M/S. Jnrp Bar And Restaurant And ANR v. The Excise Commissioner And ORS

IN THE HIGH COURT AT CALCUTTA

[ CIRCUIT BENCH AT PORT BLAIR ] *** WPA/460/2023 M/s. JNRP Bar and Restaurant and Another Vs.

The Excise Commissioner and Others Mrs. Anjili Nag .... for the petitioners Mr. Shatadru Chakraborty, Mr. Dibesh Dwivedi ... for the respondents February 23, 2024 [AKB] Item No.38 Heard learned Advocates appearing for the parties. By this writ petition, petitioner has challenged the impugned penalty order dated 21st November, 2022 being Annexure P-13 to the writ petition passed by the Excise Commissioner, Andaman and Nicobar Islands, being the First Appellate Authority in the appeal filed by the petitioners challenging the Order No. 571 dated 18th January, 2022 issued by the Deputy Commissioner (N&M A) for cancelation of Bar licence issued to the petitioner, imposing the penalty purported to be exercised under Section 76(2) of the Andaman and Nicobar Islands Excise Regulation, 2012. Petitioner challenges the aforesaid impugned order of the First Appellate Authority on the ground of his jurisdiction of imposing penalty being the same beyond the scope and ambit of the power conferred upon him under Section 77 (2) of the aforesaid Regulation.

Learned Advocate appearing for the respondents opposes this writ petition on the ground of maintainability in view of availability of alternative remedy by way of second appeal, but he could not satisfy this Court as to whether the First Appellate Authority has the power under Section 77 (2) of the aforesaid Regulation to impose penalty in exercise of his jurisdiction. I have considered the submissions of the parties and perused Section 76 (2) and 77 (2) of the aforesaid Regulation which are quoted here under :

"76. (1) ... ... ... ... ... ... ... ... ...

(2) Any person aggrieved by an decision or order of the Deputy Commissioner may appeal to the Excise Commissioner.

77 (1) ... ... ... ... ... ... ... ... ...

(2) The Appellate Authority may after making such further inquiry as may be necessary, pass such order, as he thinks fit, just and proper, confirming, modifying or annulling the decision or order, as the case may be."

On perusal of the aforesaid Regulation it appears on the face of it that the aforesaid impugned order of penalty has been imposed by the First Appellate Authority by misconstruing and misinterpreting the aforesaid regulations.

Regulation 76 (2) does not confer any power upon the First Appellate Authority rather it is gives right to a person to invoke the said Regulation 76 (2) for filing appeal if he is aggrieved by the order of the adjudicating authority and Regulation 77 (2) confers the power upon the First Appellate Authority only to the extent that after filing the appeal by a person, to make further inquiry as may be necessary and to pass order by way of confirmation or modification or annulling a decision or order of the adjudicating authority, but it does not confer power upon the First Appellate Authority to impose any penalty on a person in his appeal. It is well settled principle of law that any authority including judicial and quasi judicial shall act as per law or statute in the mode and manner it has been conferred upon on it or not at all.

Considering the facts and circumstances of the case, submissions of the parties and the scope and ambit of the aforesaid Regulation 77(2), I am of the considered view that the impugned order dated 21st November, 2022 is not sustainable in law being beyond jurisdiction and accordingly the same is set aside and the matter is remanded back to the First Appellate Authority concerned to pass a fresh order in accordance with law and particularly within the ambit and scope of the power conferred upon him under the said Regulation, within a period four months from the date of communication of this order, after giving opportunity of hearing to the petitioner or its authorized representative.

Accordingly, this writ petition being WPA/460/2023 is disposed of.

( Md. Nizamuddin, J. )