TMI Blog1988 (2) TMI 479X X X X Extracts X X X X X X X X Extracts X X X X ..... rate appeals before the Central Board of Excise Customs. The Board clubbed all the appeals and by a common order bearing No. 191-200 of 1981 dated 12.10.81 allowed all the appeals and set aside the confiscation and the fine in lieu of confiscation as well as the penalties imposed on the firm as well as on the other individuals. The Government of India, however, in exercise of their power under Sec. 36(2) of the Central Excise Salt Act, 1944, as it then stood, issued a show cause notice to the firm as well as the present respondents herein requiring them to show cause as to why the order passed by the Board should not be set aside and why such other order as deemed fit by the Government should not be passed. The Government of India s show cause notice was dated 6.10.82, the respondents herein, appeared to have received on 12.10.82. They addressed letters to the Govt. of India as to whom they should send their reply since by the time they received the show cause notice, the Customs, Excise Gold (Control) Appellate Tribunal had been constituted and began functioning with effect from 11.10.82. When they did not receive any reply they filed their cross objections before the Tribun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2, 56/82 and 59/82 are dismissed as abated. 6. During the hearing of these appeals Shri Prabhu, the learned departmental representative submitted that the Board committed a grave error in setting aside the order of confiscation and the pelalties. He conducted that the Board did not properly considered the evidence on record and the findings of the Collector. The Board s observation that the Collector did not record finding as to the contravention of Rule 9(1) of the Central Excise Rules is incorrect. The Collector did record a finding as to the contravention of Rule 9(1). Shri Prabhu, further contended that if the Board found that there had been a violation of principles of natural justice, the proper couse which the Board ought to have adopted was to remand the matter and instead the Board had set aside the order of confiscation and the penalites. He, therefore, urged that the Board s order may be set aside and if deemed fit the matter may be remanded. 7. In the review show cause notice issued by the Secretary, Government of India, it was stated that on going through the impugned order in appeal it appears that it is not proper and correct in law and is not base ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e it and set aside the Collector s order. 9. As has been pointed out earlier, the Government of India in the show cause notice and Shri Prabhu during the hearing have taken serious objection as to the Board s observation that there had been no clearing finding by the collector as to the violation of Rule 9(1). The Govt. of India as well as Shri Prabhu have stated that there was a clear finding by the Collector as to the violation of Rule 9(1). 10. At this stage I shall not refer to the various contentions which are very relevant advanced by Shri Kulkarni. I shall only refer to the Collector s order. While narrating brief facts of the case, the Collector had extracted the gist of the show cause notice issued to the present respondents, which reads- By the show cause notice dated 28.6.79, Shri Bapu Khandu Pawar, his two brothers Shri Shankar and Hari, his nephews Shri Ramachandra, Tukaram and Chandrakant (Sons of his late brother Shri Baburao) Suresh (son of Shri Hari) all members of H.U.F. of Pawar, Malkhed (Dt. Satara) and S/Shri J.S. Lokare and B.D. Lokare stand charged with receipt of unmanufactured tobacco without transport document and its storage wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... closely typed 23 pages excluding of course the names of the persons, the notice etc. In the whole of his order the Collector did not direct any of the respondents herein or the partnership firm to pay Central Excise duty either in respect of clandestinely removed tobacco or snuff. 14. The gist of Rule 9(1) of the Central Excise Rules that no exciseable commodity shall be removed from the place of manufacture unless the duty liability is discharged. The allegation in the show cause notice issued by the Secretary to the Government of India and the contention of Shri Prabhu viz, that the Collector had recorded a specific finding as to the violation of Rule 9(1), is difficult to accept. As pointed out earlier, in the show cause notice itself duty had not been demanded from any of the parties. While adjudging confiscation and penalties the Collector did not call upon any of the parties to pay duty. If there had been removal of excisable goods from the premises of manufacture without discharging the duty liability one cannot expect the department not to demand duty in respect of removal without payment of duty as one of the charge in the show cause notice. One also cannot expec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Shri Kulkarni had contended before me that during the hearing the Collector was requested to offer Shri Baldwa from whom roasted tobacco was purchased and in respect of which receipt was produced as well as the Deputy Chief Chemist on whose reports the reliance was made in the show cause notice, for cross-examination. Shri Kulkarni had submitted that the Collector had agreed to offer those two persons to cross-examination but later on told the respondents herein that since those persons cannot be offered for cross-examination he would not rely on the evidence while passing his order. But then, the Collector relied on the evidence of Dy. Chief Chemist s report. By not accepting the receipt of the purchase of the tobacco, he denied the opportunity to the respondents herein to establish their case. If Shri Baldwa had been offered for cross examination the purchase of tobacco as well as the receipt would have stood proved. 16. It was also contended by Shri Kulkarni that the partnership firm was not operating under SRP. There was physical control at the relevant time. All the respondents were living either adjacent or opposite to the factory premises. When there was physical c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 1981. The Board s order was on 12-10-1981. The review show cause notice was issued on 6-10-1982, nearly a year after the Board passed the order. The inferior quality of the tobacco and snuff seized, by this date would have become useless for any purpose let alone for human consumption. As rightly contended by Shri Kulkarni, by this time they would have become earth. 21. Before parting with this case, it is necessary to refer to the submission made by Shri Kulkarni which brings out the attitude of the department towards the poor illiterate villagers. In his order the adjudicating authority directed the release of the seized tobacco and the snuff on payment of fine. He had further directed the release of 1402.300 gms of tobacco and 92 kgs. of roasted tobacco unconditionally. It appears that the authorities were approached for the delivery of the tobacco as well as roasted tobacco, which were unconditionally released by the adjudicating authority in his order dated 16-4-1981. But no such release was made. The respondents offered to pay the fine in lieu of confiscation. Even though, the Collector had given that option the departmental authorities did not allow them to exerc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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