Full Judgment Text
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CASE NO.:
Appeal (civil) 4618-4630 of 1997
PETITIONER:
STATE OF BIHAR AND ORS.
RESPONDENT:
INDUSTRIAL CORPORATION PVT. LTD. AND ORS.
DATE OF JUDGMENT: 04/09/2003
BENCH:
V.N. KHARE CJ & S.B. SINHA
JUDGMENT:
JUDGMENT
2003 Supp(3) SCR 362
The following Order of the Court was delivered :
Whether the State of Bihar can levy penalty for loss or wastage of
molasses, and if so, under which law and to what extent and further whether
such loss can be directed to be recovered from the respondents, are the
questions involved in this batch of appeals which arise out of the judgment
and order dated 15.05.1996 passed by a Division Bench of the Patna High
Court allowing the writ petitions filed by the respondents herein.
Molasses is a bye-product of sugar and is mainly used as a raw material for
manufacture of spirit, including alcohol for human consumption. The sale of
molasses in the State of Bihar is regulated by an Act, known as ’the Bihar
Molasses (Control) Act, 1947 (the 1947 Act).
The respondents herein are the companies registered under the Indian
Companies Act and are engaged in the business of manufacture of spirit in
the State of Bihar for which they hold licence under the Bihar Excise Act,
1915 (the 1915 Act).
The respondents had been granted different licence under the provisions of
the Bihar and Orissa Excise Act, the details whereof are as under :
___________________________________________________________________________
_____
SI. No. Name of the distilleries Licence granted in Excise Form Nos.
Writ applications filed by them
1. M/s Bihar Distillery Ltd. 25, 28-A CWJC No. 6845/ 89,
11972/93
2. M/s. Arun Chemical Industries 25, 27, 28 1517 and 1518 of
1984
3. M/s. Cawnpore Sugar Works Ltd. 25,27,28 2334/84, 5648 and
5649 of 1986
4. M/s. S.K.G. Consolidated Ltd. 25, 27, 28, 28-A 2385/88
5. M/s. New Swadeshi Distillery Ltd. 25, 28-A 6433/88,
4696/94 & 8032/95
6. M/s. Ram Narain & Sons 28, 28-A 5484 & 5487/90
It is not in dispute that the respondents herein admittedly were engaged in
the manufacture of rectified spirit from molasses which are allotted by the
Controller of Molasses in terms of the provisions of the 1947 Act and the
rules framed thereunder. Some of them are also holders of licences granted
in terms of Section 13 of the 1915 Act. While carrying on such manufacture
of spirit, allegedly some loss had occurred in the quantity of molasses
supplied by the Controller of Molasses. The Comptroller and Auditor General
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in its report allegedly found out a potential loss of revenue by reason of
such loss or wastage of molasses. In the said report the purported
potential loss of revenue in relation to each of the licensee had been
quantified. Pursuant to or in furtherance of the said audit report notices
were issued to the respondents herein levying penal duty. The nautre of
such penal duty, the extent of shortfall and the period wherefor notices
had been issued would appear from the following chart which may be noticed
herein by way of example as disclosed in C.A. No. 4619-20 of 1997.
___________________________________________________________________________
______
"Civil Appeal No. 4619-20 of 1997 State of Bihar v. Arun Chemical
Industries Pvt. Ltd
CHART OF SHORTFALL AND PENAL DUTY
1 2 3 4 5 6
Period Molasees Rectified Rectified Short Penal
Allotted Spirt Spirit Duty
(in desired as actually In recovery Demand
under Excise
quintals per Tender produced by of
Commissioner’s
Notice the distillery Rectified impugned order dt.
