1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD WRIT PETITION NO.4328 OF 2001 BDA Limited MIDC, Chikalthana Industrial Area, Aurangabad-431210, District Aurangabad. - PETITIONER VERSUS 1) The State of Maharashtra. 2) The District Collector Office of the Collector, Aurangabad, Dist.Aurangabad. 3) The Superintendent of State Excise, Near Printravel, Aurangabad, Dist.Aurangabad. - RESPONDENTS ***** Mr.PK Joshi,Advocate for Petitioner; Mr.VB Ghadge AGP for Respondents. ----- CORAM : S.B.DESHMUKH & K.U.CHANDIWAL,JJ. DATE : 31st August, 2010. 2 ORAL JUDGMENT(PER: S.B.DESHMUKH,J.) 1) We have heard the learned Counsel for the respective parties extensively 2) This petition was before this Court on February 26, 2002, when Rule has been issued with further direction to expedite the matter. However, no stay was granted. 3) The petitioner has approached to this Court with the following prayers : “(A) Rule may kindly be issued; (B) Record and proceedings may kindly be called; (C) The impugned Order/Notice dated 31.8.2001 bearing No.DYS/1199/2583 issued by the Respondent no.3 for and on behalf of respondent no.2 (Exhibit-”Q” may kindly be quashed and set aside; (D) Pending hearing and final disposal of this writ petition, the execution and implementation of the impugned Order/Notice dated 31.8.2001 bearing No.DYS/1199/2583 issued by the respondent no.3 for and on behalf of respondent no.2 (Exhibit-”Q” may kindly be stayed.” 4) Prayer clause (C), as above, seems to be the principal prayer of the petitioner, whereby quashment of impugned order/Notice dated 3 31.8.2001 (Exhibit-”Q”), is sought for. Vide prayer clause (D), petitioner seeks interim relief in the form of stay to the impugned order/notice dated 31.8.2001 (Exhibit-Q) . 5) The petitioner is a company, registered under the provisions of Indian Companies Act, 1956 (hereinafter to be referred to as the Act of 1956). The activity of the petitioner company is manufacture of Indian Made Foreign Liquor (for short, IMFL) under the license granted by the State of Maharashtra. According to the petitioner, the activities of the petitioner company are controlled and supervised by the Excise authorities and a Manufacturing Officer has been deputed along with his staff at the factory premises of the petitioner. The petitioner has averred that the petitioner is paying crores of rupees towards excise duty for export/despatch of IMFL goods, and the petitioner company has its current account with the Excise authorities at Aurangabad. 6) On December 30, 1997, according to petitioner, IMFL goods were consigned through four trucks to its Delhi office. According to petitioner, permission for exporting such goods was obtained from the excise authorities at Aurangabad, requisite payment of excise duty was made. An escort/Excise constable was deputed 4 along with the trucks for escorting the convoy of four trucks till it reaches the destination (Delhi). 7) On January 5, 1998, one of the trucks, bearing Registration No.MH-31/W-2863, allegedly met with an accident near Shivpur in State of Madhya Pradesh. The petitioner claimed that due to the accident, 100 cases of IMFL goods (here the word `cases’ is used for boxes/containers) were scattered on the road and thereby got damaged. Immediately the driver of the truck and the escort/excise constable reported the factum of accident to the office of excise department in the State of Madhya Pradesh. Spot panchanama was conducted by the Excise officer as also police panchanama was conducted, wherein it was clearly mentioned that 100 cases of IMFL bottles have been damaged in the accident. In due course of time, the convoy of four trucks reached the destination at Delhi and the Excise Officer had acknowledged the receipt of cases containing IMFL goods from all those four trucks. According to the petitioner, it has been specifically mentioned in the acknowledgment that out of 560 cases, which were consigned through the trucks, only 460 cases have been received and there were 100 cases short. While parting from this part of the petition, we may repeat that in sending goods of the petitioner 560 cases, that were consigned 5 with four trucks at the destination, of which, only 460 cases were received and there was loss of around 100 cases. Dispute is about this alleged accident and loss of 100 cases in transit. 8) The petitioner further states that an amount of Rs.96,662/- as against the excise duty on “accidental shortage goods” and the receipt to that effect has been issued by the Excise department of the State of Delhi. The petitioner has paid Rs.16,000/- to the Sales tax authorities at Delhi against the sales tax for the damaged 100 cases of IMFL goods. According to the petitioner, on 1st April, 1998, Manufactory Officer, who was deputed at petitioner’s factory issued a letter requiring the petitioner to submit entire documents in regard to damaged 100 cases due to the accident, which the petitioner submitted the entire set of the documents. After about one year, i.e. precisely April 10, 1999, according to the petitioner, again he had received a letter from Manufactory officer as regards recovery of Rs.1,22,011/-. Set of document was again demanded regarding alleged accident, which according to the petitioner has taken place somewhere in the month of January 1998. The petitioner states that the documents were submitted to the authorities concerned. Thereafter one more letter is referred, i.e. 6 letter dated 6th December, 1999, alleged to have been issued by Respondent No.3, directing the petitioner to submit the documents in respect of the accidental shortage goods. According to petitioner, reply was submitted, saying that documents have already been forwarded to the excise authorities through Manufactory officer. 