JUDGMENT :

Heard Mr. I. Choudhury, the learned Senior counsel assisted by Mr. N. J. Khataniar and Mr. B. Kaushik, the learned counsel appearing on behalf of the petitioners and Mr. K. P. Pathak, the learned Standing counsel appearing on behalf of the Excise Department. I have also heard Mr. B. Choudhury, the learned Standing counsel appearing on behalf of the Finance Department.

2. All the writ petitions have been taken up together as the facts involved therein are similar and the issue is same. For the purpose of appreciating the dispute involved herein, it would be relevant to take note of that the petitioners herein in the batch of writ petitions were earlier running their business as “Bonded Warehouse” within the meaning of Rule 2(ii) of the Assam Bonded Warehouse Rules, 1965. For the purpose of convenience, the said Rule is quoted hereinbelow:

“2(ii) “Bonded warehouse” means the premises or any part of the premises approved and licensed for deposit or storage of spirits on which duty has not been paid;”

3. A perusal of the above Rule would show that a “Bonded Warehouse” means the premises or any part of the premises approved and licensed for deposit or storage of spirits on which duty has not been paid. At this stage, this Court also finds it relevant to refer to Rule 30 of the Assam Bonded Warehouse Rules, 1965 (for short the “Rules of 1965”) which stipulates that the licensee of the bonded warehouse shall import the spirits under bond on the import permits issued by the Additional Commissioner of Excise, Assam. The retail and wholesale licence-holders of foreign liquor shall obtain necessary transport pass from the Collector or pre-payment of duty at the prescribed rates for movement of spirits from the bonded warehouse to their respective shop premises. The said Rule therefore makes it clear that it is the retail and wholesale licence holder of the foreign liquor who has to obtain the transport pass from the Collector or pre-payment of duty at the prescribed rate for movement of spirits from the bonded warehouse to their respective shop premises. There is no embargo as per the Rules of 1965 upon the bonded warehouse to pay the duty at the prescribed rates. It is also relevant to take into account Rule 41 which stipulates the payment of duty. In terms with Rule 41, the duty imposed on foreign liquor and spirits (other than country spirits) imported under bond or stored in a bonded warehouse shall be paid before removal from the bonded warehouse unless a bond has been executed. Rule 42 stipulates the manner of payment of duty. In terms of the said Rule, the duty on the spirits is to be paid before removal from a bonded warehouse, by making payment into the local treasury, or a treasury approved by the Collector of the district in which such spirits are to be sold or consumed by direct payment into treasuries by challans. Option has also been given for advance payment on account of duty with the permission of the Collector.

4. For the purpose of the instant dispute, Rule 43 assumes importance for which Rule 43 is reproduced hereinbelow:

“43. Rejection of destruction of unsuitable spirits.- If spirits stored in a bonded warehouse are found to be inferior quality or otherwise unsuitable for the purpose for which they were stored, they may be rejected or destroyed or otherwise dealt with under the orders of the Excise Commissioner.”

A perusal of the above quoted Rule shows that if the spirits stored in a bonded warehouse are found to be of inferior quality or otherwise unsuitable for the purpose for which they were stored, they may be rejected or destroyed or otherwise dealt with under the orders of the Excise Commissioner. This aspect of the matter assumes importance inasmuch as without an order of the Excise Commissioner unsuitable spirits cannot be rejected or destroyed or otherwise dealt with.

5. In the backdrop of the abo