condition from the spirit as 13.2.84 on
the short
No. 8 of molasses alleged by fall
relying on Tender
recovery of allotted to the Excise Notice @
Rs. 17.30
36 London the Commissioner and Rs. 20 per Lpl.
proof litres Respondent Respectively. Later
(Lpl) per ql. under the (in Lpl) sought to
be recovered
of molasses Bihar under letter dt.13.3.84
Molasses by set-off against
(in LPI.) Control Act, price payable to
the
1947 Respondent under
From 27 for the
(in Lpl) supply of Rectified
spirit
(in Rupees)
1.12.81 to 11706.5 421434.0 377939.1 43494.9 7,52,461,77
31.3.82
1.4.82 to 21203.7 763333.2 72885.2 37778.0 7,55,560.00
30.11.82
15,18,021.77
___________________________________________________________________________
________________
The appellants herein sought to justify levy of the said penal duty relying
on or on the basis of condition no. 8 of the Tender Notice dated 25.8.1980
purported to have been issued under Section 22 of the Bihar Excise Act for
wholesale supply of country spirit to the retail vendors for the period
from 1.11.1980 to 30.9.1983. It is not in dispute that the owners of the
distilleries who had been granted licences in Excise Form Nos. 28 and 28A
questioned the terms and conditions of licences as also the terms and
conditions of molasses allotment order, whereby and whereunder they were
required to produce/manufacture 22.5 bulk liters or 36.0 L.P. liters of
spirit from one quintal of molasses.
The appellant in imposing the penalty, presumably was of the view that the
respondents herein had diverted the molasses towards manufacturing either
country liquor or liquor, which is fit for human consumption.
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It is at this stage the respondents herein filed petitions under Article
226 of the Constitution before the Patna High Court, inter alia, on the
ground that the penalty is illegally sought to be imposed in respect
whereof neither the State Legislature is competent nor the State Government
is entitled to recover the same. In any event neither any notice of any
kind was issued on the quantum of penalty sought to be imposed and
recovered.
A counter affidavit was filed on behalf of the appellants herein wherein
the levy was sought to be justified on the ground that the State
legislature is competent to levy duty on the out-come of the molasses and
in any event the spirit was meant for human consumption. The matter was
heard before a Division Bench of the Patna High Court. The appellants
herein conceded that the penal duty is not in the nature of a duty under
the Excise Act. However, imposition of penalty was sought to be justified
on the ground that since condition No. 8 of tender notice, provided that in
the event any shortfall occurs in recovery of spirit from the molasses
allotted, the licencee would be liable therefor.
The High Court noticed that the purported clause 8 of the afore-mentioned
tender notice was incorporated only in the licences contained in Form No.
27. It further noticed that all the respondents were not holders of
licences in the said form. The High Court considered the jurisdiction of
the appellants herein for impost of such levy from the viewpoint of the
State’s legislative competence in the light of the decision of this Court
in Synthetics and Chemical Ltd. v. State of U.P., [1990] 1 SCC 109. Upon a
detailed consideration of the contentions raised by the parties, the High
Court allowed the writ applications upon setting aside the levy impugned in
the writ applications holding :
(i) before creating a demand of penal duty or penalty, no show cause notice
was issued to the respondents and the same was levied merely on the basis
of the audit report;
(ii) that the State had no jurisdiction to levy and duty;
(iii) no finding has been arrived at by the authorities before issuing the
impugned demand notice as regard shortfall in production of rectified
spirit that the molasses had been diverted or misutilised for illicit
distillation or there had been contravention of the 1947 Act and the rules
framed thereunder;
(iv) the 1947 Act and 1915 Act do not provide for levy of any such penalty;
(v) all the respondents did not take part in the tender process nor were
they eligible therefor having regard to the nature of licences possessed by
them;
(vi) even in relation to those who were holders of the licences for
carrying out the distillation work such a clause in the tender notice
without any specifications as to how and under what circumstances penalty
could be levied was arbitrary;
(vii) no machinery for recovery of the same having been created nor any
authority has been specified under the 1915 Act for adjudication of levy or
recovery of such penalty, reference to condition no. 8 of the tender notice
providing for levy of penalty was meaningless;
(viii) nothing has been brought on record to show that either in the 1915
Act or 1947 Act or the rules framed thereunder penalty could be levied, or
there is any factual foundation that by less production of ethyl alcohol
from molasses, the same had been diverted or misused as a substitute for
potable alcohol and the State has suffered the purported loss of excise
duty on potable alcohol and thus, the claim is farfetched;
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(ix) the provisions of 1915 Act could be invoked only against a person to
whom, a licence had been granted in terms of Section 13 thereof and who is
bound to manufacture country liquor from the molasses so supplied; and
(x) even if it be assumed that there has been less production of spirit
from the molasses, the remedy as provided for breach of the provisions of
the Molasses Act or the Rules framed thereunder could only be resorted to
having regard to the facts and circumstances of the case, and not by way of
raising the impugned demands.
