Jayachandra Reddy, J.
1. This is an application for the issue of a writ of certiorari or any other appropriate writ, order or direction quashing the order of the 1st respondent as per Adjudication Order No. 16/71 dated 6-4-1971 as confirmed by the 2nd respondent in D.R. Dis No. V/4/1/2/115/71 dated 6-10-1971 and modified by the 3rd respondent in his order No. 760/73 dated 29-5-1973.
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2. The petitioner is a resident of Baduguvanilanka, in Amalapuram Taluk, East Godavari District and is a licensed dealer in tobacco. He transported a tobacco consignment of A.I.C. Tobacco under a sale note No. 34 dated 3-7-1969 by a tempo and the time of commencement of transport was noted as 9 P.M. on 3-7-1969. The goods had to be transported to one M. Venkatarao of Samalkot which is at a distance of 37 miles from the petitioner's village. It is the case of the petitioner that the tempo by which the consignment was transported, developed delco trouble and the driver had to replace the delco set at Dowlaiswaram and hence the vehicle could reach the destination only at 8.00 A.M. on 4-7-1969. The Inspector of the respondent's department checked the vehicle and seized the vehicle and the goods saying that there was delay in transit inasmuch as the vehicle should reach the destination at dawn time and it was late by 2 hours. The goods were later released on deposit of cash. A show cause notice was issued, the petitioner gave his reply and there was an adjudication and the 1st respondent passed the order dated 6-4-1971 confiscating the tobacco, i.e. its value and a penalty of Rs. 250/-. Thereupon the owner of the tempo also was prosecuted and the vehicle was confiscated Then appeals were preferred to the 2nd respondent who by his order dated 6-10-1971 dismissed the petitioner's appeal. The petitioner preferred a revision to the 3rd respondent, who while holding that there was at misuse of the sale note, reduced the penalty to Rs. 50/- but rejected the revision in other respects.
3. In this Writ Petition the learned counsel for the petitioner contends that the authorities have held that there was no misuse of the sale note. The order of the 3rd respondent dated 29-5-1973 is to the following effect.
'Government of India have considered the points raised by the petitioner in his revision application and observe that packages of tobacco did not tally with those in the sale note, apart from the fact that the sale note had become time expired. Government however, observe that a case of r suse of the sale note has not been made out. Government therefore reduce the penalty to Rs. 50/- (Rupees fifty only). The revision application is otherwise rejected.'
From the above order it is clear that the petitioner did not misuse the sale note. If that is so, it is rather difficult to apprehend as to how the packages of tobacco did not tally with those in the sale note. The crucial question is whether the petitioner misused the sale note and on this aspect the authorities were satisfied that there was no such misuse.
4. In the revision filed by K. Veeraraju, the tempo. owner, the Government of India by its order dated 21-7-1973 observed thus ;
'Government of India have considered the points raised be the petitioner in his revision application and observe that there was a few hours delay in the completion of the transport of the tobacco rendering the sale note invalid. They further observe that no case of double transport has been made out. In his normal course of business the petitioner saw that a sale note covered the tobacco.
Government of India, therefore, allow the revision application and order that consequential relief be granted to the petitioner.'
From that it is clear that no case of double transport also has been made out.
5. Having regard to these circumstances it must be held that the petitioner has not indulged in any misuse of the sale note. The only question is whether there was delay as alleged. In the sale note the starting time is mentioned as 'night 9-00 hours'. The time when the vehicle reached the destination is not noted. In the order of the Assistant Collector (1st respondent) dated 6-4-1971 in paragraph 2 it is stated that under Rule 32(1) of the Central Excise Rules, 1944 read with Rule 34, the period of validity of sale note No. 34, dated 3-7-1969 has expired by dawn on 4-7-1969. The case of the petitioner is that he reached the destination by 8.00 A.M. on 4-7-69, and this is not disputed. So, I do not see any conceivable delay which warrants such a drastic step of confiscating the tobacco.
6. For these reasons I quash the orders of the respondents and the petitioner shall be entitled for the refund of the entire amount that is deposited by him. Accordingly the writ petition is allowed without costs. Advocate Fees Rs. 100/-.