|
Advanced Search Options
Central Excise - Case Laws
Showing 81261 to 81280 of 81330 Records
-
1963 (4) TMI 1
Issues:
1. Appeal against acquittal of two respondents convicted under various sections of the Indian Penal Code.
2. Allegations of theft, assault, and obstruction of a Central Excise Inspector during a visit to a godown.
3. Dispute regarding the legality of the inspection conducted by the Inspector under the Central Excise and Salt Act, 1944.
4. Evaluation of evidence presented by prosecution witnesses against the defense's claim of false implication.
5. Justification of the conviction for theft of a Parker fountain-pen under Section 379 of the Indian Penal Code.
Detailed Analysis:
1. The High Court of Patna heard an appeal by the State of Bihar against the acquittal of two respondents previously convicted under sections 379, 332, 342, and 353 of the Indian Penal Code. The respondents were alleged to have obstructed a Central Excise Inspector during a visit to a godown, leading to theft, assault, and refusal to cooperate with the inspection.
2. The prosecution's case, supported by the Inspector and witnesses, detailed the events at the godown where the respondents, along with others, obstructed the Inspector's attempt to verify the premises. The defense claimed false implication due to animosity towards Central Excise authorities, which was not substantiated. The trial court and Additional Sessions Judge evaluated this conflicting evidence.
3. The crucial issue revolved around the legality of the inspection conducted by the Inspector under the Central Excise and Salt Act, 1944. The acquittal by the Additional Sessions Judge was based on the alleged illegality of the search, citing a Supreme Court decision. However, the High Court disagreed, stating that the Inspector's actions were within his jurisdiction and did not constitute a search but a routine inspection, thus not requiring compliance with specific search provisions.
4. The High Court found that the acquittal by the Additional Sessions Judge was erroneous. The conviction for theft of a Parker fountain-pen under Section 379 was upheld, emphasizing that the assault on the Inspector was unjustifiable regardless of the legality of the inspection. The court concluded that the prosecution's evidence was credible, and the respondents were wrongly acquitted.
5. Consequently, the High Court set aside the order of the Additional Sessions Judge, reinstated the trial court's decision, and allowed the appeal by the State of Bihar. The judgment highlighted the importance of distinguishing between routine inspections and searches, emphasizing the Inspector's authority to conduct such inspections within his duties without the need for specific search procedures.
-
1963 (3) TMI 58
Issues Involved:
1. Legality of the demand for excise duty on stoneware jars.
2. Interpretation of the term "chinaware" in the context of the Finance Bill, 1961.
3. Applicability of the Provisional Collection of Taxes Act, 1931.
4. Retrospective effect of the Finance Act, 1961.
Issue-wise Detailed Analysis:
1. Legality of the demand for excise duty on stoneware jars:
The petitioner challenged the demand made by the third respondent under Ext. P-1, dated 23rd May 1961, for a sum of Rs. 3669.94 towards excise duty on stoneware jars removed from the factory from 1-3-1961 to 30-4-1961. The demand was based on the Finance Bill, 1961, which sought to levy excise duty on chinaware and porcelainware. The petitioner contended that their stoneware glazed jars did not fall under the category of chinaware or porcelainware.
2. Interpretation of the term "chinaware" in the context of the Finance Bill, 1961:
The Finance Bill, 1961, introduced excise duty on chinaware and porcelainware. The petitioner argued that their stoneware glazed jars were distinct from chinaware and porcelainware, both technically and commercially. They emphasized that chinaware and porcelainware are made from china clay, whereas their jars were made from ball clay. The court noted that the term "chinaware" in the Finance Bill did not include an explanation that was later added in the Finance Act, 1961, which clarified that chinaware includes all glazed clayware but excludes terracotta. The court concluded that the term "chinaware" in the Finance Bill should be understood in its technical sense in Ceramic Science, which does not include stoneware jars.
3. Applicability of the Provisional Collection of Taxes Act, 1931:
The Finance Bill, 1961, included a declaration under the Provisional Collection of Taxes Act, 1931, which allowed certain provisions to have immediate effect. The court examined the provisions of the Provisional Collection of Taxes Act, particularly Section 4, which states that a declared provision has the force of law immediately upon the introduction of the Bill and ceases to have force when it becomes an enactment. The court noted that the declared provisions in the Finance Bill ceased to have force on 29-4-1961, when the Finance Act, 1961, was enacted.
