K.S. Sidhu, J.
1. The petitioner M/s Sona Distilleries Ltd. is a public limited company incorporated under the Companies Act, 1956. It is engaged in the business of manufacture and distillation of liquor, its distillery is situate at Alwar in the State of Rajasthan. Rectified spirit from which liquor is manufactured by the petitioner is obtained by it from other distilleries and is stored in storage vats kept in the bonded ware house of the premises of the petitioner's distillery. The receipt, storage and issue of the rectified spirit is conducted under the direct control and supervision of the Excise Department of the State. Wastage of the rectified spirit occurs due to evaporation in the process of storage, distillation, redistillation, blending and bottling of the potable liquor. The unfinished spirit which is good enough for redistillation remains stored in the distillery premises under the control and supervision of the excise officers of the State Government.
2. Section 16, Rajasthan Excise Act, 1950 (for short, the Act) which deals with manufacture of excisable articles including liquor enjoins inter alia that no distillery shall be worked except under the authority and subject to the terms and conditions of a licence granted in that behalf by the Excise Commissioner. Section 17 of the Act confers power on the Excise Commissioner to licence the construction and working of a distillery or pot-still on such conditions as the State Government may impose. One of the conditions imposed by the State Government (See notification No. F. 1(197)FD/RI/64, dated 16th May, 1967) Lays down that the distiller shall make adequate arrangements and be responsible for the safe custody of the stocks of spirit etc. as directed by the Excise Commissioner in the distillery and shall be liable to make good any loss of revenue caused to the Government by his mistake, fraud, or negligence or that of his employees and agents. In exercise of his powers under Section 42 read with Section 16 and 17 of the Act, the Excise Commissioner has made rules, called the Rajasthan Distillery Rules, 1977 (for short, the Distillery Rules). Rule 4 of the Distillery Rules provides that licence for the construction and working of a private distiller, like the petitioners in the present case, for the manufacture of Indian Made Foreign Liquor (IMFL) shall be granted in form RDI A reference to form R.D. 1 as given in the Distillery Rules would show that one of the contention of the grant is that the licence shall comply with all rules as may be made from time to time by the Excise Commissioner and the State Government for the security of Excise revenue and for regulating the manufacture of IMFL Another condition in the licence is to the effect that any infraction by the licensee of the terms and conditions of the licensee shall involve forfeiture of the licence. Rules 10 and 11 of the Distillery Rules are also imported in that they make it further clear that the Government shall not be liable for the loss of any spirit started in the distillery by fire or theft or by gauging or proof or by any other cause whatever, and that the distiller shall be liable to make good any loss of revenue thereby caused to the Government.
3. Having regard to the feet that some loss or wastage of spirit is unavoidable in storage in the ware house, manufacturing in the distillery and in the process of blending, reducing and bottling operations, the Excise Commissioner has made rules under Section 42 of the Act, called the Rajasthan Stock taking and Wastage of Liquor Rules, 1959 (for short, the Wastage Rules) providing for free allowance for the wastage of different kinds of spirits. Sub-rules (1) and (5) of rule 4 of the wastage Rules prescribe limits for free allowance for wastage in the different process of manufacture of potable liquor as mentioned above. Sub-rule (2) of rule 4 provides that in the event of wastage being found in excess of the prescribed limit the officer-incharge of the distillery shall obtain written explanation from the distiller and forward the same together with a full report of the circumstances to the District Excise Officer and the letter will investigate into the matter and in turn report to the Excise Commissioner. Sub-rule (3)&(4) of Rule 4 lays dawn that wastage for the purpose of collection of duty shall be calculated annually at the end of each financial year, and if the total excess wastage of any kind of spirit does not exceed 2.5%, duty will be charged by the Excise Commissioner on the net wastage in excess of the free allowance, but if the total excess wastage exceeds 3% duty shall be liable to be charged on the whole or wastage without allowing for the free allowance at the rate of duty leviable on the spirit.
