 2015-16 amounting to Rs. 1,02,22,633.00 and Advance excise duty, advance bottling fee, advance distributor's license fee, advance label registration fee and advance license fee for 2016-17 amounting to Rs. 4,85,895.00. (4) Similarly in CWJC 5762 of 2020, the petitioner has challenged the order dated 25.09.2019 (Annexure-19), passed by the Commissioner of Excise, Bihar and consequently claimed for refund of Excise ....
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....ithin the State of Bihar. 3. State of Bihar established Bihar State Beverage Corporation Limited (hereinafter referred to as 'BSBCL') one of the Government of Bihar Enterprises with an object of ease of doing liquor business in the State of Bihar through the BSBCL to wholesalers and retailers while getting supply from the petitioners' company. In this regard, BSBCL evolved Liquor Sourcing Policy, through which tenders were invited for supply of various kinds of liquor and beer. Accordingly, petitioners were supplying liquors to the BSBCL from time to time, such Liquor Sourcing Policy, 2013- 2014 was notified by means of Circular No. 1417 dated 26.03.2013. No agreement for 2016-17 was entered in term of Liquor Sourcing Policy of year 2015. 4. Petitioners had executed agreement with BSBCL for the Financial Year 2015-16. 5. State of Bihar- respondent No. 1 issued a notification dated 21.12.2015 of the New Excise Policy, 2015 for the State of Bihar which came into effect from 01.04.2016, by which State sought to prohibit the distribution and consumption of alcohol in State of Bihar in a phased manner. It has made provision only to the extent of prohibiting distribu....
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....75 of 2016. 12. State Government evolved policy for refund of excise duty and VAT deposited by license holder for the Financial Year (FY) 2016-17 with reference to deposit of interim VAT and excise duty which has not been utilized, it was to be refunded on proportionate basis. 13. State of Bihar passed the Bihar Prohibition and Excise Act, 2016 in order to enforce, implement and promote complete prohibition of liquor and intoxicants in Bihar and it came to be in vogue from 02.10.2016. In other words, State of Bihar re-imposed complete prohibition in the State. 14. State Government further proceeded to prohibit the manufacture of IMFL in the State of Bihar which was not prohibited on earlier occasion, in other words, petitioners were earlier permitted to manufacture foreign liquor. By notification dated 24.01.2017, the State Government even prohibited the manufacture of foreign liquor within the State of Bihar. The aforementioned notification also provided that no license would be renewed by the State Government post expiry of licenses on 31.03.2017. Confederation of Indian Alcoholic Beverage Companies preferred application before the Hon'ble Supreme Court seeking perio....
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.... writ petitions bearing CWJC No. 15316 of 2017, (USL Judgment) CWJC No. 13165 of 2018, CWJC No. 16716 of 2017 and CWJC No. 514 of 2018 were disposed of with the following observations: - a. Respondent No. 2's position that the Respondent had provided ample opportunity to the Petitioner to export its Stock outside Bihar could not be a ground for denying the claims for refund of Excise Duty on stocks for those manufacturers that could not export finished goods/raw materials outside the State of Bihar. b. The claims for refund of Excise Duty on Stocks lying with Respondent No. 3 as on 31.03.2017 were required to be considered along with other claims for bottling and license fee. c. The Respondent were not entitled to retain Bottling and License Fees deposited by the Petitioners, since the same was only payable on "saleable stock" and the Respondent had destroyed such Stock of the Petitioner. 21. On 01.05.2019, order to the following effect was passed in CWJC No. 18064 of 2018 (Pernod Judgment) disposing of the writ petition:- a. Respondent No. 2 and Respondent No. 3 are under a duty to consider the representations of the Petitioner and dispos....
