Madras High Court
State Of Tamil Nadu Rep. By Secretary To ... vs Tvl.South Indian Sugar Mills ... on 16 March, 2004
Author: D. Murugesan
Bench: N. Dhinakar, D. Murugesan
JUDGMENT D. Murugesan, J.
1. The above writ appeals arise out of the common order dated 30.1.2001 made in a batch of writ petitions in W.P.Nos.9707 of 2000 etc. As the issues raised in all these writ appeals are common, they are taken up together for disposal by this order.
2. The State of Tamil Nadu represented by its Secretary to Government, Home (Prohibition and Excise) Department and the Commissioner of Prohibition and Excise, are the appellants in all these writ appeals. The respondent in each of the writ appeals is either the distillery or the industry dealing with industrial alcohol as chemical unit or in some other capacity.
3. In exercise of the powers conferred by Sections 17-B, 17-C, 17-D, 17-E, 18-B, 18-C, and 54 of the Tamil Nadu Prohibition Act, 1937, Tamil Nadu Act 10 of 1937 (hereinafter referred to as the "Act"), the Tamil Nadu Distillery Rules, 1981 (hereinafter referred to as the "Rules") were made for the establishment and working of distilleries, for regulating the manufacture, issue transport and export of spirits including denatured spirit therefrom and for the inspection and supervision. Rule 6 of the Rules enables the State Government to levy excise duty and the vend fee. The question as to whether the State is empowered to levy excise duty and/or vend fee in respect of industrial alcohol came up for consideration before the Supreme Court consisting of Seven Judges in "SYNTHETICS & CHEMICALS LTD. ETC. v. STATE OF U.P. AND OTHERS ". The Supreme Court considered the question as to whether intoxicating liquor in Entry 8 of List II to the Constitution is confined to potable liquor or includes all liquors. After considering the legislative competency of the State in Entry 8 of List II and Entry 51 of List II, the contention of the State that it has exclusive right to deal in liquor and that the Parliament has no power to legislate on industrial alcohol since industrial alcohol was also alcoholic liquor for consumption, was negatived by the Supreme Court. It was further held that, by virtue of those Entries, the State is empowered to enact laws to levy duty or tax on potable alcohol and not on industrial alcohol which is not fit for human consumption. The Court further held that the State has the power to regulate the use of alcohol and that power must include the power to make provisions to prevent and/or to check industrial alcohol often being used as intoxicating or drinkable alcohol.
4. In view of the above, provisions relating to levy of tax or charges imposts by the States upon the industrial alcohol viz., alcohol used and useable for industrial purpose were held unconstitutional. Pursuant to the said judgment, the State Government amended the Rules by deleting the provisions relating to the levy of excise duty and vend fee on industrial alcohol manufactured by the distilleries and in that place, Rule 5-A was introduced by G.O.Ms.No.662, Home Prohibition and Excise (III) Department dated 4.6.90. By the said Rule, every licensee was required to pay 50 paise per bulk litre of sprit produced in the distillery towards administrative service fee, before the spirit is issued from the distillery. There is no dispute that the distilleries and the chemical units in question have been paying the said administrative service fee.
5. In G.O.Ms.No.64 Home Prohibition and Excise (XIII) Department dated 12.4.2000, Rule 5-A was amended by increasing the administrative service fee from 50 paise to Re.1/- per bulk litre of industrial alcohol produced by the distilleries.
6. The respondent in each of the writ appeals questioned both the above Government Orders basically on the following grounds, viz., (1) the State has no legislative competency to collect administrative fee. (2) In any event, the levy of administrative service fee is only to meet the expenses incurred by the State to regulate the industrial alcohol which is only to prevent the misuse and diversion of such industrial alcohol for illicit potable purpose. When such levy is only by way of service fee, the amount collected by the State should commensurate with the service rendered for the respondents by the State. The amount collected by way of administrative fee has no nexus with the principles of quid pro quo, such levy of fee would be arbitrary, excessive and consequently unsustainable. In that event, it is for the State Government to justify the levy of 50 paise while Rule 5-A was introduced on 4.6.90 and the enhancement of the said fee to Re.1/- by amending the Rule on 12.4.2000.