4. On January 31, 1983, the District Excise Officer, Alwar addressed a letter to the petitioner apprising the letter that a sum of Rs. 486437.50 on excess wastage of 19487.50 LP litres and a sum of Rs. 64699.00 on excess wastage of 2587.96 LP litres of spirit in all Rs. 5,51136.50 at the rate of Rs. 23/- per LP litres were payable by the petitioner for the financial year 1980-81, and that the petitioner should deposit the said amount in the State treasury under intimation to the Excise Department, failing which necessary proceedings will be taken at the risk and responsibility of the petitioner himself.
5. The petitioner made a written reply to the aforesaid letter on March 18, 1983. He informed the District Excise Officer that the first lot of spirit i.e. 19457.50 LP litres was physically available in the premises of the distillery and that a part thereof had been sold by the petitioner to the Udaipur Distillery on August 20, Inland the rest had been redistilled to manufacture silent spirit and IMFL. The petitioner therefore requested the DEO to drop the demand of Rs. 486437.50 on that quantity and refrain from realizing tint amount from the petitioner The reply is silent about the demand of the DEO for payment of Rs. 64699/- in respect of the second lot of 2587.05 LP litres indicating that the petitioner had no objection to pay that amount. The DEO accepted the request of the petitioner, vide his latter dated, March 18, 1983, and wrote back that the petitioner's request for drooping the demand for payment of Rs. 486437.50 was being referred to the Excise Commissioner for appropriate orders and that therefore the petitioner may deposit the amount of Rs. 64659/- alone.
6. Instead of depositing the amount of Rs. 64699/- in respect of the excess of wastage of 2587.96 LP litres of spirit which was after all, what the petitioner had itself asked for, the petitioner filed the present writ petition on March 23, 1983, challenging the validity of the letter, dated, January 31, 1983 whereby the DEO had called upon the petitioner to deposit the entire amount, including the amount of Rs. 486437.50 which was subsequently dropped and which was instead referred to the Excise Commissioner for his decision. Now, the dispute regarding the demand of Rs. 486437.50 is pending decision before the Excise Commissioner. The said officer is an authority competent under the Wastage Rules to decide this matter. It appears that the DEO who has referred to the Excise Commissioner for his decision prima facie found merit in the contention of the petitioner that the quantity of 19452.50 LP litres was physically available in the distillery at the relevant time and that therefore it could not be counted as wastage. In any case, the issue as to whether or not the quantity of 19457.50 LP Litres of spirit was physically available in the premises of the distillery at the end of the financial year 1980-81 is an issue of fact which can more conveniently and effectually be decided by the Excise Commissioner rather than by this Court. I would therefore leave this issue to be decided by the Excise Commissioner and confine myself to the alleged excess wastage of 2567.96 LP litres of spirit involving the payment of a sum of Rs. 64699/- only.
7. The petitioner has challenged the demand of Rs. 64699/- on the following grounds:
(i) The demand in question is tantamount to a duty of excise on 2567.96 LP litres of spirit which, according to the respondent's own case consists of spirit wastage in excess of the prescribed limit for free allowance for wastage. Excise duty is leviable under Entry 51. List IX, Seventh Schedule of the Constitution of India on the manufacture or production of 'alcoholic liquors for human consumption'. If some spirit is wasted or destroyed in the process of manufacturing alcoholic liquor for human consumption, the spirit wasted or destroyed cannot by any means be taken to be alcoholic liquor manufactured or produced for the purpose of levy of excise duty.
(ii) Excise duty is leviable on alcoholic liquor for human consumption. Spirit is not 'Alcoholic liquor for human consumption' within the purview of entry 51 List, II of the Seventh Schedule of the Constitution, So Excise duty can therefore be levied on spirit as such.
(iii) Section 28 of the Act under which excise duty is levied on excisable read with notification No. P. 4(22)FD/P-IV/77-24, dated March 30, 1977, issued under that section, would clearly show that excise duty has been levied on the manufacture of IMFL of the strength of 42% or more of proof spirit the rate of Rs. 25/- per LP litre. No excise duty is leviable thereunder on rectified spirit.
