JUDGMENT S.N.P. Singh, J. The petitioner is a limited Company and it owns a distillery at Mirganj, Hathwa, in the district of Saran, where "India made foreign Liquors' are manufactured. The petitioner holds the requisite license in Form 10 under the Bihar and Orissa Excise Act. 1915 (hereinafter to be called "the Act"). The petitioner also holds a license in Form 1 for the sale of 'India made foreign liquors' to trade i.e. to other licensed dealers. The 'India made foreign liquors' manufactured by the petitioner are consumed inside the State of Bihar and also exported to other States in India. In this writ application under Articles 226 and 227 of the Constitution the petitioner has challenged the validity of the notification dated the 30th of July, 1973, a copy whereof has been made Annexure 1' to the writ application. By that notification duty at the rate of 60 paise per L.P. Litre has been imposed on "India made foreign liquor issued from the premises of holders of 'sale to trade' licenses in Bihar or from any distillery or bonded Warehouse for export to any place outside Bihar". 2. Mr. Rajeshwari Prasad, learned counsel appearing for the petitioner, raised two contention. In the first place, he submitted that the impugned duty at the rate of 60 paise per L.P. Litre, referred to above, on India made foreign liquors bas been imposed in contravention with the provisions of the Act and the Bihar and Orissa Excise Rules (hereinafter to be called 'the Rules') framed by the State Government under-section 89 of the Act. Secondly, he urged that the levy of duty is, in substance, a levy on export of foreign liquor to other states and as such the imposition of such a levy tantamounts to unreasonable restriction on freedom of trade, commerce and, intercourse as guaranteed under Article 301 of the Constitution. 3. Before dealing with the contentions which have been raised on behalf of the petitioner, I consider it necessary to refer to some of the statements made in the counter-affidavit filed on behalf of the respondent. In paragraph 5 of the counter-affidavit it has been asserted that the imposition of duty at the rate of 60 paise does not amount to tax on export but is an excise duty authorised under section 27 of the Act. In paragraph 5 of the counter-affidavit it has been asserted that the imposition of duty at the rate of 60 paise does not amount to tax on export but is an excise duty authorised under section 27 of the Act. In paragraph 6 of the counter-affidavit it has been stated that in order to augment revenue the Excise Department tentatively decided in September, 1972, to levy export duty on foreign liquor on the lines of U.P. Government which had been enforcing that duty since long. The Government notification in that regard was ultimately issued on the 30th of July, 1973, after consideration of all aspects of the proposal. Accordingly the rates of duty were revised on various items of foreign liquor. The rate of excise duty on export of foreign liquor was accordingly fixed at 60 paise per L.P. Litre under section 27 of the Act. Thus, according to the stand taken by the respondent in the Counter-affidavit, the duty at the rate of 60 paise per L.P. litre is nothing but an excise duty on foreign liquors to be exported and not an export duty simpliciter. 4. Section 27 of the Act provides as follows: "An excise duty or a countervailing duty, as the case may be, at such rate or rates as the State Government may direct, may be imposed, either generally or for any specified local area on : (a) any excisable article imported, or (b) any excisable article exported. X X X The relevant portion of section 28 of the Act reads thus: "Subject to any rules made under section 90, clause (12) any duty imposed under section 27 may be levied in any of the following ways : (a) … … … (b) on an excisable article exported, by payment in the State or in the State or territory to which the article is sent: X X X X X X" Rules 11 to 17A deal with export of foreign liquor to other States. Rule 11A is relevant for our purpose and it reads as follows: "11A. Rule 11A is relevant for our purpose and it reads as follows: "11A. A person, holding license for the sale of foreign liquor to the trade, may also export it to any other State in India on pre-payment of duty at the rate in force in the State where it is desired to be exported, subject to the following conditions, namely :- (1) The exporter shall obtain from the importer a permit authorising the import granted by the Chief Revenue authority of the State of import or by an officer duly authorised by him in this behalf. (b) The permit shall specify— (a) the name and address of the person or firm authorised to import: (b) the name and address of the exporter : (c) the description and quantity of foreign liquor: (d) the rate of duty leviable in the State of import Provided that in the case of troops and military bodies of the Defence services, the duty may be adjusted by book transfer. " 5. Mr. Rajeshwari Prasad submitted that as provided in section 28 (b) of the Act excise duty imposed under section 27 on any excisable article exported can be levied in this State or in the Slate or territory to which the article is sent. Both the States cannot impose excise duty on an excisable article which is exported. According to learned counsel, the provision contained in rule 11A of the. Rules that the holder of the license for the sale of foreign liquor can export it to any other State on prepayment of duty at the rate in force in the State where it is desired to be exported gives a clear indication that he cannot be subjected to the payment of any excise duty fixed by this State and this State is not competent to impose any excise duty in addition to the duty in force in the State where the foreign liquor is to be exported. In substance, the contention of learned counsel is that no excise duty over and above the excise duty which is payable in the State, where the excisable article is exported, is permissible on a harmonious construction of the provisions of section 27 and 28 of the Act and rule 11A of the Rules. There is substance in this contention and it must be accepted. There is substance in this contention and it must be accepted. Section 27 no doubt authorises the imposition of excise duty on an excisable article which is exported but section 28(b) of the Act clearly provides that such a duty cannot be levied both in this State as well as in the State or territory where the excisable article is sent. The expression "on prepayment of duty at the rate in force in the State where it is desired to be exported" occurring in rule 11A of the Rules clearly shows that the exporter is required to pay only such excise duty which is payable according to the prescribed rate of the State where the excise article is exported and not at the rate prescribed by this State. The State Government, therefore, cannot impose an extra excise duty on the export of foreign liquor which is subject to excise duty payable at the rate prescribed by the State in which it is exported. For the foregoing reasons I accept the first contention which has been raised on behalf of the petitioner that the impugned duty on 'India made foreign liquors', as contained in item No.4 of Annexure 1', is ultra vires, the provisions of section 27 read with section 28 of the Act and rule 11A of the Rules, referred to above. As the first contention raised in behalf of the petitioner is accepted, it is not necessary to consider the second contention. 6. This application is accordingly allowed and the imposition of duty of 60 paise per L.P. Litre in respect of 'India made foreign liquors' for export to any place outside Bihar, as mentioned in item No.4 of annexure 1', is quashed. There will be no order as to costs. S.K. Jha, J. I agree. Application allowed.