Statutory rules cannot be nullified by executive orders, and the claim for refund can only succeed if the burden of the duty has not been passed on by the petitioner.

JUDGMENT :

1. The present writ petition has been filed by the Petitioner challenging the order dated 05.08.2009 issued by the Secretary to the Government of Assam, Excise Department whereby the provisions of Rule 7 of the Assam Bonded Warehouse Rules, 1965 regarding establishment charges which existed prior to the introduction of the availability fee was made operative w.e.f. 10.07.2009 in respect of such warehouses. The Petitioner had also sought for refund of the excess amount received from the Petitioner’s unit pursuant to the order dated 05.08.2009.

2. The facts involved in the instant writ petition are that the Petitioner is a company incorporated under the provisions of the Companies Act, 1956. The Petitioner was in the business of Bonded Warehouse. At this stage, it is relevant to take note of that prior to 18.03.2005, Rule 7 of the Assam Bonded Warehouse Rules, 1965 (hereinafter referred to as “the Rules of 1965”) read as follows :

“7. Appointment of staff and establishment :

The Commissioner of Excise shall appoint such Excise Officers and establishment as he thinks fit to the charge of the bonded warehouse. The licensee shall pay to the State Government at the end of each calendar month such establishment charges as may be determined from time to time by the Excise Commissioner. The cost of establishment shall include pay and allowances, if any, as well as leave salary and pension contribution.”

3. From a perusal of the said Rule, it reveals that the Commissioner of Excise shall appoint such Excise Officers and establishment as he thinks fit to the charge of the Bonded Warehouse and the licensee was under an obligation to pay to the State Government at the end of each calendar month such establishment charges as may be determined from time to time by the Excise Commissioner. It was also mandated as per the said Rule that the cost of establishment shall include pay and allowances, if any, as well as leave salary and pension contribution.

4. Subsequent thereto, on 18.03.2005, the Rules of 1965 was amended by the Assam Bonded Warehouse (Amendment) Rules, 2005 (for short “the Amending Rules of 2005”). Various amendments were made to the Rules including Rule 7 of the Rules of 1965. The amended Rule 7 of the Rules of 1965 reads as follows :

“7. Appointment of staff and establishment :

The Commissioner of Excise, Assam shall appoint such Excise Officers and establishment as he thinks fit to be charge of the Bonded Warehouse. The licensee shall pay to the State Government an Availability fees @ Rs.7/- per case of 12 bottles of IMFL/Beer/Wine etc. of the size of maximum 750 ml at the end of each Calendar month by Treasury Challan for the services rendered by the Excise Staff posted or attached to the Bonded Warehouse.

5. From a perusal of the above quoted amended Rule 7, it reveals that the Commissioner of Excise, Assam shall appoint such Excise Officers and establishment as he thinks fit to the charge of the Bonded Warehouse and the licensee was under an obligation to pay to the State Government an Availability fee @ Rs.7/-per case of 12 bottles of IMFL/Beer/Wine etc. of the size of maximum 750 ml at the end of each Calendar month by Treasury Challan for the services rendered by the Excise Staff posted or attached to the Bonded Warehouse. The term Availability Fee has also been defined in the Amending Rules of 2005 to mean that a fee payable for the service made available to the bonder/Bonded Warehouse by the officials of Excise Department.

6. The Petitioner continued to do his business of Bonded Warehouse. However, on 05.08.2009, the Secretary to the Government of Assam issued an order whereby the provisions of Rules of 1965 regarding establishment charges which existed prior to the introduction of the availability fee was made operative w.e.f. 10.07.2009 in respect of such warehouses. The said order (hereinafter referred to as the “impugned order”) has been put to challenge before this Court by way of the instant writ petition.

7. Th