High Court of KeralaDivision BenchAppeals dismissed; writ appeals against the jud...
State of Kerala v United Spirits Ltd (and connected WA Nos. 1764/2012 etc.)
Case / Petition Number:WA No. 1764 of 2012; WA No. 1552 of 2016; WA Nos. 1862, 1863, 1864, 1910, 1917, 1919, 1924, 1933, 1938, 1940, 1946, 2100/2012 (connected WA Nos.)
Case Details & Bench
- Court
- High Court of Kerala
- Hon'ble Judges
- K. Vinod Chandran
- Ashok Menon
- Judgment Date
- 2019-02-08
- Court Decision / Holding
- Appeals dismissed; the Division Bench upheld the Single Judge’s decision. The court held that the import fee on special spirits imported for IMFL manufacturing is not a valid levy under the Abkari Act or IDR Act in the facts of these cases, and the 2010 proviso applies to rectified spirits, not to the special spirits in question. The notification does not authorize such levies, and the State’s regulatory power cannot be extended to tax such non‑potable alcohol when it is used purely as industrial input for IMFL. Costs allocated as per the court’s discretion; the parties to bear their own costs.
- Final Disposition
- Appeals dismissed; writ appeals against the judgments of WPC 21595/2011, WPC 4857/2012, WPC 3464/2012, WPC 5438/2012, WPC 26863/2011, WPC 11880/2012 and others, are dismissed. The learned Single Judge’s judgments are upheld; the costs follow the result; the parties to bear their own costs.
Parties to the Case
Appellants / Petitioners
- STATE OF KERALA represented by SECRETARY TO GOVERNMENT, TAXES DEPARTMENT
- THE COMMISSIONER OF EXCISE
- THE INSPECTOR OF EXCISE
Respondents
- M/S UNITED SPIRITS LTD, UNIT PALAKKAD, KANJIKODE, PALAKKAD
- M/S UNITED SPIRITS LTD., Varanadu Cherthala
- M/S SEVEN SEAS DISTILLERY LTD., MANNUTHY, THRISSUR
- M/S UNITED DISTILLERIES, VENGALIPARA, KOZHIKODE
- M/S EMPEE DISTILLERIES LTD., KANJIKODE, PALAKKAD
- M/S KERALA ALCOHOLIC PRODUCTS LTD., PALAKKAD
- M/S SDF INDUSTRIES LTD., CHANDRANAGAR, PALAKKAD
Legal Representation & Advocates
Counsels for Petitioners
- • C.K. Govindan (Senior Government Pleader)
- • P.C. Iype (Addl. Advocate General)
Counsels for Respondents
- • Gilbert George Correya
- • P.K. Vijayamohan
- • Raju K. Mathews
- • M. Krishna Kumar
- • Millu Dandapani
Case Synopsis & Summary
The writ appeals challenge an import fee/duty alleged to be levied on so‑called special spirits imported by distilleries for the manufacture of Indian Made Foreign Liquor (IMFL). The State contends that the import fee is authorized under the Abkari Act provisions and the IDR Act, including 6, 7, 17, 18 of the Abkari Act and Section 18‑G of the Industries Development and Regulation Act (IDR Act), with the 2010 proviso to Section 6 exempting rectified spirit from such import fee. The respondents—various distilleries such as United Spirits Ltd, Seven Seas Distillery Ltd, Empee Distilleries Ltd, Kerala Alkoholic Products Ltd and SDF Industries Ltd—argue that the levy is not authorized against the special spirit which is not potable liquor, and not covered by the Abkari Act or the IDR Act; it is industrial alcohol used for manufacturing IMFL and hence cannot be taxed as a State excise duty. The court traces the constitutional framework: the 1956 amendment to the IDR Act narrowed State powers to regulate non‑potable alcohol while permitting levying fees for regulatory services; it reviews key precedents (Synthetics and Chemicals Ltd; Bihar Distillery; Modi Distillery; Punjab Devans; Vam Organic; State of UP v Lalta Prasad Vaish; Indian Mica; Indian case law on quid pro quo and privilege price). The Division Bench ultimately upholds the Single Judge’s view and holds the import fee on the special spirit is not sustainable, dismissing the appeals and leaving costs to be borne by the parties.
Provisions of Law Cited
Abkari Act - Section 6Abkari Act - Proviso to Section 6 (Act 4 of 2010)Abkari Act - Section 7Abkari Act - Section 17Abkari Act - Section 18Industries Development and Regulation Act, 1951 - Section 18‑GIndustries Development and Regulation Act, 1951 - Section 2Rules/Regulations: 1976 Rules - Rule 3(a)Foreign Liquor Rules, 1953Ethyl Alcohol (Price Control) OrdersSRO 330/1996 (G.O P/76/96/TD)SRO 678/2009 (Rule 1A)Proviso/Amendments to IDR Act (1956 amendment)
Legal Doctrines & Maxims
- Quid pro quo principle governing state charges for regulatory services
- Privilege price concept supporting levies on monopolistic state liquor privileges
- Non‑potable vs potable alcohol regulatory regime distinction
- Denaturation/industrial alcohol vs potable liquor distinction
Submissions & Arguments
Contentions of Appellants / Petitioners
The State argued that import fee on special spirits imported for IMFL manufacturing is authorized under the Abkari Act and related provisions, and that such spirits fall within the scope of 'spirits' used for manufacturing LIQUOR. It relied on SRO 330/1996, the Abkari Act sections (6, 7, 17, 18) and the IDR Act (including Section 18-G) and contended that the special spirit, though not potable liquor, could be regulated and taxed in order to prevent diversion and ensure revenue, drawing on the privilege‑price concept recognized in Punjab and Devans; it maintained that denaturation or ISI specifications do not deprive the State of its regulatory powers, and that the 2010 proviso to Section 6 excludes only rectified spirit at 95% ABV, not ‘special spirit’ used for industrial purposes.
