Indian Kanoon - Search engine for Indian Law

17. Assistant Commissioner issued a notice to the petitioner while directing the petitioner to place the documents in support of those claims for the various levies pertained to FY 2016- 17 on 24.05.2018. The petitioners submitted representations and affidavits on 09.06.2018 and 18.06.2018.

18. The petitioner Pernod Ricard filed CWJC No. 18064 of 2018 in which it sought for consideration of representations dated 10.12.2016, 09.06.2018 and 18.06.2018 related to refund of excise duties and other levies with a prayer of refund of excise duty and other levies.

43. Learned counsel, Mr. Satyabir Bharti reiterated the arguments advanced by the learned Senior counsels insofar as impugned order of the Commissioner Excise read with the decision rendered in the United Spirits Limited and Pernod judgment in respect of refund of various levies/fees like Excise Duty, distributor fee, bottling fees, import fee, on stock destroyed at the end of BSBCL and manufacture (plant), which Patna High Court CWJC No.4882 of 2020 dt. 24-11-2023 could not be exported during the period from 01.04.2017 to 31.07.2017. It was pointed out that no provision has been made for refund in the Government Order dated 18.04.2016, with respect to stocks, which were manufactured and supplied in the State of Bihar for sale, but could not be sold due to imposition of prohibition in the State on sale and consumption of liquor. On the other hand, there was an exemption of levy on bottling fee by notification dated 06.10.2016. In other words, they are entitled to refund of bottling fee, which has remained unutilized. Bottling fee is levied on per litre basis, that is on the actual quantity of liquor, which is bottled and if liquor has not been bottled from 1.4.2016 to 05.10.2016, they are entitled to refund of bottling fee. It is also submitted that if the Commissioner of Excise/State Government has agreed to refund the excise duty on liquor which has been exported and further refund of certain advance fee, then on the same principle, the Excise Duty and other fees levied on destroyed stocks should also be refunded. He has also contended that Commissioner of Excise has not taken a decision as to whether the petitioners are entitled or not entitled insofar as distributor fee under Section 19C and Import Fees on exported stocks. Overall, it is submitted that respondents have only agreed to settle and refund the (i) excise duty on exported stocks and (ii) Patna High Court CWJC No.4882 of 2020 dt. 24-11-2023 excise duty, distributor fee and label fees deposited in advance for the year 2016-2017, but rejected claim for refund of Excise Duty on destroyed stocks, distributor license fee, bottling fees and import fee on destroyed stocks and bottling fees deposited in advance for the period 2016-17, even though no bottling took place and the levy was exempted from 6.10.2016. However, for the earlier period it is stated that they are not entitled for refund of bottling fee.

61. In response to the contention that the petitioners have not challenged the validity of 18.04.2016 of the State Government policy decision which was given effect from Patna High Court CWJC No.4882 of 2020 dt. 24-11-2023 01.04.2016, it is submitted that there is no specific denial of grievance of the petitioner insofar as refund of excise duty for the year 2015-16. Therefore, petitioners have not questioned the validity of 18.04.2016. He has also pointed out that the notification dated 18.04.2016 was already taken note of and discussed by this Court in the earlier round of litigation in CWJC No. 15316 of 2017. He has also pointed out that Excise Commissioner is stated to have refunded certain excise duty to some of the persons which has been recorded by this Court in the aforementioned cited decision of this Court. Therefore, question of challenging the order dated 18.04.2016 is not warranted to the petitioner.

72. Taking note of orders of the Excise Commissioner the petitioners have statutory remedy of appeal under Section 92 and further revision under Section 93 of Act, 2016. Perusal of the aforementioned Sections reveals the State was required to issue statutory Rule under Section 93(3). Rules were framed in the year, 2021 and the relevant Rules are 20 and 24 of Rules, 2021. In the absence of Rules framed under Act, 2016 whether Rules, 1979 read with Schedule-4(3)(i) would be taken note of to the effect that in the absence of any identification of appellate or revisional authorities it could be identified under Rules, 1979 or Patna High Court CWJC No.4882 of 2020 dt. 24-11-2023 not? Section 92(3) of Act, 2016 is crystal clear that Rules were required to be framed under the Act, 2016, such Rules were framed in the year, 2021. Reading of Rules 20 and 24, it is not crystal clear that appeals against the Excise Commissioner lies to which authority. Rules, 1979 stipulate departmental Secretary/concerned Minister. Rules, 1979 is not attracted for the reasons that under Section 93(3) of Act, 2016 there is a specific provision in respect of framing of Rules and Rules were framed in the year 2021 and it is prospective in nature. Appellate authority is not identified. On the other hand Revisional authority is identified as Department Secretary under Rule 24 of Rules, 2021. Having regard to the date of impugned orders of the Excise Commissioner it is evident that they have been issued prior to framing of Rules, 2021. Analyzing of provisions of Act, 2016, Rules, 1979 and Rules, 2021 it is crystal clear that even to this day there is no identification of appellate/revisional authorities under the Act, 2016 read with Rules, 2021. Assuming that departmental Secretary is the appellate authority, as on today the Excise Commissioner is holder of the post of departmental Secretary. Therefore, prima facie, there is no efficacious remedy available to the petitioners. Be that as it may, the present litigation in respect of refund of excise duty etc. is the second Patna High Court CWJC No.4882 of 2020 dt. 24-11-2023 round litigation. In an earlier litigation in the case of USL, this Court had an occasion to examine whether the petitioners are entitled to have the benefit of refund of excise duty etc. or not? After due examination of reasoning assigned by the Excise Commissioner on an earlier occasion, this Court has turned down the reasons and remanded the matter to the Excise Commissioner for revisiting the issue. Whereas the Excise Commissioner, after revisiting the subject matter, once again reiterated the reasons that petitioners were having sufficient time to lift the unutilized stocks of liquor with the BSBCL, transit of liquor from the manufacturing unit to BSBCL and liquor stocks lying in the manufacture units. The aforesaid exercise has not been undertaken by the petitioners. Therefore, there was a default on their part. But such reason has already been turned down on an earlier occasion by this Court. Therefore, there is an arbitrary action on the part of the Excise Commissioner. Having regard to the fact that the respondent-State would fall under Article 12 of the Constitution read with the arbitrariness in their action, in such an event, writ Court can exercise power despite the fact that concerned party has a statutory remedy as held by the Hon'ble Apex Court in number of cases.