JUDGMENT :

Dinesh Mehta, J.

1. The writ petition in hands brings to the judicial scrutiny, an order dated 10.12.2019 passed by the Rajasthan Tax Board, Ajmer in appeal No. 1022/2018.

2. The facts giving rise to the extant petition are that respondent No. 2 supplied/sent 20,000 Bulk Litres Grain Rectified Spirit F.O.R. Rajasthan basis to the Rajasthan State Ganganagar Sugar Mills Ltd. at its Bikaner unit vide Transport permit no. JPR561017 dated 04.03.2016; transport permit no. PA16000511 dated 07.03.2016 and invoice No. 1540 dated 07.03.2016.

3. Before the tanker could reach its consignee at Bikaner Unit, it met with an accident on Kapurthala Sultanpur Road, near village Padian in Punjab and the Tanker turned turtle. As a consequence of the accident, major part of the spirit loaded therein spilled over.

4. The District Excise Officer wrote a letter dated 27.10.2017 to the petitioner No. 2 and asked it to recover a sum of Rs. 25,42,504/- from the bills of respondent No. 2 (as evident from letter dated 13.06.2018 - Annexure-5)

5. When the respondent No. 2 learnt that officers of the Excise Department were in the process of recovery of the duty as per the provisions of Rule 5 of the Stock Taking and Wastage of Liquor (At Distilleries and Warehouse) Rules, 1959 (hereinafter referred to as 'the Rules of 1959), it submitted a request letter dated 28.07.2016 to the Excise Commissioner and prayed that since the quantity of 13075.100 Bulk litres high strength rectified spirit has been lost due to an accident, the excise duty on such quantity be waived off/written off.

6. In furtherance of the request so made, the District Excise Officer, Bikaner sent a report, categorically confirming the factum of the accident and stating that the 13075.100 bulk litres of spirit in question has been lost on account of such accident, while also forwarding the request of the respondent No. 2 to waive off/write off the demand of excise duty that was proposed to be raised in terms of Rule 5 of the Rules of 1959.

7. A notice dated 01.05.2018 seems to have been issued by the District Excise Officer to the respondent No. 2 to appear on 07.05.2018 before the Excise Commissioner.

8. On the said date, representatives of the respondent - Company appeared before the Excise Commissioner and filed a reply/request, inter alia, beseeching that no duty be recovered from it, as the loss of spirit (13075.100 bulk litres) was on account of act of God, and there was no negligence on the part of respondent Company (consignor).

9. The Excise Commissioner turned down the request of respondent No. 2 vide communication dated 16.05.2018.

10. The respondent No. 2 preferred an appeal against such order/communication before the Rajasthan Tax Board, Ajmer. A Division Bench of the Board vide its order dated 10.12.2019 allowed the appeal after considering the material available on record. The Board held that the loss of spirit in question was indeed on account of act of God/due to an accident involving no negligence on the part of the appellant and that the reason for the loss/wastage was a cause beyond his control and therefore, no excise duty can be charged.

11. While allowing the appeal of the respondent No. 2, the Tax Board gave a direction to refund the amount of excise duty collected with respect to purported loss of 13075.100 bulk litres spirit in the transit.

12. The State is before this Court, invoking its jurisdiction under Article 226/227 of the Constitution of India, calling the above order of the Tax Board in question.

13. Mr. Girish Sankhla, learned counsel for the petitioners invited Court's attention towards the provisions contained in Rule 5(5) of the Rules of 1959 and contended that the respondent No. 2 Company was under a statutory obligation to pay the excise duty on the wastage, regardless of the fact that the same was a result of vehicular accident.

14. While not disputing the factum of the accident, learned counsel for the petitioner argued that the mandate of Rules of 1959 h