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....e prohibition." 25. Petitioner Pernod submitted representation on 10.09.2020 to Commissioner of Excise- BSBCL while stating that authorities have failed to consider the claims of the petitioner in the light of the directions of this Court dated 30.04.2019 passed in CWJC No. 15316 of 2017 read with CWJC No. 18064 of 2018 decided on 01.05.2019. 26. For consideration of the grievance of the petitioner Pernod another representation was submitted on 17.12.2020, thus, as there was no response from the Commissioner of Excise- BSBCL hence the present petitions. 27. Learned Senior Counsel, Mr. Dhruv Mehta appearing for petitioner-Pernod Ricard India (P) Limited (CWJC No. 6561 of 2021), firstly advanced the argument on preliminary issue of non-exhaustion of alternative remedy. It has been contended that impugned order/action of the respondents are arbitrary and violative of Article 14 of the Constitution which is contrary to the extant legal regime and ignorance of the orders of this Court passed in Pernod Judgment read with USL Judgment. It has also been submitted that respondents have not raised any objection in respect of maintainability of the petition by way of their respective....
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.... to export the finished goods and raw materials outside the State of Bihar and some of the manufacturers availed the opportunity thus provided and taken stocks and raw materials back from the BSBCL Godowns and got them exported outside the State of Bihar, cannot be a reason according to us to take a view that those manufacturers of IMFL/BEER who could not export the finished goods or raw materials outside the State of Bihar during given period would not be liable for refund of the excise duty paid on the stocks. This aspect of the matter has again not been considered by the respondent no.3. We are willing to agree with the contentions of the petitioner that claim of the petitioner to extent of INR6,73,61,950/- for the refund of excise duty paid on stocks lying with the respondent no.4 and/or the petitioner as on 31.03.2017 is required to be considered along with the other claims on account of bottling and license fee which were deposited by the petitioner. Learned counsel for the petitioner has rightly submitted that the bottling and license fee would be payable on saleable stock of IMFL and since the respondents have destroyed the stocks of the petitioner, they are not en....
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....nts. In consequence of the discussion above while the order of the Deputy Commissioner dated 16.08.2017 impugned in the writ petition is set aside, the order of the Excise Commissioner dated 06.08.2018 in Misc. Case No. 1 of 2018 stands modified to that extent." 30. It is further submitted that Excise Commissioner has rejected the claim of the petitioner on identical grounds which had been rejected by this Hon'ble Court in USL Judgment. 31. Learned Senior Counsel, Mr. Dhruv Mehta on the aforementioned point submitted that Commissioner of Excise cannot reject the claim of the petitioners while assigning the identical reasons when the same has been turned down by this Court earlier in Pernod and USL Judgment. He has cited the decision in the case of Neelima Srivastava Vs. State of Uttar Pradesh and Ors, 2021 SCC online SC 610 (Para Nos. 27, 32 -36) in support of his argument that reconsideration of dispute, which have attained finality inter se parties, is not permissible. 32. It is further submitted that executive cannot sit in appeal over the judicial authorities' decisions and he cited the decision in the case of Union of India and Ors. Vs. K. Shankarappa....
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....itioner's claim for refund of 19C license fee. Even on this issue learned senior counsel for the petitioner relied on order dated 06.08.2018 read with USL and Pernod Judgment. The issue has been settled and the learned Senior Counsel relied on the decisions of Neelima Srivastava, K. Shankarappa and Kamalakshi Finance Corporation Ltd. cited supra. 36. It has been submitted that this Court has power to invoke its writ jurisdiction to grant refund of statutory levies collected/retained without the authority of law. On this issue, he relied on decision in the case of USL & Pernod Judgment. 37. It is further submitted that tax cannot be levied or retained without the authority of law and refund of such tax can be sought as a consequential relief in writ proceedings. On this point, he has relied on Idea Cellular Limited vs. Union of India, (2015) SCC OnLine P&H 6354 (Para Nos. 14-19, 21- 22), U.P. Pollution Control Board and Ors. Vs. Kanoria Industrial Limited and Anr. reported in (2001) 2 SCC 549 (Para 9, 12 & 17) and Salonah Tea Company Limited & Ors. vs. Superintendent of Taxes, Nawgong & Ors, (1998) 1 SCC 401 (Para No. 6). 38. Learned Senior Counsel, Mr. Gopal Jain appea....
