Writ Petition No.2922 of 2001,Writ Petition No.6111 of 2001,Writ Petition No.6112 of 2001,Writ Petition No.6113 of 2001,Writ Petition No.5467 of 2001,Writ Petition No.2928 of 2001,Writ Petition No.6114 of 2001,Writ Petition No.6118 of 2001,Writ Petition No.7040 of 2009,Writ Petition No.9354 of 2009,Writ Petition No.9104 of 2009,Writ Petition No.402 of 2009,Writ Petition No.1053 of 2009,Writ Petition No.1055 of 2009,Writ Petition No.1257 of 2009,Writ Petition No.1264 of 2009,Writ Petition No.2014 of 2002,Writ Petition No.2454 of 2002,Writ Petition No.2688 of 2002,Writ Petition No.1259 of 2002,Writ Petition No.6752 of 2002,Writ Petition No.2800 of 2007,Writ Petition No.3415 of 2007,Writ Petition No.1375 of 2003,Writ Petition No.1377 of 2003,Writ Petition No.6727 of 2003,Writ Petition No.9137 of 2003,Writ Petition No.6149 of 2003,Writ Petition No.3691 of 2003,Writ Petition No.3692 of 2003,Writ Petition No.4401 of 2003,Writ Petition No.6309 of 2003,Writ Petition No.7082 of 2003,Writ Petition No.2842 of 2007,Civil Application No.2540 of 2007,Civil Application No.2541 of 2007,Civil Application No.2542 of 2007,Civil Application No.2602 of 2007,Civil Application No.2604 of 2007,Civil Application No.3066 of 2007,Civil Application No.23 of 2008,Civil Application No.35 of 2008,Civil Application No.50 of 2008,Civil Application No.51 of 2008,Civil Application No.30 of 2008,Civil Application No.877 of 2008,Civil Application No.1893 of 2008,Civil Application No.2779 of 2008,Civil Application No.2881 of 2009,Civil Application No.1474 of 2009,Civil Application No.290 of 2010,Civil Application No.1812 of 2010,Civil Application No.1933 of 2010,Civil Application No.1819 of 2010,Civil Application No.2565 of 2006,Writ Petition No.3783 of 2004,Writ Petition No.3596 of 2004,Writ Petition No.3814 of 2009,Writ Petition No.10497 of 2009,Writ Petition No.7181 of 2009,Writ Petition No.9098 of 2009,Writ Petition No.6783 of 2010,Writ Petition No.6785 of 2010

6th May, 2011

Petitioner Counsel: Mr. D. B. SAWANT,Bharat Shah & Co.,Mr. A. A. KUMBHAKONI,A. M. KULKARNI,Mr. VISHAL THADANI,Ms. V. B. THADANI,Ms. CHANDANA SALGAONKAR-RADIA
Respondent Counsel: Ms. NEHA PALSHIKAR-BHIDE,Mr. S. N. PATIL

Cases Cited:
M/s. Vam Organic Chemicals Ltd. Vs. State of Maharashtra, W.P. No.2275/2000, Dt.:-09-01-2001 [Para 11,13,14,18,22,44,46]
Synthetics & Chemicals Ltd. Vs. State of U.P., AIR 1990 SC 1927 : (1990)1 SCC 109 [Para 13,23]
Bihar Distillery Vs. Union of India, AIR 1997 SC 1208 : 1997(2) SCC 727 [Para 13,25,26]
State of U.P. Vs. Vam Organic Chemicals Ltd., AIR 2003 SC 4650 : (2004)1 SCC 225 [Para 13,26]
Gupta Modern Breweries Vs. State of J. & K., (2007)6 SCC 317 [Para 13,28]
Mohan Meakin Limited Vs. State of Himachal Pradesh, (2009)3 SCC 157 [Para 13,29]
Amit Maru Vs. State of Maharashtra, 2010(4) ALL MR 596 [Para 13,30]

JUDGMENT

A. A. SAYED, J.:- At the request of Ld. Counsel for the parties, Writ Petition Nos.3814/09, 10497/09, 6783/10, 6785/10, 9098/09, 3783/04, 3596/04 and 7181/2009 are also taken on Board. Rule in all the petitions, where rule has not been issued and by consent heard finally along with the other petitions. The learned counsel for the State waives notice on behalf of the respondents.

2. The above bunch of petitions filed under Article 226 of the Constitution of India question the legality and validity of Rule 19 of the Bombay Molasses Rules, 1955/Rule 5 of the Bombay Rectified Spirit (Transport in Bond) Rules, 1959/Rule 50 of the Bombay Denatured Spirit Rules, 1957, to the extent they levy/impose transport fee/administrative fee in relation to the transport of molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit. The said Rules are framed in exercise of powers under The Bombay Prohibition Act, 1949.

3. The petitioners are producers/manufacturers/users/sellers/purchasers etc. of molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit and hold various licences for production/manufacture/possession/use/storage /sale/purchase etc. of the said articles/products under the different Rules framed under the Bombay Prohibition Act, 1949 (hereinafter referred to as 'the said Act'). Some of the petitioners are owners of sugar factories/distilleries and produce/manufacture molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit. Majority of the petitioners purchase and use the said products as basic raw material in their manufactory for the manufacture of potable alcohol (country liquor and Indian made foreign liquor), while some petitioners purchase and use the said products as basic raw material for manufacturing chemicals in their chemical plant. There are also few petitioners who produce/manufacture molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit in their sugar factory/distillery as well as manufacture chemical/potable alcohol in their chemical plant/manufactory located in the same premises/complex and in case of shortage of the said products purchase the same from outside and in case of excess, sell it. For the transportation of molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit (hereinafter referred to as "industrial alcohol/spirit" for the sake of convenience), the petitioners are required to pay transport fee to the excise authorities under the State Government. It is the imposition/levy of this transport fee, which is challenged in the above petitions. Inasmuch as the challenge in all the aforesaid petitions is to either or all the aforementioned Rules imposing transport fee, and as such raise common questions of law and facts, the petitions can be disposed of by this common judgment.

4. To appreciate the controversy, a little needs to be mentioned about the articles/products in question on which the transport fee is levied - molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit are in a generic sense referred to as industrial alcohol, though rectified spirit is also used in the manufacture of alcoholic liquors meant for human consumption. Molasses is a thick dark coloured viscous liquid, which is a by-product essentially produced while manufacturing sugar or jaggery (gur). Rectified spirit is manufactured by process of fermentation/distillation of molasses as also from grain-based products. By common standards ethyl alcohol (which has above 95% purity) is rectified spirit. Rectified spirit is unfit for human consumption. It is however the main feed stock for manufacture of potable liquor viz. whisky, rum, gin, etc., by distillation, or by compounding or blending it with essence, colouring and flavouring substances. Extra Neutral Alcohol (ENA) and Silent Spirit are a kind of rectified spirit that have been further purified and mainly used in the manufacture of quality brands of Indian Made Foreign Liquor (IMFL). Rectified spirit is also used in manufacture of certain medicinal and toilet preparations and certain other alcohol based products. Rectified spirit manufactured in the distillery on being denatured as per the method approved by the excise authority, is called denatured spirit. Denatured spirit is highly toxic and is also unfit for human consumption. Denaturation has only one object - that is to make the rectified spirit unfit for potable use by addition of substances called denaturants which give a bad taste and/or odour to the rectified spirit to make it unpalatable without altering the chemical composition of alcohol, so that the denatured spirit is made available for non-potable use at a low-price by relieving it of the burden of excise duty levied on rectified spirit (as denatured spirit is exempt from excise duty), so as to develop the industries using alcohol for non-potable purposes like manufacture of chemicals like acetic acid, acetic anhydride, vinyl acetate, etc., domestic use by doctors, use in hospitals, educational and scientific purposes, certain medicinal and toilet preparations containing alcohol, etc. Until the commencement of the Constitution and for a few years thereafter rectified spirit was mainly used for the purpose of manufacturing country liquor, Indian made foreign liquor (IMFL). The rapid space of industrialization brought into existence several industries which required rectified spirit/denatured spirit as one of their raw-material with the result that the demand for rectified spirit/denatured spirit for industrial purpose went up substantially.

