S HODAYATHULLAH Vs. GOVERNMENT OF INDIA

JUDGEMENT

(1.) THIS is an appeal against the order of V. Ramaswami J. dated 13-12-1979 dismissing W. P. No. 2006 of 1977 filed by the appellant herein. There is a fairly long history spread over nearly two decades, and for the purpose of the disposal of this writ appeal, it is necessary to refer to the same very briefly. The appellant herein is carrying on business in the manufacture and sale of bidis and cheroots under the name and style of Messrs speed Lever Bidi Co. and he had been stocking beedi tobacco and cheroot tobacco in five warehouses in different streets in Trivellore under the licences granted by the Central Excise authorities at Madras. The annual stock taking of the materials in the warehouses took place on 3-9 1961. Two of the inspectors of the Excise Counsel attached to the Collector's office at Madras inspected the warehouses on 15-10-1961, 16-10-1961 and 17-10-1961, and checked the stock and continued the same till 21-10-1961. As a result of the verification of the stock, weighments of the existing stock were made and the weighment sheets were signed by the appellant himself. Finding that there was large deficiency in the stock, and bidi tobacco and cheroot tobacco were not stored in an orderly manner as required by the Rules and were mixed up together, the Central Excise counsel served an order on the appellant herein demanding payment of duty in an aggregate sum of Rs. 69, 606. 50 on the entire shortages found at the time of the special stock taking. Complaining against this order, the appellant herein filed W. P No. 1394 of 1961 praying for the issue of a writ of certiorari to quash the demand served on him without giving an opportunity to put forward his case by the issue of a show cause notice. The writ petition was allowed by this court on 20-8-1962. Thereafter, the Counsel issued a show cause notice on 31-10-1962, requiring the appellant herein to show cause why two separate penalties should not be imposed on him under Rules 223 and 223-A of the Central excise Rules, 1944, and why the duty on the deficiencies noted should not be demanded under Rule 223-A of the said Rules. The appellant submitted his explanation on 8-11-1962 putting forward certain objections. These objections were overruled and a demand was made on him and a penalty was levied. During the pendency of those proceedings, there was a departmental proceeding initiated against one Inspector and another Deputy Superintendent in regard to certain dereliction of duty and non-compliance with the rules relating to the checking of the appellant's warehouses prior to the annual stock taking in the present case. In those departmental proceedings, the two Inspectors, who made a special inspection of the appellant's warehouses, were examined as witnesses. The appellant herein wanted copies of the depositions of those inspectors to be made available to him in connection with the enquiry with regard to the shortages found in the warehouses of the appellant herein. But the enquiry officer refused to make available copies of those depositions on the ground that the department did not propose to rely on the said depositions in respect of the charges framed against the appellant. Against this refusal, the appellant preferred an appeal to the Central Board of Revenue, New Delhi, represented by its Chairman, New Delhi. The said Central Board of Revenue stated that no appeal lay to it. It is, thereafter, the appellant filed W. P. No. 971 of 1968 on the file of this court. In that writ petition, the prayer, as is found in the original records of this court, is to call for the records, issue a writ of certiorari of any other appropriate writ or direction and quash the order of the first respondent therein namely the Central Board of Revenue, new Delhi, represented by its Chairman, New Delhi, being No. 4-B/92/67-CX. V, dated 8-9-1967, and direct the first respondent to re-entertain the appeal preferred by the appellant herein and determine the same according to law. That writ petition was dismissed by a single Judge of this court on 13-3-1968. Against the said dismissal, the appellant preferred W. A. No. 189 of 1968 before a Division Bench of this court. That appeal was dismissed at the stage of admission itself on 24-4-1968, but the court made the following observations - "learned Counsel for the writ petitioner strenuously contends that his client is the best judge of how far these statements will aid him in his defence, and that when hebona fidefeels that copies of the statements will assist his defence, it is not in accordance with the principles of natural justice to deny him the simple relief of the grant of copies. We think it is sufficient to observe that there is much to be said for this view as, if the enquiry ultimately results in a finding or findings adverse to the writ petitioner, the departmental authorities obviously will not desire that the proceedings themselves could be impugned as vitiated by failure to observe principles of natural justice. For this reason, we think that the departmental authorities will do well to reconsider the question of the grant of these copies. "

(2.) BASING himself upon those observations, the appellant requested the Central Excise authorities to grant him copies of the depositions of the two inspectors in the departmental enquiry. The departmental officers declined to grant any such copies on the ground that the writ petition and the writ appeal have been dismissed, that those observations have been made in the absence of departmental officers, that the departmental officers were not relying upon the evidence of those witnesses in the proceedings they are taking against the appellant herein and that consequently they were not prepared to grant copies of the depositions. After having taken this stand, the authorities, after making the said two inspectors available for cross examination by the appellant, in the enquiry as we have pointed out already, levied duty as well as penalty referred to above, and the appeal preferred by the appellant to the Collector of Central Excise, Madras, was rejected. Thereafter, the appellant filed a revision petition to the Central Government under Section 36 of the Central Excises and Salt Act, 1944, and the Central government itself dismissed the revision petition on 16-4-1977. It is thereafter the appellant herein filed the present writ petition praying for the issue of a writ of certiorari to quash the order of the Union of India dated 16-4-1977.

(3.) AS far as the second point is concerned, the learned judge referred to the observations made by a Division Bench of this court in the writ appeal referred to already and proceeded to state that the departmental officers could have supplied copies of the depositions of the two officers to the appellant which were innocuous and which would not be of much help to the appellant, but yet he was not satisfied that the non-supply of the depositions had prejudiced the appellant in any way. Though we cannot agree with tile observations of the learned Judge, we are clearly of the opinion that he was correct in his conclusion. The observations of the Division Bench were made in a writ appeal which was not concerned with the supply of copies at all, but was concerned with the complaint that the Central Board of Revenue, erroneously rejected the appeal preferred by the appellant therein on the ground that such an appeal was not maintainable and the prayer of the appellant therein was to quash that order and direct the Central Board of Revenue to re-entertain the appeal and dispose it of on merits. We agree with the conclusion of the learned Judge not merely because the appellant had signed the weighment sheets prepared at the time of the special inspection but in the affidavit filed by the appellant in his earliest writ petition he had not questioned the correctness of the weighment and the existence of the shortages and only contended that he was not responsible for the shortages. Therefore, this point also fails and hence the writ appeal fails and is dismissed.