It is against the said judgment of the High Court, the appellants are in
appeal by way of special leave petitions before us.
Shri Tapas Ray, learned senior counsel appearing for the appellants, inter
alia, urged that in the facts and circumstances of the case, no opportunity
was required to be given to the respondents before imposing the penalty and
that the State legislature is competent to levy duty on the products of the
molasses, which partakes to the character of compensation. In any case the
penalty imposed was in the nature of compensation for the breach of
Condition No. 8 of the tender notice.
Coming to the first ground, it is not disputed that no opportunity of
hearing of any kind was afforded to the respondents herein before the
penalty was sought to be imposed and recovered. It is also admitted that
there was no adjudication of the alleged breach of condition No. 8 of the
tender notice. In A. Mohammed Basheer v. State of Kerala and Ors., [2003] 6
SCC 159, it was held that unless there is a determination of breach of
contract and damages are quantified, no damages can be imposed and
recovered. In General Manager, North East Frontier Railway and Ors. v.
Dinabandhu Chakraborty, reported in [1971] 3 SCC 883, this Court held that
the Government cannot be a judge in its own cause in absence of any
statutory provision empowering it to act as such. In M/s. Vishnu Rice Mill,
Bilaspur v. Regional Food Controller, Bareilly and Ors., (1984) All L.J.
592 it was held by Allahabad High Court as under :
"Learned Standing Counsel, however, contended that the State Government was
justified in withholding both the price payable to the petitioner and the
release certificate claimed by the petitioner if it could be shown that the
claimed by the petitioner if it could be shown that the petitioner had
failed to perform its obligation under the agreement between the parties.
Learned Standing Counsel placed reliance upon Cl. 9 of the said Order which
has been quoted above. In our opinion, this contention of the learned
Standing Counsel is not tenable. Cl. 9 itself shows that even though the
State Government has a statutory authority to direct a rice miller, still,
the terms and conditions on which the Government paddy will be converted
into rice by the licensed rice miller will be ’such terms and conditions as
may be agreed upon’. The agreement itself containing the terms and
conditions cannot be said to be a statutory contract merely because the
State Government has a right under Cl. 9 to direct a rice mill to convert
paddy into rice. It has been stated above that along with the counter-
affidavit annexure C.A. 1 has been annexed, which is said to be the
agreement between the parties. In Cl. 11 of the said agreement there is a
provision for arbitration in case of dispute, difference, or question
touching or arising out of the agreement or the subject-matter thereof. In
our view, if the State Government has any grievance that the licensed
miller has failed to fulfill the terms and conditions of the said agreement
between the parties, it is not open to the State Government to seek its
redress in respect of such grievance by withholding the release certificate
under Cl. 3(4) or by withholding or by making any deduction from the price
which is payable by the State Government to the petitioner under Cl. 7 of
the said Order."
We may further notice that in Dwarka Prasad Agarwal (D) By LRs. and Another
v. B.D. Agarwal and Others, [2003] 6 SCC 230 this Court laid emphasis on
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the right of a citizen to have his grievances adjudicated by an impartial
tribunal holding :
"There is another aspect of the matter which must also be taken notice of.
