Rajasthan High Court - Jodhpur
M/S. Globus Spirits Limited vs State Of Rajasthan And Ors on 11 March, 2019
HIGH COURT OF JUDICATURE FOR RAJASTHAN
JODHPUR.
..
(1) S.B. Civil Writ No. 369/2016 United Spirits Limited
----Petitioner Versus State of Rajasthan & Ors
----Respondents Connected With (2) S.B. Civil Writ No. 370/2016 United Spirits Limited
----Petitioner Versus State of Rajasthan & Ors
----Respondents (3) S.B. Civil Writ No. 371/2016 United Spirits Limited
----Petitioner Versus State And Ors
----Respondents (4) S.B. Civil Writ No. 432/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (5) S.B. Civil Writ No. 433/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (6) S.B. Civil Writ No. 435/2016 Radico Khaitan Limited
----Petitioner Versus State And Ors
----Respondents (2 of 25) [CW-369/2016] (7) S.B. Civil Writ No. 436/2016 Radico Khaitan Limited
----Petitioner Versus State And Ors
----Respondents (8) S.B. Civil Writ No. 1617/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (9) S.B. Civil Writ No. 1618/2016 Radico Khaitan Limited
----Petitioner Versus State And Ors
----Respondents (10) S.B. Civil Writ No. 1619/2016 Radico Khaitan Limited
----Petitioner Versus State And Ors
----Respondents (11) S.B. Civil Writ No. 1620/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (12) S.B. Civil Writ No. 1621/2016 Radico Khaitan Limited
----Petitioner Versus State And Ors
----Respondents (13) S.B. Civil Writ No. 1622/2016 United Spirits Limited,
----Petitioner Versus State And Ors ----Respondents (3 of 25) [CW-369/2016] (14) S.B. Civil Writ No. 1623/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (15) S.B. Civil Writ No. 1624/2016 Radico Khaitan Limited
----Petitioner Versus State And Ors
----Respondents (16) S.B. Civil Writ No. 1632/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (17) S.B. Civil Writ No. 1633/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (18) S.B. Civil Writ No. 1634/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (19) S.B. Civil Writ No. 1635/2016 Radico Khaitan Limited
----Petitioner Versus State And Ors
----Respondents (20) S.B. Civil Writ No. 2241/2016 United Spirits Ltd.
----Petitioner Versus State And Ors. ----Respondents (4 of 25) [CW-369/2016] (21) S.B. Civil Writ No. 2242/2016 United Spirits Ltd.
----Petitioner Versus State And Ors.
----Respondents (22) S.B. Civil Writ No. 2243/2016 Radico Khaitan Ltd.
----Petitioner Versus State And Ors.
----Respondents (23) S.B. Civil Writ No. 2244/2016 Radico Khaitan Ltd.
----Petitioner Versus State And Ors.
----Respondents (24) S.B. Civil Writ No. 2247/2016 United Spirits Ltd.
----Petitioner Versus State And Ors.
----Respondents (25) S.B. Civil Writ No. 2248/2016 Un Ited Spirits Ltd.
----Petitioner Versus State And Ors.