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....ble insofar as filing of appeal against the orders of the Commissioner of Excise, since the State of Bihar have not identified the Appellate Authority and Revisional Authority. On this point, learned counsel pointed out that it is merely stated that State Government is the Appellate Authority wherever Excise Commissioner passes an order. The definition of State Government refers to State Government of Bihar. Therefore, there is no identification of particular designated officer. He has also pointed out from Rule 20 and 24 of Bihar Prohibition and Excise Rules, 2021 notified on 27.09.2021 does not specify, as to who shall be the appellate authority. Rule 20 is relating to appeal whereas Rule 24 is relating to procedure of revision. No doubt, Secretary of the department has been identified to decide revision at the same time it is to be noted that in the present case Commissioner of Excise is also holder of the post of Secretary to the Excise Department. Therefore, it is impracticable to prefer any appeal or revision against the impugned orders of Commissioner of Excise. Therefore, the present writ petition is maintainable. 43. Learned counsel, Mr. Satyabir Bharti reiterated the a....
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....ave been denied. This has been taken note of by this Court in the earlier Judgement of USL & Pernod. 45. Referring to Section 43 of the Bihar Excise Act, 1915, as it existed at the time of imposition of prohibition in the State of Bihar, it has been contended by the Learned Counsel Sri Satyabir Bharti, that entitles the licensee to claim refund of the license fees as also compensation, if the license is withdrawn without any prior notice. The licenses of the petitioners were withdrawn without any prior notice and therefore they are entitled for refund of the excise levies in question. 46. Referring to the impugned orders passed by the Assistant Commissioner Excise, who proceeded to adjust demurrages fee levied by BSBCL on 26.09.2019, with reference to demurrages ordered by BSBCL dated 13.08.2019, it was contended by the Learned Counsel Sri Satyabir Bharti that the same is not permissible and without authority of law in the light of Section 93 of Bihar Excise Act, 1915. On this point, learned counsel for the petitioner pointed out sub-section (9) of Section 2 of Bihar Excise Act, 1915 defines 'Excise Revenue' and demurrage charge levied by BSBCL is not an Excise Revenu....
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....ar Value Added Tax Act, 2005 would be levied only on sales with reference to gross turn over of sales calculated from the commencement of the year ending on the day immediately before the commencement of Act, exceeds the specified quantum as applicable to him under the Bihar Finance Act, 1981. In the present case, claim is for refund of Value Added Tax which has been ordered by the Joint Commissioner of Commercial Taxes, Bihar, Patna (In-charge) towards unsold stocks and such stocks have been destroyed at the behest of State-respondents. 50. Thus it has been submitted that in the light of judicial pronouncements, petitioners are entitled to refund of subject levies and the same cannot be withheld by the respondents. 51. Mr. P.K. Shahi, learned Advocate General representing State-respondents submitted that the writ petitions filed by the petitioners are not maintainable in the light of Section 92 and 93 of Bihar Prohibition and Excise Act, 2016 (for short 'Act, 2016') read with Rules 20 & 24, appeal and revision, Bihar Prohibition and Excise Rules, 2021 (for short 'Rules, 2021') read with Clauses 3(i) and 3(ii) of Fourth Schedule of Rules of Executive Business,....
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.... Another). Therefore, there is no infirmity in the impugned decision of the Excise Commissioner. 54. It has further been submitted that liquor sourcing policy was introduced in the year 2013-14 in terms of Clause 16(c) (d)(e)(g) which relates to stocks held for sale. He has also pointed out Clause 18(a)(b)(c) in this regard, in the light of liquor sourcing policy for the year 2013-14 by which agreement form has been prescribed (Annexure-4 to the liquors sourcing policy). These are the material from which it is evident that respondent-Corporation is empowered to levy demurrages in respect of stocks of the petitioners lying with the Corporation. It is further submitted that earlier judgment of CWJC No. 15316 of 2017 decided on 30.04.2019 only remanded the matter to the Excise Commissioner to take decision. It was an open remand. Therefore, under Section 27 and 28 of Bihar Excise Act, 1915 read with Rule 147 excise duty can be levied. In support of the aforementioned issue, he relied on decision of the Hon'ble Apex Court in the case of Mohan Breweries & Distilleries Limited vs. commercial Tax Officer, Madras & Ors. reported in (1997) 7 SCC 542 (Para 6,7 and 8). He has also cite....
