9911796707
TMI Blog2023 (11) TMI 1318X X X X Extracts X X X X X X X X Extracts X X X X ..... Assistant Commissioner'). In the cases mentioned herein below; the petitioners have claimed for the refund of similar duties, the cases are: "(1) In CWJC 4882 of 2020, the petitioner has challenged the order dated 25.09.2019 (Annexure-1), passed by the Commissioner of Excise, Bihar, and the order dated 22.07.2019 (Annexure-2) passed by the Joint Commissioner, State Taxes/Commercial Taxes, Barh Circle and consequently, sought refund of Excise Duty (2015-16), Bottling and License Fee (2015-16 & 2016-17), License Fees under Section 19B(2015-16 & 2016-17) and 19C(2016-17) (subject levies) and Value Added Tax (In short 'VAT') for the financial year 2015-16, amounting to Rs. 4,00,00,114/- along with applicable interest from the Respondents therein. Additionally, the petitioner has challenged the order dated 22.01.2020 (Annexure-3), passed by the Assistant Commissioner of Excise, Patna, by which he has directed adjustment of the amount refundable to the petitioner from the dues of the Bihar State Beverages Corporation Ltd. (2) In CWJC 4911 of 2020, the petitioner has challenged the order dated 25.09.2019 (Annexure-1), passed by the Commissioner of Excise, Bihar and consequ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... license fees on stocks which have been drained out, exported to other states and decanted for the year 2015-16 amounting to Rs. 1,199,87,257.00 and Advance excise duty, advance bottling fee, advance distributor's license fee. advance label registration fee and advance license fee for 2016-17 amounting to Rs. 3,47,770.00. (d) Petitioner 4 is claiming refund of Excise Duty deposited on stocks which have been drained out, exported to other states and decanted in the factory, Bottling fee on stocks which have been drained out and decanted and Distributor's license fees on stocks which have been drained out, exported to other states and decanted for the year 2015-16 amounting to Rs. 1,02,22,633.00 and Advance excise duty, advance bottling fee, advance distributor's license fee, advance label registration fee and advance license fee for 2016-17 amounting to Rs. 4,85,895.00. (4) Similarly in CWJC 5762 of 2020, the petitioner has challenged the order dated 25.09.2019 (Annexure-19), passed by the Commissioner of Excise, Bihar and consequently claimed for refund of Excise Duty, Bottling Fee and Distributor's License Fee amounting to Rs. 3,10,53,289.48; further it has also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ;BSBCL') one of the Government of Bihar Enterprises with an object of ease of doing liquor business in the State of Bihar through the BSBCL to wholesalers and retailers while getting supply from the petitioners' company. In this regard, BSBCL evolved Liquor Sourcing Policy, through which tenders were invited for supply of various kinds of liquor and beer. Accordingly, petitioners were supplying liquors to the BSBCL from time to time, such Liquor Sourcing Policy, 2013- 2014 was notified by means of Circular No. 1417 dated 26.03.2013. No agreement for 2016-17 was entered in term of Liquor Sourcing Policy of year 2015. 4. Petitioners had executed agreement with BSBCL for the Financial Year 2015-16. 5. State of Bihar- respondent No. 1 issued a notification dated 21.12.2015 of the New Excise Policy, 2015 for the State of Bihar which came into effect from 01.04.2016, by which State sought to prohibit the distribution and consumption of alcohol in State of Bihar in a phased manner. It has made provision only to the extent of prohibiting distribution and consumption of country- made liquor w.e.f. 01.04.2016. However, petitioners are all manufacturer of liquors other than the Coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h reference to deposit of interim VAT and excise duty which has not been utilized, it was to be refunded on proportionate basis. 13. State of Bihar passed the Bihar Prohibition and Excise Act, 2016 in order to enforce, implement and promote complete prohibition of liquor and intoxicants in Bihar and it came to be in vogue from 02.10.2016. In other words, State of Bihar re-imposed complete prohibition in the State. 