[12th June 2023] In
exercise of the powers conferred by section 85 and section 86 of the Bengal
Excise Act, 1909 (Ben. Act V of 1909) and in supersession of this Department
Notification No. 128-Ex dated 11.02.2010, as subsequently amended, the Governor
is pleased hereby to make, with immediate effect, the following rules:- (A)
In
case of Excise license held by sole proprietorship or jointly by two or more
individuals or Partnership Firm or Limited Liability Partnership or
Co-operative society, application for - (i)
partial
transfer shall be considered if there is induction into the business of one or
more individuals, partners, members upon mutual consensus to conduct the
business with existing licensee or Joint licensees, partners, members.
Induction into the business of the legal heir of a deceased licensee / partner
/ member shall also be deemed to be a partial transfer. (ii)
complete
transfer shall be considered if as a result of an agreement, control over the
business is completely handed over by existing licensee /Joint licensees or
partners to one or more individuals or new partners or new members. The
same principle of complete transfer applies in case of conversion from
proprietary form to a partnership firm / Limited Liability Partnership
/Co-operative society or vice-versa or from a proprietary form or a partnership
firm/ Limited Liability Partnership / Co-operative society to a Company or
vice-versa. Note.-A
partner may belong to a Partnership firm constituted under the Indian
Partnership Act, 1932 or a Limited Liability Partnership (L.L.P) Registered
under the Limited Liability Partnership Act, 2008; (B)
In
case of Excise license held by a Company, application for - (i)
partial
transfer shall be considered if- (a)
another
entity acquires more than 25% (but less than 51%) of shareholdings of the
licensee-company or, (b)
another
entity (including a Company) acquires not more than 25% of shareholdings and /
or acquires the right to appoint / remove all or majority of Directors on the
Board of licensee-company or any other key managerial personnel of the
licensee-company by virtue of Shareholders Agreement (SHA) or any other
agreement. (ii)
complete
transfer shall be considered if- (a)
the
licensee-company transfers the Excise license entirely to a different entity,
or, (b)
the
transferee entity acquires 51 % or more of the total shares of the
licensee-company (Transferor) or there is a merger / amalgamation of
licensee-company with another Company (other than a holding Company /
subsidiary of the former) as a result of which the licensee-company loses its
separate existence: Provided
that if another entity has already acquired shares in the holding Company in
the manner similar to (i) or (ii) as above, then the merger of a subsidiary
Company with its holding Company shall be deemed to be a merger of two
unrelated units resulting in transfer of control / ownership to that entity. Explanation
I- If the pre-existing relation between the licensee-company and the transferee
Company is one of subsidiary Company and holding Company then merger/
amalgamation of these two shall not be deemed to be a transfer of control /
ownership. Explanation
II- Change in Board of Directors of a Company due to death, incapacity, removal
by order of Court or by shareholders or induction of a new Director in usual /
routine course of business as per the provisions of the Companies Act shall not
be regarded as a transfer of control / ownership. Explanation
III.- Any change in Board of Directors in a Government Company, managing
committee of a club owned by members in usual / routine course of business
shall not be regarded as a transfer of control / ownership. (A)
In
case of Excise license held by proprietary business or Partnership Firm or
Limited. Liability Partnership or Co-operative society- No
transfer of excise license, partial or complete, of a liquor business run by
proprietor(s), partnership firm or Limited. Liability Partnership or
Co-operative society shall take place without prior approval of the Excise
Commissioner. Application
for registration of transfer of license shall be submitted to the concerned
Collector of the district. The application shall be accompanied by a
non-refundable application fee for registration as prescribed in the schedule
appended to this Rule. Upon enquiry, if the Collector is satisfied that the
proposed transfer is necessary in the interest of smooth administration of
running the Excise license, he shall forward the application along with his
opinion to the Excise Commissioner for his consideration. In case of rejection
of the application the Collector shall intimate the applicant the grounds
thereof. If
the proposal is approved by the Excise Commissioner the applicant shall pay a
registration fee as prescribed in the schedule. After realizing the requisite
fee the Collector shall record the necessary changes in the concerned Excise
license. In
the event of retirement of any proprietor/partner/member of a society, the same
procedure as prescribed in the foregoing paragraph, shall apply. If
a transfer of license takes place without prior approval of the Excise
Commissioner then the license shall be liable to determination unless the
licensee(s) or the partners or the members of a society bring the fact of
transfer to the notice of the Collector within thirty (30) days from the date
of such transfer on payment of penalty @ Rs. 1000/- per day for not seeking
prior approval of the Excise Commissioner: Provided
further that if no intimation is given within thirty days, the Collector may at
his discretion proceed against the licensee under Section 42 of the Act or
under Section 65 in lieu thereof after granting opportunity of hearing to the