4. Retrospective effect of the Finance Act, 1961:
The Finance Act, 1961, received presidential assent on 29th April 1961 and included an explanation that chinaware includes all glazed clayware but excludes terracotta. The court observed that this explanation was not present in the Finance Bill, 1961. The demand under Ext. P-1 was for a period before the Finance Act came into force, specifically from 1-3-1961 to 30-4-1961. The court held that the term "chinaware" in the Finance Bill should be interpreted in its technical sense, which does not include stoneware jars. Consequently, the demand for excise duty under Ext. P-1 could not be sustained for the period covered by the Finance Bill.
Conclusion:
The court concluded that the demand for excise duty on stoneware jars under Ext. P-1 could not be sustained as the term "chinaware" in the Finance Bill, 1961, did not include stoneware jars. The court quashed the demand and allowed the writ petition. The C.M.P. was dismissed, and parties were directed to bear their own costs.
-
1962 (11) TMI 52
Whether the rule can be said to be valid and the practice prevailing irregular inasmuch as in some cases security may perhaps have been demanded from the petitioner without full examina- tion as to the special features of the case?
Whether the rule cannot be sustained in so far as it vests the discretion in the highest Court of this country and can be used only in cases where for reasons like those contemplated by Order 25 r. 1 & 2 and 0.41 r. 10 an order of security is made?
Held that:- It is true that if the discretion is exercised by the Court in favour of impecunious petitioners and orders for security are not passed in their cases, no hardship will be caused to them. But it seems to us that what would be left to the discretion of the Court on this construction of the rule, is really a matter of the right of impecunious petitioners under Art. 32. That is why we think that the impugned rule in so far as it relates to the giving of security cannot be sustained.
The petition is allowed and the order passed against the petitioners on December 12, 1961, calling upon them to furnish security of ₹ 2,500/- is set aside.
-
1962 (10) TMI 55
Whether in a writ in the nature of certiorari filed under Art. 226 of the Constitution the party or parties in whose favour a tribunal or authority had made an order, which is sought to be quashed, is or are necessary party or parties?
Held that:- In the present case Phudan Manjhi and Bhagwan Rajak were parties before the Commissioner as well as before the Board of Revenue. They succeeded in the said proceedings and the orders of the said tribunal were in their favour. It would be against all principles of natural justice to make an order adverse to them behind their back; and any order so made could not be an effective one. They were, therefore, necessary parties before the High Court. The record discloses t ?at the appellant first impleaded them in his petition but struck them out at the time of the presentation of the petition. He did not file any application before the High Court for impleading them as respondents. In the circumstances, the petition filed by him was incompetent and was rightly rejected.
That order was made on July 3, 1962; and the special leave petition was- filed on July 18, 1962. Even in the special leave petition the said two parties were not impleaded. Learned counsel for the appellant suggests that this Court may at this very late stage direct them to be made parties and remand the matter to the High Court for disposal. This request is belated and cannot, therefore, be granted. In this view it is not necessary to express our opinion on the other questions raised. Appeal dismissed.
-
1962 (10) TMI 3
The judgment concerns the determination of value for levying duty under the Central Excises and Salt Act, 1944. The court ruled in favor of the petitioner, quashing the demand notice due to an arbitrary assessment. The assessing authority must make a fresh assessment in accordance with the law. No costs were awarded.
-
1962 (10) TMI 2
Issues:
1. Challenge to levy made by the First Respondent
2. Challenge to order of the Second Respondent in appeal
3. Determination of wholesale price for excise duty on Electric Batteries
Detailed Analysis:
1. The petitioner, a private limited company manufacturing Electric Batteries, challenged the levy made by the First Respondent on 16-11-1959 and the order of the Second Respondent in appeal on 14-10-1960 under Articles 226 and 227 of the Constitution of India, seeking a writ of Certiorari or any other appropriate writ to quash the same.
