ORDER The petitioners before me are the East India Hotel Limited and Narayan Chandra Das Sharma, 1ahareholder of the East India Hotel Limited. The petitioner No. 1 is a company incorporated under the Indian Companies Act and carries on business, inter alia, in establishing and running hotels and restaurants in India. The petitioner No.2 is a shareholder and Director of petitioner No. 1 and is a citizen of the Union of India. 2. The petitioner No. lawns a hotel known as 'Grand Hotel' in the city of Calcutta situated at Chowringbee Road. The said building is a four-storeyed building consisting of 300 rooms. In the year 1961 the Central Government set up a classification Committee to go around all over India and to inspect the hotels and restaurants in accordance with the criteria sheet. specifying marks for amenities provided and for giving recognition and approval of such establishment which fulfilled the basic criteria as being fit to cater for its tourists. In the laid classification 'Grand Hotel' has been categorised as a five star hotel in the country. The said hotel has been declared as a Public Utility Concern by the Government of West Bengal by various notifications under the provisions of Industrial Disputes Act, 1947. 3. In order to be categorised as a 5 Star Hotel it should have certain basic features and amenities like band. bar, cabaret and evening entertainments. swimming pools etc. Unless these special facilities are available the said hotel would not be classified as a 5 Star Hotel. At the insurance of Government of India the petitioner had to spend lakhs of rupees to make it upto the standard and cater foreign tourists and visitors and earn more foreign exchange for the country. The particular hotel is a residential hotel and maintains a very high standard of service for 24 hours round the clock. This hotel has a licence form the Corporation of Calcutta for providing evening entertainments during the licensing hours which extend upto 1 A.M. and the licensing hours for bar and restaurant establishments of the hotel are specified in the licences issued by the Excise Commissioner under the Bengal Excise Act and the Commissioner of Police under the Calcutta Police Act. This hotel has a licence form the Corporation of Calcutta for providing evening entertainments during the licensing hours which extend upto 1 A.M. and the licensing hours for bar and restaurant establishments of the hotel are specified in the licences issued by the Excise Commissioner under the Bengal Excise Act and the Commissioner of Police under the Calcutta Police Act. The nature of service rendered by this Hotel is of very special type and unless such high standard of services are maintained it is not possible for the Hotelier to run the hotel and earn the category of 5 Star Hotel. It is a hotel in which board and lodging is provided and meals foreign liquor and India made liquor. The restaurant situated inside the hotel cater for outsiders, mostly foreign tourists and the restaurants are being maintained and/or run in accordance with the international standard and to maintain such standard the Hotel owners have to incur heavy overhead expenses for providing services to the guests and tourists. According to the petitioner, no sale of any alcoholic liquor is transacted but served by the hotelier to is customers and residents in the said hotel. There is no sale of such drinks but this is a part of the services rendered by the Hotelier to its customer as an innkeeper. 4. By a notification dated August 25, 1971 published in Calcutta Gazette the Respondent No. 1 in purported exercise of powers conferred by S.86 of the West Bengal Excise Act, 1909 made and published curtains rules regulating the maximum retail sale price of India made foreign liquors for consumption on the premises and in the said notification a ceiling has been fixed in the matter of sale of India made foreign liquors. According to the petitioners the said notification has no application for supply of alcoholic drinks by the petitioner no. 1 in its hotel bar and restaurant as no sale is being effected on such drinks but it is only a part of the services and/or hospitality as rend red by hotelier. According to the petitioners the said notification has no application for supply of alcoholic drinks by the petitioner no. 1 in its hotel bar and restaurant as no sale is being effected on such drinks but it is only a part of the services and/or hospitality as rend red by hotelier. The respondents are proceeding on the wrong footing that the alcoholic drinks are being sold to the residents and customers But on It true construction of the S. 86(2) it would appear that the Respondent No. 1 has been empowered to make rules 'for fixing the strength price or quantity in excess of or below which any intoxicant shall not be supplied or said and the quantity in excess of which denatured spirit shall not be possessed, and for prescribing a standard of quality for any intoxicant". It is apparent from the language of S.86(2) or the Act that the said rules can be applicable to the manufacturer of alcoholic beverages who alone can fix the strength or determine the quality of the intoxicant and it should not be made applicable to distributors or retailers. Moreover under the said provisions no sale price can be fixed on the drinks. The said rules under the notification also envisages preparation of bills. According to the petitioners to maintain international standard no separate bills are prepared for alcoholic beverages or items like snacks which are served with the drinks and also other amenities like music etc. provided in the restaurant and also in the hotel. 5. The price and the rates were subsequently revised by way of amendment to the said notification dated 25th of August, 1917. The grounds as set out in paragraph 21 of the petition amongst other points have 1geen taken by the petitioner assailing the said notification. In view of decision of the Supreme Court of India reported in AIR 1972 SC 1131 State of Himachal Pradesh v. M/s Associated Hotel of India Limited. The grounds as set out in paragraph 21 of the petition amongst other points have 1geen taken by the petitioner assailing the said notification. In view of decision of the Supreme Court of India reported in AIR 1972 SC 1131 State of Himachal Pradesh v. M/s Associated Hotel of India Limited. where It has been held that the transaction between a hotelier and a visitor whereby the former receives the latter for regarding in his hotel is essentially a contract of service and where in the performance of the service and as part of the amenities incidental to that service the hotelier serves meals at stated hours, the transaction is not sale it is true that the customer during his stay consumes a number of food staffs. It may be possible to say that the property. In those food stuffs passes from the hotelier to the to the customer at least to the extent of food stuffs consumed by him. Even if that be so, mere transfer of property is not conclusive and does not render the event of such supply and consumption a sale since there is no intention to sell and purchase. The transaction is essentially one of service by the hotelier in the performance of which meals are served as part of and incidental to that services, such amenities being regarded as essential in all well conducted modern hotels. The bill prepared by the hotelier is one and indivisible, not being capable by approximation of being split up into one for residence and the other for meals. The Revenue therefore, is not entitled to split up the transaction into two parts. one for the service and the other for sale of food stuffs and to spilit up also bill charged by the hotelier as consisting of charges for lodging and charges for food stuffs served to him with a view to bring the latter under the Act." 6. In the Case reported in 1978 SC Cases Volume 4 part at page 36 (Northern India Caterers (India) Ltd. v. Lt. Governor of Delhi) it has been held by the Supreme Court of India "There is no sale when food and drink are supplied to guests residing in the hotel. The supply of meals was not essentially in the nature of a service provided to thorn and could not be identified as a transaction of a sale. Governor of Delhi) it has been held by the Supreme Court of India "There is no sale when food and drink are supplied to guests residing in the hotel. The supply of meals was not essentially in the nature of a service provided to thorn and could not be identified as a transaction of a sale. The Revenue was not entitled to split up the transaction into two parts one of service and the other of sale of food stuffs. The classical legal view being that a number of services are concomitantly provided by way of hospitality, the supply of meal, must be regarded as ministering to a bodily want or to the satisfaction of a human need. What the customer pays for is a right to satisfy his appetite by the process of destruction. What he pays for includes more than the price (If the food as such. It includes all that enters into the conception of service and with it no small factor of direct or personal service. It does not contemplate the transfer of the general property in the food supplied as a factor in the service rendered. The supply of food or drinks to the customer did not partake the character of sale of goods". 7. Applying the principles as laid down by the Supreme Court of India in the two cases mentioned above I am of the view and hold that the notification complained of cannot be given effect to. As such I set aside the notification and I make the Rule absolute. Rule made absolute.