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....n the other hand, liquors sourcing policy for the year 2016- 17 issued on 12.03.2016 is relevant. He has pointed out Clause 16(c), (i) active stock (ii) inactive stock and (d) demurrages and contended that demurrage charges can only be levied on inactive stocks, that is stocks remaining unsold over a period of time, when sale is permitted. Prohibition having been imposed, there is no applicability of the said clause. It has been submitted that there was no agreement executed in the light of new liquors source policy issued in the year 2016, the fact which has not been disputed or denied in the Counter affidavit filed by BSBCL. Therefore, in the absence of any agreement, question of levying demurrages on the petitioner in the light of liquor sourcing policy in the year, 2016 is impermissible. In terms of Annexure-12 dated 30.03.2017, stocks could be taken away from the State of Bihar and time limit was fixed. By that time, the stocks of beer had been rendered unfit for human consumption. Thereafter, it was extended upto 31.05.2017. Further, it was extended upto 31.07.2017. In fact, earlier petition was filed vide CWJC No. 6467 of 2019 by Molson Coors for refund of deposits and it wa....
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....arranted to the petitioner. 62. In response to the contention that pursuant to earlier orders of this Court passed in United Spirits Limited is open remand to the concerned official respondents, Learned counsel for the petitioner cited two decisions namely Vidya Devi vs. Commissioner of Income Tax, reported in SCC Online Cal 215 (Para 5) and State of Kerala vs. MF Limited 2016 reported in SCC Online Kerala 1058 (Para 8) in support of the contention that Excise Commissioner cannot travel beyond the order of this Court insofar remanding the matter. 63. Mr. Aditya Mukherji, learned counsel for the petitioner further submitted that decisions cited on behalf of State, viz, Moriraku (cited supra) is not assisting the State. On this case, he has pointed out decision of the Hon'ble Apex Court reported in (1994) 6 SCC 610 Indian Cable Company vs. Kolkata (Para 12 and 13). Further, it is submitted that levy of excise duty is required to be taken note of with reference to marketability of the liquor product. It is submitted that Section 27 of the Act, 1915 read with Section 2(15) and Section 2(6) relate to manufacture and excisable article (duty is only on sale of excisable article)....
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....of Mahadev Carrier Pvt. Limited vs. State of Bihar & Ors. reported in 2019 (3) PLJR 740 (Para 28). Analysis: 69. Before adverting on merits of the case, it is first necessary to take note of Constitutional Provisions and statutory provisions:- "(I). Entry 51 of List-II of Seventh Schedule of the Constitution of India: 51. Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India:- (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry. (Underlined for Emphasis) (II). Sections 2(21), 2(22), 2(25) and 27 of Bihar Prohibition and Excise Act, 2016: 2(21) "duty" means the excisable duty or the countervailing duty as mentioned in Entry 51 of List -II of Seventh Schedule of the Constitution, or as the case may be; 2(22) "excisable articles or items" means- (i) any liquor or intoxic....
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.... (2) A duty, at such rate or rates as the State Government may direct, may be imposed, either generally or for any specified local area, on any tari drawn under any licence granted under Section 14, sub-section (1). (3) Notwithstanding anything contained in sub- section (1)- (i) duty shall not be imposed thereunder on any article which has been imported into India and was liable, on such importation, to duty under the Indian Tariff Act, 1894 (8 of 1894), or the Sea Customs Act, 1878 (8 of 1878) if- (a) the duty as aforesaid has been already paid, or (b) a bond has been executed for the payment of such duty. (ii) [Omitted by A.L.O.] (Underlined for Emphasis) 28. Ways of levying such duty. Subject to any rules made under Section 60, clause (12) any duty imposed under Section 27 may be levied in any of the following ways:- (a) on an excisable article imported- (i) by payment (upon or before importation) in the State or territory from which the article is brought, or (ii) by payment upon issue for sale from a warehouse established, authorised or continued under this Act, (b) on an excisa....
