JUDGMENT B.P. DAS, J. : The petitioners in this application challenge the demand notice dated 8.7.2008 under Annexure-36 issued by the Superintendent of Excise, Khurda to petitioner No.1-company directing the company to pay a sum of Rs. 74,11,928.00 towards short production of India Made Foreign Liquor (I.M.F.L.) as against the Minimum Guaranteed Quantity fixed for the year 1998-99 to 2001-02. The petitioners have further challenged the vires of Rule 6(C) of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 as violative of the provisions of Section 20-A of the Bihar and Orissa Excise Act, 1915. The brief facts leading to the writ application tend as follows :- Petitioner No.1 company, is a company registered under the provisions of Companies Act, 1956 and has been granted permanent certificate for manufacture of India Made Foreign Liquor by the General Manager, District Industries Centre, Puri and it started its commercial production on 28.3.1988 with an installed capacity of 1,80,000 cases per annum. On 25.11.1997, the Government in Revenue and Excise Department issued a notification inserting Rule 6-A, 6-B and 6-C in the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989, hereinafter for the sake of brevity referred as ''1989 Rule'', prescribing the Minimum Guaranteed Quantity, in short 'MGQ', of Bottling Plants. In exercise of power under the aforesaid Rule 6-C of the said Rule, on 7.3.1998, the Commissioner of Excise, Orissa, O.P.2 fixed the production capacity of the petitioner company at 12.15 lakhs London Proof Liter (LPL'' in short) and MGQ at 6.08 Lakh being 50% of the production capacity, which according to the petitioners, is wholly erroneous, illegal and arbitrary. Basing upon such fixation, on 23.9.2000, the Superintendent of Excise, Khurda-O.P.4 issued a demand notice to the petitioner No.1-company directing to pay a sum of Rs.11,21,657.00 towards excise duty for the short production of quantity of 1,01,968,823 LPL for the year 1999-2000. Being aggrieved by the aforesaid demand notice dated 23.9.2000 the petitioner No.1-company filed a writ application before this Court being W.P.(C) No.9974 of 2000, which was disposed of on 18.10.2000 directing the petitioners to make a representation to the Government and in that event, the said representation is to be disposed of within two months of receipt of such representation. Being aggrieved by the aforesaid demand notice dated 23.9.2000 the petitioner No.1-company filed a writ application before this Court being W.P.(C) No.9974 of 2000, which was disposed of on 18.10.2000 directing the petitioners to make a representation to the Government and in that event, the said representation is to be disposed of within two months of receipt of such representation. On 4.10.2000, the State Government issued a notification inserting Section 20-A in the Bihar and Orissa Excise Act, 1915, by virtue of which the State Government took over the wholesale trade in foreign liquor and country liquor for import, export and distribution under the exclusively jurisdiction of the State/State appointed agency. On 31.01.2001, the State Government issued a Gazette notification as SRO No.50/2001 under Section 20-A of the Bihar and Orissa Excise Act, 1915, wherein the Orissa State Beverage Corporation was formed and empowered to carry on wholesale trade and distribution of foreign liquor in the State on behalf of the State Government with effect from 1.2.2001. On 1.2.2001, the Deputy Secretary to Government of Orissa, Excise Department, wrote a letter to the Commissioner of Excise, Orissa indicating therein that there appears to be a prima facie error in fixing the MGQ in respect of the bottling plant of the petitioner No.1-company and therefore requested the Commissioner of Excise to modify his own order fixing the MGQ in respect of the petitioner No.1-company. After formation of the Orissa State Beverage Corporation, on 27.7.2001, the said Corporation cancelled the registration granted to the petitioner No.1-company for supply of Old Monk XXX Rum and Old Monk Reserve Rum since 18.12.2000 and being aggrieved by the such cancellation, the petitioner No.1-company filed a writ application before this Court being OJC No.9961 of 2001. On 4.1.2002, the Superintendent of Excise, Khurda, issued a demand notice to petitioner No.1 company directing it to deposit a sum of Rs.19.44, 182.00 towards excise duty in lieu of the shortfall in production by 1,76, 743.767 LPL for the year 2001-01 against the MGQ fixed at 6,07,500 LPL by the Commissioner of Excise, Orissa, O.P.2. Challenging such demand issued by the Superintendent of Excise, Khurda, O.P.4, the petitioner No.1 company filed a writ application being W.P.