Judgment:
B.J. Shethna, J.
1. Petitioner, Udaipur Distillery Company Limited, dealing in liquor business within the State and out side the State has filed this petition under Article 226/227 of the Constitution of India praying that a writ of certiorari be issued against the impugned order passed by the Excise Commissioner, respondent No. 2, on 31.8.96 (Annex. 1) and the same may be quashed. It is also prayed to declare that the petitioner is entitled to waiver of interest under Section 30-AA of the Rajasthan Excise Act, 1950 (for short, 'the Act') and also to declare that the respondents are not entitled either to impose interest or recover the same from the petitioner under Section 30-A of the Act.
2. On 23.9.96, this petition was straight away admitted by this Court (Quorum, P.P. Naolekar, J.) and the notice was ordered to be issued. On the same day, i.e. on 23.9.96, on stay petition also, this Court ordered to issue notice to the other side and till further orders the respondents were restrained from taking coercive action for recovery of the amount. On 10.10.96, statement was made before this Court by learned Counsel Shri Joshi for the petitioner that the petitioner will deposit Rs. 15,00,000/- on or before 25.10.96 and further Rs. 15,00,000/- on or before 15.11.96 at first instance. On that statement, the ex parte stay granted earlier was modified by this Court on the condition that the petitioner will deposit the aforesaid amount, as stated earlier, failing which it was ordered to be vacated automatically. On 20.11.96 statement was made by the learned Counsel for the petitioner that the order passed by this Court on 10.10.96 was complied with by the petitioner and in all Rs. 30 lakhs were deposited. Thereafter, the matter was adjourned from time to time due to. sickness of the learned Counsel Shri Vyas and for other reasons. However, today the matter was heard on 11.3.97 finally along with similar writ petition viz., SB Civil Writ Petition No. 3048/96 (Herbertsons Ltd Unit Sona Distilleries, Alwar v. State of Rajasthan etc.).
3. The petitioner, Udaipur Distillery Co. Ltd., earlier challenged the imposition of excise duty before this Court by way of writ petition No. 716/90 wherein a blanket stay was granted in favour of the petitioner but later on the said writ petition came to be dismissed. The principle amount towards excise duty was about Rs. 1.40 crore. After the dismissal of the writ petition by this Court, the petitioner filed S.L.P. before the Apex Court but they have failed to obtain any stay order from the Supreme Court against the principle amount of about Rs. 1.40 crore. Hence, the said amount was paid by the petitioner to the respondents. It is stated at the bar by learned Counsel Shri Joshi that the said S.L.P. is yet pending before the Supreme Court without any stay being granted in it.
4. Thereafter, by an order dated 16.12.95, the Excise Commissioner demanded interest for about ten years i.e. from 1984 to 1995 of about Rs. 1.85. crore on the principle amount of excise duty of about Rs. 1.40 crores. An application was moved by the petitioner before the Excise Commissioner under Section 30-AA of the Act for waiving the interest on the grounds mentioned in it. The petitioner deposited Rs. 53 lakhs on 31.3.96 against the demand of Rs. 1.85 crores as interest on the request made by the Excise Commissioner on his assurance that the case of the petitioner for waiving the interest will be considered sympathetically. Later on, the department found out its mistake in calculation, therefore, corrected it fey reducing the interest amount of Rs. 1.85 crore to Rs. 1.45 crore only. Thereafter, the Excise Commissioner, after hearing the petitioner rejected the application for waiver filed by the petitioner by an order dated 31.8.96 (Annex. 1). Therefore, the petitioner was required to pay balance amount of interest of Rs. 92, 38, 464/-. But the same was not paid, therefore, the respondents started recovery proceedings of the balance Interest amount of Rs. 92,38, 464/-. Though, statutory appeal was maintainable under Section 9-A of the Act against the impugned order dated 31.8.96 (Annx-l) passed by the Excise Commissioner to the Divisional Commissioner but the same was not filed. Instead of that, the petitioner has filed this petition directly before this Court under Article 226/227 of the Constitution of India and challenged the impugned order at Annex. 1 passed by the Excise Commissioner. The grounds for not filing an appeal by the petitioner, which is sought to be made out in this petition is that the petitioner was required to deposit 75% of the demanded amount then only the appeal could be entertained. It is also contended that the alternative remedy of appeal is not a speedy or efficacious remedy, therefore, the appeal was not filed by the petitioner and directly this petition was filed before this Court.
5. Learned Counsel Shri Rajendra Vyas raised the preliminary objection regarding the maintainability of this petition on the ground that there was an alternative and efficacious remedy by way of an appeal available to the petitioner, which was not availed of by the petitioner, therefore, this Court should not entertain this petition and dismiss it only on this ground.
