( 1. ) THE petitioners are holders of licences in Forms fl 10 and FL 11 for sale of foreign liquor. The petitioners licences are for the period from 1st April 1980 to 31st March 1982. By this petition under article 226 of the Constitution, the petitioners challenge the demand of duty under Notification No. 3735-5941-V-SR, dated 29th November 1980, issued under sections 25 and 62 (2) (g) of the M. P. Excise Act, 1915, by which the duty payable on the Indian made foreign liquor was enhanced from the date of the notification.

( 2. ) THE learned counsel for the petitioners first contended that they cannot be made liable for payment of enhanced duty on the liquor in their stock which they had already purchased and lifted from warehouses after payment of duty at the rate which was in force on the date of issue. Learned counsel in this connection referred to us sections 15 and 26 of the Act and submitted that rules cannot be framed in exercise of the rule making power conferred under the Act for charging additional duty of excise when once the duty has been paid at the stage of sale of liquor from the warehouses. The learned Government Advocate relied upon Rule 26 of the general Licence Conditions for the stand that the enhanced duty was payable also on the liquor in stock with the petitioners.

( 3. ) SECTION 15 of the Act provides that without the sanction of the state Government no intoxicant shall be removed from any distillery, brewery, warehouse etc. unless the duty (if any) payable under Chapter V has been paid or a bond has been executed for the payment thereof. Chapter V consists of sections 25 to 27. Section 25 is the charging section. It empowers the State Government to charge excise duty or a countervailing duty on all excisable articles. Section 26 enacts that subject to such rules regulating the time, place and manner as the State Government may prescribe, such duty shall be levied rateably on the quantity of excisable article imported, exported, transported, collected or manufactured in or issued from a distillery, brewery or warehouse. There are two provisos to section 26. We are here concerned with the second proviso which says that

"where payment is made upon the issue of an excisable article for sale from a warehouse, it shall be at the rate of duty in force on the date of issue of such article from the warehouse".

Section 62 confers power on the State government to make rules for the purpose of carrying out the provisions of the Act. In particular it can make rules as provided in section 62 (2) (g)for "regulating the amount, time, place and manner of payment of any duty or fee. " The Notification dated 29th November 1980 enhancing the rate of duty was issued in exercise of the powers under sections 25 and 62 (2) (g ). The State Government has prescribed General Licence Conditions by rules. The rule which is relevant here is Rule 26 which reads as follows:

"procedure to be followed when duty is enhanced or reduced.- If it is notified by the Collector that from any particular date the duty leviable on any intoxicants is to be enhanced, all licensed vendors in possession of such intoxicants shall, on the evening preceding that date, deposit their stock with such person as the District Excise Officer may appoint for the purpose. Such stocks shall remain in deposit until verified and the District Excise Officer may order that the difference of duty be levied on the balance of the stocks, and the licensee shall then pay such duty within thirty days of the date on which the enhanced rate of duty comes into force: (a) Provided that if such stock or part of such stock, be destroyed the difference of duty shall not be levied on the stock destroyed; and (b) Provided also that if the balance of stock so deposited is transferred to another licensed vendor the difference of duty shall be levied from the transferee before the transfer is completed. The above procedure regarding the deposit and verification of stock of intoxi