5. The excise duty on potable liquor is considerable, which makes potable liquor quite dear. Molasses, rectified spirit, denatured spirit or denatured spirituous preparations like French polish, varnish, thinner, etc., on the other hand are available at low price because of less or no excise duty, and therefore there is always a propensity of it's misuse by diverting it surreptitiously and using it illegally for making potable alcohol, commonly known as illicit liquor, which many a times account for the unfortunate hooch tragedies that result in death or blindness of the persons consuming the adulterated spirit. The State Government therefore is faced with an unenviable task and required to keep a constant vigil and supervise the manufacture, import, export, transport, storage, sale, purchase, use, etc. of the molasses, rectified spirit, denatured spirit or denatured spirituous preparations through the Prohibition and Excise or Police staff so as to ensure that the same are not diverted illegally and clandestinely for potable use and also to ensure that excise duty is not evaded. It must however be also mentioned that notwithstanding what is stated above, as well as article 47 of the Constitution, though in the State of Maharashtra there is prohibition for all persons to manufacture, possess, use, store, sale, purchase, transport, etc., of potable liquors, the State Government parts with this privilege and permits the same by issuing licences/permits/passes under various Rules framed under the Bombay Prohibition Act, 1949, in view of the extensive revenues it earns on the excise duty levied on potable liquors.

6. The petitioners in the above petitions, for the sake of convenience, can be categorized under two categories viz.: (i) captive users and (ii) non-captive users. Insofar as petitioners who are captive users are concerned, the molasses and/or industrial alcohol/spirit which is produced/manufactured by them in their distillery is only transferred from their distillery through closed and sealed pipes directly to their chemical plant and/or manufactory in the same premises/complex. Insofar as the petitioners who are non-captive users are concerned, they purchase the industrial alcohol/spirit from other distilleries and the same is transported to their manufactory/chemical plant. Some of the captive users in case of shortage, also purchase industrial alcohol/spirit from outside and therefore to the extent they purchase the industrial alcohol/spirit from outside, they would be non-captive users. At this juncture, it may be stated that the entire transactions/processes in respect of the industrial alcohol/spirit including transport thereof are carried out under strict excise supervision of the State Government.

7. It would be apposite at this stage, to reproduce the relevant Rules imposing transport fee.

I. Rule 5 of the Bombay Rectified Spirit (Transport in Bond) Rules, 1951 reads as under :

"5(1) The Distillery or Warehouse Officer may then, if he is satisfied after making such enquiries as he deems necessary, that there is no objection to allow the purchase and transport in bond of spirit indented for, issue a pass in Form II. The spirits shall be issued in casks, drums or other receptacles duly sealed with the seal of the Distillery or Warehouse Officer. The officer shall keep Part I of the pass on his record, shall also fill in the particulars to be filled in by him on the reverse of Parts II and III of the pass and shall hand over Part II of the pass to the purchaser duly endorsed and forward Part III with an impression of the seal placed on the drums, casks or other receptacles, to the officer-in-charge.

(2)(a) No pass in Form II shall be issued under sub-rule (1) unless transport fee at the following rates is paid.

(i)	Extra Neutral Alcohol/Silent Spirit issued forthe manufacture of Indian made Foreign Liquor.	Rs.3 per bulk litre.
(ii)	Rectified spirit issued for manufacture of Indian made Foreign Liquor.	Rs.2 per bulk litre.
(iii)	Rectified spirit issued for the manufacture of Country Liquor.	Rs. 1.25 per bulk litre.
(b) No pass in Form II shall be issued under sub-rule (1) unless administrative fee at the following rates is paid :-
(i)	Rectified spirit, Extra Neutral Alcohol issued to Medicinal and Toilet Preparation Units.	Rs.1 per bulk litre.
(ii)	Rectified spirit for industrial purpose.	Re. 0-30 per bulk litre.

Provided that, no such fees shall be recovered where spirit to be transported in bond is issued to any person.

(a) for use in the manufacture of Indian-made foreign liquor in accordance with the conditions of a licence in Form PLL granted under the Maharashtra Distillation of Spirit and Manufacture of Potable Liquor Rules, 1966; or

(b) for use in the manufacture of country liquor in accordance with the conditions of a licence in Form C.L.I. Granted under the Maharashtra Country Liquor Rules, 1973."

II. Rule 19 of the Bombay Molasses Rules, 1955 reads as under :

"19(1) On receipt of an application under Rule 18, the Collector or the authorised officer may make such inquiries as he deems necessary and if he is satisfied that there is no objection to grant the permit applied for, he may grant a permit in Form M-VI on payment of a fee at the rate of rupee one per metric ton of molasses to be transported.

(2) The permit shall be in four parts and shall be dealt with as under :-

Part I shall be kept on the record in the office of the Collector or the officer granting the permit.

Part II shall be sent to the person supplying molasses.

Part III shall be handed over to the applicant for sending with the consignment and for record thereafter with his accounts.

Part IV shall be forwarded to the Prohibition and Excise Officer of the place to which molasses are to be transported."

III. Rule 50 of the Bombay Denatured Spirit Rules, 1957 reads as under :

"50. If the Collector or the officer authorised to grant such passes, after making such inquiries as he deems necessary, is satisfied that there is no objection to grant the pass applied for, he may grant the applicant a pass in Form D.S. IX. The pass shall be in 4 parts and shall be dealt with as under :-

Part I shall be recorded in the office of the Prohibition and Excise Officer granting the pass.

Part II shall be forwarded to the licence-holder from whom the denatured spirit is to be obtained.

Part III shall be handed over to the transporter to accompany the consignment and shall be recorded in the licensed premises of the purchaser.

Part IV shall be forwarded to the Prohibition and Excise Officer of the place to which denatured spirit is to be transported;

Provided that no such pass shall be granted for the transport of denatured spirit manufactured or stored in any distillery, bonded warehouse, bonded laboratory or bonded manufactory in the State of Maharashtra from such distillery, warehouse, laboratory or manufactory for the transport of denatured spirit from any Customs House, at any Port, Land Custom Station or Airport, unless a administrative fee at the rate of twenty paise per litre of denatured spirit to be so transported has been paid by the applicant."

Thus, for the purposes of transport of molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit under the aforementioned Rules, the petitioners are required to pay transport fee to the excise authorities of the State Government in advance and a pass/permit is contemplated in that regard. It may be noted that insofar as captive users manufacturing potable liquor or other alcohol based products are concerned, their challenge is essentially to the Notification dated 12th July, 1999 by which the aforementioned Rules were amended and the proviso by which exemption was provided to them earlier, came to be deleted, which has the effect of requiring them to pay transport fee. Thus, in both cases viz. captive users and non-captive users, it is the levy of the transport fee which is the subject matter of challenge.

8. We have heard Mr. Sawant, learned Counsel for the petitioners and Mr. Kumbhkoni, learned Counsel for the petitioners in Writ Petition No.5467 of 2001. We have also heard Ms. Palshikar-Bhide, Counsel for the Respondent State Government and its Authorities.

9. Mr. Sawant, learned counsel for the petitioners, submitted that Rule 19 of the 1955 Rules, rule 5 of the 1951 Rules and rule 50 of the 1957 Rules imposing transport fee on transport of molasses and industrial alcohol/spirit is outside of the legislative competence of the State Government. He submitted that the State has no power to impose or charge fees or duty on industrial alcohol/spirit which is not for human consumption or which is not being used for potable purposes. He submitted that the Bombay Prohibition Act, 1949 itself recognizes that rectified spirit is unfit for human consumption as the same is of 95% purity which is highly toxic. Mr. Sawant submitted that the regulation for the manufacture of industrial alcohol/spirit is entirely different than regulating potable liquor as industrial alcohol/spirit is required to be regulated under the provisions of Industrial Development Regulation Act, 1951, whereas potable liquor is regulated under the provisions of the Bombay Prohibition Act, 1949. It is submitted by Mr. Sawant that the power of the State Legislature under Entry 8 of List 2 of Seventh Schedule to the Constitution ceases to be in existence in view of enactment of Industrial (Development &Regulation) Act, 1951 after its amendment since 1956 which contains the declaration that Alcohol Industry is one of the industry the control of which by Union is expedient in public interest. It is contended that the power of the State Government to legislate with reference to the matters enumerated in List 2 is subject to clauses (1) and (2) of Article 246 of the Constitution of India which confers exclusive powers upon the Parliament to make laws in respect of any matter enumerated in List 1 of the Seventh Schedule to the Constitution. The learned counsel further submitted that the domain of the State Legislature, if any, is thus restricted only to potable liquor which is fit for human consumption. Mr. Sawant submitted that the Bombay Prohibition Act, 1949 does not provide for levy of transport fee for transportation of industrial alcohol for captive use or non-captive use and, therefore, the State has no power to invoke rule exercising power under Section 143 of the Bombay Prohibition Act, 1949 and therefore the Rules seeking to impose transport fee have no statutory backing. He further contended that the State has no power to impose or charge the fees or duty on the industrial alcohol/spirit which is not fit for human consumption or which is not being used for potable purpose and outside the scope of State Legislature and hence the Rules to the extent they impose transport fee are ultravires and unconstitutional.

