(Judgment of the Court was delivered by S.J.MUKHOPADHAYA, J.) The respondent-South Indian Sugar Mills Association (for short, "the association") is an association of manufacturers of rectified spirit, whereas the appellant/writ petitioner-M/s Varalakshmi Chemind Private Limited is its customer manufacturing chemicals. The association of South Indian Sugar Mills, which manufactures rectified spirit, does under the supervision of the officials of the State Government who are posted in their respective factories. Similarly, the petitioner, which manufactures chemicals out of rectified spirit, does under the supervision of an Excise Supervisory Officer in the cadre of Deputy Tahsildar of the State. With a view to recover the expenditure borne by the State government towards salary, allowances, pension, etc., of the employees so posted in the association's manufacturing unit, the Governor of Tamil Nadu, in exercise of powers conferred by Sections 17-B, 17-C, 17-D, 18-B, 18-C and 54 of the Tamil Nadu Prohibition Act, 1937, amended Rule 5-A of the Tamil Nadu Distillery Rules, 1981, gazetted vide G.O.Ms.No.662, Home, Prohibition and Excise (III) Department dated 4th June, 1990, which reads as follows:-
"5-A. Payment of Administrative Service Fee: Every licensee shall pay fifty paise per bulk litre of spirit produced in the distillery, towards administrative service fee, before the spirit is issued from the distillery."
By the aforesaid rule, it was ordered to pay fifty paise per bulk litre of spirit produced in the distillery towards administrative service fee before the spirit is issued from the distillery.
2. The Governor of Tamil Nadu also issued one executive instruction by G.O.(D) No.118, Prohibition and Excise Department dated 21st July, 1994, whereby similar administrative fee was levied on the petitioner (appellant herein).
3. The association of manufacturers of rectified spirit passed on the liability of administrative fee on the petitioner and other similarly situated persons. As the petitioner was paying separate administrative fee with regard to the supervision by an Excise Supervisory Officer in its own unit, the petitioner represented the matter with the authorities on 21st August, 1999 and raised the question whether the manufacturers of rectified spirit can pass on the liability of administrative service fee on the purchaser of the rectified spirit like the petitioner. Having received no reply, the petitioner moved before this Court in Writ Petition No.16656 of 1999 and pursuant to the order of this Court dated 11th October, 1999, the Commissioner of Prohibition and Excise disposed of the representation by the Letter No.D1/36117/99 dated 14th February, 2000 and made the following clarification:
".....I am to inform you that liability to pay administrative service fee for the spirit produced is on the distilleries and there is no provision to pass on the burden to the purchaser like sales tax and reimburse themselves by collecting the administrative service fee from the purchaser of the rectified spirit, but there is no legal prohibition to pass this on to the buyers."
4. The petitioner was not happy with the last portion of the clarification letter dated 14th February, 2000, whereby it was informed that there is no legal prohibition to pass such liability on the buyers, though it was accepted that there was no provision to pass on the burden to the purchaser like sales tax. This was the reason the petitioner challenged the said letter by filing Writ Petition No.5712 of 2000.
5. Further, as the manufacturers of rectified spirit were passing on such liability of administrative service fee on the petitioner and a separate administrative fee was also levied on the petitioner by G.O.(D) No.118 dated 21st July, 1994, the petitioner questioned the legality and propriety of the levy of administrative service fee on the rectified spirit / industrial alcohol / ethyl alcohol as imposed vide amended Rule 5-A by filing Writ Petition No.19419 of 2000 and also the levy of separate administrative fee vide G.O.(D) No.118 dated 21st July, 1994 by filing Writ Petition No.19425 of 2000 respectively. Subsequently, fifty paise of administrative service fee, as was prescribed by amended Rule 5-A, was raised to one rupee per bulk litre by G.O.Ms.No.64, Prohibition and Excise (XIII) Department dated 12.4.2000.
