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Thimmasamudram Tobacco Co. Vs. Asst. Collector of Central Excise, Nellore Dn. Nellore - Court Judgment

LegalCrystal Citation
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Appeal No. 149 of 1959
Reported inAIR1961AP324
ActsCentral Excise Act, 1944 - Sections 33 and 35
AppellantThimmasamudram Tobacco Co.
RespondentAsst. Collector of Central Excise, Nellore Dn. Nellore
Appellant AdvocateP.A. Chowdhary and ;P. Venkayamma, Advs.
Respondent Advocate3rd Govt. Pleader
DispositionAppeal dismissed
excise - fresh inquiry - sections 33 and 35 of central excises and salt act,1944 - appellant dealing in tobacco leaf - respondent issued notice to appellant for contravention of sections 151 and 151 (c) and levied penalty - collector central excise set aside order of respondent - respondent issued fresh notice on same ground - issue whether respondent had jurisdiction to proceed with fresh inquiry - appellate authority has power to remand case back for fresh inquiry - held, if appellate authority set aside order on ground that rule of fair hearing not observed - authority can proceed with fresh hearing on same grounds by observing correct procedure. - - 5. aggrieved by this order, the appellant carried the matter in appeal to the collector, central excise, hyderabad, raising various..........35:-- (i) any person deeming himself aggrieved by any decision or order passed by a central excise officer under this act or the rules made thereunder may within three months front the date of sueh decision or order, appeal therefrom to the central board of revenue, or, in such cases as the central government directs, to any central excise officer not inferior in rank to an assistant collector of central excise and empowered in that behalf by the central government. such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against. provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been.....

Chandra Reddy, C.J.

1. This appeal is directed against the judgment of our learned brother, Seshachalapati J. refusing to issue a writ of prohibition against the Assistant Collector of Central Excise, Nellore, to forbear him from proceeding further with his enquiry and adjudication, in pursuance of the notice dated 19-6-1958.

2. The facts relating to this appeal are susceptible of simple and concise statement. The petitioner is a firm dealing in the purchase and sale, of several varieties of leaf tobacco with a warehouse in Timmasamudram, a village in Guntur District. The Additional Deputy Superintendent (Central Excise) called upon the appellant, by his notice dated 4-10-1957, for contravening rules 151 and 151(c) read with rule 141 of the Central Excise Rules, to show cause why 6895 1bs of tobacco should not be confiscated and also why a penalty under rule 151 (c) should not be levied.

3. The appellant sent his explanation and also requested that he might be given a personal hearing.

4. The Assistant Collector, Central Excise by his order dated 30-12-1957, held that 6895 1bs. of I.A.C. Natu noti tobacco should be seized. He also levied a penalty of Rs. 100/-. As regards the confiscation, he allowed option to the appellant under Section 34 of the Central Excises and Salt Act, 1944, to pay Rs. 400/- as penalty in lieu of the confiscation. In addition to the penalty, a sum of Rs. 5,666-56 nP. was imposed as duty payable by him under rule 160 of the Central Excise Rules.

5. Aggrieved by this order, the appellant carried the matter in appeal to the Collector, Central Excise, Hyderabad, raising various grounds, the chief of which was that the Assistant Collector failed to afford him a reasonable opportunity in that he omitted to accede to his request to give him a personal hearing. Without adjudicating upon tile merits the Collector allowed the appeal in the view that the Assistant Collector had not afforded a personal hearing to the appellant and, consequently, the demands of natural justice were not met in this case. In the result, he set aside the order of the Assistant Collector, Central Excise, on what are described as 'technical grounds'.

6. After the receipt of this order the Assistant Collector Central Excise, Nellore Division, issued another notice to the appellant on terms similar to those contained in the previous notice. It is this notice that led the appellant to file the petition for the issuance of writ of prohibition.

7. It was contended before our learned brother, Seshachalapati J., that the Assistant Collector had no jurisdiction to proceed with a fresh inquiry, having regard to Section 35 of the Central Excise Act. This contention did not find favour with the learned Judge with the result that the petition was dismissed with costs. It is this order that is how under appeal.