Contentions of Respondents
The distilleries argued that the levy on special spirit is not authorized as such spirits are not potable liquor and do not come within Abkari Act’s levy framework; the State cannot tax industrial alcohol used as an input for IMFL manufacturing. They relied on the ruling in Synthetics and Chemicals Ltd and Bihar Distillery—while the latter was doubted later—and urged that the IDR Act does not permit the State to levy import fees on non‑potable alcohol beyond the limited regulatory scope. They argued that the levy is a tax, not a fee for regulatory service, and that the notification does not provide nexus for such a levy; they emphasized the 1956 amendments narrowing State power and the need for a larger Bench to resolve the field between State regulation and Union control over industrial alcohol.
Cited Precedents (11)
| Case Name | Citation | Treatment | Explanation |
|---|---|---|---|
| Bihar Distillery v. Union of India | (1997) 2 SCC 727 | Overruled | The larger bench disapproved the Bihar Distillery reading of Synthetics (the Bihar Distillery approach was not upheld). |
| Synthetics and Chemicals Ltd. v. State of U.P. | (1990) 1 SCC 109 | Positive | The court acknowledged Synthetics as controlling in defining scope of State power over industrial alcohol, though with nuances after amendments. |
| State of Uttar Pradesh and Others v. Lalta Prasad Vaish | (2007) 13 SCC 463 | Mentioned Only | Reference order cited; the larger bench posed questions for consideration but did not adopt or reject in the present decision. |
| Deccan Sugar and Abkari Co. Ltd. v. Commr. of Excise, A.P. | (year not provided) | Mentioned Only | Cited to illustrate a contrary view to Bihar Distillery, later deemed not to govern this case. |
| State of U.P. v Modi Distillery | (year not provided) | Positive | Cited to reflect principles on regulation and privilege price supporting state regulation of IMFL imports. |
| Punjab and Another v. Devans Modern Breweries Ltd. and Another | (2004) 11 SCC 26 | Positive | Majority upheld levy on import of IMFL as privilege price recognized by Supreme Court; used as supporting authority. |
| Vam Organic Chemicals Ltd. v. State of U.P. | (2004) 1 SCC 225 | Mentioned Only | History of decisions; referenced in discussion of subsequent cases without binding effect on the present decision. |
| Indian Mica Case | (1971) 2 SCC 236 | Mentioned Only | Quid pro quo principle cited in context of regulatory fees. |
| Shri Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd. v. State of Gujarat | (1992) 2 SCC 42 | Mentioned Only | Other authorities cited in process of discussing regulatory powers. |
| B. Viswanathiah and Co. v. State of Karnataka | (1991) 3 SCC 358 | Mentioned Only | Referenced in the wider discussion of regulatory powers. |
| State of Kerala v. Chemplast Sanmar Limited | (2019) 1 KLT 123 | Mentioned Only | Noted in context of interpretation of ‘spirit’ and ‘liquor’ definitions under Abkari Act. |
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Extracted Judgment Text
Exact text extracted from official judgment records.
# **IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1764 of 2012**
**AGAINST THE JUDGMENT IN WPC 21595/2011 of HIGH COURT OF KERALA DATED 27-07-2012**
## **APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE COMMISSIONER OF EXCISE COMMISSIONERATE OF EXCISE THIRUVANANTHAPURAM-695001. 3 THE INSPECTOR OF EXCISE UNITED SPIRITS, KANJIKODE PALAKKAD-691001.**
**BY ADVS.**
**BY SRI.C.K.GOVINDAN, SR. GOVERNMENT PLEADER SRI.P.C.IYPE ADDL. ADVOCATE GENERAL**
## **RESPONDENT/S:**
**M/S UNITED SPIRITS LTD UNIT PALAKKAD, KANJIKODE, PALAKKAD, REPRESENTED BY ITS GENERAL MANAGER, V. REGHUNATH PIN-678621.**
**BY ADVS. SRI.GILBERT GEORGE CORREYA SRI.P.K.VIJAYAMOHANAN SRI.RAJU K.MATHEWS SRI M. KRISHNAKUMAR**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.1552/2016, WA.1862/2012, WA.1863/2012, WA.1864/2012, WA.1910/2012, WA.1917/2012, WA.1919/2012, WA.1924/2012, WA.1933/2012, WA.1938/2012, WA.1940/2012, WA.1946/2012, WA.2100/2012, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 2**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1552 of 2016**
**AGAINST THE JUDGMENT IN WPC 4857/2012 of HIGH COURT OF KERALA DATED 14-10-2015**
**APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE COMMISSIONER OF EXCISE THIRUVANANTHAPURAM, PIN-695 001. 3 THE INSPECTOR OF EXCISE UNITED DISTILLERIES, VENGALIPARA, POST ERANHIKKAL, KOZHIKODE-673 303.**
**BY SRI.C.K.GOVINDAN, SR. GOVERNMENT PLEADER**
## **RESPONDENT/S:**
**UNITED DISTILLERIES VENGALIPARA, POST ERANHIKKAL, KOZHIKODE,PIN-673 303, REPRESENTED BY ITS GENERAL MANAGER(FINANCE), P.C.UNNIKRISHNAN.**
**BY ADV. SRI.MILLU DANDAPANI**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.NO.1764/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 3**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1862 of 2012**
**AGAINST THE JUDGMENT IN WPC 3464/2012 of HIGH COURT OF KERALA DATED 27-07-2012**
## **APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001 2 THE COMMISSIONER OF EXCISE COMMISSIONERATE OF EXCISE THIRUVANANTHAPURAM - 695 001. 