10. Mr. Sawant then submitted that even assuming that the State had power to impose or charge fees or duty on industrial alcohol, the State cannot arbitrarily and illegally recover charges either by way of transport fees or administrative fee without rendering any services. He pointed out that the State is already recovering supervision charges under section 58-A of the Bombay Prohibition Act, 1949, for the staff appointed for the purpose of supervision and, therefore, no further services are rendered justifying imposition of transport fee. Mr. Sawant then argued that the fee is required to be charged with reference to the cost of regulation by the excise authorities and there has to be an element of quid pro quo. He submitted that prior to Notification of 14th January, 1987, no transport fee was recovered for the use by manufacturers of Indian made foreign liquor and country liquor. However, after the Notification of 14th January, 1987 manufacturers of IMFL and country liquor were liable to pay transport fee. Again by Notification dated 22nd May, 1994 no transport fee was levied in respect of rectified spirit or extra neutral alcohol (ENA) or Silent Spirit, transported for consumption as raw material in manufacture of IMFL, Country Liquor or other alcohol based products or both, in the units belonging to the distillery i.e captive users. However, by Notification dated 12th July, 1999 the proviso granting exemption was again deleted and the position was as it stood prior to 14th January, 1987. He submitted that even the State was hesitant in levying transport fee inasmuch as no additional services were rendered by the excise authorities and that supervision charges were already being recovered for the services which were being rendered by the excise authorities.

11. Mr. Sawant submitted that insofar as captive use is concerned, the Division Bench of this Court vide its order dated 9th January, 2001 in the case of M/s. Vam Organic Chemicals Ltd. Vs. State of Maharashtra & Ors., in Writ Petition No.2275 of 2000 has held that since the transport of the spirit is through closed pipelines, there is no service rendered and, therefore, the State is not entitled to levy any charges towards the transportation and the Division Bench has set aside the imposition of transport fee. Mr. Sawant pointed out that the order of the Division Bench of this Court has been confirmed by the Apex Court in Appeal filed by the State Government being Civil Appeal No.7126 of 2001 vide order dated 13th March, 2008, which order was passed during the pendency of the above petitions. He therefore submitted that the case of petitioners who are captive users is completely covered by the aforesaid case of M/s. Vam Organic Chemicals Ltd. and therefore there was no question of levying transport fee in case of captive users.

12. Mr. Sawant, then submitted that even in the case of non-captive users, no additional services are being rendered by the excise authorities for the transport of the industrial alcohol, besides the services which were already being paid for by the petitioners by way of supervision charges as per the provisions of Section 58-A of the said Act. He submitted that even the transport is carried out under the strict supervision of the excise authorities/staff and the salary, dearness allowance, provident fund, house rent allowance and other perks of the staff of the excise authorities/staff supervising the transport also are paid by the distillery/manufactory owners in addition to the steep fees which are required to be paid for the various licences. Mr. Sawant therefore urged that the petitions be allowed and the imposition of transport fee be set aside.

13. In support of his contentions, Mr. Sawant has placed reliance on the following rulings :

(1) Synthetics & Chemicals Ltd., etc. Vs. State of U.P. & ors., AIR 1990 SC 1927.

(2) Bihar Distillery and Anr. Vs. Union of India & Ors., AIR 1997 SC 1208.

(3) State of U.P. & Ors. Vs. Vam Organic Chemicals Ltd., & Ors., AIR 2003 SC 4650.

(4) Gupta Modern Breweries Vs. State of J & K & Ors., (2007)6 SCC 317.

(5) Judgment of the Division Bench of this Court in Writ Petition No.2275 of 2000 (M/s. Vam Organic Chemicals Ltd. Vs. State of Maharashtra & Ors.) dated 9th January, 2001.

(6) Mohan Meakin Limited Vs. State of Himachal Pradesh & Ors., (2009)3 SCC 157.

(7) Amit Maru & Anr. Vs. State of Maharashtra & Anr., 2010(4) ALL MR 596.

14. Mr. Kumbhakoni, the learned counsel for the petitioners in Writ Petition No.5467 of 2001 pointed out that the petitioners whom he represents are captive users. He supported the arguments of Mr. Sawant and reiterated that the case of the petitioners whom he represents is squarely covered by the case of M/s. Vam Organic Chemicals Ltd. (supra). The other Counsel supported the arguments of Mr. Sawant.

15. Per contra Ms. Palshikar-Bhide, learned Counsel for the State submitted that the State Government is empowered to levy transport fee. She relied upon the rather lengthy 77-page counter affidavit filed on behalf of the respondents in W.P. No.2922 of 2001. She submitted that the affidavit sets out adequate data to establish that the State is rendering services approximately to the transport fee charges and that it is not necessary for the State to render a precise account of fee collected and the services rendered and that a broad co-relationship in that regard is enough. It is submitted that the exemption in the transport fee granted earlier to some of the captive users was withdrawn as it was found to be discriminatory and to bring parity, a decision was taken to withdraw the exemption.

16. Ms. Palshikar-Bhide also made the following submissions - that the services are rendered by the personnel of the Personal Staff Department also, other than the supervisory staff. The transactions under the licence are inspected by periodical visits and by surprise checks, which activity ensures that the provisions, rules, regulations and orders passed under the Act are complied with by the licensees and to ensure that there are no serious breaches. High ranked officers like the Commissioner, Joint or Deputy Commissioner, Superintendent or Deputy Superintendent pay surprise visits, periodical visits with audit parties and inspect and verify the stocks and tally them with entries in various registers, check transactions, check if the supervisory staff is attending to duty properly, yield/utilization is proper, correct fees are paid, whether supervisory staff has been misled by the licensee and to check connivance between the supervisory staff and the licensee. Records are maintained at the taluka, district and State level in respect of licences granted, renewed, suspended, cancelled or surrendered. Printing of necessary forms, registers, Government publications like Gazettes is done for which the employees of the State Excise Department are taking necessary action. In cases of accidents, the Inspector/Sub-Inspector of the State Excise of the area is required to visit the site and carry out an inquiry, take necessary photographs and obtain copies of police panchanama and other records and make a report and this exercise is done to ensure that the industrial alcohol/spirit is not disposed of illegally by the licensee or the driver and the staff keeps track of the transport upto the consignee. Samples are drawn to ascertain the correctness of the purity strength of alcohol, denaturant added, its percentage or sugar contents in molasses. The State Excise Officers have to keep strict vigilance on transport and export of molasses also to prevent theft of molasses. Besides the Excise Department, services are rendered by government personnel of different departments of the State Government as also by Collectors of Districts and Tahsildars. It is submitted that substantial part of the duties of the State Excise department is for regulation of activities in respect of industrial alcohol/spirit. Ms. Palshikar-Bhide, therefore submitted that the impugned fees are not excessive and that they meet the requirement of quid pro quo. She therefore, submitted that the petitions are required to be dismissed.

17. We have given our anxious considerations to the rival contentions of the parties and have perused the material on record and the rulings cited on behalf of the petitioners.

18. Insofar the petitioners who are captive users are concerned, there is hardly any element of transport inasmuch as the industrial alcohol/spirit is merely transferred from their distillery through closed and sealed pipes directly to their manufactory/chemical plant for manufacturing potable alcohol/chemical in the same premises/complex. In the case of M/s. Vam Organic Chemicals Ltd. (supra), a Division Bench of this Court by order dated 9th January, 2001 has, while dealing with the issue of transport fee levied in the case of denatured spirit, observed that the rectified spirit/industrial alcohol produced in the distillery is first denatured as per the method approved by the excise authorities and denatured alcohol which is unfit for human consumption can be used only for industrial purpose to produce chemicals such as acetic acid, acetic anhydride, vinyl acetate etc and is carried through closed and sealed pipes directly to its main chemical plants for manufacture of chemicals, which ensures that the spirit was manufactured in the distillery cannot be diverted at all. The Division Bench while allowing the petition and setting aside the imposition of transport fee, in paragraphs 12 and 13 of the judgment observed as under :

"12. In the light of the above decisions we find much substance in the submission of the learned counsel for the petitioner that the State Government has no legislative competence to regulate denatured spirit which is totally unfit for human consumption. In Bihar Distillery's case it is clearly laid down by the Supreme Court that the power of the States in case of such industries is only to see and ensure that the rectified spirit whether in the course of manufacture or after its manufacture is not diverted or mis-used for potable purpose. For this purpose the State is also entitled to place their staff in the distillery and levy reasonable regulatory fee to defray the cost of such staff. It is obvious that the power of the State is basically to take necessary steps against misuse of rectified spirit meant for industrial purpose. In the instant case we are concerned with the denatured spirit. Once the denatured alcohol becomes exclusively industrial alcohol since it cannot be used for obtaining country liquor or for manufacturing IMFLs. In the present case the rectified spirit distilled in the petitioner's distillery is denatured in accordance with the procedure prescribed by the State Government and denaturing is done under the supervision of the Excise officers in charge of factory and in the manner prescribed by the rules. However, once ethyl/rectified spirit which is proposed to be used for industrial purpose is denatured it cannot be used except for industrial purpose. Once denatured it goes out of the seisin of the State Legislature. But the State oversees the process of denaturing so that the quantity of rectified spirit is no longer available for obtaining or producing potable liquor. This process is followed in the petitioner's factory in accordance with the Bombay Rectified Spirit Rules under the supervision of excise staff of the State Government. However, once the rectified spirit/ethyl/industrial alcohol is converted into denatured spirit State has no power to regulate and to levy any regulatory fee. In our opinion Mr. Thorat is right in submitting that the State has no power to regulate industrial alcohol once it is converted into denatured spirit. However, we feel that it is not necessary to decide this issue finally as in our opinion the second submission of Mr. Thorat is sufficient to allow the present petition.

13. The second submission of Mr. Thorat is that the transport fee of 30 paise per litre bears no relation whatsoever to the expenses incurred if any by the State Government. It is undisputed position that the denatured spirit is manufactured in the distillery of the petitioner and it is carried through close and sealed pipes directly to its main chemical plant for manufacturing organic chemicals. It is seen from the affidavit in reply that even the State Government felt that no service was rendered to the captive units and therefore a decision was taken to exempt licensees who were using their own denatured spirit from payment of transport fees, and therefore by notification dated 22.3.1994 a proviso was inserted in rule 50 thereby granting exemption from payment of transport fee when the denatured spirit is transported for consumption as raw material in the manufacture of alcohol based products in the units belonging to the distilleries. There is absolutely no material to indicate that any service is rendered by the State Government in the transport of denatured spirit through the pipelines to the chemical plant of the petitioners. The only justification offered by the State Government for withdrawing this exemption is that those who did not have their own source of alcohol were discriminated because the captive users are in a better position to sell their products at lesser price than those alcohol based industries who purchased alcohol from manufacturers and therefore exemption was found to be discriminatory. We fail to understand as to how the State is in any way concerned whether petitioners are in position to sell their produce at a lesser price than the other manufacturers. It has been held by this Court in Smt. Vimal D. Kalani's case (supra) that the transport fee has nothing to do with the grant of privilege to the licensee to deal in denatured spirit nor the transport fee is a fee payable as a condition precedent for grant of licence and it is only an amount to be recovered from the licence holder to cover the expenditure incurred by the department for service rendered to the licence holder for transport of the denatured spirit. It is therefore obligatory on the part of the State Government to show that any service is rendered by the State Government in the of transport of denatured spirit from the distillery of the petitioner who has its own chemical plant and supply is made through pipe lines installed in the factory. In the circumstances, having regard to the fact that transport of denatured spirit is through the pipelines and in the total absence of any service rendered we are of the view that the State Government is not justified in charging transport fees under rule 50. In our opinion the decision of the State Government to delete the proviso to rule 50(2) in case of captive users under the impugned notification is patently arbitrary and is therefore liable to be quashed and set aside."

19. The aforesaid judgment of the Division Bench of this Court was carried in appeal by the State Government to the Hon'ble Supreme Court, being Civil Appeal No.7126 of 2001. The Hon'ble Supreme Court while dismissing the Appeal on 13-03-2008 passed the following order :

"Heard the learned counsel for the appellant at great length. We see no reason to interfere with the well merited judgment recorded by the High Court. The appeal being devoid of merit is accordingly dismissed."

20. It is not in dispute that in the case of petitioners herein who are captive users, the industrial alcohol/spirit is transferred through sealed and closed pipes from the distillery of the petitioners who are manufacturers, to their manufactory/chemical plant which is located in the same premises/complex. As extracted above, it has been held in the case of M/s. Vam Organic Chemical Ltd. by the Division Bench of this Court that there is absolutely no material to indicate that any service is rendered by the State Government in the transport of denatured spirit through the pipelines to the manufactory/chemical plant of the petitioners. The Division Bench further held that having regard to the fact that transport of denatured spirit is through the pipelines and in absence of any service rendered, the State Government was not justified in charging transport fees. The Division Bench however found that though the Counsel on behalf of the petitioner therein was right in submitting that the State has no power to regulate industrial alcohol once it is converted into denatured spirit, the Bench did not feel it necessary to finally decide the issue as the submission on the issue of absence of correlation between the services rendered by the State Government and the transport fee charged was sufficient to allow the petition.

21. The only distinction between the aforesaid case of M/s. Vam Organic Chemicals Ltd. and the case of the petitioners herein who are captive users, is that in the case of M/s. Vam Organic Chemicals Ltd., the Division Bench was only concerned with denatured spirit. However it is required to be noted that the finding of the Division Bench as regards the absence of any services rendered by the State Government would apply on all fours in case of all the petitioners herein who are captive users, whether the spirit was denatured spirit or rectified spirit or molasses or extra neutral alcohol or silent spirit, inasmuch as admittedly the State Government supervises the process and levies the transport fee in respect of all the said products including denatured spirit. This order of the Division Bench was affirmed by the Apex Court in Appeal. Thus it can be said that in respect of all captive users, the issue whether or not there was any nexus between the levy of transport fee by the State Government and the services rendered by it, is no more res integra. We therefore, accordingly hold that in respect of captive users, there is no quid pro quo between the services rendered by the State Government to the transport fee levied by State Government and that the imposition of transport fee on the petitioners who are such captive users as mentioned above, is unsustainable and would therefore have to be set aside and accordingly set aside.

22. Before we deal with the case of non-captive users [which did not fall for consideration in M/s. Vam Organic Chemical's case (supra)], we shall advert to the rulings cited on behalf of the petitioners.

23. In the case of Synthetics & Chemicals Ltd. Vs. State of U.P., (1990)1 SCC 109 = AIR 1990 SC 1927, a Seven-Judge Bench of the Hon'ble Supreme Court considered questions raised about the dichotomy and the scope and ambit of the entries in three Lists of the Seventh Schedule to the Constitution with regard to the subject of industrial alcohol and whether the power of levy in case of industrial alcohol was with the Union or State Legislature. The Hon'ble Supreme Court in paragraphs 62 and 63 of the judgment observed as follows :-

"62. We are of the opinion that we need not detain ourselves on the question whether the States have police power or not. We must accept the position that the States have the power to 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. The question is whether in the garb of regulations a legislation which is in pith and substance, as we look upon the instant legislation, fee or levy which has no connection with the cost or expenses administering the regulation, can be imposed purely as regulatory measure. Judged by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures. In this view of the matter we do not detain ourselves with examining the numerous American decisions to which our attention was drawn by learned counsel very elaborately and thoroughly.

63. We recognise power of the State to regulate though perhaps not as emanation of police power, but as an expression of the sovereign power of the State. But that power has its limitations....."

24. In paragraphs 82-86 and 88, the Hon'ble Supreme Court held as follows :-

"82. In that view of the matter, it appears to us that the relevant provisions of the U.P. Act, A.P. Act, Tamil Nadu Act, Bombay Prohibition Act, as mentioned hereinbefore, are unconstitutional insofar as these purport to levy a tax or charge imposts upon industrial alcohol, namely alcohol used and usable for industrial purposes.

83. Having regard to the principles of interpretation and the constitutional provisions, in the light of the language used and having considered the impost and the composition of industrial alcohol, and the legislative practice of this country, we are of the opinion that the impost in question cannot be justified as State imposts as these have been done. We have examined the different provisions. These are not merely regulatory. These are much more than that. These seek to levy imposition in their pith and substance not as incidental or as merely disincentives but as attempts to raise revenue for States purposes. There is no taxing provision permitting these in the lists in the field of industrial alcohol for the State to legislate.

