Heard learned counsel for the parties.

2. The petitioner has prayed this court for direction upon the respondent nos. 4 and 5 i.e. Deputy Commissioner, Ranchi and Assistant Commissioner of Excise, Ranchi to grant permission to export beer to other States of India without seeking the approval of the Excise Commissioner as the same is not required under Rules 11 to 15 made by the Government in notification no. 471-F dated 15.01.1919 for the export of foreign liquor to the other States of India. The petitioner has also challenged the impugned direction contained in letter no. 280 dated 22.02.2006 (Annexure-3) whereby it has been asked to pay export pass fee at the same rate, which has been fixed for the foreign liquor other than beer under Rule 106 A.

3. According to the petitioner, it is a private limited company engaged in business of brewery and having a license in Form-18 to construct and work brewery and Form-19B to deposit or keep beer under bond in a warehouse authorized by the Excise Commissioner. He has also license in Form-19C for the sale of beer to other wholesalers.

4. It is the contention of the petitioner that under rules framed in exercise of power conferred upon the State Government under Section 89 of the Bihar Excise Act, 1915 (hereinafter referred to as 'the Act'), the State Government provides requirement of holding license for sale of foreign liquor and Rule 13 deals with the preparation of passes for the export of foreign liquor. The learned counsel for the petitioner submits that under Section 10 of the Act read with Order 11 (2) contained in the Government Notification No. 470-F, dated 15th January,1919, the Respondent Nos. 4 and 5 themselves are empowered to grant the petitioner permission to export beer to other States of India as according to the petitioner, the respondent no. 3 has himself admitted vide Annexure-1. However, the petitioner is aggrieved by the order contained in letter no. 280 Ranchi 22.02.2006 by which the Excise Commissioner-cum-Secretary, Department of Excise & Prohibition, Government of Jharkhand, Ranchi has directed the petitioner to deposit export pass fee on the export of beer treating it to be same category of Indian Made Foreign Liquor. Learned counsel for the petitioner submits that under relevant provision of the rule 106A and the notification, only Indian Made Foreign Liquor being exported outside the state are required to be accompanied with export pass fee as prescribed rate. The petitioner being aggrieved by the said order preferred a representation contained in Annexure-4 series annexing the notification of the Board of Revenue, Bihar dated 11.12.2004 and submits that no export fee on beer is levied within the State of Jharkhand. Learned counsel for the petitioner has also relied upon the notification contained at Annexure-6 to the supplementary affidavit filed by the petitioner, which is resolution of Department of Excise & Prohibition, Government of Jharkhand, contained in Memo No. 1/NITI-10-135-2007-604 Ranchi dated 07.05.2008. By referring to Clause-(xvii) of the said resolution wherein at Column-6 thereof, the learned counsel for the petitioner submits that it would apparent that export pass fee has been levied at Rs. 0.50 per Bulk Litre on Beer. In the column of prevalent rate, it has been categorically shown that no rate was prescribed for the export pass fee for the beer. Learned counsel for the petitioner submits that on account of order contained in Annexure-3, the petitioner had deposited export pass fee to the tune of Rs. 8,69,035/-by various Challans, which are annexed as Annexue -5 series to the supplementary affidavit for the period 2005-06, 2006-07 and 2007-08. Therefore, it is submitted that levy of export pass fee on beer before coming into force of the resolution contained in Annexure-6 dated 07.05.2008 is wholly improper and unjustified in the eyes of law and, therefore, the petitioner is entitled for refund of the same.

5. Respondent have appeare