(C) No.4237 of 2002. Challenging such demand issued by the Superintendent of Excise, Khurda, O.P.4, the petitioner No.1 company filed a writ application being W.P.(C) No.4237 of 2002. On 4.4.2002, the petitioner No.1 company wrote a letter to the Collector, Khurda, requesting his to waive the MGQ demanded by the Superintendent of Excise, Khurda on the ground that it could not able to sell its product to the retailers and wholesalers of the State due to formation of Orissa State Beverage Corporation in view of Section 20-A of Bihar and Orissa Excise Act, 1915 and the Commissioner of Excise, Orissa, erroneously fixed the MGQ on the basis that each case manufactured by it would contain twelve bottles of 750 ML each of IMFL and installed capacity of unit was fixed in 1988 and the machineries have become old and the efficiency of the machineries have reduced considerably. On 27.4.2002, the Joint Secretary to Government, Excise Department, wrote a letter to the Excise Commissioner, Orissa stating inter alia the following :- ''I am directed to invite a reference to your letter No.3261 dt. 15.4.2002 on the above subject and say that Government, after careful consideration have been pleased to order that the bottling plants are liable to fulfil the M.G.Q. obligations proportionately for the year 2000-2001 for ten months w.e.f. 1.4.2000 to 31.1.2001. They should furnish an undertaking renewal of the licence to the effect that the duty towards shortfall in MGQ will be deposited by them in three equal instalments latest by 20th June, 2002. 2. Since the Orissa State Beverage Corporation was the only monopoly wholesaler during 2001-02, any short fall in M.G.Q. during 2001-2001 shall not be a bar for renewal of the licence for 2002-2003. 3. The licences of bottling plants may now be renewed after obtaining the undertaking in the manner laid down in the preceding paragraph.'' On 30.5.2002, the Government issued a notification bearing No.3482 deleting Rule 6-C of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 for the reason that by virtue of Section 20-A of Bihar and Orissa Excise Act, 1915, the State Government has taken over the wholesale trade and distribution of foreign liquor and country liquor in the State and by virtue of notification dated 31.1.2001, the Orissa State Beverage Corporation was formed and empowered to carry on the wholesale trade and distribution of foreign liquor in the State with effect from 1.2.2001. Pursuant to the aforesaid letter dated 27.4.2002 of the Joint Secretary to Government, Excise Department, the Superintendent of Excise, Khurda on 31.5.2002 issued a revised demand notice to the petitioner No.1 company directing it to deposit a sum of Rs.23,22,648.00 as the proportionate liability of MGQ for ten months, i.e. from 1.4.2000 to 31.1.2001. After receipt of such letter the petitioner No.1 company, on 31.5.2002, wrote a letter to the Secretary Government, Excise Department requesting him to waive the MGQ demanded by the Superintendent of Excise, Khurda on the ground that it could not able to sell its products to the retailers and wholesalers of the State due to formation of Orissa State Beverage Corporation in view of Section 20-A of the Bihar and Orissa Excise Act, 1915 and the Commissioner of Excise, Orissa has erroneously fixed the MGQ on the basis that each case manufactured by it would contain twelve bottles of 750 ML each of IMFL and installed capacity of unit was fixed in 1988 and the machineries have become old and the efficiency of the machineries have reduced considerably. On 2.7.2002, the Joint Secretary to Government, Excise Department wrote a letter the Superintendent of Excise, Khurda stating the following :- ''I am directed to enclose a copy of the letter No.KB/Govt.140/ 2002-03 of Managing Director M/s. Kaleast Bottling (P) limited on the above subject and say that the demand raised in your letter No.1319 dt. 31.5.2002 is more than that of the demand raised earlier vide letter No.49 dt. 4.1.2002. The reasons for variation in the demand have not been indicated. I would, therefore, requested you to verify the same immediately and furnish the comments on the earlier representation