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Lachmandas Tobacco Dealer Vs. Union of India (Uoi) and ors. - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtDelhi High Court
Decided On
Case NumberCivil Writ No. 381-D/63
Judge
Reported in1978(2)ELT502(Del)
ActsCentral Excise Rules, 1944 - Rules 32, 40, 42, 141, 144, 151, 171 and 226
AppellantLachmandas Tobacco Dealer
RespondentUnion of India (Uoi) and ors.
DispositionPetition allowed
Cases ReferredGupta Tobacco Company v. Collector of Central Excise
Excerpt:
- - 1 and, i verified that this fact from the original file as well as mr. the party was, however, requested to mention such points on which cross-examination of departmental witnesses was sought in reply to the show cause ntoice and to leave it to the adjudicating officer to seek necessary clarifications from the officers concerned, but the party failed to avail of this opportunity. shankar, learned counsel for the respondents, however, raised an objection that the petitioner failed to avail himself of the alternative remedy available to him and that the petition should be rejected on the ground......on him for contravention of rules 151(c) and (d), and 40 read with 171 and 42 read with 226 of the central excise rules, 1944, and tobacco confiscated under rules 42, 32 and 151 of the said rules. some correspondence passed between the petitioner and the superintendent, central excise, and in his letters the petitioner insisted, inter alia, on knowing as to what was the basis of suspicion about the substitution of tobacco. the petitioner also wanted a copy of the application, alleged to have been made by him in june, 1959, for destruction of the tobacco originally warehoused. according to the petitioner, that application had been made because the said tobacco 'was unmarketable. the superintendent informed the petitioner that substitution of tobacco stood established from the chemical.....
Judgment:

S.K. Kapur, J.

1. The petitioner placed 75 maunds 6 seers of unmanufactured tobacco in their private bonded warehouse, vide entry No. 2/56 of 2nd July, 1956. It appears that subsequently a representative sample was taken from the said lto by the Excise authorities and sent to the Chemical Examiner for examination and report. The Chemical Examiner sent his report dated 23rd October, 1959 according to which the tobacco content was reported to be 51.9 percent. It was calculated on the basis that the tobacco has ash content of 19 per cent From that report, the Excise authorities, prima facie, came to the conclusion that the original lto had been surreptitiously removed by the petitioner from the warehouse without payment of duty and substituted by an equal quantity of adulterated and inferior tobacco containing was, accordingly, issued to the petitioner on 23rd November, 1960, requiring him to show cause as to why a penalty should nto be imposed on him for contravention of rules 151(c) and (d), and 40 read with 171 and 42 read with 226 of the Central Excise Rules, 1944, and tobacco confiscated under Rules 42, 32 and 151 of the said rules. Some correspondence passed between the petitioner and the Superintendent, Central Excise, and in his letters the petitioner insisted, inter alia, on knowing as to what was the basis of suspicion about the substitution of tobacco. The petitioner also wanted a copy of the application, alleged to have been made by him in June, 1959, for destruction of the tobacco originally warehoused. According to the petitioner, that application had been made because the said tobacco 'was unmarketable. The Superintendent informed the petitioner that substitution of tobacco stood established from the Chemical Examiner's report and no application for destruction was available on the record. In the reply affidavit, however, it has been admitted that an application for destruction of goods in question was made on 2nd June, 1959.

