IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 2ND AUGUST 2010 / 11TH SRAVANA 1932 WP(C).No. 22291 of 2010(J) ------------------------------- PETITIONER: -------------- M/S. PANAMOOTTIL INVESTMENTS, KADAVANTHRA, COCHIN-20, REPRESENTED BY ITS MANAGING PARTNER, SRI.MATHEW PHILIP, AGED 54 YEARS, S/O. LATE PHILIP. BY MR.M.G.KARTHIKEYAN, ADVOCATE. MR.NIREESH MATHEW, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY SECRETARY TAXES(A) DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER OF EXCISE, EXCISE COMMISSIONERATE, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM. 3. THE DEPUTY COMMISSIONER OF EXCISE, ERNAKULAM. 4. THE CIRCLE INSPECTOR OF EXCISE, ERNAKULAM. BY MS.K.R. DEEPA, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 02/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.22291 OF 2010 --------------------------------------- Dated this the 2nd day of August, 2010. J U D G M E N T The petitioner is a firm holding an FL-3 licence, bar licence, being conducted in a three star classified hotel within the Ernakulam Excise Range. The main relief sought for in the writ petition is for a direction to the respondents to refund the amount of Rs.2.5 lakhs in the light of Exhibit P2 judgment of this Court. 2. The petitioner had approached this Court earlier by filing W.P.(C) No.14927/2008 seeking to quash Exhibit P1 herein to the extent it imposes Rs.2.5 lakhs on different counts and also to declare that Rule 19(iv) of the Foreign Liquor Rules imposing Rs.2 lakhs fee for change of name of license is not applicable to the petitioner's firm because there is no change in the name of the license and the firm continue as the licensee. 3. This Court disposed of the above writ petition along with connected matters holding the amendment to Rule 19 as valid but directed to consider the application as per the rule existing on W.P.(C) No.22291/2010 2 the date of application. These matters were taken up in Writ Appeals by the Government as well as by the petitioner. The Writ Appeals were disposed of by a common judgment Exhibit P2. The operative portion of Exhibit P2 judgment reads thus: “Going by the facts of the case, we find that the licence has been granted in favour of a partnership firm called Panamootil Investments, Kadavanthra, Kochi-20. It was being represented by Mr.Mathew Philip, Managing Partner. Now, the firm has requested that hereafter, it will be represented by Joint Managing Partners M/s.Mathew Philip and Sunoj Kurian. Permission for the same is sought from the Commissioner, so that hereafter, the names of these persons can be shown in the licence. We think, in this case, neither the partnership is reconstituted nor the name of the licensee is changed. So, sub-rule(iii) of Rule 19 and the main part of Sub-rule (iv) under Rule 19 of the Rules have no application to the facts of this case. Therefore, the direction to collect Rs.50,000/- (Rupees Fifty Thousand only) and Rs.2,00,000/- (Rupees Two Lakhs only) respectively under Sub-rules (iii) and (iv) of Rule 19 of the Foreign Liquor Rules is illegal and unauthorised. It is so declared. The above said amounts, which have already been paid, shall be adjusted towards the amounts payable by the W.P.(C) No.22291/2010 3 partnership firm in future. Thus, the appellant is entitled to succeed, not on the ground that his application was filed before the amendment to the Rules, but because of the fact that there is no reconstitution of the partnership firm....”. 4. Thereafter the petitioner requested the respondents to adjust the amount of Rs.2.5 lakhs with the licence fee to be paid for the Abkari year 2010-2011 at the time of renewal, as per Exhibit P3 which was recommended by the 3rd respondent. The case of the petitioner is that as the said amount was not adjusted, the petitioner remitted the entire licence fee. Finally, by Exhibit P5, the Deputy Commissioner of Excise, Ernakulam has requested the Excise Commissioner to adjust the said amount for the next year 2011-2012 instead of 2010-2011. This is under challenge in this writ petition. 5. Learned Government Pleader on instructions submitted that since the petitioner remitted the entire licence fee for renewal, the amount could not be adjusted this year and the same will be adjusted next year. The said course is not acceptable to the petitioner since the amount ought to have been adjusted this year itself in terms of the directions issued by the W.P.(C) No.22291/2010 4 Division Bench. The petitioner ought to have been directed to remit the required amount this year less the amount liable to be adjusted. But, that was also not done. Therefore, he cannot be found fault for remitting the entire licence fee for renewal. In that view of the matter, as the amount was not adjusted this year, obviously, the petitioner is entitled for refund especially since Exhibit P2 judgment has become final. Therefore, there will be a direction to the respondents to implement the directions in Exhibit P2 judgment by refunding an amount of Rs.2.5 lakhs expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp