Molson Coors Cobra India Pvt. Ltd. v. Mr. Ravi Shankar Kaza

Judgment

5. ... ... Respondent/s ====================================================== Appearance : For the Petitioner/s : Mr. Satyabir Bharti, Advocate Ms. Sushmita Sharma, Advocate Ms. Kanupriya, Advocate Mr. Abhishek Anand, Advocate Mr. Vikas Kumar, SC 11 : For the Respondent/s ====================================================== CORAM: HONOURABLE MR. JUSTICE P. B. BAJANTHRI HONOURABLE MR. JUSTICE ARUN KUMAR JHA ORAL JUDGMENT (Per: HONOURABLE MR. JUSTICE P. B. BAJANTHRI) Date : 16-10-2023 In the instant writ petition, petitioner has prayed for the following relief(s):- (a) declaration that Rules 26, 27, 40 framed under Section 90 of the Bihar Excise Act, 1915 providing for a license for bottling in Form 20 prescribed under the Act is not applicable to the activity for manufacture of Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 beer and to the Petitioner's brewery in the State of Bihar; (b) restraining the Respondents to levy the bottling fee under Rule 112(2) of the Rules for bottling of Indian made beer on beer manufactured and sold by the Petitioner; (c) directing the Respondents to refund the bottling fees illegally recovered from the Petitioner under the garb of the powers conferred under Rule 112(2) of the Rules; (d) Declaring that the notification no. 1069 dated 3.9.2010 increasing the bottling fee is not applicable on bottling of beer; (e) declaration that the levy and collection of bottling fee from the Petitioner Company is illegal, unconstitutional, arbitrary and discriminatory; (f) without prejudice and in the alternative to hold that the levy of the bottling fee, if at all to be levied, ought to be levied on the basis of the alcohol content in the beer and ought to be Rs.2.97 per case and not Rs.23.40 per case; (g) To pass such other Order(s) as your Lordships may deem fit and proper in the facts and circumstances of the case.”

2. Petitioner no.1 is a company incorporated on

03.04.1997 under the provisions of Indian Companies Act, 1956 and he is engaged in the business of manufacturing and selling of Beer. The petitioner’s company had a wholly owned subsidiary company, namely, M/s Iceberg Industries Limited with its registered office at New Delhi. Iceberg was owning a Beer manufacturing plant i.e., a brewery, at District-Patna in the State of Bihar. Iceberg Industry merged with the petitioner’s company in the light of scheme of merger under Sections 391 and 394 of the Companies Act, 1956 as approved by the Delhi

Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 High Court vide order dated 06.08.2012. Thus, petitioner’s company is the owner of aforementioned brewery. The licenses issued by the Excise Department, Government of Bihar stood transferred in the name of the petitioner in respect of the said brewery. Petitioner no.2 is the Director of the petitioner’s company and had an interest in the assets and business of the petitioner’s company. In the brewery business the process of Beer production involves malting, milling, mashing except separation, hop addition and boiling, removal of hops of beer and precipitates, cooling and aeration, fermentation, suppression of yeast from young beer etc.

3. Learned counsel for the petitioners submitted that in the light of statutory provisions governing Distillery and Brewery, they are two classes of liquor segments. It is submitted on behalf of the petitioners that Section 38 of Bihar Excise Act, 1915 (for short the Act, 1915) stipulates fees for terms, conditions, and form of, duration of, licenses, permits and passes etc. Section 90 stipulates power of Board to make rules. Sub-section 7 of Section 90 of the Act, 1915 is relevant for the purpose of the present case as to whether there any requirement of Bottling license fee for breweries? Learned counsel further submitted that Rule 112 (1) and (2) are relevant for the purpose Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 of fee structure in respect of Distillery/ Foreign liquor and other fees.

4. It is submitted that while invoking Section 90, State formulated rules (untitled rules) on 29.04.1919. Rule 1(a) is relating to blending, (b) bottling and (d) compounding. These definitions are only in respect of Distillery/ Foreign liquor. It is further submitted that licensing and regulation of distillery would fall under Rule 3. Rule 25 relates to Distillery, Rule 26 relates to manufacture, Rule 27 relates to Distillery. Compounding and Blending of potable Foreign liquor and Bottling the same for the purpose of sale is heading under Rule

5. It is further submitted that licensing and regulation of Brewery is governed under Rule 72 to 93. In these provisions, there is no provision for Bottling license and Blending license. It is also pointed out that Rule 113(1) and (2) which are relevant for the purpose of the present case to contend that there is no provision for Bottling license fee. The aforementioned Rule 113(1) and (2) have been incorporated on 11.04.2004. From

29.04.1919, Rule 113 alone was occupying the field in respect of provision of Brewery for Beer.

6. Learned counsel for the petitioners submitted that Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 petitioner is in possession of Brewery license which was required to be obtained under Rule 72, bonded warehouse of Beer under Rule 90 (B) and Distributor license of Beer under Rule 90 (C). Reading of these provisions, there is no element of bottling fee, Compounding fee and Blending fee insofar as Brewery license holder is concerned.

7. Learned counsel for the petitioners further submitted that during pendency of the present petition, State Government amended in the form of substitution of Rule 113(2) on

28.10.2014. It is also challenged in the present petition by way of interlocutory application. It is further submitted that Act, 1915 read with the Rules certain forms have been prescribed for the purpose of obtaining various kinds of license on behalf of Brewery and Distillery (Foreign liquor/liquor). Form No. 18 is relating to Brewery license, Form No. 19 is relating to Compounding, Blending and Distillery, Form No. 19B-Bonded Warehouse Beer and Form No. 20 Bottling of liquor.

8. The overall submission on behalf of the petitioner is that there is no source of power insofar as demanding Bottling license fee and further if any levy on Bottling from time to time on behalf of the State Government on the owner of Brewery. It is specifically contended that under Section 38 or under Section Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 90 read with the Rules issued on 29.04.1919, statute does not prescribe any kind of Bottling license while paying fee and further levy of any fee on Bottling. Therefore, it has been prayed that writ petition may be allowed.

9. Per contra, learned counsel for the respondents resisted the aforementioned contentions and submitted that in the light of Annexure-A to the writ petition, communication dated

17.01.2004 among the Deputy Commissioner of Excise and Collector, Patna it is suffice to hold that petitioner had Bottling license and the fee towards bottling is being paid by petitioners, therefore, relief sought in the petition is liable to be rejected.

10. It is further contended that Section 90(i)(b) the Bottling of liquor for the purpose of sale read with Sub-sections 1, 3, 14 and 15 of Section 2 of Act, 1915 suffice that Foreign liquor includes beer. It is also pointed out that definition of Foreign liquor which was incorporated on 23.12.1974 in Bihar and Orissa Excise Act, 1915 Foreign liquor includes potable Beer. It is also submitted that Rule 72 to 93 read with Rule 40 Foreign liquor includes Beer so whatever the license is required for the purpose of Foreign liquor is equally applicable to Beer (Brewery). Learned State counsel vehemently contended that this Court has to draw inference that there is vacuum between Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 the Brewery license, manufacture of Beer and its distribution. In other words Bottling license words are missing in the statute. Therefore, State is insisting bottling license fee and ancillary fees under the heading of bottling license.

11. Heard learned counsels for the respective parties.

12. Before adverting to the case on merit, it is necessary to reproduce the following statutory provisions:- “Bihar Excise Act, 1915 CHAPTER 1

2. Definitions. - In this Act, unless there is anything repugnant in the subject or context,- (1) "Beer" includes ale, stout, porter and all other fermented liquor made from malt; (2) "Board" means the Board of Revenue; (3) "to bottle" means to transfer liquor from a cask or other vessel to a bottle or other receptacle for the purpose of sale, whether any process of rectification be employed or not; and includes re-bottling; (14) "Liquor" includes all liquids consisting of or containing alcohol, such as spirits of wine, spirit, wine, fermented tari, pachwai and bear, and also unfermented tari, and also any other substance which the State Government may, by notification, declare to be liquor for the purposes of this Act; (15) "manufacture" includes- (i) every process, whether natural or artificial, by which any intoxicant is produced or prepared (including the tapping of tari-producing trees and the drawing of tari from trees), (ii) redistillation, and (iii) every process for the rectification, flavouring, blending, or colouring of liquor, or for the reduction of Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 liquor for sale; [No. 470-F the 15th January, 1919 ---In exercise of the powers conferred by the provisions specified below of the Bihar and Orissa Excise Act, 1915 (Act II of 1915), hereinafter designated “the Act” the Lieutenant-Governor in Council is pleased –

1. to declare- 5 [Foreign Liquor – (a) Beer and spirit, wines and liquors which have been imported into India and were liable, on such importation, to duty under the Indian Tariff Act, 1934 or the Sea Customs Act,1878. (b) Beer which has been brewed in India, or imported into India in a condensed form and afterwards converted into potable beer and on which excise duty has been imposed at the rate fixed by the Provincial Government under section 27 of the Act, (c) Rectified spirit which has been made in India and on which excise duty has been imposed at the rate fixed by the Provincial Government under section 27 of the Act, (d) spirit which has been made in India and has been sophisticated or compounded so as to resemble in colour and flavour of whisky, brandy, gin or rum, (e) spirit which has been made in India from some special bases (such as malt or toddy) not recognized in Bihar as bases for country spirit, and on which excise duty has been imposed at the rate fixed by the Provincial Government under Section 27 of the Act, (f) wines and liquors which have been made in India and on which excise duty has been imposed at the rate fixed by the Provincial Government under section 27 of the Act, (g) Denatured spirit, and (h) Perfumed spirit and spirit used in drugs, medicines, or chemicals, whether manufactured in India or imported from foreign countries.] RULES FRAMED BY BOARD OF REVENUE U/S. 90 [No. 23-137-2 the 29th April, 1919. – In exercise of the Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 powers conferred by section 90 of the Bihar and Orissa Excise Act, 1915 (Act II of 1915), the Board make the following rules :- DEFINITION

1. (a) “Blending” means the mixture of spirits of wines of different strength or of different qualities. (b) “Bottling” means bottling as defined in section 2, sub-section (3) of the Bihar and Orissa Excise Act, 1915 (d) “Compounding” means the artificial preparation of foreign liquor by the addition to imported or locally- made spirit, of flavouring or recolouring matter, or both. Distillery Brewery Rules framed by Board of Revenue u/s 90 on 29th April, 2019 Rules framed by Board of Revenue u/s 90 on 29th April, 2019 Licensing Regulation Distilleries. Licensing and Regulation of Breweries.

