IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 2ND APRIL 2009 / 12TH CHAITHRA 1931 WP(C).No. 12459 of 2008(G) --------------------------------------- PETITIONER: ------------------- NORMANDY BREWERIES AND DISTILLERY PRIVATE LIMITED, CHEEMENI (VIA) CHERUVATHOOR, KASARAGOD DISTRICT, KERALA -671 313,REP. BY ITS MANAGING DIRECTOR, K.T. JOSEPH. BY ADVS. MR.E.K.NANDAKUMAR, MR.A.K.JAYASANKAR NAMBIAR, MR.K.JOHN MATHAI, MR.P.BENNY THOMAS, MR.ANIL D. NAIR. RESPONDENTS: ------------------------ 1. EXCISE INSPECTORS, NORMANDY BREWERIES AND DISTILLERY PRIVATE LIMITED, CHEEMENI (VIA) CHERUVATHOOR, KASARAGOD DISTRICT, KERALA- 671 313. 2. CIRCLE INSPECTOR OF EXCISE, THALIPPARAMBA. 3. DEPUTY COMMSSIONER OF EXCISE, NORTHERN ZONE, KOZHIKODE. 4. COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM- 695 001. R1 TO R4 BY GOVT. PLEADER SMT. SUDHA DEVI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.12459/2008-G: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE LETTER DTD. 10/03/2008 ISSUED BY THE PETITIONER TO THE R.1. EXT.P.2: COPY OF THE LETTER DTD. 19/03/2008 ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.3: COPY OF THE LETTER DTD. 25/03/2008 ALONG WITH THE CHALLANS AND ENCLOSURES ISSUED BY THE R.1. TO THE PETITIONER. EXT.P.4: COPY OF THE NOTICE OF THE R.1. DTD. 15/10/2003. EXT.P.5: COPY OF THE INTERIM ORDER DTD. 23/04/04 IN W.P.(C).NO.13476/04-D. EXT.P.6: COPY OF THE AFFIDAVIT FILED BY COMMISSIONER OF EXCISE IN W.P.(C). NO.13476/04 DTD. 27/06/05. EXT.P.7: COPY OF THE G.O.(RT).NO.378/04/TD DTD. 08/06/04. EXT.P.8: COPY OF THE LETTER DTD. 04/10/2005 ALONG WITH THE GOVERNMENT ORDERS AND LETTER DTD. 17/03/1999. EXT.P.9: COPY OF THE PROCEEDINGS ON THE LETTER DTD. 28/03/2006 ISSUED TO THE R.3. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. V.GIRI ---------------------------------------- W.P.(C)No.12459 of 2008 ----------------------------------------- Dated this the 2nd day of April, 2009. JUDGMENT The petitioner, a company incorporated under the Companies Act, holds a licence under the Kerala Distillery and Warehouse Rules, 1968 framed under the provisions of the Abkari Act. 2. The rules contemplated payment of establishment charges by the licensee. The petitioner applied for renewal of the licence for the period 2008-09 by Ext.P1. The petitioner was informed that an expert committee has been constituted to look into the grievance regarding the fixation of the establishment charges and recovery thereof. It is further mentioned that the actual fixation of the arrears due from the petitioner could be done only after the committee comes out with a revision and that the licence cannot be renewed till then. Ext.P3 demand was served thereafter, demanding an amount of Rs.53,37,701/-, stated to be the arrears from 1995-98, along with a further sum of W.P.(C)No.12459 of 2008 :: 2 :: Rs.5,58,478/- stated to be the arrears resultant upon the pay revision that had benefited the Government employees during the said period. Ext.P3 has been challenged in this writ petition. 3. Reference is made to an earlier order passed by this court, Ext.P5 in W.P.(C)No.13476/04, wherein the petitioner had challenged another communication from the Excise Department requiring him to remit the entire arrears as a condition for renewal of the licence for the period 2004-05. This court granted an interim order staying the operation of Ext.P19 therein on condition that the petitioner remits the amount in instalments. It is the petitioner's case that the entire amount was thereafter paid in instalments and ultimately the writ petition was disposed of in terms of the interim order. According to the petitioner, Rs.90 lakhs was paid pursuant to the interim order passed by this court. 4. The petitioner contends that it is entitled to know the basis on which the establishment charges were W.P.(C)No.12459 of 2008 :: 3 :: fixed. It is further contended that establishment charges should be collected from the licensee, only for the persons who are actually deployed and not for the number which is notified as proposed to be deployed. 5. A representation was filed by the petitioner as early as in 2006 as Ext.P9 before the Deputy Commissioner, inter alia, asserting that the petitioner's liability towards the cost of establishment is only Rs.29,22,771/-, but they have already remitted Rs.90 lakhs as per the High Court order. The Deputy Excise Commissioner required the Excise Inspector stationed at the petitioner's distillery to give the petitioner the basis of the calculation and calculate the arrears as per G.O.(P)No.95/98/TD dated 28th April, 1989 and also to prepare a statement on the basis of G.O.(P) No.95/98/TD dated 28th April, 1989 and verify whether the amounts are realisable in terms of the Government Order. In other words, what is required is the determination of the actual amounts due from the petitioner by way of W.P.(C)No.12459 of 2008 :: 4 :: establishment charges and dues will have to be calculated with effect from 1995 and made current up to date. 6. I take note of the fact that the petitioner had remitted Rs.90 lakhs pursuant to the interim order. This could probably take care of the arrears. But, it is a matter for determination by the appropriate authority in the first instance. In the meantime, I do not find any reason for not permitting the petitioner to carry on the business for the period 2009-10, subject to payment of an ad hoc amount by the petitioner to be credited in the course of preparing a statement of establishment charges and the arrears in this regard;. In the result, the writ petition is disposed of in the following terms: (a) The 3rd respondent shall treat Ext.P9 as a request made by the petitioner for drawing up a calculation of the establishment charges along with the applicable interest in terms of the Rules and any other Government order fixing the establishment charges. W.P.(C)No.12459 of 2008 :: 5 :: (b) A statement shall be furnished to the petitioner within two months from the date of receipt of a copy of this judgment. It is open to the petitioner to file objections to the said statement within one month from the date of receipt of a copy of the statement. (c) Thereupon, the Deputy Commissioner shall, within one month thereafter, pass an order finally fixing the establishment charges, the arrears and the interest, if any, due from the petitioner at the applicable rate. The Deputy Commissioner shall, in doing so, give credit to any amounts remitted by the petitioner and a final demand of amounts still due from the petitioner shall be served along with the order to be passed by the Deputy Commissioner in the manner aforementioned. (d) The entire process shall be completed as early as possible, at any rate, on or before 5.10.2009. (e) In the meanwhile, the distillery licence issued to the petitioner under Rule 3 of the Rules shall be renewed, subject to compliance with any other formalities, on condition that the petitioner pays an amount of Rs.10 lakhs towards establishment charges on an ad hoc basis. (f) It is made clear that this amount of Rs.10 lakhs directed to be paid by this court is over and above the licence fee that has to be paid by the petitioner. W.P.(C)No.12459 of 2008 :: 6 :: The licence shall be renewed, as and when the petitioner remits the amount of Rs.10 lakhs and licence fees, subject to the compliance with the other formalities, as mentioned above. Sd/- (V.GIRI) JUDGE sk/- //true copy//