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Prem Chandra Satish Chandra Vs. Collector of Central Excise and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAllahabad High Court
Decided On
Case NumberWrit Petition No. 3458 of 1969
Judge
Reported in1980(6)ELT714(All)
ActsCentral Excise Act, 1944 - Sections 11; ;Uttar Pradesh Land Revenue Act; Uttar Pradesh Zamindari Abolition and Land Reforms Act - Sections 1; Central Board of Revenue Act, 1963; Central Excise Rules
AppellantPrem Chandra Satish Chandra
RespondentCollector of Central Excise and ors.
DispositionPetition dismissed
Excerpt:
- - , lucknow) and stated that the law is now well settled and the point as raised by the learned counsel for the petitioner does not hold good......may be in his hands or under his disposal or control, or may cover the amount by attachment and sale of excisable goods belonging to such person, he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the collector of the district in which such person resides or conducts his business and the said collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrears of land revenue'5. from the reading of the section it does not appear that the officer empowered to levy duty or require the payment of such sum is bound to take resort to the given methods only, in section 11 he may deduct the amount so payable from any money owing to the person from.....
Judgment:
ORDER

C.D. Paresh, J.

1. In this writ petition petitioner has claimed mandamus commanding the respondents not to proceed to sell the properties other than the excisable goods of the petitioner. Further mandamus has been claimed commanding the opposite parties first to sell goods detained by them and there after the other excisable goods still left in the warehouse and only then to proceed against the other properties of the petitioner. The other prayers contained in the writ petition need not be repeated for the reason that I have been addressed by the learned counsel for the petitioner on only two grounds, although various grounds have teen taken in the writ petition.

2. The facts of the case may briefly be stated thus :

The petitioner firm held a wholesale dealer licence in tobacco and private Bonded warehouse at Sahawar, District Etah, U.P. The claim of the petitioner is that Sarvasri Prem Chander and Satish Chander are the only partners of the firm and Satish Chander carries out transaction of the firm in the name of the firm. On the 30(h of August, 1965 on some suspicion being aroused about the dealings of the petitioner in regard to the private Bonded warehouse the authorities of the Central Excise Department wanted to inspect the private Bonded warehouse and the record thereof but they could not succeed in getting the record and inspection of the warehouse in the presence of the petitioner or any one of the partners of the petitioner. The authorities of the Excise Department, therefore, inspected the warehouse by breaking open the lock in the presence of the Tahsildar Magistrate on 8th to 1lth of September, 1966. On verification it appears that various irregularities were found out. by the Excise Department as contended in the counter affidavit. In connection with those irregularities as it further appears that certain demands for payment of excise duty were made against the petitioner. Various representations appear to have been made against the demand so made by the Excise Department and ultimately the demand so created was sought to be realised by process of attachment and sale of the immovable properties of the petitioner. The properties sought to be attached and sold are given out in Annexure R. 1 and R. 2 filed along with the writ petition. The learned counsel for the petitioner raised before me only two points-(1) that in view of the provisions as contained in Section 11 of the Central Excises and Salt Act, the Excise Department could not have issued citation to the Collector for realisation of the amount unless they have exhausted other remedy under that Section, and (2) that in respect of the properties mentioned in Annexure R. 1 the Collector was not competent to issue any order for the attachment and sale of the property because the provisions contained in Land Revenue-Act have been deleted by the U.P. Zamindari Abolition and Land Reforms. Act and, therefore, the process available under the U.P. Land Revenue Act could not have been employed for the purposes of sale of the immovable properties mentioned therein. Although various grounds have been taken in the writ petition but I was addressed on these two grounds only and no other ground has been pressed before me.

3. The aforesaid two grounds that have been taken by the learned counsel for the petitioner have no force and under the provisions of the law as stands the grounds have not been made out.

4. Learned counsel for the petitioner wanted me to interpret Section 11 in a way in which, in my opinion it cannot be interpreted. He stressed that the officer who is empowered to levy duty or empowered to require the payment of any duty or other sum of any kind payable to the Central Government under the Act or the Rules should proceed first by deducting the sum from any amount which is outstanding to the credit of the licensee from the Government or he may recover the sum by attachment and sale of the excisable goods belonging to the licensee. In a case where the two methods be not available and then only the officer could issue a certification and employ other methods of realisation. Section 11 of the Central Excise Act read thus : -

'Recovery of sums due to the Government-In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder, the officer empowered by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963, to levy such duty or requires the payment of such sums may deduct the amount payable from any money owing to the persons from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may cover the amount by attachment and sale of excisable goods belonging to such person, he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrears of land revenue'