3. Any person desiring to obtain a license to work a distillery in any place in Bihar and Orissa shall apply in writing to the Commissioner stating the following particulars:- (1) The name or names of the person or persons applying; if a firm, the name of every partner of the firm; and if a company, the registered name thereof. (2) The purpose for which the distillery is proposed to be opened, specifying in detail the nature of the business applicant desires to carry Premises and License specifying

72. (1) Every Brewer for sale, before begins to brew, must deliver to the Commissioner through the District Officer a description in writing, signed by himself, of all premises, rooms, places and vessels intended to be used in his business, purpose for which each is to be used, and the distinguishing mark on each. On the outside of the door of every room and place in which the business is carried on, and on some conspicuous part of each of the aforesaid vessels, here must be legibly painted in oil color the name of the vessel utensil, room or place according to the purpose for which it is intended Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 on therein. (3) The name of the place in which, the site on which and the buildings in which, the distillery is to be constructed or worked. (4) The number and full description of the stills, vats and other permanent apparatus which applicant wishes to work or set up, and the size and capacity of such stills; etc. (5) The date from which, in the event of a license being granted to him the applicant proposes to commence working the distillery. to be used. If more than one vessel is used for the same purpose, distinguished by a progressive number. each must (2) Before the license to brew is granted an Excise Officer authorized Commissioner will inspect the premises etc., compare the same with the particulars stated in the aforesaid written description and certify accordingly. The license will be granted by the Collector with sanction of Commissioner, description satisfactory and the applicant be considered a fit person to receive a license. (6) The amount of security which the applicant is ready to furnish for the due performance of the conditions on which a license may be granted to him.

73. Mash tons, under backs, wort receives, coppers and fermenting collecting and vessels must be so placed and fixed that the contents can be accurately gauged or measured. (7) Correct plan of the which he buildings intends to use or to construct for his distillery, and a plan showing the position of stills, vats and permanent apparatus therein, and a list of store- rooms, warehouses, etc., connected therewith.

11. Government shall not be held responsible for the destruction, loss or damage by fire, theft or any other cause whatsoever, occurring to any spirit stored in the distillery or in gauging, weighment or

74. (1) The name and number of each vessel must be legibly painted in oil color on some conspicuous part thereof, according to the purpose for which it is intended to be used. (2) The brewer must not alter the shape, position or capacity of any vessel without giving two days’ previous notice is writing to the Excise Officer. Brewing Book. The Excise Officer 75. authorized Commissioner will deliver to every brewer book in which the brewer must enter in the proper Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 proof. In case of fire or other accident officer in charge of a distillery immediately attend to open it at any hour by day or night. Distillers who 25. desire to manufacture foreign liquor for sale must take out separate vend licenses.

26. Manufacturers of foreign liquor must take separate compounding bottling licenses in accordance with the rules framed there for, it such operations are carried on. All

27. processes connected with bottling, flavoring, blending or coloring foreign liquor conducted in a separate building within the distillery enclosure. columns at least twenty-four hours before beginning to mash any malt, etc., or to dissolve any sugar, the day and hour of brewing with the date of making the entry, and at least two hours before the time for mashing or entered dissolving, he must enter separately the quantity of malt and unmalted corn, rice grits, flaked rice, maze grits, flaked maized and other similar preparations and of sugar to be used and the hour when all the worts will be drawn off the grains in the mash tun.

76. The brewers shall also enter in the same book the quantity and specific gravity before fermentation of the worts collected, the number and description of the vessel or vessels in which the worts were collected, and the date and hour when the entry is made. Such entry must be made within one hour after the collection has been completed.

77. The brewer must enter the true original gravity of the worts, and he must keep the book on the premises entered in the description referred to in rule 72; at all times accessible to the officer and ready for his inspection.

78. The brewing book is the property of the Government.

79. The brewer must not cancel, obliterate or alter any entry, or make an entry which is untrue in any particular. Mode of working

80. All worts shall be removed successively and Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 customary order of brewing to the under back coppers, coolers and collecting of fermenting vessels, and shall not removed from the last named vessels until an account shall have been taken by the officer, or until after the expiration of twelve hours from the time at which the worts are collected.

81. All the produce of a brewing must be collected in the collecting or fermenting vessels within twelve hours from the time when the wort shall have commenced running the collecting or fermenting vessel.

82. The total produce of a brewing shall be kept separate from the produce of anyother brewing for sixteen hours, unless an account of such produce has been taken by the officer.

83. No produce of any brewing must be mixed with that of any other brewing except in the store vats or casks, unless the brewer has given previous notice in writing in the brewing book and specifies in writing the quantity and gravity of the worts when mixed. Scale and Weights.