----Respondents (26) S.B. Civil Writ No. 2887/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (27) S.B. Civil Writ No. 2888/2016 United Spirits Limited,
----Petitioner Versus State And Ors ----Respondents (5 of 25) [CW-369/2016] (28) S.B. Civil Writ No. 2889/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (29) S.B. Civil Writ No. 2890/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (30) S.B. Civil Writ No. 2891/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (31) S.B. Civil Writ No. 2892/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (32) S.B. Civil Writ No. 2893/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (33) S.B. Civil Writ No. 2894/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (34) S.B. Civil Writ No. 2895/2016 United Spirits Limited,
----Petitioner Versus State And Ors ----Respondents (6 of 25) [CW-369/2016] (35) S.B. Civil Writ No. 2896/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (36) S.B. Civil Writ No. 2897/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (37) S.B. Civil Writ No. 2898/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (38) S.B. Civil Writ No. 3031/2016 M/s. Globus Spirits Limited
----Petitioner Versus State And Anr
----Respondents (39) S.B. Civil Writ No. 3173/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (40) S.B. Civil Writ No. 3182/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (7 of 25) [CW-369/2016] (41) S.B. Civil Writ No. 3184/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (42) S.B. Civil Writ No. 3185/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (43) S.B. Civil Writ No. 3186/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (44) S.B. Civil Writ No. 3187/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (45) S.B. Civil Writ No. 3188/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (46) S.B. Civil Writ No. 3189/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (47) S.B. Civil Writ No. 3190/2016 United Spirits Limited,
----Petitioner Versus State And Ors ----Respondents (8 of 25) [CW-369/2016] (48) S.B. Civil Writ No. 3193/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (49) S.B. Civil Writ No. 3195/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (50) S.B. Civil Writ No. 3200/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (51) S.B. Civil Writ No. 3245/2016 Radico Khaitan Limited
----Petitioner Versus State And Ors
----Respondents (52) S.B. Civil Writ No. 3246/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (53) S.B. Civil Writ No. 3247/2016 Radico Khaitan Limited
----Petitioner Versus State And Ors
----Respondents (54) S.B. Civil Writ No. 3248/2016 United Spirits Limited,
----Petitioner Versus State And Ors ----Respondents (9 of 25) [CW-369/2016] (55) S.B. Civil Writ No. 3249/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (56) S.B. Civil Writ No. 3250/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (57) S.B. Civil Writ No. 3376/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (58) S.B. Civil Writ No. 3377/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (59) S.B. Civil Writ No. 3378/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (60) S.B. Civil Writ No. 3379/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (61) S.B. Civil Writ No. 3380/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr. ----Respondents (10 of 25) [CW-369/2016] (62) S.B. Civil Writ No. 3381/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (63) S.B. Civil Writ No. 3382/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (64) S.B. Civil Writ No. 3383/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (65) S.B. Civil Writ No. 3384/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (66) S.B. Civil Writ No. 3385/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (67) S.B. Civil Writ No. 3431/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (11 of 25) [CW-369/2016] (68) S.B. Civil Writ No. 3432/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (69) S.B. Civil Writ No. 3434/2016 M/s. Solkit Distillery And Brewery P. Ltd
----Petitioner Versus State And Anr
----Respondents (70) S.B. Civil Writ No. 5437/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (71) S.B. Civil Writ No. 5446/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (72) S.B. Civil Writ No. 5449/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (73) S.B. Civil Writ No. 5451/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (74) S.B. Civil Writ No. 5457/2016 United Spirits Limited,
----Petitioner Versus State And Ors ----Respondents (12 of 25) [CW-369/2016] (75) S.B. Civil Writ No. 6667/2016 Radico Khaitan Limited
----Petitioner Versus State And Ors
----Respondents (76) S.B. Civil Writ No. 6668/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (77) S.B. Civil Writ No. 6669/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (78) S.B. Civil Writ No. 6671/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (79) S.B. Civil Writ No. 6672/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (80) S.B. Civil Writ No. 6673/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (81) S.B. Civil Writ No. 6674/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors ----Respondents (13 of 25) [CW-369/2016] (82) S.B. Civil Writ No. 6675/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (83) S.B. Civil Writ No. 8435/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (84) S.B. Civil Writ No. 8445/2016 Pernod Ricard India Private Lid.
----Petitioner Versus State And Ors.
----Respondents (85) S.B. Civil Writ No. 8468/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (86) S.B. Civil Writ No. 9018/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (87) S.B. Civil Writ No. 9111/2016 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (88) S.B. Civil Writ No. 10741/2016 Radico Khaitan Lit.
----Petitioner Versus State And Ors. ----Respondents (14 of 25) [CW-369/2016] (89) S.B. Civil Writ No. 10823/2016 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (90) S.B. Civil Writ No. 440/2017 Radico Khaitan Ltd.,
----Petitioner Versus State And Ors
----Respondents (91) S.B. Civil Writ No. 442/2017 Jagatjit Industries Ltd.,
----Petitioner Versus State And Ors
----Respondents (92) S.B. Civil Writ No. 444/2017 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (93) S.B. Civil Writ No. 452/2017 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (94) S.B. Civil Writ No. 453/2017 Pernod Ricard India Pvt. Ltd.,
----Petitioner Versus State And Ors
----Respondents (95) S.B. Civil Writ No. 454/2017 United Spirits Ltd.,
----Petitioner Versus State And Ors ----Respondents (15 of 25) [CW-369/2016] (96) S.B. Civil Writ No. 1998/2017 Radico Khaitan Limited
----Petitioner Versus State And Ors
----Respondents (97) S.B. Civil Writ No. 1999/2017 United Spirits Ltd.,
----Petitioner Versus State And Ors
----Respondents (98) S.B. Civil Writ No. 2858/2017 Jagatjit Industries Ltd.