2. The petitioner also wanted to examine the Chemical Examiner, who had analysed the sample. The petitioner, in his petition, stated that no opportunity was given to him to examine the Chemical Examiner. This allegation appears to be patently wrong, as by his order dated 2nd February, 1962, the Superintendent, Central Excise, had fixed 7th February, 1962, for examination of the Chemical Examiner, but no one turned upon that day on behalf of the petitioner. The said letter, dated 2nd February, 1962, has been annexed to the reply affidavit as Annexure R. 1 and, I verified that this fact from the original file as well as Mr. Shankar, learned counsel for the respondents, also placed before me an acknowledgment by the petitioner, in writing of the receipt of the letter dated 2nd February, 1962, which was nto denied by the learned counsel for the petitioner. This mis-statement in the petition is rather unfortunate and I would have been inclined to dismiss the petition on this ground alone, but for the special circumstances of this case. These special circumstances are that a number of petitions had been filed by various parties and one by the petitioner, through the same counsel, and it is nto impossible that this statement might have been made as a result of some confusion. The petitioner also wanted to examine certain officers of the department as, according to him, the warehouse had been checked by various officers from time to time. The petitioner again insisted on his right to examine the department witnesses. The learned counsel for the petitioner pointed out that from the examination of the departmental witnesses, he would have established two things-

(i) in view of the constant vigil kept over the bonded warehouse, it was impossible for the petitioner to have substituted tobacco; and

(ii) samples had been drawn from that very lto on earlier occasions and the Excise authorities were withholding those samples so that the tobacco contents continued to be the same throughout.

3. The Superintendent, Central Excise, made two observations with respect to the claim of the petitioner to examine departmental witnesses, namely:-

(i) 'The examination of the departmental witnesses was found irrelevant as the case was based only on the report of the Chemical Examiner', and

(ii) 'As regards examination of the toher departmental witnesses, since the charges were nto based on the report of any such officer, there was no relevancy for calling such officers for cross-examination. The party was, however, requested to mention such points on which cross-examination of departmental witnesses was sought in reply to the show cause ntoice and to leave it to the adjudicating officer to seek necessary clarifications from the officers concerned, but the party failed to avail of this opportunity.'

4. The second qutoation reflects a peculiar process or thought prevailing in the mind of the Superintendent, Central Excise, who was exercising quasi-judicial functions. The procedure suggested is unthinkable in field of quasi-judicial determinations. The party was entitled to examine the concerned officers to prove the facts, suggested by the learned counsel for the petitioner, rather than leaving it to the authority to seek clarification from the officers itself. From this, it follows that the Superintendent, Central Excise, was wrong in disallowing the examination of the witnesses and resorting to the suggested procedure for clarification of certain points from those witnesses. Mr. S.N. Shankar, learned counsel for the respondents, argued he wanted to examine. Whatever be the importance of that contention, the Superintendent did nto disallow the examination on that ground, and, probably, because the department knew or could easily ascertain the names of the officers concerned. There has thus been a violation of the demands of natural justice, compliance with which is indispensable in the administration of law by quasi-judicial authorities.

5. The Superintendent, Central Excise, by his order dated 16th July, 1962, decided that the petitioner had contravened the provisions of Rules 141 and 144 read with Rule 151(c) and (d) of the Central Excise Rules, 1944. He, thereforee, imposed a penalty of Rs. 75/- and ordered confiscation of the tobacco. He, however, gave the petitioner in addition to payment of excise duty and additional duties at the appropriate rate. The ttoal demand, thus raised against the petitioner, came to over Rs. 7,000/-. The petitioner filed an appeal before the Collector, Central Excise, which was rejected on 3rd -November, 1962, on account of the petitioner's revision petition, before the Central Government, was also rejected by the order dated 28th March, 1963. The petitioner, thereforee, filed the present writ petition impugning the aforesaid three orders. In view of my conclusion as to violation of the demands of natural justice, the three impugned orders cannto be sustained.

6. Mr. Shankar, learned counsel for the respondents, however, raised an objection that the petitioner failed to avail himself of the alternative remedy available to him and that the petition should be rejected on the ground. His contention was that the petitioner should have deposited the Government dues and gto his appeal heard and disposed of on merits. For the reasons given in Gupta Tobacco Company v. Collector of Central Excise (C.W. 156-D of 1963) decided on 19th April, 1967, this contention of Mr. Shankar must be repelled.

7. In the result, this petition succeeds so that the three impugned orders are quashed, leaving the parties to bear their own costs.


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