84. Every brewer must provide and maintain just scales and weights and render assistance to any inspecting officer in taking account. Wastage

85. An allowance of ten percent shall be made from the monthly Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 total of the charges on account of wastage. Allowance for Sour or Spoilt Beer.

86. Written application must be made to the Collector for an allowance for sour or spoilt beer. to enable

87. There must be satisfactory evidence Collector to decide whether the beer can be identified with its proper brewing subject to the following rules. If he is satisfied on this point he will sanction the destruction of the beer in an officer’s presence.

88. The brewer must sign a declaration that the beer was brewed by him and had never left his premises, and that no part of it consists of “bottoms” or “returns” from vendors or other customers.

89. Representative samples must be taken and sent to such laboratory Commissioner may decide upon. quantity,

90. The officer must state the means by which he checked the bulk, and after samples have been taken as aforesaid, he must witness the destruction of the beer and record a note of the fact in the brewing book.

91. On receipt of a satisfactory report from the laboratory, the brewer may be credited with the proper amount of duty. Materials. Patna High Court CWJC No.8623 of 2014 dt.16-10-2023

92. The Commissioner may prohibit the use of any material in the manufacture of beer which is, in his opinion, of a deleterious nature.

93. The Excise officer or any inspecting officer may take, without payment, purpose of analysis samples, of any beer or material used in the manufacture thereof. Compounding Blending of Potable Foreign Liquor and Bottling the same for the purpose of sale. Compounding Blending of Potable Foreign Liquor and Bottling the same for the purpose of sale.

34. No compounding or blending of foreign liquor is permitted except in premises duly licensed in this behalf by the Collector and except in the presence of an Excise officer deputed for the purpose.

35. Such license shall be granted only to persons holding a [distributor] license for the sale of foreign liquor. The fee for a license for compounding or blending, or for both, taken out for the same premises shall be [Rs. 30,000] per annum.

112. (1) The fee for a license to compound and blend foreign liquor shall be 4[Rs. 30,000 per annum, payable in advance.

113. Licenses to establish or work in breweries and for the sale of beer by wholesale from such breweries are subject to such fee as fixed by the Commissioner in each case. (Unamended Rules) 113 (1) The licence fee for establishment of a brewery for beer in the State shall be the same as the prevailing for distillery under rule 3A (e) of the said Rules. Rule 113(2) amended by notification dated 28.10.2014: The provision of “bottling license fee for Beer shall be the same as the ones prevailing for similar licenses for India made foreign liquor” is deleted and the bottling license fee for the Beer is substituted as Rs. 1.50 (One rupee fifty paise) per BL. Rule 112(2): the annual fee for a license to bottle foreign liquor for sale shall be at the rate of Rs.3/- (rupees three) per bulk litre, payable in advance. licence (2) The respective licence fees for Bonded Warehouse of beer, distributor licence of beer, bottling licence for beer, compounding and blending licence for beer shall Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 be the same as the ones prevailing for similar licences for India made foreign liquor.

40. Foreign liquor may not be bottled for sale except under a license to be granted on that behalf by the Collector. Such license shall be granted only to persons holding a [distributor] license for the sale of foreign liquor, on payment of an annual fee of [Rs.5000] [(1) The content of a quart bottle must not be less than 750 milliliters or more than 1000 milliliters, and that of a pint bottle must not be less than 300 milliliters, or more than 500 milliliters and that of a nip (half-paint) must not be less than 150 milliliters or more than 180 milliliters.] (2) The guaranteed fluid content of each bottle shall be clearly indicated in bold letters on the lable. [40B. No whisky, brandy and rum shall be bottled for sale at strength less than 25” U.P. and gin at strength less than 35° U.P. as indicated by the hydrometer. liquor shall [40C. The bottles to be used for the purpose of bottling foreign properly cleansed and washed first with a solution of potassium per managanate or hydrochloric acid and then with pure water. They shall finally be rinsed with a quantity of liquor to be bottled.

41. Bottles containing liquor compounded or blended in Indian for sale must bear labels specifying the nature of the liquor Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 contained therein, i.e., whether it is whisky, brandy, gin, rum, liquor or wine, the name of the district where it is bottled, the name of the bottler and the country of origin. labels specifying [41A. Bottles containing beer, manufactured outside India and imported into Bihar for sale must quantity and alcoholic content of beer contained therein, the country of origin, the name of the brewer, batch number registration number and the statutory warning that “Drinking liquor is injurious for health” printed in red ink. INSTRUCTIONS ISSUED BY THE BOARD OF REVENUE UNDER THE BIHAR AND ORISSA EXCISE ACT II OF 1915 BLENDING, BOTTLING AND COMPOUNDING. 180. The following rules apply:- (1) Definition - “Blending”, “bottling” and “compounding” are defined in rule I, (a), (b), (d) of the rules passed by the Board under section 90 of the Act. (2) Rules- Rules 34 to 53 of these rules relate to the blending, bottling and compounding of potable foreign liquor for the purposes of sale. (3) Fees – The fees prescribed are sated in rule 112. (4) Licenses – The licenses for compounding and blending is issued in Form 19 and for bottling in Form 20. following INSTRUCTIONS ISSUED BY THE BOARD OF REVENUE UNDER THE BIHAR AND ORISSA EXCISE ACT II OF 1915 The 177. instructions apply beer:- (1) Definition. - “Beer” is defined in section 2(1) of Act II of 1915, and is included in the definition of “foreign liquor” in paragraphs (a) and (b) of Order No I of Government notification no. 470 – F, dated 15th, January, 1919. (2) Licensing and regulation of breweries – licensing and The regulation of breweries for sale are governed by the Board’s rules 72 to 93 published with notification no. 23 – 137 – 2. Dated the 29th April, 1919. (3) Brewery License Fees – Fees for licenses to establish and work breweries are fixed by the Commissioner under rule 113 of the Board’s rules Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 issued in notification no. 23-137-2, dated the 29th April, 1919. (4) Brewery License – The license is issued in Form 18 and is also a license to sell beer wholesale from the licensed brewery.

