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DEVASHIS BARUAH
Centenary Distilleries P Ltd. – Appellant
Versus
State of Assam, Represented by the Chief Secretary to the Govt. of Assam – Respondent
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 :
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 cal
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.
The liability to pay establishment charges and the verification of payment of excise duty and VAT on transitional stocks are essential in determining the treatment of transitional stocks in bonded an....
Excise duty is levied on the production of liquor, and destruction of unfit stocks does not exempt the bonded warehouse from duty liability.
The duty for the period prior to the amendment was required to be computed based on the rules in force at the time of the search, and not retrospectively.
The Court established that the principles of legislation by incorporation do not apply to executive orders like Office Memorandums, affecting the applicability of amended service rules.
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