7. On the other hand, insertion of Rule 5-A as well as the increase in quantum of administrative service fee was sought to be justified by the State on the ground that the State has power to regulate the industrial alcohol and in order to regulate the industrial alcohol and to prevent the misuse and diversion of the same, the State has to necessarily supervise the industries and for that purpose, the State was justified in levying administrative fee. As far as the quantum of administrative fee, it was argued that 50 paise per bulk litre was levied as administrative fee from 4.6.90 and the respondents did not question the same for nearly about ten years and only when the same was enhanced to Re.1/- per bulk litre, they have come forward with the challenge and the production of industrial alcohol never reached 100% and it was only little above 50% and, nevertheless, the State had to incur the expenses of the staff engaged in supervision for whole of the year.
8. Except one writ petitioner, others did not question the levy on the ground of want of legislative competency, but they have mainly questioned the levy as excess, as there was no quid pro quo. Hence, the following issues were framed by the learned single Judge for consideration.
(i) Whether the State Government is empowered to levy the administrative fee, as contemplated under Rule 5-A of the Tamil Nadu Distillery Rules?
(ii) If the State Legislature has competence to levy such fee, whether the quantum of fee levied by the State is liable to be set aside on the ground that there is no quid pro quo by way of service rendered by the State in lieu of such levy?
Insofar as the power of the State Government to levy the administrative fee, as contemplated under Rule 5-A of the Rules, the learned Judge, after elaborately considering various Supreme Court judgments, ultimately found that the State has the power to regulate the movement of industrial alcohol in order to prevent the misuse of the same for illegal purpose of using it for potable purpose and hence the State is competent enough to make a levy by way of administrative or regulatory charges. Accordingly, the learned Judge held Rule 5-A of the Rules is valid, legal and within the legislative competence of the State. We must hasten to add that none of the respondents have questioned this finding of the learned Judge as to the legislative competency of the State Government in introducing Rule 5-A in the Rules by filing separate writ appeals. In the absence of challenge to the said finding, the finding has become final.
9. Insofar as the issue as to whether the levy is vitiated for want of quid pro quo, the learned Judge, again after considering various judgments of the Supreme Court, ultimately held that the levy of administrative service fee is to be considered for services rendered by the State, then the principle of quid pro quo would be applicable, and in the event the levy of administrative fee is only as a regulatory measure, then, the question of quid pro quo does not arise. On the basis of the above finding, the learned Judge further held that the administrative service fee levied is only as a regulatory measure and not for providing any service to the respondents and, therefore, the levy is not vitiated for want of quid pro quo.
10. The learned Judge, thereafter, based upon the statement filed by the Special Secretary to Government, Prohibition and Excise Department in regard to the total amount of collection of levy by way of administrative service fee and the total expenses incurred by the Government in respect of the excise department for the excise years between 1990-91 and 1998-99, ultimately held that the increase of the administrative service fee from 50 paise to Re.1/- is excessive. Accordingly, G.O.Ms.No.64, Home Prohibition and Excise (XIII) Department dated 12.4.2000 was quashed only in respect of the enhancement and, in all other respects, dismissed the writ petitions. Aggrieved by the said order, the State has preferred these writ appeals.