14. State Government further proceeded to prohibit the manufacture of IMFL in the State of Bihar which was not prohibited on earlier occasion, in other words, petitioners were earlier permitted to manufacture foreign liquor. By notification dated 24.01.2017, the State Government even prohibited the manufacture of foreign liquor within the State of Bihar. The aforementioned notification also provided that no license would be renewed by the State Government post expiry of licenses on 31.03.2017. Confederation of Indian Alcoholic Beverage Companies preferred application before the Hon'ble Supreme Court seeking periodical extension of time for removal of stocks from the State of Bihar and for sale in other states. Hon'ble Supreme Court was pleased to allow for remov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng observations: - a. Respondent No. 2's position that the Respondent had provided ample opportunity to the Petitioner to export its Stock outside Bihar could not be a ground for denying the claims for refund of Excise Duty on stocks for those manufacturers that could not export finished goods/raw materials outside the State of Bihar. b. The claims for refund of Excise Duty on Stocks lying with Respondent No. 3 as on 31.03.2017 were required to be considered along with other claims for bottling and license fee. c. The Respondent were not entitled to retain Bottling and License Fees deposited by the Petitioners, since the same was only payable on "saleable stock" and the Respondent had destroyed such Stock of the Petitioner. 21. On 01.05.2019, order to the following effect was passed in CWJC No. 18064 of 2018 (Pernod Judgment) disposing of the writ petition:- a. Respondent No. 2 and Respondent No. 3 are under a duty to consider the representations of the Petitioner and dispose of the same. b. Respondent No. 2 and Respondent No. 3 to examine the Petitioner's claims after giving the Petitioners an opportunity of hearing, within 3 months. c. The Respondent to consi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 30.04.2019 passed in CWJC No. 15316 of 2017 read with CWJC No. 18064 of 2018 decided on 01.05.2019. 26. For consideration of the grievance of the petitioner Pernod another representation was submitted on 17.12.2020, thus, as there was no response from the Commissioner of Excise- BSBCL hence the present petitions. 27. Learned Senior Counsel, Mr. Dhruv Mehta appearing for petitioner-Pernod Ricard India (P) Limited (CWJC No. 6561 of 2021), firstly advanced the argument on preliminary issue of non-exhaustion of alternative remedy. It has been contended that impugned order/action of the respondents are arbitrary and violative of Article 14 of the Constitution which is contrary to the extant legal regime and ignorance of the orders of this Court passed in Pernod Judgment read with USL Judgment. It has also been submitted that respondents have not raised any objection in respect of maintainability of the petition by way of their respective pleadings in the counter affidavit and such issue was raised during the course of the argument on 24.08.2023. Further, it is contended that appeal against the impugned order would not be an alternative and efficacious remedy for the petitioner. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hose manufacturers of IMFL/BEER who could not export the finished goods or raw materials outside the State of Bihar during given period would not be liable for refund of the excise duty paid on the stocks. This aspect of the matter has again not been considered by the respondent no.3. We are willing to agree with the contentions of the petitioner that claim of the petitioner to extent of INR6,73,61,950/- for the refund of excise duty paid on stocks lying with the respondent no.4 and/or the petitioner as on 31.03.2017 is required to be considered along with the other claims on account of bottling and license fee which were deposited by the petitioner. Learned counsel for the petitioner has rightly submitted that the bottling and license fee would be payable on saleable stock of IMFL and since the respondents have destroyed the stocks of the petitioner, they are not entitled to retain the bottling and license fee deposited for these goods. The outstanding claims as shown above in the table on account of excise duty, 19C fees and bottling fee for the financial year 2015-16 together with the carry forward licence fee for the said period and the balance for the period 2016-17 are thus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he claim of the petitioner on identical grounds which had been rejected by this Hon'ble Court in USL Judgment. 