By the Court.—The petitioners along with certain other persons were granted licenses for vending country made liquor, foreign liquor and bear for the years 1999-2001 in District Sikar, Rajasthan. In the year 1999-2000, petitioners defaulted in the payment of excise dues of Rs. 8,36,49,712/-. Accordingly, Collector, Sikar on 1.11.2000 sent a recovery certificate to the Collector, Ghaziabad, where the petitioners were said to be residing and having immovable property, to recover the aforesaid amount as arrears of land revenue. A citation for the said amount was issued by the Tehsildar, Ghaziabad on 6.12.2000. The properties of the petitioners at Ghaziabad were put to auction vide sale proclamation dated 15.5.2001 fixing 14.6.2001 but the auction could not be held. The District Excise Officer, Sikar vide letter dated 9.7.2001 addressed to the Collector, Ghaziabad instructed not to auction the properties of the petitioners for the time being. In the meantime, income tax department released sums of (i) Rs. 1,61,43,984.00, (ii) Rs. 1,80,26,031.00, (iii) Rs. 1,40,38,395.00, (iv) Rs. 1,77,54,741.00 and (v) Rs. 1,10,61,845.00 total Rs. 7,70,24,996.00 in favour of District Excise Officer, Sikar, Rajasthan which it had realised from the petitioners as Tax Deducted at Source (TDS). The petitioners deposited a further sum of Rs. 1,64,63,768/-, Rs. 75,23,500/- and Rs. 89,49,600/- on 7.9.2003 before the District Excise Officer, Sikar. In this way, petitioners deposited a total of Rs. 9,34,89,036/- as against the original recovery of Rs. 8,36,49,712/-. In spite of the above, a sale proclamation for the recovery of Rs. 77,10,000/- as excise dues and Rs. 47,47,972 as collection charges by the sale of house No. KK-116, Kavi Nagar, Ghaziabad of the petitioners was issued by the S.D.M. Ghaziabad fixing 10.4.2004 for the auction.

2. The above sale proclamation is under challenge by the petitioners in this writ petition with a further prayer to direct the respondents not to realise any collection charges from the petitioners and to refund the collection charges already paid by them on the ground that the excise dues were paid by the petitioners voluntarily and there was no realisation by the Collector, Ghaziabad so as to entitle the respondent Nos. 2 and 3 to recover any collection charges.

3. The writ petition was entertained and an interim order was passed on 31.3.2004 staying the sale proclamation and the sale of the properties of the petitioners in pursuance thereof. A counter affidavit was also invited. In the counter affidavit filed on behalf of the respondent Nos. 1, 2 and 3 the issuance of the recovery citation of the aforesaid amount of Rs. 77,10,000/- as excise dues and Rs. 47,47,972 as collection charges is admitted. It is however, stated that in view of Section (3-a) of the Revenue Recovery Act, 1890, as amended to its application in U.P., Collector is fully authorised to recover the amount indicated in the recovery certificate and to realise 10% of the amount as collection charges.

4. It is abundantly clear from the above facts that the petitioners were facing recovery of excise dues to the tune of 8,36,49,712/- only and a sum of Rs. 9,34,89,096/- was paid and as such there was, in fact, excess payment. This fact has not been denied by respondent Nos. 1, 2 and 3 in the counter affidavit. No counter affidavit on behalf of respondent No. 4 has been filed. Thus, the above fact remains uncontroverted which has to be accepted. Even then the petitioners have been chased with a recovery of Rs. 77,10,000/- as excise dues plus Rs. 47,47,972/- as collection charges. In the absence of any material on record to indicate how in the above circumstances a recovery of Rs. 77,10,000/- as excise dues has been issued against the petitioners, the said recovery of excise dues can not be sustained in law and deserves to set aside.

5. In respect of the collection charges, the submission of Shri Mukesh Prasad, learned counsel for the petitioners is tha