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TMI Blog1969 (3) TMI 32X X X X Extracts X X X X X X X X Extracts X X X X ..... ese irregularities. The excess stock was seized. Later, on 8th of February, 1965 a notice was issued to the petitioner to show cause to why excise duty should not be levied upon 350 bags of tobacco which were found short and why the stock found in excess should not be confiscated. The petitioner submitted a written explanation on 13th February, 1965 in which he admitted the shortage to the extent of 179 bags, but denied the excess of 171 bags. The Collector Central Excise after considering the material on the record demanded from the petitioner excise duty of Rs. 40,294.36 on 350 bags of tobacco and ordered the confiscation of 171 bags of tobacco which were found to have been brought into the warehouse in an unauthorised manner. He also, imposed a penalty of Rs. 2,000/-. It was further ordered that the confiscated stock of 171 bags could be released to the petitioner on payment of a further fine of Rs. 5,000/- the Petitioner appealed to the Central Board of Excise and Customs, New Delhi, but his appeal was dismissed on April 3, 1967. The petitioner then preferred a revision petition to the Union of India which was also rejected on November 30, 1967. The petitioner has now moved thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... admission : "I admit the irregularity that out of 171 bags, some bags have double marks and some have marks of those bags which ought to have been cleared according to weighment register." 7.Then we find that a personal hearing was granted by the Collector, Central Excise on 22nd October, 1965 and at the time of the hearing it was admitted on behalf of the petitioner that there was a shortage of 179 bags of tobacco for which the petitioner offered to pay excise duty. 8.As regards the excess of 171 bags of tobacco, the Collector found that on some of the bags there were no marks at all and on some there were duplicate marks and on others marks and numbers were found of such bags which had already been cleared from the warehouse under a clearance application of the petitioner. The Collector specifically asked the petitioner's counsel if he could co-relate the excess stock to any particular T.P. 2 permit under which the tobacco was brought into the warehouse. The petitioner's counsel was unable to do so. An explanation was, however, offered on behalf of the petitioner that because of long passage of time marks and numbers on the bags had disappeared and when asked by the Collector ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d his failure to co-relate 171 bags of tobacco found to be in excess with any of permits granted to him for bringing in tobacco from outside is, in our opinion, enough material upon which the action taken against him can be justified. 11.As regards the actual quantity of tobacco removed by the petitioner without payment of the excise duty and the quantity of tobacco brought in by him to make good the deficiency, the same is a question of fact which has been gone into by the Collector in the first instance and thereafter by the appellate authority. The petitioner had sufficient opportunity to prove his allegations concerning the merits of the case and he having failed to prove the same cannot be allowed to reagitate the matter before us in a petition under Article 226 of the Constitution. The irregularities were admittedly there and the onus lay upon the Petitioner to explain those irregularities. His explanation having been rejected, it was open to the excise authorities to draw an adverse inference against him. 12 There is another. rather minor point which was faintly urged on behalf of the petitioner. It was submitted that the excise authorities should have established by chemi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fender." On this analogy it can be said that an Excise Officer is not a Police Officer because he is not primarily concerned with the detection and prevention of crimes but is mainly concerned with the levy and collection of excise duty and it is in that connection that he has been invested with the powers to confiscate goods and to impose fines, whenever an attempt is made to evade excise duty. 16.The later decision of the Supreme Court in Raja Ram Jaiswal v. State of Bihar (AIR 1964 SC 328) relied upon by the learned counsel for the petitioner is early distinguishable. In that case the Supreme Court held that an excise officer by virtue of the special powers conferred upon him under the Bihar and Orissa Act was a police officer because for the purpose of Section 156 of the Code of Criminal procedure he was deemed to be an officer Incharge of a police station and was empowered to investigate without the order of Magistrate any offence punishable under the Excise Act. A confessional statement made to such an officer was held to be barred in the trial of the person concerned by reason of Section 25 of the Indian Evidence Act. As we shall presently show although somewhat similar pow ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cer to investigate like a police officer did not come into play at all. There was no trial of the petitioner by a Magistrate as the action taken against him was merely departmental. 20.For the these reasons the decision in Rajendra Kumar v. State (AIR 1966 Allahabad 42) on which also the petitioner relies is clearly distinguishable. 21.Mr. H.N. Seth, learned Counsel for the respondents is also right in our opinion, in this contention that section 25 of the Indian Evidence Act applies only to judicial proceeding before a court. That is plain from section 1 of the Indian Evidence Act itself which provides : "It shall extend to the whole of India….........and applies to all judicial proceeding in or before any court including courts-Martial…..but not to affidavits presented to any court or officer, not to proceedings before an arbitrator." 22.In State of Mysore and Others v. Shivabasappa Shivappa Makapur (AIR 1963 SC 375) the Supreme Court held that "Domestic Tribunals exercising quasi judicial functions are not courts and therefore they are not bound to follow the procedure prescribed for trial of actions in courts nor are they bound by strict rules of evidence." In the instant c ..... 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