31. Learned Senior Counsel, Mr. Dhruv Mehta on the aforementioned point submitted that Commissioner of Excise cannot reject the claim of the petitioners while assigning the identical reasons when the same has been turned down by this Court earlier in Pernod and USL Judgment. He has cited the decision in the case of Neelima Srivastava Vs. State of Uttar Pradesh and Ors, 2021 SCC online SC 610 (Para Nos. 27, 32 -36) in support of his argument that reconsideration of dispute, which have attained finality inter se parties, is not permissible. 32. It is further submitted that executive cannot sit in appeal over the judicial authorities' decisions and he cited the decision in the case of Union of India and Ors. Vs. K. Shankarappa (2001) 1 SCC 582 (Para 7). It is also submitted that decision of this Court is binding on the Commissioner of Excise. In support of this contention, he has been relying on decision in the case of Union of India and Ors. Vs. Kamlakshi Finance Corporation Ltd., 1992 Suppl (1) SCC 648 (Para Nos. 4,6 and 7). It is also submitted that administrativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 36. It has been submitted that this Court has power to invoke its writ jurisdiction to grant refund of statutory levies collected/retained without the authority of law. On this issue, he relied on decision in the case of USL & Pernod Judgment. 37. It is further submitted that tax cannot be levied or retained without the authority of law and refund of such tax can be sought as a consequential relief in writ proceedings. On this point, he has relied on Idea Cellular Limited vs. Union of India, (2015) SCC OnLine P&H 6354 (Para Nos. 14-19, 21- 22), U.P. Pollution Control Board and Ors. Vs. Kanoria Industrial Limited and Anr. reported in (2001) 2 SCC 549 (Para 9, 12 & 17) and Salonah Tea Company Limited & Ors. vs. Superintendent of Taxes, Nawgong & Ors, (1998) 1 SCC 401 (Para No. 6). 38. Learned Senior Counsel, Mr. Gopal Jain appearing on behalf of the United Spirits Limited (CWJC No. 4882 of 2020) submitted that petitioners cannot be relegated to invoke alternative remedy since this preliminary objection does not oust the jurisdiction of this Court. In support of this contention, he relied on the following decisions:- (i) M/s. Godrej Sara Lee Ltd. (cited supra) (ii) Siemens Ltd ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bihar. Therefore, there is no identification of particular designated officer. He has also pointed out from Rule 20 and 24 of Bihar Prohibition and Excise Rules, 2021 notified on 27.09.2021 does not specify, as to who shall be the appellate authority. Rule 20 is relating to appeal whereas Rule 24 is relating to procedure of revision. No doubt, Secretary of the department has been identified to decide revision at the same time it is to be noted that in the present case Commissioner of Excise is also holder of the post of Secretary to the Excise Department. Therefore, it is impracticable to prefer any appeal or revision against the impugned orders of Commissioner of Excise. Therefore, the present writ petition is maintainable. 43. Learned counsel, Mr. Satyabir Bharti reiterated the arguments advanced by the learned Senior counsels insofar as impugned order of the Commissioner Excise read with the decision rendered in the United Spirits Limited and Pernod judgment in respect of refund of various levies/fees like Excise Duty, distributor fee, bottling fees, import fee, on stock destroyed at the end of BSBCL and manufacture (plant), which could not be exported during the period fro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is withdrawn without any prior notice. The licenses of the petitioners were withdrawn without any prior notice and therefore they are entitled for refund of the excise levies in question. 46. Referring to the impugned orders passed by the Assistant Commissioner Excise, who proceeded to adjust demurrages fee levied by BSBCL on 26.09.2019, with reference to demurrages ordered by BSBCL dated 13.08.2019, it was contended by the Learned Counsel Sri Satyabir Bharti that the same is not permissible and without authority of law in the light of Section 93 of Bihar Excise Act, 1915. On this point, learned counsel for the petitioner pointed out sub-section (9) of Section 2 of Bihar Excise Act, 1915 defines 'Excise Revenue' and demurrage charge levied by BSBCL is not an Excise Revenue, which alone can be recovered by an Excise Officer under Section 93 of the Act. 47. He has pointed out that no doubt Clause 16(d) of Liquor Sourcing Policy 2013-14 on 26.03.2013 relates to demurrages as demanded by the BSBCL, but Clause 16(d) can only be applied under the circumstance that sale of liquor though permitted in the State, it could not be sold resulting it being declared an inactive stock an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a (In-charge) towards unsold stocks and such stocks have been destroyed at the behest of State-respondents. 