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Vijai Engineering Corporation Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtAllahabad High Court
Decided On
Case NumberCivil Writ Petition Nos. 514, 822, 824 and 825 of 1984
Judge
Reported in1986(7)ECC167; 1985(20)ELT3(All)
ActsCustoms Act, 1962 - Sections 110, 110(1) and 110(3); Central Excise Act, 1944 - Sections 12; Constitution of India - Articles 133(1), 134A and 226; General Clauses Act - Sections 8; Central Excise Rules
AppellantVijai Engineering Corporation
RespondentUnion of India (Uoi) and ors.
Appellant AdvocateJ.C. Bhardwaj, Adv.
Respondent AdvocateRavi S. Dhavan, Adv.
Excerpt:
.....a condition precedent to seize books--question whether proper officer had reason to believe that goods seized were liable to confiscation--is question of fact--section 110(1) does not require reason to be recorded in writing--writs under constitution--notice requiring petitioner to show cause why excise duty may not be levied--proper course for petitioner is to satisfy authorities that duty is not livable--writ petition against notice not maintainable--central excises and salt act (1 of 1944), section 12--customs act (52 of 1962), section 110(1), (3)--general clauses act (10 of 1897), section 8. - - the account book as well as goods of the petitioners in two of the writ petition have been seized and similar show cause notices have been served on them, in the fourth writ petition some..........to show cause as to why excise duty may not be levied on the goods manufactured by them and the goods seized may not be confiscated suffice it to say that in case the petitioners are manufacturers of the on which excise duty is payable by them, the notices issued to the petitioners to show cause, cannot ' be said to be without jurisdiction. the case of the petitioners is that they are hot manufacturers of any excisable goods and are not liable to pay excise duty. the proper course for them, in our opinion, is to show cause in pursuance of the impugned notices.3 it was urged by the counsel for the petitioners that the respondents had no jurisdiction to seize only the account, books. according to him account books could be seized only if goods were also seized and the proper officer had.....
Judgment:

N.D. Ojha, J.

1. These four writ petitions raise common questions and as such are being decided together.

2. The account books of the petitioner, in of the writ petitions have been seized and the petitioner Ms been served, with a notice to show cause as to why excise duty may not belevied on it. The account book as well as goods of the petitioners in two of the writ petition have been seized and similar show cause notices have been served on them, In the fourth writ petition some goods have been seized and' the prayers is may be directed, to be returned and the respondents may be restrained from imposing any Excise Duty on the petitioner. A perusal of the notices to show cause indicates that the case of the respondents is that the petitioners have, been manufacturing excisable commodities valued at crores have been 'selling the same without payment of execise duty. The book of accounts which have been seized are apparently being retained as evidence to substantiate the aforesaid case of the respondents and to facilitate the proceedings for levy of excise duty. As regards the notices issued to the petitioners to show cause as to why excise duty may not be levied on the goods manufactured by them and the goods seized may not be confiscated suffice it to say that in case the petitioners are manufacturers of the on which excise duty is payable by them, the notices issued to the petitioners to show cause, cannot ' be said to be without jurisdiction. The case of the petitioners is that they are hot manufacturers of any excisable goods and are not liable to pay excise duty. The proper course for them, in our opinion, is to show cause in pursuance of the impugned notices.

3 It was urged by the counsel for the petitioners that the respondents had no jurisdiction to seize only the account, books. According to him account books could be seized only if goods were also seized and the proper officer had reason to believe that the goods were liable to be confiscated.

4. It has not been disputed before us that the provisions of Section 110 of the Customs Act, 1962 are applicable in regard to search and seizure under the Central Excises and Salt Act, in view of the provisions contained in this behalf in Section 12 of the Act read with Section 8 of the General Clauses Act. Section 110 of the Customs Act, 1962 reads as follows:-

110. Seizure of goods, documents and things,-(1) If the. proper officer has reason to believe that any goods are liable to cnfiscation under this Act, he may seize such goods :

Provided that where it is not practicable to seize any such goods, the proper officer may serve on the owner of the goods an order that he shall not remove, part with, or otherwise deal with the goods except with the previous permission of such officer. (2) Where any goods are seized, under in respect thereof is given under clause months of the seizure of the goods, the goods person from whose possession they were seized

Provided that the aforesaid period of six months may, on sufficient Cause being shown, be extended by the Collector of Customs for a period not exceeding six months. (3) The proper officer may sieze any documents or things which, in his opinion, will be useful for, or relevant to, any proceedings under this Act.

(4) The person from whose custody any documents are seized under Sub-section (3) shall be entitled to make copies thereof of take extracts therefrom in the presence of an officer of customs.'

