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TMI Blog1966 (1) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... t and reduced to ashes while the remainder was badly damaged, and rendered unfit for use. It is not in dispute that the Local Central Excise officer reached the spot when the fire was still raging though according to the petitioners he arrived on information sent by the petitioners but according to the opposite parties he reached there on information about the fire being conveyed to him by a Sepoy. The most important allegations in the affidavit filed in support of this petition are to be found in paragraphs 10, 11, 12, 13 and 14. They are reproduced below :- That the applicant applied for permission to destroy what"10. remained as the result of the fire on the site of the warehouse mentioned in paragraph 4. This application was made under the provisions of Excise Rule 149 and the applicant prayed for exemption from excise duty. An extract of the application is filed as Annexure 30 of this affidavit. 11. That the Assistant Collector, Central Excise, Farrukhabad gave permission to the applicant to destroy the remanents of the warehouse aforesaid. The applicant was informed of this permission by a letter dated 10-9-58. A true copy of the letter is filed as annexure No. 4 to t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . I. No. 623/1/58-59, dated 20-12-1958. Annexure 3 to the affidavit is not an extract from the applicant dated 1-7-1958 referred to above. Similarly annexure 4 to the affidavit is not a copy letter according permission for destruction of burnt tobacco of the petitioners. True copies are filed as Annexure A and B with this counter-affidavit". 3.It is, therefore, a matter of admission that the local Central Excise officer was present when the fire was raging and that tobacco rendered unfit for human use was disposed of in the presence of the Central Excise Inspector in pursuance of the permission dated 11-9-1958 granted by the Deputy Superintendent, Central Excise Incharge M. O. R., Farrukhabad vide Annexure B to the counter affidavit. Annexure A to the counter-Affidavit shows that the petitioners wrote to the Superintendent, Central Excise, Farrukhabad on the 1st of July, 1958 informing him about the fire and requesting him for permission to destroy the burnt tobacco which was unfit for human use. On the 20th June, 1960 the Collector of Central Excise, passed an order demanding Rs. 51,475.62 np. as excise duty on the entire stock of tobacco stored in the ware-house, that is to say ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The refusal to exercise the discretion in favour of the licensee must be based on facts justifying the refusal. It is also alleged in the affidavit filed in support of this petition that the Central Excise authorities never went into the question whether the fire was accidental or not. It is alleged further that the petitioners were not given an opportunity to be heard and to substantiate the allegation that the fire was accidental, although it is admitted that the petitioner no. 2 was causally asked how the fire broke out. Paragraph 13 of the counter affidavit reads as follows :- "13. In regard to paragraph 16 of the affidavit, it is denied that inquiries to know the cause of fire in the petitioner's warehouse were now made. Detailed enquiries were made which indicated that the fire was not due to an accident which could not be avoided. Remission of duty on tobacco destroyed by fire in a private bonded Ware-house entirely rests on the discretion of the Collector, which was properly exercised. In the course of the inquiries the petitioner Shri Jawahar Lal was also examined and it is not correct to say that no opportunity was given to him to lay all his evidence to prove tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... counsel for the Opposite parties have invited my attention to Annexures to the affidavit filed in support of this petition and has argued that this document shows that the petitioners were reluctant to agree to the destruction of the burnt tobacco. The document indeed contains such an allegation. No importance however can be attached to it in view of the fact that within a week of the fire they wrote to the Superintendent, Central Excise and sought permission for the disposal of the tobacco which has been rendered unfit for human consumption vide Annexure 'A' to the counter affidavit. 9.The proviso to Rule 147 requires that notice of the loss or destruction of goods in a private ware-house should be given to the Officer-In-charge of the ware-house within 48 hours after the discovery of the loss of destruction. When the local Central Excise officer was present at the time when the fire was raging no formal notice was in any view necessary. I am, therefore, of the view that the petitioners were entitled to the benefit of Rules 147 and 149 of the Excise Manual and no duty could have been legally demanded from them. The notice issued to the petitioners demanding payment of duty was un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not in point because the relief sought in the petition was for a writ of mandamus and the same rules of law do not apply to petitions for certiorari vide State of U. P. v. Mohammad Nooh. reported in 1958 S. C. page 86 in Civil Misc. Writ No. 3483 of 1958 (M/s. Permanand Tek Chand v. Collector Customs, Allahabad) Jagdish Sahai J. undoubtedly held that even though the alternative remedy was available only on condition of payment of certain sum of money, it would nevertheless bar a writ petition. In this petition, also the relief sought were for certiorari and mandamus. In any event I am bound to follow the law clearly and categorically laid by their lordships of the Supreme Court in Himant Lal Hari Lal Mehta v. State of Madhya Pradesh (AIR 1954 S. C. 403). 12.Coming now to the Andhra Pradesh High Court decision in Gopi Kishan Agarwal v. Collector Customs, Visakhapatnam, reported in A.I.R. 1961, Andhra Pradesh page 170 it would appear to support the contention of the learned judges went to the length of refusing to follow the law laid down by the Supreme Court in Himant Lal Hari Lal Mehta v. State of Madhya Pradesh (A.I.R. 1954 S. C. 403) on the ground that the observations made in t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned judges of the Andhra Pradesh quoted the following observations from the judgment of the Supreme Court in Chaturbhai M. Patel v. Union of India (1960 S.C. Page 424) and held that they applied with full vigour to the case before them. :- "Lastly it was contended that the two main orders passed were ultra vires because in the first case the petitioner was asked to deposit could be heard and reliance was placed on 1954 S.C. J. 445, (A.I.R. 1954 S.C. 403). But it is difficult to see how that case applied. There was no illegal imposition on the petitioner nor is it shown that anything was threatened to be realised without the authority of law." 17.I fail to see how these observations applied to the case before the Division Bench. These observations were made by the Supreme Court to meet the argument advanced before it to the effect that the order requiring the petitioner to deposit the penalty before his appeal or division could be heard was ultra vires. The decision in Himant Lal Hari Lal v. State of Madhya Pradesh (A.I.R. 1954 S.C. 403) supra was cited in support of the argument and the Supreme Court said that decision had no application to a case where the demand of penalty was ..... X X X X Extracts X X X X X X X X Extracts X X X X
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