50. Thus it has been submitted that in the light of judicial pronouncements, petitioners are entitled to refund of subject levies and the same cannot be withheld by the respondents. 51. Mr. P.K. Shahi, learned Advocate General representing State-respondents submitted that the writ petitions filed by the petitioners are not maintainable in the light of Section 92 and 93 of Bihar Prohibition and Excise Act, 2016 (for short 'Act, 2016') read with Rules 20 & 24, appeal and revision, Bihar Prohibition and Excise Rules, 2021 (for short 'Rules, 2021') read with Clauses 3(i) and 3(ii) of Fourth Schedule of Rules of Executive Business, 1979 (for short 'Rules 1979'). It has been submitted that petitioners have statutory remedy of appeal and revision. In the absence of identification of appellate authority in the Act, 2016 and Rules, 2021 the appellate authority could be identified under Rules, 1979 (cited supra) to the extent that against the order of Excise Commissioner appellate authority shall be the departmental Secretary or concerned Minister. It is furth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the liquors sourcing policy). These are the material from which it is evident that respondent-Corporation is empowered to levy demurrages in respect of stocks of the petitioners lying with the Corporation. It is further submitted that earlier judgment of CWJC No. 15316 of 2017 decided on 30.04.2019 only remanded the matter to the Excise Commissioner to take decision. It was an open remand. Therefore, under Section 27 and 28 of Bihar Excise Act, 1915 read with Rule 147 excise duty can be levied. In support of the aforementioned issue, he relied on decision of the Hon'ble Apex Court in the case of Mohan Breweries & Distilleries Limited vs. commercial Tax Officer, Madras & Ors. reported in (1997) 7 SCC 542 (Para 6,7 and 8). He has also cited decision in the case of Moriraku UT India (P) Limited vs. State of Uttar Pradesh & Ors. reported in (2008) 4 SCC 548 (Para 15 and 23). 55. It has also been submitted that insofar as challenge to the order dated 22.07.2019 of the Joint Commissioner (Annexure-2), the petitioners have a statutory remedy under Rule 73 of the Bihar Value Added Tax Rules, 2005. 56. It has further been submitted that under Section 27 of Bihar Excise Act, 1915 re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s no agreement executed in the light of new liquors source policy issued in the year 2016, the fact which has not been disputed or denied in the Counter affidavit filed by BSBCL. Therefore, in the absence of any agreement, question of levying demurrages on the petitioner in the light of liquor sourcing policy in the year, 2016 is impermissible. In terms of Annexure-12 dated 30.03.2017, stocks could be taken away from the State of Bihar and time limit was fixed. By that time, the stocks of beer had been rendered unfit for human consumption. Thereafter, it was extended upto 31.05.2017. Further, it was extended upto 31.07.2017. In fact, earlier petition was filed vide CWJC No. 6467 of 2019 by Molson Coors for refund of deposits and it was disposed of on 07.05.2019 directing the concerned parties to hear and dispose of the grievance of the petitioner by a reasoned and speaking order. 60. Mr. Aditya Mukherji, learned Counsel in CWJC No. 4882 of 2020 (United Spirits Limited vs. The State of Bihar & Ors.), CWJC No. 4911 of 2020 (Bacardi India Private Limited vs. The State of Bihar & Ors.) and CWJC No. 6561 of 2021 (Pernod Ricard India (P) Ltd. vs. The State of Bihar & Ors.), countered th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcise Commissioner cannot travel beyond the order of this Court insofar remanding the matter. 