(iv) The petitioner had procured its supplies of rectified spirit from other distilleries. Excise duty had already been paid on the spirit so procured. Excise duty is a single paint levy. No further excise duty could therefore be levied on the rectified spirit procured by the petitioner notwithstanding the fact that a portion of the spirit procured had been excessively treated in the premises of petitioner's factory.
(v) The Wastage Rules are arbitrary and unreasonable and therefore violative of the petitioner's fundamental right under Articles 14 and 19 of the Constitution. The storage of spirit in the bonded ware-house of the petitioner and the process of manufacture of liquor therefore are conducted under the direct control and supervision of the Excise Department Wastage of spirit in this process is a natural and unavoidable phenomenon. Any duty levied on wastage is therefore an unreasonable impost. Moreover, the Wastage Rules are ultera vires Section 42 of the Act.
(vi) The amendment of Wastage Rules, vide notification, dated, August 20, 1981, is unconstitutional in much as it does not provide for any tree allowance on wastege as a result of redistillation and in any case such an arbitrary amendment cannot be lawfully applied with retrospective effect.
(vii) The impugned notice of demand is bad inasmuch as it does not indicate the provision of law under which it has been issued.
8. It will be seen from the contentions raised on behalf of the petitioner and enumerated above that contentions enumerated as (i), (ii), (iii) and (iv) have been raised on the erroneous assumption that the notice requiring the petitioner to deposit a sum of Rs. 64699/ by way of what is described as as duty on excess wastage in sub-rule (3) of rule 4 of the Wastage Rules on the excess wastage by the petitioner of rectified spirit, measuring 2567 96 LP litres, is a duty of excise imposed under Section 28 of the Act There is in my opinion, no warrant for treating the impugned demad as a deamand for payment of 'Excise duty' imposed under Section 28 of the Act. The impugned notice dated, January 31, 1983, does not describe it to be an excise duty under that section. In fact, the petitioner's grievance is that the notice is bad because it does not indicate the provision of law under which it was issued It is true that sub-rules (3) and (4) of rule 4 of the wastage rules which apply to this case and under which the demand has in fact been raised use the words 'duty' in respect of the amount to be charged to a person like the petitioner manufacturing liquor under the licence granted by the Excise Commissioner of we read the Wastage Rules a little more clearly and carefully in the context If the Act and the Distillery Rules, it will become at once clear that the word 'duty' is not used in the Wastage Rules in the technical sense of duty of excise or tax as known to law. A tax is a compulsory exaction of money by a public authority for public purpose which could not be levied or collected except by authority of law. Similarly excise duty is also tax imposable on the manufacture or production of goods within the country and it could only be to imposed by the legislature. The so called duty on excess wastage as demand in the instant case is neither a tax nor a duly of excise imposed under Section 28 of the Act. It is on the other hand an amount which, though described for the sake of convenience as 'duty' on excess wastage is in fact a reimbursement of the State to the extent of the amount computed in terms of the amount of duty of excise on the IMFL. which the Government would have earned if the petitioner had taken adequate care and thus avoided the excessive wastage of rectified spirit imported by the petitioner from their distilleries under a perrait granted by the Government, and had used that spirit properly for manufacturing IMFL.
9. This approach to the problem in hand is supported on the facts of this ease and by some recent judgments of the Supreme Court, including a judgment by the Constitution Court. The Constitution Bench held in H.R. Sukhdev v. Deputy Excise Taxation and Commissioner AIR 1973 SC 1121 that there is no fundamental right to do trade or business in intoxicants and that the State has the right to prohibit absolutely every form of sentivity in relation to intoxicants like their manufacture, storage import and sale. Their Lordships further held that the State has every right to permit dealings in intoxicants on such terms of general application as the State deems expedient and that on the basis of such terms of general application, the State may permit a citizen to manufacture of said liquor for consideration. It was in this context that their Lordships made it clear that though such consideration is quite often referred to as liquor fee or fee, but it is, strictly speaking, not a fee in the farms of a quid proquo for services rendered, but it is a excise or consideration which the Government charges to the licensee for parting with the privilege of manufacturing liquor. In other words, the court is not to go just by the descriptive label of particular price consideration or amount of demand raised against a licensee, but it must go deeper and find out the real nature of the demand to be able to decide whether it is a tax, excise duty, fee or none of these. If any demand raised is not in the nature of a tax excise duty or fee, and instead it is plainly in the nature of a demand by the Government calling upon the licensee to perform his part of the contract and pay the agreed price or consideration for the privilege of manufacturing liquor granted to him, the licensee cannot be heard saying that since the demand is raised by calling it 'duty' the same is bad on that ground alone and he is not liable to perform his contractual obligation.
