Madhya Pradesh High Court
Gwalior Alcobrew Pvt. Ltd Thr vs The State Of Madhya Pradesh Thr on 30 March, 2016
1 WP.1895.2016
Gwalior Alcobrew Pvt. Ltd. Vs. State of M.P. and others
30.03.2016
Shri S.K. Shrivastava, counsel for the petitioner.
Shri S.K. Jain, Government Advocate, for respondent/State.
The present petition under Article 226 of the Constitution of India has been preferred to assail the order dated 02.02.2016 passed by respondent No.3 i.e. Deputy Commissioner, Excise, Flying Squad, Gwalior (M.P.), contained in Annexure P-1, whereby while rejecting the claim of the loss in transit of the foreign liquor to have taken place due to alleged unavoidable reasons, the Deputy Commissioner, Excise, has imposed penalty of Rs.2,86,02,432/- by invoking the provisions of Rule 19(2) of the M.P. Foreign Liquor Rules, 1996 (for brevity "the Rules, 1996").
The learned counsel for the petitioner submits that despite furnishing adequate, cogent material to substantiate the unavoidable circumstances resulting in loss in transit due to accident of the truck carrying foreign liquor, the Deputy Commissioner, Excise, chose to ignore the said material for reasons best known to him while imposing penalty under Section 19(2) of the Rules, 1996. The learned counsel for the petitioner further placed reliance on the decision of this Court in W.P.No.274/2014 [M/s Pernod Ricard India (P) Ltd. Vs. State of MP & 2 others] rendered on 27.10.2014 where this Court in similar circumstances had interfered in the order of penalty passed by the Excise Commissioner by directing reconsideration of the matter by the same authority after holding that mere non-production of FIR to substantiate the plea of loss due to accident is not sufficient to arrive at a decision of penalty, especially when other cogent evidence in regard to the accident was furnished.
In the present case, a bare perusal of the impugned order of 2 WP.1895.2016 Gwalior Alcobrew Pvt. Ltd. Vs. State of M.P. and others the Deputy Commissioner, Excise, Gwalior (M.P.) reflects that the petitioner had neither furnished the FIR nor put up any document as regards insurance claims for the accident in question which was the reason assigned herein to justify not invoking proviso to Rule 19(1) of the Rules, 1996 for claiming waiver of penalty.
Though material has been brought on record in the instant case in shape of various documents including photographs of the damaged truck, the letter of the District Excise Officer, Rairu, Gwalior (M.P.), the letter of the Inspector, Excise, Gauhati dated 20.02.2009, letter dated 21.03.2009 of the Commissioner, Excise, Assam, report regarding destruction of unsuitable Grain Neutral Spirit and some other documents etc. but the fact remains that the authenticity of the documents and also their relevance cannot be assessed while exercising writ jurisdiction especially when the petitioner has failed to avail the alternative, efficacious remedy of appeal before the Commissioner under M.P. Excise Act, 1915.
Learned counsel for the petitioner contends that the said remedy of appeal is not efficacious since 25% of the penalty amount has to be deposited which is extremely onerous.
The Appeal and Revision Rules framed under Section 62(2)
(c) of M.P. Excise Act have recently been amended on 08.05.2012 by substituting the following sub-rule (2) to Rule VI which for ready reference is reproduced below:
"(2) If execution of any order is stayed under sub-rule (1), at least 25 percent of the amount imposed shall be deposited as ordered by the appellate authority."
From the above, it is evident that the amended rule makes it obligatory on the part of the appellant to deposit 25% of the 3 WP.1895.2016 Gwalior Alcobrew Pvt. Ltd. Vs. State of M.P. and others amount assailed, if the stay of execution of the penalty order is sought to be enjoyed.
There is no cavil that the Appeal and Revision Rules have statutory colour. It is further not disputed that the said particular pre-condition of deposit for grant of stay in appeal has not been assailed by the petitioner herein.
In view of the above, petitioner cannot be allowed to pursue this petition merely to circumvent the statutory provision of pre- deposit of 25% of the amount of penalty.
Merely because a statutory provision requires pre-deposit as a sine qua non for grant of stay in appeal in a fiscal statute, the aggrieved person cannot be allowed to circumvent this per- condition and avail remedy of writ under Article 226 of the Constitution of India unless well recognized exceptions for entertaining of writ petition are shown to exist. These well recognized exceptions of entertaining a petition despite availability of statutory alternative remedy are breach of principles of natural justice or the action being against any statutory provision or the order assailed being bereft of jurisdiction, or the order assailed being ultra vires of any constitutional provisions.
None of the above-said exceptions are made out in the present case. Merely because pre-deposit of 25% of the penalty amount as pre-requisite for grant of stay in the appeal is onerous, the same cannot be sufficient to allow the petitioner to avoid filing of appeal unless the said provision of pre-deposit is assailed, which is not the case herein.
So far as the decision of this Court rendered in W.P.No.274/2014 [M/s Pernod Ricard India (P) Ltd. Vs. State of MP & 2 others], Annexure P-14, is concerned, it is seen that in the 4 WP.1895.2016 Gwalior Alcobrew Pvt. Ltd. Vs. State of M.P. and others said case the petitioner had invoked the writ jurisdiction after availing the remedy of appeal.
Consequently, no case for any interference in the present matter is made out and accordingly petition stands dismissed without any cost.
(Sheel Nagu) Judge pd