JUDGMENT Hon’ble Rajes Kumar, J.—By means of the present writ petition, the petitioner seeks the following reliefs : 1. To issue a writ, order or direction in the nature of Certiorari quashing the order dated 4.8.2006 (Annexure-12 to the petition). 2. To issue a writ, order or direction in the nature of mandamus or prohibition, restraining or prohibiting the respondents, their officers, servants and agents in proceeding in any manner in pursuance to the order dated 4.8.2006 (Annexure-12 to the petition). 3. To issue a writ, order or direction in the nature of Mandamus or prohibition, restraining or prohibiting the respondents, their officers, servants and agents in proceeding in any manner to the notice dated 8.7.2003 (Annexure-4 to the writ petition) issued by respondent No. 3. 4. To issue any other suitable writ, order or direction as this Hon’ble Court may deem fit and proper in the circumstances of the case. 5. To award costs throughout to the petitioner. 2. Brief facts of the case are that the petitioner is a Public Limited Company incorporated under the Indian Companies Act, 1956. The petitioner has a distillery in the name and style “The Cooperative Company Limited, Distillery." Petitioner is engaged in the manufacture of Indian Made Foreign Liquor as well as Country Liquor. The Country Liquor is being manufactured from rectified spirit (hereinafter referred as “RS”). Country Liquor manufactured by the petitioner is fit for human consumption and accordingly subjected to excise duty under the U.P. Excise Act (hereinafter referred to as “the Act”). Petitioner is carrying on the bottling of the Country Liquor inside the distillery. 3. On 25th September, 2002 a notice was issued by the Assistant Excise Commissioner, Saharanpur, wherein it was mentioned that for the month of August, 2002, in Country Liquor, there was wastage of 1.7 percent, while 0.08 percent is only allowable. In this way, 0.09 percent wastage was in excess. On the excess quantity of 39.7 AL, the petitioner was required to pay Rs. 6,60,422.40. Further, it has been stated that in RS, there was excess wastage of 302.09 AL on which Rs. 58,156.80 is payable. Further notice was issued on 14th October, 2002 stating therein that there was excess wastage of RS to the extent of 5306.02 AL on which Rs. 10,18,790.40 was payable and in Country Liquor, there is excess wastage of 7850.08 AL on which a sum of Rs. 58,156.80 is payable. Further notice was issued on 14th October, 2002 stating therein that there was excess wastage of RS to the extent of 5306.02 AL on which Rs. 10,18,790.40 was payable and in Country Liquor, there is excess wastage of 7850.08 AL on which a sum of Rs. 15,07,353.60 was payable. Further, notice dated 3rd December, 2002 was issued stating therein that for the month of August, September, October and November, 2002, there was excess wastage to the extent of 20904.01 in Country Liquor on which a sum of Rs. 40,13,587.20 was payable. It was also stated that the petitioner was directed to file the explanation, but no explanation was received. Petitioner was further directed to file the explanation. On 8th July, 2002 a sum of Rs. 70,18,267.40 was demanded for the months of May, June, August, September, October, November, 2002 and for the months of January, February, March and April, 2003 towards excess wastage in excess of 0.08 percent. Petitioner filed letter dated 11.2.2003, Annexure-5 to the writ petition, which is the reply to the letter No. 472 dated 10.2.2003 stating therein that no wastage can be charged on the storage of RS as well as bottling of the Country Liquor/IMFL, as per order No. 9937-10114 (E.I.B.)/liv-vidhi-W/131/76 dated 30th January, 1992 issued by the Excise Commissioner, U.P., Ailahabad. In the writ petition, letter dated 17th February, 2003 addressed to Deputy Excise Commissioner, Saharanpur Charge, Saharanpur is annexed in which it was stated that in view of the decision of the Supreme Court dated 6th March, 2002, no excise duty can be charged on excess wastage occurred during bottling of Country Liquor. Being aggrieved by the order dated 8th July, 2003 passed by the Assistant Excise Commissioner, Saharanpur raising the demand of Rs. 70,18,267.40 for the months of May, 2002 to November, 2002 and from January, 2003 to April, 2003. Petitioner filed appeal before the Additional Excise Commissioner (Licensing and Industrial Development), Allahabad. Additional Excise Commissioner (Licensing and Industrial Development), Allahabad vide order dated 26th May, 2006 dismissed the appeal. Being aggrieved by the order, petitioner filed revision before the State Government. The State Government by the impugned order dated 4th August, 2006 dismissed the revision. 4. Heard Sri Bharat Ji Agrawal, learned Senior Advocate assisted by Sri Nikhil Agrawal, appearing on behalf of the petitioner and Sri B.K. Pandey, learned Standing Counsel. 5. Being aggrieved by the order, petitioner filed revision before the State Government. The State Government by the impugned order dated 4th August, 2006 dismissed the revision. 4. Heard Sri Bharat Ji Agrawal, learned Senior Advocate assisted by Sri Nikhil Agrawal, appearing on behalf of the petitioner and Sri B.K. Pandey, learned Standing Counsel. 5. Learned Counsel for the petitioner submitted that Country Liquor is manufactured from RS manufactured in its own distillery as well as purchased from outside. He submitted that RS is not fit for human consumption and, therefore, is not subject to excise duty. Thus, any wastage occurred to RS shall not be subject to excise duty. He submitted that the Country Liquor which is manufactured out of RS is fit for human consumption and is liable for excise duty under Section 28 of the Act. Under Section 29 of the Act, duty is leviable at the point of issue. He submitted that the manufacturing process of the Country Liquor consist of various stages and wastage occurs on various stages, both in respect of RS and Country Liquor. He submitted that during the storage of liquor in the course of bottling wastage occurs on account of leakage, evaporation and breakage in bottles, which is unavoidable despite of all due precautions. He submitted that no demand can be raised for the wastage towards RS and in support of his contention, he relied upon the decisions of the Apex Court in the case of Mohan Meakin Ltd. v. Excise & Taxation Commissioner H.P. and others, 1997 (2) SCC 193 and in Civil Appeal No. 2000 of 1997, Cooperative Co. Ltd. v. State of U.P. and others, decided on 6th March, 2002. 