10. In Noshirwar v. State of Madhya Pradesh : 2SCR861 , their Lordships of the Supreme Court referred to a number of earlier rulings of the Supreme Court and of the U.S. Supreme Court and concluded by holding that the State has the exclusive right or privilege of manufacturing and selling liquor and that it may grant such a right to a citizen for a price or consideration. Their Lordships quoted with a approval from the recommendations of a Committee appointed in 1894 to investigate the excise system, and pointed out that in addition to the excise duties, the State may also change a licence fee or consideration from a licensee for the privilege of manufacturing liquor granted to him. While analysing the duel, liability of a licensee to pay such charge the court must draw a distinction between the excise duty properly so called and the additional licence fee or consideration permitted to be paid by him for the privilege of manufacturing liquor granted to him.
11. Their Lordships had the opportunity to deal with this question once again in Pannalal v. State of Rajasthan : 1SCR219 . It will be useful to reproduce here head-note A of the report of the judgment as under:
The licence fee stimulated to be paid by the liquor contractors is the price or consideration or rental which the Government charges from the licensee for parting with its privilege in stipulated lump sum payment and is a normal incident of a trading or business transaction. The State has exclusive right to manufacture and sell liquor and to sell the said right in order to raise revenue. The nature of the trade is such that the State conform the right to vend liquor by farming out either by auction or by private treaty. Rental' is the consideration for the privilege granted by the Government for manufacturing or vending liquor. Rental in neither a tax nor an excise duty. Rental is the consideration for the agreement for grant of privilege by the Government.
12. It is in the background of these rulings of the Supreme Court that one must try to understand as to whether the demand in question consists of an excise duty properly so called, or else it is merely demand for payment of price or consideration for the privilege of manufacturing liquor granted by the State Government to the petitioner. As already stated, the petitioner is engaged in the business of manufacture of IMFL, and is running a distillery at Alwar for this purpose. The petitioner has not placed on the record the licence obtained by him from (he Excise Commissioner for running the said distillery. The Court may however legitimately presume that the licensee must have been granted by the Excise Commissioner inform RD 1 in accordance with rule 4 of the Distillery Rules. As already noted while reviewing the relevant provisions of Act the Distillery Rules and the Wastage Rules one of the conditions of the grant of licence is that the licensee shall be liable to make good any loss of revenue caused to the Government as a consequence of the loss or wastage of spirit stored in the distillery by fire or theft or by gauging or proof or by any other cause whatever (Emphasis supplied). The rationale of this condition is quite understandable. The petitioner admittedly imports supplies of rectified spirit from other distilleries under permit granted by the State Government. The petitioner holds a licence for the distillation and manufacture of IMFL granted by the Excise Commissioner. The petitioner is liable to pay excise duty under Section 28 of the Act on the IMFL of the strength of 42% or more proof manufactured by him at the rate of Rs. 25/-per LP litre. In addition to the excise duty which is a statutory imposition, the petitioner has also agreed to pay a price or consideration for the privilege of manufacture of IMFL granted to him by the State Government. The payment of what is described as 'duty on excess wastage' in the Wastage Rules is a component of the compensation or pries agreed to be so paid by the petitioner. As already explained, the petitioner has by such agreement obtained from the State Government the privilege of manufacturing liquor and in return has assured re-imbursement of the State to the extent of the monetary loss of the State computed in terms of the amount of duty of excise on the IMFX which the State would have earned if the petitioner had avoided excessive wastage of rectified spirit imported by him under an import permit granted by the State and had used that spirit for the manufacture of IMFL.