3 THE CIRCLE INSPECTOR OF EXCISE M/S. UNITED SPIRITS, VARANADU, CHERTHALA - 688 524.**
**BY SRI.C.K.GOVINDAN, SR. GOVERNMENT PLEADER**
## **RESPONDENT/S:**
**M/S.UNITED SPIRITS LTD, VARANADU CHERTHALA - 688 524, REPRESENTED BY ITS GENERAL MANAGER, K. JAGADISHWARLU. BY ADV. SRI.RAJU K.MATHEWS**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.NO.1764/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 4**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1863 of 2012**
**AGAINST THE JUDGMENT IN WPC 5438/2012 of HIGH COURT OF KERALA DATED 27-07-2012**
## **APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE COMMISSIONER OF EXCISE COMMSISIONERATE OF EXCISE, THIRUVANANTHAPURAM - 695 001. 3 THE INSPECTOR OF EXCISE M/S. SEVEN SEAS DISTILLERY LIMITED, MANNUTHY P.O., THRISSUR - 680 651. BY SRI.C.K.GOVINDAN, SR. GOVERNMENT PLEADER RESPONDENT/S: M/S.SEVEN SEAS DISTILLERY LTD. MANNUTHY P.O., THRISSUR - 680 651, REP. BY ITS DEPUTY GENERAL MANAGER K.D. ANTO. BY ADV. SRI.RAJU K.MATHEWS**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.NO.1764/2012 AND CONNECTED CASED, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 5**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1864 of 2012**
**AGAINST THE JUDGMENT IN WPC 26863/2011 of HIGH COURT OF KERALA DATED 27-07-2012**
## **APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2 THE COMMISSIONER OF EXCISE COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM - 695 001. 3 THE CIRCLE INSPECTOR OF EXCISE M/S. UNITED SPIRITS, VARANADU, CHERTHALA - 688 524.**
**BY SRI.C.K.GOVINDAN, SR. GOVERNMENT PLEADER**
## **RESPONDENT/S:**
**M/S UNITED SPIRITS LTD., VARANADU, CHERTHALA - 688 524, REP. BY ITS DEPUTY GENERAL MANAGER K. JAGADISHWARLU.**
**BY ADV. SRI.RAJU K.MATHEWS**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.NO.1764/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 6**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1910 of 2012**
**AGAINST THE JUDGMENT IN WPC 25105/2011 of HIGH COURT OF KERALA DATED 27-07-2012**
## **APPELLANT/S:**
|**1**||**STATE OF KERALA**|
|---|---|---|
|||**REPRESENTED BY SECRETARY TO GOVERNMENT**|
|||**TAXES DEPARTMENT,SECRETARIAT,**|
|||**THIRUVANANTHAPURAM-695001.**|
|**2**||**THE COMMISSIONER OF EXCISE**|
|||**COMMISSIONERATE OF EXCISE,**|
|||**THIRUVANANTHAPURAM-695001.**|
|**3**||**THE INSPECTOR OF EXCISE**|
|||**M/S.EMPEE DISTILLERIES LTD,KANJIKODE,**|
|||**PALAKKAD-678621.**|
|||**BY SRI.C.K.GOVINDAN, SR. GOVERNMENT PLEADER**|
|**RESPONDENT/S**<br>**:**|||
|||**M/S. EMPEE DISTILLERIES LTD.**|
|||**NEW INDUSTRIAL DEVELOPMENTS AREA,**|
|||**MENONPARA ROAD,KANJIKODE,PALAKKAD-678621,**|
|||**REPRESENTED BY ITS MANAGER,(PERSONNEL AND**|
|||**ADMINISTRATION)A.RAJENDRAN.**|
## **BY ADV. SRI.MILLU DANDAPANI**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.NO.1764/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 7**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1917 of 2012**
**AGAINST THE JUDGMENT IN WPC 14945/2012 of HIGH COURT OF KERALA DATED 02-08-2012**
## **APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE COMMISSIONER OF EXCISE COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM 695 001. 3 THE CIRCLE INSPECTOR OF EXCISE M/S. UNITED SPIRITS, VARANADU, CHERTHALA 688 524.**
**BY SRI.C.K.GOVINDAN, SR. GOVERNMENT PLEADER**
## **RESPONDENT/S:**
**M/S. UNITED SPIRITS LTD. VARANADU, CHERTHALA 688 524, REPRESENTED BY ITS GENERAL MANAGER, K.JAGADISHWARLU. BY ADV. SRI.RAJU K.MATHEWS**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.NO.1764/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 8**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
## **&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1919 of 2012**
**AGAINST THE JUDGMENT IN WPC 11880/2012 of HIGH COURT OF KERALA DATED 02-08-2012**
## **APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001. 2 THE COMMISSIONER OF EXCISE COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM 695 001. 3 THE CIRCLE INSPECTOR OF EXCISE M/S. UNITED SPIRITS, VARANADU, CHERTHALA 688 524. BY SRI.C.K.GOVINDAN, SR. GOVERNMENT PLEADER**
## **RESPONDENT/S:**
**M/S.UNITED SPIRITS LTD VARANADU, CHERTHALA 688 524, REPRESENTED BY ITS GENERAL MANAGER, K.JAGADISHWARLU.**
**BY ADV. SRI.RAJU K.MATHEWS**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.NO.1764/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 9**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1924 of 2012**
**AGAINST THE JUDGMENT IN WPC 8464/2012 of HIGH COURT OF KERALA DATED 27-07-2012**
## **APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE COMMISSIONER OF EXCISE COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695001.**
**3 THE CIRCLE INSPECTOR OF EXCISE M/S. UNITED SPIRITS, VARANADU, CHERTHALA-688524.