A party cannot be made to suffer adversely either indirectly or directly by
reason of an order passed by any court of law which is not binding on him.
The very basis upon which a judicial process can be resorted to is
reasonableness and fairness in a trial. Under our Constitution as also the
International Treaties and Conventions, the right to get a fair trial is a
basic fundamental/human right. Any procedure which comes in the way of a
party in getting a fair trial would be violative of Article 14 of the
Constitution of India. Right to a fair trial by an independent and
impartial Tribunal is part of Article 6(1) of the European Convention for
the Protection of Human Rights and Fundamental Freedoms 1950."
In the present case, what we find is that before creating a demand of penal
duty or penalty, there was no adjudication by any authority as regard to
the breach committed by the respondents. We also find that no opportunity
of any kind was offered to the respondents before the demand as regard the
penal duty was pressed against the respondents. The matter was not even
examined as to what was the reason for shortfall in the production of
rectified spirit. The Molasses Act does not provide for imposition of such
penalty in the event of shortfall of spirit. It must, therefore,
necessarily be held that the imposition of the impugned penalty being
against the principles of natural justice is illegal and void.
The statutory authorities must act within the four-corners of a statute.
They could take recourse to the proceeding for levy of penalty and the
recovery thereof from the respondents only in the event there existed any
agreement or statutory provision therefor. Such a power did not exist in
the Commissioner of Excise or the Superintendents of Excise who had issued
the impugned demand notices.
The statutory authorities also could not have sought to levy penalty
relying on or on the basis of the audit report only. They were required to
apply their own independent mind for the purpose of finding out as to
whether the respondents in law had committed any breach of the terms and
conditions of licence or the provisions of 1947 or 1915 Acts so as to make
them liable for levy of penalty. The concerned authorities acting in terms
of the statutory provisions, therefore, without any further investigation
could not have acted mechanically on the audit report.
So far as the second submission of Mr. Ray is concerned, it would not
detain us very long as the matter stands almost covered by a catena of
decisions of this Court. In Synthetics and Chemicals Ltd and Ors. \. State
of U.P. and Ors., Reported in [1990] 1 SCC 109 this Court, while
interpreting Entry 84 of List I, Entries 8 and 51 of List II and Entry 33
of List III of Schedule VII, held that the State legislature has no power
to enact law levying duty on the spirit, which is not meant for human
consumption. It was also held that the State has the power to impose duty
only on the spirit, which is for human consumption under Entry 51 of List
II of Schedule VII.
The appellants have admitted that the stage at which such penalty was
sought to be levied was manufacture of rectified spirit. The respondents
had not carried out any activities in relation to manufacture of potable
liquor from the molasses.
This decision was followed in State of U.P. and Ors. v. Modi Distillery and
Ors., [1995] 5 SCC 753 stating :
"9. It is convenient now to note the judgment of a Bench of seven learned
Judges of this Court in Synthetics and Chemicals Ltd. v. State of U.P. This
Court stated that it had no doubt that the framers of the Constitution,
when they used the expression "alcoholic liquors for human consumption",
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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. Alcoholic or intoxicating liquors had to be
understood as they were, not what they were capable of or able to become.
