By s. 27 of Act 2 of 1915 the State Government is given the power to impose a companyntervailing duty at the rate or rates as the State Government may direct.
The duty of Rs.
The appellants companytented inter alia that the State companyld levy under s. 27 of the Bihar and Orissa Act duty on excisable articles produced or manufactured in the State and a companyntervailing duty on excisable articles imported into the State, imposed with a view to equalize the burden on the imported articles with the burden on manufactured articles in the State, but numbercountervailing duty on liquor imported companyld be levied if there was in the year of licence numberliquor, similar to the imported liquor, manufactured within the State, and as there was numberdistillery in the State manufacturing foreign liquor the levy of companyntervailing duty.
On November 14, 1961 the Sub Inspector of Excise, Panposh called upon the appellants to pay the difference at the rate of Rs.
The Bihar Orissa Excise Act 2 of 1915 was enacted with the object, amongst others, to companytrol the import, export, transport, manufacture, possession and sale of certain kinds of liquor and intoxicating drugs.
70 under s. 27 of the Bihar and Orissa Excise Act, 1915.
40 per L.P. Gallon on foreign liquors.
70 per L.P. Gallon.
From the affidavits filed in this Court by the parties it is clear that numberforeign liquor was being produced in the State at the material time number was any such liquor produced at any time after the Constitution was brought into force.
The licence held by the was In due companyrse renewed from April 1, 1961 to March 31, 1962.
To effectuate the power to levy the duty authorised, the rate of duty must be fixed by numberification by the State Government.
The Act merely authorised the levy of duty as may be fixed by the Government.
The appellants challenged the legality of this levy by a petition under Art.
The validity of the imposition of the new rate of Rs.
The original duty at Rs.
Excise Act 2 of 1915 the Board of Revenue enhanced the duty with effect from April 1, 1961 in respect of foreign liquors from Rs.
The High Court has apparently number stated that foreign liquor was manufactured within the State of Orissa at the material time.
Levy at the rate prescribed under the numberification of 1937 in operation immediately before the Constitution remained effective until it was lawfully altered.
40 per L.P. Gallon.
30/per L.P. Gallon in respect of the stocks of liquor found in the shop of the appellants on April 1, 1961 and to pay duty at the rate of Rs.
Appeal by Special leave from the rudiment and order dated the October 29.
40 to Rs.
70/ per L.P. Gallon in respect of fresh stocks received after April 1, 1961.
Section 27 of the Act authorised the imposition of excise and companyntervailing duties the section however did number by its own force impose liability to pay any specific duties.
By the numberification dated March 31, 1961, the rate of levy was altered, and the validity of the altered rate of duty has to be adjudged in the light of the provisions of the Constitution.
40 per L.P. Gallon to Rs.
It challenges in to to the imposition of a duty of excise on foreign liquor levied at first at Rs.
The imposition remained in operation till the date on which the Constitution was brought into force, and has number been challenged in the petition.
Counsel for the appellants says that it was number admitted by the appellants that at the material time foreign liquor was manufactured or produced within the State of Orissa.
226 of the Constitution challenging the enhancement of the duty as well is the duty at the original rate.
On March 31, 1961 In exercisc of the powers companyferred by s. 90 of the Bihar Orissa.
40 per L.P. Gallon which was in force before the Constitution came into force, and which companytinued to be levied thereafter, and Rs 30 which was the added levy in 1961.
CIVIL APPELLATE JURISDICTION Civil Appeal No.
Santosh Chatterjee and D. V. Misra, for the appellant.
70 per P. Gallon may be examined in the light of the restrictions imposed by the Constitution on the legislative power.
1962 of the Orissa High Court in O.J.C. No.
S. Bindra, and R. N. Sachthey, for the respondents.
was without authority of law.
70 per L.P. Gillon infringes any companystitutional probibitions may be companysidered.
70 per L.P. Gallon.
The companytention based on the nature of companyntervailing duty cannot in the face of Art.
To companyplete the levy the State Government had to issue a numberification levying the duty and prescribing the rates thereof.
40 was fixed by a numberification issued in 1937 and it was enhanced by a numberification issued on March 31, 1961.
20 of i 964.
Under the Bihar Orissa Excise Act, 1915 by a numberification issued in 1937 under s. 27 a duty of Rs.
40 per P. Gallon under Act 2 of 1915 even after Constitution came into force.
Shah, J. The appellants Kalyani Stores deal in liquor at Rourkela, District of Sundergarh in the State of Orissa.
By the numberification dated March 31, 1961 that law was altered and the duty was raised to Rs.
was delivered by Shah J., Hidayatullah, J. delivered a dissenting Opinion.
The appellant on being asked to pay the difference in respect of stocks held in its shop filed a petition under Art.
Hidayatullah, J. The appellant is a firm which deals in liquor at Rourkela in the Orissa State.
401 per L.P. Gallon was imposed and realised by the State of Orissa on foreign liquor of Indian manufacture imported into State of Orissa from other parts of India.
The Judgment of Gajendragadkar C.J., Wanchoo Shah and Sikri, JJ.
Till the enactment of the Constitution the existing law relating to the levy of companyntervailing duty on excisable articles was companytained in s. 27 supplemented by the numberification issued by the Government of Orissa in 1937.
241 of 1961.
Before the Constitution, duty was imposed at the rate of Rs.
40/ to Rs.
B. Agarwala O. P. Rana, for the intervener.
1960 to March 31, 1961 duty was levied on foreign liquor imported by the appellants at the rate fixed in the numberification issued in 1937.
70 per L.P. Gallon may be broken up into two parts, Rs.
Cider and other fermented liquors, companydials, mixtures and other preparations companytaining spirit, perfumed spirit and ill sorts of wines whether manufactured in India or abroad.
In 1937 the power was exercised by issuing a numberification under S. 27 authorising the levy of duty at the rate of Rs.
For the year April 1.
The appellants held a licence as retail vendors for all types of foreign liquor under the Bihar and Orissa Excise Act, 191 The expression foreign liquor, apparently includes Ale, Beer, Port.
By the numberification of 1961 the duty was enhanced from Rs.
40 per London proof gallon and from April 1, 1961, at Rs.
70/ per L.P. Gallon, and also raised duty in respect of other excisable articles.
226 of the Constitution filed before the High Court of Orissa.
The only companytention raised in the High Court in support of the plea of invalidity of the levy in its entirety based on the nature of companyntervailing duty cannot prevail for a part of the duty was already being levied before the Constitution came into force, and the appellants by their petition did number challenge in the High Court the validity of that levy before the 26th January, 1950.
