BharatTaxGST

Nagarjuna Herbal Concentrates Limited vs. State Of Kerala

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WP(C)/4752/2019HC KeralaGSTCNR KLHC01012497201913 November 2019Bench: HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE7 pages
For Petitioner: SRI.S.ANANTHAKRISHNAN, SRI.N.K.SUBRAMANIANFor Respondent: SRI.K.M.ARJUN, SMT.ROSIN JOSEPH

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Cause title — parties, addresses and appearances
IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941 WP(C).No.4752 OF 2019(T) PETITIONER: NAGARJUNA HERBAL CONCENTRATES LTD., ALAKOD,THODUPUZHA, REP.BY SRI. BINU JOSE, ASST. MANAGER LEGAL BY ADVS. SRI.S.ANANTHAKRISHNAN SRI.N.K.SUBRAMANIAN RESPONDENTS: 1 STATE OF KERALA DEPARTMENT OF EXCISE,REP.BY ADDL. CHIEF SECRETARY EXCISE DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001. 2 THE EXCISE COMMISSIONER COMMISSIONERATE OF EXCISE, EXCISE HEAD QUARTERS, NANDAVANAM, VIKASBHAVAN P.O., THIRUVANANTHAPURAM-695 033. 3 THE DEPUTY EXCISE COMMISSIONER, EXCISE DIVISIONAL OFFICE,THODUPUZHA-685 585. 4 THE CIRCLE INSPECTOR OF EXCISE EXCISE OFFICE,THODUPUZHA-685 585. 5 EXCISE RANGE INSEPCTOR, EXCISE OFFICE, THODUPUZHA-685 585. BY SRI.K.P HARISHA, SENIOR GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2019, ALONG WITH WP(C).30175/2019(V), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) Nos.4752 & 30175/2019 2 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE WEDNESDAY, THE 13TH DAY OF NOVEMBER 2019 / 22ND KARTHIKA, 1941 WP(C).No.30175 OF 2019(V) PETITIONER: ABDUL RAHEEM V. AGED 50 YEARS S/O.MUHAMMED, MANAGING DIRECTOR, M/S.VALLANCHIRA AYURVEDA PVT. LTD., DOOR NO.S XXIII/61-(A), (B), (C) AND XXIII/61,62, MANJERY MUNICIPALITY, ERANAD TALUK, MALAPPURAM DISTRICT, RESIDING AT VALLANCHIRA HOUSE, MANJERI COLLEGE P.O., MALAPPURAM DISTRICT. BY ADVS. SRI.K.M.ARJUN SMT.ROSIN JOSEPH RESPONDENTS: 1 STATE OF KERALA DEPARTMENT OF EXCISE, REP. BY ADDL. CHIEF SECRETARY, EXCISE DEPARTMENT, SECRETARIAT, TRIVANDRUM-695001. 2 THE EXCISE COMMISSIONER, COMMISSIONERATE OF EXCISE, EXCISE HEADQUARTERS, NANDAVANAM, VIKASBHAVAN P.O., THIRUVANANTHAPURAM-695033. 3 THE DEPUTY COMMISSIONER OF EXCISE, EXCISE DIVISION, B2 BLOCK, CIVIL STATION, MALAPPURAM-676505. 4 THE CIRCLE INSPECTOR OF EXCISE, MANJERI, MALAPPURAM -676121. 5 EXCISE RANGE INSPECTOR, MANJERI, MALAPPURAM -676121. OTHER PRESENT: SRI. K P HARISH, SENIOR GOVT. PLEADER THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13.11.2019, ALONG WITH WP(C).4752/2019(T), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) Nos.4752 & 30175/2019 3 JUDGMENT Dated this the 13th day of November 2019 These writ petitions are related to renewal of application for SP VI licence under the Kerala Spirituous Preparations (Control) Rules, 1969. These SP VI licence were issued taking note of the L2 licence issued under the Medicinal and Toilet Preparations (Excise Duty) Act, 1955. The L2 licence is no longer in existence as the Medicinal and Toilet Preparations (Excise Duty) Act, 1955 was repealed by the Central Goods and Services Tax Act, 2017. The applications are made online. The software appears to have been made in such a way to enable the applicant to renew only if such applicant holds L2 licence. Taking note of the same, this Court, in W.P.(C) No.4752 of 2019, passed the

following interim order: “On 02.04.2019, during the course of arguments, the learned counsel for the petitioner pointed out that the petitioner is not in a position to submit online application for renewal of SP- VI licence, since he is not holding L2 licence. The learned Government Pleader sought time to get instructions. Today, when the case is taken up for consideration, the learned Government Pleader would submit that, instead of L2 licence, by upholding Ext.P3 drug licence, the petitioner can

W.P.(C) Nos.4752 & 30175/2019 4 make online application for renewal SP-VI licence. The said submission is recorded....”.

