Allahabad High Court
Anoop Kumar Gupta vs State Of U.P. & Others on 21 September, 2011
Bench: Arun Tandon
HIGH COURT OF JUDICATURE AT ALLAHABAD
?AFR
Court No. - 10
Case :- WRIT TAX No. - 858 of 2010
Petitioner :- Anoop Kumar Gupta
Respondent :- State Of U.P. & Others
Petitioner Counsel :- Murtuza Ali
Respondent Counsel :- C.S.C.
Hon'ble Arun Tandon,J.
Recovery initiated against the petitioner in respect of unlifted quantity of minimum guaranteed quantity (hereinafter referred to as 'M.G.Q.'), were initiated by issuance of a recovery certificate dated 30.9.2003. The petitioner filed an appeal against the recovery proceedings before the Commissioner, Allahabad under Section 11 (1) of the U.P. Excise Act. It was his case that the entire quantity of M.G.Q. has been lifted by him, yet while seeking refund of his security money, the respondents have illegally shown the balance amount towards the unlifted quantity of M.G.Q. and on that basis, recovery proceedings have been initiated.
The contention made by the petitioner was opposed by the District Excise Authority and it was stated that the petitioner had not lifted 1561.85 bulk liters of the minimum guaranteed quantity and therefore, he was liable to pay a sum of Rs. 1,28,072/- representing the value of the unlifted quantity of M.G.Q.
The appeal was dismissed by the Additional Excise Commissioner vide order dated 17.6.2007. Not being satisfied, the petitioner filed a Revision under Section 11 (2) of the U.P. Excise Act being Revision No. 62 of 2007. The Revision has also dismissed on 4.5.2010 after recording a finding that the petitioner has not lifted 561.85 bulk liters of M.G.Q. and therefore, the recovery in the facts of the case was justified. Reliance has been placed upon the judgments of the Hon'ble Apex Court in the case of State of Orissa vs. Narain Prasad 1996 5 SCC Pg. 740 and State of U.P. vs. S.P. Rai 1994 1 SCC Pg. 8, for the purpose that a licensee cannot be permitted to wriggle out of his contractual obligation of lifting of the minimum quantity, the recovery proceedings initiated against the petitioner were therefore in accordance with law. Accordingly, the State Government proceeded to dismiss the Revision vide order dated 4.5.2010.
Not being satisfied, the petitioner has approached this court by means of the present writ petition on behalf of the petitioner in which it has again been reiterated that he had lifted the entire quantity of M.G.Q. and therefore, the recovery is bad.
In paragraph 6 of the counter affidavit, the contention so raised by the petitioner is denied and it has been stated that the petitioner had not lifted 1561.85 bulk liters of M.G.Q. and therefore, the recovery is in accordance with law. Learned counsel for the petitioner could not hardly assail the correctness of the fact qua non-lifting of the minimum quantity of M.G.Q. This Court therefore, on the facts of the case, finds that the recovery proceedings initiated against the petitioner are in accordance with law.
Learned counsel for the petitioner at this stage submitted that the security which has been furnished by the petitioner is much in excess, nearly Rs. 4.5 lakhs, which the respondents may be directed to release on deposit of the money which is sought to be recovered under the impugned orders. In the counter affidavit, the amount shown as outstanding is disclosed as Rs. 94,354.12.
In view of the aforesaid, it is provided that the petitioner may deposit the demand of Rs. 94,354.12 as disclosed the in the counter affidavit within a period of one month from today. He will then be at liberty to file an application for refund of the security amount. Such application, if made, shall be considered, in accordance with law and appropriate action shall be taken within a period of four weeks thereafter.
The writ petition is disposed of with the aforesaid observations.
Order Date :- 21.9.2011
Jaideep/-