dt.31.5.2002 as called for in this Department letter referred to above. Until then, the demand raised by you may not be pressed.'' Ultimately vide letter dated 6.9.2002 (Annexure-21) the General Manager, District Industries Centre, Bhubaneswar intimated petitioner No.1 company that the installed capacity of the petitioner's unit was jointly assessed by the District Industries Centre, Bhubaneswar and Small Industries Service Institute, Cuttack, wherein it was found that the capacity of the petitioner's unit was 80,000 cases per annum. On 7.9.2002, the Superintendent of Excise, Khurda, wrote a letter to petitioner No.1-company directing him not to press for demand of MGQ an short production till disposal of petitioner's representation. On 7.9.2002, the Superintendent of Excise, Khurda, wrote a letter to petitioner No.1-company directing him not to press for demand of MGQ an short production till disposal of petitioner's representation. Despite the petitioner's objection and the capacity assessment report of DIC, Khurda and SISI, Cuttack finding the production capacity of the petitioner's assessment at 80,000/ cases per annum and the fact that the unit has produced more than 50% of its production capacity each year and more for the year 2000-01, the Joint Secretary, Excise Department, Government of Orissa vide letter dated 11.12.2002 refused to revise the demand issued against the petitioner No.1 company on the ground that the capacity assessment so made on 17.7.2002 does not indicate the capacity of plant for the year 2000-01 and prior to 2001-01. Various request of the petitioners were unheeded by the opposite parties and on 27.12.2002, the Superintendent of Excise Khurda, issued a demand notice to the petitioner No.1 company indicating outstanding amount due against the petitioner No.1 unit towards short production of I.M.F.L. as against the MGQ fixed, to the tune of Rs.78,78,282/- for the year 1999-00, 2000-01 and 2001-02 and directed the petitioner No.1 company to deposit the amount by 31.3.2003. On receipt of such notice, the petitioner No.1-company on 3.1.2003 made a representation to the Secretary, Government of Orissa, Excise Department, Bhubaneswar, requesting him to exonerate the duty towards short production of I.M.F.L. as against the MGQ fixed from the year 1999-00 to 2001-02 for the reason that the Orissa State Beverage Corporation had been formed and the petitioner No.1 company had forfeited its right to sell liquor manufactured by it in open market and its installed capacity was wrongly assessed by the Commissioner of Excise, Orissa. On 8.1.2004 vide Annexure-30, the Joint Secretary to the Government, Excise Department wrote a letter to the Collector, Khurda, stating therein that a revised demand notice may be served on the petitioner No.1 company for the year 2000-01 by taking into account the total production of the whole year against the MGQ for 10 months and there will be no MGQ for the year 2001-02. The relevant portion of the letter dated 8.1.2004 vide Annexure-30 is quoted hereunder. ''2. The relevant portion of the letter dated 8.1.2004 vide Annexure-30 is quoted hereunder. ''2. Therefore, Government after careful consideration, have been pleased to order that a revised demand notice may be served on the unit for the year 2000-2001 by taking into account the total production of the whole year against the MGQ for 10(ten) months and there will be no M.G.Q. for the year 2001-02. While issuing the revised demand notice, shortfall, if any, may be calculated for the year 2000-2001 correctly. If necessary, the instruction in this regard issued vide Memo No.612 dt. 01.02.2001 may please be referred. 3. As regards the demand for the year 1999-2000, the matter has already been decided earlier and communicated to you vide Memo No.612 dt. 01.02.2001 (copy enclosed). Accordingly, the demand for the year 1999-2000 may be revised and revised demand notice may be issued. 