13. The Form Nos. 18, 19, 19B and 20 are necessary to reproduce as under:- FORM No. 18. Licence to construct and work a Brewery No. District. Name of brewer.- Locality- Yearly Fee-Rs. Current from- to- Receipt the licence of which this is the counterfoil and a copy conditions applicable to all exercise and opium licences. the general The 19. Licensee. FORM No. 18 Licence to construct and work a brewery,- District Note.-Counterfoil of this to be signed by the licensee, Name of brewer--- and filed in the Collector’s Locality---- Office. No. of licence- I.- The condition of this licence is that the holder adhere to all provisions of the excise laws and of any rules which have been, or may from time to time be laid down by the Board of Revenue, and to the general conditions, prescribed for all Excise licences, here-to annexed, so far as they are applicable and that he pay a yearly fee of Rs….., or any amount that may be hereafter fixed in addition to duty on all beer manufactured at three annas per gallon. II.- That he makes no sale of any quantity less than four gallons or 24 quart bottles at a time. III.- That the brewer shall keep a brewing book in the prescribed form and also a daily account of sales and shall produce them for inspection on demand by any officer authorised by the Commissioner to inspect the brewery, and that any such officer shall have at all times during working hours free ingress to the brewery and warehouses or other places appertaining thereto. IV. That for all beer manufactured the Manager shall pay, on demand, the duty calculated by the Collector at the end of each month from the entries in the brewing book. N.B. - Infraction of any of the above conditions will subject the holder of this licence to forfeiture of the licence and to all or any of the penalities prescribed by law or rule. Collectorate of The 19 Collector FORM No. 19 FORM No. 19 Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 Licence for compounding and blending of Foreign Liquor. Counterfoil District- No. in Register No. Date of licence- Name of Licensee- Locality where operation are to be carried on- No. of licence for wholesale vend of foreign liquor held by licensee- Current from Amount of fee paid in advance- Rs. 30000 Received the licence of which this is the counterfoil and a copy of the general conditions applicable to all excise and opium licences. The 19 Licensee. Licence for compounding and blending of Foreign Liquor. Note.- The counterfoil of Number of licence in this licence is to be signed by Register No. the licencee and filed in the Name of licensee- Collector’s Office. Locality where operation are to be carried on-

1. Licence is hereby granted for a period of one year from…….. to….. holding licence no…….. for the [Distributor] vend of foreign liquor, for the privilege to compound or blend such liquor at 2. This license allows the licensee to compound or to blend or reduce to strengths prescribed by the Board of Revenue, duty-paid foreign liquor, whether imported * or non-duty-paid foreign liquor made in India, and to add thereto such colouring or flavouring matter as may be sanctioned by the Commissioner of Excise and in such proportion as the Commissioner may, on examination, direct.