63. Mr. Aditya Mukherji, learned counsel for the petitioner further submitted that decisions cited on behalf of State, viz, Moriraku (cited supra) is not assisting the State. On this case, he has pointed out decision of the Hon'ble Apex Court reported in (1994) 6 SCC 610 Indian Cable Company vs. Kolkata (Para 12 and 13). Further, it is submitted that levy of excise duty is required to be taken note of with reference to marketability of the liquor product. It is submitted that Section 27 of the Act, 1915 read with Section 2(15) and Section 2(6) relate to manufacture and excisable article (duty is only on sale of excisable article). It is further submitted that Rule 147 of Rules, 1919 read with Notification dated 05.04.2006 has no relevancy to the case in hand. It does not stipulate incidence of excise duty but only provides for the rates on which the excise duty is to be levied. There is only one component of levying excise duty, i.e., sale. 64. It is further submitted that Section 3 and 3A of Bihar Value Added Tax Act, 2005 are relating to sale or purchase. In fact, Section 3Ais rela ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ods manufactured or produced elsewhere in India:- (a) alcoholic liquors for human consumption; (b) opium, Indian hemp and other narcotic drugs and narcotics; but not including medicinal and toilet preparations containing alcohol or any substance included in sub-paragraph (b) of this entry. (Underlined for Emphasis) (II). Sections 2(21), 2(22), 2(25) and 27 of Bihar Prohibition and Excise Act, 2016: 2(21) "duty" means the excisable duty or the countervailing duty as mentioned in Entry 51 of List -II of Seventh Schedule of the Constitution, or as the case may be; 2(22) "excisable articles or items" means- (i) any liquor or intoxicant as defined under this Act; or (ii) any intoxicating drug; or (iii) any intermediate/final product that serve as raw material to any alcohol; or (iv) Any item or substance that can be used as a substitute of alcohol; or (v) Any item or substance that can be used or consumed for the purposes of intoxication. 2(25) "excise revenue" means revenue derived or derivable from any duty, fee, tax, payment (other than a fine imposed by a Criminal Court) or confiscation imposed or ordered under this Act or any other law for the time being i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch duty. Subject to any rules made under Section 60, clause (12) any duty imposed under Section 27 may be levied in any of the following ways:- (a) on an excisable article imported- (i) by payment (upon or before importation) in the State or territory from which the article is brought, or (ii) by payment upon issue for sale from a warehouse established, authorised or continued under this Act, (b) on an excisable article exported- by payment in the State or territory to which the article is sent; (c) on an excisable article transported - (i) by payment in the district from which the article is sent, or (ii) by payment upon issue for sale from a warehouse established, authorised or continued under this Act (d) on intoxicating drugs manufactured, cultivated or collected -(i) by a rate charged upon the quantity manufactured under a licence granted in respect of the provisions of Section 13, clause (a), or issued for sale from a warehouse established, authorised or continued under this Act, or (ii) by a rate assessed on the area covered by, or on the quantity or out turn of, the crop cultivated or collected under a licence granted in respect of the provision of Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le has been issued by the fifth of the following month:] [Provided [further] that in case of any revision in the rate of duty on an excisable article, the difference of duty shall be realised from or credited to the licensee, to whom such article has been issued on payment of duty prior to such revision according as the revised rate of duty is higher or lower than the old rate and the calculation of the difference of duty shall be made on the quantity of such article that may remain in possession of such licensee when the revised rate of duty comes into force. (Underlined for Emphasis) Section 92 of the Bihar Prohibition and Excise Act, 2016: 92. Appeals.-(1). All final orders passed by any Excise Officer other than the Excise Commissioner or Collector under this Act, shall be appealable to the Collector within sixty days from the date of the order. (2). All final orders passed by the Collector and Excise Commissioner shall be appealable to the Excise Commissioner and the State Government respectively within ninety days from the date of the order complained of. Provided that no second appeal shall lie against an order passed by the Excise Commissioner on appeal. (3) T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cial or their participation in workshop etc organised in foreign countries (where other expenses. except the internal training expenses are being borne by external sources). (v) Foreign training of State Officials or participation in workshop etc. organised in foreign countries (where internal travelling expenses along with whole or part expense are to be borne by the State Government). (vi) Training of officers of the All India Services within and outside the country or participation in workshop etc. (vii) Foreign tour (on personal expenses of the official) (i) Secretary (ii) Minister (iii) Secretary (iv) Chief Minister (v)Chief Minister (vi) Chief Minister (through Chief Secretary) (vii) Minister *Amended by Notification No.