The main legal point established in the judgment is that license holders cannot be made liable to deposit excise duty on M.G.Q. if the state and/or its wholesale licensee is not in a position to effect supply of country spirit for whatever reasons.

JUDGMENT

1. Learned counsel for the Petitioner states that since the issue involved in the present petition is similar to the one in W.P.(C) No.5534 of 2012, the present petition be disposed of in terms the order dated 30th April, 2019 passed therein.

2. Learned Additional Government Advocate does not dispute this position.

3. The Petitioner as a country spirit exclusive privilege licensee seeks to challenge either a demand of duty raised for short fall M.G.Q. or the threat of non-renewal of subsequent year's license in absence of deposit of duty on short fall M.G.Q. for the year 2016-17, purportedly on the ground that there was shortage of supply of country spirit by the Odisha State Beverage Corporation Limited, for short, 'OSBCL' (monopoly wholesaler) which we have been given to understand was on account of inability of M/s. Aska Cooperative Sugar Industries Limited, for short, 'M/s. ACSIL' (monopoly producer) from manufacturing and supplying the necessary amount of country spirit resulting in short supply of country spirit. Learned counsel appearing in this case essentially contend that if the monopoly wholesale supplier i.e. 'OSBCL' is not in a position to supply the requisite amount of country spirit as would be required to be lifted by the country spirit retailer licensee in terms of its M.G.Q. undertaking any demand against short fall of M.G.Q. and/or threat of non-renewal on the ground of non-deposit of such short fall ought to be set aside by the Courts.

4. Heard Mr. A.K. Patra, learned counsel for the petitioner and learned Additional Government Advocate on behalf of the opposite parties.

5. In this writ application, the petitioner, who is exclusive privilege holder and had been granted licences for retail sale of country spirit, has filed this writ application seeking direction for waiver of M.G.Q. duty to the extent there had been short supply of country spirit by the 'OSBCL' a wholesale monopolist and State undertaking during the relevant excise year 2016-17.

6. In support of the aforesaid prayer, the petitioner has sought to challenge the demand notice dated 20th June, 2017 under Annexure-3. In terms of letter dated 12.12.2011, the Excise Commissioner, Odisha, Cuttack directed all Superintendents of Excise to accord permission in favour of the licensees of country spirit shops to lift short fall M.G.Q. in country spirit liquor of their respective shops for the excise year 2011-12 by the end of February, 2012. In the said order, it is further directed that there would be no adjustment whatsoever against over-lifting in any month and the Superintendents of Excise concerned were directed that while issuing permission letter in favour of the retail licensees of their districts, they shall ensure that no such adjustment is made and only short fall quantity of country spirit liquor up to February, 2012 would be allowed to be lifted by the end of March, 2012 over and above their normal M.G.Q. for the month of March, 2012. According to Mr. Patra, learned counsel for the Petitioner, the 'OSBCL' was unable to supply the required amount of country spirit during the relevant excise year as would be evident from the document under Annexure-4 (in W.P.(C) No.5534 of 2012) is a letter addressed by the Superintendent of Excise to the Excise Commissioner, Odisha, Cuttack with copy to Branch Manager, O.S.B.C. dated 16th March, 2012 indicating short supply of country spirit liquor in respect of all country spirit shops in the district Jajpur. The said letter also makes it clear that 'M/s. ACSIL' being the sole supplier of country spirit inside the State while enjoying the exclusive privilege in this regard, there has been irregularity in supply. In such background, he submits that instead of waiving the demand of duty for the period of short supply of country spirit, Opposite Party No.4 has issued Annexure No.5 compelling the Petitioner to deposit excise duty on shortfall quantity of M.G.Q.

7. A counter affidavit has come to be filed by t