IN THE HIGH COURT OF JUDICATURE AT PATNA CWJC No.14498 of 2008 -------- M/S Pashupatinath Distributors Private Limited represented by its Director, Sri Lallan Prasad, age about 42 years, S/O Sri Ram Dhyan Praswad, Address – F-2, Chandi Vyapar Bhawan, Exhibition Road, District – Patna ……………… Petitioner Versus 1. The State of Bihar through the Excise Commissioner, Department of Excise and Prohibition, Govt. of Bihar, New Secretariat, Patna 2. The Member Board of Revenue, Bihar, Patna. 3. The Collector, Purnia, 4. The Superintendent, Excise, Purnia, Department of Excise, Govt. of Bihar …………..Respondents. ----------- For the Petitioner : Mr. Shivaji Pandey, Senior Advocate Mr. Ajit Kumar & Mr. Avinash Kumar, Advocates For the Respondents: Mr. Vikas Kumar, J.C. to Advocate General ---------- P R E S E N T Hon'ble the Chief Justice & Hon'ble Mr. Justice Kishore K. Mandal -------- Dated, the 24th September, 2008. We heard Mr. Shivaji Pandey, senior counsel for the petitioner. 2. By the order dated 11th May, 2007, the Superintendent of Excise, Purnia imposed penal duty of Rs.51,9,42.50 as the petitioner’s claim that there was loss of 13851 LPL of rectified spirit in accident was not found acceptable. An appeal was preferred by the petitioner before the Excise Commissioner aggrieved by order dated - 2 - 11th May, 2007. The Excise Commissioner observed that the petitioner was unable to prove to the satisfaction of the concerned authority that there was transit loss in an accident. However, he granted liberty to the petitioner to pay duty at the prescribed rate and then apply for refund of the duty under rule 33(2) of Bihar Excise Rules. 3. Aggrieved by the order dated 13th March, 2008 passed by the Excise Commissioner, Bihar, the petitioner filed a revision before the Member, Board of Revenue. The Board of Revenue did not find any merit in the revision and observed that power in this regard vests with the Excise Commissioner and for that, the Excise Commissioner has already observed that after the duty is paid as per the prescribed rate, the petitioner can move for refund under Rule 33(2) of the Bihar Excise Rules. 4. The counsel would submit that the authorities committed serious error in not considering the fact that loss of 13851 L.P.L. of rectified spirit in transit was due to accident and duty on such quantity of rectified spirit could be waived as loss was on transit due to accident. 5. We are afraid, the contention does not merit any acceptance. As a matter of fact, no satisfactory evidence was let in by the petitioner before the competent authority that the transit loss was due to an accident. In the applications that were made before the Superintendent, Excise, it was stated that the vehicle bearing registration number BR-31/ 7305 was dispatched from Riga Distillery - 3 - to Purnea C.S. Warehouse containing 19896.0 LPL of Rectified Spirit and the said tanker met with an accident near Dalsinghsarai in the district of Samastipur and except 5948.5 LPL, rest of the quantity of rectified spirit spilled over. The investigation report made by the police was not produced before the Superintendent of Excise. There was no reliable evidence produced by the petitioner which could conclusively establish that loss of 13851 LPL of rectified spirit was lost in transit due to accident. The Superintendent of Excise, therefore, asked the appellant to pay penal duty. The Excise Commissioner observed that duty at the prescribed rate may be deposited by the petitioner, and thereafter, an application may be made for waiver under rule 33(2) of Bihar Excise Rules. The order of Excise Commissioner cannot be faulted. In what the Excise Commissioner observed, the dismissal of the revision by the Board of Revenue also cannot be said to suffer from any legal flaw. 6. Mr. Shivaji Pandey, senior counsel for the petitioner relied upon an order dated 5th August, 2008 passed by us in the case of SCI India Limited Vs. The State of Bihar and ors. (C.W.J.C. No. 7689 of 2008). We are afraid, the said decision has no application to the present case. That was a case where the petitioner made an application for refund of duty amount on account of loss in transit due to accident. As a matter of fact, in the present case, no such application has been made. The matter went to the Excise Commissioner from an order of penal duty imposed by the Superintendent, Excise. - 4 - 7. Rule 33(2) of Bihar Excise Rules provides for making an application by an affected party to the Excise Commissioner. The present matter does not arise from that proceeding. As a matter of fact, while considering the appeal, the Excise Commissioner has categorically observed that an application under Rule 33(2) of Bihar Excise Rules may be made after payment of duty at the prescribed rate. 8. Writ petition does not deserve to be admitted. It is dismissed in limine. R. M. Lodha, CJ. Kishore K. Mandal, J Anil/