84. Furthermore, in view of the occupation of the field by the IDR Act, it was not possible to levy this impost.

85. After the 1956 amendment to the IDR Act bringing alcohol industries (under fermentation industries) as Item 26 of the First Schedule to IDR Act the control of this industry has vested exclusively in the Union. Thereafter, licences to manufacture both potable and non-potable alcohol is vested in the Central Government. Distilleries are manufacturing alcohol under the central licences under IDR Act. No privilege for manufacture even if one existed, has been transferred to the distilleries by the State. The State cannot itself manufacture industrial alcohol without the permission of the Central Government. The States cannot claim to pass a right which they do not possess. Nor can the States claim exclusive right to produce and manufacture industrial alcohol which are manufactured under the grant of licence from the Central Government. Industrial alcohol cannot upon coming into existence under such grant be amenable to States, claim of exclusive possession of privilege. The State can neither rely on Entry 8 of List II nor Entry 33 of List III as a basis for such a claim. The State cannot claim that under Entry 33 of List III, it can regulate industrial alcohol as a product of the scheduled industry, because the Union, under Section 18-G of the IDR Act, has evinced clear intention to occupy the whole field. Even otherwise sections like Sections 24-A and 24-B of the U.P. Act do not constitute any regulation in respect of the industrial alcohol as product of the scheduled industry. On the contrary, these purport to deal with the so-called transfer of privilege regarding manufacturing and sale. This power, admittedly, has been exercised by the State purporting to act under Entry 8 of List II and not under Entry 33 of List III.

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.

88. On an analysis of the aforesaid decisions and practice, we are clearly of the opinion that in respect of industrial alcohol the States are not authorised to impose the impost they have purported to do. In that view of the matter, the contentions of the petitioners must succeed and such impositions and imposts must go as being invalid in law so far as industrial alcohol is concerned. We make it clear that this will not affect any impost so far as potable alcohol as commonly understood is concerned. It will also not affect any imposition of levy on industrial alcohol fee where there are circumstances to establish that there was quid pro quo for the fee sought to be imposed. This will not affect any regulating measure as such."

25. In the case of Bihar Distillery and Anr. Vs. Union of India & Ors., 1997(2) SCC 727 = AIR 1997 SC 1208, the Hon'ble Supreme Court considered the demarcation of control over industrial alcohol in the Union of India and States and held in paragraph 24 as follows :-

"24. We are of the respectful and considered opinion that the decision in Synthetics1 did not deal with the aspects which are arising for consideration herein and that it was mainly concerned with industrial alcohol, i.e., denatured rectified spirit. While holding that rectified spirit is industrial alcohol, it recognised at the same time that it can be utilised for obtaining country liquor (by diluting it) or for manufacturing IMFLs. When the decision says that rectified spirit with 95% alcohol content v/v is "toxic", what it meant was that if taken as it is, it is harmful and injurious to health. By saying "toxic" it did not mean that it cannot be utilised for potable purposes either by diluting it or by blending it with other items. The undeniable fact is that rectified spirit is both industrial alcohol as well as a liquor which can be converted into country liquor just by adding water. It is also the basic substance from which IMFLs are made. (Denatured rectified spirit, of course, is wholly and exclusively industrial alcohol.) This basic factual premise, which is not and cannot be denied by anyone before us, raises certain aspects for consideration herein which were not raised or considered in Synthetics. ................... We proceed to elaborate :

(1) So far as industries engaged in manufacturing rectified spirit meant exclusively for supply to industries (industries other than those engaged in obtaining or manufacture of potable liquors), whether after denaturing it or without denaturing it, are concerned, they shall be under the total and exclusive control of the Union and be governed by the IDR Act and the rules and regulations made thereunder. In other words, where the entire rectified spirit is supplied for such industrial purposes, or to the extent it is so supplied, as the case may be, the levy of excise duties and all other control including establishment of distillery shall be that of the Union. The power of the States in the case of such an industry is only to see and ensure that rectified spirit, whether in the course of its manufacture or after its manufacture, is not diverted or misused for potable purposes. They can make necessary regulations requiring the industry to submit periodical statements of raw material and the finished product (rectified spirit) and are entitled to verify their correctness. For this purpose, the States will also be entitled to post their staff in the distilleries and levy reasonable regulatory fees to defray the cost of such staff, as held by this Court in Shri. Bileshwar Khand Udyog Khedut Sahakari Mandali Ltd. Vs. State of Gujarat and Gujchem Distillers India Ltd. Vs. State of Gujarat.

(2) So far as industries engaged in the manufacture of rectified spirit exclusively for the purpose of obtaining or manufacturing potable liquors - or supplying the same to the State Government or its nominees for the said purpose - are 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. In other words, where the entire rectified spirit produced is supplied for potable purposes - or to the extent it is so supplied, as the case may be - the levy of excise duties and all other control shall be that of the States. According to the State Governments, most of the distilleries fall under this category.

(3) So far as industries engaged in the manufacture of rectified spirit, both for the purpose of (a) supplying it to industries (other than industries engaged in obtaining or manufacturing potable liquors/intoxicating liquors) and (b) for obtaining or manufacturing or supplying it to Governments/persons for obtaining or manufacturing potable liquors are concerned, the following is the position: The power to permit the establishment and regulation of the functioning of the distillery is concerned, it shall be the exclusive domain of the Union. But so far as the levy of excise duties is concerned, the duties on rectified spirit removed/cleared for supply to industries (other than industries engaged in obtaining or manufacturing potable liquors), shall be levied by the Union while the duties of excise on rectified spirit cleared/removed for the purposes of obtaining or manufacturing potable liquors shall be levied by the State Government concerned. The disposal, i.e., clearance and removal of rectified spirit in the case of such an industry shall be under the joint control of the Union and the State concerned to ensure evasion of excise duties on rectified spirit removed/cleared from the distillery. It is obvious that in respect of these industries too, the power of the States to take necessary steps to ensure against the mis-use or diversion of rectified spirit meant for industrial purposes (supply to industries other than those engaged in obtaining or manufacturing potable liquors) to potable purposes, both during and after the manufacture of rectified spirit, continues unaffected. Any rectified spirit supplied, diverted or utilised for potable purposes, i.e., for obtaining or manufacturing potable liquors shall be supplied to and/or utilised, as the case may be, in accordance with the State excise enactment concerned and the rules and regulations made thereunder. If the State is so advised, it is equally competent to prohibit the use, diversion or supply of rectified spirit for potable purposes.

(4) It is advisable - nay, necessary - that the Union Government makes necessary rules/regulations under the IDR Act directing that no rectified spirit shall be supplied to industries except after denaturing it save those few industries (other than those industries which are engaged in obtaining or manufacturing potable liquors) where denatured spirit cannot be used for manufacturing purposes.

(6) So far as rectified spirit meant for being supplied to or utilised for potable purposes is concerned, it shall be under the exclusive control of the States from the moment it is cleared/removed for that purpose from the distillery - apart from other powers referred to above.

(7) The power to permit the establishment of any industry engaged in the manufacture of potable liquors including IMFLs, beer, country liquor and other intoxicating drinks is exclusively vested in the States. The power to prohibit and/or regulate the manufacture, production, sale, transport or consumption of such intoxicating liquors is equally that of the States, as held in McDowel."

26. In the case of State of U.P. & Ors. Vs. Vam Organic Chemicals Ltd. & Ors., (2004)1 SCC 225 = AIR 2003 SC 4650, the Hon'ble Supreme Court while referring to Bihar Distillery's case (supra), observed in paragraphs 23-26 and 29 as follows :

"23. The principle was succinctly reiterated in State of U.P. Vs. Modi Distillery4 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)

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.

24. A somewhat contrary view was taken by a Bench of two Judges of this Court in Bihar Distillery Vs. Union of India. It was held that the decision in Synthetics1 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 i.e. denatured rectified spirit. A distinction was drawn between 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).

25. The decision in Bihar Distillery was doubted in Deccan Sugar and Abkari Co. Ltd. Vs. 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 larger Bench for reconsideration of the judgment in Bihar Distillery case.

26. The larger Bench7 followed Synthetics1 and Modi Distillery without expressly overruling the decision in Bihar Distillery5. 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.

29. 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 ?"