4. Compliance to the C.A.G. Para may be sent to the Accountant General, Orissa, Bhubaneswar accordingly. Pursuant to aforesaid communication, the Superintendent of Excise vide letter dated 12.04.2004 in Annexure-31 revised the demand notice directing the petitioner No.1 company to pay a sum of Rs.4,66,354.00 towards short production of IMFL as against the MGQ fixed for the year 1999-00, 2000-01 and 2001-02. On 10.9.2004, vide Annexure-32, the petitioner No.1 company wrote a letter to the Superintendent, Excise, Khurda intimating that it had deposited a sum of Rs.4,66,345/- towards the short production of IMFL as against the MGQ fixed for the year 1998-2002. The Superintendent of Excise, Khurda vide his letter dated 25.11.2005 under Annexure-33 intimated to the Commissioner of Excise, Orissa that basing on the decision of the Government in Excise Department vide letter No.121 dated 8.1.2004, the revised demand was calculated and the notice was issued and the unit had deposited the duty accordingly. Since the demand had been revised and the petitioner company had deposited the demand raised towards short production of IMFL as against the MGQ fixed for the year 1998-2002, the petitioner withdrew W.P.(C) No.4237 of 2002. Since the demand had been revised and the petitioner company had deposited the demand raised towards short production of IMFL as against the MGQ fixed for the year 1998-2002, the petitioner withdrew W.P.(C) No.4237 of 2002. Subsequently, on 8.7.2008, vide Annexure-36, the Superintendent of Excise, Khurda again issued a demand notice to the petitioner No.1 company, demanding a sum of Rs.78,78,282.00 towards short production of IMFL as against the MGQ fixed for the petitioner company for the year 1998-99 to 2001-02 and intimated that since the petitioner No.1 company has paid a sum of Rs.4,66,354.00, it has to deposit the balance amount of Rs.74,11,928.00 (78, 78, 282.00-4, 66,354.00). Challenging the demand made vide Annexure-36, the present writ application has been filed. According to the petitioners, the demand towards short production of IMFL as against the MGQ fixed for the petitioner No.1 company for the year 1998-99 to 2001-02 has already been demanded vide revised demand notice dated 12.4.2004 Annexure-31 to the tune of Rs.4,66,354.00 and the same has already been deposited by the petitioners on 10.9.2004 vide Annexure-32 series. According to the petitioners, once the decision had already been taken by the Government and basing upon which the petitioners had withdrew their writ application and deposited the revised demanded amount, the Government is estopped from raising any demand as has been raised vide Annexure-36. The petitioners have also challenged the vires of Rule 6 C of the Orissa Excise (Exclusive Privilege) Foreign Liquor Rules, 1989 as it violates the provisions of Section 20A of the Bihar and Orissa Excise Act, 1915. The petitioners challenge Rule-6-C of 1989 Rules as ultra vires on the ground that the said rule which was framed by the State Government under Section 89(1) of the Bihar and Orissa Excise Act, 1915 (herein after called as ''1915 Act'') cannot be applied to the case of the petitioners because Rule 6-C applies only when the licensee of the bottling plant is given by way of exclusive privilege. Section 22 (1) of the 1915 Act provides for grant of exclusive privilege for manufacturer and sale of country liquor or intoxicating drugs. Similarly Section 22 (1-a) of the 1915 Act provides for grant of exclusive privilege for retail sale of foreign liquor within any specified place. Section 22 (1) of the 1915 Act provides for grant of exclusive privilege for manufacturer and sale of country liquor or intoxicating drugs. Similarly Section 22 (1-a) of the 1915 Act provides for grant of exclusive privilege for retail sale of foreign liquor within any specified place. But according to the petitioners, they have been granted bottling licence and have not been give any exclusive privilege for bottling of foreign liquor. Hence Rule 6-C of the 1989 rules is liable to be quashed. According to the petitioners, the State Government taking aid of the powers conferred by Sub-section 1 of Sections 89 of the 1915 Act read with proviso to Sub-section (3) of the said Section amended the 1989 Rules by introducing Minimum Guaranteed Quantity of Bottling Plants in the State when the said Section does not empower the State Government to make such Rules since the grant of exclusive privilege is laid down only in Section 22 of the 1915 Act. Hence, Rule 6-C of 1989. Rules is ultra vires. Apart from that, the case of the petitioners is that when the petitioners case was closed and deposits have been made, the Superintendent of Excise, Khurda-O.P.4 cannot issue the impugned order on 8.7.2008 (Annexure-36) by withdrawing the letter No.612 dated 1.2.2001 (Annexure-9) and letter No.121 dated 8.1.2004 (Annexure-30), which is after 46 months of the deposit made by the