**
**BY ADVS. BY SRI.C.K.GOVINDAN, SR.GOVERNMENT PLEADER SRI.P.C.IYPE ADDL. ADVOCATE GENERAL**
## **RESPONDENT/S:**
**M/S.UNITED SPIRITS LTD. VARANADU, CHERTHALA-688524, REPRESENTED BY ITS GENERAL MANAGER, K.JAGADISHWARLU.**
**BY ADV. SRI.RAJU K.MATHEWS**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.1764/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 10**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1933 of 2012**
**AGAINST THE JUDGMENT IN WPC 6501/2012 of HIGH COURT OF KERALA DATED 27-07-2012**
## **APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT , TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001 2 THE COMMISSIONER OF EXCISE COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695 001 3 THE CIRCLE INSPECTOR OF EXCISE M/S. UNITED SPIRITS LTD. VARANADU, CHERTHALA-688 524**
**BY SRI.C.K.GOVINDAN, SR. GOVERNMENT PLEADER**
## **RESPONDENT/S:**
**M/S. UNITED SPIRITS LTD. VARANADU, CHERTHALA-688 524, REPRESENTED BY ITS GENERAL MANAGER, K. JAGADISHWARLU. BY ADV. SRI.RAJU K.MATHEWS**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.1764/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 11**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1938 of 2012**
**AGAINST THE JUDGMENT IN WPC 16343/2012 of HIGH COURT OF KERALA DATED 27-07-2012**
## **APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE COMMISSIONER OF EXCISE COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695001. 3 THE INSPECTOR OF EXCISE M/S.SEVEN SEAS DISTILLERY LTD, MANNUTHY P.O., THRISSUR 680651. BY SRI.C.K.GOVINDAN, SR. GOVERNMENT PLEADER**
## **RESPONDENT/S:**
**M/S.SEVEN SEAS DISTILLERY LTD, MANNUTHY P.O., THRISSUR-680651, REPRESENTED BY ITS DEPUTY GENERAL MANAGER, K.D.ANTO.**
**BY ADV. SRI.RAJU K.MATHEWS**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.1764/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 12**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
## **WA.No. 1940 of 2012**
**AGAINST THE JUDGMENT IN WPC 8743/2012 of HIGH COURT OF KERALA DATED 27-07-2012**
## **APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2 THE COMMISSIONER OF EXCISE COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM-695 001. 3 THE INSPECTOR OF EXCISE M/S. SEVEN SEAS DISTILLERY LTD., MANNUTHY P.O., THRISSUR-680 651. BY SRI.C.K.GOVINDAN, SR. GOVERNMENT PLEADER RESPONDENT/S: M/S.SEVEN DISTILLERIES LTD MANNUTHY P.O., THRISSUR-680 651, REPRESENTED BY ITS DEPUTY GENERAL MANAGER, K.D.ANTO. BY ADV. SRI.RAJU K.MATHEWS**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.1764/2012 AND CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 1946 of 2012**
**AGAINST THE JUDGMENT IN WPC 23133/2011 of HIGH COURT OF KERALA DATED 27.07.2012**
## **APPELLANT/S:**
**1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT TAXES DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. 2 THE COMMISSIONER OF EXCISE COMMISSIONERATE OF EXCISE THIRUVANANTHAPURAM. PIN-695001. 3 THE INSPECTOR OF EXCISE M/S. KERALA ALCOHOLIC PRODUCTS LTD. GOPALAPURAM ROAD, MEENAKSHIPURAM.P.O., PALAKKAD-678533.**
**BY SRI.C.K.GOVINDAN, SR.GOVERNMENT PLEADER**
## **RESPONDENT/S:**
**M/S. KERALA ALCOHOLIC PRODUCTS LIMITED GOPALAPURAM ROAD, MEENAKSHIPURAM.P.O., PALAKKAD-678533, REPRESENTED BY ITS GENERAL MANAGER, K. ARUCHAMY.**
**BY ADV. SRI.RAJU K.MATHEWS**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.1764/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
**WA Nos.1764/2012,1552/2016,1862,1863,1864,1910,1917, 1919,1924,1933,1938,1940,1946,2100/2012 14**
**IN THE HIGH COURT OF KERALA AT ERNAKULAM**
**PRESENT**
**THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN**
**&**
**THE HONOURABLE MR. JUSTICE ASHOK MENON**
**FRIDAY ,THE 08TH DAY OF FEBRUARY 2019 / 19TH MAGHA, 1940**
**WA.No. 2100 of 2012**
**AGAINST THE JUDGMENT IN WPC 18686/2011 of HIGH COURT OF KERALA DATED 27-07-2012**
## **APPELLANT/S:**
**1 THE CIRCLE INSPECTOR OF EXCISE, SDF INDUSTRIES LTD,PAMPADY, THIRUVILVAMALA,THRISSUR DISTRICT.**
- **2 THE DEPUTY COMMISSIONER OF EXCISE CENTRAL ZONE,PALARIVATTOM,KOCHI.**
**3 THE COMMISSIONER OF EXCISE, GOVERNMENT OF KERALA,THIRUVANANTHAPURAM.**
**BY SRI.C.K.GOVINDAN, SR.GOVERNMENT PLEADER**
## **RESPONDENT/S:**
**M/S. SDF INDUSTRIES LIMITED, SDF HOUSE,N.H.BYE PASS ROAD,CHANDRANAGAR,PALAKKAD, REPRESENTED BY SRI.SUNNY MATHEW,SENIOR LAISON ASSISTANT. PIN 680 597.**
**BY SRI.M.KRISHNA KUMAR**
**THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 08.02.2019, ALONG WITH WA.1764/2012 AND CONNECTED CASES, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:**
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## **JUDGMENT**
## **K. VINOD CHANDRAN, J**
The writ petition was filed, challenging a demand for import fee on special spirit brought into the State from outside, for the purpose of manufacturing Indian Made Foreign Liquor(herein after referred to as 'IMFL'). The fee was demanded on the basis of SRO 330/1996 [G.O(P)/76/96/TD] dated 30.03.1996. The item under which the levy has been made is, (2)(a), in the case of, Indian Made Foreign Liquor other than beer imported (bond or under bond)-Rs.5 per proof litre.
