M/S Yamuna Beverages Pvt. Ltd vs The State Of Himachal Pradesh And ...
2023 Latest Caselaw 1861 HP

     IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA

                                                                 CWP No. 1353 of 2022

                                                                 Decided on: 06.03.2023




                                                                                         .

M/s Yamuna Beverages Pvt. Ltd.                                                     ....Petitioner.





                                          Versus

The State of Himachal Pradesh and others                                           ...Respondents.

Coram





The Hon'ble Mr. Justice Ajay Mohan Goel, Judge.
Whether approved for reporting?1 Yes.
For the petitioner:                Mr. B.C. Negi, Senior Advocate, with Mr. Nithin
                               r   Thakur, Advocate.

For the respondents:               M/s Pushpender Jaswal and                               Baldev       Negi,
                                   Additional Advocate Generals.

Ajay Mohan Goel, Judge (Oral):

By way this writ petition, the petitioner has, inter alia, prayed for

the following relief:-

"i) May please pass an appropriate writ, order or direction to quash the order dated 18.02.2022 alongwith

the rectification dated 21.02.2022 (Annexure P-3) passed by the Ld. Financial Commissioner (Excise) Himachal Pradesh, Shimla so as to restore/revive the D- 2A and B.W.H. 2 licence, for the year 2021-22 of the petitioner company and the petitioner company may kindly be allowed to continue its operations/business thereof."

1 Whether reporters of the local papers may be allowed to see the judgment?

2. The case of the petitioner is that FIR No. 06/21 was registered

on 16.10.2021 at State Vigilance, Police Station Una, H.P. with regard to an

incident that took place on 15th October, 2021 pertaining to recovery of

.

liquor being carried allegedly without appropriate permit and pass in Truck

No. HP 17E-1679. On the same day when this FIR was registered, as it was

mentioned by the Driver of the vehicle in issue that the documents and

permits which were in his possession were purportedly handed over to him

by one Shri Ajay Grover, owner of M/s Yamuna Beverages Private Limited,

i.e., the present petitioner, the premises of the petitioner-Company were

raided by the Excise and Taxation Department, report whereof is appended

with the petition as Annexure P-5. In terms of this report, the bottles

transported in the truck in issue, i.e., 900 in all were duly accounted for,

however, there was difference of blend measuring 262.740 Bls. in BV-5

discovered by the Raiding Team. This led to an inquiry and in terms of order

dated 10.12.2021, passed by the Collector (Excise) (SZ), Shimla, H.P.

(Annexure P-15), the offence was compounded in the following terms:-

"Now, therefore, keeping in view of the above aforesaid facts and circumstances statements/documents adduced before me and in contravention of the provisions contained in HP Excise Act, 2011, I, Pankaj Sharma, Collector (Excise) SZ, in exercise of powers conferred upon me under section 43(d) impose a fine of Rs.50,000/- and hereby compound this offence under Section 66(1) of the HP Excise Act, 2011 for a sum of Rs.25,000/- and further

order to charge the following excise levies upon the licensee:-

Levies applicable on the less stock of blend in BV-5

.

             1                                     BV-5                             262.740







                                                   Pls.                             130.500

                                                   EP @ 396 per case                11561





             1.                                    Bottling Fee @ 1.73 per 750 ml   606

             2.                                    Excise Duty @ 31 per Pls.        4046

             3.                                    VT @ 12.5%                       1951





             4.                                    License [email protected] per Pls.         44892

             5.                                    Additional License Fee @ 54 per case


             6.                                    Covid cess @ 5 per 750 ml        1740


                          r                        Total (1 to 7)                   55,148

                              Therefore, order to recover the total amount

of Rs.1,30,148/- (One lakh thirty thousand one

hundred and forty eight only) from the licensee. In case of his failure to deposit the same within 30 days

from receipt of this order, the above amount will be recovered as arrears of land revenue from the

licensee.

Copy of this order be sent to the Dy. CST

&E, Sirmour and to the licensee for compliance. The file after due completion be consigned to the record room. The record/file lower office if any may be returned back to them."

3. The grievance of the petitioner is that subsequently proceedings

were initiated against the petitioner under Section 29(b) & (c) of the

Himachal Pradesh Excise Act, 2011, which have culminated in the issuance

of impugned order dated 18.02.2022 (Annexure A-3), in terms whereof, the

Financial Commissioner (Excise), Himachal Pradesh has cancelled with

immediate effect the licence issued in favour of the petitioner-Company in

.