petitioners. One thing can be noted here that Rule 6-C of the 1989 rule has been deleted since 3.5.2002, which according to the petitioner should have been deleted from 1.2.2001 when the Orissa State Beverage Corporation came into force. It is further argued that Rule 6-C being deleted from the Rule Book, the State can not take aid of the same subsequently and raise the demand as made in the case of the petitioners. Be that as it may, we are not going to decide the competency of the State Government to insert Rule 6-C as the same is no more in existence. Counter affidavit has been filed by the Superintendent of Excise, Khurda, opposite party No.4 No counter affidavit was filed on behalf of the State, But learned Counsel for the State produced the Government record. Counter affidavit has been filed by the Superintendent of Excise, Khurda, opposite party No.4 No counter affidavit was filed on behalf of the State, But learned Counsel for the State produced the Government record. In the counter affidavit filed by the Superintendent of Excise, O.P.4 he has stated that the allegation of the petitioners that the Rule-6-C of the 1989 Rules has become redundant, inoperative, unworkable and arbitrary after formation of the Orissa State Beverage Corporation with effect from 1.2.2001 is not correct as the aforesaid rule was in vogue till 29.5.2002 and hence the petitioners are bound by that rule. Learned counsel for the opposite parties argued regarding maintainability of the writ application so far as the challenge made to the vires of Rule-6-C of 1989 Rules, but the main ground of the opposite parties is that after the matter was closed and the demand was reduced and paid by the petitioners, an C.A.G. Audit was made and basing upon that audit Report, the demand was raised withdrawing the Government letters dated 1.2.2001 and 8.1.2004 issued earlier and the revised demand notice vide Annexure-36 was issued. A bare perusal of the Government Records shows the note sheet prepared pertaining to the communication made on 1.2.2001. The said note sheet also discloses there is another linked file, which has not been produced before us. Had the said linked file been produced, the same would have thrown some light in that matter. But the relevant portion of the note sheet, which indicates the circumstances under which the decision was taken by the Government, is quoted herein below :- ''It is also stated that the OSBC Ltd has been given monopoly to carry out the wholesale trade and distribution of foreign liquor in the State w.e.f. 1.2.01, for which, the sale of the product of the said bottling plant, in the local market through the retail out lets has been restricted. It is indicated in the said representation that in case of Kaleast Bottling Private Ltd., the State Government has taken a decision that there would be no MGQ of bottling unit for the year 2001-02 since the OSBC has been formed on 1.2.01 to deal with whole selling of IMFL. It is indicated in the said representation that in case of Kaleast Bottling Private Ltd., the State Government has taken a decision that there would be no MGQ of bottling unit for the year 2001-02 since the OSBC has been formed on 1.2.01 to deal with whole selling of IMFL. Due to the aforesaid reasons, the Unit Manager of the said bottling plant has stated that payment of duty on short production of the MGQ for the year 2001-02 is not application to their bottling units. 3. It is seen from this Department letter No.121 dated 8.1.01 (P.II/C) that direction was issued to the Collector, Khurda for not to take into account of the MGQ for the years 2001-02 in case of M/s. Kaleast Bottling Private Ltd., Khurda. It was indicated in that letter that there would be no MGQ from 1.2.01 as there was no other wholesale outlet to sell the liquor of the local manufactures except the Orissa State Beverages Corporation Ltd. It is pertinent to mention that on the represented on dated 26.04.2003 of the Gemini Distilleries (Pvt.) Ltd. (Page-1/C), the licence of the said Bottling unit was renewed for the year 2003-04 with direction not to take any coercive measure against them (page-3/C). In this connection order dated 17.05.2003 of the then Commissioner-cum-Secretary may be perused at page-3/N. 4. It is pointed out that in view of the insertion of a new Section namely Section 20-A of the Bihar and Orissa Excise Act, 1915, the OSBC Ltd has been empowered to carry wholesale trade and distribution of foreign liquor in the State w.e.f. 1.2.01 vide Gazette Notification No.132 dated 31.01.01. 