2. The petitioner's factory and office are located just outside the limits of Bangalore City. The company manufactures Electric Storage Batteries under trade marks "AMCO", "OAKES", and "SPEED", distributed through various channels with specific distributors for different zones in India. The wholesale prices charged to distributors were alleged to be the same.
3. The Central Excise authorities disputed the wholesale price declared by the petitioner, claiming it was lower than the prevailing market price in Bangalore. The authorities relied on prices charged by distributors like Addison & Co. Ltd. and George Oakes Ltd. in Bangalore to determine the wholesale cash price for levying excise duty, without considering overhead charges, incidental expenses, or discounts. The judgment emphasized the need to determine the value based on the prevailing wholesale cash price at the factory location.
The judgment by K.S. Hegde, J., held that the authorities did not consider all relevant factors in determining the wholesale cash price for excise duty on the Batteries. The petitioner's contention regarding non-uniform application of rules by different Collectors under Article 14 of the Constitution was dismissed. A Writ of Certiorari was issued to quash the impugned levy, allowing for a fresh assessment in accordance with law. No costs were awarded in this case.
-
1962 (10) TMI 1
Issues Involved:
1. Legality of the imposition of excise duty on the manufacture of "refined oil" from raw oil.
2. Definition and interpretation of "refined oil" and "manufacture" under the Central Excises and Salt Act, 1944.
3. Whether the intermediate product in the manufacturing process qualifies as "refined oil" as known to the market.
Detailed Analysis:
1. Legality of the Imposition of Excise Duty on the Manufacture of "Refined Oil" from Raw Oil:
The core issue in these appeals is the legality of the imposition of excise duty on the manufacture of "refined oil" from raw oil by companies producing Vanaspati. The companies contend that they only produce Vanaspati, which is liable to excise duty as a vegetable product, and at no stage do they manufacture any new product that falls under the category of "vegetable non-essential oils" as described in Item 23 of the Schedule to the Central Excises and Salt Act, 1944. The Punjab High Court had accepted this contention, leading to the withdrawal of the excise duty demands.
2. Definition and Interpretation of "Refined Oil" and "Manufacture" under the Central Excises and Salt Act, 1944:
The Union of India argued that during the manufacture of Vanaspati, the companies produce "refined oil" at an intermediate stage, which falls under the description of "vegetable non-essential oil" and is thus liable to excise duty. The process described involves refining raw oil by removing impurities through neutralisation, bleaching, and sometimes deodorisation. The key question was whether the oil, after undergoing these processes but before deodorisation, qualifies as "refined oil" as known in the market.
The court examined affidavits from experts on both sides. Mr. Krishnan, representing the appellant, asserted that the oil becomes "refined oil" after neutralisation and bleaching, even without deodorisation. Dr. Nanji, supporting the respondents, contended that "refined oil" must also undergo deodorisation to be considered as such in the market. The court found strong support for Dr. Nanji's view in the specifications by the Indian Standard Institution, which defined "refined oil" as oil that has been neutralised, bleached, and deodorised.
3. Whether the Intermediate Product in the Manufacturing Process Qualifies as "Refined Oil" as Known to the Market:
The court concluded that the raw oil purchased by the respondents does not become "refined oil" at any stage before the completion of the deodorisation process. The court emphasized that excise duty is on the manufacture of goods, meaning the bringing into existence of a new substance known to the market. The court rejected the appellant's argument that the intermediate product, without deodorisation, qualifies as "refined oil."
The court also addressed the broader definition of "manufacture" under the Act, clarifying that it implies the creation of a new substance and not merely a change in the substance. The court rejected the argument that mere processing constitutes manufacture liable to excise duty, emphasizing that the term "manufacture" involves the transformation of raw materials into a new and different article with a distinctive name, character, or use.
Conclusion:
The court upheld the High Court's decision, concluding that the respondents do not manufacture "refined oil" as known to the market at any intermediate stage before the production of Vanaspati. The demands for excise duty on the intermediate product were found to have no legal basis. The appeals were dismissed with costs, affirming the withdrawal of the impugned excise duty demands.
-
1962 (9) TMI 6
Whether the State Governments are entitled to tax the three Ayurvedic preparations namely Mirtasanjibani, Mirtasanjibani Sudha and Mirtasanjibani Sura, which are manufactured by these petitioners, under the various Excise Act in force in the respective States?
