9911796707
TMI Blog2017 (8) TMI 505X X X X Extracts X X X X X X X X Extracts X X X X ..... wing description and quantity :- Brand No. of Cases Besto Drygin 137 labelled as for sale in Arunachal Pradesh Besto Whisky 318 labelled as for sale in Arunachal Pradesh Brand No. of Cases Royal Stag 30 Imperial Blue 65 3. On being questioned, Sh. Rajesh Kumar, driver and Sh. Kala, cleaner could not produce any permit or pass in respect of the consignment of liquor and, therefore, the consignment along with the truck was taken into police custody. The driver and the cleaner were also arrested. On 15.09.2014 accused Rajesh Kumar and Kala along with the consignment of liquor were produced before the Collector-cum-DETC. Upon enquiry the driver of the vehicle informed the Excise Authorities that he had loaded 1100 cases of IMFL from the petitioner distillery, which included 871 cases of Besto Whisky and 229 cases of Besto Drygin for which no pass or permit or any other document was issued by the distillery. He also stated that out of these 645 cases were unloaded in a room near Fauji Canteen in Fauji Colony, Sonepat from where he loaded 30 cases of Royal Stag Whisky and 65 cases of Imperial Blue Whisky and thus, 550 cases of IMFL were there in his truck when he was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ) respectively, which have been impugned in the instant petition. 5. It was contended by learned counsel for the petitioners that the petitioners were not afforded adequate opportunity of hearing, which resulted in violation of the principles of natural justice inasmuch as the request of the representative of the petitioners for an adjournment was rejected without any valid ground. In support of his contention, he relied upon judgment of a Division Bench of this Court in the case of Stelco Strips Ltd. Vs. State of Punjab and others, 2009(Vol. 19) VST 498. He further contended that the petitioners ought not to have been penalized for liquor, which has been confiscated from third party as Section 61(1)(aaa) of the Punjab Excise Act, 1914 does not authorise respondents to impose penalty unless the liquor has been seized from the possession of the petitioners. The petitioner distillery cannot be held liable as the liquor was not seized from it. 6. Per contra, learned State counsel has contended that the petitioners had been given adequate opportunity and 7 days' notice was furnished to them in terms of Rule 5 of the Rules of 2003 and in case further time had been granted to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng such evidence as the person may produce and after making such enquiry, as he may deem proper, on being convinced and satisfied that offence was committed under the Act, shall determine the amount of penalty recoverable from the offender or person concerned. Collector shall pass order for confiscation of liquor under Section 78." xxx xxx xxx xxx xxx xxx xxx xxx xxx 13. The licensee shall agree to the posting of a Government excise establishment to his distillery for the purpose of ensuring the due observance of these rules and for watch and ward. This establishment shall consist of an Excise and Taxation Officer and as many Inspectors] and peons as the [Excise Commissioner] shall deem sufficient for the requirements of the distillery. This staff shall be subject to the inspection by Financial Commissioner and the Collector and be under the Administrative control of the Collector." 9. Section 61 (1) (aaa) and C (i) of the Act of 1914 stipulates that import, export, transport or possession of liquor in contravention of the Act, rules or licence would invite penalty of not less than Rs. 50 and not more than Rs. 500 per bottle of 750 mili litres or part thereof. Thus minimum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ngs within time prescribed will not result in abatement of proceedings as it is necessary to comply with the principles of natural justice. 12. Rule 5 of the Rules of 2003 nowhere stipulates that the Collector cannot grant any further time than the notice period of less than 7 days before adjudicating the matter. All it says is that in the first instance, the notice cannot be of more than 7 days. If we were to interpret Rule 5 to mean that no further time can be granted to the offender/assessee and the order of penalty would have to be passed within 7 days, the consequences would be disastrous. The authorities would get licence to act arbitrarily and whimsically and even bona fide and genuine requests to file reply would be denied. Thus we would interpret Rule 5 in a manner which would adhere to the principles of natural justice rather than that which defeats them. We, thus, hold that Rule 5 providing for notice of not more than 7 days is directory and in appropriate cases more time could be granted by the Collector in furtherance of the principles of natural justice. 13. In the case of it has been held by the Supreme Court that fair hearing is one of the pre-requisites of natura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inancial Commissioner and the Collector and be under the Administrative control of the Collector. 14. The licensee shall, provide within the distillery enclosure an office for the inspector as well as quarters to be approved by the Financial Commissioner, for the inspector and the peons who will be required to remain within the distillery enclosure on night duty. 15. The licensee shall, if required by the Financial Commissioner, provide residential quarters for the Government excise establishment posted in the Distillery." 16. It was also stated that the manufacturing capacity of the distillery is fixed and the number of receptacles, barrels, bottles and other containers are duly registered with the department along with their capacities. The stocks held in these receptacles corresponds to the approved manufacturing capacity of the distillery. Unless it is established that these stocks are disproportionate to the approved manufacturing capacity, case for unauthorised removal of liquor would not be made out. The periodic inspection was carried out by the Excise officials and they did not observe any irregularity in the functioning of the distillery. It was further stated tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... est and granting some time even of a few days would not have affected the proceedings. Declining the request on the first date itself would not be in consonance with the principles of natural justice. This is more so when the maximum penalty of Rs. 500/- per bottle has been imposed upon the petitioners. The oral statements of the driver and others and various documents are being relied upon by the authorities without any reply thereto which has certainly prejudiced the petitioners. 19 We hasten to reiterate that nothing which we have observed in this judgment will have any bearing whatsoever on the merits of the case. 20. For these reasons, the petition is allowed. Impugned orders dated 26.09.2014 (Annexure P-6) passed by Collector-cum-Deputy Excise & Taxation Commissioner (Excise), Sonepat, (Collector-cum-DETC), whereby penalty of Rs. 27,30,000/- has been imposed upon them as well as the orders dated 30.04.2015 (Annexure P-18) and dated 26.05.2016 (Annexure P-20), whereby their appeal and review application respectively were dismissed by the Excise and Taxation Commissioner, Haryana are set aside. The case is remanded to the Collector to decide afresh within three months after g ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