3. The licensee shall be bound by the provisions of the Bihar and Orissa Excise Act, 1915 and by all rules framed thereunder, so far as these may concern him. [“4. The licensee shall pay in advance to Government a fee of Rs. 30, 000 (Thirty thousand) for the year’.] 5. This licence authorises the licensee to carry on operations compounding or blending only at the premises named herein. 6. Officers of the Excise service of a rank not below Sub- Inspector are authorised to enter in and remain upon the licenced premises so long as may be necessary for the proper execution of their duties and the licencee shall not obstruct any officer in the performance of these duties. 7. Only foreign liquor and the materials, if any, to be added thereto shall be kept on the premises, described hereunder, and the said premises shall be properly marked or numbered and the numbers or marks thereon shall be painted in oil-colours on some part of the door or other conspicuous place in each room 8. Every vessel containing any material to be added to spirit or wine shall be clearly marked in English characters with a true description of its contents. 9 The licensee shall enter in a stock-book the quantity, description and strength of any spirits received on the premises described in this licence, He shall also enter separately the quantities and description of colouring or flavouring material so received. This stock-book shall be accessible to the Excise officer at all hours and shall be kept for 12 months after it is taken out of use. 10. Any Officer of Excise not below the rank of Sub- Inspector shall have the right to take samples of any liquor or materials found on the premises described in this licence on payment of the current wholesale price of such samples. 11. When any operations of blending or compounding are to be carried on by the licensee on the premises licenced hereunder, he will give timely intimation to the Collector regarding the days and hours during which such operations will be carried on. 12. Infraction of any of the conditions above specified will render this licence liable to cancellation and will Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 entail the punishments provided therefor in the Bihar and Orissa Excise Act, 1915. Description of premises. Collector of FORM No. 19-B Licence to deposit or keep foreign liquor imported or transported under bond by manufacturers of foreign liquor having their manufacturing licences in the State of Bihar (x x x), in a warehouse established with the approval of the Excise Commissioner. Shri………..resident licence of…….Thana…….....District...… holding no…….. in the District…… State….. for the manufacture of foreign liquor, having obtained permission from the…….. for the sale of foreign liquor [through the licensed distributors] and permitted by Excise Commissioner to import or transport foreign liquor under bond is hereby authorised by the undersigned, Collector of. ... to deposit and keep foreign liquor without payment of duty in the warehouse at…….. which has been established with the approval of the Excise Commissioner for the storage of foreign liquor from…….. to the 31st March, 19. It is required of the holder of this license as a condition on its remaining in force that he shall keep or deposit foreign liquor/Bear of his own manufactory licensed in Excise forms No. 19 and 20 (for compounding, blending and bottling of IMFL/Beer) in the State 4[xxx] and he shall duly and faithfully perform and abide by the following conditions and by the provisions of the Bihar Excise Act II of 1915 as subsequently amended from time to time and all notifications issued and rules made, thereunder, as they are applicable to this license:-

1. That before depositing or indenting for any foreign liquor to be deposited or kept under this license, he shall execute a bond for such amount as may be fixed by the Commissioner of Excise in favour of the Collector of........ for payment of duty imposed by the Government notification in force at the time on all liquor deposited and kept in the warehouse and also for the due fulfilment of the condition of the license.

2. That he shall comply with all the rules Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 relating to the export, import or transport of F.L./Beer under bond, as the case may be.

3. That he shall give to the Collector seven day's clear notice of the probable date of arrival and the approximate quantity in bulk litres of each consignment of liquor imported or transported under bond for deposit in the said warehouse : 5“[परन्ततु यह ककि कबिहहार रहाज्य किक अन्तरर्गत उपभभोरहारर्ग आशकयत भहारत कनिकरर्गत कविदकशशी शरहाबि किहा आयहात यहा पकरविहनि बिबद किक अधशीनि निहहीं ककियहा जहायकरहा और विवसहा आयहात। पकरविहनि कवितरकि अनितुज्ञकपत धहारशी दहारहा लकखहा-जभोखहा कदयक जहानिक विहालक किर किक पपूविर्ग भतुरतहानि पर सक्षर पहाकधकिहारशी दहारहा हशी अनितुज्ञहात ककियहा जहायकरहा।]” 4. (a) That he shall attend either personally or by his duly authorised agent at the time of arrival of the liquor at the warehouse and that he shall remain in attendance until it has been gauged and stored. (b) That liquor shall be stored in presence of an Excise officer not below the rank of an Excise Sub- Inspector. 5. That he shall at all times keep in good condition the place where foreign liquor/beer is stored by him and that he shall provide all the Manual labour and appliances necessary for handling the vessels for gauging the foreign liquor/ Beer receipt and at the time of issue. 6. That he shall pay rent for the storage of foreign liquor/ Beer if it has been stored in any Government building at such rate as may be fixed by the Public Works Department authorities and shall provide the warehouse officer with either suitable rent- free quarters or shall pay rent fixed by the Collector. 7 (a) That he shall pay duty at the rate imposed under Government notification in force at that time upon all liquor issued from the warehouse otherwise than under bond before issue. (b) That he shall pay duty upon all wastages at the rate imposed under Government notification in force at that time. 8. That he shall maintain necessary registers and get all issues be made in presence of an Excise officer.

9. That he shall provide the store room with two locks the keys of one of which shall remain with him Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 and keys of the other lock shall remain with the Excise officer in-charge of the warehouse.

10. That he shall not compound, blend, reduce or bottle any foreign liquor without taking out a separate licence or licences authorising him to perform such operations.