licensee. (B)
In
case of Excise license held by a company- The
State Government shall be the competent authority for approval of cases
concerning transfer of Excise license held by a Company registered under the
Companies Act. Application for registration of such transfer shall be submitted
to the Collector of the district where the licensed premises of the Company is
situated. If the Company has more than one licensed unit situated in more than
one district the application shall be submitted to the Excise Commissioner. In
either case the application shall be submitted before the appropriate authority
within seven days from the date of entry of the change in shareholding in the
relevant Register of the Company maintained under Section 88 of the Companies
Act, 2013 or in any other official record maintained for this purpose or within
seven days from the "Effective date" if provided for in the SHA
(Shareholders Agreement) or any other agreement. In case of merger,
amalgamation of unrelated companies the application shall be submitted within 7
days from the date of filing of the certified copy of order of NCLT(National
Company Law Tribunal) sanctioning the scheme of merger, with Registrar of
Companies. In
case of failure to apply within the prescribed time, the applicant Company
shall be liable to pay a penalty @ Rs. 2000 per day for delay in making
application for registration to the Collector or the Excise Commissioner, as
the case may be: Provided
that if no application is submitted within thirty days from the date of entry
of the change in the relevant Register under the Companies Act or from the
effective date as mentioned earlier, the appropriate authority may at his
discretion proceed against the Company under Section 42 or Section 65 of the
Bengal Excise Act in lieu thereof. The
application for approval of transfer of license shall be accompanied by a
non-refundable application fee for registration as prescribed in the schedule.
On receipt of the application the Collector or the Excise Commissioner as the
case may be shall examine the proposal. If he is satisfied that the proposed
transfer is necessary in the interest of smooth administration of running the
Excise license, the proposal shall be sent to State Government for approval.
After approval by the Government the applicant shall deposit a registration fee
for transfer of license as prescribed in the schedule following which the
Collector shall record the change in the concerned Excise license: Provided
that in case of merger/amalgamation of a holding Company and its subsidiary
(other than merger/ amalgamation as mentioned in the proviso to Rule 4B of this
rule) no registration fee for transfer of license shall be required. (C)
Procedure
in respect of change in proprietary business, Firm, Limited Liability
Partnership or Co-operative society due to death, induction of legal heir- Notwithstanding
anything contained in Rule 14 of the West Bengal Excise (Selection of New Sites
and Grant of License for Retail Sale of Liquor and Certain Other Intoxicants)
Rules, 2003, as amended, if the excise license granted to a proprietary
business, Firm, Limited Liability Partnership or Co-operative society lapses on
the death of any of the proprietors or partners or members - (i)
in
case of proprietorship business the Collector shall settle the license in a
fresh manner amongst surviving Joint proprietor(s) if any, along with a legal
heir of the deceased license holder and in case of sole proprietorship only
with a legal heir of the deceased license holder and in both the cases the name
of the legal heir to be inducted in the license must be endorsed by all the
legal heirs of the deceased within six months from date of death of licensee; (ii)
in
case of a Firm or Limited Liability Partnership or Co-operative society, the
Excise Commissioner shall allow the grant of license in a fresh manner amongst
the surviving partners along with a legal heir of the deceased holder, selected
by the concerned Collector. The name of the legal heir to be inducted in the
license must be endorsed by all of the legal heirs of the deceased within six
months from the death of the partner/ member. In
either of the cases, the application for transfer of license shall be
accompanied by a non-refundable fee for registration of application as
mentioned in the Schedule: Provided
that in either of the cases, if no such endorsement is received within six
months and the license cannot be settled in the manner prescribed above, the
Collector shall withdraw the said license and recommend to the State Government
for the grant of license under Category 4(p) of the West Bengal Excise
(Selection of New Sites and Grant of License for Retail Sale of Liquor and
Certain Other Intoxicants) Rules, 2003) in the same local area to West Bengal
State Beverages Corporation Ltd, supra. (D)
Procedure
for regularization of change in the Board of Directors of a licensee-company
due to death, mandatory retirement of a Director, removal by shareholders, induction
of a new Director- Whenever
there is a change in the composition of Board of Directors due to death,
incapacity, removal by order of Court or by shareholders or induction of a new
Director in usual / routine course of business as per the provisions of the
Companies Act, the licensee-company shall submit an application to the
concerned Collector or the Excise Commissioner, as the case may be, for
regularization of such change in the Board of Directors. The application shall
be made within 7 days from the date of incorporation of such change in ROC and
accompanied by a non-refundable application fee for registration as prescribed
in the schedule. In case of delay in Submission of the application the relevant