2. The challenge to the demand is on the ground that the notification does not grant any power to levy such import fee on special spirit, which is imported by the
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distilleries. It also does not fall under the definition of “potable liquor” thus the State has no power to levy a tax or duty on the same. The notification also does not speak of special spirit or rectified spirit with any content of alcohol. Pertinent also is the
fact that anything with alcohol content, other than potable liquor fit for human
consumption, would fall outside the scope of
the jurisdiction of the State to tax.
3. Sri.C.K.Govindan, learned Senior
Government Pleader relied on the judgment of the Hon'ble Supreme Court in _**Bihar Distillery and Another v. Union of India and Others (1997 (2) SCC 727)**_ , which took a slightly different path, insofar as rectified spirit is concerned from _**Synthetics and Chemicals Ltd, and Others**_ **v. State of U.P and Others (1990 (1) SCC 109)** . Though later
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decisions of the Hon'ble Supreme Court indicate a reiteration of the principles in **Synthetics and Chemicals Ltd,** as of now, the seven Judge Bench has been doubted by a three Judge Bench of the Hon'ble Supreme Court. The
reference order is reported in **State of Uttar Pradesh and Others v. Lalta Prasad Vaish**
**(2007 (13) SCC 463).** It is also submitted that as of now, the issue has been placed before a nine Judge Bench. Sri.Govindan would in the first place seek for an adjournment of the matters till the matter is finally resolved by the Hon'ble Supreme Court. However, when we expressed our
disinclination, especially considering that the writ appeals were of the year 2012, he argued the matter extensively.
4. It is submitted on behalf of the State that the Special spirit as it is called, is
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imported into the State of Kerala, for the purpose of manufacturing IMFL. The State has a duty to ensure that the same is stored in the bonded warehouse and used in the manufacturing of IMFL by the procedure delineated under the Abkari Act and the Rules framed there under. It is argued that the notification above referred is brought out under Sections 6, 7, 17 and 18 of the Abkari Act. Section 18 specifically provides for a duty of excise or countervailing duty in the case of import of spirits or beer or intoxicating drugs in such manner as prescribed by sub-clause (f) of Section 18(1) of the Abkari Act. Spirits, according to the State includes special spirits brought in for the purpose of manufacturing IMFL. The import duty ought to have been sustained argues Sri. Govindan.
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## 5. Referring to **Synthetics and Chemicals**
**Ltd** it is pointed out that the seven Judge Bench was considering the issue with respect
to rectified spirit for industrial purposes, which as per the ISI specifications is defined as “spirit purified by distillation having a strength not less than 95 per cent
of volume by ethyl alcohol”. The special
spirit as imported by the distilleries would not fall within such ISI specification as is
evident from the admission of the respondent
distilleries that the percentage of volume by ethyl alcohol varies between 69% to slightly above 70%. The special spirit brought in is not denatured spirit and is specifically
intended for manufacturing IMFL and hence the
State has the power to levy such import duty. It is also argued that the notification was never challenged by the distilleries.
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6. Sri.Raju K. Mathews and Sri.M.Krishna
Kumar, appearing on behalf of the respondent
distilleries would at the outset contend that
there was absolutely no reason why the notification should be challenged, since it speaks of an import duty on IMFL alone. It is hence the distilleries challenged the demand of import fee on the special spirits imported by the distilleries, which is not potable liquor, though intended for manufacturing potable liquor. Unless the levy is made on potable liquor, it has to be struck down, when it is levied by the State, without
authority of law.
7. It is also pointed out that the levy
on IMFL has already been upheld by the Hon'ble Supreme Court by a five Judge Bench in State of _**Punjab and Another**_ v. _**Devans**_
_**Modern Breweries Ltd. And Another [(2004) 11**_
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_**SCC 26]**_ . The majority upheld the levy as privilege price. That is, a levy on import of IMFL in lieu of the privilege of sale of liquor conferred only on the State; which has been surrendered to the Kerala State
Beverages Corporation alone. It is in lieu of such parting of exclusive privilege of dealing in liquor that the levy was upheld by the Hon'ble Supreme Court.