11. The learned Advocate General, though argued to justify the increase of administrative service fee from 50 paise to Re.1/-, which we would deal with in the later portion of the order, further raised certain additional grounds by filing W.A.M.P.No.1173 of 2004 in W.A.No.1566 of 2001. Based upon the said petition, the learned Advocate General submitted that rectified spirit, by itself, is not an industrial alcohol and the licence given to manufacture the rectified spirit, which is liable to be converted into Indian Made Foreign Spirit, shall lie within the powers of the State Government in Entries 8 and 66 of List II of the Constitution. In that event, de hors Rule 5-A of the Rules, the State is empowered to levy tax, as it is within the purview of the State. Before proceeding further, we must answer the said submission of the learned Advocate General. So far as the power of the Central and State Governments to levy excise duty or tax is concerned, the authoritative pronouncement by the Supreme Court in Synthetics and Chemicals Ltd.'s case (supra) holds the field even today. After 1956 amendment to the Industries Regulation and Development Act, 1951 bringing alcoholic industries (under fermentation industries) as item 26 of the First Schedule to IDR Act, the control of the said industries is vested exclusively in the Union and, thereafter, the licence to manufacture both potable and non-potable alcohol is also vested in the Central Government. Distilleries manufacture alcohol under the Central licences under IDR Act. The State cannot, by itself, manufacture industrial alcohol without the permission of the Central Government. The States cannot claim to pass a right which they do not possess nor the States can claim exclusive right to produce and manufacture industrial alcohol which are manufactured under the grant of licence from the Central Government.
12. After the amendment, the State is left with only the following powers to legislate in respect of alcohol:
a) it may pass any legislation in the nature of prohibition of potable liquor referable to entry 6 of list II and regulating powers.
b) it may lay down regulations to ensure that non-potable alcohol is not diverted and misused as a substitute for potable alcohol.
c) the State may charge excise duty on potable alcohol and sales tax under entry 52 of list II. However, sales tax cannot be charged on industrial alcohol in the present case, because under the Ethyl Alcohol (Price Control) Orders, sales tax cannot be charged by the State on industrial alcohol.
d) However, in case State is rendering any service, as distinct from its claim of so-called grant of privilege, it may charge fees based on quid pro quo.
Considering the above, Their Lordships of the Supreme Court had authoritatively held that in so far as the industrial alcohol, levy of tax shall only be made by the Central Government and there is no legislative competence for the State to make such levy. Their Lordships have also held that the State is empowered to regulate the use of alcohol and such power must include power to make provisions to prevent and/or check industrial alcohol often being used as intoxicating or drinkable alcohol. Only in view of the above and after the said judgment, Rule 5-A was introduced w.e.f. 4.6.90.
13. The law laid down in Synthetics and Chemicals Ltd.'s case was quoted with approval in "STATE OF U.P. AND OTHERS v. MODI DISTILLERY AND OTHERS ". Again the said judgment came up for consideration before the Supreme Court in "BIHAR DISTILLERY AND ANOTHER v. UNION OF INDIA AND OTHERS ". It was firstly and foremostly contended that rectified spirit is "intoxicating liquor" within the meaning of Entry 8 of List II and hence, outside the purview of Entry 24 of List II which in turn means, that the Union cannot take over its control by making a declaration in terms of Entry 52 of List I. It was also argued that item 26 of Schedule to the IDR Act is ineffective and invalid insofar as it seeks to regulate the production and manufacture of rectified spirit. After considering the said submission, the Supreme Court held that the decision in Synthetics and Chemicals Ltd.'s case did not deal with the above aspect, as it was mainly concerned with industrial alcohol, i.e., denatured rectified spirit. The Supreme Court found that Union is not certainly interested in or concerned with the manufactural process of country liquor or Indian Made Foreign Liquors and the said situation will leave large enough room for abuse and misuse of rectified spirit. The Supreme Court further found that, therefore, a general control and supervision of the process of manufacture of rectified spirit and its use and disposal was necessary. By elaborating the above, Their Lordships proceeded further that so far as the industries engaged in manufacturing rectified spirit meant exclusively for supply to industries (industries other than those engaged in obtaining or manufacture of potable liquors), whether after denaturing it or without denaturing it, are concerned, they shall be under the total and exclusive control of the Union and be governed by the IDR Act and the rules and regulations made thereunder. So far as the industries engaged in manufacture of rectified spirit exclusively for the purpose of obtaining or manufacturing potable liquors or supplying the same to the State Government or its nominees for the said purpose, are concerned, they shall be under the total and exclusive control of the States in all respects and at all stages including the establishment of the distillery. Their Lordships further held that where the entire rectified spirit produced is supplied for potable purposes or to the extent it is so supplied, as the case may be, the levy of excise duty and all other control shall be that of the State.
