Oza, J. - (1.) This petition under Art. 32 of the Constitution has been filed by the petitioner challenging a notice of demand Annexure 'C' dated 22nd September, 1971 calling upon the petitioner to pay the difference of duty on the balance of stock on 1st November, 1967 of the Indian made foreign liquor imported in the State of Bihar. This notice was based on an amendment in S. 28 of the Bihar and Orissa Excise Act, 1915 ('Act' for short) brought about by an Ordinance promulgated by the Governor of Bihar dated 21st August, 1971.
(2.) In fact earlier the rate of duty was enhanced by Notification dated October 13, 1967 and it was with effect from November 1, 1967. The Superintendent of Excise, Patna directed the petitioner Company to pay the difference of duty on the pending balance of Indian made foreign liquor in its stock on November 1, 1967 and that order of the Superintendent of Excise was challenged by the petitioner Company in a petition under Art. 32 of the Constitution and by the decision of this Court in Mohan Meakin Breweries Ltd. v. Commr. of Excise, Bihar, (1969) 2 SCR 457 it was held that in view of Ss. 27 and 28 of the Act and also in view of Rule 147 framed by the Board of Revenue, such an order for recovery of the difference of duty cannot be passed and therefore the demand was quashed. After this decision which was pronounced on October 17, 1968 it appears that the Governor of State of Bihar issued an Ordinance amending the Bihar and Orissa Excise Act, 1915 which was published in the Gazette on 23rd August, 1971. By this Ordinance, a proviso was added to S. 28 of the Act, after the first proviso and it reads:- "Provided further that in case of excisable articles imported or transported on payment of duty according to the provisions of sub-cl. (1) of Cl. (a) or Cl. (c) of this section, the difference of duty resulting from any provision in the rates of duty subsequent to such import shall be realised from or credited to the account of the importing or transporting licencees according to the revised rate of duty which may be higher or lower than the previous rate and the calculation thereof shall be made on the balance stock of excisable article on the date the revised rate of duty comes into effect." And it is in pursuance of this amendment that a fresh notice of demand was issued to the petitioner by the Assistant Excise Commissioner. Patna for the. recovery of difference of duty on the stocks on 1-11-1967 which was earlier demanded and which was quashed by the decision in Mohan Meakin Breweries Ltd. case and by the present writ petition this demand has again been challenged.
(3.) Two contentions have been raised by the learned counsel for the petitioner.;