8. In the case of the special spirit,
there is no privilege with the State and the distilleries who imported such special spirit also do not intend to sell it in the market. They only use it for manufacturing purposes that too, by storing it and releasing it from the bonded warehouses manned by Excise personnel for the purpose of manufacturing of IMFL. At the time of clearance of the IMFL from the factory there is a duty of excise
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levied by the State, under proper exercise of legislative power, which levy has also been
held to be the liability of the manufacturer.
9. Sri.Krishnakumar also points out the
proviso to Section 6 of the Abkari Act, which
excludes any import fee on rectified spirit
or Extra Neutral Alcohol including absolute alcohol intended to be used for the
manufacture of liquor meant for human
consumption, having been inserted by Act 3 of
2010 with retrospective effect from 30-3-
1996. To counter the said argument,
Sri.Govindan would argue that exemption was only insofar as rectified spirit of 95% volume by ethyl alcohol and would not apply to special spirit.
10. We look at the learned Single Judge's judgment, which quoted from the decision of the Hon'ble Supreme in **State of U.P and**
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**Others v. Vam Organic Chemicals Ltd and Others (2004 (1) SCC 225)** , which traced the
history of the various decisions rendered by the Hon'ble Supreme Court after **Synthetics**
**and Chemicals Ltd** , which we find appropriate to extract here too:
_“Article 246 gives to Parliament exclusive power to make laws with respect to the matters enumerated in List I of the Seventh Schedule. Entry 84 of List I and Entry 51 of List II were construed by this Court in_ _**Synthetics case** to hold that Parliament alone has the exclusive power to legislate and levy excise tax in respect of industrial alcohol. It is unnecessary to refer to the law with regard to the comparative competence of the Union and the States with regard to levy of excise, regulation and control of industrial alcohol prior to the decision of the Constitution Bench in_ _**Synthetics** . Whatever the law was earlier, the decision in Synthetics now holds the field. In that decision the State's power to levy excise duty was held to be limited by Entry 51 to tax on alcoholic liquors for human consumption. It was also held that Section 2 of the Industries Development and Regulation) Act, 1951 as well as Serial No.26 of the First Schedule to that Act covered the whole field on industrial alcohol and its products. Therefore, since the coming into force of the IDR Act on 8.5.1952 the State Legislatures are constitutionally incompetent to levy and tax on industrial alcohol._
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## _**State of U.P. v. Modi Distillery**_
_The principle was succinctly reiterated in_ _**State of U.P. v. Modi Distillery** where it was said that the State's power to levy excise duty was limited to alcoholic liquor for human consumption and -_
_that the framers of the Constitution when they used the expression “alcohol liquors for human consumption” meant and the expression still means that liquor which as it is, is consumable in the sense that it is capable of being taken by human beings as such as a beverage or drink._
_....Dictionaries and technical books showed that rectified spirit (95 per cent) was an industrial alcohol and not potable as such ... Therefore even if ethyl alcohol (95 per cent) could be used as a raw material or input, after processing and substantial dilution, in the production of whisky, gin, country liquor etc, nevertheless, it was not “intoxicating liquor” which expression meant only that liquor which was consumable by human beings as it was (emphasis supplied)_
## _**Bihar Distillery v. Union of India** ._
_Thus, the State cannot legislate on industrial alcohol despite the fact that such industrial alcohol has the potential to be used to manufacture alcoholic liquor._
_A somewhat contrary view was taken by a Bench of two Judges of this Court in_ _**Bihar Distillery v. Union of India** . It was held that the decision in Synthetics did not deal with rectified spirit which could be converted into potable alcohol and was merely concerned with industrial alcohol which could not be so converted ie., denatured rectified spirit. A distinction was drawn between industries engaged in manufacturing rectified spirit meant exclusively for supply to industries_
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_(industries other than those engaged in obtaining or manufacturing of potable liquor) whether after denaturing it or without denaturing it and industries engaged in manufacturing rectified spirit meant exclusively for supply to industries (industries other than those engaged in obtaining or manufacturing of potable liquor) whether after denaturing it or without denaturing it and industries engaged in manufacturing rectified spirit exclusively for the purpose of obtaining or manufacturing potable liquor. In the first case, the industry was to be under “the total and exclusive control of the Union and be governed by the IDR Act and the rules and regulations made thereunder” (SCC p.743, para 23). As far as the second case is concerned,”they shall be under the total and exclusive control of the States in all respects and at all stages including the establishment of the distillery” (SCC p.744, para 23)._
_The decision in_ _**Bihar Distillery** was doubted in_ _**Deccan Sugar and Abkari Co.Ltd v. Commr. Of Excise, A.P.** It was said that the decision in_ _**Bihar Distillery** ran counter to the scheme of legislative competence as examined by the Constitution Bench of this Court as well as in the three-Judge Bench decision of this Court in_ _**Modi Distillery** . The appeals were accordingly referred to a large Bench for reconsideration of the judgment in_ _**Bihar Distillery case**_
_The larger Bench followed_ _**Synthetics** and_ _**Modi Distillery** without expressly overruling the decision in_ _**Bihar Distillery** . We therefore, proceed on the basis that the decision in Synthetics continues to exclude the State from levying tax on industrial alcohol whether or not it has the potential to be used as alcoholic liquor._
_However, Synthetics has also said (SCC p.149 para 63) “the States have the power to_
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_regulate the use of alcohol and that power must include power to make provisions to prevent and/or check industrial alcohol being used as intoxicating or drinkable alcohol.”_