2.

The petitioners are holders of drug licence. In the light of the fact that the Medicinal and Toilet Preparations (Excise Duty) Act, 1955 has been repealed, it is imperative that no licence issued under the aforesaid Act be insisted for renewal of SP-VI or SP-VII licence under the Kerala Spirituous Preparations (Control) Rules, 1969. 3. Under the Kerala Spirituous Preparations (Control) Rules, 1969 (Rule 11), it is stipulated as follows:

“11. Licences for sale.- (1) Licences for the sale of spirituous preparations shall be of the following descriptions namely:- (a) Wholesale licence.-Licence in Form SP VI to sell in wholesale of any spirituous preparation shall be issued- (i) for sale of allopathic medicinal preparations only to those holding licences in Forms 20B and 21B under the Drugs Rules, 1945; (ii)for sale of any Homeopathic medicinal preparations or any preparation coming under the indigenous system of medicine to a registered medicinal practitioner or to those holding licence in Form L2 under the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956, or a licence under the Drugs and Cosmetics Act, 1940;....”

W.P.(C) Nos.4752 & 30175/2019 5

4.

It is clear from the above provision that either the licence issued under the Medicinal and Toilet Preparations (Excise Duties) Rules, 1956 or the licence issued under the Drugs and Cosmetics Act, 1940 can be insisted for licence for sale of spirituous preparations.

5.

That be the case, one of such licences would be sufficient for the purpose of licence under the aforesaid Rules for wholesale and retail. Accordingly, the respondents are directed to accept the applications online without insisting for licence as referable under the Medicinal and Toilet Preparations (Excise Duty) Act, 1955. If it is not possible to accept the applications online, it is open for the respondents to insist the applicant to apply on physical mode as well. Till the applications are considered, no coercive steps shall be taken against the petitioners. These writ petitions are disposed of as above. A.MUHAMED MUSTAQUE JUDGE smp

W.P.(C) Nos.4752 & 30175/2019 6 APPENDIX OF WP(C)No.4752/2019 PETITIONER'S EXHIBITS: EXHIBIT P1OF THE CERTIFICATE OF GOOD MANUFACTURING PRACTICE DT.20/4/2017 ISSUED BY THE DEPUTY DRUG CONTROLLER, KERALA. EXHIBIT P2OF THE LICENSE DT.8/11/2018 UNDER THE FACTORIES ACT. EXHIBIT P3OF THE LICENSE DT.20/4/2017 ISSUED BY THE DEPUTY DRUG CONTROLLER, KERALA. EXHIBIT P4OF THE CONSENT DT. 7/11/2018 ISSUED BY THE KERALA STATE POLLUTION CONTROL BOARD. EXHIBIT P5OF THE D & O LICENCE DT.4.5.2018 VALID TILL 31.3.2019. EXHIBIT P6OF THE PROCEEDINGS DT.5.1.2019 OF 2ND RESPONDENT. EXHIBIT P7OF THE RECEIPT DT.23.1.2019. EXHIBIT P8OF THE RENEWAL APPLICATION DT. 28/1/2019. EXHIBIT P9OF THE RENEWAL CERTIFICATE DT.13.3.2017 OF L2 LICENCE. EXHIBIT P10OF THE TRADE FACILITY CLARIFICATION DT.7.8.2017. RESPONDENTS' EXHIBITS: NIL.P.S to Judge smp

W.P.(C) Nos.4752 & 30175/2019 7 APPENDIX OF WP(C)No.30175/2019 PETITIONER'S EXHIBITS: EXHIBIT P1 A TRUE PHOTOCOPY OF THE DRUG MANUFACTURING LICENCE ISSUED BY THE DEPUTY DRUGS CONTROLLER, KERALA STATE DATED 05.09.2018. EXHIBIT P2 CERTIFICATE OF GOOD MANUFACTURING PRACTICE ISSUED BY THE DEPUTY DRUGS CONTROLLER, KERALA STATE DATED 05.09.2018. EXHIBIT P3OF THE L2 LICENCE ISSUED BY THE 3RD RESPONDENT. EXHIBIT P4OF THE TRADE FACILITY NO.11/2017 DATED 07.08.2017 ISSUED BY THE COMMISSIONER OF CENTRAL TAX, CENTRAL EXCISE AND SERVICE TAX DEPARTMENT. EXHIBIT P5OF THE SP VI LICENCE ISSUED BY THE 3RD RESPONDENT VALID TILL 31.03.2017. RESPONDENTS' EXHIBITS: NIL.P.S to Judge smp

Reproduced from the public record of the Kerala High Court. Verify against the court's own copy before relying on it. Income tax judgments are on bharattax.net.