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Judgment
D.S. Sinha, J.—Heard Sri Ravi Kant, the learned Counsel appearing for the petitionerapplicant, Sri Ashok Mehta, the learned Chief Standing Counsel of the State of UP. and Sri C.S. Singh, the learned Standing Counsel of the State of U.P., representing the respondentopposite parties.
By means of the recall/review applications, the applicant prays that the Court may "..........review, and, recall its order dated 2241996, and allow the writ petition with costs........"
The writ petitions were dismissed by the identical order dated 22nd April, 1996 passed on the writ petitions separately. The order dated 22nd April, 1996 reads as below
"Km. Sunita Agarwal, holding brief of Shri Ravi Kant, learned Counsel for the petitioner, has been heard.
The matter in issue involved in this petition is covered by a recent decision of Apex Court in State of U.P. v. Modi Distillery and others, (1995) 5 S.C.C. 753; 1995(2) JCLR 820 (SC). As such this petition is accordingly dismissed. The interim order, if any, stands vacated."
A perusal of the order quoted above indicates that the Court took the view that the matter in issue in the petition was covered by a decision of the Hon''ble Supreme Court rendered in the case of State of U.P. v. Modi Distiller, reported in (1995) 5 SCC 753; 1995(2) JCLR 820(SC), and in view of the said decision the petitions were liable to be dismissed. Accordingly the petitions were dismissed.
Sri Ravi Kant, the learned Counsel of the petitioner contends that the decision of the Hon''ble Supreme Court in State of U.P. v. Modi Distillery (supra) has no application in as much as in the said case the question considered was in respect of validity of levy on wastage in excess of allowable limit during export, and the matter involved in the present writ petitions pertains to the demand of excise duty on the excess of allowable limit of wastage during storage in the Bonded Warehouse.
Refuting the contention of the learned Counsel of the petitioner, the learned Counsels appearing for the respondents contend that the decision of the Hon''ble Supreme Court in State of UP. v. Modi Distillery (supra) fully covers the controversy raised in the writ petitions and the writ petitions have been rightly dismissed following the said decision. Alternatively, the learned Counsels submit that even if the controversy raised in the writ petitions is not covered by the decision of the Hon''ble Supreme Court in State of U.P. v. Modi Distillery (supra), the petitions were and are liable to be dismissed in view of the decision of the Hon''ble Supreme Court rendered in the case of State of U.P. and others v. Delhi Cloth Mills and others reported in (1991) 1 SCCatpage454,andinviewofthis decision the petitions have to fail in the event of their being heard and decided afresh. Therefore, the learned Counsels submit that the applications praying for review/recall of the orders dated 22nd April, 1996deserve to be dismissed.
The Court has read and reread the decision of the Hon''ble Supreme Court rendered in State of U.P. v. Modi Distillery (supra) carefully and is of the opinion that the contention of the petitionerapplicant that the controversy in the case before the Hon''ble Supreme Court was in respect of levy on wastage in excess of allowable limit during export and that the controversy regarding the demand of excise duty on wastage in excess of allowable limit during storage in Bonded Warehouse was not before the Court is not without force.
However, Sri Ravi Kant, the learned Counsel of the petitioner, very fairly, concedes that the controversy raised in the writ petitions, as constituted, is no longer res Integra and stands concluded by the decision of the Hon''ble Supreme Court rendered in the case of State of U.P. v. Delhi Cloth Mills (supra), and in view of this decision the petitions cannot succeed.
On the facts and circumstances noticed above, the Court is of the opinion that the orders dated 22nd April, 1996 sought to be reviewed/recalled deserve to be modified and substituted by other appropriate orders.
Thus, review applications under consideration are disposed of finally. The existing orders dated 22nd April, 1996, recorded on the writ petitions, are substituted by the following order
"The matter in issue involved in this petition is covered by the decision of Hon''ble Supreme Court in State of U.P. v. Delhi Cloth Mills, reported in (1991) 1SCC at page 454, and according to this decision the petition must fail.
Accordingly, the petition is dismissed. The interim order/orders shall stand vacated." Petition dismissed.