JUDGMENT

K.S. Jhaveri, C.J. - By way of the writ petition filed in the year 2008, the petitioner-company has challenged the demand notice dated 18.07.2008 (Annexure-15) issued by the Collector, Nabarangpur and letter dated 06.06.2008 (Annexure-14) issued by the Superintendent of Excise, Nabarangpur, whereby the petitioner was called upon to deposit Rs.3,10,31,180/- towards transportation of Menthanol for the years 2005-06 and 2006-07.

In writ petition which was filed in the year 2007, the petitioner has challenged the demand notice dated 30.03.2006 (Annexure-3) issued by Collector, Nabarangpur and the subsequent letters dated 22.05.2006, 22.06.2006, 05.07.2006 and 19.07.2006 (Annexures-5, 7, 8 and 9) issued by the Superintendent of Excise, Nabarangpur, whereby the petitioner was called upon to deposit the arrear dues.

The alternative prayer of the petitioner, in both the writ petitions, is to declare the Govt. Notification No.49749 Ext. dated 24.07.1965 ultra vires.

2. Since the issues involved in both the writ petitions are common, these are taken up together for final hearing and disposal on the consent of the parties.

3. Mr. S.P. Mishra, learned Senior Counsel for the petitioner concedes that in Section 90(7) of the Bihar and Orissa Excise Act, 1915 confers the power on the Board to make rules for the purpose of prescribing the scale of fees or the manner of fixing the fees payable in respect of any licence, permit or pass granted under the said Act or in respect of the storing any intoxicant. He, however, contended that the authorities taking shelter under Rule 116-A of the Board's Excise Rules, 1965, which came to be amended in the year 2005, called upon the petitioner to deposit the amount towards transportation of Menthanol for the pre-amendment period.

3.1. Learned Senior counsel for the petitioner relied upon Section 27(3) of the Bihar and Orissa Excise Act, 1915, which reads as under:

"27. Power to impose duty on import, export, transport and manufacture

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(3) Notwithstanding anything contained in Sub-section (1)

(i) duty shall not be imposed thereunder on any article which has been imported into [India] and was liable, on such importation, to duty under the Indian Tariff Act, VIII of 1894, or the Sea Customs Act, VIII of 1878, if

(a) the duty as aforesaid has been already paid; or

(b) a bond has been executed for the payment of such duty; and"

3.2. He contended that in view of the aforesaid provision, there is restriction on the Government not to levy any duty. In support of the contention, Mr. Mishra, learned Senior Counsel relied upon the decision of the Hon'ble Supreme Court in the case of State of U.P. and others vs. Vam Organic Chemicals Ltd. and others, (2003) AIR SC 4650 , wherein the Hon'ble Court, in para-42, has held has under:

"42. Considering the various authorities cited, we are of the view that the State Government is competent to levy fee for the purpose of ensuring that industrial alcohol is not surreptitiously converted into potable alcohol so that the State is deprived of revenue on the sale of such potable alcohol and the public is protected from consuming such illicit liquor. But this power stops with the denaturation of the industrial alcohol. Denatured spirit has been held in Vam Organics I, to be outside the seisin of the State Legislature. Assuming that denatured spirit may by whatever process be renatured. (a proposition which is seriously disputed by the respondents) and then converted into potable liquor this would not give the State the power to regulate it. Even according to the demarcation of the filed of legislative competence as envisaged in Bihar Distillery industrial alcohol for industrial purposes falls within the exclusive control of the Union and according to Bihar Distillery "denatured spirit, of course, is wholly and exclusively industrial alcohol".

3.3. He also relie