IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE P.S.GOPINATHAN TUESDAY, THE 7TH JUNE 2011 / 17TH JYAISHTA 1933 WA.No. 707 of 2011() -------------------- AGAINST THE JUDGEMENT IN WPC.18909/2010 Dated 16/03/2011 .................... APPELLANTS/RESPONDENTS ------------------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, TAXES (A) DEPARTMENT, THIRUVANANTHAPURAM-695001. 2. THE COMMISSIONER OF EXCISE, THIRUVANANTHAPURAM-695001. 3. DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION OFFICE, KASARAGOD-671121. BY G.P. SRI.BENNY GERVACIS RESPONDENTS/PETITIONERS: --------------- 1. GOPACHANDRAN NAIR, ONATTU HOUSE, PERIYAPURAM P.O., PAMBAKUDA VIA., ERNAKULAM DISTRICT, PIN-686667. 2. GEORGE KOCHUPARAMBIL @ ANISH, KOCHUPARAMBIL HOUSE, VAZHITHALA P.O., THODUPUZHA, IDUKKI DISTRICT, PIN-685583. BY ADV. SRI.RAJU JOSEPH THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 07/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: C.N.RAMACHANDRAN NAIR & P.S.GOPINATHAN, JJ. .................................................................... Writ Appeal No.707 of 2011 .................................................................... Dated this the 7th day of June, 2011. JUDGMENT Ramachandran Nair, J. Heard Government Pleader appearing for the appellant and Adv. Sri.Raju Joseph appearing for the respondents. The first respondent along with grandfather of the second respondent and another person were abkari contractors during 1989-90. Even though licence was obtained by them, after running the arrack shops for some time, they abandoned the arrack shops leading to default in payment of kist. However, under departmental management scheme, the arrack shops were run during the balance licence period and the Government also collected kist which but for the abandonment of the business would have been payable by the licencees. Government later issued an order on 16.10.1992 declaring entitlement of the licencees to get credit of the kist collected during the period the department was running the business. Under this order, the defaulter-licencees were entitled to get credit of the kist collected during departmental management and their W.A. 707/2011 2 liability for payment of kist was limited to the balance payable over the kist collected by the Government. A dispute arose as to the date with reference to which credit should go to the account of the defaulter- licencees. This was settled by Exts.P4 and P6 decisions in favour of the respondents by this court holding that the defaulters are entitled to credit on the date of collection of kist by the Government. Respondents' case is that the position is now settled by Supreme Court in their favour. Counsel for the respondents also relied on judgment in W.A. No.680/2010 wherein this court has referred to the Apex Court judgment in the same matter. 2. The Government though issued specific orders referred above authorising credit of the kist collected during department management of the shops in the account of the defaulter-licencees, the same was later withdrawn on 21.6.2010 i.e. after 18 years. It is this order that was challenged before the learned Single Judge and the Single Judge vacated the orders of the Government issued after 18 years of the original order under which respondents were given the benefit. Even though Government Pleader contended that the benefit granted is W.A. 707/2011 3 subject to review by the Government, we do not find any reason or logic behind it because when the department runs the arrack shops during the licence period during which licencees defaulted payment of kist, either the licence period should be excluded while fixing the liability of the licencee or if licencee is called upon to pay full licence fee, they are entitled to credit of the amount of kist collected by the Government during the period of licence when Government carried on business. In other words, even without the first Government Order, we do not think the Government can take the stand that the kist collected during the period department was carrying on business should not be reckoned while fixing liability for the entire period. Invariably in every case the kist collected by the Government is less than the actual licence fee payable for such period and defaulters are called upon to pay the differential amount as well. So much so, even without the first order of the Government in favour of licencees, we do not think the respondents could be denied the benefit. We do not think there is anything wrong in the learned Single Judge declaring the order dated 21.6.2010 as unsustainable merely because of the delay of 18 years in W.A. 707/2011 4 passing the same. It is also brought to our notice that respondents have settled liability under amnesty scheme. If there is any amount due under amnesty scheme from the respondents, appellants are certainly entitled to recover the same. If liability is settled under amnesty scheme, then there will be direction to the appellants to release the attached property which should be done within a period of two months from date of production of copy of this judgment or two months from date of payment of the balance amount, if any due under Amnesty Scheme. Writ Appeal is closed with the above observation. C.N.RAMACHANDRAN NAIR Judge P.S.GOPINATHAN Judge pms