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (99) S.B. Civil Writ No. 2859/2017 Jagatjit Industries Ltd.
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (100) S.B. Civil Writ No. 2865/2017 Jagatjit Industries Ltd.
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (101) S.B. Civil Writ No. 2934/2017 Radico Khaitan Limited
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (16 of 25) [CW-369/2016] (102) S.B. Civil Writ No. 2936/2017 Radico Khaitan Limited
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (103) S.B. Civil Writ No. 2937/2017 Radico Khaitan Limited
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (104) S.B. Civil Writ No. 2952/2017 Jagatjit Industries Ltd.
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (105) S.B. Civil Writ No. 3050/2017 United Spirits Limited,
----Petitioner Versus State And Ors
----Respondents (106) S.B. Civil Writ No. 3094/2017 United Spirits Limited,
----Petitioner Versus State And Ors ----Respondents (107) S.B. Civil Writ No. 3579/2017 United Spirits Ltd.,
----Petitioner Versus State And Ors
----Respondents (108) S.B. Civil Writ No. 3582/2017 Jagatjit Industries Ltd.
----Petitioner Versus State And Ors (17 of 25) [CW-369/2016]
----Respondents (109) S.B. Civil Writ No. 3682/2017 Radico Khaitan Limited
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (110) S.B. Civil Writ No. 6222/2017 Pernod Ricard India Pvt. Ltd.
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (111) S.B. Civil Writ No. 12586/2017 Radico Khaitan Limited
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (112) S.B. Civil Writ No. 15578/2017 United Spirits Limited
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (113) S.B. Civil Writ No. 16123/2017 M/s. Shree Mahamaya Liquor Industries
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (114) S.B. Civil Writ No. 4602/2018 M/s. H.h. Bottling Plant
----Petitioner Versus State Of Rajasthan And Ors.
----Respondents (18 of 25) [CW-369/2016] (115) S.B. Civil Writ No. 7638/2018 M/s. Shree Mahamaya Liquor Industries
----Petitioner Versus State And Ors
----Respondents (116) S.B. Civil Writ No. 1228/2019 M/s. Alwar Malt And Agro Foods Manufactures Company Limited,
----Petitioner Versus State Of Rajasthan
----Respondents (117) S.B. Civil Writ No. 1255/2019 M/s. Alwar Malt And Agro Foods Manufactures Company Limited,
----Petitioner Versus State Of Rajasthan
----Respondents (118) S.B. Civil Writ No. 1256/2019 M/s. Alwar Malt And Agro Foods Manufactures Company Limited,
----Petitioner Versus State Of Rajasthan
----Respondents (119) S.B. Civil Writ No. 1257/2019 M/s. Alwar Malt And Agro Foods Manufactures Company Limited,
----Petitioner Versus State Of Rajasthan
----Respondents (120) S.B. Civil Writ No. 1259/2019 M/s. Alwar Malt And Agro Foods Manufactures Company Limited,
----Petitioner Versus State Of Rajasthan
----Respondents (121) S.B. Civil Writ No. 1260/2019 M/s. Alwar Malt And Agro Foods Manufactures Company Limited,
----Petitioner Versus State Of Rajasthan & Ors. ----Respondents (19 of 25) [CW-369/2016] (122) S.B. Civil Writ No. 1279/2019 M/s. Alwar Malt And Agro Food Manafactures Company Limited
----Petitioner Versus State Of Rajasthan & Ors.
----Respondents For Petitioner(s) : Mr. Mahendra Singh.
Mr. Vikas Balia.
Mr. Shivangshu Naval. Mr. Akash Srivastava. Mr. Dinesh Pal Singh Charan. Mr. A.R. Beniwal.
For Respondent(s) : Dr. Sachin Acharya.
Mr. Shridhar Mehta. Mr. Chayan Bothra.