Held that:- Allow the petitions and direct that these three medicinal preparations should not be taxed under the various Excise Acts in force in various States and can only be taxed in accordance with the provisions of the Medicinal and Toilet Preparations (Excise Duties) Act.
-
1962 (9) TMI 3
Issues:
Application under Articles 226 and 227 for a writ of certiorari to quash a notice by the Superintendent, Central Excise, and an order imposing a penalty for contravention of Central Excise Rules.
Analysis:
1. The petitioner filed an appeal against the Superintendent's order to the Collector, which was rejected. Subsequently, a revision petition was filed to the Government of India. The judgment cites the principle that the order of the original authority merges with the order of the appellate authority, and the High Court cannot issue a writ to the original authority if the appellate authority is beyond its territorial jurisdiction.
2. Referring to a previous decision, the judgment discusses the merger of orders made by different authorities. It highlights the importance of compliance with the conditions precedent for filing appeals or revision petitions. The argument that the orders did not merge due to non-compliance with deposit requirements is rejected based on legal principles and previous court decisions.
3. The judgment further discusses decisions from various High Courts regarding the dismissal of appeals and their effect on affirming the decision of the lower court. It emphasizes that the dismissal of the petitioner's appeal and revision petition by the Collector and the Government of India affirmed the decision of the Superintendent, leading to the merger of orders.
4. Based on the above analysis, the High Court dismisses the application for a writ of certiorari to quash the decision of the original authority, the Superintendent, Central Excise, Raipur. The petitioner is not awarded costs, and the security deposit amount is to be refunded. The judgment concludes by affirming the merger of orders and the legal implications of dismissal of appeals on the decisions of lower authorities.
-
1962 (9) TMI 2
The petition under Art. 226 challenged the Collector's order confiscating goods for non-payment of excise duty. The court held that the confiscation was justified under Rule 9(2) of the Central Excise Rules. The petitioner's objection was dismissed, and the petition was rejected with no costs.
-
1962 (9) TMI 1
Whether the respondents in the three respective appeals who carry on business in the manufacture of art silk fabrics, are entitled to claim exemption from the excise duty under Item 12A(v) which was inserted in First Schedule to the Central Excises and Salt Act, 1944 (No. 1 of 1944) by the Finance Act, 1954 (No. 17 of 1954)?
Held that:- As we feel no difficulty in holding that for the purpose of Item 12A(v) the three persons cannot be said to be the same person as claimed by the appellants. If it was the intention of the legislature to exclude cases like the present from the purview of the exemption clause, then it must be held that the legislature has failed to use appropriate words to carry out that intention. We were told that for subsequent years, the relevant item in the Schedule has been suitably modified and the present question is, therefore, not likely to arise in future. Appeal dismissed.
-
1962 (8) TMI 122
Issues:
1. Whether the assessee was carrying on the business in silver after the partition on June 7, 1947?
2. If the assessee did not carry on the silver business after partition, whether the profits made on the sale of silver were taxable as income?
3. Whether the cost price of silver or the market value on the date of partition should be considered in determining the profit?
Analysis:
The case involved an Income Tax reference regarding the assessment of an individual, the assessee, for the year 1946-47. The primary issue was whether the assessee continued the silver business post-partition. The Tribunal found that the Hindu undivided family, of which the assessee was a member, had a silver business. Despite limited transactions, the family's silver was considered stock-in-trade, implying continuity post-partition. The assessee's treatment of the silver similarly to the family's practices supported this conclusion. The Tribunal's finding that the assessee continued the silver business after partition was deemed valid, affirming the first issue in favor of the department.
Regarding the valuation of the silver stock post-partition, the Tribunal's decision to consider the cost price over the market value was supported by the assessee's actions and legal precedents. The assessee's handling of the silver, including multiple sales through brokers, indicated a business approach rather than treating it as a capital asset. Legal cases cited emphasized valuation based on the nature of the asset and continuity of business, aligning with the Tribunal's decision. Thus, the cost price of the silver was upheld for profit determination.
