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Alembic Chemical Works Co. Ltd. Vs. State of Gujarat and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise;Civil
CourtGujarat High Court
Decided On
Judge
Reported in(1977)18GLR594
AppellantAlembic Chemical Works Co. Ltd.
RespondentState of Gujarat and ors.
Excerpt:
- .....equal or subordinate to a collector. it is important to realise that it makes no reference to excise officers. now,' it is true that an excise officer may fulfil the descri ption of a public officer. but then the entry contemplates such public officers who are equal or subordinate to a collector in regard to the jurisdiction exercised by them. when we are considering the question of applications made to an inspector of excise or other excise officers, it is not possible to equate them with the officers exercising jurisdiction equal to or subor dinate to a collector. the jurisdiction of an excise officer cannot be compared and equated with the jurisdiction exercised by a collector or magistrate. it is, therefore, clear that an application made to an excise officer in relation to any.....
Judgment:

M.P. Thakkar, J.

1. An Inspector of Prohibition and Excise posted at Baroda took the view that in regard to applications made by the petitioner Company (a manufacturer of rectified spirit, etc. for industrial purposes) (i) seeking permission to remove alcohol for internal use or for issuance to other licensees, (ii) for removal of alcohol to the place of manufacture of medicinal preparations and (iii) for removal of the finished preparations, court-fee stamp of 65 naye paise is liable to be affixed and not court-fee stamp of 20 naye paise as was being done hitherto. His view has been confirmed by the Director of Prohibition and Excise, Gujarat State (respondent No. 2) by the impugned order dated December 12, 1973. The petitioner Company has thereupon invoked the jurisdiction of this Court under Article 227 of the Constitution of India and has contended that the practice obtaining till 1972 was the correct practice and that there was no warrant for insisting on the affixation of a court-fee stamp of 65 paise instead of a court-fee stamp of 20 paise.

2. The question is whether Entry 1(a) first paragraph of Schedule II of the Bombay Court-fees Act, 1959 will govern the question as regards the court-fees payable on such applications or whether Entry 1(c) second paragraph of Schedule II will be attracted. In order to resolve the controversy a glance must be stolen at both the relevant provisions. Entry 1(a) first paragraph of Schedule II is in the following terms:

SCHEDULE II

Fixed fees

---------------------------------------------------------------------------------------

Number ... Proper fee.

1 2 3

---------------------------------------------------------------------------------------

1 Application or (a) When presented to any officer of the Excise Twenty naya

petition. Department or to any Magistrate by any paise.

person having dealings with the Government,

and when the subject-matter of such

application relates exclusively to those

dealings;

According to the petitioner, this is the Entry which governs the question of affixation of court-fees on applications made by the petitioner Company (i) for permission to remove alcohol for internal use or for issuance to other licensees, (ii) for removal of alcohol to the place of manufacture of medicinal preparations and (iii) for removal of the finished preparations. On the other hand it is contended on behalf of the revenue in support of the view taken by the Director of Prohibition and Excise, Gujarat State (respondent No. 2) that the pertinent Entry is Entry 1(c) second paragraph of Schedule II which reads as under:

SCHEDULE II

Fixed fees

----------------------------------------------------------------------------------------

Number ... Proper fee.

1 2 3

----------------------------------------------------------------------------------------

1 Application or (c) xx xx xx Sixty-five naye

petition. or when presented to a Civil, Criminal or paise.

Revenue Court, or to a Collector or any

Revenue Officer or to a public officer

having jurisdiction equal or subotdinate

to a Collector, or to any Magistrate in

his executive capacity and not otherwise

provided for by this Act;

-----------------------------------------------------------------------------------------

3. In our opinion, it is not possible to uphold the contention urged on behalf of the revenue that an application of the aforesaid character would fall under Entry 1(c) second paragraph for the very simple reason that on a close examination of the said Entry it becomes evident that it relates to applications made to a Civil, Criminal or Revenue Court, or to a Collector or any revenue Officer or to a public officer having jurisdiction equal or subordinate to a Collector. It is important to realise that it makes no reference to Excise Officers. Now,' it is true that an Excise Officer may fulfil the descri ption of a public officer. But then the Entry contemplates such public officers who are equal or subordinate to a Collector in regard to the jurisdiction exercised by them. When we are considering the question of applications made to an Inspector of Excise or other Excise Officers, it is not possible to equate them with the Officers exercising jurisdiction equal to or subor dinate to a Collector. The jurisdiction of an Excise Officer cannot be compared and equated with the jurisdiction exercised by a Collector or Magistrate. It is, therefore, clear that an application made to an Excise Officer in relation to any of the aforesaid three matters cannot fall under second paragraph of Entry 1(c) of Schedule II.

4. It appears to us pretty clear that the practice hitherto prevailing till this question was for the first time raked up in 1972 by the Inspector of Prohibition and Excise was the correct practice. Till that point of time all such applications were being affixed with the court-fee stamps of 20 paise on the premise that these were applications presented to an officer of the Excise Department within the meaning of the first paragraph of Entry 1(a) of Schedule II. When there is a special Entry dealing with applications made to officers of Excise Department (all officer; of Excise Department), there is no escape from the conclusion that applications of the present nature would fall under the aforesaid Entry, more so as such applications cannot under any circumstances fall under the second paragraph of Entry 1(c) of Schedule II. The view taken by the respondent No. 2 is, therefore, one which cannot be sustained.

5. The petition succeeds. The order passed by respondent No. 2 is quashed. It is declared that applications made to Excise Officers (i) for permission to remove alcohol for internal use or for issuance to other licensees, (ii) for removal of alcohol to the place of manufacture of medici nal preparations, and (iii) for removal of the finished preparations, would be governed by Entry 1(a) of Schedule II of the Bombay Court-fees Act and would be liable to be affixed with court-fee stamps of 20 paise. Rule is made absolute to this extent. There will be no order regarding costs.


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