JAYAMMA Vs. COMMISSIONER OF EXCISE IN KARNATAKA

JUDGEMENT

(1.) THE petitioner is assailing the legality and the validity of the impugned orders vide annexure-D passed by the 3rd respondent dated 14-6-2002 in No. DTCR 468 of 2001-02, annexure-E passed by the 1st respondent dated 7-9-2002 in No. ECS 27 APP 2002 and annexure-F, dated 20-12-2002 in No. 662 of 2002 passed by the Karnataka Appellate Tribunal.

(2.) THE petitioner is the CL-2 licensee and was engaged in the business of carrying on the business of retail sale of liquor at Karenahally Village of Hassan District. She was granted with the licence for the excise year 2001-2002. On 31-1-2002, the Sub-Inspector of Excise, Hassan range, Hassan, gave a surprise visit to the petitioner's premises and found that the servants of the petitioner were manufacturing the illicit liquor and that even though there was no permit obtained for importing of the liquor, the Raja Whisky of 180 ml was found with the manufacturing date as 21-1-2002 and thereby 10,800 litres of liquor was locked in the premises which was non-duty paid and that at the time of inspection, the account books, permits and invoices were not produced by the petitioner. After registering a case, the Sub-Inspector of excise drew a mahazar and seized the entire stock. Thereafter, he referred the same to the 2nd respondent. In pursuance of the report submitted by the Sub-Inspector of Excise, the 2nd respondent initiated proceedings under Section 29 (b) of the Karnataka Excise Act and issued show-cause notice dated 6-5-2002 to the petitioner questioning as to why the licence granted to her should not be cancelled. The petitioner filed her objections on 24-5-2002. The 3rd respondent, on 14-6-2002, after considering the objections filed by the petitioner and after verifying the other material available on record viz. , FIR, Mahazar etc. , has passed an order cancelling the licence granted in favour of the petitioner with immediate effect. Assailing the said order, the petitioner filed an appeal before the Commissioner of Excise in Appeal No. ECS 27 APP 2002. The Commissioner of Excise, after considering the oral and documentary evidence on record, on 7-9-2002, dismissed the appeal confirming the order passed by the 3rd respondent. Feeling aggrieved by the said order, the petitioner filed an appeal before the Karnataka Appellate tribunal in Appeal No. 662 of 2002. The Karnataka Appellate Tribunal, after hearing both the parties, after considering the material on record and after thorough verification of the original records, dismissed the appeal confirming the orders passed by respondents 1 and 3. Feeling aggrieved by the orders passed by the respondents, the petitioner has presented this writ petition.

(3.) THE principal submission canvassed by the learned Counsel for the petitioner is that, the proceedings initiated by the respondents is contrary to the material on record and that unless the allegations made against the petitioner is proved, the provision of Section 29 cannot be invoked by the respondents. Further, he vehemently contended that the respondents have not initiated appropriate proceedings against the petitioner and that the petitioner was ready to compound the offence and pay penalty as required under Section 45 of the Act. Instead of considering the said submission/request, the authorities have proceeded to cancel the licence granted in her favour and initiated proceedings under Section 29 of the Act. Further, he pointed out that the alleged manufacturing of liquor by the servants of the petitioner was in a premises which is neither the part of the licensed premises nor the licensed premises and therefore the alleged manufacture of duplicate liquor cannot be fastened to the petitioner unless and until the same has been proved before the Competent Court. He also submitted that in the chemical report referred to by respondent 1 in the course of his order on the basis of the records of respondents 2 and 3, it is very clear that the chemical report supports the case of the petitioner that there was no illicit liquor manufactured in the licensed premises of the petitioner. Further, he pointed out that there was no search warrant obtained by the Inspector of Excise before entering the premises of the petitioner and therefore, the proceedings initiated by him is vitiated. The respondents, without appreciating these material facts, have passed the impugned orders and therefore the same are liable to be set aside.