JOSCO CHEMICALS LTD Vs. ASSISTANT EXCISE COMMISSIONER ERNAKULAM

JUDGEMENT

(1.) The petitioner was doing business in Ernakulam, in the manufacture and sale of spirituous preparations and allopathic tinctures, having executed for the purpose, an agreement, Ext. P1, on November 30, 1950, with the Government of the State of Travancore-Cochin, now represented by the third respondent, the State of Kerala, and having taken the necessary licence. The petitioner obtained the requisite spirit for the manufacture, from the Travancore Sugars and Chemicals Ltd., with the previous sanction of the Excise department, but had to pay duty to Government on the quantity used in manufacture, at rates of Rs. 5, Rs. 17 annas 8, and Rs. 21 annas 4 per gallon, depending upon the nature of the product manufactured. A fixed percentage of spirit allowed on account of wastage was duty-free, but anything in excess of it was chargeable to duty, which may amount to Rs. 35 per gallons. On August 18, 1954, the petitioner was served with a notice, Ext. P2, from the then Assistant Excise Commissioner, Ernakulam, now represented by the first respondent, alleging, that during the months of April, May, July, August and October, in the year 1951, there had been excessive wastage of spirit to the extent of 133.91 gallons, and demanding payment by him of Rs. 6431-13-7 towards duty thereon. He applied to the Travancore-Cochin Board of Revenue by Ext. P3, for the withdrawal of the demand, but his application was rejected by order, Ext. P4 on August 1, 1955. He then moved the Government under S.9 of the Travancore-Cochin Board of Revenue Act, 1950, hereinafter referred to as the Act, by a petition, Ext, P5, for revising Ext P4; without disposing of it, Government forwarded Ext. P5 to the Travancore-Cochin Board of Revenue, for such action as it considered proper, and intimated the petitioner accordingly. Afterwards, when steps were taken against the petitioner under the Revenue Recovery Act for the realisation of the duty charged, the petitioner moved the Kerala Board of Revenue which came into being and is impleaded as the second respondent, by an application Ext. P6, for a review of

(2.) The learned Government Pleader who appeared for the respondents raised the objection, that the petition must be dismissed in limine on account of the delay in preferring it. On this point, the petition to Government to revise Ext. P4 cannot avail the petitioner, as, on what has been stated above, Government must be deemed to have declined to entertain it. But the petitioner chose to exercise the right of review conferred by S.10 of the Act, though nearly three years after the passing of Ext. P4, the order sought to be reviewed. S.11 of the Act which prescribes a period of limitation, as it were, for an application for review, is in these terms:-

(3.) Under this provision, it was very well open to the Board of Revenue to reject the application, as made more than three months after the date of the order to be reviewed without sufficient reason, as it was to entertain the application and deal with it on its merits; in this instance, the Board chose to adopt the latter course, did not reject the application as having been made out of time, but entertained it, ordered interim stay of recovery proceedings upon it, and ultimately when the Board rejected it, it did so, not on the ground of any delay in making it, but for the reason that on the merits no interference was warranted. No express order condoning delay in preferring an application for review is prescribed by S.11, it being sufficient that the Board sees fit to do so; apparently, the object is to leave it to the unfettered discretion of the Board, to entertain the application or not. It may be, that in this case, the Board overlooked an obvious point of limitation, but this cannot alter the legal position under S.11. In this view, my ruling in O.P. 443 of 1958 and similar rulings given earlier as to the effect of making review applications where none is warranted by statute, or are dismissed on the ground of limitation, are inapplicable and need not be considered. This petition was made to this court within fourteen days of the dismissal of the application for review. The objection on the ground of delay is therefore overruled.