Som Distilleries Pvt. Ltd. Through Its Authorized Signatory, Shri Subhash Pandey vs State Of Madhya Pradesh And Others

This writ petition has been filed challenging the order Annexure-P/16 dated 19.01.2020 vide which a show cause notice was served upon the petitioner

as to why its license D-1 granted under the Rule 8(5) of the M.P Distillery Rules, 1995 read with Section 31 of the M.P. Excise Act, 1915 may not be

suspended.

The grievance of the petitioner is that even though the notice gave time period of seven days to the petitoner but even before the petitioner could file

reply to the aforesaid notice dated 20.01.2021 Annexure-P/17 would be considered, the respondent in the self styled show cause notice had prohibited

the use of spirit receiver tank R1 to R11 and spirit storage tank no.SV12 to SV 19. This indicates that the Excise Commissioner had acted with a

predetermined and closed mind and therefore the show cause notice was rendered into an empty formality. Decision adverse to the petitioner having

already been taken a show cause notice was rendered as the empty formality.

Learned senior counsel for the petitioner submitted that the action against the petitioner is actuated by malafides on the part of respondent no.5 Shri

Vinod Raghuvanshi. When Shri Vinod Raghuvanshi was posted as Deputy Commissioner Excise in whose jurisdiction the factory premises of the

petitioner were falling, the petitioner submitted a detailed representation Annexure- P/6 dated 16.11.2020 to the Excise Commissioner, Government of

M.P., Gwalior specifically pointing out that since the petitioner has filed certain criminal cases against the said Shri Vinod Raghuvanshi in which

criminal charges have been framed against him and he has lost the legal battle not only before the High Court but before the Supreme Court, he may

not be allowed to carry out the inspection of the factory premises of the petitioner as it would be contrary to the principles of natural justice and some

other officer may be authorised to do so.

Learned senior counsel for the petitioner submitted that immediately on receipt of the notice dated 19.01.2020 Annexure-P/16 the petitioner submitted

their reply to the show cause notice on 20.01.2021 Annexure-P/17 in which also they have pointed out that the inspection of their factory premises

was carried out by the Deputy Commissioner, Flying Squad, Sagar Division before whom the petitioner has produced the relevant documents. The

reference is made to the inspection report submitted by the said Deputy Commissioner on 19.01.2021.

It is argued that even though the said Deputy Commissioner in the report has concluded that while Rule 4(21) of the M.P. Distilleries Rule, 1995 may

be applicable to the factory premises of the petitioner but Rule 4(35) of the said rule may not apply to them, which rule according to the learned senior

counsel for the petitioner, would apply to warehouse or store room where work of blending or fortification or compounding of the spirit takes place.

It appears that the Excise Commissioner either not applied its mind to the aforesaid report or had ignored the said report while issuing the show cause

notice on the same day.

Learned senior counsel for the petitioner submitted that the petitioner may be permitted to submit a detailed representation to the aforesaid notice

before the Principal Secretary, Commercial Tax Department with an opportunity to personally appear before him who may be required to examine the

entire matter in light of the aforesaid report dated 19.01.2001 submitted by the Deputy Commissioner, Flying Squad and any other material which the

petitioner may produce before him. Learned senior counsel for the petitioner submitted that till the pending disposal of the aforesaid representation, the

direction of the Excise Commissioner prohibiting the use of tanks contained in its order dated 19.01.2020 may be stayed or in the alternative the

Principal Secretary, Excise Department, Bhopal may be directed to decide the representation at the earliest within a reasonable time.

Learned Advocate General opposed the writ petition and submitted that the writ petition may not be entertained as it is pre mature. The writ petition

has been filed assailing the show cause notice and the competent authority is yet to take final decision on the basis of the show cause notice. It is

contended that the petitioner has on its own showing has not complied with the requirement of the rule 4(35) of the Excise Rules and rather in reply to

the show cause notice has suggested that rules are required to be changed in the light of the rules formulated in other States with regard to similar

distilleries. It is contended that so long as rule remain part of the rule book, the petitioner is under legal obligation to comply with the same. Whether or

not the rules would be changed is a matter which falls within the legislative domain of the competent authority.

The Advocate General however does not object to the petitioner being provided with the opportunity to make a representation to the Principal

Secretary, Excise Department, Bhopal along with the material which they seek to rely.

Having regard to the fact of the aforesaid but without going in the merits of the case and taking into consideration peculiarity attached to the case, we

deem it appropriate to direct that in the event of petitioner submitting a representation along with documents submitted which it seek to rely by

tomorrow, the Principal Secretary, Excise Department, Bhopal shall decide the same within a period of seven days from the date of its making after

providing opportunity of hearing to the petitioner by a speaking and reasoned order.

It would be open to the petitioner to also make a prayer to the Principal Secretary for appropriate interim relief.