BOMMIDALA POORNAISH Vs. UNION OF INDIA

JUDGEMENT

(1.) This appeal has been referred to a Bench by our learned brother Basi Reddy, J having regard to the general importance on certain questions arising in the case namely:- (1) Does the bar of limitation prescribed by sub-section

(2.) of Sec. 40 of the Central Excises and Salt Act, 1944, apply to a suit of the nature out of which this appeal arises, viz., a suit for a declaration that the order of the Collector, Central Excise, levying penalty and duty on certain tobacco is illegal? (2) If the said provision does apply, then which is the crucial order for purposes of limitation, the order of the Collector, or the order passed by the Government of India on revision? And

(3.) The admissibility of the opinion of an expert without the expert being examined. (2) The appellant-plaintiff is a licensed tobacco trader in Guntur. He had entered into a contract on 1-6-1965 with a Japan Monopoly through the Tokyo Food Products Ltd., for supply of 500 bales of tobacco from 1955 crop and 250 bales of 1954 crop both for CPL variety, IAC, without butts. As the said variety was not available in Guntur and Krishna Districts, he purchased from one G. Bhavani Prasad of Hyderabad on 13-10-1955, 199 packages of I. A. C. Tobacco, partly at Rs. 100 and partly at Rs. 72-8-0. The consignor (seller) applied for a permit in AR. 3 form for transport of the said packages by a lorry from Hyderabad to Guntur and was given a T. P. 2 permit on 13-10-1955 for transport of the same between 4-30 p.m. on 13-10-1955 and 5-00 p.m. on 15-10-1955. The marks and numbers of the 119 bundles were stated in the A. R. 3 form and also when T. P. 2 permit was issued, by the consignor and his men, during the absence of the plaintiff at Hyderabad. It may be stated that T. P. 2 form permitted the consignee of the plaintiff at Hyderabad. It may be stated that T. P. 2 form permitted the e consignee one the consignees bond and the goods were thereafter transported and reached Vijayawada on 14-10-1955. They were unloaded at the wharf from the kloory and kept at the she of Sri. G Ramalingeswara Navigation Company, as it could not be ferried across the river Krishna owing to the locks and the navigable passage being blocked by sand deposits due to the stonmy weather. The plaintiffs clerk, Chadalavada Srinivasarao (P. W. 5) who was sent from Guntur to Vijayawada, approached the Range Officer on 16-10-1955 and asked for extension of the time under T. P. 2. Thereupon the Range Officer came to the wharf on 17-10-1955 for inspection and on verification of the tobacco packages loaded in the boat, is said to have found some discrepancies in the market and numbers noted in A. R. 3 and T. P. 2 forms with the actual goods. It was found that there were small chits bearing serial Nos. 1 to 119 with gross weights of individual packages noted thereon; but the packages themselves did not bear any marks. In view of these discrepancies the goods were seized and handed over to M/s. Dayanand Tobacco Company at Vijayawada for safe custody. Thereafter, the Exercise Authorities conducted investigation and submitted a report to the Collector of Central Excise, Hyderabad who issued a notice under rule 32(2) of the Central Excise Rules, stating that the plaintiff transported 119 packages of IAC, tobacco weighing 14,220 ibs., net without a valid transport document and to show cause why that tobacco not be confiscated and a duty on the said amount of tobacco removed from G. Bhavani Pershad of Hyderabad be levied. The plaintiff showed cause and stated that the consignment seized was the same as covered by the TP. 2 permit and that the liability, if any, was of the consignor at Hyderabad and consequently requested that the charges may be dropped. By an order, dated 12-7-1956, the Collector directed confiscation of the tobacco and ordered payment of Rs. 1,200 in lieu of confiscation, giving an option to redeem the same and imposing a penalty of Rs. 1,000. He also further levied a tax of Rs. 12,423-4-0. The plaintiff filed an appeal to the Central Board of Revenue, but it was rejected as per the order, dated 14-5-1957, on the ground that he did not deposit the amounts adjudged payable as per the Collectors order. Thereafter, he filed a revision to the Government of India in the Finance Department, but this was also rejected without assigning any reasons. Thereafter the plaintiff paid the penalty of Rs. 1,000 under protest and redeemed to the tobacco after paying Rs. 1,200. The plaintiff averred that, as the transport of the tobacco was at the instance of the consignor and on his bond, he could not be held responsible on his bond and even on merits, he contended that the finding of the Collector was based on suspicion. A declaration was, therefore, prayed for that the order of the Collector, dated 12-7-1956, is illegal, arbitrary and ultra virus. (3) The defendant, Union of India, stated that the averment of the plaintiff that the goods were transported of the responsibility of the consignor is wholly incorrect: that the goods were moved under the bond of the plaintiff and that the present stand taken by the plaintiff that they were moved on the consignors bond was never before raised or urged in the earlier proceedings and is untenable. The consignment, even as per the plaintiffs contention, reached to Vijayawada in the early hours of 14-10-1955. That consignment totally disappeared and the plaintiff who was bound to account for the same, failed to do so and the duty and penalty were properly levied. The goods that were seized by the Central Excise Officer, Vijayawada, on 16-10-1955 were totally different from those to be transported under the TP. 2 permit. It was further stated that, according to P. W. 5, the clerk of the plaintiff the goods were transported from the plaintiff the goods were transported from Bhuvangiri on the evening of and reached Vijayawada on the morning of 15-10-1955, that the same were purchased by the plaintiff agent and were loaded in two lorries. As such the two consignments started from different places and on different dates. The marks and numbers on the packages were 1 to 119 instead of 768 to 850 and 895 to 930 as per the consignors warehouse register and the subsequent lists as stated in AR. 3 and enclosed to TP. 2. The Deputy Superintendent, who was ordered to investigate, found that the tobacco in gunny bags consisted of broken pieces of leaf, old scrap dust and stems. The weight of the entire consignment was 14,220 lbs., instead of 14,198 lbs. Consequently, the consignment was seized and deposited with Dayananda Tobacco Company for safe custody, after drawing separate samples from the two kinds of packages. They were sent to the Senior Marketing Development Officer, according to whose opinion, the tobacco in the mat bundles might be of 1955 season, the value of which was between Rs. 50 and 60 per putti. In so far as the tobacco in the gunny bags in concerned, some leaf might be of 1955 season but others belong to earlier years, and fixed his value between Rs. 15 and 20 per putti. He also opined that the tobacco in the gunny bags was not exportable. The order of the Collector, Central Excise, is therefore not arbitrary or illegal or in violation of any rules. The Central Government dismissed the revision application after due enquiry and consideration and after obtaining further opinion of the samples on the request of the plaintiff made at the time of the hearing of the revision. It was also contended that the notice under Section 80, C.P.C., was not valid and that the suit should be dismissed.