JUDGMENT 1. :- This appeal arises from the judgment and decree dated August 31, 1983 of the learned Additional District Judge No.2 Kota whereby the suit for recovery of Rs. 17,849/- instituted by the plaintiff appellant (for short the plaintiff) against the defendant respondents (for short the defendants) was dismissed. 2. The defendants realised a sum of Rs. 16,089.76 from the plaintiff on different dates. A suit for recovery of said amount alongwith interest, was instituted by the plaintiff on the ground that excise duty on 'rectified spirit' was wrongly charged by the Excise Department as 'excise duty' was only leviable on the goods manufactured or produced on alcoholic liquor for human consumption as per Schedule VII, List 2, Entry 51 of the Constitution of India. As rectified spirit was being used by the plaintiff for the purposes of experiment etc. in the industry, it was not meant for the purposes of human consumption and as such realisation of excise duty was illegal on the part of the defendants. The plaintiff prayed in the suit that orders dated October 18, 1979 and March 31, 1981 respectively passed by the District Excise Officers and Excise Commissioner be declared illegal and void and money decree in the sum of Rs. 17849/- be passed in plaintiff's favour. 3. Written statement was filed by the defendants. Legal objections in respect of jurisdiction of the trial court as well as 'alternative remedy' were raised. Out of the pleadings of the parties following two issues were framed - (1) Whether no excise duty was chargeable by the State on rectified spirit. If so whether the plaintiff is entitled to the refund of Rs. 16089.76/-. (2) Relief. 4. The plaintiff examined Mr. V.S. Patil whereas Mr. M.P. Tyagi, appeared as a witness on behalf of the defendants. The learned trial court vide its judgment and decree dated August 31, 1983 dismissed the suit. 5. Mr. Saurabh Purohit, learned counsel appearing for the plaintiff contended that the learned trial court did not properly appreciate the statement of V.S.Patil. Rectified spirit is chemically known as 'Ethyl alcohol' and cannot be used for human consumption. "Intoxicating liquors" or "Alcoholic liquors" for human consumption" in Entry 51 List II do not cover industrial alcohol being incapable of consumption as such. Rectified spirit is chemically known as 'Ethyl alcohol' and cannot be used for human consumption. "Intoxicating liquors" or "Alcoholic liquors" for human consumption" in Entry 51 List II do not cover industrial alcohol being incapable of consumption as such. Reliance was placed on Synthetic and Chemicals Ltd. vs. State of U.P., (1990) 1 SCC 109 and M/s. Hindustan Copper Ltd. vs. State of Rajasthan, 1989(l) RLR 632 . 6. Learned counsel for the defendants, on the other hand, supported the impugned judgment and decree. 7. I have given my thoughtful consideration to the rival contentions and carefully perused the record. 8. The plaintiff pleaded in the plaint that cause of action arose to the plaintiff when claim in respect of refund of excise duty was dismissed by the Excise Officer as well as Excise Commissioner on Oct. 18, 1979 and March 31, 1981 respectively. A relief was also sought in the plaint for declaring the said order as illegal and void but not a single word was uttered by PW.1 Shri V.S. Patil in respect of these documents in his statement. So unless the aforesaid orders are declared illegal and void no relief in respect of refund of excise duty can be granted. 9. Further, PW.1, Mr. V.S. Patil, in his cross examination admitted that after diluting 'Ethyl alcohol' can be used for human consumption. Mr. Patil stated thus - ['YEH SAHI HAT KI ETHYL ALCOHOL KO DILUTE KARNE KE BAD ANYA VIDHAON KO KAM MAIN LENE KE BAD ISHEEY SHARAB KE ROOP MAIN PIYA JASAKTA HAI'] (It is correct that Ethyl alcohol can be costumed as liquor, after it was used for other purposes and after its dilution). 10. Section 101 of the Indian Evidence Act 1872 provides thus- "Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts, must prove that those facts exist." In the case on hand the plaintiff was bound to prove as to how the cause of action arose and as to why the orders of Excise Officer and the Excise Commissioner were illegal? It appears that relief in respect of declaration was intentionally abandoned by the plaintiff. Order passed by the Excise Officer on October 18, 1979 was challenged by the plaintiff by filing an appeal before the Excise Commissioner under the provisions of the Rajasthan Excise Act. It appears that relief in respect of declaration was intentionally abandoned by the plaintiff. Order passed by the Excise Officer on October 18, 1979 was challenged by the plaintiff by filing an appeal before the Excise Commissioner under the provisions of the Rajasthan Excise Act. The Excise Commissioner dismissed the appeal vide its order dated March 31, 1981. Instead of filing appeal under section 9(a) (i) of the Rajasthan Excise Act, the plaintiff after serving a notice under section 80 Civil Procedure Code, instituted civil suit. 11. The authorities cited at the bar are therefore not applicable in the facts and circumstances of the case. The scope of writ petition under Article 226 and 227 of the Constitution is much wider than that of the civil suit. 12. I am therefore of the view that there is no illegality in the finding arrived at by the learned trial court in respect of both the issues framed by it. 13. In the result the appeal fails and is hereby dismissed with costs. Record of the case be sent back forthwithAppeal Dismissed with costs. *******