Kerala High Court
The Circle Inspector Of Excise vs Kuruvillaulahannan on 8 November, 2016
Bench: K.Surendra Mohan, Mary Joseph
IN THE HIGH COURT OF KERALAAT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN
&
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
THURSDAY,THE 2ND DAY OF MARCH 2017/11TH PHALGUNA, 1938
WA.No. 357 of 2017 () IN WP(C).9788/2016
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AGAINST THE JUDGMENT IN WP(C) 9788/2016 of HIGH COURT OF KERALA
DATED 08-11-2016
APPELLANTS/RESPONDENTS:
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1. THE CIRCLE INSPECTOR OF EXCISE
NEYYATTINKARA,
THIRUVANANTHAPURAM DISTRICT.
2. THE DEPUTY COMMISSIONER OF EXCISE
THIRUVANANTHAPURAM-695 001.
3. THE EXCISE COMMISSIONER
COMMISSIONERATE OF EXCISE,
EXCISE HEAD QUARTERS,
NANDAVANAM, THIRUVANANTHAPURAM-695 033.
4. STATE OF KERALA
REPRESENTED BY ITS SECRETARY,
TAXES (A) DEPARTMENT,
GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM-695 001.
BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE
RESPONDENT/PETITIONER:
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KURUVILLAULAHANNAN
S/O LATE ULAHANNAN, NIRAPPUKATTIL HOUSE,
PIRAVOM P.O.,ERNAKULAM DISTRICT,
PIN-686 612.
R BYADV.SRI.M.G.KARTHIKEYAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 02-03-2017, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
AV
K.SURENDRA MOHAN & MARY JOSEPH, JJ.
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W.A.No.357 of 2017
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Dated this the 2nd day of March, 2017
J U D G M E N T
Surendra Mohan, J.
The State is in appeal challenging the judgment of the learned Single Judge dated 08.11.2016, allowing W.P.(C).No.9788 of 2016. The writ petition was filed by the respondent herein challenging Ext.P6 communication issued by the first respondent demanding an amount of 5,50,581/- as abkari dues, under the Amnesty Scheme, the benefit of which was availed by the respondent.
2. The respondent was the licensee in respect of some arrack shops during the year 1993-94. He committed default in payment of the kist amount that was to be paid by him. Therefore, the arrears were adjusted from the security amount deposited by him. Thereafter, he was directed to make good the deficient security. At the said stage, the Government introduced an Amnesty Scheme, evidenced in the writ petition by Ext.P8. The respondent availed the benefit of the said scheme. The total amount payable by the respondent under the Amnesty Scheme was 22,02,324/- (Rupees Twenty two lakhs two thousand three hundred and twenty four only). According to the respondent, he was entitled to be given credit for the amount of 5,99,740/- that was collected by the appellants, by conducting the abkari shops under Departmental W.A.No.357 of 2017 2 Management. The said amount being revenue earned from the arrack shops in respect of the abkari arrears concerned, it was contended that he was entitled to be given credit for the same.
3. The respondent had earlier approached this Court by filing W.P.(C).No.21186 of 2008 complaining of the delay in sanctioning the Amnesty Scheme. It was also contended that, he was entitled to be given credit for the amount collected, while the shops were under Departmental Management. This Court by Ext.P1 judgment, directed the Departmental Management fee to be adjusted and to quantify the amount due from the respondents on the said basis. Though a Writ Appeal was filed against the said judgment, by Ext.P2 interim order, the respondent was directed to remit the amount due in three instalments. Thereafter, by Ext.P3, the Writ Appeal was dismissed. The said proceedings were all in the year 2009. It was in the above circumstances that Ext.P6 proceedings were issued on 28.01.2016. Therefore, the respondent challenged the same before this Court. The learned Single Judge after considering the contentions of the respondent as well as the appellants herein, has found that, no further amount was liable to be recovered from the respondent and has quashed Ext.P6. The State is in appeal against the said judgment.
4. According to the learned Government Pleader, there is absolutely no justification for the contention that the amount collected through Departmental Management of the arrack shops W.A.No.357 of 2017 3 was liable to be adjusted towards the dues payable by the respondent. It is, therefore, contended that the learned Single Judge has not considered the issues in the proper perspective. The learned Government Pleader, therefore, seeks interference with the judgment appealed against.
5. We have heard Adv.Sri.M.G.Karthikeyan, who appears for the respondent as well. It is pointed out by the learned counsel that, the issue as to whether the amount collected through Departmental Management should be adjusted from the dues of the respondent has been decided by Ext.P1 judgment and confirmed by Ext.P3 judgment of the Division Bench. Though the appellants had filed a Special Leave Petition before the Apex Court in the matter, the same was also dismissed. Therefore, according to the learned counsel, the issue is no longer res integra. The counsel, therefore, seeks dismissal of the Writ Appeal.
6. Heard. A perusal of Ext.P1 shows that, a learned Single Judge of this Court has in the said judgment found that the respondent was entitled to be given credit for the amount that was recovered by the State through Departmental Management of the abkari shops. Writ Appeal No.1976 of 2008 filed challenging Ext.P1 was dismissed by Ext.P3 judgment. We are informed that the State had unsuccessfully challenged Ext.P3 before the Apex Court also. Any how, it cannot be contended at this length of time that, the respondent cannot be permitted to claim the benefit of the said W.A.No.357 of 2017 4 amount, while computing the dues payable by him. Counsel for the respondent has brought to our notice the judgment in Lucka and Another v. State of Kerala and Others [2015 (5) KHC 111 (DB)] to which one of us was a party, where it has been categorically held that, the licensee is entitled to the benefit of the amount collected by conducting the abkari shops under Departmental Management. In this case, the issue is also covered by Ext.P1 judgment rendered inter parties, which has become final. Therefore, we are not satisfied that, the said contention is available to the appellants for being urged in these proceedings. The learned Single Judge has found that excess payment has been made by the respondent to the State, when the amount collected by way of Departmental Management is also adjusted.
We do not find any infirmity in the said judgment warranting interference therewith in appeal for the foregoing reasons. This appeal fails and the same is accordingly dismissed.
Sd/-
K.SURENDRA MOHAN JUDGE Sd/-
MARY JOSEPH JUDGE AV /True Copy/ P.A to Judge