GOVINDBHAI KALIDAS PATEL DECD Vs. UNION OF INDIA

JUDGEMENT

(1.) This is a petition under Article 226 of the Constitution for a writ of certiorari or an appropriate direction order or writ for quashing and setting aside two orders passed by the Excise authorities one dated 24th December 1960 passed by the Assistant Collector of Central Excise Baroda and the other dated 1st August 1961 passed in appeal by the Collector of Central Excise Baroda. The circumstances under which these orders came to be passed were as follows.

(2.) The petitioner carries on business as a Commission Agent in tobacco in village Dabhasar Taluka Thasara District Kaira and holds a licence bearing No. L. 2. No. 45 under the Central Excise and Salt Act 1944 for carrying on the said business. On or about 26th May 1959 a TPI Permit No. 126788 dated 26th May 1959 was issued by the Thasara M.O.R. authorizing the petitioner to transport 17 borries of tobacco weighing 18 Bengali Maunds 13 1/2 seers from his licensed warehouse at Dabhasar to one Mahadeo Nathoba in Poona. The tobacco which was authorized to be transported under the permit was tobacco containing a mixture of Chopadia Jarda Patti and Stalk Kandi in the proportion of 40 60 Chopadia Jarda Patti being 40% and Stalk Kandi being 60%. The petitioner acting in pursuance of the authority conferred under the permit transported 17 Borries of tobacco weighing 18 Bengali Maunds 13 1/2 seers from his licensed warehouse to Mahadeo Nathoba at Poona on or about 26th May 1959. It appears that the Excise authorities in Dabhasar entertained a suspicion that the tobacco actually transported by the petitioner was different from the one that was authorized to be transported under the permit and they therefore sent an intimation to the Superin- tendent Central Excise Poona to detain the consignment and to send representative samples of tobacco taken out from the consignment. The Superintendent Central Excise Poona accordingly detained the consignment when it reached Poona and took out samples of tobacco from the consignment and sent them to the excise authorities in Baroda. The Deputy Superintendent Central Excise Baroda II Circle got the samples examined by Panchas in Baroda on 3rd August 1959 and the Panchas opined that the samples contained pure bidi patti and did not contain any Stalk Kandi. The samples were thereafter sent to the Superintendent Central Excise Umreth and this Officer once again got them examined by Panchas in Dabhasar on 5th October 1959 in the presence of the petitioner. These Panchas were of the view that the samples contained mixture of tobacco in flakes of a slightly larger grain than Rava form of tobacco and of Stalks in the like grain but they were not in a position to express any opinion in regard to the percentage of the two varieties namely leafy portion and Stalk Kandi. On this material the Assistant Collector of Central Excise issued a show cause notice dated 12th March 1960 to the petitioner calling upon the petitioner to show cause why a penalty should not be imposed on him for contravention of Rules 40 and 32 of the Central Excise Rules 1944 and the tobacco in respect of which the offence appeared to have been committed should not be confiscated under those Rules. Though the show cause notice was in respect of the alleged contravention of both Rules 40 and 32 of the Central Excise Rules 1944 the order passed by the Assistant Collector of Central Excise was confined only to the contravention of Rule 32 and therefore it is not necessary to state any facts on which the alleged contravention of Rule 40 was based in the show cause notice. On receipt of the show cause notice the petitioner addressed two letters to the Assistant Collector of Central Excise one dated 11th April 1960 and the other dated 16th April 1960 showing cause against the action proposed to be taken against him. It appears that the Assistant Collector of Central Excise felt that on the material then on record which material consisted of divergent opinions expressed by the Panchas in Baroda and Dabhasar it might not be possible to hold the charge proved against the petitioner and he therefore sent a sample of tobacco to the Deputy Chief Chemist at Bombay for his opinion. The Deputy Chief Chemist gave an opinion that the tobacco in the sample was composed mainly of crushed leaf tobacco with some stems and the approximate percentage of leafy portion was 73.99 and it did not consist of 44; Chopadia Jarda Patti mixed with 56% Stalk Kandi. The opinion given by the Deputy Chief Chemist was communicated by the Assistant Collector of Central Excise to the petitioner by his letter dated 1st September 1960 and by the Said letter the petitioner was called upon to state within seven days from the receipt of the letter whether he had anything to say in connection with the said opinion. The petitioner on receiving the letter of the Assistant Collector of Central Excise contain- ing the opinion of the Deputy Chief Chemist addressed a letter dated 13 September 1960 expressing his inability to under stand how the contents of tobacco mixture could be determined by chemical analysis of the sample and pointing out that the only way in which this could be done was by analysing the contents taking into account only the physical qualities. The petitioner accordingly declined to accept the opinion of the Deputy Chief Chemist. The petitioner was thereafter given a hearing by the Assistant Collector of Central Excise on 3rd December 1960 and at the hearing which took place on 3rd December 1960 the Assistant Collector of Central Excise stated to the petitioner that the opinion was given by the Deputy Chief Chemist after carrying out physical and chemical tests and he was a technical expert competent to give his opinion in such matters and that the opinion could therefore be acted upon in the inquiry. The petitioner thereupon asked for further time to submit a reply and on such time being granted the petitioner gave a reply by his letter dated 6 December 1960. By this letter the petitioner inter alia demanded an opportunity to cross-examine the Deputy Chief Chemist and submitted that no reliance should be placed on his opinion unless the opinion was tested by cross-examination. The Assistant Collector of Central Excise however did not afford any opportunity to the petitioner to cross-examine the Deputy Chief Chemist and passed an order dated 24th December 1960 holding that the transportation of 17 Borries of tobacco weighing 18 Bengali Maunds and 139 seers by the petitioner from his licensed warehouse at Dabhasar to Mahadeo Nathoba at Poona was not covered by TPI Permit No. 126788 dated 26th May 1959 since the tobacco so transported did not consist of Chopadia Jarda Patti mixed with Stalk Kandi in the ratio of 40% & 60% and that the petitioner was therefore guilty of con- travention of Rule 32 of the Central Excise Rules 1944 By the said order the Assistant Collector of Central Excise directed that under the circumstances the tobacco should be confiscated but the petitioner might redeem it on payment of fine of Rs. 250.00 plus the duty leviable on the tobacco and also imposed a penalty of Rs. 200.00 on the petitioner. The petitioner thereupon preferred an appeal to the Collector of Central Excise but the Collector of Central Excise by his order dated 1st August 1961 dismissed the appeal. The petitioner accordingly preferred the present petition challenging the validity of the appellate order made by the Collector of Central Excise as also the validity of the original order made by the Assistant Collector of Central Excise.

(3.) There were three grounds on which the validity of the orders of the Assistant Collector of Central Excise and the Collector of Central Excise was challenged by Mr. Patel learned advocate appearing on behalf of the petitioner and they were as follows :