9911796707
TMI Blog2014 (10) TMI 719X X X X Extracts X X X X X X X X Extracts X X X X ..... e not been complied with the entire action in cancelling the liquor license of the petitioner as well as the appellate order and the revisional order are illegal and without jurisdiction - Decided in favour of assessee. X X X X Extracts X X X X X X X X Extracts X X X X ..... nd it is submitted that under Section 48 the Excise Commissioner, Collector, or any Officer of the Excise Department not below such rank as stated may be prescribed or any police officer duly empowered in that behalf may enter and inspect at any time by day or by night, any place in which any license manufacturer carries on the manufacture of or stores any intoxicant and may enter and inspect at any time "within the hours during which the sale is permitted" and at any other time during which the same may be open and may examine, test, measure or weigh any materials, stills utensils, implements, implements. Apparatus or intoxicant found in such place; and may seize any measures, weights or testing instruments which he has reason to believe to be false. The submission of the learned counsel, therefore, is that such a raid by the Excise Authorities in exercise of powers under Section 48 of the Act, 1910 could only have been conducted within the hours during which the sale is permitted or as the Section 48 states at any other time during which the same may be open. It is submitted that the admitted position is that the raid was conducted on the night of 26.03.2013 when the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it is also stated that Holograms which were recovered from the petitioner's shop were sent for examination and the laboratory test report dated 13.04.2013 confirmed that the Holograms are fake. It has also been stated that since the appellate authority has modified the order of the District Magistrate cancelling the license of the petitioner and has directed that the license fee and the security money for the year 2013-14 which has been seized by the authorities could not have been seized. The license of ₹ 3,50,060/- for the year 2014 shall be refunded to the petitioner and the requisite bill for that purpose has already been submitted to the treasury office. So far as the security money is concerned, in paragraph 9 of the counter affidavit it has been stated that for the year 2012-2013 the petitioner had deposited security money amounting to ₹ 2.28,165/- but for the year 2013-14 the security money was enhanced to ₹ 2,80,048/- but the petitioner instead of depositing the said amount, sought adjustment of the same with the security deposit of the year 2012-13. However, since the petitioner did not deposit that differential amount of security for the year 2013- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h without jurisdiction and vitiate the conviction. The learned Single Judge of this Court, therefore, held that there was a proviso to Section 53 of the Act, 1910 which required that though the police officer may carry out a search without a search warrant being issued from the Collector but that can only be done when there is no time to obtain the search warrant but in view of the proviso to Section 53, in such a case, the police officer would have to record the grounds for his belief for making the search. However in the present case, we are not concerned with the provisions of Section 53 of the Act, 1910 as the respondents in their short counter affidavit have themselves stated that the requirement to record reasons was contained in the proviso to Section 53 and the Section 53 was not applicable in the present case and that the inspection was conducted in terms of Section 48 of the Excise Act, 1910. We are concerned with the provisions of Section 48 of the Excise Act and not Section 53 of the Excise Act, 1910. Section 48 of the Excise Act, 1910 reads as follows: 48. Power to enter and inspect places of manufacture and sale.- The Excise Commissioner, a Collector, or any [Offi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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