The Excise Commissioner lacked jurisdiction to compound offences under Section 75 of the Odisha Excise Act, 2008, as authority is reserved for the Collector or specific Excise Officers.

JUDGMENT :

DR. B.R. SARANGI, J. The petitioner, by means of this writ petition, seeks to quash the letter/order no.1935/Ex. dated 19.02.2024 under Annexure-1, by which opposite party no.2-Excise Commissioner, Odisha, Cuttack has directed to opposite party no.4-Superintendent of Excise, Cuttack to dispose of the Special Investigation Report (SIR) No.03/2023-24 drawn by the Inspector of Excise, Athgarh Range against the petitioner’s “ON” shop in the name and style “New Millan IMFL ON Shop”, Athgarh and to compound the offence by imposing fine, as well as to quash the consequential demand notice no.1749/Ex. dated 23.02.2024 under Annexure-2 issued by opposite party no.4.

2. The factual matrix of the case, in brief, is that the petitioner was issued with a license to operate IMFL “ON” shop in the name and style “New Millan IMFL Restaurant” over Plot No.440/1649 and Plot No.440/2264 under Khata No.212/1922 and Khata No.212/1505 of Mouza-Birakishorepur, Athgarh in the district of Cuttack. The said license was initially granted to the petitioner for the period from 01.04.2023 to 31.05.2023 and subsequently, it was renewed up to 31.03.2024.

2.1. On 29.11.2023, one SIR was drawn against the petitioner by the O.I.C., Athgarh Excise Station containing allegation that on 29.11.2023 at about 5.25 PM on a surprise visit to the “ON” shop of the petitioner, it was found that the Sales Manager of the shop was conducting Counter Sale of IMFL & Beer just as IMFL “OFF” shop. In the said SIR, the petitioner-licensee was asked to submit explanation, pursuant to which the petitioner submitted explanation on 14.12.2023 contending that in an “OFF” shop, sale of liquor of different sizes is permitted in the Excise Policy of the year 2023-24 and the particular customer after having purchased a small size bottle, ran away from the shop and, therefore, Counter Sale of IMFL is not attributable to the petitioner. Accordingly, the petitioner’s explanation and the SIR were submitted to opposite party no.2-Excise Commissioner, Odisha, Cuttack.

2.2. Opposite party no.2 fixed the date of hearing to 09.01.2024 by issuing notice dated 28.12.2023. But, it is claimed that opposite party no.2, without considering the representation and without giving any findings on the explanation of the petitioner, passed the impugned order dated 19.02.2024 under Annexure-1 levying a duty of IMFL amounting to Rs.53,31,732/- stating that the calculation of the said amount is an indicative calculation of penalty to be imposed on the licensee while disposal of SIRs, which cannot be taken as a conclusive one and during handing over the demand notice to the licensee, the District Excise Office should take all precautionary measure to deduct the dry days and any period for which the Local Administration has closed the shop for any reason. As a consequence thereof, a demand notice was issued by the Superintendent of Excise, Cuttack under Annexure-2 dated 23.02.2024 for an amount of Rs.52,52,858/-. Hence, this writ petition.

3. Mr. P.K. Rath, learned Senior Counsel along with Mr. S. Rath, learned counsel appearing for the petitioner contended that on perusal of Annexure-1 dated 19.02.2024, it would be evident that the Excise Commissioner, Odisha, Cuttack issued the order/letter dated 19.02.2024 compounding the offence demanding Rs.53,31,732/-and consequentially, the Superintendent of Excise, Cuttack issued demand notice on 23.02.2024 under Annexure-2 raising a demand of Rs.52,52,858/- for realization of such dues. It is contended that if it is in the nature of compounding of offe