-602. Dt-20.03.2007 of Cabinet Secretariat Department. **Amended by Notification No.-306, Dt-17.03.2017 of Cabinet Secretariat Department. 7. Issuance of No-Objection Certificate for obtaining Passport. (i) Secretary of the cadre controlling department in respect of gazetted officers. (ii) In respect of non gazetted employees the Head of the Department under the cadre controlling department and where there is no Head of the Department, such of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 92 and further revision under Section 93 of Act, 2016. Perusal of the aforementioned Sections reveals the State was required to issue statutory Rule under Section 93(3). Rules were framed in the year, 2021 and the relevant Rules are 20 and 24 of Rules, 2021. In the absence of Rules framed under Act, 2016 whether Rules, 1979 read with Schedule-4(3)(i) would be taken note of to the effect that in the absence of any identification of appellate or revisional authorities it could be identified under Rules, 1979 or not? Section 92(3) of Act, 2016 is crystal clear that Rules were required to be framed under the Act, 2016, such Rules were framed in the year, 2021. Reading of Rules 20 and 24, it is not crystal clear that appeals against the Excise Commissioner lies to which authority. Rules, 1979 stipulate departmental Secretary/concerned Minister. Rules, 1979 is not attracted for the reasons that under Section 93(3) of Act, 2016 there is a specific provision in respect of framing of Rules and Rules were framed in the year 2021 and it is prospective in nature. Appellate authority is not identified. On the other hand Revisional authority is identified as Department Secretary under R ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Act, 1915 read with Rule 147 of Rules, 1919. Therefore, Excise Department has no power to impose or collect excise duty on unutilized liquor stocks. In other words, there is no sale of liquor of particular stocks for which the petitioners are demanding for refund of excise duty collected in advance, hence, levying of excise duty is without authority of law. It is further submitted that authorities are exercising quasi-judicial powers they have not assigned reasons for example denial of import fee no reasons have been assigned to that effect there is no application of mind. It is also submitted that Excise Commissioner and other authorities who have passed the impugned orders have travelled beyond the order of remand. Even on this point, the petitioners need not exhaust the statutory remedy of appeal. 74. The petitioners have cited number of decisions on the issue of maintainability of the writ petition (i) Neelima Srivastava Vs. State of Uttar Pradesh and Ors, 2021 SCC online SC 610 (Para Nos. 27, 32 -36). (ii) Union of India and Ors. Vs. K. Shankarappa (2001) 1 SCC 582 (Para 7). (iii) Union of India and Ors. Vs. Kamlakshi Finance Corporation Ltd., 1992 Suppl (1) SCC ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ited vs. State of Bihar & Ors. reported in 2021:INSC:539 : 2021(4) PLJR 142 (SC). 76. Instead of examining of each and every cited decisions on behalf of the petitioners and learned Advocate General, we thought of taking note of later decision of the Hon'ble Apex Court namely M/s. Godrej Sara Lee Ltd. Vs. The Excise and Taxation Officer cum Assessing Authority and Ors. reported in 2023 SCC OnLine SC 95 in which it is held that mere availability of an alternative remedy of appeal/revision would not oust the jurisdiction of the High Court under Article 226 of the Constitution of India. The analysis of the aforementioned decision the power is required to be taken note of for the purpose of entertaining the writ petition under Article 226 of the Constitution of India despite the fact that party has a statutory remedy. "(i) The power under Article 226 of the Constitution of India to issue writs can be exercised