TMI Blog1959 (8) TMI 1X X X X Extracts X X X X X X X X Extracts X X X X ..... all, contained in 128 bags. These bags of tobacco were despatched by Khan Mohammad of Laharpur in the district of Sitapur. The consigner described the contents of the bags as "crushed leaf (dana)". The bags were stocked in the godown of the petitioner. On August 9, 1955, Shri C. L. Sawhney, the then Superintendent of Central Excise at Moradabad, visited the godown and detained 16 bags weighing 18 maunds on the ground that tobacco stems had been substituted for tobacco leaves. He opened 3 or 4 bags only. He directed the clerk incharge of the godown not to remove the bags until they had been properly checked. The petitioner's case is that the bags were in the same condition in which they had been received from Laharpur. 3. Thereafter the Superintendent served a show cause notice. Annexure "A" to the Counter-Affidavit, wherein it was alleged that the petitioner's firm had contravened Rules 151(c) and 160 of the Central Excise Rules, 1944, inasmuch as the contents of 18 maunds of crushed leaves (dana) had been substituted by stems. The petitioner claims that the show cause notice is vague but a perusal thereof will clearly show that all the material information was entered therein th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made an attempt to support the propriety of the order of the Deputy Collector respondent No 2. In addition, a preliminary objection was raised that the present writ was not maintainable in view of the fact that the petitioner had already moved the Central Government under Section 36 of the Central Excises and Salt Act, 1944. 7.In the present case, the property of the petitioner firm has been confiscated and if such confiscation is unlawful, there would be a restriction in the exercise of the fundamental right given to the citizens of India under Article 19 of the Constitution to hold property and to carry on any trade or business. Consequently, High Courts can take cognizance of the present petition even though all the remedies available to the petitioner have not been availed of. Further, while exercising the power of revision under Section 36, it is doubtful whether the Central Government would hear the petitioner on the facts of the case. Revisions are invariably disposed of on questions of law and a finding of fact unless perverse is not interfered with. Consequently, a right to move a decision before the Central Government cannot be placed in the same category as a right of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be found that there is virtually no discussion of law and facts and the observations made are of a general nature. They can be considered to be vague and arbitrary. It would not be possible to decide a question of law and facts unless one applies his mind to the provisions of the Act and the rules framed thereunder, and also to the material on the basis of which the Superintendent imposed the penalty and passed the order. In other words, while dismissing the appeal, respondent No. 2 gave no reasonable opportunity to the petitioner to challenge the order of the Superintendent, nor did Respondent No. 2 apply his mind to the various pleas raised in the grounds of appeal. The order is defective and High Courts can, in exercise of jurisdiction under Article 226, rectify the error which is apparent on the face of the record. The order of respondent No. 2 is one which must be set aside and the appeal sent back for a fresh hearing. 11It is with regard to. the exercise of jurisdiction by the Superintendent that many important questions were raised by the petitioner. One of these questions is that the present offence was detected by the same officer and a prosecutor could not be a judge o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cted and in fact the official machinery was put into motion at the instance of the Superintendent, he should be deemed to be one who is interested in the prosecution and consequently not qualified to himself hold the enquiry. The complication has come into existence on account of both administrative and quasi-judicial powers being conferred on the same class of officers. In taxation matters both the powers have to be conferred on the same officer. For example, an Income-tax Officer cannot only take steps for detecting an evasion of payment of income-tax but he can also assess income-tax and impose a penalty wherever necessary. Such officers will always be interested in any prosecution launched by persons belonging to their department. In these circumstances, it will not be proper to take such a strict view as can often be taken with regard to regular courts of law. In fact, in the case of Magistrate holding both administrative and judicial posts certain latitude has to be granted. What is necessary is that the Presiding Officer should not be moved by any extraneous matter and if he is likely to he moved by anything which he had heard or had come to know outside the enquiry, he woul ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after requisite enquiries were made and not immediatly after 9-8-1955. The petitioner filed a rejoinder affidavit but did not challenge these assertions. They can therefore, be accepted as correct. 17.The above will make it clear that the Superintendent had merely set the ball rolling and the main investigation was conducted by the Inspector Shri R. N. Jauhari. Mere detection of the bags with stems of tobacco could not justify the imposition of penalty. The petitioner's case is that the entire stock received by him contained of tobacco and not leaves. Consequently, whatever the Superintendent observed in the godown has been and is being admitted by the petitioner, and there is nothing on which the Superintendent would have been cross-examined during the enquiry and may be cross-examined by the appellate authority. In this connection it may be observed that the charge of substitution would not have been established unless an enquiry was made as to the contents of the bags at the time of their despatch from Laharpur and also at the time of their receipt by the petitioner. It would also have been necessary to ascertain the nature of labels affixed on the bags and if the petitioner h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tendent, and such assertions are not challenged in the rejoining affidavit, they can be accepted as correct. In these circumstances the present quasi-judicial enquiry conducted by the Superintendent of Central Excise and Salt cannot be said to be beyond his jurisdiction on the ground that on account of the detection of the crime by him he was disqualified to hold such an enquiry. 19.The order of the Superintendent is challenged on many other grounds, namely, the showcause notice is vague inasmuch as it does not give the particulars of charges levelled against the petitioner-firm, there was no proper evidence before the Superintendent which could justify an inference in favour of the substitution of the contents of the bags and the report of the Inspector which was used against the petitioner could not be admitted in evidence unless it was made available to the petitioner and he was given an opportunity to give his explanation to meet his case on the allegations made therein. It is true that Shri R. C. Mehra did not take these aspects of the case into consideration but there is no reason why his successor will not give the petitioner a proper hearing and not apply his mind to the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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