R.S.CHAUHAN, J. - (1.) THE petitioner company has challenged the order dated 21 -6 - 2003, passed by the Board of Revenue ('the Board' for short) whereby the learned Board has rejected the appeal filed by the petitioner under Section 9A of the Excise Act, 1950 ('the Act' for short). The petitioner has also challenged the notice dated 8 -2 -2002 whereby it was informed that since it has not submitted any certificate indicating non -supply of liquor under five permits of import, therefore it is liable to pay Rs. 20.25 lacs. It was directed to pay the said amount within a period of seven days. The petitioner has also challenged the letter dated 12 -4 -2002, whereby it was informed that out of his bank guarantee an amount of Rs. 20.25 lacs has been withdrawn. Therefore, it should furnish another bank guarantee of Rs. 20 lacs.
(2.) THE brief facts of the case are that the petitioner company has distilleries and breweries in village Rajran, District Rajsen, Madhya Pradesh. At the relevant time the petitioner company had a bonded warehouse at Jaipur, which was duly licensed under Section 47(1)(a) of the Rajasthan Excise Rules, 1956 ('the Rules' for short). The petitioner company used to import Indian Made Foreign Liquor ('IMFL' for short) for storage in the bonded warehouse, under the permits issued by the Excise Department. It is the case of the petitioner that five permits were issued for import of 5400 liter (under each permit) of IMFL, upon which excise duty of Rs. 40,500/ - each was payable. According to the petitioner, none of these five consignments, which left M. P. for being imported into Rajasthan, ever reached Rajasthan. For, they were intercepted by the Police in M.P. Despite the fact that the said consignments under the five permits never entered Rajasthan, still vide notice dated 8 -2 -2002, the District Excise Officer directed the petitioner to deposit Rs. 20.25 lacs, being excise duty and other fees relating to the said five permits. Immediately, on 16 -4 -2002, the petitioner sent a reply to the said notice, wherein the petitioner pleaded that since the consignments under the five permits were seized by various police stations in Madhya Pradesh, therefore the said consignments never reached Rajasthan. Thus, the excise duty on these permits was not payable. Hence, the petitioner requested that the proceedings initiated for recovery of an amount of Rs. 20.25 lacs from the bank guarantee should be stayed. Along with the said reply, the petitioner submitted three original permits and also pointed out that the other two permits were lying in the courts at Madhya Pradesh. It assured that as soon as they are released from the court, the same would be submitted to Excise Department for its scrutiny. The District Excise Officer sought certain clarification from the Officer -in -charge of the distillery at Madhya Pradesh. Vide letter dated 24 -4 -2002, the Officer -in -charge of the distillery at Madhya Pradesh sent the desired information. He clearly pointed out that the goods under the three permits were released by the Court, but the same are lying in the distillery at Madhya Pradesh, and the goods under permit Nos. 21351 and 21356 have not been released by the Court. Surprisingly, while the District Excise Officer sought information from the Officer -in -charge of the distillery at Madhya Pradesh, he also sent the letter dated 12 -4 -2002 directing the petitioner to make payment of security by filing fresh bank guarantee of Rs. 20.25 lacs. Vide letter dated 15 -7 -2002, the Officer -in -charge of the exporting distillery at Madhya Pradesh informed the District Excise Officer Jaipur that the goods under permit No. 21351 have been released by the court and are lying in safe custody with the Excise Department at Devas. He further stated that the goods under permit No. 21356 have also been released by Chief Judicial Magistrate, Selana, and the same are lying in safe custody with Excise Department Selana. He further enclosed the necessary documents to prove these facts. Thus, he certified that the goods under the five permits never entered Rajasthan. In the letter dated 12 -4 -2002, it was clearly mentioned that the said letter is being issued at behest of Excise Commissioner, who vide his letter dated 4 -4 -2002 had ordered the District Excise Officer to insist that the petitioner shall pay the security by filing fresh bank guarantee, as mentioned above. Taking the letter dated 12 -4 -2002 to be an order issued by District Excise Officer, at the behest of the Excise Commissioner, the petitioner filed an appeal before the learned Board under Section 9A of the Act. Meanwhile, the Excise Inspector at Jaipur submitted factual report dated 27 -11 -2002 to the District Excise Officer. He clearly stated that initially the Audit had raised objection with regard to nonpayment of Rs. 81 lacs by the petitioner. However, the Excise Officer has received information from Officer -in -charge of the distillery at Madhya Pradesh clearly indicating that the consignments under the five permits are lying either at the Distillery, or are lying with the Excise Department in Madhya Pradesh. Thus, clearly the said consignments have never entered Rajasthan. Therefore, the recovery from bank guarantee of an amount Rs. 20.25 lacs, should not have been done. Hence, the said amount should have been refunded to the petitioner. A similar report was also sent by the District Excise Officer to the Excise Commissioner vide letter dated 8 -1 -2003. However, so far the Excise Commissioner has maintained a studied silence over the said report. In the meantime, since the letter dated 4 -4 -2002 issued by Excise Commissioner, could not be produced before the learned Board, vide order dated 26 -3 -2003, the learned Board dismissed the appeal filed by the petitioner. Subsequently, the petitioner applied for a copy of the direction issued by Excise Commissioner vide letter dated 4 -4 -2002. However, vide letter dated 4 -9 -2003, the Excise Commissioner informed the petitioner that the letter dated 4 -4 -2002 is not an order and is merely an internal correspondence between the Excise Commissioner and the office of District Excise Officer. Therefore, the copy of the said letter cannot be issued to the petitioner. The Excise Commissioner has also pointed out that the demand notice has been issued by the District Excise Officer. Thus, the said demand notice should be treated as an order. It is in these circumstances, that present writ petition has been filed before this Court.
(3.) MR . R.B. Mathur, the learned Counsel for the Revenue, has raised preliminary objections that the writ petition is not maintainable as the petitioner has alternative remedy under Section 9A of the Act. According to him, the petitioner could have filed the appeal before the Excise Commissioner against the order passed by District Excise Officer. Therefore, the petitioner should, in fact, avail the alternative remedy.;