Heard learned counsel for the parties.

2. Petitioner has prayed for issuance of mandamus commending upon the respondents to refund the petitioner a sum of Rs. 7,52,061.90 being the amount of the difference of excise duty resulting from reduction in the rates of duty imposed on India made foreign liquor and beer w.e.f. 1.7.2004.

3. According to the petitioner he is the proprietor of Libra Marketing and holds excise license in Form 1 at Jharia in the district of Dhanbad for the sale of India made foreign liquor and beer to other licensed dealers. Petitioner purchases its excisable articles from different distributors holding license in Form 19C in the State and sells it to the retail vendors under the terms and conditions of the license. It is submitted that under the Bihar Excise Act, 1950 the manufacture , import , export , transport, sale and possession of intoxicating liquor is regulated and section 10 of the Act imposes restriction on export or transport of intoxicants unless duty is paid under Chapter V or a bond has been executed, thereof. Under Section 28 of the Act, the State provides for ways of levying duty on excisable articles. Learned counsel for the petitioner further submits that Rule 147 framed by the State Government under Section 90, Clause (12) of the said Act prescribes the time, place and manner of payment of the duty, which is reproduced herein below:-

“Provided further that in case of any revision in the rate of duty on an excisable article, the difference of duty shall be realized from or credited to the licensee, to whom such articles has been issued on payment of duty prior to such revision according as the revised rate of duty is higher or lower than the old rate and calculation of the difference of duty shall be made on the quantity of such article that may remain in possession of such licensee when the revised rate duty comes into force”.

4. It is submitted by the petitioner that he transported Indian made foreign liquor and beer from the premises of the holders of distributors licenses in Form 19C situated within the State under Rule 18-A(2) and under a transport pass granted by the Assistant Commissioner of Excise, Dhanbad after paying the cost price of liquor and the duty imposed thereon under Section 27 of the Act and also Sales Tax at the prescribed rate. It is also submitted that till June, 2004 petitioner transported India made foreign liquor and beer from the distributor's licensed premises on payment of cost price of liquor and duty at the following rates:-

India made foreign liquor- Rs.100.00 per L.P. Litre

Beer Rates

Ordinary Rs.8.00 per B.L.

Strong Rs.12.00 per B.L.

Super Strong Rs.15.00 per B.L.

5. It is submitted that by notification dated 30.6.2004 vide order no. 968 and 969 contained at Annexure-2 and 2/1 a new Excise police was adopted by the Government of Jharkhand, wherein the Excise duty payable on the minimum guaranteed quantities of India made foreign liquor and beer fixed for the group of retail foreign liquor shops was merged with license . As per the petitioner in view of the said notification duty on India made foreign liquor was reduced from the flat rate of Rs.100 per L.P. Litre to Rs.10 L.P. Litre for ordinary category, Rs. 20 per L.P. Litre for premium category and Rs.30 per L.P. Litre for super premium category. Similarly duties on beer of different category were reduced from Rs. 8, 12 and 15 per Bulk Litre to Rs. 1.50, 2.00 and 3.00 per bulk litre respectively w.e.f 1.7.2004. It is further submitted that directions were issued by the Respondent No. 2, the Commissioner- cum-Secretary, Excise & Prohibition Department, Government of Jharkhand dated 29.6.2004 to all the district authorities to verify the balance of stocks of India made foreign liquor and beer remaining in the possession of all the distributors and wholesalers of foreign liquor on 30.6.2004 after sale hours. The same were verified by the excise authorities on 30.6.2004 after sale hours as per Annexure-