JUDGMENT : ( 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. 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 intoxicants consequent on the enhancement of duty shall also apply when duty leviable on any intoxicants is reduced. Refund of the difference in duty consequent on reduction in its rate may be sanctioned by the Excise Commissioner on receipt of an application from the licensee through the Collector of the district. " ( 4. ) SECTION 15 read with the second proviso to section 26 makes it clear that when liquor is purchased from a warehouse, payment of excise duty has to be made at the rate of duty in force on the date of issue of the liquor from the warehouse. It is also pertinent to note that though the substantive provision in section 26 is subject to rules, the proviso 2 is not subject to rules. The proviso, is in the nature of an exception to the substantive provision. This means that whenever an excisable article is sold from a warehouse the duty payable is to be computed according to the rate in force on the date of issue of the article from the warehouse. It may be that when rate of duty is retrospectively enhanced, additional duty may become payable on the excisable article already issued from the warehouse for the effect of retrospective enhancement would be as if the enhanced rate was in force on the date of issue. Such a situation may arise because it has been held that section 62 read with section 63 confers power on the State Government to make even rules having retrospective effect State of M. P. v. Tikamdas, AIR 1975 SC 1429 . But when the enhancement of rate of duty is not retrospective, the enhanced rate cannot be applied to liquor which has already been sold and issued to the licensee before the date of coming into force of the new rate for the rate of duty applicable under the proviso 2 to section 26 is one prevailing on the date of issue. Rule 26 on which the learned Government Advocate placed reliance and which provides for charging excisable duty from the licensees in respect of liquor in their stock which they had already purchased and which had already been subjected to duty at the time of issue from the warehouse, must be read consistent with proviso to section 26 and can have no application when the rate of duty is not retrospectively enhanced. In the instant case, the rate of duty has been increased prospectively. The notification dated 29th November 1980 is not retrospective. . The Government was, therefore, not entitled to collect additional duty on the liquor in possession of the petitioners on the date of the notification. ( 5. ) THE view we have taken is supported by a decision of a Division bench of this Court in J. F. Shroof v. Govt, of M. P. 2 which dealt with a similar situation arising under the Madhya Bharat Excise Act, 1952, the provisions of which were in pari materia with the provisions of the M. P. Excise Act. In J. F. Shroofs case the Division Bench also referred to a decision of the Bombay High Court in Messrs S. S. Miranda Ltd. v. The State of Bombay Appeal No. 45 of 1954 on a similar point. It was also pointed out that the Bombay decision was confirmed in appeal by the Supreme Court (C. A. 21 of 1956, decided on 25th March 1960 ). ( 6. ) THE learned counsel for the petitioners also contended that there could be no enhancement of the duty during the currency of the licence. This contention in our opinion, is not well founded. The rate of excise duty can be fixed by the State Government by rules under section 25 read with section 62 (2) (g ). The State Government under the same provision can change the rates from time to time. There is nothing in the Act to support the argument that there can be no enhancement of excise duty during the currency of a licence so as to affect the licence. Indeed, Rule 41 of the General licence Conditions makes it clear that the State Government is authorised to enhance or reduce the duty rates during the currency of a licence. The argument that the notification can have no application to the petitioners cannot be accepted. Indeed, Rule 41 of the General licence Conditions makes it clear that the State Government is authorised to enhance or reduce the duty rates during the currency of a licence. The argument that the notification can have no application to the petitioners cannot be accepted. The notification will have application in respect of all sales made to the petitioners from and after 29th November 1980 from the warehouses. ( 7. ) THE petition is partly allowed. It is declared that the notification dated 29th November 1980 enhancing the rate of excise duty on the Indian made foreign liquor is not applicable to the stock of liquor with the petitioners on that date which had been purchased earlier from the warehouses and on which duty had already been paid at the rate prevailing on the date of issue. The State is restrained from recovering any additional duty on the said stock existing with the petitioners on 29th November 1980 in pursuance of the said notification. There will be no order as to costs. Security amount be refunded to the petitioners. Petition partly allowed.