The charge for excise duty is effectuated only when the manufactured article is issued from any distillery or warehouse, as per the provisions of Ss. 22 and 23 of the Karnataka Excise Act, 1965 read with Rule 2 of the Karnataka Excise (Excise Duties and Fees) Rules, 1968.

( 1 ) WRIT petitioner is a firm which claims to be a lessee of one M/s. Bangalore grape Winery (P) Limited and licence holder for manufacture of Indian made liquor in bulk. It appears using the licence, the petitioner manufactures such liquor and marks it under the brand name of products of M/s. Shaw wallace and Company with whom they have an independent arrangement. The activity of manufacturing such liquor attracts liability for payment of duty under the provisions of the karnataka Excise Act, 1965 (for short 'the act') in terms of the provisions of Ss. 22 and 23 of the Act. The petitioner is paying such duty on the quantum of liquor so manufactured and issued in the factory premises at No. 13, Green Fields. Bannerghatta Road, Bangalore-560 029.

( 2 ) THE present writ petition is regarding the dispute as to whether the petitioner was liable to pay duty in respect of certain quantum of such liquor which had underwent some process and which according to the respondents had become potable and which had been stored in storage tanks but which were destroyed in fire due to an accident that took place in the factory premises as on 10-6-1997 and if so as to whether the petitioner was still liable to pay the excise duty at the rate applicable to the type of liquor that were stored in such storage tanks at the rate prevailing at the relevant point of time though they had not been issued.

( 3 ) IT is because of this controversy, the petitioner has approached this Court for relief when the respondent-State sought to enforce the demand based on the liability for payment of duty in respect of the quantity that was stored in the storage tanks but which got destroyed in the fire accident that took place in the factory as on 10-6-1997. Some correspondences/ communications emanating from the respondents also indicate that the quantum of such liquor which got destroyed had the details of names and quantity etc. , as per the communication of the petitioner addressed to the Joint Commissioner in terms of annexure-D dated 12-6-1997, details of which read as under : SI. No. BRAND TANK WISE BLEND Tank No. Quantity 1. Haywards Fine Whisky 1 6042 B. L. 2 Old Tavern Whisky 2 8294 B. L. 3. V. S. O. P. Exshaw Brandy 3 13610 B. L. 4. Golconda Brandy 4 5560 B. L. 5. Gold Medal Whisky 5 12159 B. L. 6. V. S. O. P. Exshaw Brandy 6 6658 B. L. 7. - 7 Nil 8. Golconda Brandy 8 625 B. L. 9. Haywards Fine Whisky 9 1576 B. L. 10. - 10 Nil 11. - 11 Nil 12. - 12 Nil TOTAL BLEND 54,524 B. L.

( 4 ) SO far as quantity of such liquor that got destroyed is concerned, it appears there is no much dispute between the parties, but the dispute relates to the liability for payment of duty on such quantity of liquor destroyed.

( 5 ) THE respondents having admitted enforcing such liability in terms of the order/demand notice dated 23-9-2000 (copy at Annexure-J to the writ petition) calling upon the petitioner to remit the duty liability of Rs. 24. 53. 580/-on the premise that the petitioner having not taken proper care of the liquor and the care lessness of the petitioner having resulted in loss of this quantity of liquor in turn resulting in loss of revenue of this amount to the State, the petitioner was liable to pay that amount to the State; that though the total loss to the State in sales tax and excise duty was to the tune of rs. 63. 07,487/-, the liquor having been destroyed before the sale, the liability was only in respect of the manufacture of liquor and, therefore, the petitioner was being called upon to remit the amount of Rs. 24,53,580/ -.

( 6 ) PETITIONER disputing such liability had preferred an appeal to the Karnataka Appellate tribunal, Bangalore, purporting to be an appeal in terms of the provisions of S. 61 (3)of the Act. Unfortunately for the petitioner, the Appellate Tribunal being of the view that the appeal itself was not tenable, particularly, as no appeal is provided for under S. 61 (3) of the Act

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