Pg Subramanian vs State Of Kerala
2022 Latest Caselaw 8422 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM
                               PRESENT
                THE HONOURABLE MR. JUSTICE AMIT RAWAL
     WEDNESDAY, THE 6TH DAY OF JULY 2022 / 15TH ASHADHA, 1944
                        WP(C) NO. 6275 OF 2022
PETITIONER:

          P.G.SUBRAMANIAN
          MANAGING PARTNER, HOTEL NEELAMBARI SUITES,
          VILLANCHIRA, NERIAMANGALAM, KOTHAMANGALAM,
          ERNAKULAM DISTRICT.

          BY ADVS.
          PRAVEEN.H.
          G.HARIHARAN
          K.S.SMITHA
          T.T.SHANIBA
          M.V.VIPINDAS
          AMAL DEV D
          SISIRA M.SHIRINE



RESPONDENTS:

    1     STATE OF KERALA
          REPRESNTED BY ITS ADDITIONAL CHIEF SECRETARY,
          TAXES DEPARTMENT, ROOM NO.396, FIRST FLOOR,
          NEAR SOUTH CONFERENCE HALL, MAIN BLOCK, SECRETAREIAT,
          THIRUVANANTHAPURAM - 695001.

    2     THE EXCISE COMMISSIONER
          EXCISE COMMISSIONERATE, VIKAS BHAVAN P.O.,
          NANDAVANAM, THIRUVANANTHAPURAM - 695033.

    3     THE JOINT EXCISE COMMISSIONER
          EXCISE DIVISION OFFICE, EXCISE ZONAL COMPLEX,
          KACHERIPPADY, ERNAKULAM - 682018.


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
06.07.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) No.6275/2022
                                   2




                             JUDGMENT

Communication dated 2.12.2021 Ext.P14 by the Kerala Excise

Department rejecting the request of the petitioner to refund or set

off the licence fee has been assailed in the present Writ Petition.

2. By virtue of Ext.P3 order dated 27.8.2019, the petitioner

was granted licence for the period from 1.4.2019 to 31.3.2020 as

per the communication dated 14.8.2019. Relying upon Rule 14 of

the Foreign Liquor Rules, full annual fee was liable to be paid even

if the licence was granted in the course of a financial year. The

petitioner obtained licence with effect from 1.9.2019 and had paid

full licence fee of Rs.30,00,000/-, but was able to use the licence

owing to the covid pandemic only for seven months. On expiry of

the licence on 31.3.2020, the petitioner was unable to renew the

same and when the unlocking began, the Kerala Government

introduced major changes in abkari policies and vide order dated

14.5.2020 inserted Rule 3E which permitted the FL3 licence holder

to vend foreign liquor to eligible persons, the quantity not

exceeding the prescribed limit by opening separate counters in the

licenced premises for removal outside the hotel and for such period

as specified by the Government from time to time. The petitioner WP(C) No.6275/2022

renewed the FL3 licence by paying the entire licence fee for the

whole financial year amounting to Rs.32,30,000/- with effect from

30.1.2021. Thereafter made a request for set off on account of

certain conditions.

3. Learned counsel appearing on behalf of the petitioner

submitted that the respondents could not charge the licence fee for

the entire period and have not taken into consideration the post

lockdown and closure of certain units for sale of the liquor. Due to

the outbreak of covid 19 certain financial disabilities occurred which

were beyond the control of the petitioner.

4. I have heard the learned counsel for the parties and

appraised the paper book.

5. The abkari and foreign liquor licence are sacrosanct.

The Government had already considered the request of all the

foreign liquor licence holders and granted the benefit of payment

of licence fee for two months. The claim of the petitioner is for set

off or refund of the licence fee for the financial year referred to

above. The same has, in my view, rightly been rejected as FL3

licence fixed licence fee under the Foreign Liquor Rules, 1953

whereby licencee is liable to pay full licence fee for the year even if WP(C) No.6275/2022

the grant of the licence is for a partial period of financial year. The

aforementioned condition has been specified in Rule 14 of the

Foreign Liquor Rules. The Government vide order dated 25.2.2021,

ordered to reduce the proportionate licence fee for a period of 59

days from 24.3.2020 to 21.5.2020, the actual period of lock-down

by the Government restriction in covid 19 pandemic and at that

time, the payment of licence fee for the next financial year 2020-

21, 2021-22 was due. Therefore, the petitioner in my view has

rightly been held to be not entitled to refund or set off of the

licence fee and was liable to remit the licence fee for 2021-22.

The order Ext.P14 does not suffer from any illegality or

repugnancy. No ground for interference is made out. Writ Petition

is accordingly dismissed.

Sd/-

AMIT RAWAL JUDGE csl WP(C) No.6275/2022

APPENDIX OF WP(C) 6275/2022

PETITIONER'S EXHIBITS

Exhibit P1 THE JUDGMENT DATED 28.01.2013 IN WP(C) NO.2529/2013.

Exhibit P2 THE JUDGMENT DATED 29.08.2014 IN WP(C) NO.9155/2013.

Exhibit P3 THE FL3 LICENSE GRANTED TO THE PETITIONER BY THE EXCISE COMMISSIONER DATED 27.08.2019.

Exhibit P4 THE GOVERNMENT ORDER G.O.(P) NO.73/2020/TD DATED 14.05.2020.

Exhibit P5 THE NOTICE ISSUED BY THE DEPUTY EXCISE COMMISSIONERR DATED 18.01.2020.

Exhibit P6 THE FL3 LICENSE RENEWAL CERTIFICATE DATED 30.01.2021.

Exhibit P7 GOVERNEMNT ORDER G.O.(ORD) NO.169/2021 DATED 25.02.2021.

Exhibit P8 THE JUDGMENT DATED 21.08.2015 IN CA NO.2246/2006 & CA NO.4900/2006.

Exhibit P9 THE REPRESENTATION FILED BY THE PETITIONER DATED 20.07.2021.

Exhibit P10 THE TRUE COPY OF THE JUDGMENT IN R.

VIJYAKUMAR AND ORDS. V. COMMISSIONER OF EXCISE AND ORS [1994 SUPP.(2)SCC 47].

Exhibit P11 THE TRUE COPY OF THE JUDGMENT IN JAYADEVAN V. VARGHESE [1999 KHC 99].

Exhibit P12 THE TRUE COPY OF THE JUDGMENT IN CHITRA AND ANOTHER V. STATE OF KERALA AND OTHERS [2015 KHC 4552] WP(C) No.6275/2022

Exhibit P13 THE TRUE COPY OF THE JUDGMENT DATED 27.09.2021 IN WP(C) NO.18415/2021 PASSED BY THIS HON'BLE COURT.

Exhibit P14 THE TRUE COPY OF THE ORDER DATED 02.12.2021 ISSUED BY THE 2ND RESPONDENT.

EXHIBIT P15 TRUE COPY OF THE REPRESENTATION DATED 11.4.2022 SENT BY THE PETITIONER TO THE 2ND RESPONDENT.

EXHIBIT P16 TRUE COPY OF THE ORDER NO.EXC/3037/2021-

XC6 DATED 16.5.2022 PASSED BY THE 2ND RESPONDENT.

RESPONDENTS' EXHIBITS :

NIL