11. (a) That he shall supply foreign liquor/Beer to the licensed dealers only holding licences for [such districts where their licensed warehouses are situated, for distribution after payment of duty on India made foreign liquor] and to such persons as may be authorised in this connection by the Excise Commissioner or any other officer duly empowered by him. (b) That he shall not issue any liquor except on a duty paid pass authorised by the Excise Superintendent, Assistant Commissioner of the District and to be issued by the officer-in-charge of the warehouse, one copy of which shall be sent to the Excise Superintendent/Assistant Commissioner of the issuing district and other to the Excise Superintendent/ Assistant Commissioner of the district to which the consignment is sent-apply so far as they are applicable. 12, That the Government of Bihar shall not be responsible for the destruction, loss or damage by fire, theft or any other cause whatsoever to spirit, foreign liquor/Beer stored in the warehouse. In case of fire or other accident the officer in charge of a warehouse shall immediately attend to open it at any hour of the day or night. N.B.- In-fraction of any of the above conditions or of the general conditions applicable to Excise and Opium Vend licenses will subject the holder of this license to forfeiture of the license and to all or any of the penalties prescribed by law or rule. Collector of - COUNTERPART AGREEMENT. I,……….the above named licensee for myself and my heirs, legal representative and assignees, hereby agree to and bind myself to perform and observe all the terms and conditions herein before written and expressed. Dated……….. Signature…………... FORM No. 20 FORM No. 20 Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 Licence for bottling Foreign Liquor. of potable Licence for bottling of potable Foreign Liquor. Counterfoil District- No. in Register No. Date of licence- Name of Licensee- Locality where operation are to be carried on- No. of licence for wholesale vend of foreign liquor held by licensee- Current from Amount of fee paid in advance- Rs. 5000 Received the licence of which this is the counterfoil and a copy of the general conditions applicable to all excise and opium licences. The 19 Licensee. The Note.- counterfoil Number of licence is to be signed by licensee and filed in the Collector’s Office Number of licence in Register No.---- Name of Licensee---- Locality where operations are to be carried on---- Licence is hereby granted for a period of one year from….. to…... holding licence no……. for the [distribution] of foreign liquor for the privilege of bottling such liquor for sale at

1. The licensee shall be bound by the provisions of the Bihar and Orissa Excise Act, 1915, and by all rules framed thereunder, so far as they concern him 2[“2. The licensee shall pay in advance to Government a fee of Rs. 5000 (Five thousand) for the year.”]

3. Officers of the Excise service of a rank not below Sub Inspector are authorised to enter in and remain upon the licenced premises so long as may be necessary for the proper execution of their duties and the licensee shall not obstruct any officer in the performance of these duties. 4. This licence authorises the licensee to carry on the business of bottling only at the premises named therein.

5. Every bottle or other receptacle containing foreign liquor blended or compounded in India and filled on the premises shall bear a label correctly and trully specifying:- (1) the country of origin of the principal constituent of such liquor; (2) the nature of the contents, that is, whether whisky, brandy, gin, rum, liquor or wine; (3) the name of the district where it is filled; (4) the name of bottler. 6 Every bottle or other receptacle filled on the premises with liquor imported in bulk from foreign countries shall bear a label correctly and truly specifying- (1) the country of origin of the liquor; (2) description of liquor; (3) the fact that the botting was done in India; (4) the name of the bottler; 6 A. (i) The countent of a quart bottle must not be less than 22 ounces or more than 26 2/3 ounces and that of a pint bottle must not be less 11 ounces or more than 13 1/3 ounces. (ii) The guaranteed fluid content of each bottle shall be clearly indicated in bold letters on the label. 7. When any operations of bottling are to be Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 carried on by the licensee on the premises licenced hereunder, he will give timely intimation to the Collector regarding the days and hours during which such operations will be carried on. 8. The Infraction of any of the conditions above specified will render this licence liable to cancellation and will entail punishments provided therefor in the Bihar and Orissa Excise Act, 1915. The 19 Collector of

14. Sections 38 and 90 read with Rules 112 and 113 of the Bihar Excise Act which are relevant for the purpose of the present case. They are as under:- “38. Fees for, terms, conditions, and form of, and duration of, licenses permits & passes (1) Every license, permit or pass granted under this Act: (a) shall be granted: (i) on payment of such fees (if any), and (ii) subject to such restrictions and on such conditions, and (b) shall be in such form and contain such particulars, as the Board may direct. (2) Every license, permit or pass under this Act shall be granted for such period (if any) as may be prescribed by rule made by the State Government under Sec. 89, Clause (e).” 90. Power of the Board to make rules The Board may make rules;- (1) For regulating the manufacture, supply or storage of any intoxicant, and in particular, and without prejudice to the generality of this provision, may make rules for regulating – (a) the establishment, inspection, supervision, management and control of any place for the manufacture, supply or storage of any intoxicant, and the provision for maintenance of fittings, implements and apparatus therein; (b) the bottling of the hemp plant; (c) the cultivation of the hemp plant; (d) the Collection of portions of the hemp plant from which intoxicating drugs can be manufactured or produced, and the manufacture or production of intoxicating drugs there from; Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 (e) for tapping of tari – producing trees and the drawing of tari from trees; (f) the marking of tari-producing trees in areas notified under Section 14, Sub-section (1), and the maintenance of such marks. (2) for fixing the strength, price or quantity in excess of or below which any intoxicant shall not be supplied or sold, and the quantity in excess of which denatured spirit shall not be possessed, and for prescribing a standard of quality for any intoxicant (3) For declaring how spirit manufactured in India shall be denatured; (4) for causing spirit so manufactured to be denatured through the agency or under the supervision of Government officers; (5) for ascertaining whether any spirit so manufactured has been denatured. (6) For regulating the deposit of any intoxicant in a warehouse, established, authorised or continued under this Act, and the removal of any intoxicant from any such warehouse or from any distillery or brewery; (7) for prescribing the scale of fees or the manner of fixing the fees payable in respect of any licence, permit or pass granted under this Act, or in respect of the storing of any intoxicant (8) for regulating the time, place and manner of payment of such fees; (9) for prescribing the restrictions under which or the conditions on which any licence, permit or pass may be granted, and in particular, and without prejudice to the generality of this provision, may make rules for- (i) Prohibiting the admixture with any intoxicant of any article deemed to be noxious or objectionable. (ii) regulating or prohibiting the reduction of liquor by a licensed manufacturer or licensed vendor from a higher to a lower strength. (iii) Prescribing the nature and regulating the arrangement of the premises in which any intoxicant may be sold, and prescribing the notice to be exposed at such premises. (iv) Prohibiting or regulating the employment by the licences of any person or class of persons to assist him in his business. (v) Prohibiting the sale of any intoxicant except for cash. (vi) Prescribing the days and hours during which any licensed premises may or may not be kept open, and providing for closing of such premises on special Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 occasions. (vii) Prescribing the accounts to be maintained and the returns to be submitted by the licensees, and (viii) regulating the transfer of licenses (10) For prescribing the particulars to be contained in licences, permits or passes granted under this Act. (11) for the payment of compensation to licensees whose premises are closed under Section 26 or under any rule made under sub-Clause (vi) of clause (a) of this Section; (12) for prescribing the time, place and manner of levying duty on intoxicants; (13) For providing for the destruction or other disposal of any intoxicant deemed to be unfit for use; and (14) For regulating the disposal of things confiscated under this Act. Explanation - Fees may be prescribed under Clause (7) of this Section at different rates for different classes of exclusive privileges, licences, permits, passes or storage, and for different areas.” 112. (1) The fee for a licence to compound and blend foreign liquor shall be 2[Rs. 30,000 per annum, payable in advance. (2) The fee for a licence to bottle foreign liquor for sale shall be 1[Rs. 5000/- per annum, payable in advance. 113. Licenses to establish or work in breweries and for the sale of beer by wholesale from such breweries are subject to such fee as fixed by the Commissioner in each case.”

