IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 3RD FEBRUARY 2010 / 14TH MAGHA 1931 WP(C).No. 37745 of 2009(K) -------------------------------------- PETITIONER(S): ----------------------- M.R. KESAVAN, METTUPURATH, THODUPUZHA.P.O, IDUKKI DISTRICT. BY ADV. MR.RAJU JOSEPH RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY EXCISE SECRETARY, THIRUVANANTHAPURAM. 2. THE DEPUTY COMMISSIONER OF EXCISE, THRISSUR. 3. THE EXCISE CIRCLE INSPECTOR, OFFICE OF THE EXCISE CIRCLE INSPECTOR, IRINJALAKUDA, THRISSUR DISTRICT. R1 TO R3 BY SR.GOVERNMENT PLEADER MR.K.V. MANOJKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/02/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 37745/2009-K APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE JUDGMENT IN O.P. NO. 8323/1994 AND CONNECTED CASES DATED 18/10/2000. EXT.P2: COPY OF THE STATEMENT ISSUED BY THE 3RD RESPONDENT. EXT.P3: COPY OF THE CHALAN DATED 30/11/2000. EXT.P4: COPY OF THE JUDGMENT IN W.A. NO. 680/2001 DATED 01/10/2009. EXT.P5: COPY OF THE G.O.(MS).108/08/TD DATED 26/05/2008. EXT.P6: COPY OF THE NOTICE DATED 01/09/2009 ISSUED BY THE RESPONDENT. EXT.P7: COPY OF THE REPLY SUBMITTED BY PETITIONER. EXT.P8: COPY OF THE DGB STATEMENT AS ON 18/10/2000 DATED NIL. EXT.P9: COPY OF THE ORDER DATED 08/12/2009 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: EXT.R2(a): COPY OF THE ORDER NO.R6-2367/94 DATED 28/11/2000 OF THE ASST. EXCISE COMMISSIONER, THRISSUR. EXT.R2(b): COPY OF THE APPLICATION DATED 30/09/2009 FOR AVAILING THE BENEFIT OF PRESENT AMNESTY SCHEME. EXT.R2(c): COPY OF THE REVISED DEMAND COLLECTION AND BALANCE STATEMENT. //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.37745 OF 2009 (K) -------------------------------------------------- Dated this the 3rd day of February, 2010 J U D G M E N T Petitioner and two others were Contractors of Abkari Shops in Group No.1 of Chalakkudy Excise Range, during the year 1993-94. According to them, they conducted shop up to July, 1993 and discontinued thereafter. On account of default committed by them in remitting the Kist and excise duty, invoking the powers available to the respondents, the licence issued to the Contractors were cancelled with effect from 14.9.1993. From 15.9.1993 onwards till 31.3.1994, the shops were under departmental management. 2. Later recovery proceedings were initiated against the contractors for realizing the entire amount in default without giving credit to the amounts realized towards departmental management fee and excise duty for the period subsequent to 15.9.1993. When the recovery proceedings were thus initiated, petitioner approached this court by filing O.P.No.8323/1994. That original petition was finally disposed of by Ext.P1 judgment following the earlier judgment of this court in O.P.No.9263/94 and directing that after WPC.No.37745 /09 :2 : adjusting the amount realized towards departmental management fee and excise duty recovery can be initiated from the contractors only for recovering the actual loss sustained by Government. Against the aforesaid judgment the State and the other respondents filed W.A.No.680/2001. That appeal was dismissed as per Ext.P4 judgment of the Division Bench. 3. At the time when Ext.P1 judgment was rendered in 2000, an Amnesty Scheme was declared by the respondents enabling the defaulters to settle the liabilities in the manner as provided in the Scheme. Petitioner submitted an application for settling the liability availing the benefit of the scheme. However, the respondents were not willing to quantify the petitioner's liability giving him the benefit as directed in Ext.P1 judgment on the ground that an appeal against Ext.P1 was contemplated. 