Licensees may claim proportionate remission of KIST amounts pending clarification from the Supreme Court on the applicable rules and previous judicial decisions.

J U D G M E N T

P.R. Ramachandra Menon, J:

The basic issue involved is whether the licencees who have been given FL3 Licence under the relevant provisions of the Abkari Act /Foreign Liquor Rules are required to satisfy the entire KIST amount for the year in question by virtue of Rule 14 of the Rules or whether they are entitled to have proportionate remission in this regard.

2. The main contention is that inJayadevan and others vs. Board of Revenue (1999 (1)KLJ 87) it has been held that the parties are entitled to have remission to the proportionate extent. But subsequently, a contrary view was taken by another Bench inW.A.No.910 of 2000 (State of Kerala vs. Chitra). Met with the circumstance, as divergent O.P.Nos.9092, 9675, 10010, 10088, 10281, 10383, 10491 & 10578 OF 2003, W.P.(C).

No.19361 OF 2003 & W.A.No.2311 OF 2005 views were available, when the issue came up for consideration before another Bench of this Court on 13.10.2006, the necessity to have the matter to be referred to the Full Bench was considered and it was ordered accordingly. W.A.No.2311 of 2005 was filed challenging O.P. 3217 of 2000, whereby the claim putforth by the parties concerned to have pro-rata remission was accepted. All the matters were considered by the Full Bench on 20.12.2006. Reference was also made to Rule 14 of Foreign Liquor Rules. Apparently, the Full Bench found that in so far as Rule 14 of the Foreign Liquor Rules was in existence, the claim of the aggrieved parties could not have been positively entertained, unless there was a challenge against the said rules and the same was answered in their favour. It was accordingly, an opportunity was given to the parties to amend the petitions and the matters were ordered to be listed before the Division Bench for completing the pleadings in this regard.

3. Mr. C.C. Thomas, the learned Sr. Counsel appearing for the parties concerned submits that necessary pleadings have O.P.Nos.9092, 9675, 10010, 10088, 10281, 10383, 10491 & 10578 OF 2003, W.P.(C).

No.19361 OF 2003 & W.A.No.2311 OF 2005 been raised challenging the vires of the rules. It is also pointed out that the writ petition filed subsequently have been moulded in such a manner challenging the vires of the Rule 14.

4. It is also brought to the notice of this Court that the issue involved in all these cases have already been taken up before the Apex Court where it is pending by way of Civil Appeal No.2246 of 2006 and the outcome of the said case will naturally decide the fate of the parties in these case as well. It is stated that the matter pending before the Apex Court have already been brought up for hearing. The learned Counsel also points out that in the course of subsequent developments the aggrieved parties have already satisfied the entire KIST payable for the concerned year. This being the position, the only question is with regard to right to have refund based on the proportionate remission, if the case projected by the aggrieved parties comes to be accepted, deciding the issue in their favour by the Apex Court.

In the above circumstance, all these cases are disposed of O.P.Nos.9092, 9675, 10010, 10088, 10281, 10383, 10491 & 10578 OF 2003, W.P.(C).

No.19361 OF 2003 & W.A.No.2311 OF 2005 without prejudice to the rights and liberties of the parties to the proceedings to claim for refund, if the issue pending consideration before the Apex Court in Civil Appeal No.2246 of 2006 comes to be decided in their favour holding that the parties concerned are supposed to satisfy only such pro-rata remission. On such an event, it will be open for the aggrieved parties to move the competent authority claiming refund. The rights and liberties in this regard stand saved and protected. The challenge raised with regard to vires of the provision is left open to be agitated in the due course, if so necessitated.

P.R. RAMACHANDRA MENON, JUDGE.

BABU MATHEW P. JOSEPH, JUDGE.

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