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....d also that no tax shall be levied in respect of any tree from which tari is drawn only for the manufacture of gur or molasses and under such special conditions as the Board may prescribe. (Underlined for Emphasis) Rule 147 of the Bihar and Orissa Excise Rules 1919: 147. The duty imposed on- (i). foreign liquor and country spirit- (a) imported under bond; or (b) manufacture in a distillery, and stored in a distillery or excise warehouse, (ii) ganja and bhang- (a) imported under bond, or (b) stored in an excise warehouse,shall be paid before removal from the distillery or excise warehouse unless a bond has been executed for such payment. [Provided that the additional duty, calculated on the total issue of an excisable article in a calender month, at the rates prescribed, shall be paid by the licencee to whom such article has been issued by the fifth of the following month:] [Provided [further] that in case of any revision in the rate of duty on an excisable article, the difference of duty shall be realised from or credited to the licensee, to whom such article has been issued on paymen....
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....pellate government. Revision representation is not defined under any Act/Statute/Rules/ Regulations etc. and such power is vested in the government. (i) Departmental Secretary. (ii) Departmental Secretary, provided that the order has not been passed by the Secretary himself/herself but in the matters where the order has been passed by the Secretary himself/herself, the power to hear the appeal/revision will vest in the Departmental Minister **4.Extension of scheme and the temporary posts created under those Minister 5.Distribution of works in the Department:- (i) Among the officers of group 'A' and group 'B' (ii) Among the officials of group 'C and group 'D' Secretary (i) Group 'A' Departmental Minister. (ii) Group 'B' Secretary 6.Training of officers/employees. (i) Short term training (up to the period of one month) within the country. (ii) Long term training (for more than one month) within the country. (iii) Essential training of all types (iv) Foreign training of State Official or their participation in workshop etc organised in foreign countries (where other expenses. except the internal training expenses are being borne....
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....2016 of Cabinet Secretariat Department. 70. Core issues involved in these bunch of petitions are as under:- (i) Whether writ petition is maintainable in the absence of exhausting statutory remedy or not? (ii) Whether levying of various kinds of excise duty on unutilized liquor is in order or not? (iii) What reliefs petitioners are entitled to? 71. Prohibition is the act or practice of forbidding something by law, more particularly the term refers to the banning of the manufacture, storage (whether in barrels or bottles), transportation, sale, possession and consumption of alcohol beverages. Constitutional provisions like Article 47--- The Directive Principle in the Constitution of India states that "the State shall undertake Rules to bring about prohibition of the consumption except for medicinal purposes of intoxicating drinks and of drugs which are injurious to health." Alcohol is subject in the State list (List-II) under the Seventh Schedule of the Indian Constitution vide (Entry 51 List-II). 72. Taking note of orders of the Excise Commissioner the petitioners have statutory remedy of appeal under Section 92 and further revision under Section ....
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.... having sufficient time to lift the unutilized stocks of liquor with the BSBCL, transit of liquor from the manufacturing unit to BSBCL and liquor stocks lying in the manufacture units. The aforesaid exercise has not been undertaken by the petitioners. Therefore, there was a default on their part. But such reason has already been turned down on an earlier occasion by this Court. Therefore, there is an arbitrary action on the part of the Excise Commissioner. Having regard to the fact that the respondent-State would fall under Article 12 of the Constitution read with the arbitrariness in their action, in such an event, writ Court can exercise power despite the fact that concerned party has a statutory remedy as held by the Hon'ble Apex Court in number of cases. 73. Learned counsel for the petitioners submitted that inter se parties dispute has been settled in the light of earlier judgments in USL and Pernod. Therefore, Excise Commissioner cannot sit over the same issue and proceed to reject it. It is further submitted that excise duty cannot be levied on unutilized liquor stock in terms of statutory provision like Sections 27 and 28 of Act, 1915 read with Rule 147 of Rules, 191....
