Hon'ble Devendra Kumar Arora,J.
Heard Mr. Bharatji Agarwal, learned Senior Counsel assisted by Sri Neeraj Sharma for the petitioner and Mr. H.P. Srivastava, learned Additional Chief Standing Counsel for the respondents.
Admit.
Notice dated 02.01.2010 issued in pursuance to the notification dated 15.11.2007, contained in Annexures-7 and 9 to the writ petition, have been impugned in the present petition on the ground that on rectified spirit the tax cannot be imposed by the State Government in the name whatsoever. The counsel for the petitioner relied upon the judgment of Hon'ble Supreme Court reported in 1990 (1) SCC, Synthetics and Chemicals Ltd. and others vs. State of U.P. & others, in which it has been held by the Hon'ble Supreme Court that the rectified spirit fall within the domain of Central Government and the State Government has no right to impose tax. Attention has also been invited to Section 30 of the U.P. Excise Act, which provides that instead of or in addition to any duty leviable under the chapter, the State Government or on its behalf the Excise Commissioner may accept payment of a sum in consideration of the grant of the licence for any exclusive or other privilege under Section 24 or Section 24-A of the U.P. Excise Act. The plaint reading of Section 30 of U.P. Excise Act does not seem to empower the State Government to issue the notification dated 15.11.2007 for imposition of tax in the name of "consideration fee" on the rectified spirit. The judgment of Hon'ble Supreme Court is binding.
The learned counsel further invited attention to the judgment reported in 2008 (5) AWC 4809 (SC), State of U.P. & others vs. Lalta Prasad Vaish where their Lordships of Hon'ble Supreme Court had framed questions and referred the law laid down by the Constitution Bench in Synthetics & chemicals Ltd. (Supra) to the Larger Bench.
The submission of the counsel for the petitioner is that for the period interregnum the judgment of Hon'ble Supreme Court in the case of Synthetics and Chemicals Ltd. shall prevail. The attention has also been invited to the case reported in 2008 (10) SCC, Official Liquidator vs. Dayanand and others to make statement that during the course of pendency of matter before the Larger Bench, for the period interregnum law on date, shall be applicable. The learned Additional Chief Standing Counsel has not received any instruction from the State Government to invite attention of the Court to any statutory provision which empowers the State Government to issue the impugned notification dated 15.11.2007 with regard to imposition of tax on rectified spirit.
Accordingly, we stay the further operation of the impugned notification dated 15.11.2007 followed by consequential notice dated 02.01.2010, contained in Annexures-9 and 7 to the writ petition, till the next date of listing. Let counter affidavit be filed within two weeks. Thereafter, rejoinder affidavit may be filed within a week.
List thereafter for peremptorily hearing.
Order Date :- 29.1.2010 Suresh/-