Orissa High Court
Raghunath Sahu vs State Of Odisha And Others ..... ... on 26 April, 2024
Bench: B.R. Sarangi, G. Satapathy
IN THE HIGH COURT OF ORISSA, AT CUTTACK
W.P.(C) No. 10734 of 2022
Raghunath Sahu ..... Petitioner
Mr. A.K. Patra, Advocate
Vs.
State of Odisha and others ..... Opposite Parties
Mr. P.K. Muduli, AGA &
Mr. R. Sahoo, Advocate
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE G. SATAPATHY
ORDER
26.04.2024 Order No. W.P.(C) Nos. 10734 of 2022, 27829, 27858, 28366, 28368,
08. 28370, 28371, 28372 and 29977 of 2021 These matters are taken up through hybrid mode.
2. Heard Mr. A.K. Patra learned counsel for the petitioner in W.P.(C) No. 10734 of 2022 and Mr. P.K. Rath, learned Senior Advocate for the petitioner in W.P.(C) No. 27829 of 2021 and some other writ petitions; Mr. A.N. Routray, learned counsel appearing in W.P.(C) No. 27858 of 2021; Mr. Mr. P.K. Muduli, learned Additional Government Advocate for the State and Mr. R. Sahoo, learned counsel for Odisha State Beverage Corporation Ltd.
3. In all the above writ petitions, the petitioners seek to quash the order dated 30.06.2021 passed by the Principal, Secretary to Government, Excise Department in compliance to the orders passed by this Court earlier in different writ petitions, whereby the prayer of the petitioners for refund/adjust the differential 35% of Special Covid Fee collected from them on lifting of IMFL & Beer from OSBCL in between 23.05.2020 to 09.07.2020, which was the Page 1 of 6 differential amount of MRP fixed on 23.05.2020 and the MRP revised on 09.07.2020, was rejected.
4. Mr. P.K. Rath, learned Senior Advocate appearing for the petitioners contended that as per notification No. 2367 dated 23.05.2020 issued by the Principal Secretary to Government in Excise Department (Annexure-4 to W.P.(C) No. 27829 of 2021), in exercise of the power conferred by Section-28 (h) of the Odisha Excise Act, 2008 and Rule-160A of Odisha Excise Rules, 2017, the State Government imposed a "Special COVID Fee" on all Foreign Made Foreign Liquor (FMFL), India Made Foreign Liquor (IMFL), Beer, Wine and RTD (Ready-to-drink) alcoholic beverages sold in the State. The fee shall to be arrived at by multiplying the pre rounded value of 2020-21 base price (Cost to Retailer+ Retailer Margin) by a factor of 1.33 and rounded to next multiply of 10 so that the final MRP of the product is 150% of 2019-20 retail MRP. Special COVID Fee shall be collected by OSBCL from licensed retailers during sale of alcoholic beverages from Depot by including this amount in the invoice price. Accordingly the petitioners have paid such dues to the Corporation while lifting the articles. 4.1 Reference was also made to the letter No. 2368 dated 23.05.2020 issued by the Principal Secretary to Government in Excise Department (Annexure-5 to W.P.(C) No. 27829 of 2021), where it has been specifically mentioned that with the issue of order regarding home delivery of all Foreign Made Foreign Liquor (FMFL), India Made Foreign Liquor (IMFL), Beer, Wine and RTD (Ready-to-drink) by the FL OFF and FL ON Licensees, all these Licensees are allowed to sell the remaining stocks available with them at the time of closure, at the enhanced MRP. They should deposit the differential amount ( i.e. MRP of 2020-21 - MRP of Page 2 of 6 2019-20) with the Corporation and the Corporation will deposit the amount with Government under proper head of account. 4.2 Learned counsel also referred to the notification dated 09.07.2020 issued by the Principal Secretary to Government in Excise Department (Part of Annexure-8 to W.P.(C) No. 27829 of 2021) i.e. Revision of Special COVID Fees on alcoholic beverages sold in the State and contended that while finalizing the MRP of alcoholic beverages, the said fee shall be applicable on pre rounded value to consumer i.e. (Cost to Retailer + Retailer Margin) of existing base price by multiplying it by a factor of 1.08 and in such a manner that after application of VAT, Retailer's Margin (on wholesale issue price) and Special Covid Fee, the final MRP of the product (rounded off to next 10) so arrived will be around 15% higher than the MRP of 2019-20 for most of the products. The exact revised MRP for all products based on above principles will be notified by OSBC and will also be displayed on OSBC's website for reference.