6. The association of manufacturers of rectified spirit also preferred Writ Petition No.9707 of 2000 challenging the levy of administrative service fee on the rectified spirit. Certain other chemical units also preferred writ petitions challenging the enhancement of administrative fee by 100% from 50 paise to one rupee per bulk litre. Writ Petition No.19419 of 2000 preferred by the petitioner challenging the amended Rule 5-A was heard along with the writ petitions preferred by the association of manufacturers of rectified spirit and other chemical units and by common order dated 30th January, 2001, the Court, while upholding the validity of the amended Rule 5-A, held that the enhancement of administrative service fee from 50 paise to one rupee was arbitrary and unjustified.
7. It is informed that the State Government preferred Writ Appeal Nos.1566 to 1575 of 2001 against the common order dated 30th January, 2001 passed in Writ Petition No.9707 of 2000 and analogous cases, and those appeals having been dismissed by this Court affirming the order passed by the learned single Judge, the State has moved Special Leave Petitions before the Supreme Court in S.L.P.(Civil) Nos.8743 to 8752 of 2004. The matter is stated to be pending before the Supreme Court. The learned single Judge, by two separate orders dated 30th January, 2001, dismissed the Writ Petition No.5712 of 2000 and Writ Petition No.19425 of 2000 preferred by the petitioner.
8. We have heard the learned counsel for the parties and noticed their submissions.
9. The question of legality and propriety of the amended Rule 5-A has been considered by the Division Bench of this Court in Writ Appeal Nos.1566 to 1575 of 2001. The aforesaid appeals have been dismissed on 16th March, 2004 affirming the order dated 30th January, 2001 passed in Writ Petition No.9707 of 2000 and analogous cases. The said judgment is pending for consideration before the Supreme Court. In view of the finding of the Division Bench of this Court, we have no other option but to dismiss the writ appeal preferred by the petitioner against the common order dated 30th January 2001 in Writ Petition No.19419 of 2000, but the parties will be guided by the decision as may be rendered by the Supreme Court in the Special Leave Petitions which are pending as referred to above.
10. So far as the levy of separate administrative fee on the petitioner vide G.O.(D) No.118 dated 21st July, 1994 is concerned, we uphold the order passed by the learned single Judge in view of the fact that similar provision, as made by amended Rule 5-A, has been upheld by the Division Bench of this Court as noticed above and the reasons given by the Court are also applicable in the present case.
11. So far as the clarification Letter No.D1/36117/99 dated 14th February, 2000 is concerned, as evident from the said letter and quoted above that the Commissioner of Prohibition and Excise has merely informed that the liability to pay administrative service fee for the spirit produced is on the distilleries. This is also accepted by the learned counsel for the petitioner. There is no provision to pass on the burden to the purchaser like sales tax and reimburse themselves by collecting the administrative fee from the purchaser of the rectified spirit is also accepted by the petitioner, which is one of the ground taken to challenge the said letter. So far as there is no legal prohibition to pass on such liability to the buyer is concerned, we are not expressing any opinion with regard to the same. If there is no provision to pass on the burden to the purchaser like sales tax and reimburse themselves by collecting the administrative fee from the purchaser, how such burden of administrative fee can be passed on to the purchaser is a matter which requires determination by a Court of competent jurisdiction. As it is a dispute between two private parties i.e., between the manufacturers of rectified spirit and the petitioner or those who are similarly situated, we are not inclined to express any opinion with regard to the same, though it will be open to the petitioner to move before the appropriate forum for recovery of any amount from distilleries on such ground, if otherwise not barred by limitation. In such case, the Court will decide the matter independently without being influenced by the order passed by the learned single Judge in W.P.No.5712 of 2000.
13. In view of the above, while we dismiss Writ Appeal Nos.2916 and 2917 of 2001, Writ Appeal No.2918 of 2001 stands disposed of with the aforesaid observation. There shall be no order as to costs.
ss To
1. The Secretary to Government of Tamil Nadu Prohibition & Excise Department Fort St.George Chennai 600 009
2. The Commissioner Prohibition & Excise Department Chepauk Chennai 600 005