CWP No.1616 of 2002 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH CWP No.1616 of 2002 Date of decision: 10.5.2010 M/s Som Distilleries Limited Sehatganj, District Raisen (Madhya Pradesh) ...........Petitioner Versus State of Haryana and others .......... Respondents CORAM: HON'BLE MR. JUSTICE ADARSH KUMAR GOEL HON'BLE MR. JUSTICE ALOK SINGH -.- Present: Mr. Chetan Slatia, Advocate with Mr. Amit Jain, Advocate for the petitioner. Ms. Ritu Bahri, Sr. DAG, Haryana. ALOK SINGH, J. 1. Present petition is filed impugning the orders dated 13.6.2001, 29.6.2001, 18.7.2001and 22.08.2001, whereby imposing penalty of Rs.3 lakh on the petitioner under Section 61(A)(2) of the Punjab Excise Act of 2001 (for brevity ‘the Act’) as applicable to State of Haryana and confiscating the liquor and truck carrying the liquor. 2. Brief facts of the present case are that petitioner- company through valid Import-Export permits alongwith requisite documents i.e. Bill and Bilty, dispatched Cases of Indian Made CWP No.1616 of 2002 -2- Foreign Liquor (IMFL) to Chandigarh from Sehatganj, District Raisen (Madhya Pradesh); In fact, truck No.MP-04K-2467 was loaded and started on 3.6.2001 from the premises of the petitioner-company; Truck in question was intercepted on 7.6.2001 and was found carrying 1003 Cases of IMFL at Faridabad; The Deputy Excise and Taxation Commissioner (Excise), Faridabad issued show cause notice to the petitioner dated 8.6.2001 to show cause as to why liquor and vehicle should not be confiscated and why the action under Section 61(A)(2) be not initiated against the petitioner; Petitioner submitted its reply, however, Deputy Excise and Taxation Commissioner (Excise), Faridabad passed the impugned order dated 13.6.2001 imposing the penalty of Rs.3 lakh and directing the confiscation of the liquor and further directing to release the vehicle in question only after recovery of the penalty; petitioner submitted the statutory appeal; no order was passed on the stay application moved alongwith the appeal, hence, CWP No.8990 of 2001 was filed before this Court; Vide order dated 28.6.2001, this Court directed to decide the stay application of the petitioner in a pending appeal and, till such time, trucks and goods of the petitioner shall not be auctioned; Vide order dated 29.6.2001, stay to the recovery of the penalty by auctioning vehicle was allowed in view of the undertaking given by the petitioner on furnishing bank guarantee of Rs.3 lakh; However, vide order dated 18.7.2001, Appellate Authority remanded the matter to the Deputy Excise and Taxation Commissioner (Excise), Faridabad for fresh decision; Deputy Excise and Taxation Commissioner (Excise), Faridabad again passed order dated CWP No.1616 of 2002 -3- 12.10.2001 restoring the original order dated 13.6.2001 imposing penalty of Rs.3 lakh. 3. The main contention of the petitioner is that driver of the truck was carrying all the relevant documents i.e. valid Import-Export Permits, Bill and Bilty; IMFL in question was dispatched from the factory of the petitioner through the valid Import-Export permits on 3.6.2001; Relevant entries pertaining to Gate Pass was made by the Excise Department of Madhya Pradesh after due verification of the loading of the IMFL and Import-Export licence. Another contention of the petitioner is that on 7.6.2001, when vehicle in question was intercepted, driver of the vehicle was carrying all the documents, copy of the Import-Export certificate, Bill and Bilty and Gate Pass issued by the Excise Department, Bhopal; However, orders impugned were passed on the basis of surmises and conjectures by observing that all the documents, which were found to be valid, were dated 29.5.2001 and it could not be proved that vehicle in fact proceeded from the factory on 3.6.2001, hence, liquor in question is being transported without proper and genuine documents. Further contention of the petitioner is that entries and Gate Pass duly prepared by the Excise Department of Madhya Pradesh, were not taken into account. 4. In reply, respondents have pleaded that pursuant to all the documents dated 29.5.2001 it is improbable that vehicle left the premises of the petitioner on 3.6.2001, hence, penalty was rightly imposed on the petitioner by invoking Section 61(A)(2) of the Act. CWP No.1616 of 2002 -4- 5. We have heard learned Counsel for the parties and perused the record. 6. Undisputedly, petitioner was having Import-Export license/permit. Undisputedly, truck was having Bills and Bilty dated 29.5.2001. There is no denial that Gate Pass was prepared for the same consignment by the Excise Department of Madhya Pradesh and relevant entries were made in the documents certifying that in fact truck in question started from the factory of the petitioner on 3.6.2001. Merely, because Bilty and other documents were prepared on 29.5.2001 does not mean that at the time of interception on 7.6.2001, truck was not carrying valid and genuine documents. Merely, because truck in question started late from the factory of the petitioner on 3.6.2001 does not mean that the truck was not having valid documents and was found transporting the liquor illegally without any valid document. Observation made by the respondents in the impugned orders that if documents were prepared on 29.5.2001 then why truck was not started on 29.5.2001 create suspicion, does not hold water in the absence of any further evidence. In the present case, petitioner has produced all the documents and evidence before the authorities that in fact truck in question could not reach factory of the petitioner on 29.5.2001 and could reach in the factory of the petitioner only on 2.6.2001 and after loading, started from the factory of the petitioner on 3.6.2001 and relevant Gate Pass entries was made by the Excise Department, Madhya Pradesh. 7. In view of the above, we have no hesitation to hold that CWP No.1616 of 2002 -5- orders impugned therein are based on surmises and conjectures and authorities below, without any valid reason, imposed the penalty on the petitioner-company by invoking Section 61(A)(2) of the Act. Once truck was having all the relevant documents then merely because they were dated 29.5.2001 does not mean that liquor was being transported without any valid documents. Entry of the Gate Pass duly prepared by the Excise Department, Madhya Pradesh, clearly proves that in fact truck started from the factory of the petitioner-company on 3.6.2001. 8. In view of the above, orders impugned can not be sustained. 9. Writ petition is allowed. Orders impugned dated 13.6.2001, 29.6.2001, 18.7.2001and 22.08.2001 are hereby quashed. No costs. (ALOK SINGH) JUDGE (ADARSH KUMAR GOEL) 10th May, 2010 JUDGE ashish