IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID WEDNESDAY, THE 10TH AUGUST 2011 / 19TH SRAVANA 1933 WP(C).No. 20178 of 2011(V) -------------------------- PETITIONER : -------------------- B. SURENDRA DAS, S/O. LATE BHANU PANICKER, 'SREE VISAKH', AMBALATHARA, POONTHURA P.O., THIRUVANANTHAPURAM. BY ADV. SRI. K.B. PRADEEP RESPONDENT(S): ------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY (TAXES), SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE COMMISSIONER OF EXCISE, DEPARTMENT OF EXCISE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM - 695 001. R1 & R2 BY GOVT. PLEADER SRI. MUHAMMED SHAFI M. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 10/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 20178 of 2011(V) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE APPLICATION DATED 27.4.2011 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXT.P2 : COPY OF THE LETTER DATED 2.6.2011 ISSUED BY THE 2ND RESPONDENT TO THE DEPUTY COMMISSIONER OF EXCISE DIRECTING HIM TO OBTAIN CERTAIN CERTIFICATES FROM THE PETITIONER. EXT.P3 : COPY OF THE AFFIDAVIT DATED 6.6.2011 SUBMITTED BY THE PETITIONER. EXT.P4 : COPY OF THE LETTER DATED 28.6.2011 ISSUED BY THE 2ND RESPONDENT TO THE DY. COMMISSIONER OF EXCISE WITH COPY TO THE PETITIONER. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.S. TO JUDGE Mn HARUN-UL-RASHID,J. ------------------------------- W.P.(C). NO. 20178 OF 2011 ------------------------------- DATED THIS THE 10TH DAY OF AUGUST, 2011 JUDGMENT The writ petition is filed seeking to quash Ext.P4 order and also for a declaration that a clearance from the Commercial Tax Department is not envisaged or contemplated in the Foreign Liquor Rules for consideration of an application for FL-13(3) licence. The grievance of the petitioner is that his application for FL-3 licence to his three star hotel is being delayed by insisting production of clearance certificate from the Commercial Tax Department. According to the petitioner, the production of the said certificate is not contemplated in the Foreign Liquor Rules. Ext.P1 is the application for FL-3 licence. Going by the rules applicable the Government is the authority to grant FL-3 licence upon the recommendations of the Commissioner of Excise. By Ext.P2 communication dated 2/6/2011 issued by the 2nd respondent the Deputy Commissioner of Excise, Thiruvananthapuram is directed -2- W.P.(C).No.20178/2011 to obtain the above certificate for consideration of the petitioner's application. Petitioner has made available the certificates mentioned as items (a) to (e) in Ext.P2 before the Deputy Commissioner of Excise, Thiruvananthapuram to be forwarded to the 2nd respondent. Petitioner submits that he has tax dues to the Government and regarding those dues statutory appeals with an application for interim stay of collection of the said dues are pending consideration before the statutory authorities and that the demand made has not attained finality and therefore, the petitioner is not in a position to produce the certificate demanded as item (f) in Ext.P2 communication. 2. On 28/6/2011 the 2nd respondent issued a communication to the petitioner directing him to produce a clearance certificate from the Commercial Tax Department as a pre- requisite condition for consideration of FL-3 licence. Ext.P4 is the said communication. The petitioner pointed out that since the entire project is put up on borrowed funds, a complete functioning -3- W.P.(C).No.20178/2011 of the hotel project is necessary at the earliest to generate revenue for paying back the loans availed and that the Commercial Tax Department will not give a clearance certificate vouching the fact that there are no dues for the reason that in respect of certain assessments they have made against the petitioner, statutory appeals are pending consideration. The learned counsel for the petitioner brought to the notice of this Court Rules 13A and 13B of the Foreign Liquor Rules. Rule 13A (5) reads as follows: 3. Rule 13A. No licence of any of the above descriptions shall be issued:- “1. xx xx xx 2. xx xx xx 3. xx xx xx 4. xx xx xx 5. If the applicant is not financially sound and is in capable of discharging his responsibilities in the matter.” 4. Under Rule 13B(1) of the Foreign Liquor Rules, the Assistant Excise Commissioner or such other officer as may be -4- W.P.(C).No.20178/2011 authorised by the Commissioner, shall enquire into all the points mentioned above and submit the application to the Commissioner with his report thereon. 5. According to the petitioner the demand for a clearance certificate from the Commercial Tax Department made under Ext.P4 is unjustified. It is pointed out that such a certificate is not contemplated either in the Abkari Act or in the Foreign Liquor Rules. Petitioner also submits that since the statutory appeals against the assessments are pending consideration, it is not possible for petitioner to obtain a clearance certificate from the Commercial Tax Department. It is further submitted that the petitioner is able to satisfy respondents 1 and 2 by other means about the financial soundness as contemplated in Rule 13A(5) of the Foreign Liquor Rules. 6. In the facts and circumstances of the case stated above, the 2nd respondent is directed to process Ext.P1 application without insisting clearance certificate from the Commercial Tax -5- W.P.(C).No.20178/2011 Department and to forward same to the Government within three weeks from the date of receipt of a copy of this judgment and in that event, the Government shall consider the said application and pass final orders thereon within three weeks thereafter. Writ Petition is disposed of as above. HARUN-UL-RASHID, Judge. kcv.