4. At that stage again petitioner and other contractors approached this court by filing O.P.No.33155/200 praying for a direction to the respondents to issue chalans, quantifying the liability complying with the direction in Ext.P1 judgment. On 24.11.2000, an interim order was passed by this court and WPC.No.37745 /09 :3 : accordingly chalan was issued and an amount of Rs.5,34,781/- was remitted by the petitioners. Ext.P3 in this writ petition is the chalan receipt. According to the petitioner with the payment so made by him by Ext.P3, his entire liability is discharged. However, in 2008 when another Amnesty Scheme was announced by the respondents petitioner was issued notice requesting him to avail of the benefit of the said Scheme. There upon he made enquiries which finally resulted in Ext.P9, whereby he was informed that his outstanding liability is to the tune of Rs.7,11,131/-. It is on receipt of Ext.P9 that this writ petition is filed. Contention raised by the counsel for the petitioner is that his liability having been discharged by Ext.P3 there cannot be any further demand. 5. However, respondents on the other hand,contends that pursuant to the Amnesty Scheme of 2000, when the petitioner made an application, his liability was quantified and he was issued Ext.R2(a) and the total liability due from the petitioner was Rs.28,66,145/-. It is stated that as against this , the only payment made by the petitioner is what is shown in Ext.P3 and therefore his liability was not fully discharged. It is therefore submitted that the WPC.No.37745 /09 :4 : balance amount due from the petitioner is as indicated in Ext.P9. 6. In the aforesaid facts, what is required to be examined is whether as on the date when Ext.R2(a) was issued viz. 28.11.2000, the petitioner had the liability as indicated in Ext.R2(a). A mere perusal of Ext.R2(a) shows that the liability of the petitioner' was quantified as shown therein without giving him the benefit of Ext.P1 judgment, which was rendered prior to the order, for the reason that at that time an appeal against the said judgment was contemplated. If that be so, the quantification contained in Ext.R2(a) cannot be accepted in the light of Exts.P1 and P4 judgment which have become final and binding on the parties. 7. Admittedly, in 2000 amount was due from the petitioner. From that liability, the departmental management fee and excise duty realized for the period from 15.9.1993 to 31.3.1993 has to be deducted, as directed in Exs.P1 and P4. Therefore, at the time when the petitioner made his application for the benefit of the Amnesty scheme of 2000, his liability ought to have been quantified in the manner as stated above. On such quantification if the amount remitted by the petitioner by Ext.P3 was sufficient to discharge the WPC.No.37745 /09 :5 : entire liability, the petitioner can have no further liability. On the other hand, on such quantification, the amount remitted by the petitioner was insufficient, the only adjustment the petitioner can ask for is that the amount remitted by him should be appropriated in the manner as provided in the Abkari Act to the liability then outstanding and the petitioner is liable for the balance amount. Therefore, what is required to be done is that the liability of the petitioner will has to be quantified and the amount remitted by him will have to be adjusted in the manner as stated above. 8. Accordingly, the writ petition is disposed of directing the 2nd respondent to issue notice to the petitioner and quantify the amount due from the petitioner as on 30.11.2000, extending him the benefit of Ext.P1 and the Amnesty Scheme 2000. Towards such liability, the amount remitted by the petitioner by Ext.P3 should be adjusted and on such adjustment, if the entire liability is discharged it is directed that no further action shall be initiated against the petitioner. On the other hand, once liability is quantified in the manner as stated above, the amount remitted by the petitioner is insufficient to discharge the liability, it will be open to the 2nd WPC.No.37745 /09 :6 : respondent to appropriate the amount remitted by the petitioner by Ext.P3 in the manner as provided in the Abkari Act and to recover the balance amount due from the petitioner. It is also directed that if the liability is still outstanding the amount remitted by the petitioner pursuant to the interim order dated 30.12.2009 passed in this writ petition will be adjusted towards that liability and on the other hand, if there was no liability due from the petitioner, the amount will be refunded to the petitioner as per Rule. (ANTONY DOMINIC) JUDGE vi/