9) On 11th August, 1999, petitioner submitted a representation to the Commissioner of State Excise, Mumbai. Reason assigned by the petitioner for submitting such representation was repeated demands by the Manufactory Officer asking to deposit Rs.1,22,011/- and by this representation a request of waiver of amount of Rs.1,22,011/- was made to the authorities on the ground of alleged damage to 100 cases due to the alleged accident. Payment of sales tax amounting to Rs.16,000/- was again reminded to the Commissioner. 10) On August 27, 1999, reference is made to communication of the Commissioner of State excise to Respondent no.3. The petitioner has further alleged that the Commissioner, State Excise, Mumbai, addressed a communication dated 19th April, 2001 to Respondent No.3 with direction to take decision on the point of waiver of amount of Rs.1,22,011/-. According to the petitioner, Respondent No.3 did not pay any heed to the communication of the Commissioner of State 7 Excise. 11) On 10th July, 2001, Respondent No.3 issued a notice thereby demanding Rs.1,22,011/- within three days. On 31st August, 2001, the Respondent No.3, on behalf of respondent no.2, issued final demand notice asking to deposit Rs. 1,20,263/-. This demand notice is the subject matter of challenge in this petition. 12) In response to the petition, affidavit in reply is filed on behalf of the respondents Nos. 2 and 3, it has been affirmed by Mr. Namdeo s/o Dasaram Kirsan, Superintendent of State Excise, Aurangabad. With the assistance of learned Counsel present before the Court, we have minutely read this affidavit. 13) Two-fold submissions are advanced before us by learned Counsel for petitioner, viz. payment of excise taxes twice, firstly at Delhi Excise department and secondly, as demanded by the Excise department of Maharashtra. 14) It is the contention of the petitioner that one Excise constable was deputed with four trucks through which the IMFL goods (around 560 cases) were to be consigned. The petitioner emphasized the procedure as regards escort fee, which the petitioner has paid. Propriety of such provision and procedure so contemplated is keeping in mind with some objective. According to Mr.Joshi, the learned Counsel for petitioner, 8 such escort personal is under legal obligation to inform the happening of the incident in transit to the authorities concerned. The learned Counsel points out from the petition that copies of the documents, which were sought for from the petitioner, have been duly furnished. Copy of the Panchanama of accident, which is doubted by the authority is also furnished to the authorities from time to time. Mr.Joshi, learned Counsel, emphatically pointed out the communication dated 19th April, 2001 (Exhibit-N, page 50). It is the communication addressed by one S.A.Patil, Joint Commissioner, State Excise of State of Maharashtra, to the Superintendent, State Excise, Aurangabad. Mr.Joshi, learned Counsel has read over this entire communication before the Court. According to him, this communication was not followed/complied with by the subordinate authorities of the Exice department. This communication refers to the Judgment of the Hon’ble Supreme Court delivered on 9.10.1990 in Civil Appeal No.4297 in the matter of State of UP Vs. Delhi Cloth Mill. In this communication it has been further mentioned that the decision of the Supreme Court in the aforesaid matter if the Commissioner had opined that if it is proved that occurrence of accident has taken place beyond the State of Maharashtra and if it is shown that the exice duty is 9 deposited with the State, to which the IMFL goods have been exported, same should be verified. In the instant case, out of 560 cases consigned, 100 cases were damaged beyond the limits of State of Maharashtra, this damage/loss should be taken into account and decision should be taken by the Collector accordingly. 15) Mr.Joshi, learned Counsel, also relied on the Judgment of the Hon’ble Supreme Court in the matter of State of U.P.and Ors. Vs. M/s Delhi Cloth Mills and Anr., reported in AIR 1991 SC 735. 16) Mr.Joshi, learned Counsel also pointed out that the authorities have also indicated in their affidavit that the entire money is deposited with the State Excise Department. 17) In the instant case, petitioner claimed occurrence of the accident beyond the limits of State of Maharashtra, causing damage to 100 cases of IMFL goods in transit. These two instances, i.e. occurrence of accident beyond the territorial limits of State of Maharashtra and factual damage to 100 cases of IMFL goods, are question of fact. In the affidavit in reply, in paragraph 4 thereof, it has been stated that no excise duty has been paid in the State of Maharashtra on the consignment of IMFL goods remitted/exported by the petitioner. In para 5 of the reply said statement is repeated with 10 further clarification that it is true that the permission to export the Indian Made Foreign Liquor was given in the form of export permit to the petitioner, but no excise duty was recovered. Importantly to note that only nominal export fee was recovered. In paragraph 6 of the reply, clarification is given as to deputation of excise constable for the purpose of escort. It is made clear that though escort constable was deputed along with the consignment, the responsibility of the consignment could not be imposed on escort constable alone and there is no such provision in the rule to hold the escort constable responsible in place of the exporting company for any shortage or breakages of IMFL goods in transit. In paragraph 6, it has been reminded by the authorities that Bond was executed by an exported before permission was granted to him to export of foreign liquor from State of Maharashtra to other part of Indian Union in form “H” as per rule 23(i) of the Maharashtra Foreign Liquor (Import an Export) Rules, 1963. We have seen Exhibit R-1 annexed to the reply. 