K.T.JOSEPH Vs. EXCISE COMMISSIONER

JUDGEMENT

(1.) A Mahindra Bolero Jeep owned by the first petitioner was ordered to be confiscated by Ext.P5 issued by the 2 nd respondent. The reason stated was that the vehicle was found transporting 'arishtam' without valid permit. According to the 2 nd respondent, the said transportation amounted to an offence under Section 56(b) & 63 of the Kerala Abkari Act [for short, 'the Act'] read with Rule 9, 10 & 17 of the Kerala Spirituous Preparations (Control Rules) 1969 [for short, 'the rules']. The order of confiscation was interfered with by the Additional Excise Commissioner in appeal through Ext.P9. A suo motu revision was initiated by the 1st respondent under Section 67E of the Act and issued Ext.P11 order. The 1st respondent set aside the order of the Appellate Authority and upheld the order of confiscation. Thus, the vehicle faced immediate confiscation, resulting in this writ petition challenging inter-alia Ext.P11.

(2.) The learned counsel for the petitioners Sri.S.P.Aravindakshan Pilllay submits that Ext.P11 order of the 1 st respondent is totally erroneous and contrary to law since a well considered order of the Appellate Authority was interfered with without even any reference to the legal or factual aspects. The learned counsel points out that as per Ext.P3 interim order in WP(C) No.25533/2008, this Court had directed the respondent not to insist on licence under the Rules if the products of the petitioner are covered by the Drugs and Cosmetics Act as well as its Rules and also that as per Exts.P1 & P2, 2 nd petitioner is in possession of licences under the Drugs and Cosmetics Act as well as the Medicinal and Toilet Preparations (Excise Duties) Act 1956. It was further submitted that apart from the above, the Division Bench of this Court had, in judgment dated 12.06.2012, after obtaining test results of chemical analysis observed that the products transported by the present petitioners did not contain percentage of alcohol above the percentage of alcohol found in the same products manufactured by the reputed manufacturers.

(3.) Learned counsel further pointed out that, the Appellate Authority who is none other than the Additional Excise Commissioner, after an assessment of the entire facts that arose in the case, came to the conclusion that the present was not a fit case to order confiscation as it would be too harsh in the circumstances of the case. The counsel also argued that Ext.P11 suffers from yet another anomaly in the sense that as evident from Ext.P14, details obtained under the Right to Information Act , the person who heard the case was only an Assistant Excise Commissioner, a subordinate authority to the Appellate Authority under the statute. All what the revisional authority- Excise Commissioner did, in purported exercise of his alleged revisional jurisdiction was to merely observe that the Deputy Commissioner's order "ought to be upheld". The learned counsel submitted with due vehemence that the scope and purport of revisional power under Section 67E of the Act is very limited and must be exercised when the Commissioner specified, therein is satisfied and not otherwise. Thus, the learned counsel submitted that Ext.P5, P11 and P12 orders are liable to be set aside.