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Supreme Court of India

STATE OF KARNATAKA AND ORS vs V.S. NARAYANA SWAMY on 21 August, 1991

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Official PDFBench Ranganath Misra (presiding), Madhukar Hiralal Kania, Kuldip Singh
PETITIONER:
STATE OF KARNATAKA AND ORS.
Vs.
RESPONDENT:
V.S. NARAYANA SWAMY
DATE OF JUDGMENT21/08/1991
BENCH:
MISRA, RANGNATH (CJ)
BENCH:
MISRA, RANGNATH (CJ)
KANIA, M.H.
KULDIP SINGH (J)
CITATION:
1992 AIR 151 1991 SCR (3) 700
1991 SCC (4) 268 JT 1991 (3) 523
1991 SCALE (2)383
ACT:
Mysore Excise Act, 1965/Karnataka Excise (Sale of Indian
& Foreign Liquors) Rules, 1968: Section 23(d)/Rule 8(1):
Manufacture and sale of excisable articles-Imposition of
licence fee thereof under the Act--Licence fee for the
authorised shop--Imposition of under the Rules--The relevant
rule--Whether supported by the Act and had the authority of
law.
HEADNOTE:
The Respondent, a licencee under floe Karnataka Excise Act
for selling liquor at an approved shop, flied a Writ Peti-
tion before the High Court challenging the vires of Section
23(d) of the Mysore Excise Act, 1965 and Rule 8(1) of the
Karnataka Excise (Sale of Indian and Foreign Liquors) Rules,
1968 as being beyond the legislative competence of the
State.
The High Court negatived the contention of the Respond-
(a) .............
(aa) ......................
(b) ..........................
(c)............................
(d)by fees on licences in respect of
manufacture or sale of any excisable
articles."
Rule 8 made the rule making powers, under
the Act, interalia, provides:
"8. Fee to be paid--
(1) The licence fee for the several
kinds of licences shall be as follows, namely:
(1) ..............................
(2)..........................
(3) ......................
The High Court rightly did not accept the challenge to s.
23(d) of the Act. What is authorised under s. 23(d) is
imposition of a fee of licence in respect of manufacture
or sale of any excisable articles. Rule 8(1) has obviously
gone beyond the enabling provision in the section by requir-
ing a licence fee to be paid for the premises where the
licence shop is located. Such a fee would not have the
support of s. 23(d). It is unnecessary to refer to prece-
dents for support for this conclusion. It may be possible
for the Legislature to make a statutory provision for a
licence fee of the type contemplated under the Rules but
without authority of the statute a rule of the type impugned
should not have been made. We find no merit in this appeal
and it is, therefore, diismissed. fore, dismissed.
Respondent did not appear inspite of service of appeal
notice. We make no of for costs.
G.N. Appeal dismissed.

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 1801 of 1974.

From the Judgment and Order ,dated 20.3.1974 of the Karnataka High Court in W.P. No. 1956 of 1971.

R.N. Narasimhmurthy, Novin Singh and M. Veerappa for the Appellants. The Judgment of the Court was delivered by

RANGANATH MISRA. CJ. The appeal is by special leave. Challenge is to the Judgment.,of the Karnataka .High Court declaring Rule 8(1) of the Karnataka Excise (Sale of Indian & Foreign Liquors) Rules, 1968 in so far as it relates to levy of licence fee for retail vending of authorised India and foreign liquors and directing refund of such levy collected within three years prior 2.8.1971 when the Writ Petition was filed. . . Respondent, an excise contractor, had taken in auction the exclusive privilege tosell liquors in retail at an approved shop premises. ’He was issued the appropriate licence under the provisions of the law on payment of licence fee in terms of Item 2 of Rule 8(1) of the aforesaid Rules. Respondent filed a writ petition before the Karnataka High Court challenging the vires of s. 23(d) of the Mysore Excise Act, 1965 (hereafter ’Act’ for short) and Rule 8(1.) as being beyond the legislative competence of,the State Legislature. The High Court did not accept the contention of the respondent in ’regard to s. 23 but held that Rule 8(1)-authorising the ’levy of a licence fee for the retail off shop was without authority of law.

Section 23(d), as far as relevant, provides:

"23. Ways of levying such duties--

Subject to such Rules regulating the time,

place and manner, as may be prescribed, excise

duty and countervailing duty under section 22

shall be levied in one or more of the follow-

ing ways, as may be prescribed, namely:

(d)by fees on licences in respect of

manufacture or sale of any excisable

articles."

Rule 8 made the rule making powers, under

the Act, interalia, provides:

"8. Fee to be paid--

(1) The licence fee for the several

kinds of licences shall be as follows, namely: The High Court rightly did not accept the challenge to s. 23(d) of the Act. What is authorised under s. 23(d) is imposition of a fee of licence in respect of manufacture or sale of any excisable articles. Rule 8(1) has obviously gone beyond the enabling provision in the section by requiring a licence fee to be paid for the premises where the licence shop is located. Such a fee would not have the support of s. 23(d). It is unnecessary to refer to precedents for support for this conclusion. It may be possible for the Legislature to make a statutory provision for a licence fee of the type contemplated under the Rules but without authority of the statute a rule of the type impugned should not have been made. We find no merit in this appeal and it is, therefore, diismissed. fore, dismissed.

Respondent did not appear inspite of service of appeal notice. We make no of for costs. G.N. Appeal dismissed.