A State Government cannot levy import fee on goods without authority of law and such fee cannot be discriminatory in nature.

N.K.Agrawal, J.

1. This is a petition under Article 226 and 227 of the Constitution; challenging the imposition of import fee on beer under the Punjab Excise Fiscal Orders, 1932.

2. The petitioner is a public limited company with its registered office at Jammu. The petitioner-company is engaged in the business of liquor and manufactured beer at its breweries at Jammu. The petitioner was doing business of liquor in the State of Punjab also since 1966 after obtaining L-1 Licence issued by the State of Punjab for doing wholesale business in the India Made Foreign liquor and beer. The petitioner had a wholesale depot at Ludhiana. The Punjab Excise Act, 1914 (for short, the Act) governed the business of import, export, transport, manufacture, sale and possession of intoxicating liquor and intoxicating drugs in the State of Punjab. The Government had issued the Punjab Excise Fiscal Orders, 1932, for the purposes of levying taxes, duties and fees under the Act. The Governor of Punjab, in exercise of the powers conferred by sections 31, 32 and 58 of the Act, amended the Punjab Excise Fiscal Orders, 1932 from time to time for varying the rates of taxes, duties and fees on excisable articles. Rules were also framed under section 58 of the Act for the purposes of carrying put the provisions of the Act and for the collection of the excise revenue. An import fee was imposed with effect from 1-4-1992 at the rate of 60 paise per bottle of 650 ml. by notification dated 31-3-1992 issued by the Department of Excise and Taxation of the Government of Punjab in exercise of the powers conferred by sections 31, 32 and 58 of the Act. By the said notification, the Punjab Excise Fiscal Orders, 1932 , were amended and import fees at the aforesaid rate was levied on all imports of beer. The rate of import fee at 60 paise per bottle remained in force for the years 1992-93 and 1993-94. The rate of import fee was increased to Rs. 1/- per bottle with effect from 1-4-1994 and was subsequently reduced to 50 paise per bottle from 1-4-1995. The fee was, however, drastically increased with effect from 1-4-1996 at Rs. 3/- per bottle approximately. This increase was effected, vide notification dated 27-3-1996 whereby, in exercise of the powers conferred by sections 31, 32 and 58 of the Act, the Governor of Punjab was pleased to further amend the Punjab Excise Fiscal Orders, 1932, and thereby import fee was raised to Rs. 35.88 per box of 12 bottles or, in other words, at the rate Of Rs. 4.60 per bulk litre.

3. The petitioner his challenged the levy of import fee primarily on the ground that such a fee has been imposed without any authority of law. The second ground of challenge is that it is violative of Articles 301 and 304 of the Constitution.

4. The petitioners first ground of challenge arises from the contention that sections 31, 32 and 58 of. the Act do not empower the State Government of Punjab to levy import fee. It is stated that the petitioner has been regularly paying licence fee as required to be paid every year. The petitioner has also no grievance against the payment of excise duty or countervailing duty which has been levied by the State of Punjab under section 31 of the Act.

5. Clause (6-B) of section 3 of the Act defines "excise duty" and "countervailing duty" as under:-

" excise duty and countervailing duty mean any such excise duty or countervailing duty, as the case may be, as is mentioned in Entry 51 of List II in the Seventh Schedule to the Constitution."

From the above definition, it is clear that "excise duty" and "countervailing duty" derived their meanings from Entry 51 of List II in the Seventh Schedule to the Constitution.

Import fee has, however, not been defined in the Act. Section 16 of the Act prohibits the import, export and transport of any intoxicant except after payment of any duty to which such intoxicant may be liable under the Act. Section 16 of the Act reads as under:-

" 16. Import, export and transport of intoxicants :