TMI Blog1980 (2) TMI 84X X X X Extracts X X X X X X X X Extracts X X X X ..... accordance with law. 2. The writ petitioner is a firm carrying on business in tobacco at Cochin on the strength of licences issued to it by the Central Excise authorities. The petitioner obtained two transport permits for transportation of 570 bags of Biri tobacco from its warehouse at Cochin to the warehouses on two licensees, one at Quilon and another at Kayamkulam. According to the petitioner, on 28-7-1961 itself the entire quantity of 570 bags of tobacco was loaded in a country boat for being transported along the backwaters to Kayamkulam and Quilon. The further case of the petitioner is that the boat had passed through the sales tax check post at Aroor, it had been checked by the sales tax authorities and found to contain 570 bags of tobacco, but thereafter while negotiating the turbulent waters of the Vembanattu lake at Thanneermukkom, it met with an accident by colliding with a stake poll and capsized. Immediate salvage operations resulted in the recovery of 106 bags and the balance quantity of tobacco carried in the boat was lost in that water without any trace. The aforesaid accident is said to have taken place during the late hours of the night on the 29th July, 1961 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y the Customs authorities only after the final disposal of the application filed by the petitioner-firm under Rule 147. We are informed that in compliance with the said direction issued by this Court the petitioner-firm has executed a bond in favour of the President of India for the sum of Rs. 70,000/-. 3. Thereafter the Collector of Customs and Central Excise issued to the petitioner two show cause notices as per Exts. P1 and P2 on 22-4-1964. By the first notice the petitioner was called upon to show cause why the firm should not be subjected to the imposition of penalty for contravention of Rule 161 (c) and (d) read with Rule 156B of Central Excise Rules, 1944 and why the duty of Rs 68,963.80 being the duty payable in respect of the 370 bags of biri tobacco weighing 26122.65 Kgs. should not be demanded from the petitioner-firm under Rule 100 read with Rule 156B of the Central Excise Rules. By the second notice, Ext. P2, the petitioner was charged with having transported a quantity of 3577.75 Kgs. of non-duty paid biri tobacco in 106 bags to Velliampuram near Thanneermukkom without any valid transport documents and thereby contravened Rule 33 (1) of the Central Excise Rules, 194 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a further penalty of Rs. 2,000/- under Rule 151(c) for illicit removal of 570 bags of biri tobacco from the petitioner's warehouse at Cochin. 5. Aggrieved by the aforesaid order passed by the Collector, the petitioner preferred an appeal before the Central Board of Excise and Customs, New Delhi. That appeal was disposed of by the Central Board as per its order Ext. P9 dated 5-10-1971. After a fairly detailed discussion of the evidence available on record the Central Board arrived at the finding that the case put forward by the petitioner that the goods consisting of 570 bags of biri tobacco removed from the warehouse at Cochin had been loaded on best for transportation to Kayamkulam and Quilon and that the said boat met with an accident resulting in loss and destruction of the goods, save to the extent of 106 bags which was recovered in salvage in a badly damaged condition, could not be accepted as true. The conclusion reached by the Central Board was that out of the 570 bags removed from the petitioners warehouse in Cochin, 464 bags were not at all loaded in the boat which is alleged to have met with the accident and that the alleged accident itself was only a stage managed aff ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he order Ext. P9 the Appellate Authority had omitted to advert to the crucial facts and circumstances which, if considered, would have clearly shown that the case put forward by the petitioner that the goods in question had been loaded into the boat and had been subsequently lost in the backwaters on account of the accident to the said boat, was genuine and true. It is further urged in the Original Petition that the revisional authority had disposed of the revision petition in a rather summary manner under a misconception that it was not part of its function to review the findings of fact entered by the subordinate authorities and that by reason of such a defective approach, the petitioner had been denied a just and fair consideration of its case at the hands of the revisional authority. Another point that was taken in the writ petition was that the entire quantity of 570 bags of tobacco had been removed by the petitioner from the warehouse only on the strength of a permit duly issued by the Central Excise Authorities and hence there was no justification whatever for imposing on the petitioner any penalty under Rule 151(c) on the charge of removal of goods from the warehouse otherw ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the judgment of the learned single Judge, but that discussion was not by way of reappreciation of evidence, but only for pointing out that there was a glaring omission on the part of the original and appellate authorities to advert to certain aspects that were highly crucial and relevant, for a proper determination of the main question involved in the case. Such a course become necessary for the learned single Judge only because of the fact that the revisional order proceeded on the erroneous basis that it was not incumbent on the revisional authority to examine or review the findings of fact entered by the subordinate authorities and hence there was no discussion whatever contained therein about the contentions put forward by the writ petitioner in support of the challenge raised by it against the finding entered by the original and appellate authorities. 9. Under Section 36(2) of the Act the Central Government is empowered to examine the correctness, legality or propriety of the decision or order passed by the Appellate Authority under Section 35 and to pass such order thereon as it thinks fit. It is certainly within the scope of the said power conferred on the revisional auth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tnesses or the probability or otherwise of the case put forward by the writ petitioner in relation to the alleged accident to the boat. In order to allay any apprehension in this regard we make it clear that the revisional authority is free to dispose of the revision petition afresh and arrive at its own conclusions on the questions of fact untrammelled by any of the expressions of opinion contained in the judgment of the learned single Judge with respect to the evidence adduced in the case. With this clarification, we confirm the judgment of the learned single Judge in so far as it has quashed Ext. P11 and directed a fresh disposal of the revision petition by the Government of India in accordance with law. 11. The only other question that remains is, whether the learned single Judge was right in setting aside the order Ext. P7 in so far as it has imposed on the writ petitioner a penalty of Rs. 2,000/- under Rule 151(c) of the Rules. Admittedly, the petitioner removed the 570 bags of tobacco from his bonded warehouse in Cochin only on the strength of permits issued to it by the authorities order Rules. It cannot, therefore, be said that there was any removal of goods from the war ..... X X X X Extracts X X X X X X X X Extracts X X X X
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