TMI Blog1972 (10) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... . Ramamurthy, Advocates for the petitioners, and of Mr. P. Jagaraman for the Central Government senior standing counsel, on behalf of the respondent herein, the court made the following order :- 2.The petitioner is admittedly a bona fide purchaser for value of 600 gross of safety matches. It is not in dispute that the purchased the goods from Jothiammal Match Industries, P-L.4 No. 29/67 Kanmasoorangudi within the district of Ramanathapuram. It is not in dispute that at the time when the goods were removed from the factory of Jothiammal Match Industries, which I shall refer to as 'Jothi' the goods suffered the necessary excise duty and the correlative gate pass which is prescribed under the rule framed under the Central Excise Act was also ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... der was passed by the Assistant Collector of Central Excise Sivakasi. After giving an opportunity to the petitioner and another, the respondent came to the conclusion that as there was a mixture of labels of Jothi factory and as such mixture is not warranted under the rules, the goods in Jothi factory or wherever they might have been transported should be deemed to be offending goods within the meaning of Rules 71(3) and 52A(5) of the Central Excise Rules. Admittedly no steps were taken to check the entire consignment and segregate the so called offending goods, but the blame is transmitted to the petitioner that he did not segregate it inspite of opportunity having been given to him. The petitioner's case throughout was that he was a bona ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . It appears that this caused inconvenience and there was also concurrent urge on the part of the Government to repose greater trust and confidence in the trade and industry and with a view to lessen the administrative burden of the Central Excise Department, the 'Self Removal Procedure' was introduced as a matter of fact there was such a change is noted in the judgment of this Court in WP No. 3427 of 1971. Obviously therefore, the gate pass was made out under the self-removal which means that Jothi filled up the gate pass and sent it with the goods removed from her factory with the description contained in the gate pass which suffered an excise duty that all the 620 gross matches did suffer such an excise duty is not dispute. It is also no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... manufacturer, namely Jothi. The petitioner has nothing to do with the entries in that gate pass. That this is the situation is not denied. In those circumstances, can the petitioner be penalized as if he has committed an offence under Rule 52A(5)(c)? I am of the view that he cannot. Section 52A(5)(c) refers to an overt act on the part of the delinquent manufacturer who deliberately given false particulars in gate pass. As long as the purchaser of excisable goods from a factory is not concerned with the gate pass or the entries made therein this quasi penal provision cannot be attracted so as to punish the petitioner. 5.The next rule referred is rule 71, clause (3) Rule 71 in general refers to the method of packing and rule 71(3) lays down ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise, Central Revenue Buildings, Madurai Respondent. 8.There the facts are entirely different. The court found as fact that the purchaser and the manufacturer acted in union and created bogus gate passes and clandestinely effected such removal from the factory and the goods escaped levy of excise duty. It is elementary that excise duty has to be paid at the time of the removal of the goods from the place of manufacture. There was a deliberate escape of such payment by a concerted action on the part of the manufacturer and the purchaser in that case. It was in those circumstances, the learned Chief Justice, speaking for the Bench said that wherever such goods are traced or in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ions. No one again can be punished for a second time for the same offence when another person has been tackled and one punished for the offence. The petitioner is the bona fide owner in possession of the goods in question not knowing the taint if any attached to those goods. Having regard to the rules which are to be considered and applied in this case, I am of the view that the decision of Writ Petition 3427 of 1971 is not applicable as I am of the firm opinion that the petitioner has not committed any offence and the offence also has not been fully brought home and he is being tackled once over on the same set of facts. There is an error apparent in the order which has to be removed. 9.The petition is allowed and the order is quashed in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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