5. From the reading of the section it does not appear that the officer empowered to levy duty or require the payment of such sum is bound to take resort to the given methods only, in Section 11 He may deduct the amount so payable from any money owing to the person from whom such sum may be Recoverable or due which may be in his hand or under his disposal but the alternative method is also there that he may recover the amount by attachment and sale of excisable goods belonging to such person and in the alternative if the amount payable is not so recoverable i.e., by sale of excisable goods he may prepare a certificate signed by him specifying the amount due from the person liable to. pay the same. The case of the opposite party is that the detained goods are not of such nature which may be said to be saleable goods and their further case is that if the petitioners wanted to pay the demand they could have obtained permission from the Department and could have sold the goods themselves and could pay the amount of demand, which they have not done. In these circumstances when the excise goods are not saleable the department was not bound to recover the amount by conducting sale of such goods which could fetch price to meet the demand. From the reading of the section itself it does not appear that the expression 'if the amount payable is not so re covered' can be read detached with the preceding sentence. The preceding sentence reads 'or may recover the amount by attachment and sale of excisable goods belonging to such person'. Therefore, it is discretionary for the officer concerned that he may recover the amount by attachment and sale and he may not recover the amount by attachment and sale and if in the opinion of the officer concerned the goods were of such nature that they would fetch any price then it is all the more reasonable that he may not recover the amount by attachment and sale of such excisable goods. If the discretion has been exercised for the recovery of the amount by preparation of a certificate signed by him and sending it to the Collector and if the Collector has attached the goods in pursuance of the certificate, in my opinion, no right as asserted by the petitioner has been violated. The use of the methods as provided in Section 11 are discretionary and even if the officer concerned was slightly indirect it need not be interfered with in writ jurisdiction.

6. Learned counsel for the petitioner drew my attention to a ruling reported in AIR 1960 SC 444 (Drigarj Kuer v. A.K. Narain Singh) and stated that the word 'may' as used in Section 11 is not discretionary or directory but is mandatory. I have not able to follow as to how that ruling applied to the facts of the present case nor I have been able to follow how a discretionary matter can be said to be a mandatory matter. If an authority has been given a discretion to be exercised in any matter and on the facts and circumstances the authority is of the opinion that it is not possible to exercise the discretion in favour of the person concerned it may do so. It is not open to any person aggrieved that he may come to this court and say that discretion has not properly been exercised. The facts as I have stated are given in paragraph 42 of the counter affidavit and it is stated therein that the excisable goods were of such a nature that it has no market and, therefore, if the discretion has been exercised against the petitioner, in my opinion, no mandamus can be issued directing or commanding the authorities to resort to the sale of those excisable goods which have no market value. If the petitioner was so minded that the excisable goods would fetch some price, in my opinion there was no bar for the petitioner to seek permission from the authorities concerned for the sale of those goods. The petitioner had intimated the authorities. I do not think the authorities would have been so callous as not to allow the petitioner to sell the goods and meet the demand raised against the petitioner.

7. The second point raised, in my opinion, is also fallacious. The provisions of U.P. Zamindari Abolition and Land Reforms Act deletes only those provisions of the Land Revenue Act for the area where the Zamindari Abolition and Land Reforms Act applies. In an area where U.P.Z.A. & L.R. Act does not apply the Land Revenue Act will apply and for those areas there is no other provision except to issue certificate to the Collector for the realisation of the amount as Land Revenue. Under the Land Revenue Act a process has been issued in the nature of Annexure R. 1. In my opinion the Collector has not committed any error unless it can be shown that the property sought to be attached and sold, as contained in Annexure R. 1, is a property situate in an area where U.P.Z A & L.R. Act applies. Learned Counsel for the petitioner could not show me that the property that has been mentioned in Annexure R. 1 is situated in an area to which U.P.Z.A. &. L.R. Act applies. It is true that from Annexure R. 1 it does not appear specifically as to whether it is located, but the address of the petitioner as given out in the heading of Annexure R. 1 shows that it is situated in Sahawar and from the allegation in the writ petition it appears that the Private Bonded Warehouse of the petitioner was situated in Sahawar, district Etah, U.P. Learned counsel for the Union of India rightly pointed out that no allegations are made in the writ petition about the location and situation of the property mentioned in Annexure R, 1 that it is situated in an area to which U.P.Z. A. & L.R. Act applies. His con tention is that Sahawar is a town area and judicial notice of this fact may be taken that it is town area where U.P.Z. A. & L. R. Act does not apply. By Section 1 of the U.P.Z. A. & L.R. Act the act has not been made applicable to the municipal area, notified area and town area, and therefore this Act does not apply to the town area of Sahawar where the property is situated. The Collector, therefore, could issue process for the attachment and sale of the property mentioned in Annexure R.1. I agree with the contention of the learned counsel for the Union of India. No mandamus can, therefore, be issued in respect of these properties commanding the Collector not to proceed with their attachment and sale.

8. Learned counsel for the Union of India relied on a ruling reported in 1962 A.L.J. 616 (Pardrauna Raj Krishna Sugar Works Ltd. v. Land Reforms Commissioner U.P., Lucknow) and stated that the law is now well settled and the point as raised by the learned counsel for the petitioner does not hold good.

9. As I have pointed out earlier that no other ground has been pressed before me, therefore, I do not traverse on the various grounds that have been taken in the writ petition.

10. The writ petition fails. I. dismiss the writ petition with costs.


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