JUDGMENT I. P. Singh, J. The petitioner prays for quashing the orders passed by the Respondents 3,5 and 6 as contained in Annexures 5,6 and 7. 2. Annexure 5 contain an order dated 26.7.90 of the Commissioner of Excise, Bihar, (Respondent no.3) directing all the Collectors/Deputy Commissioners to recover or deduct a sum of 70 paise per L. P. litre towards the maintenance expenses of ware-houses maintained by the Slate Government out of the payment made to the distillers, including the petitioner -for the alcohol supplied by them. 3. Annexures 6 and 7 contain the directions made by the Superintendent of Excise, Aurangabad and Darbhanga, made pursuant to the order as contained in Annexure 6. 4. The relevant facts for disposal of this writ application are as follows: The petitioner is a company incorporated under the Indian Companies Act, whose distillery is situated at Narkatiaganj in the district of West Champaran in this State. The petitioner is engaged in manufacturing/product ion of commercial spirit at its distillery aforementioned. The production/storage etc. of the spirit are regulated and controlled by the Bihar & Orissa Excise Act, 1915 and the Bihar Excise Rules (hereinafter referred to as 'the Act' and 'the Rules'). Under the Act, the petitioner is under an obligation to supply spirit at the direction of the Excise Commissioner or anybody authorised by him. The supply made by the petitioner of the spirit at the orders of the Commissioner is a statutory sale. There is a practice that the quantity of spirit to be supplied by the petitioner and other distilleries is to be done within a prescribed period to the Ware-houses mostly owned by the State Government or its contractors. The petitioner transports the spirit to the Warehouses as a courtesy otherwise it is not obliged to sell or supply spirit beyond its factory premises. If the State Government wants to supply spirit to certain warehouses, in that event it is for its agency to take delivery of the spirit from the gate of the factory of the petitioner and to deliver to any ware-house which the Government wishes to do so, but the petitioner in order to maintain congenial atmosphere has been following the directions of the Excise authority in supplying the spirit to the Ware-houses. The petitioner is not a Contractor of any Ware-house nor docs it own any ware-house anywhere in this State. The petitioner is not a Contractor of any Ware-house nor docs it own any ware-house anywhere in this State. It is a settled issue that even a compulsory sale is a sale in the eye of law and the necessary legal incidents of such transaction arc equally applicable: The definitions of the words 'Delivery', 'Seller', 'Sale and Agreement to sell', 'Duties of Seller and buyer' and 'Payment and delivery as mentioned in Section 2, 4, 31 and 32 of the Sale of Goods Act are relevant. Accordingly, the excise authorities, in law, have no power to treat the supply of spirit other than the sale, for which a price has to be offered agreeable to the seller i.e. the petitioner. Under the Act, no provision has been made' or power has been given to any authority of the State Lo determine the cost price or the price on which t he producer of the spirit shall sell the spirit. The State Legislature has got no power under Schedule VII of the Constitution to determine the price of the spirit. Even assuming that the Legislature has got power to make enactments, the action of the State Government in determining the price of the spirit cannot be done by a mere executive order in the absence of law being made in that regard. Article 162 of the Constitution prescribes the extent of the executive power of the State, which extends the matter with reference to which the State Legislature has power to make laws. Accordingly, the officers of the State cannot exercise their authority to determine the price. The price of coal-molasses and other factor as comes near about Rs. 3.00 per L. P. litre. The Distillery Association demanded the price of country spirit- to be supplied by the Distilleries at the rate of Rs. 4/- per L. P. litre, on which the State Government is realising Rs. 25/- as duty. The State Government of its own fixed the price with effect from 20.2.1990 at the rate of Rs. 3.42 per L. P. litre directing the retailers to pay it from the ware-houses, which is evident from memo no. 6014/89 dated 20.2.1990 of the Excise Commissioner (as contained in Annexure 1). The petitioner, at the threat of cancellation of its licence and other coercive steps, started supplying spirit at different ware-houses. 