_In summing up the law the Constitution Bench said (SCC p.158 para 86) - “The position with regard to the control of alcohol industry has undergone material and significant change after the amendment of 1956 to the IDR Act. After the amendment, the State is left with only the following powers to legislate in respect of alcohol:_
_(a). It may pass any legislation in the nature of prohibition of potable liquor referable to Entry 6 of List II and regulating powers._
_(b). It may lay down regulations to ensure that non-potable alcohol is not diverted and misused as a substitute for potable alcohol._
_(c). The State may charge excise duty on potable alcohol and sales tax under Entry 52 of List II. However sales tax cannot be charged on industrial alcohol in the present case because under the Ethyl Alcohol (Price Control) Orders, sales tax cannot be charged by the State on industrial alcohol._
_(d). However, in case the State is rendering any service, as distinct from its claim of socalled grant of privilege, it may charge fees based on quid pro quo. See in this connection, the observations of Indian Mica case. (emphasis supplied)_
_The State's power is thus limited to (i) the regulation of non-potable alcohol for the limited purpose of preventing its use as alcoholic liquor, and (ii) the charging of fees based on quid pro quo. The question then is – is the levy under Rule 3(a) of the 1976 Rules justifiable as such fee?_
11. Thereafter, in paragraph 41 of its
judgment, the Apex Court concluded the issue by
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stating thus:-
_“The High Court was also of the view that Section 18-G of the IDR Act did not operate in different fields. The reasoning of the High Court in_ _**Vam Organics** , has been adopted by the same learned Judge in_ _**Bihar Distillery case** . We have already noted that the reading and construction and consequent limitation of Synthetics in_ _**Bihar Distillery** has been disapproved and can safely be said not to represent the law.”_
(emphasis supplied)
The learned Single Judge according to us, rightly found that the principles laid down
in **Synthetics and Chemicals Ltd.** were reiterated and those laid down in **Bihar Distillery** case was disapproved.
12. The further contention with respect
to the reference order was also negatived by the learned Single Judge. In this context, we
notice the binding precedent of the seven Judge Bench in **Synthetics and Chemicals Ltd**
with respect to the powers left with the State after the enactment of the Industrial (Development and Regulations) Act 1951 after
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## the amendment of 1956:
**86.** The position with regard to the control of alcohol industry has undergone material and significant change after the amendment of 1956 to the IDR Act. After the amendment, the State is left with only the following powers to legislate in respect of alcohol:
**(** _**a**_ **) It may pass any legislation in the nature of prohibition of potable liquor referable to Entry 6 of List II and regulating powers.**
**(** _**b**_ **) It may lay down regulations to ensure that non-potable alcohol is not diverted and misused as a substitute for potable alcohol.**
**(** _**c**_ **) The State may charge excise duty on potable alcohol and sales tax under Entry 52 of List II. However, sales tax cannot be charged on industrial alcohol in the present case, because under the Ethyl Alcohol (Price Control) Orders, sales tax cannot be charged by the State on industrial alcohol.**
**(** _**d**_ **) However, in case State is rendering any service, as distinct from its claim of so-called grant of privilege, it may charge fees based on quid pro quo. See in this connection, the observations of** _**Indian Mica case [(1971) 2 SCC 236: 1971 Supp SCR 319: AIR 1971 SC 1182].**_
13. We also notice the submissions, which
found favour with the three Judge Bench of the Hon'ble Supreme Court, which we extract from paragraph 31 of **State of Uttar Pradesh**
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## **and Others:**
**31.** Various other decisions, such as the decision in _Shri Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd._ v. _State of Gujarat_ [(1992) 2 SCC 42] and _B. Viswanathiah and Co._ v. _State of Karnataka_ [(1991) 3 SCC 358] were also referred to by Mr Dwivedi in support of his submission. That even after the decision of the sevenJudge Bench in _Synthetics and Chemicals case_ [(1990) 1 SCC 109] this Court had in several other judgments, including the judgments delivered by Constitution Benches of 5 Judges, had held in unequivocal terms that Section 18-G of the 1951 Act did not encroach upon the concurrent powers of the State Legislature to legislate with regard to Entry 33 of List III of the Seventh Schedule and, more so, in the absence of any notified order under the said section. In contrast to the aforesaid decisions, Mr Dwivedi also referred to the decision of this Court in _Vam Organic case_ , [(2004) 1 SCC 225] which relying on the decision in _Synthetics and Chemicals case_ [(1990) 1 SCC 109] held that the State had no power to levy tax on industrial alcohol, whether or not it had the potential to be used as alcoholic liquor. It was held further that the State’s power was limited to the regulation of non-potable alcohol for the limited purpose of preventing its use as alcoholic liquor and charging fees based on the principle of quid pro quo. It also held that the State Government was competent to levy a fee for the purpose of ensuring that industrial alcohol was not converted into potable alcohol so as to deprive the State of its revenue on the sale of such alcohol and the public was protected from consuming illicit liquor. But the powers stopped with
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the denaturing of industrial alcohol, since denatured rectified spirit was wholly and exclusively industrial alcohol.
14. We finally extract the questions
formulated and referred for consideration before a larger Bench in **State of Uttar**
## **Pradesh and Others.**
**39.** We, accordingly, formulate the following questions, which, in our view, may be referred to a larger Bench:
_Q. 1_ . Does Section 2 of the Industries (Development and Regulation) Act, 1951, have any impact on the field covered by Section 18-G of the said Act or Entry 33 of List III of the Seventh Schedule of the Constitution?
