D.P.WADHWA, J.

1. The principal question which requires determination in this batch of 13 writ applications is if the State can levy penalty for loss or wastage of molasses, and if so, under which law and to what extent. The Act involved would appear to be the Bihar Molasses Control Act, 1947 (for short the Molasses Act).

2. To illustrate the petitioner in C. W.J. C. No. 6845 of 1989 is engaged in the manufacture / production of spirit in its distillery at Lauriya under a licence issued to it in Form No. 28A, which licence, as noted above, is for the manufacture of spirit in the distillery for use in the manufacture of chemical and for industrial, scientific and other purposes. On May 25, 1989, the Commissioner, Excise, Bihar, gave a notice to the petitioner to deposit an amount of Rs. 72,96,135 /- by way of penalty in the Government Treasury within fifteen days of the receipt of the notice. The petitioner was also required to show cause as to why its licence be not cancelled for contravention of the conditions of the licence. The relevant portion of this notice reads as under (English Translation):

"In the year 1987-88 M/s. Panchrukhi Distillery, Panchrukhi, has produced from each quintal of Molasses 18.00 bulk litre i.e. 29. 7 L. P. Litre (wrongly typed as bulk litre in Annexure-6). According to the Condition No. 1 of the licence issued under Sec. 28A and according to the conditions as mentioned in the Molasses Allotment Order, the Distillery is required to produce 22.5 bulk litre i.e. 36 L. P. litre of spirit per quintal of molasses."

"In the year 1987-88 your Distillery distilled 39388 quintal of Molasses for production of spirit and from which merely 7,09,354 bulk litres of spirit was produced. Whereas according to the rules, it was necessary to produce 88,6230.00 bulk litre of spirit at the production rate of 22.5 bulk litre pet quintal of molasses. In this manner there is a loss of production of 17687.00 bulk litre of spirit, which according to an average of 65.0 above proof should be 291845.40 L. P. litre of spirit. In this manner you have contravened the aforementioned conditions. Upon this a penal duty on the Excise Revenue amounting to Rs. 72,96,135 at the rate of Rs. 25 L. P. litre is warranted and which you are liable to pay. "

3. It would appear that the respondents have sought to recover penalty on account of an audit objection. Accountant General has been impleaded as a respondent in one of the writ applications (CWJC No. 4696 of 1994). In this case it has been alleged that the Superintendent of Excise under the Excise Act has directed the petitioner to deposit a sum of Rs. 76,23,387 /- by way of penalty on the basis of the audit report submitted by the Accountant General (Audit-II), Bihar. It is stated in this demand notice that there has been shortage of molasses in the financial year 1992-93 on account of which the Accountant General has prescribed penalty of Rupees 76,23,387 /-. The petitioner in that case was asked to deposit this amount within one month. The Accountant General has filed his counter-affidavit in the case and the stand taken by him is as under :-

"That it is not correct to say that A. G. has imposed a penalty of Rs. 76,23,387 /- by way of penal duty for the loss of Molasses. In fact, Para I of Section A, Part II of the Inspection Report No. 26/ 93-94 talks of loss of revenue due to wastage of Molasses. It further states that the Bihar Molasses (Control) Act, 1947 and the rules framed thereunder do not provide for any allowance for wastage of molasses either in transit from Sugar Factory to Distillery or in storage, handling and working in process or distillation. Further, under Rule 3(j) of Bihar (Control) Rules, 1955, the ownership of all molasses allotted to a distillery shall continue to vest in the owner of a sugar factory until it is actually delivered at the distillery and all losses occurring from any cause other than willful omission on the part of the allottees shall be bor