27. While considering the competency of the State Government to levy fee and the distinction between the fee and tax, the Hon'ble Supreme Court in paragraphs 43 to 45 held as follows :-

"43. Considering the various authorities cited, we are of the view that the State Government is competent to levy fee for the purpose of ensuring that industrial alcohol is not surreptitiously converted into potable alcohol so that the State is deprived of revenue on the sale of such potable alcohol and the public is protected from consuming such illicit liquor. But this power stops with the denaturation of the industrial alcohol. Denatured spirit has been held in Vam Organics to be outside the seisin of the State Legislature. Assuming that denatured spirit may by whatever process be renatured (a proposition which is seriously disputed by the respondents) and then converted into potable liquor, this would not give the State the power to regulate it. Even according to the demarcation of the fields of legislative competence as envisaged in Bihar Distillery industrial alcohol for industrial purposes falls within the exclusive control of the Union and according to Bihar Distillery "denatured rectified spirit, of course, is wholly and exclusively industrial alcohol". (SCC p.742, para 23).

44. Besides, the fee is required to be justified with reference to the cost of such regulation. The industry is already paying a fee under Rule 2 for such regulation. Indeed, the justification for levying the fee under Rule 3(a) is the identical justification given by the State for levying the fee under Rule 2. Presumably, a full complement of excise officers and staff are appointed by the State in the Excise Department to carry out their duties under the Act to oversee, control and keep duty on the various kinds of intoxicants under the Act. Having regard to the decision in Vam Organics-I2 we must also assume that apart from the normal strength, additional officers and staff were appointed to regulate the denaturation of the industrial alcohol. There is nothing to show that there has been any deployment of any additional staff to oversee the possibility of renaturation of the denatured spirit.

45. The question is (to borrow the language in Synthetics),whether in the garb of regulations a legislation which is in pith and substance, as we look upon the instant legislation, a fee or levy which has no connection with the cost or expenses administering the regulation, can be imposed purely as regulatory measure. Judged by the pith and substance of the impugned legislation, we are definitely of the opinion that these levies cannot be treated as part of regulatory measures. (SCC p.149, para 63)

The State has not produced any material to show that it was incurring any additional cost for any further regulation of denatured spirit. Any trace of a lingering doubt as to the propriety of the levy under Rule 3(a) must be taken to have been noted off effectively with the order passed by three Judges of this Court in the writ petition filed by Synthetics challenging the same levy as we have noted earlier. That order has resulted in granting Synthetics and Chemicals Ltd. relief from payment under Rule 3(a). The only distinction between the present respondents' cases and Synthetics was that the respondents chose to challenge the levy before the High Court. That could be no rational basis for denying the respondents who are otherwise identically situated, the same relief. (See Anil Kumar Neotia Vs. Union of India). In the absence of any such correlation the fee under Rule 3 is not a fee at all levied for the purpose of additional regulation or for any service rendered but is really a tax in the garb of a fee."

28. In case of Gupta Modern Breweries Vs. State of J. & K. & Ors., (2007)6 SCC 317 the Hon'ble Supreme Court considered the challenge to Rule 17 of Jammu & Kashmir Distillery Rules, 1946 under which charges on account of salary of excise department staff were to be recovered from management at 50% of total expenses. Rule 17 was challenged as being ultra vires Jammu & Kashmir Excise Act, 1901. Paragraphs 26, 27, 28, 31, 32, 33 and 34 of the said judgment read as follows :-

"26. The question as to whether the taxpayers or licence-holders would have to pay for the official staff of the State for supervising collection of the revenue, has been set at rest by the Constitution Bench of this Court in Indian Mica Micanite Industries Vs. State of Bihar. It is held in SCC at para 17 as under :

"The only services rendered by the Government to the appellant and to other similar licensees is that the Excise Department have to maintain an elaborate staff not only for the purposes of ensuring that denaturing is done properly by the manufacturer but also for the purpose of seeing that the subsequent possession of denatured spirit in the hands either of a wholesale dealer or retail seller or any other licensee or permit-holder is not misused by converting the denatured spirit into alcohol fit for human consumption and thereby evade payment of heavy duty. So far as the manufacturing process is concerned, the appellant or other similar licensees have nothing to do with it. They are only the purchasers of manufactured denatured spirit. Hence the cost of supervising the manufacturing process or any assistance rendered to the manufacturers cannot be recovered from the consumers like the appellant. Further under Rule 9 of the Board's rules, the actual cost of supervision of the manufacturing process by the Excise Department is required supervising the manufacturing process or any assistance rendered to the manufacturers cannot be recovered from the consumers like the appellant. Further under Rule 9 of the Boards rules, the actual cost of supervision of the manufacturing process by the Excise Department is required to be borne by the manufacturer. There cannot be a double levy in that regard. In the opinion of the High Court the subsequent transfer of denatured spirit and possession of the same in the hands of various persons such as wholesale dealer, retail dealer or other manufacturers also requires close and effective supervision because of the risk of the denatured spirit being converted into palatable liquor and thus evading heavy duty. Assuming this conclusion to be correct, by doing so, the State is rendering no service to the consumer. It is merely protecting its own rights. Further in this case, the State which was in a position to place material before the Court to show what services had been rendered by it to the appellant and other similar licensees, the costs or at any rate the probable costs that can be said to have been incurred for rendering those services and the amount realised as fees has failed to do so. On the side of the appellant, it is alleged that the State is collecting huge amount as fees and that it is rendering little or no service in return. The co-relationship between the services rendered and the fee levied is essentially a question of fact. Prima facie, the levy appears to be excessive even if the State can be said to be rendering some service to the licensees. The State ought to be in possession of the material from which the co-relationship between the levy and the services rendered can be established at least in a general way. But the State has not chosen to place those materials before the Court. Therefore the levy under the impugned rule cannot be justified." (emphasis supplied).

27. In CCE Vs. Chhata Sugar Co. Ltd., one of the issues was whether the State Government's administrative charges to collect a levy could be passed on to the person from whom the tax, fee or levy was collected. This Court categorically held that such an imposition would be a tax and not a fee and must be duly authorised since it is a tax (at para 14), it is held : (SCC p. 483)

"Hence, administrative charge under the U.P. Act is a tax and not a fee."

28. It is, thus, clear from the aforesaid decisions that imposition of administrative services (sic charges) is a tax and not a fee. Such imposition without backing of statutes is unreasonable and unfair.

Why it is tax and not fee

31. Under the constitutional scheme, taxes are distinct from fees. Excise is a form of tax. It is self-evident from various constitutional provisions :

(i) the concept of a Money Bill in Articles 110(2) and 199(2) clearly postulates that taxes should be voted on by Parliament. See Corpn. of Calcutta, SCR at p.483.

(ii) the taxes and excise in the Union List are to be found in List I, Entries 82-92-B; and

(iii) the taxes in the State List are to be found in List II, Entries 42-63;

(iv) excise is specifically dealt with in List I, Entry 84 and List II, Entry 51;

(v) List II, Entry 51 specifically deals with excise on alcohol;

(vi) fees are specifically dealt with in both these lists (List I, Entry 96 and List II, Entry 66) and are a distinct concept that has to be voted by Parliament.

Thus, taxes, excise and fees must be voted by Parliament.

32. In State of Punjab Vs. Devans Modern Breweries Ltd., SCC at para 25, K.T. Moopil Nair Vs. State of Kerala, SCR at paras 89 & 91, Ahmedabad Urban Development Authority Vs. Sharadkumar Jayantikumar Pasawalla, SCC at paras 6-7, Hindustan Times v. State of U.P., SCC at para 30 and Bimal Chandra Banerjee Vs. State of M.P., SCC at para 14, it has been held that a tax under Article 265 can only be imposed by way of legislation and it is impermissible to be imposed by way of bye-laws or rules.

Whether there is a quid pro quo between the fee charged and the service rendered

33. We have already noted that the plea of the respondents is that it was rendering service by deputing Excise staff not only for the purpose of ensuring that the denaturing of spirit is done properly by the manufacturer but also for the purpose of specifically seeing that the denatured spirit does not go out of the hands, either of the distillery owner or a retail seller or any licensee or permit-holder contrary to law. It is, therefore, clear that there was no correlationship between the expenses incurred by the Government and the fee sought to be raised under Rule 17. In other words, there is no quid pro quo between the fee charged and the services rendered. A Constitution Bench of this Court in Commr., Hindu Religious Endowments Vs. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt (SCR at pp.1040, 1041 & 1044 held that a fee must be for a quid pro quo :

"As the object of a tax is not to confer any special benefit upon any particular individual, there is, as it is said, no element of 'quid pro quo' between the taxpayer and the public authority..... Another feature of taxation is that as it is a part of the common burden, the quantum of imposition upon the taxpayer depends generally upon his capacity to pay.

