Uttarakhand High Court
WPMS/1335/2020 on 12 January, 2022
Author: Manoj Kumar Tiwari
Bench: Manoj Kumar Tiwari
IN THE HIGH COURT OF UTTARAKHAND
AT NAINITAL
ON THE 12TH DAY OF JANUARY, 2022
BEFORE:
HON'BLE SHRI JUSTICE MANOJ KUMAR TIWARI
Writ Petition (M/S) No. 1335 of 2020
BETWEEN:
M/s VLCC Personal Care Ltd.
IIE SIDCUL ...Petitioner
(By Mr. Siddharth Ranka and Mr. Yogesh Kumar Pacholia, Advocates)
AND:
State of Uttarakhand and others ...Respondents
(By Mr. M.C. Pandey, Additional Advocate General for the State)
ORDER
Heard learned counsel for the parties through Video Conferencing.
2. Petitioner is engaged in production of hand sanitizer. Petitioner contends that industrial alcohol is used as raw material for production of hand sanitizer, which do not come within definition of 'liquor' as defined in Excise Act, 1910, therefore, provision contained in Section 63 the said Act cannot be invoked against the petitioner.
3. Petitioner further contends that State Excise Department have jurisdiction only in respect of intoxicating liquor meant for human consumption and provision contained in Excise Act, 1910 can have no application to denatured spirit, which is unfit for human consumption, and hand sanitizer made out of denatured spirit.
24. According to the order passed by Excise Commissioner, strength of alcohol in the finished product i.e., hand sanitizer was found to be less than what was indicated in the container. Learned counsel for the petitioner submits that State Excise Authorities cannot go into the question of quality of the finished product, which is beyond the scope of their power.
5. It is contended on behalf of the petitioner that hand sanitizer made of denatured spirit cannot be treated as intoxicant so as to attract the provision contained under Section 63 of Excise Act, 1910. Learned counsel for the petitioner has relied upon the provisions contained in Sections 3 (3-a), 3 (8), 3 (9), 3 (11) and 3 (13) to buttress his argument that industrial alcohol is beyond purview of Excise Act, 1910. He has also referred to entry 51 to List II of Seventh Schedule of the Constitution, in support of his contention that State Government is empowered to levy excise duty on alcoholic liquor meant for human consumption alone and not on industrial alcohol. He further submits that it is nobody's case that the petitioner deals in liquor meant for human consumption, therefore, Excise Act, 1910 can have no application against the petitioner.
6. Learned counsel for the petitioner further submitted that despite the interim order dated 12.01.2021 passed by this Court, whereby effect and operation of the orders impugned in the writ petition dated 31.07.2020 and 01.07.2020 3 was stayed, the finished product i.e., hand sanitizer has not been released in favour of petitioner, although the denatured spirit, used as raw material for producing hand sanitizer, was released and suspension order passed in respect of petitioner's license has been revoked. He further submits that since the hand sanitizer has a limited shelf-life, therefore, is a perishable commodity, as such, if respondents are not directed to release the finished product i.e., hand sanitizer in favour of the petitioner, then it will become unusable, resulting in huge loss to the petitioner and it will also be a national loss during these times of pandemic.
7. Mr. M.C. Pandey, Assistant Advocate General for the State submitted that petitioner has an alternate remedy of filing revision under Excise Act, 1910 and also of approaching the Competent Court of law under provisions of Cr.P.C, 1973.
8. This Court is not impressed by the objection raised by learned State Counsel. Since competence of State Excise Authorities for taking impugned action has been challenged in this writ petition, therefore, relegating petitioner to some other forum would be unwarranted. Petitioner has a prima-facie case, balance of convenience is also in his favour. He would suffer irreparable injury if the hand sanitizer lying in his factory premises becomes unfit for use after date of its expiry.
49. Having regard to the aforesaid facts and circumstances of the case, this Court is inclined to pass an interim order in favour of the petitioner, therefore, it is provided that subject to petitioner depositing a sum of ` 15,00,000/- (Rupees fifteen lakh only) as security with the Excise Commissioner within one week from today, hand sanitizer lying in the premises of the petitioner at Haridwar, presently under custody of the State Authorities, shall be released in his favour within one week from date of deposit of the aforesaid amount. This, however, will be without prejudice to the rights of the respondents to retain possession over such quantity of hand sanitizer as would be necessary for the purpose of laboratory testing etc.
10. Let certified copy of this order be issued to the parties within 24 hours.
(MANOJ KUMAR TIWARI, J.) Shubham