HON'BLE MR. JUSTICE SANJEEV PRAKASH SHARMA Order 11/03/2019
1. The petitioners in all these writ petitions have raised a common question of law and, therefore, all the writ petitions are being heard together and finally disposed of at this stage.
2. The petitioners by way of all these writ petitions challenge a decision taken by the Excise Commissioner in imposing penalty, while compounding the offences under Section 70 of the Rajasthan Excise Act, 1950 (hereinafter referred to as the 'Act of 1950').
3. In the lead case, being CWP No. 369/2016 titled as "United Spirits Limited Vs. State of Rajasthan & Ors.", the order dated 17.11.2015 is under challenge whereby on an application moved for compounding of the offences, he has imposed compounding fees as Rs.1,00,000/- and has further added a sum of (20 of 25) [CW-369/2016] Rs.2,68,237/- for the alleged loss caused to the revenue, with a direction to deposit the total sum of Rs.3,68,237/- as an amount for compounding the offences. It has further been directed that if the amount is not deposited within 15 days, the proceedings as contemplated under Section 34(C) of the Act of 1950 as well as under Section 76(C) of the Rajasthan Excise Rules, 1956 would be taken.
4. Learned counsel appearing for the petitioners submits that the amount calculated for compounding fees as well as the amount of loss caused to the revenue is arbitrary and without any basis. It is a submission that under Section 58(C) of the Act of 1950, the penalty amount can be maximum of Rs.5,000/- and in view thereof, the compounding fees as well as the loss caused to the revenue is unjustified and without discussing any factual aspect. It is also a submission that in different cases relating to different companies, where allegations of same nature have been levelled, the amount of compounding fees as well as the loss of revenue has been assessed differently by the Excise Commissioner.
5. Learned counsel for the petitioners relies upon a judgment passed by the Supreme Court in the matter of P. Ratnakar Rao & Ors. Vs. Government of A.P. & Ors. reported in (1996) 5 SCC 359 to submit that the compounding fees ought not exceed the fine prescribed by the penal section, the same cannot be either exorbitant or irrational or bereft of guidance.
6. Per contra, learned counsel appearing for the respondents submits that the Excise Commissioner has passed the orders (21 of 25) [CW-369/2016] keeping in view of the provisions of Section 70 of the Act of 1950 and once the petitioners themselves agreed for compounding, a decision taken thereto has to be abided; and if the petitioners have any grievance relating to the amount fixed by the Excise Commissioner, they had an alternative remedy of filing an appeal which has not been availed of.
7. Learned counsel for the petitioners have also raised an objection relating to the loss of revenue assessed and submit that there was no such loss caused while learned counsel appearing for the Excise Department submits that the loss assessed by the Excise Commissioner is on the basis of the data which were available before him and the assessment of loss is on relevant data and the tests conducted by the concerned Excise Inspector relating to the various brands of IMFL.
8. I have considered the submissions made at bar by the learned counsel for the parties and also perused the material available on record.
9. It would be appropriate to quote Section 70 of the Act of 1950, which reads as under:-
"70. Power of Excise officers to compound offences- (1) Subject to such conditions and restrictions as may be prescribed, the Excise Commissioner or any other Excise Officer specially empowered by the State Government in that behalf may accept from any person whose licence, permit or pass is liable to be cancelled or suspended under this Act, or who is reasonably suspected of having committed an offence punishable under this Act, a sum of money [not less than Rs.5000/- but not (22 of 25) [CW-369/2016] exceeding 10 times of the annual licence fee in respect of manufacturing units/bonds and wholesale vends etc. and not more than two times of exclusive privilege amount in case of liquor and beer shops alongwith other levies applicable from time to time] in lieu of such cancellation or suspension or by way of composition for such offence which may have been committed, as the case may be, and in all cases whatsoever in which any property [XXX] has been seized as liable to confiscation under this Act [may release all such property except an excisable article on payment of the value thereof as estimated by such officer and may confiscate the excisable article]:
Provided that no such composition shall be accepted from any officer or servant of the Excise Department for any offence under this Act committed by such officer or servant.
[Provided further that no manufacture, or possession for sale of excisable article punishable under Section 54 shall be compounded].
(2) On the payment of such sums of money to such officer, the accused person, if in custody, shall be discharged, the property seized shall be released and no further proceedings shall be taken against such person or property in respect of such offence."