18) In paragraph 7 of the reply, it has been specifically denied that 100 cases of IMFL goods were damaged and all bottles, containing IMFL goods were broken and spread over on the road in transit in Madhya Pradesh from the exporting consignment in Truck bearing No.MH-31 W-2863. It 11 is further stated that in fact the Excise verification certificate in form Certificate-3 received Bond Inspector Delhi Administration, Delhi reveals that only 57 cases and 8 bottles of 750 ML, 175 cases and 15 bottles of 375 ML and 224 cases and 37 bottles of 180 ML, liquor received at the destination where the consignment was due. Reference was also made to Excise note of Bond inspector, New Delhi. It is specifically denied that 100 cases were broken in transit. Doubt is expressed that these 100 cases might have been misappropriated while the consignment was in transit. However, it has been stated that as regards the a actual breakages the Bond Inspector, Delhi Administration clearly noted that only 5 bottles of 750 ML, 12 bottles of 375 ML and 26 bottles of 180 ML were broken in transit, therefore, the contention of the petitioner that the breakages of 100 cases is baseless. Statement again is made in para 7 that “Moreover the petitioner has not yet submitted the copy of the Police Panchanama even after repeated demand. Copy of panchanama shown as Exhibit-3 is actually not a copy of panchanama, it seems to be a letter written by the Excise Inspector to Excise Delhi bonded warehouse and there is no such proper description of IMFL which is broken and which is short and therefore this evidence is of no 12 significance at all. 19) In para 8, a statement is made that the petitioner has not yet submitted the proof of Excise duty deposited by him at importing place, i.e. with Delhi Excise Authority after repeated demand. According to the affiant, even if they have deposited the excise duty at the importing place the amount of duty and fee on the quantity of IMFL good not delivered at the importing place shall be recovered from the exporter irrespective of the fact that the similar may be collected on the same excess deficiency at the importing place as per Rule 25(4)(5) of the Maharashtra Foreign (Import and Export) Rules, 1963. It is further stated in para 8, even petitioner has not submitted any proof of the IMFL cases that have broken in transit. It is further stated that, if at all the petitioner desires the exemption in payment of excise duty at the exporting place, he is bound to submit the caps and necks of the broken bottles to Respondent No.3. According to the affiant, in this matter no such compliance is made by the petitioner. 20) In para no.9 again it has been denied that the petitioner has submitted all relevant documents as regard the losses of IMFL goods in transit. Instead no response is received from the petitioner regarding the necessary documents such as copy of police panchanama, proof of payment of 13 duty at importing place and proof of breakages of IMFL in transit after repeated demand and therefore, demand notice of the recovery of excise duty on the IMFL short received by the importer has been rightly issued. 21) We have gone through para 11 of the reply, which makes reference to recommendation of the Commissioner of State Excise, MS Mumbai for waiver of excise duty on the IMFL short received at the importing place. In para 12 of the reply, reference is made to para nos. 16 and 17 of the writ petition. Letter of the Commissioner of State Excise, MS, Mumbai is also referred. At the close of this para 12, statement is made, In fact the petitioner failed to submit the proof of actual breakages and loss of Indian Made Foreign Liquor in transit. The Demand notice is thus again fortified. In para 13 of the reply, it has been pointed out that copy of police panchanama, the proof of excise duty paid at the importing place, the proof of wastages in transit, i.e. caps and necks of the broken bottles have not yet been submitted by the petitioner. We have seen para 14, Annexure R.2 and para 15. 22) Having given anxious consideration to the submissions made by the learned Counsel for the parties. In the case on hand, we have considered the submissions and pleadings put forth by the respective parties. We have given 14 due consideration to the letter of the Commissioner, State Excise, MS, Mumbai. We do not find any fault or perversity with the notice of demand by the authority concerned. We do not find any substance in the contention of learned Counsel for petitioner pertaining to double taxation and or loss in transit of around 100 cases. In substance there is no case for interference under Article 226 of Constitution of India. Hence, the Writ Petition stands dismissed without any order as to costs. Rule discharged. sd/- sd/- (K.U.CHANDIWAL) (S.B.DESHMUKH) JUDGE JUDGE bdv/ Authenticated copy (BD VADNERE, PS)