3.42 per L. P. litre directing the retailers to pay it from the ware-houses, which is evident from memo no. 6014/89 dated 20.2.1990 of the Excise Commissioner (as contained in Annexure 1). The petitioner, at the threat of cancellation of its licence and other coercive steps, started supplying spirit at different ware-houses. It was asked to supply 12,000 bulk litres of spirit vide letter dated 2.2.1990 to Gumla and Lohardaga Ware-houses. Another order was made on 21.8.1990, by which it was ordered to deliver and supply 24,000 bulk litres of spirit to the ware-houses at Laheriasarai and Darbhanga. On 26.81990, it was ordered to supply similar quantity of spirit to the Wan:-house at Aurangabad. All these arc clear from the letters as contained in Annexures 2, 3 and 4. Pursuant to the supplies aforementioned, it was paid the price of the spirit at the rate of 3.42 per L.P. litre inclusive of transport cost, which is lower in comparison to the cost of production and expenses. The petitioner is not entitled to maintain the warehouses, which belong to the Government and it is for the State Government or its Contractor to maintain them. There is no provision under which the petitioner is required to make payment towards the maintenance of the aforementioned warehouses. But for the reasons hest known to the Excise Commissioner, he passed his direct ion as contained in Annexure 5 for reduction of 70 paise per litre towards maintenance expenses of warehouses maintained by the State Government out of the payment made to the Distillers including the petitioner. The price of Rs. 3.42 per L. P. Litre, which was earlier determined, cannot be reduced without obtaining the consent of the petitioner in the name of maintenance expenses of the ware-houses. Asking to return money at the rate of 70 paise per litre through Annexures 6 and 7 against the payments already made is arbitrary and violative of Articles 14, 19G and 300 A of the Constitution. The action aforementioned is confiscatory in nature and if the said amount is realised from the petitioner, then he shall have no option but to dose the Distillery. 5. In the counter-affidavit filed on behalf of Respondents no. 1 to 6, it has been asserted to this effect. The action aforementioned is confiscatory in nature and if the said amount is realised from the petitioner, then he shall have no option but to dose the Distillery. 5. In the counter-affidavit filed on behalf of Respondents no. 1 to 6, it has been asserted to this effect. It is incorrect that the transportation of the spirit was done by the petitioner under courtsey, rather it was part and parcel of the understanding, on the basis of which the licence was granted. The State Government has not fixed the price, rather, in fact, it was fixed in a joint meeting held on 15.12.1989 consisting of various officials and representatives of the different Distilleries, including the petitioner. The petitioner being party to said decision, it is too late for it to allege and make grievance and it is estopped from making such a grievance. The price fixed at Rs. 3.42. per L. P. litre included 70 paise on account of establishment and maintenance cost of the warehouse etc. The price for the spirit supplied by the petitioner was, thus, fixed at Rs. 2.72 per L. P. litre only on agreed basis. The payment at the rate of Rs.3.42 per L. P. litre was wrongly made and, thus the Respondents arc well within their right to recover the. excess payment. True copy of the proceeding of the meeting held on 15.12.1989, as also the price fixed in pursuance thereof wide letter dated 19.2.1990 arc contained in Annexure 'A’ series. The power to fix the selling rate is conferred by section 90(2) of the Act. It is accordingly incorrect to state that t he Board was not vested with such power. 6. In its reply, apart from reiterating its stand taken in the writ petition, the petitioner asserts to this effect. It is specifically denied that the petitioner had agreed on the price fixed by the State Government. By merely, participating in the meeting it does not necessarily imply giving concurrence. The Board derives no power under section 92 of the Act. 7. This writ application was filed on 29.10.1990. On 21.12.1990, an order was passed that no coercive step shall be taken for realisation of any amount as maintenance charge for the warehouses belonging to the State Government at the rate of 70 paise per litre. The Board derives no power under section 92 of the Act. 7. This writ application was filed on 29.10.1990. On 21.12.1990, an order was passed that no coercive step shall be taken for realisation of any amount as maintenance charge for the warehouses belonging to the State Government at the rate of 70 paise per litre. This writ application was admitted on 24.1.1991 directing that during the pendency of the writ application, the Respondents shall not insist for refund of 70 paise per L. P. litre which has already been paid as part of Rs. 3.42 to the petitioner by the respondents. It was also directed that during the pendency of the writ application, the Respondents shall pay for supply of per L.P. litre of country spirit at the rate of 2.72 only deducting 70 paise out of Rs. 3.42 towards maintenance charges. It was also observed further that in case this writ application is allowed, the Respondents shall pay to the petitioner the said amount of 70 paise per L.P. litre within four months from the date of• delivery of judgment, leaving the question of grant of interest over the said amount to he determined by the Bench hearing the writ petition. It was also observed that in case the petition is dismissed, the petitioner shall similarly refund to the Respondents within four months from the date of delivery of judgment the amount at the rate of 70 paise per L. P. litre. 