Coming now to fees, a 'fee' is generally defined to be a charge for a special service rendered to individuals by some governmental agency. The amount of fee levied is supposed to be based on the expenses incurred by the Government in rendering the service, though in many cases the costs are arbitrarily assessed. (AIR p.295, paras 43-44)

... but in this case there is total absence of any correlation between the expenses incurred by the Government and the amount raised by contribution under the provision of Section 76 and in these circumstances the theory of a return or counter payment or 'quid pro quo' cannot have any possible application to this case.

In our opinion, therefore, the High Court was right in holding that the contribution levied under Section 76 is a tax and not a fee and consequently it was beyond the power of the State to enact this provision. (AIR p.296, para 49)." (emphasis supplied)

34. For the reasons aforestated we hold that:

(a) Rule 17 has no statutory backing and it is in excess of the Act.

(b) It is manifestly unjust and arbitrary.

(c) Provision of Rule 17 is clearly a tax and not a fee.

(d) Imposition of tax or fee on the citizens for the services that the State renders to itself and not the taxpayers is clearly impermissible, arbitrary and unjustifiable."

29. In the case of Mohan Meakin Limited Vs. State of Himachal Pradesh & Ors., (2009)3 SCC 157, the constitutional validity of increase in levy made by the State of Himachal Pradesh inter alia on import/transport of rectified spirit and/or potable alcohol was under challenge and after considering the various decisions of the Apex Court, the matter was ultimately remanded to the High Court.

30. In the case of Amit Maru Vs. State of Maharashtra, 2010(4) ALL MR 596, the Division Bench of this Court reiterated the position that a tax or fee can only be imposed/charged by a delegated authority if there is an express provision in the statute authorizing such charge/levy and that a fee is a payment made for some special benefit enjoyed by the payer and the payment is required to be proportional to such benefit.

31. From an analysis of the aforementioned decisions therefore, the following position can now be said to have been well settled - that the Union has exclusive power to legislate and impose taxes in respect of all non-potable alcohols viz : molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit, etc. and the State Government has exclusive power to legislate and impose taxes in respect of potable alcohol viz: Country Liquor, Indian Made Foreign Liquor (IMFL), etc. Insofar as the power of the State Government to regulate molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit is concerned, the following is the position - the State's power is limited to (i) the regulation of molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit etc. for the limited purpose of preventing its use as alcoholic liquor for human consumption, and (ii) the charging of fee based on quid pro quo for the services rendered.

32. We may now refer to some of the provisions of The Bombay Prohibition Act, 1949.

33. The preamble of the said Act states that the said Act was enacted interalia to amend and consolidate the law relating to the promotion and enforcement of and carrying into effect the policy of prohibition. Chapters III and V of the said Act deal with the various prohibitions imposed by the State Government. Chapters IV, IVA, IVB and VI deal with the control and regulation of various articles mentioned therein and Chapter V deals with offences and penalties.

34. Section 2(49) defines transport. It reads as under :

"2(49) "transport" means to move from one place to another within the State."

35. Section 49 deals with the exclusive privilege of the State Government. It reads as under :

"49. Exclusive privilege of Government to import, etc., intoxicants, etc., and fees levied include rent or considerations for grant of such privilege to person concerned - Notwithstanding anything contained in this Act, the State Government shall have the exclusive right or privilege of importing, exporting, transporting, manufacturing, bottling, selling, buying, possessing or using any intoxicant, hemp, or toddy, and whenever under this Act or any licence, permit, pass, thereunder any fees are levied and collected for any licence, permit, pass, authorization or other permission given to any person for any such purpose, such fees shall be deemed to include the rent or consideration for the grant of such right or privilege to that person by or on behalf of the State Government."

36. Section 105 of the said Act grants power to the State Government to impose excise duty on excisable articles referred to therein which includes alcoholic liquor for human consumption, whereas section 106 empowers the State Government to formulate the manner in which the excise duty is to be levied. Section 143 provides for the power of the State Government to make rules. Section 143(1) and (2) (b),(f) and (u) read as under :

"143. Power of State Government to make rules -

(1) The State Government may make rules for the purposes of carrying out the provisions of this Act or any other law for the time being in force relating to excise revenues.

(2) In particular and without prejudice to the generality of the foregoing provisions the State Government may make rules,-

(a) --

(b) regulating the import, export, transport, collection, sale, purchase, bottling, consumption, use or possession of any intoxicant, denatured spirituous preparation or hemp, mowhra flowers or molasses;

(f) regulating the grant, suspension or cancellation of licences, permits, passes or authorizations for the import, export, transport, collection, sale, purchase, possession, manufacture, bottling, consumption, use or cultivation of any of the above articles mentioned in clause (b) and for the matters specified in clause (e).

(u) prescribing the fees including rent or consideration payable in respect of any privilege, licence, permit, pass or authorization granted or issued under this Act." (emphasis supplied)

37. Considering sections 2(49), 49, and 143 extracted hereinabove, the parent Act i.e. The Bombay Prohibition Act, 1949, under which the Rules under challenge have been framed, clearly empowers the State Government to impose fee in relation to transport and to frame Rules in that regard. We are therefore unable to accept the submission made on behalf of the petitioners that the Rules imposing transport fee on molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit as a regulatory measure for the limited purpose of preventing its use as alcoholic liquor for human consumption has no statutory backing. The transport fee charged must however meet the requirement of quid pro quo to the services rendered by the State Government. Having said that however, we may hasten to add that we have not considered the aspect whether the transport fee charged by the State Government is in the nature or garb or guise of a duty, which would take it outside the seisin of the State legislature and therefore ultravires and unconstitutional, as this point was made only in the passing and as such there was no proper debate in that regard, and we need not express any definite opinion on this aspect and we keep this issue open. This however, need not detain us, inasmuch the last contention which has been urged on behalf of the petitioners would be sufficient and entitle the petitioners to succeed viz. - that there is no element of quid pro quo between the services rendered by the State Government to the transport fee charged even in case of petitioners who are non-captive users, as discussed hereinbelow.

38. The thrust of the arguments of Mr. Sawant, learned Counsel for the petitioners was that there was no co-relation between the services rendered by the State Government and the transport fee charged, even in the case of non-captive users. We have already noted that the entire transactions/processes in a distillery/manufactory/chemical plant is carried on under strict excise supervision. Here, reference may be made to section 58-A of The Bombay Prohibition Act, which provides for excise supervision over manufacture, etc.. The same reads as under :-

"58-A. Supervision over manufacture, etc.- The State Government may by general or special order direct the manufacture, import, export, transport, storage, sale, purchase, use, collection or cultivation of any intoxicant, denatured spirituous preparation, hemp, mhowra flowers, or molasses shall be under the supervision of such Prohibition and Excise or Police staff as it may deem proper to appoint, and that the cost of such staff shall be paid to the State Government by the person manufacturing, importing, exporting, transporting, storing, selling, purchasing, using, collecting or cultivating the intoxicant, denatured spirituous preparation, hemp, mhowra flowers or molasses :

Provided that, the State Government may exempt any class of persons or institutions from paying the whole or any part of the cost of such staff."

39. Under the Maharashtra Distillation of Spirit & Manufacture of Potable Liquor Rules, 1966 "Distillery Officer" is defined to mean a Prohibition and Excise Officer appointed for the purpose of supervising the working of a distillery and "Manufactory Officer" is defined to mean the Prohibition and Excise Officer appointed for the purpose of supervising the operations in a manufactory. The said officers as also other staff appointed are required to oversee and supervise the entire operations.

40. We may also refer to some of the licence conditions of the licences granted under some of the Rules which provide for excise supervision including transport thereof by the State Government and the recovery of costs for the same.

Licence condition 12 under Rule 17 of the Maharashtra Distillation of Spirit and Manufacture of Potable Liquor Rules, 1966, reads as under :

"(12) All transactions pertaining to the receipt, transport, storage of spirit and manufacture bottling and issues of potable liquor shall be under excise supervision. The Commissioner may appoint such staff as the manufactory for excise supervision as is considered necessary and the cost of such staff shall be paid to the State Government by the licensee annually in advance."

