HIGH COURT OF UTTARAKHAND AT NAINITAL HON’BLE SRI JUSTI CE MANOJ KUMAR TI WARI Hem Chandra Joshi --Petitioner Versus State of Uttarakhand and others -Respondents With Writ Petition No. 1560/ 2023(MS)

Writ Petition No. 677/ 2022(MS) Writ Petition No. 987/ 2022(MS) Writ Petition No. 418/ 2023(MS) Writ Petition No. 431/ 2023(MS)

Writ Petition No. 54/ 2024(MS) Writ Petition No. 59/ 2024(MS) Writ Petition No. 63/ 2024(MS)

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Advocates: Mr. Yogesh Pacholia, Advocate for the petitioners Mr. Pankaj Tiwari, Advocate for petitioners in WPMS Nos.

54/2024, 59/2024 and 63/2024 through video conferencing.

Mr. Rajeev Singh Bisht, Additional Chief Standing Counsel with Mr. Tarun Lakhera, Brief Holder for the State.

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JUDGMENT

1. Since common questions of law and fact are involved in these petitions, therefore they are heard together and are being decided by a common judgment. However, for the sake of brevity, facts of Writ Petition No. 653 of 2022 (MS) alone are being discussed and considered.

2. Petitioner was granted license for retail sale of country liquor for Financial Year 2017-2018. In Writ Petition No. 653 of 2022 (MS), petitioner is aggrieved by order dated 07.12.2021, passed by Assistant Commissioner, State Tax, Bageshwar, whereby cess amounting to Rs. 90,000/- was imposed upon him on the sale of country liquor made by him. The cess was imposed under Uttarakhand Cess Act, 2015.

(MS) are as follow:

“(1) Issue a writ, rule, order or direction in the nature of Certiorari calling for record and to quash the order dated 7.12.2021 passed by Assistant Commissioner, State Tax. Bageshwar whereby he has imposed a CESS of Rs. 90000/- for the financial year of 2017-18, on the sale of country made liquor under the provisions of Uttarakhand Cess Act 2015, (ii) Issue a writ, rule, order or direction in the nature of Certiorarı calling for record and to quash the demand notice dated 7.12.2021 passed by respondent no. 5 le Assistant Commissioner, State Tax, Bageshwar, as the petitioner had already paid the 2% cess to Uttarakhand Excise Department (iii) Issue a writ, rule, order or direction in the nature of Mandamus commanding and directing the respondents no 3 & 4. either to return the amount deducted by them from the petitioner in the head of 2% Uttarakhand cess, so that petitioner may deposit the same in the appropriate head of State Tax department or transfer the amount of cess, deducted from petitioner, at source, at the time of purchase of liquor stock, in the accounts of State Tax Department.

4. Learned counsel for the petitioner submits that since petitioner has deposited ad valorem cess at the rate of 2 percent as per excise policy of 2017-2018, therefore petitioner is not liable to pay any extra amount as cess.

5. Learned State Counsel, however, submits that the cess imposed upon petitioner is as per Section 3(1)(b) of Uttarakhand Cess Act, 2015, which provides levy of cess for the purpose of State Disease Fund. Section 3 (1) (b) and Schedule II of Uttarakhand Cess Act, 2015 are extracted below for ready reference.

“3 (1) There shall be levied a cess under this Act;

(b) for the purpose of State Disease Fund (Rajya Vyadhi Nidhi) on the sale or purchase of such goods, within the State, as specified in Schedule II of this Act, with effect from such date and at such point and at such rate, as the State Government may, by notification in the Official Gazette, specify:

Provided that such rate shall not exceed ten percent of the sale or purchase price of such goods, subject to the conditions, if any, as specified in the Schedule II.”

Schedule II Cess on Sale or Purchase of Goods [under sub-section (1) (b) of section 3 of the Uttrakhand Cess Act, 2015]

6. Since impugned order is passed under Section 5 of Uttarakhand Cess Act, 2015, read with Section 25 (7) and Section 31 of Uttarakhand VAT Act, 2005, therefore the same is appealab