Orissa High Court
Madhaba Patro vs State Of Odisha And Others ..... ... on 28 June, 2024
Bench: B.R. Sarangi, G. Satapathy
IN THE HIGH COURT OF ORISSA, AT CUTTACK
W.P.(C) No. 10132 of 2024
Madhaba Patro ..... Petitioner
Ms. Pami Rath, Sr. Advocate
Vs.
State of Odisha and others ..... Opposite Parties
Mr. S.N. Nayak, ASC
CORAM:
DR. JUSTICE B.R. SARANGI
MR. JUSTICE G. SATAPATHY
ORDER
28.06.2024
Order No. This matter is taken up through hybrid mode.
03.
2. Heard Ms. Pami Rath, learned Senior Advocate for the
petitioner and Mr. S.N. Nayak, learned Additional Standing Counsel
for the State-opposite parties.
3. The petitioner has filed this writ petition seeking to quash the
order of demand dated 11.03.2024 passed by the Excise
Commissioner, Odisha under Annexure-6.
4. Ms. Pami Rath, learned counsel for the petitioner contended
that perusal of the order Annexure-6 would be evident that in the
nature of compounding offence the same has been passed on
11.03.2024 by the Excise Commissioner demanding Rs.61,00,000/-. It
is contended that if it is in the nature of compounding offence, then as
per Section 75 of the Excise Act, 2008, which deals with
compounding of offences and releasing property liable to
confiscation, read with Rule-58 of the Excise Rules, liberty has been
granted to compound the offence in lieu of cancellation of licence on
payment of a sum of five thousand rupees which may be extended up
to fifty thousand rupees, to be determined by the Authorized Officer
or the Collector, as the case may be. But, in the present case, demand
has been raised for an amount of Rs.61,00,000/-, which is contrary to
the statutory provision of law. To substantiate her contention, she
placed reliance to the judgment of this Court in the case of Smt.
Shakuntala @ Shakuntala Sahoo v. State of Odisha and others
(W.P.(C) No. 4882 of 2024 decided on 09.05.2024).
5. Mr. S.N. Nayak, learned Addl. Standing Counsel appearing for
the State-opposite parties, at the outset raised objection with regard to
maintainability of the writ petition and contended that since the
petitioner has challenged the order passed by the Excise
Commissioner under Annnexure-6, revision lies before the State
Government. So far as the demand raised under Annexure-3 is
concerned, the petitioner has to prefer appeal before the Collector
instead of approaching this Court.
6. Having heard learned counsel for the parties and after going
through the record, it appears that if the order passed by the opposite
parties under Annexure-6 is per se illegal, arbitrary and unreasonable,
this Court should not relegate to the stage of appeal or revision and as
such, the impugned orders under Annexure-6 is contrary to Section
75 of the Odisha Excise Act, 2008 read with Rule-58 of the Odisha
Excise Rules, 2017. Considering the same, this Court has rendered a
judgment in the case of Smt. Shankuntala @ Shakuntala Sahoo
(supra), wherein at paragraph-18 it has been observed as follows
"On perusal of Section 75 of the Odisha Excise Act, 2008
read with Rule 58 of the Odisha Excise Rules, 2017, it
appears that if the power has been vested with the Collector
or such Excise Officer, they alone can exercise such
authority, but no other person can do so, may he be in higher
position in hierarchy. Therefore, the order dated 19.02.2024
under Annexure-1 passed by the Excise Commissioner,
Odisha, Cuttack levying the duty of Rs.53,31,732/- on the
petitioner and the consequential order dated 23.02.2024
under Annexure-2 passed by the Superintendent of Excise,
Cuttack raising a demand of Rs.52,52,858/- cannot be
sustained in the eye of law. Accordingly, they are liable to be
quashed and are hereby quashed. Therefore, as a necessary
corollary, the matter is remitted to the Collector, Cuttack to
examine the SIR, along with the other documents submitted
by the petitioner, and pass appropriate order in compliance
of the principles of natural justice by affording opportunity of
hearing to the petitioner as expeditiously as possible in
accordance with law."
6. Taking into consideration the fact and law discussed above, this
Court is of the considered view that the demand order dated
11.03.2024 under Annexure-6 cannot be sustained in the eye of law
and the same is liable to be quashed and hereby quashed. Accordingly
the matter is remitted to the Collector, Ganjam to examine the SIR,
along with the other documents submitted by the petitioner, and pass
appropriate order in accordance with law, in compliance of the
principles of natural justice by affording opportunity of hearing to the
petitioner, as expeditiously as possible, preferably within a period of
three months from the date of communication of the order.
7. The writ petition is accordingly disposed of.
(DR. B.R. SARANGI)
JUDGE
(G. SATAPATHY)
Arun
JUDGE
Designation: ADR-cum-Addl. Principal Secretary
Location: High Court of Orissa
Date: 01-Jul-2024 15:13:27