not only for the enforcement of fundamental rights, but for any other purpose as well; (ii). The High Court has discretion not to entertain the writ petition. One of the restrictions placed on the power of the High Court is an effective alternative remedy is available to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cise duty etc. On the other hand, Excise Commissioner has reiterated the earlier decision in the impugned order. Rules, 1979 read with Schedule 3(i) is not attracted. It is only for the purpose of administration. Further when there is specific provision under Section 92(3) of Act, 2016 for framing of Rules and identification of appellate/revisional authority and the same has not been acted upon, hence, Rules, 1979 is not attracted. Rules, 2021 were notified subsequent to the impugned orders and filing of these bunch of petitions. Even Rule 24 of Rules, 2021 there is no identification of Appellate authority and on the other hand Revisional authority has been identified as Departmental Secretary. Moreover, there are no new reasons assigned by the Excise Department with reference to remand by this Court on earlier occasion. Therefore, there is no point in invoking remedy of appeal. That apart, it is learnt that Excise Commissioner is holder of the post of Departmental Secretary. On all these points, petitioners have made out prima facie case so as to entertain the present writ petitions in the absence of invoking statutory remedy before the appellate and revisional authorities. 78. O ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ehouse and sale of liquor. The overall intention of the State is to levy excise duty on alcoholic liquors for human consumption. Therefore, levy of excise duty or retention of petitioners' money towards the levy of excise duty or any adjustment of excise duty towards destroyed liquor stocks is without authority of law. 81. At this stage, it is beneficial to take note of decision of the Hon'ble Apex Court in the case of State of Orissa and Ors. vs. Utkal Distilleries reported in (2022) 5 SCC 326. The relevant para nos. 17 to 23 reads as under:- "17. The Constitution Bench of this Court in Synthetics & Chemicals [Synthetics & Chemicals Ltd. v. State of U.P., (1990) 1 SCC 109] was considering the issue, as to whether the States are entitled to levy excise duty in respect of industrial alcohol. Different legislations in the different States dealing with such a power of the State Government came up for consideration before the Constitution Bench of this Court in the said case. The Constitution Bench observed thus : (SCC pp. 160-62, paras 95-101) "95. It was also contended that the State ultimately falls back on the consideration for parting with the privilege to sell alcoho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lly been put within the authority of the State for purposes of taxation. 98. Entry 8 in List II reads: '8. Intoxicating liquors, that is to say, the production, manufacture, possession, transport, purchase and sale of intoxicating liquors.' This entry talks of intoxicating liquors and further on refers to production, manufacture, possession, transport, purchase and sale of these liquors. It appears that the State has levied some kind of duties in various names at each of these stages used in this entry, that is, production, manufacture, possession, transport, purchase and sale. But from the scheme of entries in the three Lists it is clear that taxing entries have been specifically enacted conferring powers of taxation whereas other entries pertain to the authority of the legislature to enact laws for purposes of regulation. If we compare Entry 8 in List II with Entry 51 it is clear that when Entry 51 authorises the State Legislature to levy tax and duties on alcoholic liquors falling in Entry 51, Entry 8 confers authority on the State Legislature to enact laws for regulation. Similarly are entries in List I. As regards regulation or regulatory fees it was contended th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s to levy excise duty upon in the Group 'B' cases is the wastage of liquor after distillation, but before dilution; and, in the Group 'D' cases, the pipeline loss of liquor during the process of manufacture, before dilution. It is clear, therefore, that what the State seeks to levy excise duty upon is not alcoholic liquor for human consumption but the raw material or input still in process of being rendered fit for consumption by human beings. The State is not empowered to levy excise duty on the raw material or input that is in the process of being made into alcoholic liquor for human consumption." 