IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 15TH JULY 2010 / 24TH ASHADHA 1932 WP(C).No. 20935 of 2006(P) -------------------------------- PETITIONER: -------------- P.D.DINESH, S/O.LATE P.K.DIVAKARAN, PUNNAKKAPARAMBIL HOUSE, GOLDEN NAGAR, CHALAKUDY SOUTH P.O., MUKUNDAPURAM TALUK. BY MR.T.A.SHAJI, ADVOCATE. MS.T.V.NEEMA, ADVOCATE. RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, TAXES DEPARTMENT, THIRUVANANTHAPURAM. 2. THE EXCISE COMMISSIONER, THIRUVANANTHAPURAM. 3. THE ASSISTANT EXCISE COMMISSIONER, PALAKKAD. 4. THE ASSISTANT EXCISE COMMISSIONER, THRISSUR. 5. THE CIRCLE INSPECTOR OF EXCISE, WADAKKANCHERRY, THRISSUR. BY MS. N. SUDHA DEVI, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.20935/2006 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF PERMIT No.32/ID/II HY/96-97 DTD. 5.10.96 ISSUED BY R3. EXT. P2 : COPY OF PERMIT No.150/96-97/ID/II HY DTD. 19.10.96 ISSUED BY R3. EXT. P3 : COPY OF APPLICATION DTD. 26.12.96 SUBMITTED BEFORE R4. EXT. P4 : COPY OF COMMUNICATION DTD. 27.12.96 ADDRESSED BY R4 TO THE R3. EXT. P5 : COPY OF DEMAND NOTICE DTD. 16.2.98 ISSUED BY R3 DEMANDING AN AMOUNT OF RS.4,47,525/-. EXT. P5(a) : COPY OF the ENDORSEMENT. EXT. P6 : COPY OF CHALAN RECEIPT No.56 DTD. 4.5.98. EXT. P6(a) : COPY OF CHALAN RECEIPT DTD. 25.11.98. EXT. P7 : COPY OF JUDGMENT DTD. 20.10.05 IN O.P.No.14664/98 OF THIS HON'BLE COURT. EXT. P8 : COPY OF REPRESENTATION DTD. 30.11.05 SUBMITTED BY PETITIONER BEFORE R2. EXT. P9 : COPY OF ORDER DTD. 14.3.06 ISSUED BY R2. EXT. P10 : COPY OF JUDGMENT DTD. 27.6.06 IN W.A.No.1041/06 OF THIS HON'BLE COURT. 3RD RESPONDENT'S EXHIBITS: ANNEXURE A: COPY OF D.C.B. STATEMENT. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.20935 OF 2006 --------------------------------------- Dated this the 15th day of July, 2010. J U D G M E N T The petitioner's father was the licensee of toddy shop Nos.82 to 153 of Vadakkancherry Excise Range during the Abkari years 1994-1997. The toddy required for the above said toddy shops had to be brought from Chittoor and Mannarkkadu ranges in Palakkad Excise Division. 2. The licensee applied for inter division transport permit for the second half year of the Abkari year 1996-97 i.e. from 1st October 1996 to 31st March 1997. Two permits were issued, one for transporting 1950 litres of coconut toddy to be drawn by tapping 1300 coconut trees from the limits of Chittoor Excise Range to Vadakkancherry Excise Range covered by Exhibit P1 and the other permit Exhibit P2 was issued by the Assistant Excise Commissioner, Palakkad for transporting 975 litres of coconut toddy drawn by tapping 650 coconut trees from the limits of Attappadi of Mannarkkad Excise Range. W.P.(C) No.20935/2006 2 3. Later when the production of toddy improved and the toddy brought from Chittoor Range was sufficient to cater the needs of all the toddy shops, by Exhibit P3 application dated 26.12.1996, the petitioner's father sought for cancellation of Exhibit P2 permit. This was recommended by Exhibit P4 communication by the 4th respondent to the 3rd respondent. According to the petitioner, Exhibit P2 permit was surrendered and the licensee did not transport toddy thereafter. 4. Presently, the petitioner is aggrieved of the demand of an additional amount by way of levy of Rs.1/- per bulk litre of toddy for the said period on the plea that transport permit was not cancelled. This is under challenge in this writ petition. 5. Exhibit P5 is the demand notice issued to the licensee dated 16.12.1998 which is covered by the permits Exhibits P1 and P2. The licensee then sought for a clarification in the matter. The split up of the amounts was given as Exhibit P5(a). Going by the same, he had to remit Rs.1,58,925/- as dues towards additional tax in respect of Exhibit P2 permit. The petitioner's father remitted the amounts covered by Exhibit P1 permit and W.P.(C) No.20935/2006 3 the proportionate amount for transporting toddy, from the date of Exhibit P2 till its surrender i.e. 26.12.1996. 