6. As against that, learned Counsel Shri Joshi, for the petitioner vehemently submitted that though there was statutory remedy of appeal, the petitioner did not avail of the same and directly filed this petition before this Court under Article 226/227 of the Constitution of India because the remedy of appeal is neither efficacious nor a speedy remedy. Mr. Joshi further submitted that the provision to deposit 75% of amount at the time of filing of appeal is very harsh, therefore, the petitioner has filed this petition instead of filing an appeal before the Divisional Commissioner against the impugned order passed by the Excise Commissioner.
7. On merits, Mr. Joshi submitted that the impugned order at Annexure-1 is liable to be set aside as the same is in clear violation of Section 30-A and 30-AA of the Act. Mr. Vyas for the respondents, however, submitted that the impugned order at Annexure-1 does not suffer from any infirmity. The Excise Commissioner has passed a reasoned under, which is not required to be interfered with by this Court In exercise of its extra ordinary jurisdiction under Article 226 of the Constitution of India or the supervisionary powers under Article 227 of the Constitution of India. He submitted that writ of certiorari cannot be issued in such cases where the decision of the authority is otherwise just and property.
8. In my opinion, there is lot of substance in the preliminary objection raised by Mr. Vyas regarding the maintainability of the writ petition in view of the alternative remedy of appeal being available to the petitioner and not availed of. The Full Bench of five Judges of this Court in case of Gopi Chand Tell v. State of Rajasthan etc. 1995 WLC 1 held that entertainment of writ petition by this Court under Article 226 of the Constitution of India without exhausting the remedies should be with great care and caution and in very exceptional cases. It has also been held that violation of the principles of natural justice, the normal course is to pursue the remedy provided under the Act and power under Article 226 of the Constitution of India in such cases should be sparingly exercised.
9. This petition therefore is required to be dismissed on this ground alone. Under Section 9-A of the Act appeal lies against the order passed by the Excise Commissioner before the Divisional Commissioner within 60 days from the order complained of. Proviso to Sub-section (4) of Section 9-A provides that no appeal shall be entertained unless 75% of the amount of demand created by the order appealed against is deposited.
10. Mr. Joshi submitted that the petitioner company was not in a position to deposit the said amount of 75% of demand. Such provision is absolutely harsh. Therefore, the petitioner had to file this petition directly before this Court instead of filing an appeal. It is true that to deposit 75% amount along with the appeal would be difficult for any one. But appears that the said proviso has been inserted by Section 2 of the Rajasthan Act No. 14 of 1989 in the year 1989 by the legislation, may before the purpose of securing the revenue. Such difficulty of depositing 75% of amount demanded would be in case of one and all. Does it mean that the Court should go on entertaining the writ petitions in all such cases? If this Court entertains this writ petition on this ground, though there is an alternative remedy of appeal, then each and every matter or similar nature has to be entertained by this Court. If this Court does it is this case, then it would be making the provisions of appeal provided Under Section 9-A of the Act totally redundant and meaningless. That cannot be the intent of the legislation and it would not be in the interest of justice at all. Therefore, the preliminary objection regarding the maintainability of writ petition raised by learned Counsel Shri Vyas for the respondents has to be accepted and this writ petition is required to be dismissed on this ground alone. However, learned Counsel Shri Joshi for the petitioner, submitted that after the admission of this writ petition, this Court should not throw out this petition at this stage on the ground of alternative remedy available to the petitioner and not utilised. He tried to rely upon several Supreme Court judgments on this point and he submitted that the Supreme Court has taken such view in many cases. No such judgment was cited before this Court. Considering all the Supreme Court judgments and judgements of other High Court, the Full Bench of five Judges of this Court in case of Gopi Chand Teli (supra), held that writ petition is not maintainable when the statutory remedy of appeal was available to the petitioner and not availed of. From the order sheet it is clear that Hon'ble P.P. Naolekar, J. straight away admitted the petition on 23.9.96 without issuing the notice to the other side. It is only after the matter was admitted and the notice was served upon the respondents, they have raised this preliminary objection. If the Full Bench judgment of this Court was brought to the notice of the learned Single Judge at the admission stage then perhaps this petition would not have been admitted and the petitioner might have been relegated to the alternative remedy of appeal. Be that as it may. I am bound, by the Full Bench decision of five judges, therefore, accepting the preliminary objection regarding the maintainability of the writ petition in view of the alternative remedy available to the petitioner, the petition is required to be dismissed.
11. In view of the Full Bench decision of this Court, I would have rested here and dismissed the petition on this ground only. But with a view to avoid any such criticism like, 'the learned Single Judge, who rejected the writ petition, ought to have taken pains to go through the averments and submissions in their true perspective and ought not to have shirk the responsibility by resorting to the Full Bench decision of this Court dismissing the writ petition on the ground of alternative remedy after admission of the matter', made by the Division Bench of this Court consisting of M.G. Mukherji and V.G. Palshikar, JJ., in DB Special Appeal (Writs) No. 790/95 [Deepak Kumar Khivsara v. Oil India Limited and Ors.), decided on 17.4.96, I heard learned Counsel Shri Joshi, for the petitioner, on merits also.