6. Learned Standing Counsel submitted that on the application of the petitioner, licence in Form P.D-2 for the manufacture and supply of Country Liquor was issued under Section 18 of the Act read with Rules framed by the Excise Commissioner under Section 41 of the Act. As per the condition of the licence, licence was subject to the provisions of the Rules. Rule 26 provide for free wastage allowance for different kinds of spirit stored in a distillery framed by the Excise Commissioner vide Notification No. l0908/IX-A, dated 6th February, 1978. Licence was issued for one year which was renewed from time to time. As per the condition of the licence, licence was subject to the provisions of the Rules. Rule 26 provide for free wastage allowance for different kinds of spirit stored in a distillery framed by the Excise Commissioner vide Notification No. l0908/IX-A, dated 6th February, 1978. Licence was issued for one year which was renewed from time to time. He submitted that the entire field of legislation with regard to intoxicant including Country Liquor is within the sole domain of the State in view of the entry 6, 8 and entry 51 of list-2 of 7th Schedule of the Constitution of India and the State Government has exclusive right or privilege to manufacture, store and sell the Country Liquor in view of the provisions of the U.P. Excise Act, 1910. The petitioner has no fundamental right to manufacture or sell the Country Liquor. By issuing the licence in Form P.D.-2 subject to the terms and conditions mentioned in the licence and the Rules, the State Government has parted with its exclusive privilege of manufacture and sale of Country Liquor in favour of the petitioner. Thus, the terms and conditions of the licence is part of the contract binding upon the petitioner and the petitioner is bound to abide with that. He submitted that the Additional Excise Commissioner (Licensing and Industrial Development), Allahabad in its order dated 26th May, 2006 and the State Government in its impugned order dated 4th August, 2006 have held that the demand was for the excess wastage of Country Liquor and not for the RS. Therefore it is wrong to say that the demand was not for the Country Liquor. He submitted that no detail or bifurcation has been given to challenge the demand and no reply was filed before the authorities concerned disputing the demand raised towards the excess wastage of Country Liquor. He further submitted that in a recent decision in the case of State of Bihar and others v. Sri Baidyanath Ayurved Bhawan (P) Ltd. and others, 2005(1) JT 314 , the Apex Court held that if any rectified spirit was diverted or use for manufacturing the potable liquor, the State was empowered to impose duty if it found that rectified spirit was being removed from the distillery for the purpose of manufacturing potable liquor. Thus, the demand can be raised for the rectified spirit diverted for the manufacturing of Country Liquor. 7. Thus, the demand can be raised for the rectified spirit diverted for the manufacturing of Country Liquor. 7. Having heard the learned Counsel for the parties, I have perused the impugned orders and given my anxious consideration to the rival submissions. 8. In the case of State of U.P. and others v. Modi Distillery and others, (1995) 5 SCC 753 and Mohan Meakin Ltd. v. Excise & Taxation Commissioner H.P. and others, 1997 (2) SCC 193 , the Apex Court held that the excise duty can be demanded only on the wastage of the Country Liquor, which is fit for human consumption and not on the wastage of RS, which is not fit for human consumption. Additional Excise Commissioner (Licensing and Industrial Development), Allahabad in its order dated 26th May, 2006 and the State Government in the impugned order held that the demand relates to the excess wastage in Country Liquor and no demand has been raised for the excess wastage of rectified spirit. Earlier notices issued by the Assistant Excise Commissioner, Saharanpur dated 25th September, 2002, 14th October, 2002 and 3rd December, 2002 also states the demand towards excess wastage of Country Liquor in excess of the permissible allowance at 0.08 percent. In none of the reply, quantum of the excess wastage in Country Liquor has been challenged. 9. In the grounds of revision, it has only been stated that the notices did not mention as what was the actual percentage of wastage and from which wastage, it has been worked out. The said notices are vague and misconceived. This averment in the grounds of revision is incorrect. Perusal of the notices reveals that specific quantity and the percentage of excess wastage are mentioned. In the revision petition and even in the writ petition, no detail has been furnished by the petitioner challenging the excess wastage referred in the notices in Country Liquor. Both the appellate authorities as well as revisional authority have categorically held that the demand was raised for the excess wastage in Country Liquor did not relate to excess wastage of rectified spirit. Findings of the appellate authorities and the revisional authority are finding of fact. The petitioner has not challenged the aforesaid findings by giving its own detail and pointing out that the demand did not relate to wastage towards Country Liquor. Findings of the appellate authorities and the revisional authority are finding of fact. The petitioner has not challenged the aforesaid findings by giving its own detail and pointing out that the demand did not relate to wastage towards Country Liquor. The Apex Court in the case of State of Bihar and others v. Sri Baidyanath Ayurved Bhawan (P) Ltd and others (supra) held as follows. “Following the judgment of this Hon’ble Court in Synthetic and Chemicals Ltd. v. State of U.P., this Court held that the State legislature was not entitled to levy excise duty on rectified spirit or industrial alcohol useable for industrial purposes. However, it was clarified that if any rectified spirit was diverted or use for manufacturing the potable liquors, the State was empowered to impose duty if it found that rectified spirit was being removed from the distillery for the purpose of manufacturing potable liquor.” 10. In the result, writ petition is devoid of any merit and is, accordingly, dismissed. ————