JUDGMENT : The petitioner is a Public Limited Company engaged in the manufacture of beer, among other things. The petitioner challenges Exts. P2, P7 and P8 orders of the Assistant Excise Commissioner, the 4th respondent, dated 10-10-1975, 27-7-1977 and 2-8-1977 respectively where under the petitioner is called upon to pay a sum of Rs. 5,43,415 25 which is alleged to be arrears of excise duty payable in respect of beer manufactured during the period from 2-6-1973 to 30-9-1974. The method of calculation under which the said amount is demanded from the petitioner is referred to in Ext. P6 which is a letter dated 15-11-1975 sent by the 4th respondent to the Additional Secretary (Excise), Board of Revenue, the 2nd respondent, with copy to the petitioner. It is pointed out in that letter that duty is payable as per the quantity shown in column 70 of the B5 Register subject to a reduction of 5% as wastage. This calculation is made on the basis of the total quantity of beer produced in a brewery at a given time and not on the basis of actual number of bottles of beer released from a brewery for public consumption. 2. S.17 of the Abkari Act (as it stood at the relevant time) postulates different modes of levy of duty on beer. Duty may be levied either on the: quantity produced as under clause (d), or on the basis of bottles released as under clause (f). These are alternative and mutually exclusive modes of levy. The relevant portions of S.17 read: “17. Duty on liquor or intoxicating drugs. A duty of excise or luxury tax or both shall, if the Government so direct, be levied on all liquor and intoxicating drugs (a) (b) (c) xxx (d) manufactured under any licence granted under S.12; or (e) xxx (f) issued from a distillery, brewery, winery or other manufactory or warehouse licensed or established under S.12 or S.14; or (g) xxx Provided that xxx These methods are further referred to in S.18. I shall read the relevant part of the section. “18. How duty may be imposed. (1) Such duty of excise may be levied, (a) in the case of...beer, either on the quantity produced in or passed out of a ...... brewery or warehouse... xxx xxx S. 18 thus takes in the two modes prescribed under clauses (d) and (f) of S.17. “18. How duty may be imposed. (1) Such duty of excise may be levied, (a) in the case of...beer, either on the quantity produced in or passed out of a ...... brewery or warehouse... xxx xxx S. 18 thus takes in the two modes prescribed under clauses (d) and (f) of S.17. The demand is made under the impugned orders apparently on the basis of a calculation made in terms of clause (d) of S.17 read with S.18 in so far as the latter refers to quantity produced in a brewery. If those provisions were applicable to the petitioner during the relevant period the demand would be sustainable. The question however is whether the demand in terms of clause (d) of S.17 read with S.18 in so far as it refers to quantity produced is sustainable. According to the petitioner, duty was levied and paid by the petitioner for the relevant period in accordance with the provisions of clause (f) of S.17 read with that part of S.18 which refers to the quantity passed out of a brewery. 3. Petitioner’s counsel Shri M. Ramachandran refers to Ext. PI dated 21-6-1973, in which letter dated 16-6-1973 of the Deputy Commissioner of Excise is extracted. That letter reads: “The duty on beer in M/s. Premier Breweries may be collected as and when issues are made, as is being done in M/s. Kerala Breweries and Distilleries, Perumbavoor. You are requested to get a bond executed in the proforma forwarded by you along with your letter dated 23-4-1973.” (emphasis supplied) By Ext. P1, the petitioner was required to execute the bond mentioned in the letter of the Deputy Commissioner. A bond was accordingly executed. Counsel points out that Ext. P1 clearly and unequivocally refers to the mode of levy as stated under clause (f) of S.17 read with that portion of S.18 which refers to quantity passed out. The levy is accordingly on the basis of liquor issued from the brewery which means the total number of sealed bottles issued out of the brewery. This mode of levy is distinct and different from the mode prescribed under clause (d) read with the earlier portion of S.18 which is based on the actual quantity of beer produced in the brewery. This mode of levy is distinct and different from the mode prescribed under clause (d) read with the earlier portion of S.18 which is based on the actual quantity of beer produced in the brewery. Counsel, therefore, points out that having adopted the mode under clause (f) and allowed the petitioner to act accordingly, and having allowed the petitioner to pay the levy so made, the respondents, who have thus elected in favour of a particular mode, are precluded from having recourse to any other mode, as they are deemed to have waived such right. The attack on the impugned orders on the basis of this contention is, I think, well justified. 4. Petitioner’s counsel refers to various averments in the counter affidavit dated 23rd December, 1978, submitted on behalf of the State (the 1st respondent). It is clearly admitted in Para.5 of the counter-affidavit that order No. XA5-24863/70 dated 16-6-1973, which is referred to in Ext. P1, was superseded by order No. XA5-3349/72 dated 9-10-1975 which was brought into effect only on 19-10-1975. The respondents have thus admitted that until 19-10-1975 the procedure adopted by the Department in regard to the levy of tax was that which is mentioned under clause (f) of S.17 read with the relevant part of S.18 namely, levy on the basis of actual number of bottles issued out of the brewery. This is what was stated in Ext. P1. It is only for the period subsequent to 19-10-1975 that the different methods of levy on the actual quantity as postulated under clause (d) of S.17 came into effect. There is no dispute that, since 19-10-1975, duty is being paid by the petitioner under the new method mentioned under Order No. XA5-3349/72 dated 9-10-1975. 5. Duty has to be levied in terms of S.17 read with S.18. Clauses (d) and (f) of S.17 provide for alternative modes of levy which are mutually exclusive. These modes are restated in S.18. The Government are empowered under the Act to adopt any one of these methods. By Ext. P1 the. method under clause (f) was adopted by the Government, and it was acted upon by the petitioner. Clauses (d) and (f) of S.17 provide for alternative modes of levy which are mutually exclusive. These modes are restated in S.18. The Government are empowered under the Act to adopt any one of these methods. By Ext. P1 the. method under clause (f) was adopted by the Government, and it was acted upon by the petitioner. Having adopted the mode under clause (f) in preference to clause(d) these two provisions being, in my view, mutually exclusive and alternative methods the petitioner’s counsel is perfectly justified in contending that the Government are precluded from making a demand otherwise than under clause (f) for the period prior to the order No. XA5-3349/72 dated 9-10-1975 under which the new mode of levy was prescribed. (As regards election and waiver, see the principles discussed by the House of Lords in China Trade Corporation v. Evlogia Co. (1979) 1 WLR. 1018 , 1024, 1034, 1035). For the relevant period the only mode that was applicable was that which was prescribed by Ext. P1 and in respect of which a bond had been executed by the petitioner and in terms of which duty had been collected and paid. The demand for additional duty in terms of a different mode is consequently unsustainable. The impugned orders Exts. P2, P7 and P8, are accordingly quashed. The Original Petition is allowed in the above terms. I make no order as to costs. Allowed.