4.3 It is further contended that adhering to such notifications though the price has been fixed, the petitioners have paid higher price, therefore, they have approached this Court by filing writ petitions for refund of such excess amount deposited, to which, this Court directed to consider their grievance, but the State Government their grievances in compliance to the orders passed by this Court have rejected the prayer, which cannot be sustained in the eye of law.
5. Mr. P.K. Muduli, learned Additional Government Advocate appearing for the State contended that since the sale has been made and as such whether the petitioners are entitled for refund/adjust the differential 35% of Special Covid Fee collected Page 3 of 6 from them on lifting of IMFL & Beer from OSBCL in between 23.05.2020 to 09.07.2020, which was the differential amount of MRP fixed on 23.05.2020 and the MRP revised on 09.07.2020, was to be considered and as such, if the consumption has been made by the consumers, now the question of refund of that amount does not arise.
6. Mr. R. Sahoo, learned counsel appearing for the corporation contended that the levy of demand had been made at the point when the petitioners lift the materials. Therefore, once levy has been raised and payment has been made, the question of refund/adjust at this stage does not arise, because they have to have the capability of consumption itself and as such the refund as prayed for cannot be sustained and order passed by the State Government is well justified, which does not warrant interference at this stage.
7. Having heard learned counsel for the parties and after going through records, it appears that in compliance to the orders passed by this Court in earlier writ petitions, the representations filed by the petitioners so far as refund/adjust the differential 35% of Special Covid Fee collected from them on lifting of IMFL & Beer from OSBCL in between 23.05.2020 to 09.07.2020, which was the differential amount of MRP fixed on 23.05.2020 and the MRP revised on 09.07.2020, was considered vide impugned order dated 30.06.2021. On perusal of the order impugned it is made clear that the allegations have been made by the petitioners that they could not sell the lifted stock at the MRP fixed on 23.05.2020, i.e. 50% enhanced price on the existing MRP of 2019-20 or thereafter and thereby the petitioners' 35 % (50%-15%) could not be realized from the consumers and each of them suffered loss to that extent. But nothing has been placed before the Government to show the loss Page 4 of 6 incurred by the petitioners, and only contentions have been made before the State Government to that extent. Therefore, the Government in excise department after considering the grievance made passed the order impugned, which clearly specifies that the petitioners have realized their dues from the customers. The differential amount that could not allegedly be realized from the customers due to reduction in MRP is a facet of the risk of business in liquor and is to be borne by the petitioner. Further the Government in Excise Department has also stated that the failure of the petitioner to sell the lifted stock before the reduction of MRP effective from 10.07.2020 is attributed to the failure of the petitioner to manage the inventory properly and the same does not entitle the petitioner to a refund of the different price. Once the petitioners have adhered to the excise policy of the Government, they are required to lift the minimum guaranteed quantity and as such some natural calamities was there, the same has been taken care by the state granting some relaxation. At this point of time, the claim made by the petitioners for refund/adjust the differential 35% of Special Covid Fee collected from them on lifting of IMFL & Beer from OSBCL in between 23.05.2020 to 09.07.2020 is only matter remain within the petitioners and that cannot and could not have been adjusted by the State Government, because of the stipulations made there under. As such, exercise of power conferred under section 28 (h) of the Odisha Excise Act, 2008 and Rule-160 (A) of Odisha Excise Rules, 2017, the Government in Excise Department reduced the "Special Covid Fee" on alcoholic beverages sold in the State from 50% to 15 % vide its letter dated 09.07.2020. Such reduction was necessary to bridge the gap between the MRP of foreign liquor in Odisha and the MRP prevalent in neighbouring States like West Bengal since the lower Page 5 of 6 MRP in neighbouring states was leading to entry of liquor from these States.
8. Therefore, the State Government has taken all precautionary measures to protect the interest of the petitioners and as such, weaver of MGQ also because of the Covid Pandemic, which has also been accepted by the Government. In that view of the matter, this Court does not find any illegality or irregularity in the impugned order dated 30.06.2021 passed by the Principal, Secretary to Government, Excise Department so as to cause interference by this Court. Consequently, this Court does not find any merit in the writ petitions, which are accordingly dismissed.
(DR. B.R. SARANGI)
JUDGE
Arun (G. SATAPATHY)
JUDGE
Signature Not Verified
Digitally Signed
Signed by: ARUN KUMAR MISHRA
Designation: ADR-cum-Addl. Principal Secretary Reason: Authentication Location: High Court of Orissa Date: 01-May-2024 10:52:36 Page 6 of 6