20. It could thus be seen that this Court held that the State was only empowered to levy excise duty on alcoholic liquor for human consumption. This Court held that the State has no power to levy excise duty on wastage of liquor after distillation. 21. Even the perusal of Section 27(1) read with Section 2(6) of the erstwhile Bihar and Orissa Excise Act, 1915 (hereinafter referred to as "the said Act"), which governed the field at the relevant time, would clarify the position. They are reproduced hereunder: Section 2(6) "2. Definitions.- In this Act, unless there ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of" 82. In the light of above decision that levy could be only on sale or liquor for human consumption and in the present case for destroyed liquor, levy of Excise duty is not permissible. 83. (a) Petitioners' cited decision in the case of Neelima Srivastava (cited supra), on the issue of reconsideration of disputed issues which have attained finality among the inter se parties is not permissible is relevant to the case in hand in view of the fact that this Court in the case of USL and Pernod Judgment has already considered those issues. Therefore, decision of the Excise Commissioner reiterating the same reasons for rejection of the petitioners' claim is impermissible, would assist the petitioners' contention to the extent of findings of this Court in the USL and Pernod Cases. (b) Levy of Duty or retention of the Excise Duty is without authority of law. On this point, petitioners' have cited the decision in the case of Idea Limited, U.P. Pollution Control Board, Salona Tea Company Limited (cited supra), this decision assists the petitioners' case. (c) Imposition of VAT could only on sale of liquor. On this point, petitioners cited the decision in the case o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ellate Authority has not been identified. (g) Learned counsel for the petitioners submitted that privilege fee has been levied for parting with the privilege and once it has been withdrawn in that event petitioners are entitled for refund of levies. 84. The respondents have taken a policy decision that they would not realize levy of excise duty for the year 2016-17 for unutilized liquors stocks. The same yardstick is applicable to the previous period, i.e., from 02.04.2016 to 05.04.2016 and for subsequent period in view of the fact that total ban of liquors sale in the State of Bihar. It is a State policy decision to ban manufacture, sale of liquor in the State of Bihar, in such an event State should have been fair in not levying excise duty in respect of unutilized liquor. That too, certain stocks have been destroyed in the light of aforementioned policy of banning manufacture, sale and consumption of liquor in the State of Bihar. Once the liquor stocks were destroyed at three points stated (supra) it is not a consumable and impracticable to consume such destroyed liquors. In other words this is wasteful and it is not available for human consumption so as to levy excise duty. 8 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of Bihar, Patna dated 25.09.2019 (Annexure- 1), fourth respondent-Joint Commissioner of Commercial Taxes, Bihar, Patna/Joint Commissioner of State Tax (I/c), Barh Zone, Barh, Patna dated 22.07.2019 (Annexure-2) and third respondent-Assistant Commissioner, Excise, Patna order dated 22.01.2020 (Annexure-3), in CWJC No. 4911 of 2020, the impugned orders passed by the second respondent-the Commissioner Excise, Govt. of Bihar, Patna dated 25.09.2019 (Annexure-1) and third respondent-Assistant Commissioner, Excise, Patna order dated 09.12.2019 (Annexure-2), in CWJC No. 5376 of 2020, the impugned orders passed by the second respondent-the Commissioner Excise, Govt. of Bihar, Patna dated 25.09.2019 (Annexure-15) and third respondent-Assistant Commissioner, Excise, Patna orders dated 09.12.2019/22.01.2020 (Annexure-17 series), in CWJC No. 5762 of 2020, the impugned order passed by the third respondent-the Commissioner Excise, Govt. of Bihar, Patna dated 25.09.2019 (Annexure- 19), in CWJC No. 7461 of 2020, the impugned order passed by the second respondent-the Commissioner Excise, Govt. of Bihar, Patna dated 25.09.2019 (Annexure- 14) and third respondent-Assistant Commissioner, Excise, Patn ..... 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