As the first issue was resolved in favor of the department, the second question regarding the taxability of profits post-partition did not require an answer. The third issue, focusing on valuation methods, was addressed by affirming the cost price determination. The judgment concluded by directing the return of the reference to the Income Tax Appellate Tribunal with the provided answers and awarded costs to the department.
-
1962 (8) TMI 3
The High Court of Mysore at Bangalore quashed the penalty imposed on a sugar manufacturer for allegedly contravening Rule 224(2) of the Central Excise Rules. The Court held that the goods were not removed from the factory after 5 p.m. on the date specified, as they were already outside the manufacturing premises. The penalty was deemed unauthorized by law and ordered to be returned to the petitioner if already paid. No costs were awarded. [Case: 1962 (8) TMI 3 - High Court of Mysore at Bangalore]
-
1962 (8) TMI 2
Imposition of Excise Duty on the petitioner by virtue of Item No. 17 "Foot-wear" of the First Schedule to the Central Excises and Salt Act, 1944 (1 of 1944) with effect from 28th day of February, 1954, and the calculation of the duty ad valorem by including in the price, charges for freight, packing and distribution challenged
Held that:- In imposing the Excise Duty, there was a definite desire to make an exemption in favour of the small manufacturer who is unable to pay the duty as easily, if at all as the big manufacturer. Such a classification in the interests of co-operative societies, cottage industries and small manufacturers has often to be made to give an impetus to them and save them from annihilation in competition with large industry. It has never been successfully assailed on the ground of discrimination. Appeal dismissed.
-
1962 (4) TMI 106
Issues: Validity of order of confiscation under Sea Customs Act and Foreign Exchange Regulation Act, principles of natural justice in making the order
Analysis:
1. The petitioners challenged the validity of the order of confiscation under Section 167 (8) of the Sea Customs Act and Section 23-A of the Foreign Exchange Regulation Act. They contended that the Collector did not consider the burden of proof on the Department and violated the principles of natural justice. The petitioners, who were bullion dealers, had gold seized from their residence, leading to the confiscation order. The Collector relied on circumstantial evidence, including foreign marks on gold ingots, lack of entries in accounts, and false information provided by the petitioners.
2. The petitioners argued that the burden of proving the seized gold was smuggled was on the Department, emphasizing the ban on gold import since 1939. The introduction of Section 178-A in the Sea Customs Act shifted the burden of proof to the person from whom the goods were seized. The petitioners questioned the reasonable belief of the officer who seized the gold, but the court found the search warrant obtained and the circumstances justified the seizure.
3. The petitioners also alleged a violation of natural justice, claiming the Collector did not question key witnesses in their presence. However, the court found that the Collector's decision was based on admitted facts, such as the concealment of gold, lack of entries in accounts, and false statements by the petitioners. The court held that the circumstances were incriminating and did not require further examination of witnesses.
4. The court rejected the argument that mentioning sellers' names absolved the petitioners of responsibility, emphasizing the seriousness of receiving smuggled goods. The court distinguished previous cases where evidence was relied upon without allowing cross-examination. Ultimately, the court upheld the confiscation order, considering the established facts, circumstances, and legal presumption under Section 178-A.
Conclusion:
The court dismissed the petition, upholding the Collector's confiscation order and imposing costs on the petitioners. The court found no valid objections to the Collector's decision, emphasizing the incriminating circumstances and the burden of proof under the relevant statutory provisions.
-
1962 (3) TMI 75
Evasion of duty on 11,606 maunds of sugar at the rate of Rs. 5-10-0 per cwt - Held that:- Appeal allowed. Not because an error due to carelessness in maintaining the registers properly as required by Rule 83 does not amount to a contravention of that rule; the only reason why we mention this is that in a factory where the turnover of sugar is so considerable and the operations conducted in which the human element plays a significent part it would not be right to base calculations on the surmise that over filling of the tanks was being practised systematically. No doubt, during the test, the tanks were slightly over filled on nine out of ten occasions as pointed out by the Assistant Chemical Examiner. But this could be att ributed to a slight failure of the human element resulting from the fact that a special operation was being conducted by the operators in the presence of a Government official. We would, however, make it clear that these observations are just incidental and are not the basis of our decision.