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....ecided on 08.02.2023 (Para 2 to 4 and 12 to 14) (xiv) Bibekanad Mondal vs. State of West Bengal reported in (2002) SCC Online Cal 571 (Para 2, 4- 6). (xv) Vidya Devi vs. Commissioner of Income Tax, reported in SCCOnline Cal 215 (Para 5). (xvi) State of Kerala vs. MF Limited 2016 reported in SCCOnline Kerala 1058 (Para 8) (xvii) State of Haryana vs. PC Wadhwa, IPS, Inspector General of Police and Anr. reported in (1987) 2 SCC 602. 75. On the other hand, Mr. P.K. Shahi, learned Advocate General relied on Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Ors. reported in (1998) 8 SCC 1 (Para 14 and 15) and Commissioner of Income Tax and Ors. vs. Chhabbil Das Agarwal reported in (2014) 1 SCC 603 (Para 15) to overcome the decisions cited on behalf of the petitioners to the extent that the petitioners have to exhaust the statutory remedy before invoking Article 226 in filing writ petition. The same was distinguished by the petitioners' counsel while giving reply and reiterated latest decision of the Hon'ble Apex Court in the case of M/s. Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer cum Assessing Authority and Ors. re....
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....on; (vii) In cases where there are disputed question of facts, the High Court may decide to decline jurisdiction in a writ petition. However, if the High Court is objectively of the view that the nature of the controversy requires the exercise of its writ jurisdiction, such a view would not readily be interference with." The aforementioned principles have been taken note by the Apex Court in the case of Magadh Sugar & Energy Ltd. Versus State of Bihar and Ors [2021(4) PLJR 142 (SC)]. 77. In the light of principle laid down in the aforementioned cases, it is evident that the petitioners have no statutory remedy and identified authority in the absence of Rules framed under Section 92(3) of the Act. As on the date of impugned order, excise duty is not leviable in respect of un-sold or unutilized liquor stock, since there is no provision for levying of excise duty on unsold liquor stock, therefore, levying or retention of excise duty paid in advance is in absence of source of law, therefore action of the State- respondent in retention of excise duty paid by the petitioner in advance is in the absence of any source of power under the Act, 1915 and Rules, 1919 read with an....
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....BCL. 79. Reading of statutory Sections like Section 2(21), 2 (22), 2(25) and Section 27 of Act, 1915, it is crystal clear that the excise duty can be levied only on sale. No doubt, excise revenue defined under Section 2(25) relates to duty, fee, tax, further excisable article imported or exported or transported and manufactured etc. However, the same has been reflected even in Rule 147 like manufacture in distillery and stored in an excise warehouse in Rule 147(b) of 1919, Rules. In this regard, one of the notifications taken note of by this Court dated 05.04.2006 wherein there is no break up of imposition of excise duty like manufacture in distillery, stored in distillery or excise warehouse. On the other hand, in lump sum, excise duty has been levied. In fact, there is no identification of duties for labeling and bottling and other ancillary levies. 80. Notification dated 05.04.2006 should have been in the form of break up of levy of excise duty like manufacture in distillery stored in distillery or excise warehouse and then sale of liquor in the absence of identification of particular excise duty on manufacture in a distillery, stored in a distillery or excise warehouse an....
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....-paragraph (b) of this entry.' 96. Entry 51 in List II reads: '51. Duties of excise on the following goods manufactured or produced in the State and countervailing duties at the same or lower rates on similar goods manufactured or produced elsewhere in India- (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub-para (b) of this entry.' 97. A comparison of the language of these two entries clearly demonstrates that the powers of taxation on alcoholic liquors have been based on the way in which they are used as admittedly alcoholic liquor is a very wide term and may include variety of types of alcoholic liquors but our Constitution makers distributed them into two heads: (a) for human consumption; (b) other than for human consumption Alcoholic liquors which are for human consumption were put in Entry 51 List II authorising the State Legislature to levy tax on them whereas alcoholic liquors other than for human consumption have been left to the C....