Entry 51 of List II was the counterpart of Entry 84 of List I. It
authorised the State to impose duties of excise on alcoholic liquors for
human consumption manufactured or produced in the State. It was clear that
all duties of excise save and except the items specifically excepted in
Entry 84 of List I were generally within the taxing power of the Central
Legislature. The State Legislature had limited power to impose excise
duties. That power was circumscribed under Entry 51 of List II. It had to
be borne in mind that, by common standards, ethyl alcohol (which had 95 per
cent strength) was an industrial alcohol and was not fit for human
consumption. The ISI specifications had divided ethyl alcohol (as known in
the trade) into several kinds of alcohol. Beverages and industrial alcohols
were clearly and differently treated. Rectified spirit for industrial
purposes was defined as spirit purified by distillation having a strength
not less than 95 per cent by volume of ethyl alcohol. Dictionaries and
technical books showed that rectified spirit (95 per cent) was an
industrial alcohol and not potable as such. It appeared, therefore, that
industrial alcohol, which was ethyl alcohol (95 per cent), by itself was
not only non-potable but was highly toxic. The range of potable alcohol
varied from country spirit to whisky and the ethyl alcohol content thereof
varied between 19 to about 43 per cent, according to the ISI
specifications. In other words, ethyl alcohol (95 per cent) was not an
alcoholic liquor for human consumption but could be used as a raw material
or input, after processing and substantial dilution, in the production of
whisky, gin, country liquor, etc. In the light of experience and
development, it was necessary to state that "intoxicating liquor" meant
only that liquor which was consumable by human beings as it was."
Shri Ray, however, relied upon the decision in Bihar Distillery and Anr. v.
Union of India and Ors., reported in [1997] 2 SCC 727. In that case it was
held that the State is empowered to impose duty if it is found that the
rectified spirit is being removed from the distillery for the purpose of
manufacture of potable liquor. In this case, we find that as a matter of
fact, no foundation in that behalf in the counter affidavit of the
appellants before the High Court has been laid down.
Even in Bihar Distillery (supra) the court categorically held that the
State legislature had no legislative competence in relation to manufacture
of industrial alcohol which is a subject-matter of Entry 52, List I of the
Seventh Schedule of the Constitution of India, having regard to the fact
that the Parliament had enacted the Industries (Regulation and Development)
Act, 1951. It, however, sought to distinguish Synthetics and Chemicals
(supra), inter alia, on the ground that where industries are engaged in the
manufacture of rectified spirit for the purpose of obtaining or
manufacturing potable liquors or supplying the same to the State Government
or its nominees for the said purpose, they would be under the total and
exclusive control of the States in all respects including the establishment
of the distillery. However, a third category was also carved out in
relation to those industries which are engaged in manufacture of rectified
spirit both for the purpose of supplying it to industries and for obtaining
and manufacturing potable liquor in relation whereto it was stated :
"...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
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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 misuse 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."
How far and to what extent the said observations are correct need not be
considered by us but suffice it to point out that this decision had not
noticed the earlier decision given by a Bench of three learned Judge in
Modi Distillery (supra). Modi Distilleries (supra) applies in all fours to
the facts of the present case and we are bound thereby. Even otherwise, it
appears that the question as to whether any excise duty can be levied by
the State upon the industrial alcohol or rectified spirit useable for
industrial purposes is concluded by a decision of this Court in State of
Bihar and Others v. New Swadeshi Sugar Mills Ltd. and Others, Civil Appeal
No. 3343 of 1983 disposed of on 24.8.1994 which arose out of a judgment of
the Patna High Court in The New Swadeshi Sugar Mills Ltd. and Another v.
The State of Bihar and Others, (1983) PLJR 105 wherein it was held:
"8. The contention of the learned counsel for the State, apart from what is
stated in the notice (Annexure 2), was that the petitioner-Company is
liable to pay duty on the spirit because rectified spirit by subsequent
dilutation becomes potable and thus fit for human consumption and,
therefore, duty could be recovered from the petitioner-Company, which is
thus liable to compensate the loss caused to the Government due to non-
delivery by application of rule 33 of the Rules made by the Board of
Revenue under the notification dated the 29th April, 1919 (hereinafter
referred to as ’the Rules’).
9. It is, therefore, essential to examine whether rectified spirit can be
subjected to levy of duty under the Act. Excisable article has been defined
in section 2(6) of the Act and clause (a) thereof is relevant for the
present purpose, which is as follows :-
"excisable article means -
(a) any alcoholic liquor for human consumption. Xx
xx xx
Liquor is defined in section 2(14) of the Act which "includes all liquids
consisting of or containing alcohol, such as spirit 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." Intoxicant has been defined in
section 2(12a) of the Act, which means "any liquor or intoxicating drug".
