TMI Blog1979 (7) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... ock register, that a man running away from the factory with 15 kgs. of pottassium chlorate was stopped and the material was recovered from the man who is alleged to be an employee of the petitioner, that the raiding party went into the tiled house situated in front of the factory and found a man hiding two account books alleged to have been maintained by the petitioner and they were seized and based on these materials, a show cause notice dated 11-2-1974, was issued by the Assistant Collector of Central Excise, Coimbatore II Division to the petitioner. The petitioner submitted his explanation dated 21-2-1974. This was followed by an enquiry by the Collector of Central Excise. In the enquiry, some witnesses were examined on the side of the department. The Collector of Central Excise passed an order holding that the petitioner had violated rules 9(1) and 55-A of the Central Excise Rules, 1944, since there was excess of stock of 34 gross boxes of matches and that as per the two account books seized from the man in the tiled house situate in front of the factory, it was found that the petitioner had sold 12,145 gross boxes of matches without paying the excess duty thereon to the extent ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n petition on untenable grounds. The writ petition has, therefore, been filed for quashing the orders. 4. In the affidavit of the Assistant Collector of Central Excise, Legal, Madras, filed in this writ petition, it has been contended that a personal hearing was given to the petitioner and his Counsel cross-examined the witnesses who turned up at the personal hearing. Taking into consideration the statements recorded at the time of seizure and the evidence recorded at the enquiry, the Collector by his order dated 29-8-1974, imposed a penalty of Rs. 2,000, and the duty on 12,145 gross boxes of matches removed from the factory without payment of duty. There was no error in the order of the Collector. Summons were issued to all the witnesses referred to in paragraph 5 of the affidavit, for attending the personal hearing, but they did not turn up for the enquiry. If the petitioner was really interested, he could have arranged to produce them as his own witnesses. The department examined the account books and found them to relate to the petitioner. The Collector relied upon the admissions and the statements and passed the order. The petitioner did not ask for any personal hearing befo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tioner contended that he was not bound by the statement of his brother that the account books related to the petitioner and that the petitioner insisted that Sethuraman and Sundarakumar and others should be made available for cross-examination and he himself could have produced them as defence witnesses, having regard to the fact that summons taken out by the department could not be served on those persons for want of their latest addresses. Thus the Collector has relied upon the statements of Sethuraman, the statements said to have been made by Sundarakumar, the brother of the petitioner both at the time of the seizure and later in the voluntary statement on 5-9-1973, and the rubber stamp found on the account books and held that the accounts related to the petitioner. In the present case, a penalty of Rs. 2,000 has been levied in addition to the demand for the excise duty for Rs. 45,543.07 by the impugned order of the Collector which has been confirmed by the Central Board of Excise and the Government of India in the appeal and revision respectively. 5. Govindan Nair, C.J., speaking for the Bench in which I too was a member, in Union of India v. Marcel Nevens, Madras, 91 LW 164 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... efore, liable to personal penalty. In view, however, of the decision in Gianchand v. Union of India, 1961 - Suppl. I.S.C.R. 364 it is now beyond any controversy that S. 178A would not apply in the present cases. The Collector, therefore, could not invoke any assistance from that section and the burden of proof that the gold was smuggled gold lay on the Customs. Obviously, the only evidence before the Collector was as regards the raid on Gianchand's house, the seizure of the gold and the confession of Kewal Krishnan. As held in the judgment in C.A. 195 of 1972, delivered just now, the evidence as to raid and seizure cannot by itself establish that the gold was smuggled gold, nor does it establish that either Gianchand or Nirmal Devi or Raghunath as concerned in its importation……… . In the enquiry against them, neither Kewal Krishnan nor any of the other two was examined as a witness. It also does not appear that a copy of it was supplied to Gianchand or Raghunath or Nirmal Devi, nor were they told that it would be used against them. It is manifest, therefore, that no opportunity was given to them to controvert the veracity of that statement. As an admission, it would bind only the m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rial documents in order to have proper opportunity to show cause. It was next contended that the petitioner appellant did not have reasonable opportunity because he was denied the opportunity to cross-examine the makers of the statement of the trade opinions. In support of this contention, reliance was placed on the allegations made in paragraph 33 of the petition as also in the statements as appearing from the order of adjudication of the Collector in which he has referred to the said opinion. The right to cross-examine is not necessarily a part of reasonable opportunity. Whether in a particular case, a particular party should have the right to cross-examine or not depends upon the facts and circumstances of the case and it very largely depends upon the adjudicating authority who is not guided by the rules of evidence as such. He must, however, afford such opportunity as would ensure to the party concerned proper opportunity to defend himself. It is well known that in these matters the Revenue or Excise authorities are entitled to make their independent enquiries and to rely upon such enquiries provided the result of such enquiries are communicated to the person concerned agains ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... see how far the charge has been proved satisfactory against the petitioner. 9. The learned Counsel for the petitioner relied upon the decision of the Supreme Court in Travancore Rayons v. Union of India, AIR 1971 S.C. 862, in support of his contention that the impugned order of the Government of India does not contain reasons and, therefore, it is not a speaking order and that it could not be sustained and has to be set aside. That impugned order reads thus - "The Government of India have considered the facts of the case and the points raised by the appellant in his revision application. The Government fully endorse the Board's findings that the private account books referred to belonged to the applicant's factory and he had disposed of 12145 gross of match boxes as revealed from these books without payment of duty, The revision application is without any merits and is hereby rejected." The Supreme Court has observed in the decision now referred to thus - "The order does not disclose the name or designation of the authority of the Government of India who considered 'the points made by the applicants' and it is impossible to say whether the officer was familiar with the sub ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on such abuse, as the order, if it discloses extraneous or irrelevant considerations, will be subject to judicial scrutiny and correction. A speaking order will at its best be a reasonable and at its worst be at least a plausible one. The public should not be deprived of this only safeguard....... In a later judgment of Bhagat Raja v. Union of India, AIR 1974 S.C. 1606, the Constitution Bench of this court in effect overruled the judgment of the majority in Madhya Pradesh Industries Ltd.'s case. The court held that the decisions of Tribunals in India are subject to the supervisory powers of the High Court under Article 227 of the Constitution and of appellate powers of this court under Article 136. The High Court and this court would be placed under a great disadvantage if no reasons are given and the revision is dismissed by the use of the single word 'rejected' or 'dismissed'. The Court in that case held that the order of the Central Government in appeal, did not set out any reasons of its own and on that account set aside that order. In our view, the majority judgment of this court in Madhya Pradesh Industries Ltd. case has been over-ruled by this court in Bhagat Raja's case, AI ..... X X X X Extracts X X X X X X X X Extracts X X X X
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