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....uty or tax on alcohol which is not for human consumption as that could only be levied by the Centre." 18. It could thus be seen that the Constitution Bench has held that the Constitution makers distributed the term "alcoholic liquor" into two heads viz. (a) for human consumption; and (b) other than for human consumption. It has been held that the alcoholic liquors, which are for human consumption, are put in Entry 51 List II authorising the State Legislature to levy tax on them, whereas alcoholic liquors other than for human consumption have been left to the Central Legislature under Entry 84 for levy of duty of excise. It has been held that what has been excluded in Entry 84 has specifically been put within the authority of the State for purposes of taxation. The Constitution Bench clearly held that the State Legislature had no authority to levy duty or tax on alcohol, which is not for human consumption as that could be levied only by the Centre. 19. A three-Judge Bench of this Court in State of U.P. v. Modi Distillery [State of U.P. v. Modi Distillery, (1995) 5 SCC 753] was considering the power of the State Government to levy excise duty on wastage of liquor af....
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....plant collected, under any licence granted in respect of clause (b) or clause (c) of Section 13; or (f) any excisable article manufactured in any distillery or brewery licensed, established, authorised or continued under this Act. Explanation.- Duty may be imposed on any article under this sub-section at different rates according to the places to which such article is to be removed for consumption, or according to the varying strengths and quality of such article." 22. Perusal of Section 27(1) of the said Act would reveal that the State's power to impose duty on import, export, transport and manufacture is only in respect of any excisable articles imported, exported, transported and manufactured. 'Excisable article' has been defined to be any alcoholic liquor for human consumption or any intoxicating drug. It is thus clear that even under the relevant statute, the State has power to levy excise duty only in respect of the alcoholic liquor for human consumption. 23. In view of the legal position as settled by the Constitution Bench of this Court in Synthetics & Chemicals [Synthetics & Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109] and the t....
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.... the decision of Vidya Devi, Commissioner of Income Tax, Allahabad Vs. State of Kerala Vs. MIF Limited (cited supra). It is a relevant decision and is assisting the above contention of petitioner. (e) Marketability is a sine qua non for levying of excise duty. Petitioner's relying on Indian Cable Company Limited, Calcutta (cited supra) has some bearing in the present case to the extent that the liquor stocks which were destroyed on the three points has not yet reached the market for the purpose of sale. In other words, there is no sale of liquor. Therefore, levying of duty is impermissible. (f) Rules of Executive Business which has been cited on behalf of the learned Advocate General is not applicable to the present case. On this point, it is submitted that Rules of Executive Business can not be contrary to the provisions of statute which governs the field. Petitioners are relying on a decision in the case of State of Haryana Vs. P.C. Wadhwa (cited supra). In the present case, Section 92(3) of Act, 2016 provides for framing of the rules insofar as the identification of the Appellate and Revisional Authority. By virtue of Rules 24 of Rules 2021, Appellate Authority has not....
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....t apprised this Court with any other notification as to how the excise duty would be levied and its break up like on manufacture, bottling, labelling, transport and sales etc. Further, Excise Department have not produced any material to show that what is the principle or structure of levying fees and excise duty as determined by the officials on the terms and conditions. In other words, levying of 19-C fees, bottling fee-19B, label registration fee particular amount is not forthcoming in any of the Government Notification so as to identify the respective fee or excise duty. Therefore, there is a non-application of mind insofar as identification of any fees structure as indicated (supra). 87. Yet another issue involved in the present lis is in respect of levy of demurrages/demand of demurrages on behalf of BSBCL is concerned, we have already del-linked those cases viz. CWJC No. 7463 of 2020 (Molson Coors Cobra India Pvt. Ltd. vs. The State of Bihar & Ors.), CWJC No. 7467 of 2020 (Molson Coors Cobra India Pvt. Ltd. vs. The State of Bihar & Ors.), CWJC No. 8853 of 2020 (Colona Blenders and Bottlers (India) Pvt. Ltd. & Ors. vs. The State of Bihar and Ors.) and CWJC No. 4652 of 2021 ....