8. Mr. Y.V. Giri, learned counsel appearing on behalf of the petitioner, submits as follows :- Under Section 90(2) of the Act, the Board of Revenue has got no jurisdiction to fix any price for sale of spirit. Under section 90(1) no rule has been framed by the Government regulating the fixation of price and no rule has been published in the official Gazette. The Commissioner of Excise, in such a situation, cannot exercise its authority to determine the price of t he spirit, which docs not fall within the legislative competence of the State Legislature. The State Government cannot usurp the authority for the said purpose. 9. Mr. The Commissioner of Excise, in such a situation, cannot exercise its authority to determine the price of t he spirit, which docs not fall within the legislative competence of the State Legislature. The State Government cannot usurp the authority for the said purpose. 9. Mr. Giri, in support of his submission, relied upon a number of judgments• of the Court as well as this court reported in A.I.R. 1972 S. C. 87, A. I. R. 1975 S. C. 1121, A.I. R. 1976 S.C. 2479, 1986 P. L. J. R. Page 1045 and A. I. R. 1990 S.C. 1277 and an unreported judgment of a learned single Judge of this court in C. W. J. C. No. 1377 of 1983 National Trading Corporation vrs. the State of Bihar & Others) decided on 25.4.1991 [ 1991 (2) PLJR 622 ]. 10. The learned Additional Advocate General No.1, appearing on behalf of the Respondents, submits as follows : - (i) Even if there is no rule, the price was fixed by the Board of Revenue in consultation with the representatives and the management of the Distillerian, including the petitioner• and the petitioner at no stage having objected to the fixation of the said price, cannot challenge it on account of estoppel; (ii) If the Government has got no power to realise maintenance charges of the ware-houses belonging to it, in that event the price fixed by it at the rate of Rs.3.42 per L. P. litre was also illegal and accordingly, the Distilleries, including the petitioner could not charge at that rate and (iii) as per the terms agreed, the petitioner-Distillery is supplying the spirit and has come up before this court after lapse of more than eight months and, thus, the writ application is liable to be dismissed. 11. It is not necessary to refer to all the decisions cited by Mr. Giri at the Bar. In C.W. J. C. No. 1377 of 1983 (Supra) [ 1991 (2) PLJR 622 ], it was held as follows: 6. ... The Excise authorities, may be the Excise Commissioner or his subordinates, must lay hand on some statutory provisions for exercise of their powers. They arc not competent to make any demand, which is not authorised by the statutory provisions. The excise authorities arc themselves not the State. 8. ... The Excise authorities, may be the Excise Commissioner or his subordinates, must lay hand on some statutory provisions for exercise of their powers. They arc not competent to make any demand, which is not authorised by the statutory provisions. The excise authorities arc themselves not the State. 8. After having carefully examined the statutory provisions brought to my notice I am of the considered opinion that none of the provisions either of the Act or the Rules empower the excise authorities to levy and collect any amount by way of establishment charges under consideration. The legislature and its delegates i.e. the State Government and the Board of Revenue wherever intended to levy such charges have made specific provisions in this regard. I am unable to accept the contention of the learned Advocate General that since in case of some of the functionaries provisions have been made for levy of establishment charges, therefore, the petitioners should also be subjected to similar charges. Any such presumption is wholly unwarranted. Any compulsory exaction of money by the State through its officers partakes the colour of tax under the constitutional law. Under Article 365 of the Constitution no tax can he levied and colleted except under the authority of law. The law here means the Act of Legislature and the subordinate legislations made t hereunder. No tax, which includes the nature of demands under challenge, can be imposed under executive fiat without any legislative sanction. This aspect of the constitutional law has been well explained and firmly laid down by the. Supreme Court in the case of A. Venkata Subbarao & Ors. Vs. The State of Andhra Pradesh, reported in 1965 S. C. 1773. 