Habib G.N. vs Deputy Commissioner of Excise, Belgaum

In this petition under Art. 226 of the Constitution the petitioner has challenged the Notice No. EXE/EST/2654/73-74 dated 28-3-1978 (Annexure-C) and letter No. EXE/EST/2654/73-74 dated 1-3-1977 (Annexure-B) issued by the Deputy Commissioner of Excise, Belgaum (hereinafter referred to as the D.C.).

The petitioner is a dealer in denatured spirit. Against certain demands made and collected by the Excise authorities on denatured spirits, the petitioner and various other dealers approached this Court challenging those demands in W.P. No. 217/73 and connected cases.

On 27-2-1973 a Division Bench of this Court consisting of Govinda Bhat, J., (as he then was) and Malimath, J., disposed of the said writ petitions (Annexure-A) with the following directions with which only we are concerned in this writ petition:

"We direct the respondents to make orders of refund on the petitioners'' filing particulars of the amounts collected from them during the aforesaid period of three years before the institution of these writ petitions. It is ordered accordingly."

In pursuance of the said order, the petitioner made an application for refund of the amounts, which was allowed by the Excise authorities out of which a sum of Rs. 3,750 represents the payment made by him on 10-1-1970.

But, some time later, the Excise authorities realised that the refund of the amount paid on 10-1-1970 was for a period of three years prior to the presentation of the writ petition, namely, 21-1-1973 and therefore called upon the petitioner to pay back the said amount. As the petitioner refused to comply with the said request, the D.C. has issued a notice to the petitioner on 23-8-1978 calling upon him to pay back a sum of Rs. 3,750 to Government failing which he has threatened to recover the same as arrears of land revenue.

Sri Gopalakrishna Shetty, learned counsel for the petitioner, contends that the computation of three years made by the D.C. as including the payments made only from 11-1-1970 and not 10-1-1970, though 10th and 11th January 1973 were general holidays was illegal and impermissible.

On 12-1-1973 the petitioner presented his writ petition and 10th and 11th January 1973 were general holidays, bat still this Court directed the refund of the amounts paid only for a period of three years prior to the presentation of his writ petition are not in dispute.

On the very terms of the order made by this Court, the computation of 3 years will only be from 11-1-1970 and not from 10-1-1970 The period of three years-has to be reckoned only from a day prior to the presentation of the writ petition before this Court. In such computation, no other question arises for determination. Such computation is nothing but arithemetical.

The fact that 10th and 11th January 1973 were general holidays has really no relevance in computing the period of 3 years prior to the presentation of a writ petition before this court. Any exclusion of time in deciding whether a suit filed on a particular day, having regard to the preceding holidays on which Courts are closed, has no relevance in computing the period of 3 years prior to the presentation of a writ petition before this Court. For all these reasons, I see no merit in the contention of Sri Shetty and I reject the same.

Sri Shetty next contends that this Court found that the levy itself was illegal and therefore the amount of Rs. 3,750 illegally collected had been rightly paid to the petitioner and there is no justification for this Court to permit, the authorities to recover that amount.

As seen earlier this Court directed the Excise authorities to refund only the amount paid by the petitioner for a period of three years prior to the presentation of the writ petition. When this Court directed the refund of certain amounts paid for a certain period only, it was not open to the authorities to refund for any other period. Apart from this, it is not open to me to examine the validity of the direction issued by this Court or the validity of the collection made from the petitioner in this writ petition. All these questions are concluded in the earlier writ petition filed by the petitioner. For these reasons, I see no merit in this contention of Sri Shetty and I reject the same.

As all the contentions urged for the petitioner fail, this writ petition is liable to be dismissed. I therefore, dismiss this writ petition and discharge the rule issued in this case. But, in the circumstances of the case, I direct the parties to bear their own costs.