1. This application by the petitioner under Article 226 of the Constitution is to quash the adjudication Order No. 193/67, dated 31.10.1967 passed by the Superintendent, Central Excise, Tanuku Circle in his C.O.R. No. 20/67, dated 31.10.1967 imposing a fine of Rs. 100/- for the contravention of Rule 151(c) read with Rule 32(1) of Central the Excise Rules, 1944,
2. It is averred by the petitoner that the local Central Excise Officers having been prejudiced against him had issued a Show Cause Notice, dated 01.09.1967 pointing out the receipt of 1966-1967 tobacco under T.P. 3. dated 15.05.1957 issued for the transport of 1965-66 crop on 20.03.1967 for no fault of his. It was also stated that he received eleven packages of tobacco. Under T. P. 3 supplied by the Departmental authorities on 16.03.1967 for the transport of 1965-66 season tobacco on 20.03.1967 and as the officer did not visit the warehouse inspite of intimation of the packages were kept separately in the godown after noting the same as per T.P. 3 maintained by him and he has neither changed the tobacco or was aware of the fact that some of the packages received by him contained tobacco of 1965-67 season. The petitioner alleged that the was not afforded a reasonable opportunity us the report which was the basis for taking action against him was not supplied to him. Hence this writ petition.
A counter affidavit was filed by the departmental authorities denying the allegations of malafide attributed againt the departmental officers. The petitioner is liable to be proceeded against for the contravention of Rules 151 (c) read with Rule 32 (i) of the Central Excise Rules, 1944. It was found on verification on 29.05.1967 of the eleven packages received by the petitioner on 20.05.1967 under T.P. 3s dated 16.03.1967 six packages contained gula variety of 1966-67 whereas the T.P. 3s refer to 1965-66 crop of I.A.C. Lanka and I.A.C. Dorlimpu variety. It is also averred that the petitioner is having a statutory alternative remedy of appeal and revision.
3. Shri Rangacharya for the petitioner contends that there is no material on record to show that his client had either changed the variety of tobaccco after opening packages or was aware of such change in the tobacco at the time of receipt of those packages. The petitioner is not liable to be proceeded against for the discrepancy, if any, relating to the variety of tobacco in the instant cases, as it is resulted on account of the action of the consigners and also on account of the failure of the officer in not visiting the warehouse after intimation for the purpose of verification and receipt of packages by his client. In any event the petitioner had been denied a reasonable opportunity to meet the case of the department as the witnesses have been examined behind the back of the petitioner and their examination has been made use of by the authorities without affording an opportunity to the petitioner.
4. The Government Pleader opposed the claim of the petitioner on merits and also on the ground relating to malafides. Further the learned Government Pleader fairly, in my view, conceded that the petitioner should have been given an opportunity to cross-examine the witnesses examined by the departmental authorities and furnished a copy of the report which has been made use by the authorities.
5. In view of the submission relating to the denial of reasonable opportunity by the departmental authorities before passing the impugned orders, I prefer to quash the impugned order on that short ground without expressing any opinion on the respective contententions relating to merits.
6. The order relating to the confiscation of the tobacco worth about Rs. 11,000/- is not questioned in this writ petition. As the petitioner states that it does not belong to him, it is unneccessary for me to go into that question, the impugned order is quashed in respect of the imposition of penalty of Rs. 100/-on the petitioner under Rules 151(c) and 32(i) of the Central Excise Rules, for improper reception of tobacco under T.P. 3s which contained gulla tobacco grown in that year. This order does not prevent the departmental authorities if they so desire, to proceed against afresh according to law and procedure after affording to reasonable opportunity to the petitioner.
7. In the result the writ petition is allowed to the extent indicated above. There shall be no order as to costs.