TMI Blog1991 (11) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... ber from the factory belonging to the assessee, the officers of the Headquarters Preventive in the Collectorate of Central Excise, Cochin intercepted tempo van KRF 7835 containing excisable goods at about 3.00 a.m. on 14-10-1981, found it to contain 63 rolls of tread rubber without the cover of any invoice, gate pass, delivery challan or any valid documents and, therefore, they seized the same. Thereafter, they searched the building from which the goods had been brought out and recovered another 56 rolls of tread rubber. The 119 rolls were found to bear the marks "Super Tread" and "Tread". The tempo van was also seized. The driver of the tempo van who is an employee of the assessee stated that the tread rubber under seizure was transported by him from the factory to the assessee and he was not given any documents when the goods were so removed. He also stated that he was directed to go to the godown of the assessee after 12 midnight and arranged for delivery of part of the quantity to one M/s. Metal Rubbers. It was while he was carrying the confiscated goods, the tempo van was intercepted. One of the partners of M/s. Metal Rubber Agencies who was in the van also substantially confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f tread rubber, at the rate of 3 kilograms sulphur for manufacture of 101 kgs. of tread rubber can be manufactured. In that case it was held that the said quantity viz. 2,18.833. kgs. of tread rubber was removed illicitly during the year 1981-82. The quantity was arrived at only from the shortfall of the sulphur. The assessee had explanation that the quantity of sulphur had damaged in rain and therefore, not used. The contention of the assessee was that under Rule 173E, the normal quantum of production has to be determined with reference to various factors and some of those factors were available with the department, but the same has not been adverted to or considered. If those factors have been adverted to it was the contention of the assessee that the quantum of production could not be what the Collector determined and the Appellate Tribunal confirmed. The Tribunal proceeds on the basis that Rule 173E refers the power of the empowered officer, but the same will not fetter the right of the Collector to make determination of his own in an acceptable manner. Under Rule 173E any officer duly empowered by the Collector will have to fix the quantum of normal production having regard to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stablished, the Court may consider whether the conclusion in question is not-perverse and should not, therefore, be set aside." Further, in Omar Salay Mohamed Sait v. Commissioner of Income-Tax, Madras [(1959) 37 ITR 151] the Supreme Court held that the conclusion reached by the Tribunal should not be coloured by any irrelevant consideration or on improper rejection of material or relevant evidence. The Supreme Court observed : "We have set out the facts in minute detail as we are setting aside the order of the Appellate Tribunal and remanding the matter back to it in order to reconsider the same. The limits of our jurisdiction in regard to the findings of fact reached by courts of fact have been laid down by us in several decisions of this Court. In Dhirajlal Girdharilal v. Commissioner of Income-tax, [(1954) 26 ITR 736] we expressed the opinion that when a Court of fact arrives at its decision by considering material which is irrelevant to the enquiry, or acts on material partly relevant and partly irrelevant, where it is impossible to say to what extent the mind of the court was affected by the irrelevant material used by it in arriving at its decision, a question of law a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... jurisdiction over the Tribunal and that it acts purely in an advisory capacity. If the Tribunal after considering the evidence produced before it on a question of fact records its finding not supported by any evidence, was perverse or patently unreasonable." What is unreasonable is a matter to be judged in each individual case. As observed in Davis Contractors Ltd. v. Fareham U.D.C., (1956) 2 All. E.R. 145, at 160, "the spokesman of the fair and reasonable man, who represents after all no more than the anthropomorphi conception of justice, is, and must be the court itself...." The test of reasonableness has been laid down in the frequently cited passage though, as observed by Prof. Wade is most commonly cited by its nickname Wednesbury's case. Prof. Wade stated in his book Administrative Law, 6th Edition at page 407 that : "Unreasonableness has thus become a generalised rubric covering not only sheer absurdity or caprice, but merging into illegitimate motives and purposes, a wide category of errors commonly described as 'irrelevant considerations', and mistakes and misunderstandings which can be classed as self-misdirection, or ad dressing oneself to the wrong question....." ' ..... X X X X Extracts X X X X X X X X Extracts X X X X
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