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TMI Blog1979 (4) TMI 30X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred to as the said Rules), framed under the provisions of Central Excises and Salt Act, 1944 (hereinafter referred to as the said Act). 2. The said firm is a dealer in Tobacco and carries on business at Calcutta and other places in India and holds Central Excise Licences for both duty paid and non-duty paid Tobacco. For the said business, the said firm has a private bonded warehouse at No. 171A, Mahatma Gandhi Road, Calcutta which they at all material times have used and still are using, for storage of non-duty paid Biri Tobacco, brought from the growing areas of Gujarat and other places. The said warehouse has been claimed to be working since the imposition of Excise duty on Tobacco in 1943. The said firm has further claimed to be pos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r are permitted remain in a warehouse under Rule 145 or if any goods are lost or destroyed otherwise than as provided in Rule 143, 147 or 149, or are not accounted for to the satisfaction of the proper officer, that officer may thereupon demand and the owner of the goods shall forthwith pay, the full amount of duty chargeable thereon, together with all rent, penalties, interest and other charges payable the account of the goods." and even without issuing any show cause notice to the said firm. Against such action, the said firm made a representation to the Assistant Collector of Central Excise, Respondent No. 3, for enquiry into the matter and further for remission of duty, in terms of Rule 147 of the said Rules, which is to the following ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... spite of the assurances as mentioned above and due compliance with the same, the Collector of Central Excise, rejected the representation of the said firm, by an order dated 17th July, 1971, holding, inter alia, others that the precautionary measures were inadequate as otherwise, such theft, as in this case, could not have happened in the early hours of the evening. It has also been mentioned in the said order that no clue to establish the case of theft was available and furthermore, the stolen goods could not be recorded even after a man who was reported to have aided in commission of the offence, was apprehended. From such determination, the said firm preferred an appeal to the Central Board of Excise and Customs, New Delhi, who, after he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. State of West Bengal & Ors. (supra) an application of this nature would not ordinarily be maintainable in view of Article 226(3) of the Constitution of India. If there are other remedies under the statute, and availability of the procedure for `'Revision" would come within the purview of "other remedy". But the existence of such "other remedy" would not be a bar in case where amongst others, the power has been exercised without jurisdiction, authority or competence and in capricious use of them or where the proceedings as initiated, are void ab initio or against principles of natural justice. Thus, if the case of the said firm ultimately appears to be falling or coming within the categories as mentioned above or any one of them, the same ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ctor and is silent about any enquiry. But such enquiry may be presumed, as when the Collector is required to exercise his discretion, he is also expected to act on some materials for the purpose of forming the opinion as to whether such discretion as mentioned in the Rule should be exercised or not. So construing the Rule, I find that although the holding of enquiry is not stipulated there, such enquiry is required and is necessary for the due and effective exercise of powers and discharge of obligations. In fact, such an enquiry was held in this case, apart from the fact that the concerned Police report was also perused and considered. I find that for the use of discretion as mentioned in the Rules, opinion is required to be duly formed an ..... X X X X Extracts X X X X X X X X Extracts X X X X
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