Quash the order of the Central Government and the two tribunals below as well as the directions requiring the appellant to pay the additional excise duty of Rs. 90,921-14-0 on 11,606 maunds of sugar and fine of Rs. 2,000. If the appellant has paid the duty and the penalty it should be refunded.
-
1962 (2) TMI 3
Issues Involved:
1. Legality of the search and seizure under Section 165 of the Code of Criminal Procedure and Section 18 of the Central Excises and Salt Act, 1944.
2. Admissibility of the statement (Ext. R2) under Article 20(3) of the Constitution.
3. Denial of opportunity to the petitioner to adduce evidence regarding the statement Ext. R2.
Issue-Wise Detailed Analysis:
1. Legality of the Search and Seizure:
The petitioner contended that the search and seizure conducted by the Customs authorities on 27-1-1960 were contrary to Section 165 of the Code of Criminal Procedure, read with Section 18 of the Central Excises and Salt Act, 1944. The court acknowledged that the provisions of Section 165 were not complied with. However, it was held that non-compliance with Section 165 does not render the entire proceedings, including the orders Exts. P3 and P4, illegal and void. The court referred to the Full Bench decision in C. Velayudhan v. State of Kerala, which held that an illegal search does not vitiate the trial or make the evidence inadmissible. The Supreme Court decision in State of Rajasthan v. Rahman was also considered, which emphasized compliance with Section 165 but did not invalidate subsequent proceedings due to non-compliance.
2. Admissibility of the Statement (Ext. R2) under Article 20(3):
The petitioner argued that the statement recorded (Ext. R2) should not have been relied upon as it contravened Article 20(3) of the Constitution, which protects against self-incrimination. The court found that the petitioner was not formally accused of any offense at the time the statement was recorded on 27-1-1960. The formal accusation was considered to have been made only on 13-2-1960 when the show-cause notice was issued. Thus, the court concluded that Article 20(3) was not applicable, and Ext. R2 could be used as evidence.
3. Denial of Opportunity to Adduce Evidence:
The petitioner claimed that he was denied the opportunity to substantiate his contention that Ext. R2 was obtained under duress. The court found no merit in this claim, noting that the petitioner was given a personal hearing, represented by counsel, and had the opportunity to submit a full statement. The counter-affidavit by the Collector of Customs and Central Excise confirmed that the petitioner did not request any further opportunity to adduce evidence. The court accepted the Collector's statements and concluded that there was no denial of opportunity.
Conclusion:
The court dismissed the writ petition, upholding the orders Exts. P3 and P4. The search and seizure, despite non-compliance with Section 165, did not invalidate the proceedings. The statement Ext. R2 was admissible as there was no formal accusation at the time it was recorded, and the petitioner was not denied the opportunity to present evidence.
-
1962 (2) TMI 2
Whether the power of exemption conferred upon the Union Government violates Articles 14 and 19(1)(f) & (g) of the Constitution on the ground that it is uncontrolled and unguided?
Whether, assuming that the power is not unconstitutional, the exemption granted by the nofications, aforesaid, is in excess of the power granted by Rule 8?
Held that:- There is no substance in either of the two contentions. Rule 8 is as much a part of the Statute as Section 37(2) clause (xvii). It is always open to the State to tax certain classes of goods and not to tax others. The legislature is the best judge to decide as to the incidence of taxation, as also to the amount of tax to be levied in respect of different classes of goods.
The respondent No. 5 has been exempted from payment of excise duty in respect of goods produced by the weavers. It has not been exempted from the payment of a personal tax, like income-tax. The exemption must, therefore, have reference to the same kind of tax which would otherwise have been leviable but for the exemption. From the notifications set out above, it is manifest that the Government has exempted cotton fabrics produced on powerlooms owned by a co-operative society, and in the present instance owned by the members of the Co-operative Society. It has not been contended before us that the conditions laid down for granting the exemption have not been fulfilled by the members of the Co-operative Society, the respondent No. 5. Hence, the exemption granted is within the terms of the notifications aforesaid, which have effect as if enacted as a part of the Statute. The vires of the Statute as already indicated, has not been questioned. Appeal dismissed.