5. It is pointed out that in view of the insertion of a new Section namely Section 20-A of the Bihar and Orissa Excise Act, 1915, the OSBC Ltd has been empowered to carry wholesale trade and distribution of foreign liquor in the State w.e.f. 1.2.01 vide Gazette Notification No.132 dated 31.01.01. 5. On verification of the concerned linked file No.IEX-49/02 relating to fixation of MGQ for the Kaleast Bottling Private Ltd., it is seen that the matter has been examined in detail at P.35/N to 44/M. There were Government orders on 09.09.2003 that there would be no MGQ from 1.2.01 as there was no other wholesale outlet to sell the liquor of the local manufacturers except the OSBC Ltd. In these connection orders of the then Hon'ble Minister, Excise may be perused at P.45/N of the said linked file.'' From the above, it is clear that the demand was revised and reduced due to fact that on formation of the Orissa State Beverage Corporation, it has been given monopoly to carry out the wholesale trade and distribution of foreign liquor in the State with effect from 1.2.2001, for while the sale of the produce of the bottling plant in the local market through the retail outlets has been restricted for which there is short production and added to this there is cancellation of licence of the petitioners No.1 Company and non-requisition of the products from the unit of petitioner No.1. It is the State Government, who on its own volition and realizing the difficulty occurred by insertion of Rule-6-C of the 1989 Rules, deleted the said rule. The argument of the learned counsel for the petitioner that there cannot be reopening of the matter solely on the basis of Audit Report unless there is due application of mind, gets support from the decision of this Court in the case of M/s. The Indure Limited v. Commissioner of Sales Tax, Orissa, Cuttack and others, 2006 (II) OLR 154 . But the undisputed fact is that the demand relates to the period of 1998-99 to 2001-02, when Rule 6-C was in force. During existence of the said rule in the Rule Book, the demand was raised, which after due consideration was reduced and the reduced demand was paid, but after the said rule was repealed on and from 3.5.2002, the impugned demand notice dated 8.7.2008 vide Annexure-36 was raised. During existence of the said rule in the Rule Book, the demand was raised, which after due consideration was reduced and the reduced demand was paid, but after the said rule was repealed on and from 3.5.2002, the impugned demand notice dated 8.7.2008 vide Annexure-36 was raised. Law is well settled that repeal of statute or deletion of provision, unless covered by Section-6 (1) of the General Clauses Act or a saving provision, totally obliterate it from the statute book, and the proceedings pending thereunder stands discontinued. (See: Kolhapur Canesugar works Ltd. and another v. Union of India and others, (2000) 2 SCC 536 ). In this case Rule-6-C has been totally omitted and the petitioners have already accrued a right when their demand was reduced and the reduced demand was paid. From the contents of the provisions of the said rules, it is clear that it did not contain any saving clause for continuance of proceeding under the said rule, which has been deleted/omitted. So the irresistible conclusion would be that the order passed and demand vide Annexure 36 after repeal of a Rule could not invoke the old Rule. It may be made clear that 'Rule' means a rule made in exercise of a power conferred by an enactment and shall include a regulation made as a rule under any enactment. In this case, the rule was framed in exercise of the powers conferred under Sub-section (1) of Section 89 of the Bihar and Orissa Excise Act, 1915 read with the proviso to Sub-section (3) of the said Section. So, the demand notice in Annexure-36 on the basis of audit report in absence of Rule 6-C in the Rule Book, is not tenable. In view of the facts narrated above and keeping in view the aforementioned judicial pronouncement, we are of the opinion that in absence of the Rule, which has already been obliterated from the Rule Book, the proceeding cannot be re-opened and the demand cannot be raised and accordingly the impugned demand notice dated 8.7.2008 vide Annexure-36 is quashed. The writ petition is accordingly allowed. No order as to cost. Petition allowed.