14. Placing reliance on the latter portion of the above judgment, the learned Advocate General submitted that the State Government has the exclusive control even from the stage of molasses until it is converted to rectified spirit. It is the contention of the learned Advocate General that though Rule 5-A enables the State to levy administrative service fee, de hors, the State is empowered to levy excise duty on rectified spirit, as there is a possibility for the rectified spirit manufactured by the respondents for being used and diverted to the industries engaged in the manufacture of potable liquor. To support the said contention, he would also rely upon a Division Bench judgment of this Court in "M/S ARUNA SUGARS LIMITED REP. BY ITS MANAGING DIRECTOR, MADRAS v. THE STATE OF TAMIL NADU REP. BY THE SECRETARY TO GOVERNMENT, HOME DEPARTMENT, MADRAS AND OTHERS (2003 W.L.R. 314)", where this Court has held that as the State has the power to prohibit and regulate manufacture of alcoholic liquor used for human consumption, power of State to regulate manufacture of alcohol through molasses cannot be taken away, as Entry 52 of List I governs only Entry 24 in List II and not Entry 8 in List II.
15. When the decision in Bihar Distillery case came up for consideration before Their Lordships of the Supreme Court in "DECCAN SUGAR AND ABKARI COMPANY LTD. v. COMMISSIONER OF EXCISE, A.P. ", Their Lordships found that the decision in Bihar Distillery case ran counter to the scheme of legislative competence as examined in Synthetics and Chemicals Ltd.'s case as well as in Modi Distillery case. Holding so, the matter was referred to a larger Bench for reconsideration of the judgment in Bihar Distillery case. A larger Bench of the Supreme Court in "DECCAN SUGAR AND ABKARI COMPANY LTD. v. COMMISSIONER OF EXCISE, A.P. (2004 (1) SCC 243)" followed the law laid down in Synthetics case as well as Modi Distillery case, though without expressly overruling the decision in Bihar Distillery case.
16. In "STATE OF U.P. AND OTHERS v. VAM ORGANIC CHEMICALS LTD. AND OTHERS ", placing reliance on the judgment in Synthetics and Chemicals Ltd.'s case as well as the larger Bench decision in Deccan Sugar and Abkari Company Ltd.'s case, Their Lordships have held that the State cannot legislate on industrial alcohol despite the fact that such industrial alcohol has the potential to use as alcoholic liquor. Further, in paragraph 19 of the judgment, Their Lordships have also held that Parliament alone can legislate in respect of liquor which is unfit for human consumption and that the State Government can only charge regulatory fee for the purpose of payment of salary to the staff and to see that no non-potable alcohol is converted into potable alcohol.
17. On a careful reading of the above law laid down by the Supreme Court, it is now well settled that insofar as alcoholic liquor fit for human consumption, the State is empowered to levy excise duty or tax and insofar as industrial alcohol which is not fit for human consumption as such, it is only the Parliament which has the control for levying the excise duty. However, the States have the power to regulate the use of alcohol and that power must include power to make provisions to prevent and/or check industrial alcohol often being used as intoxicating or drinkable alcohol.