Licence condition 12 under Rule 6 of the Maharashtra Country Liquor Rules, 1973 reads as under :

"6.(12) All transactions pertaining to the receipt, transport and storage of spirit and country liquor and manufacture, bottling and issues of country liquor shall be under excise supervision. The Director shall, according to the direction made under Section 58-A of the Act by the State Government, station such staff at the manufactory for excise supervision as is considered necessary and the cost of such staff shall be paid to the State Government by the manufactory licensee quarterly in advance."

41. Thus, from the above, it is evident that the entire transactions in respect of industrial alcohol/spirit in the distillery/manufactory/plant, are under strict excise supervision and for that purpose the State Government stations such staff as necessary at the distillery/manufactory/chemical plant and is recovering supervision charges from the licensees in advance, as contemplated under the Bombay Prohibition Act, 1949 and as per requirement of the licence conditions. It is interesting to note that the owners of distillery and manufactory are not only required to pay the salary of the prohibition and excise staff supervising the entire transaction, but also dearness allowance, provident fund, house rent and other perks, in addition to the licence fee paid in respect of various licences.

42. Admittedly, even the costs of excise staff who accompany the tanker/vehicle en route transport, in which the molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit is being transported, is being recovered by the State Government. Thus at all three levels there is excise supervision i.e. (a) origin of consignment; (b) en route transport; and (c) destination, the cost of which is recovered by the State Government from the licensees.

43. As stated earlier, the transport fee is required to be justified with reference to the cost of regulation by the State Government. It was sought to be contended on behalf of the State Government that in addition to the services rendered by way of supervision, there are other services also rendered (as set out in paragraph 16 hereinabove). It is submitted that a precise account of fee collected and services rendered is not necessary and only a broad co-relation is enough. It is contended that the fees charged by the State Government as transport fee, meet the requirement of quid pro quo.

44. We have already noted in the earlier part of this judgment that in the case of M/s. Vam Organic Chemicals Limited (supra), the Division Bench of this Court has held that there is absolutely no material to indicate that any service is rendered by the State Government in the transport of denatured spirit through the closed and sealed pipelines to the chemical plant of the petitioners therein, which decision has been affirmed by the Apex Court. The petitioner in the aforesaid case of M/s. Vam Organic Chemicals Limited were captive users, inasmuch as the industrial alcohol/spirit was transferred through sealed and closed pipes from their distillery to their chemical plant in the same premises/complex. The services rendered by the State Government in the case of all captive users is thus restricted to the distillery/manufactory/chemical plant as there is no question of any 'transport' in the case of captive users and it is merely a 'transfer' in closed and sealed pipes of the industrial alcohol/spirit from the distillery to the manufactory/chemical plant in the same premises/complex.

45. The basic difference between the case of the present petitioners who are non-captive users and the case of the petitioner who was a captive user in the case of M/s. Vam Organic Chemicals Limited, is that in case of the present petitioners who are non-captive users, there is an 'additional' element of 'transport' (not transfer) for which services are being rendered even en route transportation of the industrial alcohol/spirit from the distillery/manufactory from where the industrial alcohol/spirit is purchased to the destination where industrial alcohol/spirit is delivered by deputing the excise staff in the tanker/vehicle to oversee the transportation so as to prevent the industrial alcohol/spirit from being diverted illegally for potable purposes as also to see that there is no evasion of excise duty on potable alcohol.

46. It is pertinent to note that the assertions made on behalf of the State Government in their Affidavit-in-Reply filed in the case of M/s. Vam Organic Chemical Ltd. (supra) (which is also annexed to the counter affidavit filed in the present W.P. No.2922 of 2001), that there were several other services rendered including administrative services, not only by the excise authorities, but also other officials of the State Government and that services rendered had a correlation with the transport fee charged was not accepted by the Division Bench of this Court. The Division Bench held that there was absolutely no material to indicate that any services rendered by the State Government in the case of the petitioner therein who was a captive user. In the present petitions also the same assertions have been made in the counter affidavit of the State Government that there were several other services rendered not only by the excise authorities but also other officials of the State Government and that the services rendered had a co-relation with the transport fee charged. We are afraid that once that argument has been rejected by the Division Bench of this Court in the case of M/s. Vam Organic Chemicals Ltd., which was affirmed by the Apex Court, it is really not open for the State Government to raise the same assertions again in the present petitions. It was incumbent on the State Government to point out what were the additional expenses in case of non-captive users, incurred by the State Government in connection with the services rendered en route transport when the molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit was being transported from the origin to the destination, which the State Government has not done. As stated earlier, it is an admitted position that en route transport also the State Government deploys excise staff who accompany the tanker/vehicle in which the molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit is being transported so as to ensure that the same is not diverted for potable purposes. It is also an admitted position that the State Government is also recovering supervision charges as contemplated under Section 58-A of the Bombay Prohibition Act, 1949, of such excise staff who accompany the tanker/vehicle so as to supervise the transport of the molasses/rectified spirit/extra neutral alcohol/silent spirit. Considering the above, we are unable to persuade ourselves to accept the contention on behalf of the State Government that over and above the supervision charges which includes the cost for the excise staff who accompany the tanker/vehicle en route transport, which the petitioners are already paying, any further expenses are being incurred by the State Government in that behalf. In any event no material in that behalf has been placed on record. Prima facie, we think this would in a sense amount to double levy of fee in respect of the same services rendered in connection with the transport. In the circumstances, therefore, we are of the view that, inasmuch as the State Government is already recovering supervision charges for the escorts comprising constabulary staff of the excise department en route transport of the molasses/rectified spirit/extra neutral alcohol/silent spirit/denatured spirit, we do not find any further and/or additional service being rendered by the State Government in connection with the transport of the said products, so as to justify the levy of transport fee on non-captive users which would meet the requirement of quid pro quo.

47. In light of the aforesaid discussion, in our view, the transport fee imposed by the State Government, even in the case of petitioners who are non-captive users, does not commensurate to the services rendered and the imposition of transport fee on the petitioners who are non-captive cannot be sustained and required to be set aside and accordingly set aside. It may be mentioned here that we have, in paragraph 21 hereinabove, already set aside the imposition of transport fee in case of petitioners who are captive users.

48. In the result, the petitions succeed. Rule made absolute in all the petitions in the aforesaid terms. No order as to costs.

49. Before we conclude however, certain directions are required to be given. It is noticed that in some of the petitions, there are interim orders passed by this Court as well as the Apex Court (in matters which were carried to the Apex Court at the interlocutory stage). The orders that are passed are to the effect that the petitioners in the said petitions are directed to pay to the State Government 50% of the transport fee and give an Undertaking that in case the petitioners fail, the petitioners would have to pay the balance 50% alongwith interest at the rate of 9% per annum to the State Government. Similarly, it was directed that if the said petitioners succeed in the petitions, the State Government would refund to the said petitioners 50% transport fee so collected alongwith interest at the rate of 9% per annum. In some petitions however, only an interim order is passed restraining the State Government from recovering any transport fee subject to an Undertaking by those petitioners that in the event the challenge to the levy of transport fee fails, they shall be liable to pay the same. There are also petitions where no interim order is obtained or passed.

50. Since the petitions have now been allowed, wherever the petitioners have paid the entire transport fee, or 50% of the transport fee to the State Government, the State Government is directed to refund the transport fee so recovered to the said petitioners from the date of the filing of the petition or the date of payments made, whichever is later, alongwith interest at the rate of 9% per annum till repayment within a period of 10 weeks from the date of the receipt of application for refund as stated hereinafter. This is however subject to the condition that in case where the petitioners have passed on burden of the transport fee to the consumer/s, they shall not be entitled to refund of the amount, as the same would amount to unjust enrichment. The application for refund, if any, by the petitioners who are entitled to the refund, shall be made to the Commissioner, State Excise, Mumbai within six weeks from today. The Commissioner State Excise, Mumbai or such officer nominated by him shall verify the fact that the applicant-petitioner has not passed on the transport fee charged to the consumer/s before the amount is refunded to the applicant-petitioner by the State Government as stated hereinabove. The prayer in few of the petitions for refund of transport fee paid prior to the filing of the petitions, shall stand rejected.

51. All the above petitions stand disposed of accordingly. The Civil Applications would not survive and also stand disposed of.

52. After pronouncement of the judgment, the Ld. Counsel for the State prayed that the operation of the order be stayed for a period of 10 weeks from today. It is accordingly ordered.

Ordered accordingly.