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C.K.BALAN, CHETHIYATTIL HOUSE v. THE ASSISTANT EXCISE COMMISSIONER - WA No. 1921 of 2005 [2006] RD-KL 3773 (19 December 2006)


WA No. 1921 of 2005()

... Petitioner


... Respondent



For Petitioner :SRI.M.P.ASHOK KUMAR


The Hon'ble the Chief Justice MR.V.K.BALI The Hon'ble MR. Justice S.SIRI JAGAN

Dated :19/12/2006


V.K. Bali, C.J. & S. Siri Jagan, J.
W. A. No. 1921 of 2005
Dated this, the 19th December, 2006.


Siri Jagan, J.

Petitioner in O.P. No. 16502/2001 is the appellant herein. He is challenging the judgment in that original petition which was dismissed by the learned Single Judge on the ground that the point raised by the appellant is covered against him by the judgment of the Division Bench in W.A.No. 605/1997. He is challenging that judgment inter alia on the ground that the said Division Bench decision is not applicable to the appellant's case. The brief facts necessary for the disposal of the writ appeal are as follows.

2. The appellant was a licensee to run a toddy shop in the Kodungaloor range during the period 1994 to 1997. He was granted permit to import 7200 liters of toddy from Palakkad issued by the 1st respondent. According to the petitioner, due to shortage of tappable coconut trees, he did not get sufficient number of coconut trees for procuring toddy as per the permit. Therefore, he filed Ext. P1 application to cancel two of the permits for transportation of 3600 liters of toddy. However, the appellant was served with Ext. P2 demand notice under the Revenue Recovery Act for recovery of an amount of Rs.10,07,400/- being the fee payable by the appellant in respect of the toddy transported by the appellant. Although the appellant filed O.P.No. 2195/1999, he was relegated to the remedy by way of appeal provided under the Abkari Act. However, appeal filed by the appellant was dismissed by Ext. P3 order. His further appeal before the Government also met with the same fate by Ext. P5 order. Since it was an ex parte order, he filed review petition, which was also dismissed by Ext. P7. The appellant challenged Exts. P2, P5 and P7 orders in the original petition, which was dismissed by the impugned judgment. This is under challenge in this writ appeal. W.A. No. 1921/2005 -: 2 :-

3. The appellant's contention is that since he had filed application for cancellation of the permits relating to 3600 liters of toddy, he is not liable to pay the fee in respect of the same and therefore the impugned orders are violative of the provisions of the rules relating to the same. The appellant's contention is that the Division Bench decision relied upon by the learned Single Judge did not relate to this question at all and therefore the learned Single Judge went wrong in relying on that decision. The appellant further contends that he need pay fee only in respect of the actual amount of toddy transported and not the toddy covered by the entire permit. According to him, at the time of taking the permit, the actual toddy available for transport is not ascertained and only if the appellant actually transports the toddy, he would become liable to pay the fee in respect of the same.

4. The departmental authorities rejected the contention of the appellant that he was not able to get sufficient number of tappable trees during the period in question. In Ext. P3 order, it was held that as per the rules, transport permits are issued after collecting tree tax for the required number of tappable trees and getting the trees located and marked. The specific finding in Ext. P3 is that in the appellant's case also permits were issued after getting the trees marked and after collecting tree tax applicable under the rules. Hence, the contention of the appellant that he did not get sufficient number of tappable trees is against the facts as also the procedure for issue of the transport permit. The same finding was concurrently upheld by all the appellate authorities. The appellant could not cite any rule or provision which supported his case that he is liable to pay fee only in respect of the actual toddy transported by him and not the volume of toddy covered by the permit.

5. His contention that the Division Bench decision in W.A.No. W.A. No. 1921/2005 -: 3 :- 605/1997 did not cover this question does not appear to be correct. Annexure-A1 is the judgment in question. In the same, in paragraph 8, it is held thus:

"8. Then the submission of learned counsel for the appellants is that fee is charged right at the stage when permit is issued on the quantity mentioned in the permit. The submission is that very often, it happens that the permit holders transport much lesser quantity from one District to another than that what is mentioned in the permit. It is said that the fee could be imposed only on the quantity actually transported and not on the quantity, mentioned in the permit. We are not at all impressed by the submission of learned counsel for the appellants. When a permit is obtained, the permit holders know well and they could assess at that point of time as to how much quantity of toddy could be transported by them from one destination to another. Therefore, it cannot be said that fee should be imposed only on the toddy actually transported instead on that what is mentioned in the permit on a bare estimate. (Emphasis supplied) The underlined portion of the extract from the judgment as quoted above leaves no room for doubt that the issue canvassed by the appellant is squarely covered by the decision in Annexure A1 judgment, which was relied upon by the learned Single Judge to dismiss appellant's original petition. As such, we do not find any merit in the writ appeal and accordingly, the same is dismissed. However, we do not make any order as to costs. Sd/- V.K. Bali, Chief Justice. Sd/- S. Siri Jagan, Judge. Tds/ [True copy] P.S to Judge.


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