10. Apart from the above, what is more important is that neither the Act nor the Rules or the conditions of the licence authorises the Excise Commissioner to provide for levy and collection of an establishment cost from the licensees of the ware houses or foreign liquor. Therefore, even if any such condition was sought to he incorporated in the licence it cannot bind the petitioners. The act of the Excise Commissioner incorporating any such condition was without any legal authority and thus a nullity." 12. In M/s Shri Sitaram Sugar Co. Ltd. vs. Union or India (A. I. R. 1990 Supreme Court, page 1277), it was held as follows: "45. The act of the Excise Commissioner incorporating any such condition was without any legal authority and thus a nullity." 12. In M/s Shri Sitaram Sugar Co. Ltd. vs. Union or India (A. I. R. 1990 Supreme Court, page 1277), it was held as follows: "45. Price fixation is in the nature of a legislative action even when it is based on objective criteria founded on relevant material. No rule of natural justice is applicable to any such order. It is nevertheless imperative t hat the action of the authority should be inspired by reason : Sarswati Industrial Syndicate Ltd. (1975) I SCR 956, 961, 962: ( AIR 1975 SC 460 at pp. 463, 464). The Government cannot fix any arbitrary price. It cannot fix prices on extraneous considerations : Renusagar (Supra ). 46. Any arbitrary action, whether in the nature of a legislative or administrative or quasi-judicial exercise of power is liable to attract the prohibition of Article 14 of the Constitution. As stated in E. P. Royappa vs. State of Tamil Nadu (1974) 2 SCR 348 : ( AIR 1974 SC 555 ), "equality and arbitrariness are sworn enemies; one belongs 10 the rule of law in a republic while the other, to the whim and caprice of an absolute monarch and unrestricted power is affected by the vice of discrimination: Mrs. Maneka Gandhi vs, Union of India (1978) 1 SCC 248 at pp. 293-294; ( AIR 1978 SC 597 at pp. 630, 632). The principle of equality enshrined in Article 14 must guide every State action, whether it be legislative, executive, or quasi-judicial : Ramana Dayaram Shetty v. The International Airport Authority of India, (1979) 3 SCR 1014 at p. 1042: ( AIR 1979 S.C. 1628 at p. 1642); Ajay Hasia v, Khalid Mujib Sohravardi, (1981) I SCC 722; ( AIR 1981 SC 487 ) and B. S. Nakara v. Union of India, (1983) I SCC 305; (AIR 19R3 SC 150." 13. Under section 89 of the Act, the State Government has been given powers to make rules to carry out the object of the Act of any other law for the time being in force relating to the excise revenue. Under section 90 of the Act, the Board of Revenue has been given powers to make rules in regard to the items mentioned therein. Under section 90 of the Act, the Board of Revenue has been given powers to make rules in regard to the items mentioned therein. Under sub-section(2) of section 90 of the Act, the Board may make rules for fixing the strength, price or quantity in excess of or below which any intoxicant shall not be supplied or sold, and the quantity in excess of which denatured spirit shall not be possessed, and for prescribing a standard of quality for any intoxicant. 14. It appears that no rule has been framed by the Board. 15. The Commissioner of Excise who has passed the order as contained in Annexure 5, cannot he said to have exercised the jurisdiction, if any, vested in the Board of Revenue. In this view of the matter alone, it is held that the directions/orders, as contained in Annexures 5, 6 and 7 are illegal. 16. It is also a sealed law that if an authority lacks inherent jurisdiction to do a thing, consent of the parties cannot confer such a jurisdiction. In the aforementioned view of the matter, it is not necessary to decide the validity or otherwise or other submissioins made at the Bar as noticed in the judgment. 17. In the aforementioned view of the matter no option is left but to quash the impugned orders as contained in Annexures 5,6 and 7 respectively. The Government or the Respondents cannot force the petitioner for the refund of the amount already paid to the petitioner and as a logical conclusion, they are hound to carry out the obligations created earlier by the interim orders of this court. 18. However, under the provisions of the Act and Rules framed thereunder, if any, it will be open to the government to take fresh steps to fix the price of the spirit in accordance with law. 19. This writ application is allowed to the extent indicated above but without costs.