Section 2(19) defines ’spirit’ as ’any liquor containing alcohol obtained
by distillation, whether it is denatured or not.’ Thus, the total effect of
the definition of ’intoxicant’, ’liquor’ and ’spirit’, read with the
definition of excisable article, means that only a spirit meant for human
consumption can be subjected to excise duty."
For the aforesaid reason, it must be held that no penal duty could have
been imposed on rectified spirit.
So far as the third submission of Mr. Ray to the effect that the penalty
was in the nature of compensation for the breach of condition No. 8 of the
tender notice is concerned, the same has no merit. The tender notice does
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not provide for imposition of any penalty and in the absence of any
opportunity to the distillers the penalty could not be realized nor could
it be adjusted against the statutory price for rectified spirit.
It is furthermore interesting to note that the Comptroller and Auditor
General in its counter affidavit before the High Court as also before this
Court stated that the steps for recovery of such amount was required to be
taken for avoiding ’potential loss of revenue due to wastage of molasses in
the distilleries’. The stand of the appellants, thus, runs contrary to the
stand of the Comptroller and Auditor General, although the impugned demand
was made pursuant to or in furtherance of its report.
It will bear repetition to state that the appellants herein by issuing the
demand notices sought to give effect to the report of the Comptroller and
Auditor General. It is, therefore, not correct to contend that they
intended to recover the amount by way of compensation by alleging loss to
it for which respondents became liable in terms of condition No. 8 of the
tender notice (supra). Revenue being a subject-matter of legislation in
terms of Entry 8 of List II of the Seventh Schedule of the Constitution of
India, the recovery thereof must be made in terms of the provisions of a
legislative Act enacted pursuant thereto and not by reason of an executive
fiat.
As is evident, the appellants have sought to exercise its statutory power
and not a contractual obligation. Reliance placed in this behalf by Mr. Ray
on State of Orissa and Others v. Narain Prasad and Others, [1996] 5 SCC 740
is not apposite in the fact situation obtaining herein. The respondents
therein were the highest bidders in respect of the various liquor shops in
Orissa. Their bids were accepted. They executed agreements in the
prescribed form and were issued licences. Each of them had undertaken under
the agreement/contract to lift a particular specified quantity of liquor
every month. They carried on their business in terms of the licences but
failed to lift the agreed minimum guaranteed quantity and further failed to
remit the excise duty as provided under Rule 6-A. It was, in that
situation, this Court observed :
"...A person who enters into certain contractual obligations with his eyes
open and works the entire contract, cannot be allowed to turn round
according to this decision, and question the validity of those obligations
or the validity of the Rules which constitute the terms of the contract.
The extraordinary jurisdiction of the High Court under Article 226, which
is of a discretionary nature and is exercised only to advance the interests
of justice, cannot certainly be employed in aid of such persons. Neither
justice nor equity is in their favour."
Therein the liability of the respondents were found to have arisen from the
terms of contract qua contract. Such is not the position herein.
Mr. Ray, therefore, is not correct when he submits that such demand was
made in terms of the condition of the contract in respect whereof the writ
petitions of the respondents were not maintainable.
However, before we part with this case, we would like to clarify that the
opinion of the High Court to the effect that in view of the decision of
this Court in Synthetics and Chemicals (supra), the State has no
legislative competence even in relation to potable liquor (which is fit for
human consumption) is not correct. The legal position in this behalf has
succinctly been explained inter alia in State of U.P. v. Synthetics and
Chemicals Ltd., [1991] 4 SCC 139, State of U.P. and Another v. Synthetics &
Chemicals Ltd. and Another, [1993] 2 SCC 308 and Siel Ltd. and Others v.
Union of India and Others, [1998] 7 SCC 26.
For the aforesaid reasons and subject to the aforesaid modification of the
impugned judgment, we dismiss these appeals, There shall be no order as to
costs.
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