15. In this backdrop, learned counsel for the petitioner contended that there is no iota of material in the Statute Book to insist for Bottling license insofar as breweries are concerned and further for any ancillary fees pertaining to the Bottling license. It is submitted that in the absence of any statutory provision showing requirement of Bottling license to be obtained by the breweries, Respondents-State insisting to obtain Bottling license is arbitrary. Then next issue of demanding any ancillary Bottling fees under the heading of Bottling license is redundant. It is Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 further submitted that Form Nos. 18, 19, 19B and 20 are distinguishable to each other. In fact Form No. 18 is only form for the purpose of Brewery license and Form No. 19B is in relation to Bonded Warehouse. So far as Form Nos. 19 and 20 are concerned, they are in respect of Compounding, Blending and Distillery and Bottling of liquor. It is submitted that one of the forms for license of the Bottling of potable Foreign liquor/Beer as referred in Annexure-1 is contrary to Form No. 20 in the Statute Book. Annexure-1 form is not tallying with the form in the Statute Book. In the statute, Form No. 20 does not stipulate license for Beer and it is in respect of only liquor. Therefore, the petitioner has made out a prima facie case.

16. On the other hand, learned counsel for the State respondents has taken us through various provisions of Act, 1915 read with Rules 72 to 93, Rule 40 and certain instructions in the appendix 14 para 177 (1) to (7) and 180 (1) to (4). The State counsel could not cut the eyes of this Court to contend that there is provision of Bottling license fee and levy of ancillary Bottling fees under the Bottling license. On the other hand, the contention of the State is to gather with reference to various provisions read with the fact that the petitioner is in the Brewery business and in between manufacture, Bonded Patna High Court CWJC No.8623 of 2014 dt.16-10-2023 Warehouse and distribution one has to draw inference that Bottling license fee is required to be obtained by Brewery and consequently ancillary Bottling fees were required to be levied on the Brewery like petitioner. The above exercise cannot be undertaken by this Court. In other words, Court cannot suggest or add words in the Statute. It is the duty of the concerned State to frame statute.

17. The relief sought in the present petition by the petitioner which has been quoted supra is not mandated for the reasons that question for consideration in the present lis is whether is he entitled to obtain bottling license for the purpose of brewery or not? Scanning of Act, 1915, Rules issued on

29.04.1919 read with various instructions issued from time to time on behalf of the State to its authorities, we have not come across any provision insofar as requirement of obtaining bottling license on behalf of Brewer.

18. In the light of these facts and circumstances, the petitioner-Brewer is not required to obtain Bottling license and as a consequence thereof, the State authorities cannot insist upon obtaining Bottling license and levy and demand of ancillary Bottling fees under the heading of Bottling license to Brewer. Patna High Court CWJC No.8623 of 2014 dt.16-10-2023

19. Hence, the petitioner is entitled to refund of Bottling fees and other ancillary Bottling fees in connection with Bottling license. If the respondents have collected such fees, the same shall be refunded to the petitioner within a period of four months from the date of receipt of a copy of this order.

20. Writ petition stands allowed. (P. B. Bajanthri, J) ( Arun Kumar Jha, J) Balmukund/- DKS/- AFR/NAFR CAV DATE Uploading Date Transmission Date NAFR NA 31.10.2023 NA