13. For all these reasons, I have no hesitation in holding that the impugned demand of Rs, 64699/- as 'duty on excess wastage' of 2587.96 LP litres of rectified spirit is nothing but a demand for payment of price or consideration for the privilege of manufacturing liquor granted by the State Government to the petitioner. The demand is covered by one of the terms of the agreement between the parties as incorporated in the licence granted in form No. 1 and accepted by the petitioner.
14. I may now deal with a few rulings cited by Mr. Bhandari learned Counsel for the petitioner. One such ruling is reported in Excise Commissioner U.P. Allahabad v. Ram Kumar AIR 1996 SC 2237. This authority is clearly distinguishable. The licensee in that case had obtained a licence to sell country liquor by retail in open auction and paid the amount of the bid as consideration for the licence granted to him. The licence granted incorporated another condition that he would lift the fixed minimum quantity of liquor and sell the same at his shop and in case of his default or failure to do so he would be liable to pay compensation equal to the amount of excise duty leviable on the unlifted quantity. Their Lordships held that the demand made by the Excise Commissioner for payment of money for unlifted liquor, though disguised as compensation was in reality a demand for payment of excise duty on the unlifted quantity of liquor which, as their Lordships further held is not authorized by the provisions of the relevant Act applicable in that case. It is obvious that all that the licensee had agreed to pay as consideration for the privilege of selling country liquor by retail was the amount of the bid offered by him at the open auction and accepted by the Excise Commissioner That being so, the condition incorporated in the licence that he must lift a minimum quantity of liquor for sale at his shop or also pay compensation for the quantity short lifted at the same rate of excise duty on such liquor was ignored by the Supreme Court as a condition on which the parties were not ad idem. That is why the Supreme Court held that the demand made has really a demand for excise duty and that such duty could not be levied unless the liquor had actually been lifted by the licensee.
15. Mr. Bhandari also cited an unreported Bench decision of the Allahabad High Court in Delhi Cloth & General Mills Co. Ltd. v. Excise Commissioner U.P. Allahabad, Special Appeal No. 177 of 1970, decided on March 29, 1973. The Division Bench held that the appellant who had exported rectified spirit from its bonded warehouse in Uttar Pradesh to an importer in Punjab on payment of export duty under the rules was not liable to pay any excise duty on the quantity of excessive wastage of such spirit in transit. Their Lordship held that rectified spirit which had been wasted in transit and on which excise duty was levied on the appellants by the Excise Commissioner U.P. Allahabad is not an excisable article under the UP Excise Act, 1910, and therefore no excise duty is leviable by the State of Uttar Pradesh on such spirit. The question whether any excise duty can be lawfully levied on wastage was left undecided by their Lordships. It will be seen that the rectified spirit was being exported by the appellant under a permit after the appellant had already paid the requisite duty on such export. In the absence of any agreement to the affect that the excessive wastage in transit was liable to be compensated by the appellant, the State could not lawfully raise any demand for compensation. In any case the cited authority is of no avail to the petitioner is support of his contention that no amount of compensation can be lawfully charged to the petitioner for excessive wastage in transit.
16. Similarly, J.K Synthetics Ltd. Kota v. State of Rajasthan 1976 Weekly Law Notes 277, has no application to the facts of this case. All that this Court decided in the cited case is that methanol or methyl alcohol is not an alcoholic liquor for human consumption and therefore it is not an excisable article on which excise duty may be lawfully levied under Section 28 of the Act. Relying on this authority and the unreported Bench decision of the Allahabad High Court mentioned above, one may be prepared to agree that rectified spirit without undergoing further process of manufacture under the Act, the Rules and the Distillery Rules is not on alcoholic liquor for human consumption and therefore no excise duty may be lawfully levied on such spirit under Section 28 of the Act. That however is no ground for saying that excessive wastage of rectified spirit cannot be made the subject-matter of compensation in accordance with the terms of a contract under which a particular person was granted the privilege of manufacturing alcoholic liquor for human consumption.