10. In the case of P. Ratnakar Rao & Ors. Vs. Government of A.P. & Ors. (spura), Hon'ble the Supreme Court has held as under:-
"The contention raised before the High Court and repeated before us by Shri Rajeev Dhavan, learned senior counsel for the petitioners is that the discretion given in Section 200 [1] of the Act is unguided, (23 of 25) [CW-369/2016] uncanalised and arbitrary. Until an accused is convicted under Section 194, the right to levy penalty thereunder would not arise. When discretion is given to the court for compounding of the offence for the amount mentioned under Section 200, it cannot be stratified by specified amount. It would, therefore, be clear that the exercise of power to prescribe maximum rates for compounding the offence is illegal, arbitrary and violative of Article 14 of the Constitution. We find no force in the contention. For violation of Sections 113 to 115, Section 194 accords penal sanction and on conviction for violation thereof, the Section sanctions punishment with fine as has been enumerated hereinbefore. Section would give guidance to the State Government as a delegate under the statute to specify the amount for compounding the offences enumerated under sub-section [1] of Section 200. It is not mandatory that the authorized officer would always compound the offence. It is conditional upon the willingness of the accused to have the offences compounded. It may also be done before the institution of the prosecution case. In the event of the petitioner's willing to have the offence compounded, the authorized officer gets jurisdiction and authority to compound the offence and call upon the accused to pay the same. On compliance thereof, the proceedings, if already instituted, would be closed or no further proceedings shall be initiated. It is a matter of volition or willingness on the part of the accused either to accept compounding of the offence or to face the prosecution in the appropriate court. As regards canalization and prescription of the amount of fine for the offences committed Section 194, the penal and charging section prescribes the maximum outer limit within which the compounding fee would be prescribed. The discretion exercised by the delegated legislation, i.e., the executive is controlled by the (24 of 25) [CW-369/2016] specification in the Act. It is not necessary that Section 200 itself should contain the details in that behalf. So long as the compounding fee does not exceed the fine prescribed by penal section, the same cannot be declared to be either exorbitant or irrational or bereft of guidance."
11. From the perusal of the aforesaid Section 70 of the Act of 1950, it is apparent that the assessment in which penalty is to be assessed has been provided in the said Section itself, however, I am inclined to accept the submission of the learned counsel appearing for the petitioners that the value as assessed for compounding does not show the reasons therein. It would, therefore, be appropriate to remand all the matters to the Excise Commissioner, who would provide the details to the petitioners and given them an opportunity of hearing before passing fresh orders on compounding.
12. Accordingly, let the exercise be done for fixing the amount of compounding fees as well as the amount for the revenue loss caused and the Excise Commissioner would be free to reach to a particular conclusion. The amount so calculated would be strictly in terms of provisions of Section 70 of the Act of 1950 (quoted hereinabove). However, the Excise Commissioner would also taken into consideration the law as laid down by the Apex Court, various High Courts and other provisions relating assessment of fees for compounding and the value to be arrived at.
13. Thus, this Court leaves it exclusively for the Excise Commissioner to take a decision, after examining all the aspects of the matters. It is made clear that once the Excise (25 of 25) [CW-369/2016] Commissioner takes a decision under Section 70 of the Act of 1950, it would be at the option of the petitioners to accept the order and deposit the amount so assessed by the Excise Commissioner; failing which, the Excise Commissioner shall be free to take further proceedings in terms of Section 34(C) of the Act of 1950. The decision would be taken by the Excise Commissioner within a period of two months henceforth.
14. Accordingly, the impugned orders in all these writ petitions are set aside, with fresh orders to be passed on the applications under Section 70 of the Act of 1950 which are already pending before the Excise Commissioner. In all those cases where there is no application moved for compounding, the petitioners would be free to move appropriate application for compounding. However, if no application is moved by the petitioners in the said cases within 15 days henceforth and where only show cause notices under Section 58 have been given, the Excise Commissioner would be free to proceed further in terms of Section 34(C) of the Act of 1950 and the Rules of 1956.
15. Accordingly in view of the above, all the writ petitions stand disposed of in terms of the directions and observations, as above.
16. No costs.
(SANJEEV PRAKASH SHARMA),J 7 to 130-Mohan/-
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