1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH JAIPUR ORDER S.B.CIVIL WRIT PETITION NO.2752/2001 M/s.Krishan Lal and Party Versus The State of Rajasthan and others DATE OF ORDER --- March 04,2010 PRESENT HON’BLE MR.JUSTICE PREM SHANKER ASOPA None present for the petitioner Mr.R.B.Mathur, for the respondents BY THE COURT (1) By this writ petition, the petitioner, which was the licensee for selling I.M.F.L. Country liquor and Beer for the years 1989-90, 1990-91 and 1991-92, for the area Jaipur City, Sanganer, Phagi, Chomu etc. in the name and style of M/s.Krishan Lal & Party, has challenged the order dated 3.11.1992 (Anx.3) whereby brand fee of Rs.2,90,000/- for the years 1989-90, 1990-91 and 1991-92 has been imposed for Godown No.2. The petitioner has also challenged another order dated 3.11.1992 (Anx.2) whereby it has been directed to deposit Rs.50,000/- as brand fees for the year 1992-93. (2) Initially, the writ petition was filed before this Court on 24.2.1993 and the same was registered as SBCWP No.1566/1993. Then, the case was transferred to the Rajasthan Taxation Tribunal, from where it was again 2 transferred to this Court and it has been registered as SBCWP No.2752/2001. (3) Today, no one is present on behalf of the petitioner. (4) It is stated in the writ petition that the petitioner was having three separate licences for I.M.F.L. Country liquor and Beer for the period in question and since the region of the licence was very large, therefore, for the sake of convenience, with the permission of the Excise Department, the petitioner had arranged two godowns – (i) Keshopura (Bhankrota), Ajmer Road, Jaipur and (ii) C-82, Prithvi Raj Marg, `C' Scheme, Jaipur, for the sale of I.M.F.L. Country liquor and Beer and therefore, brand fees was wrongly imposed on two godowns of one licence for sale of IMFL and the Department had committed an error in demanding separate fee for the second Godown of the petitioner, by issuing the demand notice dated 3.11.1992. Against the said notice, the petitioner had given representation (Anx.1) stating therein that the demand is wholly illegal being contrary to proviso to Rule 3 of the Rajasthan Foreign Liquor (Grant of Wholesale Trade & Retail Off Licences) Rules, 1982 (in short `the Rules of 1982') and further stated therein that merely because the petitioner was having two godowns for one licence for IMFL, it was not liable to pay brand fee for the another godown and the aforesaid representation is pending. (5) In reply, the respondents have stated that the petitioner could not be allowed to raise the disputed questions of fact 3 regarding levy of the brand fee and further that an alternative remedy u/s 9A of the Rajasthan Excise Act was available. On the issue of brand fee, counsel for the respondents has submitted that there is no restriction on imposing separate brand fee on separate godowns and that the same could be imposed on two godowns separately. (6) Submission of counsel for the respondents is that since the petitioner was having an alternatived remedy and the disputed questions of fact are involved in the writ petition, therefore, the same may be dismissed. On merit, the submission of counsel for the respondents is that Rule 3 of the Rules of 1982 nowhere imposes restriction not to charge separate brand fee on separate godown. (7) I have gone through record of the writ petition and further considered the aforesaid submissions made by the respondents. (8) During the pendency of the writ petition, interim order was passed on 30.3.1993 and operation of the order dated 3.11.1992 (Anx.3) was stayed. The order dated 30.3.1993 is as under: “Mr.Mathur prays time for filing reply to the stay application. Put up after three weeks. Meanwhile, operation of the order dt.3.11.92 marked Annexure-3 shall remain stayed.” (9) The aforesaid interim order dated 30.3.1993 was confirmed on 29.4.2008. 4 (10) It appears that prior to the issuance of the demand notice dated 3.11.1992, no show cause notice was issued to the petitioner and in the demand notice also, neither any rule has been referred nor any notification issued thereunder has been referred for charging separate brand fee on separate godown. Since the writ petition is pending for more than ten years and the interim order dated 30.3.1993 as confirmed on 29.4.2008 is in force and the petitioner was not given show cause notice prior to the issuance of the demand notice and the representation (Anx.1) is also pending, therefore, it would not be proper to relegate the parties to avail the alternative remedy. (11) In view of the above, I deem it proper to direct the District Excise Officer, Jaipur to decide the aforesaid representation (Anx.1) by a reasoned order, after giving show cause notice to the petitioner, within a period of two month from today, and till then, the interim order dated 30.3.1993 as confirmed on 29.4.2008 shall continue. (12) The writ petition is disposed of, as indicated above. (Prem Shanker Asopa) J. गोpa ल