S.N.P. Singh, J.

The petitioner is a limited Company and it owns a distillery at Mirganj, Hathwa, in the district of Saran, where "India made foreign Liquors' are manufactured. The petitioner holds the requisite license in Form 10 under the Bihar and Orissa Excise Act. 1915 (hereinafter to be called "the Act"). The petitioner also holds a license in Form 1 for the sale of 'India made foreign liquors' to trade i.e. to other licensed dealers. The 'India made foreign liquors' manufactured by the petitioner are consumed inside the State of Bihar and also exported to other States in India. In this writ application under Articles 226 and 227 of the Constitution the petitioner has challenged the validity of the notification dated the 30th of July, 1973, a copy whereof has been made Annexure 1' to the writ application. By that notification duty at the rate of 60 paise per L.P. Litre has been imposed on "India made foreign liquor issued from the premises of holders of 'sale to trade' licenses in Bihar or from any distillery or bonded Warehouse for export to any place outside Bihar".

2. Mr. Rajeshwari Prasad, learned counsel appearing for the petitioner, raised two contention. In the first place, he submitted that the impugned duty at the rate of 60 paise per L.P. Litre, referred to above, on India made foreign liquors bas been imposed in contravention with the provisions of the Act and the Bihar and Orissa Excise Rules (hereinafter to be called 'the Rules') framed by the State Government under-section 89 of the Act. Secondly, he urged that the levy of duty is, in substance, a levy on export of foreign liquor to other states and as such the imposition of such a levy tantamounts to unreasonable restriction on freedom of trade, commerce and, intercourse as guaranteed under Article 301 of the Constitution.

3. Before dealing with the contentions which have been raised on behalf of the petitioner, I consider it necessary to refer to some of the statements made in the counter-affidavit filed on behalf of the respondent. In paragraph 5 of the counter-affidavit it has been asserted that the imposition of duty at the rate of 60 paise does not amount to tax on export but is an excise duty authorised under section 27 of the Act. In paragraph 6 of the counter-affidavit it has been stated that in order to augment revenue the Excise Department tentatively decided in September, 1972, to levy export duty on foreign liquor on the lines of U.P. Government which had been enforcing that duty since long. The Government notification in that regard was ultimately issued on the 30th of July, 1973, after consideration of all aspects of the proposal. Accordingly the rates of duty were revised on various items of foreign liquor. The rate of excise duty on export of foreign liquor was accordingly fixed at 60 paise per L.P. Litre under section 27 of the Act. Thus, according to the stand taken by the respondent in the Counter-affidavit, the duty at the rate of 60 paise per L.P. litre is nothing but an excise duty on foreign liquors to be exported and not an export duty simpliciter.

4. Section 27 of the Act provides as follows:

"An excise duty or a countervailing duty, as the case may be, at such rate or rates as the State Government may direct, may be imposed, either generally or for any specified local area on :

(a) any excisable article imported, or

(b) any excisable article exported.

X X X

The relevant portion of section 28 of the Act reads thus:

"Subject to any rules made under section 90, clause (12) any duty imposed under section 27 may be levied in any of the following ways :

(a) … … …

(b) on an excisable article exported, by payment in the State or in the State or territory to which the article is sent:

X X X X X X"

Rules 11 to 17A deal with export of foreign liquor to other States. Rule 11A is relevant for our purpose and it reads as follows:

"11A. A person, holding license for the sale of foreign liquor to the trade, may also export it to any other State in Ind