-
1962 (1) TMI 56
Whether the new Rules purporting to be framed either under the cochin Act or under the Travancore Act in August 1960?
Held that:- It appears that these new Rules have been abrogated as from January 1958. So it Was urged on behalf of the State that this Court should not grant a mere declaration as to the invalidity of the Rules when they are no longer in existence. This argument in our opinion has no force because we must look to the situation as it was when the petitions were presented. The Cochin petitions were presented in 1956 and the Travancore petitions were presented in 1955 and at that time the Rules were in force and they continued in force till December 1957. Therefore the petitioners would be entitled to a declaration that the Rules were invalid because at any rate that would give them relief so far as the period after their petitions is concerned while the Rules remained in force.
We therefore allow the appeals and set aside the order of the High Court. The petitions are allowed and it is hereby declared that the new Rules purporting to be framed either under the cochin Act or under the Travancore Act in August 1960 and thereafter in January 1951 were invalid ab initio and have no force and effect. The appellants will get their costs from the State-one set of hearing costs.
-
1961 (12) TMI 90
Issues Involved:
1. Maintainability of the writ petition under Article 226 despite the availability of an alternative remedy.
2. Violation of principles of natural justice due to the absence of an oral hearing.
3. Jurisdiction to impose a penalty under Section 167(8) of the Sea Customs Act.
4. Adequacy of the show-cause notice in relation to the imposition of a penalty under Section 167(3).
5. Legality of the confiscation of the boat under Section 168 of the Sea Customs Act.
Detailed Analysis:
1. Maintainability of the Writ Petition:
The Additional Government Pleader raised a preliminary objection regarding the maintainability of the writ petition, arguing that an appeal to the Central Board of Revenue was an adequate and appropriate remedy. The Court held that the mere existence of an alternative remedy does not bar the exercise of jurisdiction under Article 226. The petitioner argued that the fines imposed were heavy, making it difficult to comply with the condition precedent for filing an appeal, and that an appeal to Delhi would be expensive and ineffective. The Court was satisfied that the alternative remedy was not effective in this case and did not uphold the preliminary objection.
2. Violation of Principles of Natural Justice:
The petitioner contended that the order was opposed to the principles of natural justice as he was not given an opportunity to make oral representations through his counsel. The Court noted that the request for a personal hearing was made after the time allowed in the show-cause notice had expired and that the Collector was not bound to comply with this request. The Court found no substance in this contention, stating that the refusal to grant a personal hearing was not unreasonable under the circumstances.
3. Jurisdiction to Impose Penalty under Section 167(8):
The petitioner argued that the respondent had no jurisdiction to impose a penalty under Section 167(8) as the provision relates to the importation or exportation of prohibited or restricted goods, which was not the case here. The Court agreed, stating that the contravention related to the landing of goods at an undeclared port, which falls under Section 167(2) and (3). The mention of Section 167(8) in the order was an inadvertent mistake for Section 167(3). The Court accepted this explanation and held that the jurisdiction of the Collector was not vitiated by this error.
4. Adequacy of the Show-Cause Notice:
The petitioner contended that the show-cause notice did not ask him to show cause against the imposition of any penalty under Section 167(3). The Court agreed, stating that the notice must not only mention the statutory provisions but also the penalty proposed to be imposed. The Court found that real prejudice was caused to the petitioner by not being called upon to show cause against the penalty under Section 167(3). The imposition of a penalty of Rs. 500 was held to be illegal as it was not preceded by a proper show-cause notice.
5. Legality of the Confiscation of the Boat:
The petitioner argued that the confiscation of the boat under Section 168 was an unnecessarily deterrent punishment and that the Collector failed to consider mitigating circumstances. The Court noted that the absence of a declared port in the vicinity should have been taken into account in assessing the degree of culpability. The failure to consider these circumstances rendered the penalty of confiscation an error apparent on the face of the record. The Court quashed the order of confiscation on this ground.
Conclusion:
The petition was allowed in part. A writ of certiorari was issued quashing the part of the order imposing a penalty of Rs. 500 on the petitioner under Section 167(8) and confiscating the boat under Section 168 of the Sea Customs Act. There was no order as to costs.
....
|
9911796707