provisions under Rule 5(B) of this Rule shall apply. If
the Collector or the Excise Commissioner, as the case may be, is satisfied that
the change in composition of the Board of Directors is due to any of the
reasons stated above then the application shall be recommended and sent to
State Government which shall grant the final approval for regularization of the
change. No registration fee for transfer of license shall be required in such
cases. On receipt of approval of the State Government the Collector shall
record the change in the concerned Excise license. (E)
Procedure
in respect of change in the Board of Directors of Government Company, Managing
Committee of club having Excise license- (1)
Change
in the Board of Directors of a Government Company or a statutory Organization
under the Central or the State Government due to retirement, death, induction
of any Director shall be regularized on an application, within seven days from
the date of change in the Board of Directors, before the Collector who shall
forward the application to the Excise Commissioner for final approval of
regularization of such change. (2)
The
same procedure shall apply in respect of change in Managing Committee/Governing
body of clubs owned by members who elect their representatives to the Managing
Committee/Governing body. (3)
No
fee shall be required in case of change under clause (1) and (2): Provided
that Clubs which are not owned by members and of which the management is not
elected by members shall be governed by the provisions of any of the Rules 5(A)
to 5(D) as the case may be. SCHEDULE SCHEDULE OF FEES [see Rule 5(A), 5(B), 5 (C), 5(D)
and 5(E)] Sl.No. License Type Occasion Non-refundable registration fee for
application Registration fee for transfer of
license 1. Proprietary/
Firm/ Limited Liability Partnership/ Co-operative society Partial
Transfer- i.e. Rule 5 (A) Equal to the
amount payable for an application of the same category of license in the same
area 1/2 of the
amount payable for initial grant of the same category of license in the same
area 2. -Do- Complete
Transfer i.e. Rule 5(A) -Do- Equal to the
amount payable for initial grant of the same category of license in the same
area 3. -Do- Due to death
of any member, induetion of legal heir i.e. Rule 5(C) -Do- Exempted 4. Company Partial
Transfer- i.e. Rule 5(B) -Do- 1/2 of the
amount payable for initial grant of the same category of license in the same
area 5. -Do- Complete
Transfer- i.e. Rule 5(B) -Do- Equal to the
amount payable for initial grant of the same category of license in the same
area 6. -Do- Merger/amalgamation
of subsidiary and its holding Company i.e. proviso to Rule 5(B) -Do- Exempted 7. -Do- Change in the
Board of Directors of a licensee-company due to death, mandatory retirement
of a Director, removal by shareholders, induction of a new Director i.e. Rule
5(D) -Do- Exempted 8. Clubs which
are not owned by members and of which the management is not elected by
members i.e proviso to Rule 5(E) provisions of
any of the Rules 5(A) to 5(D), as the case may be -Do- To be
realized/exempted as mentioned at Sl. (1) to Sl. (7), as the case may be.West Bengal Excise (Transfer Of License)
Rules, 2023
These rules shall be called the West Bengal Excise (Transfer of License) Rules,
2023.
These rules shall apply in case of transfer (partial or complete) of any
regular Excise license and change in Board of Directors in usual course of
business of Excise licenses granted under the Bengal Excise Act, 1909 and the
rules framed thereunder.
In these rules the words and expressions used shall have the same meaning as
respectively assigned to them in the Bengal Excise Act, 1909 and the rules
framed thereunder save and except the words and expressions viz. Board of
Directors, Company, control, Government Company, director(s), holding Company,
key managerial personnel, subsidiary Company, which shall have the same meaning
as laid down in the Companies Act, 2013.
Application for Transfer of excise license, partial or complete, shall be
required in the following circumstances:-
An application for change of name and style of an establishment having excise
license shall be accompanied by a non-refundable registration fee for
application similar to the amount applicable at the time of grant of a new
excise license of the same category in the same local area. No registration fee
for initial grant of license shall be realized in such circumstances. Approval
for such change of name and style shall be granted by the Collector in respect
of a license granted to an individual or a proprietorship firm. All other
applications shall be sent to the Excise Commissioner, who shall be the
competent authority for according such change in the name and style of a
partnership firm or a Limited Liability Partnership or a co-operative society.
Proposal for change in the name and style of a Company shall be sent to the
Government. No such change shall be given effect, unless approved by the
Government.
These rules shall have effect notwithstanding anything to the contrary
contained in any other rules or Orders relating to transfer of license for the
time being in force and all such rules or Orders shall be subject to these
rules.
All cases of Change in Management, which are pending under the West Bengal
Excise (Change in Management) Rules, 2009 and not yet sent to the State
Government for approval, shall be reviewed by the Excise Commissioner afresh
under the provisions of these rules and payment of fees for recording such
Change in the license shall be imposed only after obtaining necessary order of
such review by the Excise Commissioner.
The power of interpreting these rules is reserved to the State Government.