M/S Rooby Bonded Warehouse vs The State Of Assam And 2 Ors
2022 Latest Caselaw 961 Gua

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GAHC010049512022




                              THE GAUHATI HIGH COURT
   (HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)

                               Case No. : WP(C)/1869/2022

            M/S ROOBY BONDED WAREHOUSE
            A PROPRIETORSHIP FIRM, REPRESENTED BY ITS AUTHORISED
            SIGNATORY NAMELY AJAY RAJA @ ROMIYAN KARUNANITHI, SON OF
            SUBBAIAH ROMIYAN THEVER, RESIDENT OF 41, BYE LANE-1,
            KHARGHULI, GUWAHATI-781004.



            VERSUS

            THE STATE OF ASSAM AND 2 ORS
            REPRESENTED BY THE COMMISSIONER AND SECRETARY, GOVERNMENT
            OF ASSAM, EXCISE DEPARTMENT, DISPUR, GUWAHATI-06, ASSAM

            2:THE COMMISSIONER OF EXCISE
            ASSAM HOUSEFED COMPLEX
             DISPUR
             GUWAHATI-6.

            3:THE SUPERINTENDENT OF EXCISE
             KAMRUP(M)
            ASSAM
             PIN- 782003

Advocate for the Petitioner   : MR. JYOTIRMOY ROY

Advocate for the Respondent : SC, EXCISE DEPTT.

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BEFORE HONOURABLE MR. JUSTICE ACHINTYA MALLA BUJOR BARUA

Date : 21-03-2022

JUDGMENT & ORDER (ORAL)

Heard Mr. J Roy, learned counsel for the petitioner and Mr. PN Goswami, learned Additional Advocate General appearing for the respondents in the Excise Department of the Government of Assam.

2. The petitioner is a proprietorial firm operating in the name of M/s Rooby Bonded Warehouse and is engaged in the business of wholesale of foreign liquor. The wholesale business of foreign liquor is governed by the provisions of Assam Excise Rules, 2016 (in short Rules of 2016). It is stated that as per the Rules of 2016, the ad-valorum levy is leviable against the stock of liquor at the stage when such stocks enters the warehouse. But the law that was prevailing prior to the Rules of 2016 i.e. the Assam Excise Rules, 1945 provided ad- valorum levy to be leviable at a stage when the liquor stocks goes out of the warehouse, which was also called bonded warehouse at that relevant point of time.

3. In respect of those liquor stocks which had entered the petitioner warehouse prior to the enactment of the Rules of 2016, a demand is made by the respondents in the Excise Department that the petitioner is liable to pay ad- valorum levy and VAT amounting to Rs. 5, 92, 48, 846/-. According to the petitioner, in respect of the liquor stocks that has become un-saleable in the meantime, the ad-valorum levy and VAT cannot be levied inasmuch as such levies are in respect of goods at the time of sale of such goods. In other words, as the stocks concerned have become un-saleable, the element of sale would be Page No.# 3/4

absent and therefore, the ad-valorum and VAT cannot be levied.

4. As per the letter of the petitioner dated 30.12.2016, there is a request to the authorities to deduct Rs. 2, 07, 14, 913/- from a total of Rs. 3, 45, 47, 849/- towards un-saleable sedimented old stock of liquor. In other words, according to the petitioner, they are disputing the levy of ad-valorum levy and VAT for an amount of Rs. 2, 07, 14, 913/- out of Rs. 3, 45, 47, 849/- i.e. in other words, the petitioner are admitting their liability to pay ad-valorum levy and VAT amounting to Rs. 1, 38, 32, 936/-.

5. Accordingly, we propose that the admitted amount of ad-valorum levy and VAT be paid by the petitioner to the respondent Excise Department, Assam.

6. Mr. J Roy, learned counsel for the petitioner seeks to dispute the said amount by stating that some amount had already been paid. If it is so, the petitioner may file an appropriate application before the authorities to sort it out as regards what is the balance amount to be paid or the entire amount is required to be paid.

7. As regards the amount of Rs. 2, 07, 14, 913/- to be the ad-valorum levy and VAT levied upon un-saleable sedimented old stock of liquor, we direct the authorities in the Excise Department to carry out a de-novo exercise to find out the saleability of such stock claimed by the petitioner to be un-saleable sedimented old stock of liquor. The exercise of arriving at a conclusion whether the stocks are saleable or not be done in the presence of the petitioner and the petitioner shall co-operate with the Excise Department to point out as to which stocks in their warehouse requires such examination.

8. The exercise of arriving at such conclusion be done by the Excise Department within a period of four weeks from the date of receipt of a certified Page No.# 4/4

copy of this order. As per the conclusion that may be arrived in such further process, a consequential decision be taken by the Excise Department as to the amount of ad-valorum levy and VAT that the petitioner would be liable to pay. The resultant conclusion that may be arrived at as regards the liability of the petitioner to pay the ad-valorum levy and VAT shall prevail over all other previous demand being made by the Department to the petitioner.

The writ petition is disposed of in the above terms.

JUDGE

Comparing Assistant