8. The argument pressed upon us by Srimati Venkayamma, learned counsel for the appellant, is that under Section 35 of the Central Excise Act. the only power that is vested in the appellate authority is to confirm, alter or annul the decision or order appealed against and it is not competent for him to direct a fresh inquiry. As the controversy centres round the interpretation of Section 35, it is useful to reproduce it here.

Section 35:-- (I) Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or the Rules made thereunder may within three months front the date of sueh decision or order, appeal therefrom to the Central Board of Revenue, or, in such cases as the Central Government directs, to any Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise and empowered in that behalf by the Central Government. Such authority or Officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or Order appealed against.

Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order.

(2) Every order passed in appeal under this section shall, subject to the power of revision conferred by section 36 be final'.

9. It is true that the section speaks only of the appellate authority passing such order as he thinks fit, confirming, altering, or annulling the decision Or order appealed against and there is no specific provision enabling the appellate authority to remit the matter to the original authority for making an inquiry afresh. We do not think that the absence of such provision disables the appellate authority from sending the matter back to the officer that passed the order.

The conferment of the appellate jurisdiction on a tribunal, in our opinion, necessarily implies that if hag as much power to remand as it has to confirm, alter or annul and incidentally it has the power to hear the appeal. Without such power it is difficult for the appellate authority to dispose of an appeal satisfactorily. If the appellate authority finds that the procedure prescribed by a provision of law has been violated by an officer he has either to allow the appeal without directing any fresh inquiry or dismiss the appeal, if the argument of the appellant's counsel were to prevail and this cannot be regarded as a satisfactory state of affairs. We, therefore, feel that the power of remand is inherent in the appellate jurisdiction conferred on an appellate authority.

10. This view was expressed by Satyanarayana Raju J. in Narasimharaju v. State Transport Authority, (1958 Andh LT' 627). There, the learned Judge was dealing with Section 64-A of the Motor Vehicles Act. All the same, we feel that that decision has analogy here because the provisions of that enactment are similar to those of the statute in question.

11. Assuming that Section 85 of the Central Excise Act does not clothe the appellate authority with power to remand the matter to the officer whose order is appealed against, noting stands in the way of the Assistant Collector initiating the proceedings afresh, when his order was quashed not on merits but on technical grounds, i.e., for not following either the procedure or the dictates of natural justice. In a case whore the flaw in the order appealed against consists of in the non-observance of certain procedure or in not giving effect to the maxim 'audi alteram partem'. it is open to the officer concerned to start the procedure once again with a view to follow the rules of procedure and the principles of natural justice.

12. Authority for this position is confined in Sattar Sahib v. State of Madras, : AIR1952Mad605 . In this case, Rajamannar C. J., and Venkatarama Ayyar J. ruled that it was well within the powers of the Government to deal again with an application under Section 64-A of the Motor Vehicles Act after the original order passed by them under that section was removed on certiorari by the High Court. Repelling the argument that after quashing the order, the Government could not take up the application under Section 64-A, His Lordship the Chief Justice observed:

'We have no doubt whatever in the matter that when an order of the inferior Tribunal on an application properly made to them is quashed by this court by a writ or certiorari on any ground which does not deal with the merits of the case, It is not only permissible, but it is also incumbent on the inferior Tribunal to take up the application and re-hear the same.'

13. We therefore, feel, despite the pursuasive arguments of Srimati Venkayamma, that the submission that the Assistant Collector has no power to start the proceedings afresh on the same grounds is not substantial. It is consequently rejected.

14. It is lastly urged that if the matter is sent back to the same Assistant Collector, the appellant is not likely to obtain justice at his hands. We are not persuaded that there is any force in this contention. It is nowhere suggested that this officer was in any way biased against the appellant. No such imputation was made at any time. If the appellant is able to satisfy him that his action was justified, not being a violation of any of the rules, the officer would not penalise the appellant. Further, the same officer may not he there now, he might have been transferred to some Other place. Even otherwise, if there is any foundation for the complaint of bias, he could move the Collector to send the matter to some other officer if the provisions of law permit such a course.

15. In the result, the order under appeal is affirmed and the appeal is dismissed with costs. Advocate's fee Rs. 100/-.

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