18. In view of the authoritative pronouncement of the Supreme Court, the contention of the learned Advocate General that the State has got power under Entry 8 of List II to levy duty or tax even while in the process of manufacture of rectified spirit as long as the rectified spirit is amenable for being converted into one of potable liquor for human consumption cannot be accepted. Therefore, the submission of the learned Advocate General placing reliance on Bihar Distillery case and the Division Bench judgment of this Court in M/s Aruna Sugars Ltd.'s case reported in 2003 W.L.R. 314 cannot be accepted. Our attention was also drawn that before the Division Bench, in Aruna Sugars Ltd.'s case, the decision in Synthetics and Chemicals Ltd.'s case was not placed for consideration in detail. Hence, the contention of the learned Advocate General that the State is empowered to levy excise duty or tax even on rectified spirit as it is capable of being converted into Indian Made Foreign Spirit as potable alcoholic liquor cannot be accepted.
19. That apart, there is another hurdle to accept the said submission. This ground was not neither raised in the writ petitions nor argued before the learned single Judge and, consequently, there was no discussion on this issue. In "ELECTRONICS CORPORATION OF INDIA LTD. AND OTHERS v. SECRETARY, REVENUE DEPARTMENT, GOVT. OF ANDHRA PRADESH AND OTHERS ", a Constitution Bench of the Supreme Court, while considered the case of a lease by the Union of India through the Department of Atomic Energy and a company registered under the Companies Act, 1956. In that case the entire matter was dealt with and resulted in disposal by the High Court of Andhra Pradesh on the ground that the company was a lessee of the Union of India. At the time of appeal before the Supreme Court, a case was put up by the appellant Company that it was not a lessee of the Union of India in respect of the land and, therefore, there was no lease in its favour. While negativing the said contention, the Supreme Court held that it is quite the reverse of the case of the appellant Company in the writ petition and therefore, it is an impermissible submission. Holding so, the Supreme Court declined to entertain the said submission.
20. In "MODERN INSULATORS LTD. v. ORIENTAL INSURANCE COMPANY LTD. ", again the Supreme Court did not allow the appellant therein to urge new facts. In that case, the appellant Modern Insulators Limited urged before the State Commission that the property damaged was not covered under the insurance policy. However, this plea was given a go-by before the National Commission and a new plea was taken up in the grounds of appeal that the terms and conditions of insurance policy were violated by the appellant by using kiln furniture, though the National Commission accepted the new ground and allowed the appeal, the Supreme Court set aside the order of the National Commission which was passed on the new plea.
21. Coming to the facts of this case, Rule 5-A was inserted only in pursuance to the judgment of the Supreme Court in Synthetics and Chemicals Ltd.'s case entitling the State Government, the appellants, to levy administrative service fee. This practice of levy of administrative service fee is in vogue from 4.6.90 and the State is collecting such fee from each of the respondent-distillery. On 12.6.2000, the said fee of 50 paise was increased to Re.1/=. When these Government Orders were questioned in the writ petitions, the State Government only justified the insertion of Rule 5-A and also the quantum of administrative service fee. At no point of time it was either raised or argued before the learned Judge as to the power of the State Government even to levy excise duty or tax on the rectified spirit, as it has the potential to be used to manufacture alcoholic liquor. Such a new ground cannot also be entertained to be raised at the appellate stage. In view of the above, we are not inclined to accept the submission of the learned Advocate General as to the power of the State Government to levy tax or fee on industrial alcohol, which is non-potable, by exercise of power either under Entry 8 or under Entry 51 of List II.
