TMI Blog1987 (7) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... ing No. 1095, as the original licensed premises was being repaired and white-washed due to the Bengali festival 'Aukshoy Tritiya' when all the dealers generally celebrate their 'Nutan Khata' ceremony after cleaning and white-washing the shops. 6. The Central Excise Officers seized 70 bags of duty-paid tobacco of the petitioner on the allegation that the same was stored in a premises other than the licensed premises in violation of the Central Excise Rules, 1944. 7. In his statement, which was taken by the Central Excise Officers on the spot, the petitioner explained that the seized tobacco was originally stored in the licensed premises but was temporarily removed to the adjacent room for a couple of days since the licensed premises was being repaired and white-washed on account of 'Nutan Khata' ceremony. 8. The petitioner also explained in his statement under what circumstances he was unable to maintain his account upto date. 9. Thereafter, the respondent No. 3, the Assistant Collector of Central Excise issued a show cause notice to the petitioner alleging that the petitioner had contravened the provisions of Rules 32(1), 39 and 40 of the Central Excise Rules, 1944 inasmuch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Adjudicating Officer, the Appellate authority and the Revisional authority respectively and for certain other relief's. 18. The respondents in their affidavit-in-opposition have supported the actions taken by the Central Excise Department against the petitioner. According to the respondents, the petitioner was rightly found guilty for contravention of Rules 32(2), 39 and 40 of the Central Excise Rules, 1944 since he failed to produce any evidence, documentary or otherwise, that the seized tobacco which was allegedly shifted illegally to an unlicensed premises, was actually duty-paid tobacco. 19. As regards to the second show cause notice, it is the case of the respondents in their affidavit-in-opposition that since the petitioner failed to maintain upto date accounts under the Central Excise Rules, he was rightly found guilty and a penalty of Rs. 25/- was rightly imposed on him. 20. Now, since the petitioner was found guilty for contravention of Rules 32(2), 39 and 40 of the Central Excise Rules, it may be convenient at the outset to refer to the said Rules, which are as hereunder :- 32(2) - If any person - (a) carries or transports such tobacco without a valid perm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ontravention of this rule, shall, in respect of every such offence, be liable to pay the duty leviable on such goods, and to a penalty which may extend to two thousand rupees, and the goods shall also be liable to confiscation. 21. So far Rule 32(2) is concerned, the petitioner as per the adjudication order (Annexure 'E') was found guilty for contravention thereof since he had removed the tobacco from his licensed premises to another place without any valid permission for such transfer. In his explanation the petitioner stated that he was not aware that any such permission was actually necessary. However, since ignorance of law is no excuse the petitioner, in my view, was rightly found guilty for contravention of Rule 32(2). As a matter of fact, Mr. Banerjee, the learned Advocate representing the petitioner, conceded in his fairness that the petitioner had actually contravened Rule 32(2) by shifting the tobacco from his licensed premises to another place without proper permission. 22. So far Rule 39 is concerned, there can also be no doubt that the petitioner contravened the said rule by storing tobacco in an unlicensed premises. This was also conceded by Mr. Banerjee, the lear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... verification the tobacco was not in existence. It cannot, therefore, be stated that the tobacco which was transported under the T.P. 1 in question was the same which was seized. Shri Dey owner of the tobacco was asked to produce the seized tobacco which was taken release provisionally but he could not do so". 29. From the aforesaid observations it is clear that shifting of the tobacco from the licensed to the un-licensed premises as alleged by the petitioner, was found correct on verification. However, the only difficulty which appears to have been faced by the Adjudicating officer, was that the seized tobacco could not be found for verification in order to come to the conclusion that the said tobacco was the same as was transported by the petitioner under the T.P. 1 in question. From this, it appears, that had the seized tobacco been found to be the same as was initially stored in the licensed premises of the petitioner, the petitioner would have been exonerated from payment of further excise duty on the seized tobacco, since the tobacco initially stored in the unlicensed premises was duty-paid tobacco. 30. It may be recalled here that after the seizure the tobacco was initia ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Central Excise authorities to prove by examining the samples that the tobacco seized was not the same as was actually shifted from the licensed premises but for unknown reasons this opportunity was not availed of. 35. Incidentally, the seizure was made on 29-4-1974 and the tobacco was released to the petitioner on 15-7-1974 on his executing a bond and furnishing cash security. The adjudication proceedings were concluded in 1976. It is quite likely that had the tobacco been retained by the petitioner for such a long time, it might have perished. Under such circumstances, if the petitioner actually disposed of the tobacco, he cannot be blamed. As a matter of fact, the Central Excise authorities at the time of the release of the tobacco obtained sufficient amount of cash security to cover all such eventualities and as a matter of fact, a redemption fine of Rs. 1099.06 p. as already stated, was realised out of the said security deposit. 36. However, in view of the facts and circumstances of the case, I do not think that the respondents could recover from the security deposit a sum of Rs. 6974.70 p. towards excise duty since ex-facie the seized tobacco represented the duty-pa ..... X X X X Extracts X X X X X X X X Extracts X X X X
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