17. In view of the foregoing discussion on facts relating to this case and in respect of the relevant provisions of the Act, the Distillery Rules and the Wastage Rules, I hold that while no excise duty as such can be lived under Section 28 of the Act on any rectified spirit alleged to have been wasted by a private distiller in the process of manufacturing IMFL there is no legal bar to the distiller agreeing to compensate loss of revenue which may be suffered by the State Government as a consequence of such excessive wastage by him far consideration of the privilege of manufacturing liquor granted to him by the State Government. The petitioner had agreed in the instant case to compensate the State Government for the loss of revenue which it might have suffered on account of the excessive wastage of rectified spirit by the petitioner. The measure of the loss is the excise duty which the State Government would have earned on the excessive wasted rectified spirit if such spirit had been converted into IMFL for consumption by human beings. Contentions (i) to (iv) raised by the petitioner's counsel are disposed of accordingly.
18. Turning now to contention (v), the petitioner's learned Counsel has not been able to show as to how the Wastage Rules are violative of Article 14 and 19 of the Constitution. Rectified spirit is obviously an 'excisable article' within the ambit of the definition of this expression as given in Section 3(4) of the Act. As already seen, though rectified spirit is an excisable article yet it is not alcoholic liquor for human consummation and therefore the State Legislature is not competent to impose any excise duty on the manufacture or production of rectified spirit. The State Legislature may however regulate the import, export and transport of rectified spirit under the Act and may grant the privilege of manufacturing potable liquor from such rectified spirit to a private distiller, and while granting such-privilege may get a price or consideration for such grant. The Wastage Rules have been framed by the Excise Commissioner so that these may be read into all contracts and licences granted by him to private distillers engaged in the manufacture of IMFL from rectified spirit made available to them under permits granted by the State Government. It was therefore quite reasonable and indeed necessery to provide by Rules against excessive loss of rectified spirit by private distillers There are mysterious of ways in which a dishonest distiller may spirit away rectified spirit, notwithstanding control and supervision by the excise staff over his distillery. Hence the need to make rules providing for fee allowance on reasonable waste and for payment of compensation (the so-called 'duty on excess wastage') on excessive wastage Mr. Bhandari has not been able so point out as to how, scientifically or otherwise, the maximum limit prescribed for free allowance of wastage can be described as inadequate unscientific and unreasonable. Moreover, the licence containing the impugned terms and conditions unfortunately was voluntarily agreed to and obtained by the petitioner. If he thought the terms were unreasonable, it was open to him to decline to take out the licence on those terms and stop manufacturing IMFL.
19. The Wastage Rules have been framed by the Excise Commissioner with the previous sanction of the State Government exactly in accordance with the requirement of Section 42 of the Act. The power to make such rules vests in the Excise Commissioner under Section 42(a) of the Act. By making such rules, the Excise Commissioner was exercising his power to regulate the manufacture, supplies storage or sale of an excisable article within the purview of sub-clause (1) of clause (a) of Section 42. The contention raised by the petitioner's counsel as per No. (v) above, also therefore fails.
20. Contention No. (vi) has no relevance in the context of the wastage of 2587.06 LP litres of rectified spirit because it is not the case of the petitioner that the said quantity was ever subjected to redistillation. The petitioner did raise the question of re-distillation about the other item of the alleged wastage, i.e. 19457.50 LP litres which as already explained is being left open for decision by the Excise Commissioner. I need not therefore express any opinion on this issue.
21. The mere fact that the demand notice did not state the provision of law under which it had been issued is no ground for invalidating the notice. It has already been seen that the demand is perfectly justified in accordance with the licence granted to the petitioner on the basis of the agreement between the parties. Contention (vii) is also therefore devoid of force.
22. In conclusion, therefore, this writ petition fails and is dismissed with costs. Counsel fee Rs. 1000/-.