6. The petitioner's father had approached this Court earlier by filing O.P.No.14664/1998. As per Exhibit P7 judgment in the said original petition, this Court directed the authorities to consider the matter. As his father subsequently expired, as legal heir the petitioner filed an explanation as Exhibit P8 which was rejected by Exhibit P9 order by the Excise Commissioner. 7. Learned counsel for the petitioner submitted that Exhibit P9 order to the extent it holds the liability for payment cannot be supported. It is submitted that the licensee had surrendered the permit along with an application and accordingly it was recommended for cancellation by the Assistant Excise Commissioner, Thrissur as per Exhibit P4. Due to administrative inaction for passing orders of cancellation, the petitioner cannot be saddled with any liability in the matter. It is pointed out that the finding in Exhibit P9 that the permit was not surrendered while requesting for cancellation of permit is not correct. The authority would not have recommended for cancellation if the W.P.(C) No.20935/2006 4 permit was not surrendered. If the actual permit was not surrendered before recommending cancellation, the licensee would have been given a notice for producing the permit. It is, therefore, pointed out that the same indicates that the permit was duly surrendered when the cancellation was recommended. 8. In the statement filed by the 3rd respondent, the stand taken is that no surrender of permit was made by the licensee while requesting for cancellation of permit and as the transport permit was validly held by him during the entire period of currency of the permit, no remission or waiver of the fee can be granted to the petitioner. 9. Herein, the petitioner's case is that the licensee had not transported toddy after surrendering of the permit. Evidently, the application for surrender was accepted and was acted upon and finally it was recommended. It cannot be conceived that without getting surrender of the permit, cancellation as such was recommended by the Assistant Excise Commissioner, Thrissur to Assistant Excise Commissioner, Palakkad. The permit Exhibit P2 is issued by the Assistant Excise Commissioner, Palakkad. At W.P.(C) No.20935/2006 5 least one would have expected that both these Assistant Commissioners would have issued notices to the licensee requiring him to surrender his permit for cancellation, if they had an objection that permit was not surrendered. The matter was kept without any action by the respondents. Learned Government Pleader was directed to produce the records regarding Exhibit P2 permit and the application for cancellation of the same and the consequent order Exhibit P9. On getting instructions, it is submitted that the files are not available. 10. There is no evidence to show that the licensee has transported 975 litres of coconut toddy using Exhibit P2 permit. The sole reason now attributed that the permit was not surrendered cannot result in saddling the liability on the petitioner. Actually what is sought for is imposition of levy of Rs.1/- per bulk litre of the toddy transported. Unless there is positive evidence to show that the licensee had transported the toddy even after seeking cancellation of the permit, the respondents are not justified in imposing liability on the licensee. 11. Herein, the licensee had remitted the amount towards W.P.(C) No.20935/2006 6 levy for the permit issued as per Exhibit P1 and has remitted the proportionate amount for the utilization of the permit for the period upto the request for cancellation was submitted. In that view of the matter, the refusal to accept the application for waiver cannot be justified. Therefore, Exhibits P5, P5(a) and P9 are quashed to the extent it demands an amount of Rs.1,58,925/- from the petitioner. This writ petition is allowed as above. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp