IN THE HIGH COURT OF JUDICATURE AT PATNA CIVIL WRIT JURISDICTION CASE No.10826 of 2010 ============================================== 1. SPICY BEVERAGE PVT. LIMITED, A COMPANY INCORPORATED UNDER THE COMPANIES ACT, 1956 HAVING ITS REGISTERED OFFICE AT GANDHI ROAD, DHANSAR, DHANBAD (JHARKHAND) THROUGH ITS DIRECTOR KAMLESH KUMAR SINHA, S/O SHRI LAKSHAMI NARAIN SINHA, R/O MOHALLA- SALIMPUR AHRA, KADAMKUAN, P.S.- GANDHI MAIDAN, DISTT.- PATNA Versus 1. THE STATE OF BIHAR THROUGH THE EXCISE COMMISSIONER, GOVERNMENT OF BIHAR, PATNA 2. THE EXCISE COMMISSIONER, BIHAR, PATNA 3. THE COLLECTOR, NALANDA, BIHARSHARIF 4. THE SUPERINTENDENT OF EXCISE, NALANDA, BIHARSHARIF ============================================== Appearance : For the Petitioner : Mr. SATYABIR BHARTI For the Respondents: Mr.P.K. SAHI, A.G. Mr. VIKASH KUMAR, ADV. ============================================== CORAM: HONOURABLE THE CHIEF JUSTICE and HONOURABLE MR. JUSTICE JYOTI SARAN ORAL ORDER (Per: HONOURABLE THE CHIEF JUSTICE) 3 15.09.2010 Heard the learned Advocates. Feeling aggrieved by the order of demand dated 21st of April 2010 made by the Superintendent of Excise, Nalanda calling upon the petitioner to pay excise duty of 2 Rs. 14,02,800.00 on 12,000.00 BL of rectified spirit, the petitioner preferred appeal before the Excise Commissioner, Bihar. The Excise Commissioner, Bihar by his order dated 08th July 2010 made in Case No. 14 of 2010 upheld the order of demand. It was the case of the petitioner that the stock of rectified spirit was destroyed in transit on account of the road accident. The tanker carrying the rectified spirit had turned turtle; the entire consignment of the rectified spirit was destroyed. The said rectified spirit was never converted into country liquor fit for human consumption. It was, therefore, not liable to levy of excise duty by the State of Bihar. Learned Advocate Mr Satyabir Bharti has appeared for the petitioner. He has submitted that the law on the point is quite well settled. Nevertheless, the Commissioner of Excise continues to levy duty relegating the licensees to unnecessary litigation. The highhanded action of the Commissioner of Excise calls for stern action. In support of his arguments, he has relied upon the judgment of this Court in the matter of Santosh Kumar Sah Vs. Union of India & Ors. {2006 (4) PLJR 626} and Nagendra Prasad Vs. State of Bihar {2007 (2) PLJR 328}. In answer to the present petition, the Superintendent of Excise has filed counter affidavit. He has admitted the factum of accident which led to wastage of rectified spirit. He also concedes that the State of Bihar was not the authority to levy excise duty on rectified spirit not fit for human consumption. For the aforesaid reasons, we allow this petition. 3 The impugned order dated 8th July, 2010 made by the Commissioner of Excise so also the order dated 21st April, 2010 made by the Superintendent of Excise, Nalanda under Memo No. 733 and the consequent demand for Rs. 14,02800.00 are quashed and set aside. It appears that though the officials of the department are aware of the legal position they continue to levy excise duty on rectified spirit not fit for human consumption without the authority of law, may be with or without oblique motive, leading to avoidable litigations. In view of the concern expressed by this Court, on an earlier occasion, the Commissioner of Excise Mrs. Bandana Preyashi has filed affidavit and has tendered unqualified apology. She has assured that such incidents will not be repeated. We accept the apology tendered by the Commissioner of Excise Mrs Bandana Preyashi. In view of the assurance given by her, we refrain from making any observation against the concerned officers of the Commissionorate of Excise nor do we impose cost. We, however, warn that repetition of such incident may invite an order of cost personally against the erring officers. Bibhash ( R.M. Doshit, CJ.) (Jyoti Saran, J.)