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Judgment
D. Redeppa Reddi, J.—The petitioner is a manufacturer of Indian Made Foreign Liquor, having its factory at Hyderabad. It has filed this writ petition to declare the action of the respondents, claiming a sum of Rs.96,480/- towards export fee under the impugned proceedings as illegal and arbitrary.
The relevant facts that led to the filing of this petition may be stated thus: The Tamilnadu State Marketing Corporation obtained fourteen import permits on 12-3-1992 from the Commissioner of Excise, Tamilnadu, for importing Indian Made Foreign Liquor (IMFL) from the petitioner. The permits so obtained were valid upto 10-4-1992. On the strength of the said permits, the petitioner applied for 14 export permits to the 1st respondent, namely, Commissioner of Excise, Andhra Pradesh, Hyderabad, by paying the necessary export fee of Rs.96,480/-on21-3-1992. Thereupon, the 1st respondent granted 14 export permits on 8-4-1992 permitting the petitioner to export the permitted quantity of liquor by 10-4-1992, the dale specified in the import permits. It is stated there was sudden strike by the lorry owners during that period. For that reason the petitioner could utilise only four export permits before 10-4-1992 and the remaining ten export permits could not be utilised due to non-availability of lorries. This situation necessitated the petitioner to apply to the Commissioner of Excise, Tamilnadu to revalidate the unutilised ten import permits. Thereupon, the Commissioner of Excise, Tamilnadu, by his order dated 21-4-1992 revalidated the ten permits and extended their validity upto 10-5-1992. Then, the petitioner applied to the 1st respondent on 22-4-1992 to extend the validity period of export permits upto 10-5-92. The 1st respondent was pleased to revalidate the export permits by endorsement dated 23-4-1992 and extend the period of validity upto 10-5-1992, On the strength of the said export permits, the petitioner exported the liquor to the Stale of Tamilnadu. Nearly 3 or 4 months thereafter, the 1st respondent passed orders bearing Cr.No.7499/92/Ex/G dated 7-8-1992, rejecting the application of the petitioner for revalidation of export permits on the ground that there was no provision under law either for revalidation of export permits or for extension of period of their validity. Consequently, he directed the Distillery Officer posted in the premises of the petitioner to collect export fee of Rs.96,480/- by proceedings dated 21-10-1993, 30-10-1993 and 27-12-1993. Hence, this writ petition.
The grant of import and export permits of IMFL is governed by the provisions of A.P. Indian Liquor & Foreign Liquor Rules, 1970 (for short ''the Rules''). Rules 4 to 10 of the Rules deal with the procedure for application for import permits and grant of such permits, specifying the period of their validity whereas Rules 11 to 14 deal with the procedure for application for export permits and their issuance. Rule 10 is relevant for our purpose and hence it would be profitable to extract the same. It reads;
"10.(1) The Indian Liquor or Foreign Liquor covered by the import permit shall be brought to its destination within the period of validity and permit holder shall send the intimation of arrival of Indian Liquor or Foreign Liquor to the Excise Superintendent of the destination under Rule 7 of these rules and obtain acknowledgment.
(2) Where it is not possible for the holder of the permit to import Indian Liquor or Foreign Liquor within the validity period specified in the permit for reasons beyond the control of the permit holder, he shall apply to the Authorised Officer for extension of the period of validity of the permit three days in advance of the expiry of the validity in the said permit specifying the reasons necessitating such extension together with the un-utilised import permit in original and a Certificate from the Officer of the Exporting Distillery Brewery that no Indian Liquor Beer has been despatched from the Distillery Brewery against such import permit.
(3) On receipt of application under sub-rule (2) the Excise Superintendent may, after such enquiry as he may consider necessary and, oh being satisfied that Indian Liquor Beer has not been brought against the said permit, extend the validity of the import permit for a reasonable period.
(4) Where it is established that it is not possible to import Indian Liquor specified in the import permit for the reasons beyond the control of the holder of the import permit, the Authorised Officer may issue Revised import permit specifying the validity period by changing the brand, or Brewery. Distillery, as the case may be, against the countervailing duty and import fee already paid for collecting differential duty and import fee, if any, provided the application for such Revised Import Permit is made by the holder of the permit three days in advance of the expiry of the validity of the import specifying the reasons necessitating such Revised Import Permit together with the unutilised Import Permit in original and a certificate to the effect from the officer of the Exporting Distillery Brewery that no Indian Liquor Beer has been despatched from the Distillery Brewery against the said import permit
(5) Where the import of Indian Liquor/Beer is not made within the validity of the import permit or within the extended period of the permit under sub-rule (2), or Revised Import Permit obtained under sub-rule (4) the countervailing duty and the import fee paid shall accrued to the Government on expiry of the validity specified in the import permit.