12. On merits, Mr. Joshi had submitted that the impugned order is in clear violation of Section 30-A of the Act in as much as no date was prescribed by the authority to pay the demanded interest amount. Hence, the impugned order is bad and liable to be set aside. It was rightly pointed out by Mr. Rajendra Vyas for the respondents that initially the notice was given to the petitioner to pay Rs. 1.85 crore by way of interest but after considering the objections raised by the petitioner, the department found that there was a mistake in calculation, therefore, it was reduced substantially by Rs. 40 lakhs and brought it down from Rs. 1.85 crore to Rs. 1.40 crore. Thus, the petitioner was fully aware that he was required to pay the interest but he failed to do so by particular time. Thus, there is no substance in the first contention raised on merits by Mr. Joshi.
13. Mr. Joshi next contended on merits that the impugned order was in violation of Section 30-AA of the Act in as much as the Excise Commissioner failed to waive or at least reduce the amount of interest payable by the petitioner - licencee under the Act. Mr. Joshi submitted that by calling upon the petitioner to deposit huge amount of Rs. 1.45 crore by way of interest would obviously cause great hardship to the petitioner. The petitioner would be required to close down the business as it is not in a position to pay such a huge interest amount. He also submitted that the licencee has fully co-operated in the proceedings for the recovery of amount due form him. He submitted that it has deposited Rs. 53 lakhs before the Excise Commissioner out of Rs 1.45 crore. Thus, he submitted that both the conditions provided under Section 30-AA were fulfilled still the Excise Commissioner passed the impugned order against it mainly on the ground that the petitioner took the matter in the Court of law and carried right up to the High Court and ultimately to the Supreme Court.
14. Mr. Vyas, however, submitted that the petitioner never cooperated in the proceedings of tax recovery. He submitted that the imposition of Excise duty was challenged by 'the petitioner before the High Court then before the Supreme Court. He submitted that the petitioner deposited the principle tax amount of about Rs. 1.40 crore with the department only after the dismissal of the writ petition by this Court and its failure to obtain any stay from the Supreme Court in S.L.P. filed by it against the order passed by the High Court before the Supreme Court.
15. There is lot of substance in what Mr. Vyas submitted. The petitioner had deposited Rs. 1.40 crore arrears towards the excise duty only when its petition was dismissed by the High Court and it failed to obtain any stay order from the Supreme Court in S.L.P. The petitioner, thus successfully delayed the payment of huge excise duty amount of Rs. 1.40 crore for over a decade by dragging the department to the Court of law. The petitioner will not be obliging the Revenue Department by paying the interest of Rs. 1.45 crore on the principle amount of excise duty of Rs. 1.40 crore. If the petitioner had paid that principle amount before a decade then department would have earned interest on the said amount. By not depositing the excise duty at the right time, the petitioner has earned the benefit of saving the interest, therefore, it cannot now make the complaint about it. It was submitted by Mr. Joshi that the petitioner would not be able to pay the huge balance amount of Rs. 62 lakhs and it has to close down the business. By doing so, a great loss would cause to the revenue. If this argument of Mr. Joshi is accepted in this case then each and every one will come before this Court with this submission, that they are unable to pay. The time will tell whether the petitioner would be closing down its business or not. The manner in which the matter is fought from one Court to other, shows that no hardship much less genuine hardship would be caused to the petitioner if the petitioner is asked to deposit the balance amount of interest of Rs. 62 lakhs. There was no co-operation on the part of the petitioner in recovery proceedings of principle excise duty as well as the interest amount. The conduct of the petitioner dis-entitles itself from any benefit by the hands of Excise Commissioner or by this Court. In my opinion, the Excise Commissioner while passing he impugned order at Annex. 1 has assigned sound reasons which cannot be lightly interfered with by this Court either in its extra ordinary powers under Article 226 or its supervisionary powers under Article 227 of the Constitution of India.
16. In view of the above discussion, this petition fails and is dismissed. Stay granted earlier stands vacated forthwith. The petitioner is directed to deposit the remaining balance amount of interest with the respondents immediately.
17. Before parting with, the judgment, I must state that the petitioner had the better alternative and efficacious remedy by way of appeal before the Divisional Commissioner against the impugned order passed by the Excise Commissioner as the scope of appeal is much wider than of writ petition. The appellate authority could have gone into the merits of the case and decided the matter on facts which is not permissible for this Court in writ jurisdiction. If the appeal was preferred by the petitioner and the decision was against it, this Court would have been in a better position to appreciate the matter in a better way and much valuable time of this Court would not have been wasted by deciding the matter on the ground of maintainability as well as on merits.