IN THE HIGH COURT OF JUDICATURE, ANDHRA PRADESH AT HYDERABAD (Special Original Jurisdiction) THURSDAY, THE FOURTH DAY OF SEPTEMBER TWO THOUSAND AND EIGHT PRESENT THE HON'BLE MR JUSTICE B.PRAKASH RAO and THE HON'BLE MR JUSTICE C.Y.SOMAYAJULU WRIT PETITION NO : 8228 of 1997 Between: 1. M/S UNITED BREWERIES LIMITED, Nacharam, Hyderabad, represented by its Vice-President, Sri P.R. Krishna, s/o: Chenchuramaiah, Aged60 years, R/o Hyderabad. ..... PETITIONER AND 1. Secretary to Government, Revenue ( Ex.III) Department, Government of Andhra Pradesh, Secretariat, Saifabad, Hyderabad. 2. The Commissioner of Prohibition and Excise Government of Andhra Pradesh, Hyderabad. 3. The Director of Distilleries and Breweries Govt. of Andhra Pradesh, Hyderabad. 4. Asst. Commissioner of Prohibition and Excise ( Distilleries) Hyderabad. .....RESPONDENT(S) Petition under Article 226 of the constitution of India praying that in the circumstances stated in the Affidavit filed herein the High Court will be pleased to issue an appropriate Writ, order or direction, especially one in the nature of a writ of mandamus declaring the action of the respondents in seeking to collect excise duty/sales tax on the spoiled/sediment Beer proposed to be or being drained out without effecting any sale or transfer for human consumption as illegal arbitrary and unauthorized, infringing the fundamental rights of the petitioner under Article 14 and 19(1)(g) of Constitution of India and consequently directing the respondents to permit the petitioner to drain/destroy the spoiled sediment beer without any obligation on the part of the petitioner to pay either excise duty or sales tax thereon. Counsel for the Petitioner:MR.M.DHANANJAY REDDY Counsel for the Respondent No.: SPL GP FOR TAXES The Court made the following : THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE C.Y.SOMAYAJULU W.P.No. 8228 OF 1997 ORDER: ( Per the Hon’ble Sri Justice B.Prakash Rao) 1. On 4-4-2008 we heard Sri M.Dhananjay Reddy, learned counsel for the petitioner. None appeared on behalf of the respondents. Even today, though the matter is listed under the caption ‘for orders’, there is no representation on behalf of the respondents. Hence, we proceeded to dispose of the matter on merits. 2. The petitioner herein is a company engaged in manufacturing Beers filed this writ petition contending inter alia and seeking a writ of mandamus declaring the action of the respondents in seeking to collect excise duty/sales tax on the spoiled/sediment Beers proposed to be or being drained out without effecting any sale or transfer for human consumption as illegal, arbitrary and unauthorized, infringing the fundamental rights of the petitioner under Article 14 and 19(1)(g) of the Constitution of India and consequently to direct the respondents to permit the petitioner to drain/destroy the spoiled sediment beers without any obligation on the part of the petitioner to pay either excise duty or sales tax thereon. 3. The case of the petitioner squarely rests on the short ground that having regard to the policy enunciated on behalf of the State in implementing the prohibition from 21-1-1995 to 1-4-1997, there could not have been any sale of the excise products, especially manufactured by the petitioner, is one of the product and ultimately the stock totally got spoiled and became unfit for consumption. Therefore, it has resulted grounding the entire stock without any effect of sale as it is not fit for human consumption. 4. Now the case of the respondents herein is that any such stock being used or was used at any point of time for human consumption or any such sale or for transfer affected by the petitioner, the demand, as now sought to be made by the respondents herein, in respect of such stock, had to be dealt with by the petitioner. Wholly, not fit for consumption is not contemplated under the provision of Andhra Pradesh Excise Act. The goods, which are not put to any human consumption, the question of not paying the levy does not arise. The definition of Section 2(a) of the A.P. Excise Act reads as follows: “(2) “beer” includes ale, stout, porter and all other fermented liquors usually made from malt”; 5. A bare reading of above said section, makes it clear that the duty has to be imposed only if it is used for human consumption. Further, it is also pointed out on behalf of the petitioner that even as per the report issued by the Prohibition and Excise Department, Government of Andhra Pradesh, which is Laboratory Analyst Report, shows that the said goods are unfit for human consumption. 6. Having regard to the said unrebuttal material on record and more so, there is no ban now, as such, the effect on any such quantity, which has not been used for consumption whatsoever in nature, the question of levying tax does not arise. 7. Accordingly, this writ petition is disposed of holding that the petitioner is not entitled to pay any duty. No order as to costs. __________________ B.Prakash Rao, J. ___________________ C.Y.Somayajulu, J. 9th April, 2008. KM THE HONOURABLE SRI JUSTICE B.PRAKASH RAO AND THE HONOURABLE SRI JUSTICE C.Y.SOMAYAJULU W.P.No. 8228 OF 1997 9th April, 2008