(6) The countervailing duly and the import fee once paid shall not be refunded in any case."
It is clear from the reading of the above that the authority competent to issue import permits is empowered to extend the validity of such permits on his being satisfied that it was not possible for the holder of the permits to import the liquor within the validity period specified in the import permits and the liquor was not imported against the said permits. It is significant to note that the validity period could be extended only on production of a certificate issued by the Officer of the Exporting Distillery Brewery that no liquor was despatched against such import permits.
Rule 11 deals with application for an export permit by the manufacturers of Indian Liquor and Breweries within the State. The application shall be made in Form (IL)-4, prescribed under the Rules. Rule 12 provides the procedure for processing the application made under Rule 11 and issuance of permits. Rule 13 prescribes the form of permit and despatch of copies thereof. It provides that the export permit shall be issued by the Commissioner in Form (IL)-5. Rule 14 provides that the export permit shall be from and to any particular place or premises and through the route mentioned in the export permit. Rule 12-A deals with furnishing of verification report by the exporter from the excise officer at the destination of the consignment within the period prescribed. Rule 12-B empowers the exporting state to collect Excise Duty at the prevailing rate from the exporter in case the officer of the importing state makes a report of short receipt in the consignment.
True, as held by the respondent and as urged by the learned Government Pleader for Excise and Prohibition there are no express provisions similar to those found in Sub-Rules (2) and (3) of Rule 10 providing for making an application for extension of period of validity of the export permit and granting such extension. This is obviously for the reason that the revalidation of export permit is solely dependent on extending validity period of import permit. That is to say, unless the competent authority extends the validity period of import permit as contemplated under Sub-Rule (3) of Rule 10 the question of extending validity period of export permit does not arise. Sub-Rule (3) empowers the competent authority to extend the validity of the import permit for a reasonable period only when he is satisfied after holding necessary enquiry that the quantity permitted to be imported has not been brought to the importing state. It is significant to note that Sub-Rule (5) of Rule 10 provides that where the quantity of liquor permitted to be imported is not imported within the validity of the import permit or within the entended period of permit, the countervailing duly and import fee paid shall accrue to the Government and Sub-Rule (6) specifically provides that the countervailing duly and the import fee once paid shall not be refunded. It follows that the export fee paid will accrue to the state when the quantity of liquor permitted to be exported is not exported within the validity period of export permit or within the extended period of export permit, though there is no specific provision to that effect in Rules 11 to 14.
It is not urged before us by the learned Government Pleader for Excise and Prohibition that the Excise Commissioner of Andhra Pradesh is not competent to extend the validity period of export permits issued under Rule 12. He merely urges that whenever the Commissioner extends validity period of export permits, the applicant seeking such extension is liable to pay export fee again. We are unable to countenance this plea, for, there is an apparent fallacy in it. In this context, it is significant to note that Sub-Rule (2) of Rule 10, which provides for making an application for extension of the period of validity of an import permit, does not provide for payment of import fee again. Moreover, the application for extension of time cannot be construed as a fresh application for grant of an import permit. On the same analogy, in our considered view, the consequential application for extension of the validity period of an export permit also cannot be construed as a fresh application for extension of time of an export permit issued under Rule 12. Viewed in this perspective, we have no hesitation to conclude that the exporter cannot be asked to pay the export fee once the Commissioner, being satisfied that the quantity of liquor permitted to be exported is not actually exported, grants extension of time.
In the case on hand, it is admitted that the validity period of import permits granted to the petitioner was extended from 10-4-1992to 10-5-1992 by the Commissioner of Excise, Tamilnadu. It is also admitted that the 1 st respondent herein by an endorsement dated 23-4-1992 revalidated the export permits upto 10-5-1992 and infact, the petitioner on the strength of the said export permits, transported the liquor into the State of Tamilnadu within the time granted. Verification reports were also furnished as contemplated under Rule 12-A and the same were accepted by the respondent. It is not at all the case of the respondent that the petitioner misused either the import permits or export permits.
In the light of the above discussion and for the aforesaid reasons, we find it difficult to sustain the impugned order. It is, accordingly, quashed. In the result, the writ petition is allowed. No costs.