Form D-2A and B.H.W.2 without taking into consideration the effect of order

dated 10.12.2021, passed by the Collector (Excise)-Cum-Additional

Commissioner, State Taxes and Excise, South Zone, H.P. (Annexure P-15)

referred to hereinabove.

4. Learned Senior Counsel for the petitioner has argued that the

proceedings which were initiated against the petitioner-Company under

Section 29(b) & (c) of the Himachal Pradesh Excise Act, 2011, in fact, are

result of the registration of FIR which initially led to the raid of the premises

of the petitioner-Company and passing of subsequent orders which already

stand referred to hereinabove, yet, while passing the impugned order, the

authority concerned has not taken into consideration the effect of report

Annexure P-5 and order dated 10.12.2021, Annexure P-15, which has

resulted in great prejudice to the petitioner. Learned Senior Counsel has

submitted that once the discrepancies which were found in the raid stood

compounded by the appropriate authority, the same amounted to

compounding of the offences committed by the Company and for the same

offences, the Company could not have been penalized twice. This extremely

important aspect of the matter has been ignored by the Financial

Commissioner (Excise) while passing order dated 18.02.2022 (Annexure P-

3) by ignoring both Annexures P-5 and P-15, as no reference can be found

in the impugned order vis-à-vis these two set of communications.

Accordingly, learned Senior Counsel has submitted that the impugned order

be set aside and the present petition be allowed.

5. The petition is opposed by the learned Additional Advocate

.

General on the ground that there is no infirmity in the impugned order dated

18.02.2022, passed by the Financial Commissioner (Excise), H.P. and due

opportunity was given to the parties to put forth their cases and it is only

thereafter that the impugned order was passed by the Financial

Commissioner (Excise), H.P. and the findings which have been recorded

therein are duly substantiated by the facts on record. He further submitted

that as in the course of raid, discrepancies were found in the premises of the

petitioner-Company, therefore, if the discrepancies stood compounded, this

does not means that no action could have been subsequently taken against

the petitioner-Company in terms of Section 29(b) & (c) of the Himachal

Pradesh Excise Act, 2011 and accordingly, he prays that the present petition

being devoid of any merit be dismissed.

6. Having heard learned Senior Counsel for the petitioner-

Company as well as learned Additional Advocate General and having

carefully gone through the pleadings as well as the documents appended

with the petition and further taking into consideration the respective

contentions of the parties, this Court is of the considered view that there is

some merit in the contention of learned counsel for the petitioner-Company.

This Court is not suggesting as to what could have been the effect of

Annexures P-5 and P-15 vis-à-vis the proceedings which stood initiated

against the petitioner-Company under Section 29(b) & (c) of the Himachal

Pradesh Excise Act, 2011, but least that was expected from the statutory

authority was that once in the sequence of events that took place after

lodging of FIR, Annexures P-5 and P-15 came into existence and when

.

these orders too stood passed by the statutory authorities, least that the

Financial Commissioner (Excise), H.P. should have done was that he should

have taken into consideration both Annexures P-5 and P-15. As this has not

been done, same has indeed caused prejudice to the petitioner-Company.

Therefore, this Court is of the considered view that it will be in the interest of

justice in case without making any further observation, this writ petition is

disposed of by setting aside order dated 18.02.2022 (Annexure P-3), with a

further direction to the Financial Commissioner (Excise), H.P. to pass fresh

orders in the proceedings initiated against the petitioner under Section 29(b)

& (c) of the Himachal Pradesh Excise Act, 2011 and while passing fresh

orders, Annexures P-5 and P-15 appended with the petition be taken care of

and the effect of these orders upon the proceedings which have been

initiated under Section 29(b) & (c) of the Himachal Pradesh Excise Act, 2011

be answered in the said order. Ordered accordingly. With these

observations, the petition stands disposed of. Annexure P-3, dated

18.02.2022, passed by the Financial Commissioner (Excise), H.P. in Case

No. 15 of 2021-22, titled as State Vs. M/s Yamuna Beverages Pvt. Ltd. is

quashed and set aside. Let fresh orders be passed by the Financial

Commissioner (Excise), H.P. in the proceedings initiated against the

petitioner under Section 29(b) & (c) of the Himachal Pradesh Excise Act,

2011 by adhearing to the principles of natural justice within a period of three

months from today. Miscellaneous applications, if any, also stand disposed

of.

(Ajay Mohan Goel)

.

                                                      Judge





March 06, 2023
   (bhupender)





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