IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929 OP.No. 1804 of 1998(M) ---------------------- PETITIONER: ------------ 1. P.K.CHANDRAN, PERATH HOUSE, ANTHIKAD.P.O., THRISSUR. 2. K.N.PHALGUNAN, KADAVIL VEEDU, CHEMPUKKAVU VILLAGE, THRISSUR TALUK. BY ADV. SRI.JOY THATTIL RESPONDENTS: ------------- 1. THE ASSISTANT EXCISE COMMISSIONER, MALAPPURAM. 2. THE EXCISE INSPECTOR, KALIKAVU RANGE, VADOOR. BY SMT.T.B.REMANI, GOVERNMENT PLEADER SRI.PREMJITH NAGENDRAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O.P.NO. 1804/1998 ORDER ON CMP NO.3240/1998 IN O.P.NO. 1804/1998 DISMISSED. 12/03/2008 SD/- (T.R.RAMACHANDRAN NAIR, JUDGE) APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE NOTICE ISSUED BY THE 2ND RESPONDENT ON 01/07/1994. P2 : COPY OF the PETITION SUBMITTED BY the PETITIONERS ON 04/07/1994 BEFORE THE SECOND RESPONDENT. P3 : COPY OF THE JUDGMNET IN O.P.NO. 9979/1994 DATED 23/08/1994. P4 : COPY OF THE JUDGMENT DATED 11/11/1994 DIVISION BENCH OF THE HONOURABLE COURT IN W.A.NO.1371/1994. P5 : COPY OF THE NOTICE DATED 15/02/1995 ISSUED BY THE 2ND RESPONDENT. P6 : COPY OF THE OBJECTIONS DATED 03/03/1995 FILED BY THE PETITIONERS BEFORE THE 2ND RESPONDENT. P7 : COPY OF THE NO OBJECTION CERTIFICATE NO.M5-2062/93 DATED 30/09/1993 ISSUED BY THE 1ST RESPONDENT. P8 : COPY OF THE COMMUNICATION DATED 27/10/1993 OF M/S.BAJAJ HINDUSTAN LIMITED. P9 : COPY OF THE NOTICE NO.M6-2849/94 ISSUED BY THE FIRST PETIITONER DATED 01/11/97. P10 : COPY OF THE REQUEST DATED 26/11/1997 SO MADE BY THE FIRST PETITIONER. P11 : COPY OF THE ORDER NO.M6-2849/94 DATED 18/12/1997 OF THE FIRST RESPONDENT. RESPONDENT'S EXHIBITS ] ANNEXURE I : COPY OF THE A/D CARD ACKNOWLEDGED BY THE 1ST PETITIONER. ANNEXURE II : COPY OF THE A.D.CARD SIGNED BY THE 2ND PETITIONER ON 27/04/1995 ON RECEIPT OF THE NOTICE ISSUED BY THE 2ND RESPONDENT. // TRUE COPY // PA TO JUDGE. jg T.R.RAMACHANDRAN NAIR, J. ---------------------- O.P. No. 1804 of 1998 ------------------------------------ Dated, this the 12th day of March, 2008 J U D G M E N T The petitioners are aggrieved by Ext.P11 order by which an amount of Rs.4,58,298/- along with interest @ 18% from 01/04/1994 have been arrived at as the defaulted amount payable by them, consequent upon the auction of the right to conduct arrack shops during the year 1993-94. 2. Even though the petitioners have raised various grounds in the original petition, all of them require adjudication on disputed questions of fact and therefore this Court will not be justified in trying to resolve the issue in this proceeding. Apart from that, earlier the petitioners approached this Court in O.P.No. 9979/1994. As per judgment in the writ appeal No.1371/1994 (Ext.P4) this court observed that till the dispute is settled, the revenue recovery proceedings should be kept in abeyance. It is, accordingly, the impugned order has been passed. The relevant facts show the following. 3. During the year 1993-94, the petitioners have bid in auction the right to conduct arrack shops in Group No.II of Kalikavu O.P.No.1804/1998 -2- Excise Range for an amount of Rs.19,90,000/-. According to the Department, towards arrears of kist, excise duty for the rectified spirit and interest, an amount of Rs.4,73,014/- was due. After the judgment in the writ appeal, they were served with a notice dated 15/02/1995 showing the amount due in respect of each items. The same is produced as Ext.P5 in this original petition. Ext.P6 is the explanation submitted by the petitioners. Further contention raised is that there is an excess payment of kist amount of Rs.61,026/-. The petitioners have got a contention that the adjustment of Rs.1,81,964/- towards excise duty is unauthorized. Apparently, these two contentions were not accepted by the respondents. Ext.P11 shows that apart from the kist amount of Rs.19,90,000/-, the duty to the tune of Rs.8,39,832/- was payable along with interest of Rs.1,33,253/- for the defaulted kist amount. The total amount is Rs.29,63,092/-. After adjusting the amount paid, i.e. Rs.24,90,078/-, the balance amount has been arrived at Rs.4,73,014/-. This consists of the balance kist amount, namely Rs.1,50,360/-, excise duty Rs.3,07,938/- and interest Rs.14,716/-. It is also clear from Ext.P11 that they have adjusted the various amounts as provided under the Rules of the auction and the licence and it is also pointed out that the objection does not deserve any O.P.No.1804/1998 -3- merit. 4. In the grounds of the original petition, the petitioners have raised a contention that the respondents have not complied with the directions in writ appeal No.1371/94. In fact the factual issue was not adjudicated by this Court while rendering the above judgment. In fact this Court has directed the respondents mainly to consider the contention that the petitioners have made excess payment and that question has been clearly found against the petitioners in Ext.P11. Apart from that an issue like the adjustment of such amounts cannot be resolved in this original petition, being a factual dispute. There is no allegation of violation of any statutory rules on that aspect. 5. In answer to the contentions raised in the original petition, the respondents have filed a detail statement showing the calculations. In the reply affidavit, the stand taken is that they are not liable to pay excise duty on arrack not supplied to the petitioners. This also requires adjudication on facts, which cannot be done in a writ petition. It is also made clear in the statement that the notice dated 20/04/1995 was served on the petitioners on 29/04/1995 and 27/04/1995 respectively, which is supported by Annexures I & II. In the statement, the details of payments made O.P.No.1804/1998 -4- by the petitioners have been clearly shown and the respondents have demonstrated that the petitioners had paid only Rs.18,39,640/-, where as they had to pay Rs.19,90,000/- towards the bid amount. Therefore, the balance kist amount is due from 01/04/1994 as payable with future interest @ 18%. Towards excise duty also, it is stated that the total amount due was Rs.8,39,837/-, whereas remittance is made only to the tune of Rs.5,31,094/- and hence a balance amount of Rs.3,07,938/- remain to be paid, which is payable with interest @ 18%. Since these calculations have not been disputed by the petitioners in the reply affidavit and no other materials have been produced to show that the amount arrived at is not correct, I am of the view that the challenge against Ext.P11 fails. For all these reasons, this original petition is dismissed. No Costs. It is made clear that this will not bar the remedy of petitioners to approach the Civil Court or other forums to seek appropriate reliefs. (T.R.RAMACHANDRAN NAIR, JUDGE.) jg