22. This leads us to the next question as to whether the administrative service fee collected is towards the service rendered by the State or by way of regulatory measure. The levy of fee should commensurate with the service rendered by the department and in which event the theory of quid pro quo is necessary. The learned single Judge, after analysing the entire issue, factually found that the administrative service fee sought to be collected in terms of Rule 5-A is not for the service rendered and in that event there is no question of applying quid pro quo. The learned Judge has also found that the State is empowered to supervise the manufacturing process of rectified spirit in order to regulate and also to prevent the distilleries from diverting the industrial alcohol so manufactured to the industries manufacturing potable Indian Made Foreign Liquor etc. In that event, the administrative service fee need not be with reference to the service rendered, but it is only towards the cost incurred by the State Government in regulating the manufacturing process. Whether the administrative service fee is collected for regulating the trade or the service rendered by the appellant-State to the distilleries is a matter for further consideration. While considering the scope of the legislative competency of the States to levy excise duty or tax, the Supreme Court in Synthetics and Chemicals Ltd.'s case, has held that insofar the industrial alcohol which is not potable as such, the State cannot levy excise duty or tax but, in case, the State is rendering any service, as distinct from its claim of so called grant of privilege, it may charge fees based on quid pro quo. The same view is expressed in "STATE OF U.P. AND OTHERS v. VAM ORGANIC CHEMICALS LTD. AND OTHERS . In paragraph 29, Their Lordships have observed that the State's power is thus limited to (i) the regulation of non-potable alcohol for the limited purpose of preventing its use as alcoholic liquor, and (ii) the charging of fees based on quid pro quo. The amendment to the Rules was brought in by inserting Rule 5-A, as pursuant to the judgment of the Supreme Court in Synthetics and Chemicals Ltd.'s case, it is the admitted case of the appellant-State that the levy of administrative service fee is to regulate the trade, as there is every possibility that the industrial alcohol is being illegally diverted and converted into potable one and to prevent the same, the State Government should take necessary preventive measures. In order to prevent the illegal diversion of the industrial alcohol, the State should provide the excise officials within the premises of the distillery itself and the levy is only to meet the salary and other perquisites of such officials. Even during the transit from the distillery to the trader, State should take necessary measures to prevent the illegal diversion of industrial alcohol into potable alcohol. There is also a duty cast upon the State while monitoring the above to prevent evasion of excise duty. If the above is considered, we find nothing wrong in the learned Judge coming to the conclusion that the levy of administrative service fee is collected only as a regulatory measure and not for providing any service to the distilleries. When once collection of administrative service fee is found as only by way of regulatory measure, then, question of quid pro quo is not necessary. The contention of the learned Advocate General that the administrative service fee is collected for the service rendered to the distilleries cannot be accepted in the light of our above reasons.
23. On the basis of the above findings, the next question that falls for our consideration is as to whether the administrative service fee of 50 paise per bulk litre fixed under Rule 5-A by G.O.Ms.No.662, Home Prohibition and Excise (III) Department dated 4.6.90 and increased to Re.1/- by G.O.Ms.No.64 Home Prohibition and Excise (XIII) Department dated 12.4.2000 is excessive. The learned single Judge has upheld G.O.Ms.No.662 dated 4.6.90 in inserting Rule 5-A and fixing the administrative service fee at 50 paise per bulk litre. This has not been questioned by the distilleries by filing separate writ appeals. The said finding of the learned single Judge has become final leaving the only question as to whether the appellant-State is justified in increasing the administrative service fee from 50 paise to Re.1/- by amending Rule 5-A in G.O.Ms.No.64 dated 12.4.2000. The learned single Judge, while holding that the increase of the administrative service fee by 100% is excessive, has taken note of the counter affidavit filed by the Special Secretary to Government, Prohibition and Excise Department by furnishing statement in regard to the total amount of collection of levy by way of administrative service fee and the total expenditure incurred by the State Government in respect of the excise department. For better understanding, the same is extracted as follows:-
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Sl. Year Production Administrative Expenditure
No. in lakh service fee incurred by
Litres leviable in lakhs Dept.in Lakhs
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01 1990-91 768.03 384.01 641.25
02 1991-92 951.50 475.75 599.64
03 1992-93 917.75 458.87 633.33
04 1993-94 905.51 452.75 712.52
05 1994-95 1062.07 531.03 764.73
06 1995-96 1153.90 576.95 915.37
07 1996-97 1175.65 587.82 1211.39
08 1997-98 840.52 420.26 1166.59
09 1998-99 1188.13 594.06 1553.52
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The learned Judge found that the administrative service fee leviable represents almost more than 50% of the expenditure incurred by the Department and, therefore, such levy is unreasonable and excessive.
