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Kolla Venkatanarayana Vs. Special Secretary to Government of India and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAndhra Pradesh High Court
Decided On
Case NumberWrit Petition Nos. 1660 and 1665 of 1978
Judge
Reported in1981(8)ELT171(AP)
ActsCentral Excise Rules - Rule 160
AppellantKolla Venkatanarayana
RespondentSpecial Secretary to Government of India and ors.
DispositionDismissed
Excerpt:
- - suryanarayana murty, the learned counsel for the petitioner, however, urged that along with the representation made to the central government he had cited several instances, in which a higher percentage of loss was allowed and that there is no reason why the same percentages should not have been allowed in this case of the petitioner, as well......that, therefore, there are no grounds to interfere. the petitioner then filed revisions before the central government, which too were dismissed holding that the 3% allowed by the collector is the normal one in the locality and there are no reasons to grant to the petitioner a higher percentage of loss. ii appears that after the disposal of these revisions the petitioner filed a further representation citing certain instances in guntur where driage up to 4% or more was allowed. this representation was, however, rejected by the central government holding that the orders already passed by it in revisions become final. it thus did not entertain the further representation. hence these two writ petitions.3. what are the losses, which should be allowed on account of driage and other natural.....
Judgment:

Jeevant Reddy, J.

1. The petitioner in both these Writ Petitions is the same person. The petitioner purchased two consignments of VFC tobacco. One consignment, concerned in Writ Petition No. 1660 of 1978, is 832307 Kgs. while in the other case it is 1173349 Kgs He had purchased the same for processing (grading) on 24-2-1972 and 18-2-72 respectively. The consignment was under processing from 24-2-1972 to 20-5-1972 in the first case and from 18-2-1972 to 19-3-1972 in the second case. After processing the quantities referred to above were found short in the first case by 3.62% and in the second case by 3.38%. The Petitioner submitted an explanation stating that the variation was due to natural causes and requested that the same may be condoned.

2. The Collector, Central Excise, Guntur issued a show cause notice dated 27-2-1974 calling upon the petitioner to show cause as to why duty should not be demanded from him for the shortages also under Rule 160 of Central Excise Rules. The petitioner filed an explanation stating that he had purchased the tobacco mainly from the Central belt during 1971-72 season; that generally the tobacco is liable for driage in processing and that the processing was done in summer season.'. In the above circumstances it was submitted that the driage was more. He requested that the total loss may be admitted in full. After considering the relevant records and the explanation of the petitioner, the Collector was of the opinion that the driage claimed by the petitioner is too high. He found that driage of 3% is the reasonable one and allowed the same and for the balance, he demanded the duty. Against the orders of the Collector, the petitioner preferred two appeals before the Central Board of Excise & Customs, which affirmed the Collector's orders holding that the percentage of loss fixed by the Collector was based upon the normal range of loss noticed in similar cases of processing in the area where the appellant's ware-house is located and that, therefore, there are no grounds to interfere. The petitioner then filed revisions before the Central Government, which too were dismissed holding that the 3% allowed by the Collector is the normal one in the locality and there are no reasons to grant to the petitioner a higher percentage of loss. Ii appears that after the disposal of these revisions the petitioner filed a further representation citing certain instances in Guntur where driage up to 4% or more was allowed. This representation was, however, rejected by the Central Government holding that the orders already passed by it in revisions become final. It thus did not entertain the further representation. Hence these two Writ Petitions.

3. What are the losses, which should be allowed on account of driage and other natural causes is purely a question of fact. The Collector, who is on the spot and who deals with a number of similar cases in that area, found that 3% is appropriate one. The Appellate Authority, after examining the records, found that the percentage allowed by the Collector is the normal one in that area and that no higher percentage is admissible. The Government of India was also of the same view. There are, therefore, no grounds warranting interference with the aforesaid finding of fact.

4. Sri G. Suryanarayana Murty, the learned counsel for the petitioner, however, urged that along with the representation made to the Central Government he had cited several instances, in which a higher percentage of loss was allowed and that there is no reason why the same percentages should not have been allowed in this case of the petitioner, as well. In ground No. 5 of the Writ Petition also, certain instances are mentioned where more than 4% has been allowed. But I am unable to give effect to this complaint for the reason that this material was not placed by the petitioner either before the Original Authority, or before the Appellate Authority or before the Revisional Authority. Only after the revisions were disposed of, this material was sought to be placed before the Government of India. In the Act, there is no provision for review. The Government of India refused to re-open the matter. It cannot be said that the Government of India acted unreasonably or illegally in refusing to re-open the matter.

5. So far as the allegation in these writ petitions is concerned it is stated in the counter-affidavit that the instances cited by the petitioner have no relevance since the facts and circumstances in those cases and the petitioner's case are not the same. It should be remembered that the said question is one of fact and has to be decided on its own facts. No material has been placed before me to show that in the cases in which higher percentage has been allowed the relevant facts were identical with the facts herein. For these reasons this contention is rejected.

6. The next contention of Mr. Suryanarayana Murty is that the Collector's order does not contain any reasons for fixing the loss at 3%. He says that it is arbitrary. But I am unable to see what further reasons the Collector should have given. He has to determine the probable amount of losses on account of driage and other natural causes and he fixed at 3% having regard to the circumstances of this particular case. Admittedly, no scientific estimate is possible. A rough guess has to be made which, of course, ought to be reasonable in the circumstances. There is no material to show that the estimate of loss made by the Collector is unreasonable or illegal.

7. Another submission made by Mr. Suryanarayan Murty on this aspect is that unless an allegation is made against the petitioner that he has removed the tobacco illegally or stealthily, the driage pleaded by the petitioner ought to have been accepted. It is not possible to accede to this submission. It is not possible for the Authorities to say whether the petitioner has illegally or stealthily removed any material. It cannot be said that unless such removal is proved, the loss pleaded by the reason must be accepted. As stated above, the quantum of loss is a matter for determination by the appropriate authorities having regard to all the relevant circumstances. The fact that an appeal and revision are provided against the orders of the Collector is a sufficient guarantee against arbitrariness. Both the authorities have rejected the petitioner's claim for higher percentage of loss. Therefore, I do not find any grounds warranting interference in these two Writ Petitions and they are accordingly dismissed. No costs.


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