V.K. Ashokan vs Asstt. Excise Commnr. & Ors

3. The questions involved herein broadly arise in the following factual matrix in the cases. We would, however, notice the fact involved in the individual cases also.

The position of the parties with reference to the name of the licenses and the other relevant dates would appear from the following:

Hence as per rule 6(28) of Abkari Shops (Disposal in Auction) Rules 1974, the amount of Rs.58,50,000/- in respect of toddy shops of Cherpu range, Rs.44,40,000/- in respect of toddy shops of Thrissur range and Rs.88,50,000/- in respect of toddy shops of Anthikad range deposited by the original purchasers of the above toddy shops as per TR No. 4232, 4230 and 4229 respectively are hereby forfeited to Government with immediate effect."

14. Consequent to the said order, the Circle Inspector of Excise issued a notice dated 8.1.1998 demanding a huge amount as also the interest thereon at the rate of 18% per annum stating that the Government of Kerala had suffered losses in holding re-auctions which took place on or about 11.11.1997 and wherefor licences had been granted with effect from 14.11.1997. Revenue Recovery proceedings were initiated under Section 7 of the Kerala Revenue Recovery Act on 11.3.1998 asking the appellants to remit the amount mentioned therein with interests as arrears in respect of toddy shops specified therein.

18. The contention raised before the High Court that the licence was granted for a period of one year and hence for rest of the years appellants were not liable to pay the kist amount, was rejected stating:

Please confirm the above within 24 hours."

Rules 3 and 4 of the Rules and factually all the documents point out that appellants had been allowed to carry out their business for a period of one year. Appellants were called upon to pay a sum of Rs.2,06,55,786/- by 43 notice dated 21.10.1997 within three days without complying with the principles of natural justice as the appellant had not been given an opportunity of hearing entirely on the basis of the recommendations made by the Circle Inspector of Excise. The contract was directed to be cancelled inter alia on the premise that the contractors did not remit the defaulted amount such as kist tree tax and interest in spite of the said notices.

41. We may not moreover lose sight of another fact. Raids were conducted; shops were sealed on specific allegations, namely, the licensees had mixed some poisonous substance with liquor. They were prosecuted for adding `Diazepem'. Evidently, the fact that the chemical report showed that `Diazepem' had been mixed with toddy have prejudiced the licensing authority. Such prejudice is apparent even on the face of the impugned order passed by the High Court.

In the peculiar facts and circumstances of this case, therefore, we are of the opinion that it was not a case where even Rule 6(28) could have also been resorted to. As we have not applied our mind to the judgment rendered by the criminal court leading to the acquittal of the appellants, we leave the parties to seek any other remedies available to them in law,

42. For the aforementioned reasons, the impugned judgment of the High Court is set aside. These appeals are allowed. Consequently the Writ 50 Petitions stand allowed to the extent indicated above. However, in the facts and circumstances of the case, there shall be no order as to costs.

MARCH 05, 2009