24. From the above statement, it is seen that approximately more than 60% of administrative service fee was collected even at the rate of 50 paise per bulk litre. That apart, Mr.R.Krishnamoorthy, learned Senior Counsel, placing reliance on the counter affidavit filed in W.A.No.1574 of 2001, submitted that in fact as against the actual expenses of Rs.93.20 lakhs per annum for the entire department, a sum of Rs.6.72 crores was collected per annum as administrative service fee, even at the rate of 50 paise per bulk litre. By virtue of the amendment increasing the administrative service fee, the administrative service fee being collected at the rate of Re.1/- per bulk litre is Rs.13.44 crores per annum. The learned Senior Counsel, therefore, submitted that this is highly excessive. The averment made in this regard in the counter affidavit filed in W.A.No.1574 of 2001 is not denied by the Appellant-State by filing any reply. We find every merit in the said submission as we also perused the Tamil Nadu Prohibition and Excise Manual published by the Commissioner of Prohibition and Excise on 21.12.98 indicating the probable collection of administrative service fee and estimated expenditure of the department. There are 16 distilleries in the State, 14 in private sector and 2 in cooperative sector. Even at the rate of probable administrative charges collectable at 50 paise per bulk litre, the estimated expenditure is shown as Rs.93.20 lakhs. On the other hand, the probable collection of administrative service fee is shown as Rs.1173.15 lakhs. The difference between the expenditure and the collection of administrative service fee is more than 10 times. If the administrative charges are collectable at the rate of Re.1/-, the difference should be more than 20 times. This, in our considered view, is excessive. In view of the said undisputed fact, we do not find any error in the order of the learned single Judge in quashing G.O.Ms.No.64 Prohibition and Excise (XIII) Department dated 12.4.2000. Accordingly, we find no merit in the writ appeals and the same are liable to be dismissed.
25. We are told that though the increase of administrative service fee from 50 paise to Re.1/- is held excessive by the learned single Judge, the said order has not been stayed in the writ appeals. However, each of the respondent-distillery continues to pay the administrative service fee at the rate of Re.1/- instead of 50 paise. Mr.R.Krishnamoorthy, learned Senior Counsel submitted that in the event the writ appeals are dismissed, the Appellant-State may be directed to refund the excess administrative service fee paid by each of the distilleries. The learned Advocate General, however, submitted that such a direction would result in unjust enrichment on the distilleries and the excess amount paid need not be directed to be refunded. To support the said submission, the learned Advocate General relied upon a judgment of the Supreme Court in "MAFATLAL INDUSTRIES LTD. AND OTHERS v. UNION OF INDIA AND OTHERS ".
26. We have carefully considered the above submissions. The above judgment of the Apex Court is in relation to the collection of tax from the consumer by the trader and was paid to the Government by way of tax. In the event the Government is directed to refund the tax paid, the trader in turn will not pass on to the consumer and thereby unjustly enriched. However, on the facts of this case, we do not find any such collection of tax from the consumer which was later on passed on to the Government, as admittedly, what is paid by the distillery is only administrative service fee and the excess amount, if ordered to be refunded, will not result in any unjust enrichment. Accordingly, we are not inclined to accept the submission of the learned Advocate General and consequently, we hold that each of the respondent-distillery is entitled to refund of the excess amount said to have been paid by it. As no details are furnished as to the amount so far paid and the period for which it was paid, we direct each of the respondent-distillery to make representation to the appellant-State by giving details of excess payment of administrative service fee, and in the event of such request is being made, the Government, after satisfying such excess payment, shall refund the amount received from each of the respondent-distillery by way of administrative service fee over and above 50 paise per bulk litre.
27. With these observations, all the writ appeals are dismissed. No costs. Consequently, W.A.M.P.No.1173 of 2004 is also dismissed.