_Q. 2_ . Does Section 18-G of the aforesaid Act fall under Entry 52 of List I of the Seventh Schedule of the Constitution, or is it covered by Entry 33 of List III thereof?
_Q. 3_ . In the absence of any notified order by the Central Government under Section 18-G of the above Act, is the power of the State to legislate in respect of matters enumerated in Entry 33 of List III ousted?
_Q. 4_ . Does the mere enactment of Section 18-G of the above Act, give rise to a presumption that it was the intention of the Central Government to cover the entire field in respect of Entry 33 of List III so as to oust the
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States’ competence to legislate in respect of matters relating thereto?
_Q. 5_ . Does the mere presence of Section 18-G of the above Act, oust the State’s power to legislate in regard to matters falling under Entry 33( _a_ ) of List III?
_Q. 6_ . Does the interpretation given in _Synthetics and Chemicals case_ [(1990) 1 SCC 109] in respect of Section 18-G of the Industries (Development and Regulation) Act, 1951, correctly state the law regarding the States’ power to regulate industrial alcohol as a product of the scheduled industry under Entry 33 of List III of the Seventh Schedule of the Constitution in view of Clause ( _a_ ) thereof?
15. Hence the reference is only with
respect to the power retained with the State
to make regulation as per Entry 33 of List
III of the Seventh Schedule of the
Constitution _de hors_ the provisions of the
IDR Act. The reference is only with respect to the regulatory measures that could be brought in by the State, with respect to rectified spirit and denatured alcohol and it does not at all brook any dispute with
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respect to the power to levy a tax or duty on spirits other than potable spirits.
16. In this context, we also have to
notice the definition of 'liquor' which along
with 'drug', are the specific items spoken of
in Sections 6, 7, 17 and 18 of the Abkari
Act. The definition of liquor and spirits as
existing in the Abkari Act has already been
considered by this Division Bench in _**State of**_
_**Kerala**_ v. _**Chemplast Sanmar Limited [2019(1)**_
_**KLT 123].**_ There the issue was with respect to
the fees levied by the State on transit of
denatured spirit, which the respondent
therein imported and was transporting from
the Cochin Port to Tamil Nadu. The Kerala
Liquor Transit Rules, 1975 provided for the
same to be transported under the supervision of the Excise Officials, so as to ensure that denatured spirit is not diverted for
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manufacture of potable liquor when the import itself was specifically for the purpose of using it as industrial alcohol. We found, looking at the definition of “spirits” and “liquor” that earlier, the definition of spirit included the words “whether it is denatured or not”, which was omitted by way of an amendment in the year 1996. The definition of “liquor” also included 'methylated spirits', which also stood omitted by the very same Act 4 of 1996. The said items having been purposefully omitted from the purview of the Abkari Act, it was held “the provisions under the Abkari Act would very clearly indicate that they do not relate to transport or transit of denatured spirit, methyl alcohol or methanol”(sic). The contention based on the Kerala Liquor Transit Rules was refused to be accepted
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finding that the transit of liquor as understood in the Rules should follow the description of liquor as defined in the Statute. It was held that denatured spirit would not fall within the purview of the Abkari Act and there could also be no transit fees imposed for the transit of such goods. 17. We also took note of the apprehension of the State that unless the transit is supervised; the denatured spirit may be diverted and misused to manufacture potable liquor. We found such apprehension to be not misplaced. A regulation to ensure non-potable alcohol is not diverted and the charge of fees for any service rendered was permissible as per **Synthetics and Chemicals Ltd** at (b) and (d) in the extract herein above. Though we found the apprehension to be reasonable, and the levy permissible, we found the Statue
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and the Rules having not empowered the Government to impose a fee for supervised transit of denatured spirits.
18. Following the above reasoning, we do not think that the notification herein speaks of any levy on the special spirits as imported by the distilleries which admittedly is not potable liquor. The mere fact that it is intended for manufacturing of potable liquor, does not confer the State with the power to levy a tax or duty on spirits other than potable liquor, what ever its strength may be or composition of alcohol by volume is. The levy is also not in the nature of a fee since there is no contention raised of any regulatory measure being employed; which again the statute does not permit. The mere fact that the goods imported by the distilleries does not fall within the
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definition of potable liquor would take it out of the ambit of the Abkari Act and the Rules.
19. We also notice that the Foreign Liquor Rules 1953 as pointed out by Sri.Govindan, has a definition for foreign liquor at Rule 1A, in which by SRO 678/2009, the words “rectified spirits including absolute alcohol intended to be used for the manufacture of liquor meant for human consumption transported into the State” was added. However, the Foreign Liquor Rules, 1953 does not by itself sanction any levy of import duty as notified now; which also is not permissible. The specific source to which the notification under which the levy is sought to be traced, is also the Abkari Act and Sections 6, 7, 17 and 18 of the said Act.
The notification as observed does not levy any import fee on any spirits other than IMFL.
We also are of the opinion that the proviso as
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introduced in 2010 with retrospective effect is squarely applicable to the case of the appellant, since it speaks of rectified spirits and Extra neutral alcohol including absolute alcohol intended to be used for the manufacturing of liquor meant for human consumption. The proviso specifically states that no import fee shall be levied on such goods.
For all the above reasons we uphold the judgment of the learned Single Judge and dismiss the appeals, leaving the parties to suffer their respective costs.
## **Sd/-**
## **K.VINOD CHANDRAN**
## **JUDGE**
## **Sd/-**
## **ASHOK MENON**
**JUDGE**
SB/11/02/2019