Madhya Pradesh High Court
M/S Pernod Ricard India Pvt. Ltd. vs The State Of Madhya Pradesh on 30 November, 2015
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
WP - 301/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 289/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 290/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 291/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 292/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 293/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 294/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
2
WP - 295/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 296/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 297/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 298/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 299/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 300/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 302/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 303/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
3
WP - 304/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 305/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 306/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 307/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 308/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 309/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 310/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 311/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 312/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
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THE STATE OF MADHYA PRADESH
4
WP - 313/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 314/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 315/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 316/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 317/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 318/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 319/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 320/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 321/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
5
WP - 322/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 323/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 324/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 325/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 327/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 328/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
WP - 329/2014 (O)
M/S PERNOD RICARD INDIA PVT. LTD.
Vs/-
THE STATE OF MADHYA PRADESH
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For the petitioners: Mr.Sameer Kumar Shrivastava,
Advocate
For the respondents: Mr. Kamal Jain, Government
Advocate
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Present: Hon'ble Mr.Justice Alok Aradhe
6
ORDER
(01/12/2015) Since, common questions of law and fact arise for consideration in this bunch of writ petitions, they were heard analogously and are being decided by this common order.
2. In this bunch of writ petitions, the petitioner has assailed the validity of the orders dated 22.11.2011, 2.5.2013 as well as 10.5.2013 passed by the Deputy Commissioner, Excise, Gwalior, Commissioner, Excise, Gwalior and the Board of Revenue, respectively.
3. The petitioner is a Company registered under the Companies Act, 1956. The petitioner is a sub-licencee in the State of Madhya Pradesh as per the provisions of Excise Act, 1915 and manufactures Indian made foreign liquor. As per the provisions of the Excise Act, whenever a party intends to import Indian made foreign liquor from the State of Madhya Pradesh, it has to make a request to the Excise Department of the State where the Indian made foreign liquor is being imported. Thereupon, the import permit is sent to the concerned person and on the basis of the said import permit, the Excise Department of Government of Madhya Pradesh grants the permission as well as issues transport permit for the purpose of exporting Indian made foreign liquor to the destination point. It is also pertinent to mention here that for every consignment, a permit is granted by the State Government in which quatity of liquor is mentioned. At the destination point, the liquor sent by the licensee is received and measured. If at the time of destination point it is found 7 that the liquor sent by the licensee is less than what has been sent, a remark is made on the Excise Verification Certificate issued by the officer in-charge of the importing unit in terms of Rule 13 of the M.P. Foreign Liquor Rules, 1996 [hereinafter referred to as Rules, 1996]. Rule 16 of the Rules, 1996 deals with permissible limits of losses. Under Rule 16 of the Rules, if the loss in the course of transportation is found to be more than .25%, then the penalty is levied as prescribed under Rule 19 of the Rules, 1996.
4. The petitioner-Company received a notice dated 22.11.2011 issued by the Deputy Excise Commissioner, Gwalior, by which the petitioner was required to deposit a penalty of Rs.61,896/- for loss of liquor in transit, in view of Rule 19 of the Rules, 1996. The petitioner on reply of the notice, filed a reply on 29.2.2012 in which inter-alia it was stated that the Deputy Commissioner, Excise, Gwalior has no authority to levy the penalty four times the duty. It was also pointed out that the measurement on the basis of which the penalty has been quantified is arbitrary and the same has been done behind the back of the petitioner. The Deputy Excise Commissioner by an order dated 10.4.2012 passed an order imposing the penalty. The aforesaid order was affirmed in appeal by the Excise Commissioner vide order dated 2.5.2014 and eventually, by the Board of Revenue by order dated 10.12.2013.
5. Learned counsel for the petitioner has submitted that the provisions of Rule 19 of the Rules were substituted w.e.f. 29.3.2011 under which the power to levy the penalty is 8 equivalent to duty, therefore, the impugned orders levying the penalty to the extent of three times the duty are per se without jurisdiction. Learned counsel for the petitioner submitted that Rule 19 of the Rules, 1996, which was amended w.e.f. 29.3.2011 would apply to the fact situation of the case. In support of the aforesaid submission, learned counsel for the petitioner has placed reliance on decision of the Supreme Court in the case of Zile Singh Vs. State of Haryana and others, (2004) 8 SCC 1. It is further submitted that the petitioner had raised various grounds in the reply which was filed by it before the Deputy Commissioner in the first instance and thereafter, in the appeal as well as before the Board of Revenue. However, the authorities have not adverted to the grounds raised by the petitioner and, therefore, the impugned orders suffer from the vice of non-application of mind and are liable to be quashed.
6. On the other hand, learned Government Advocate for the respondents submitted that the Deputy Commissioner had the authority to levy penalty three times the duty payable on the Indian made foreign liquor and the orders passed by the Deputy Commissioner as well as the Excise Commissioner and the Board of Revenue are perfectly justified, which do not call for any interference by this Court in exercise of powers under Article 227 of the Constitution of India.
7. I have considered the respective submissions made by learned counsel for the parties. From perusal of the impugned order dated 22.11.2011 passed by the Deputy Commissioner, Excise, it is evident that the Deputy Commissioner while 9 passing the impugned order dated 22.11.2011 had taken into account the provision of Rule 19 of the Rules, 1996, which existed prior to 29.3.2011 and has imposed the penalty three times the duty. In Principles of Statutory Interpretation by Justice G.P. Singh 13 t h Edition at page 686, the effect of substitution has been expressed as under:-
"Substitution of a provision results in repeal of the earlier provision and its replacement by the new provision. Substitution thus combines repeal and fresh enactment".
Thus, in other words, when the provision is substituted, the effect in substance is that the old provision is deleted from the statute book and the new provision becomes operative. See: State of Rajasthan Vs. Mangilal Pindwal, AIR 1996 SC 2181, West U.P. Sugar Mills Association Vs. State of U.P., AIR 2002 SC 948 , Zile Singh (supra), Government of India Vs. India Tobacco Association , (2005) 7 SCC 396.
9. In view of aforesaid enunciation of law, it is evident that the Deputy Commissioner, Excise, had no authority to levy the penalty at three times the duty. From perusal of the reply to the show-cause notice as well as the orders passed by the Deputy Commissioner, Excise, Commissioner, Excise and the Board of Revenue, it is evident that neither the Deputy Commissioner nor the Excise Commissioner have adverted to the grounds raised by the petitioner in the reply to the notice issued to it by the Deputy Commissioner, Excise. The impugned orders are cryptic in nature and suffers from the vice of non-application of mind. The impugned orders therefore cannot be sustained in the eye of law. Accordingly, they are quashed.
101 0. The Deputy Commissioner, Excise, is directed to decide the matter afresh by taking into account the objection raised by the petitioner in its reply to the notice dated 22.11.2011. The Deputy Commissioner, Excise, shall decide the question of levy of penalty by taking into account Rule 19 of the Rules, 1996, which was substituted on 29.3.2011. Needless to state that the Deputy Commissioner, Excise, shall pass a speaking order in accordance with law. The aforesaid exercise shall be completed within a period of two months from the date of receipt of certified copy of the order passed today.
With the aforesaid directions, the writ petitions stand disposed of.
(Alok Aradhe) Judge a 11