Sub-section (1), as mentioned above, applies to seizure of goods and 'goods can be seized if the proper officer has reason to believe that the goods are liable to confiscation. Sub-section (3) however, does not contain any such restriction on the power of the proper officer. The Sub-section section empowers the proper officer to seize documents 'which, in his opinion, will be useful for, or relevant to, any proceedings under this Act'. Since Section 110 of the Customs Act has been made applicable to the Central Excises and Salt Act, wherever the words 'under this Act' occur in Section 110 of the Customs Act, they will have to be read as if they refer to the Central Excises and Salt Act.

5. Having given our anxious consideration we find it difficult to accept the submission made by counsel for the petitioners that the account books can be seized under Section 110(3) of the Customs Act only, if goods are also seized under Sub-section (1) thereof, on the ground that the proper officer has reason to believe that those goods are liable to confiscation. Sub-section (3) of Section 110 of the Act empowers the proper officer to seize documents 'which, in his opinion, will be useful for or relevant to, any, proceedings under this Act.' In our opinion, Sub-section (3) gives an, independent power in the matter of seizure of documents and the said power is not subservient to the power exercisable by the proper officer under Sub-section (1) of Section 110 of the Act. Purpose of the two sections is different and in pur opinion, documents or things can be seized under Sub-section (3) of Section 110 of the Customs Act, even in those cases where there may be no seizure of goods on the ground that those goods are liable to confiscation, In other words, the seizure of goods on the ground that the proper officer has reason to believe that such goods are liable to confiscation as contemplated fey the provisions of Sub-section (1) of Section 110 cannot be read as a Condition precedent to the exercise of power of seizure of documents under Sub-section (3) thereof.

6. It was then urged by the counsel for the Petitioners in such of the cases where goods have also been seized that the seizure is invalid, inasmuch as,there is nothing to indicate that the proper officer had reason to believe that 'any goods are liable to confiscation.' In so far as this submission is concerned suffice it to point,out that nothing has been brought to our notice from the record of the writ petitions where it may have been specifically stated that the proper officer had no reason to believe or had no material to come to the conclusion that the goods seized were liable to confiscation. This essentially is a question of fact and in the absence of any specific plea in this behalf, the seizure of goods cannot be held to be invalid. Sub-section (1) of Section 110 does not require the reasons to be recorded in writing.

7.Counsel for, the petitioners brought to our notice a, decision of this Court in Gurcharan Singh v. State (A.I. R, 1965 Allahabad 543)where a learned single Judge of this, Court held that there being no provision either in the Central Excises and Salt Act, 1944. or the Rules framed thereunder, for seizure of account books, the act of seizing or removing the books was illegal and the excise officials were not in legal possession of the books. Sub-section (3) of Section 110 of the Customs Act does not appear to have been brought to the notice of the learned single Judge, who decided the aforesaid case and in view of the said Sub-section it is not possible to take the view that there is lack of power of seizure of account books under the Central Excises and Salt Act, 1944.

8. Apart from what has been stated above, there is yet another ground on the basis of which, we are of the opinion that it is not a fit case to interfere under Article 226 of the Constitution of India. Here the petitioners have been required to show cause, as already stated above. The proper course for the petitioners is to satisfy the authorities that no excise duty is payable by them. It they succeed in satisfying the authorities in this behalf, the goods as well as the account books which have been seized shallautomatically be released and returned to the petitioners.

9. Before parting with these cases we may point out that Shri R.S. Dhawan, the Standing Counsel appearing for the respondents urged that these writ petitions are not maintainable in view of the decision of the Supreme Court in Titaghur Paper Mills Co. Ltd. v. State of Orissa (AI.R. 1983 S.C. 603) inasmuch as the petitioners have an alternative remedy, both against the order of seizure and the order requiring them to show cause, under Chapter 6-A of the Central Excises and Salt Act, 1944. On the view which we have already taken, we find it unrecessary to go into this question.

10. In view of the aforegoing discussion all these four writ petitions are dismissed.

11. An Oral request was made as contemplated by Article 134A of the Constitution of India for the grant of certificate of fitness to file an appeal before the Supreme Court as contemplated under Article 133(1) of the Constitution.

12. Having heard counsel for the petitioners and Shri R.S. Dhawan apppearing for the respondents, we are of the opinion that no substantial question of law of general importance, which needs to be decided by the Supreme Court, is involved. The prayer for the grant of certificate is accordingly refused.

13. A copy of this order may be supplied to the counsel for the parties on payment of usual charges within three days.


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