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TMI Blog1977 (6) TMI 29X X X X Extracts X X X X X X X X Extracts X X X X ..... ule 223A. As against the said demand, the petitioner filed an appeal to the Collector of Central Excise, but without success. Then there was a revision to the Central Government which was also rejected. The petitioner has, therefore, come to this court seeking a writ of certiorari to quash the order of the revisional authority confirming the orders passed by the initial and appellate authorities. 2. In this writ petition mainly two contentions have been advanced. One is that Rule 223A contemplates the passing of an order by the Collector directing special stock taking and that in this case, that there being no order by the Collector directing the special stock taking, and that as such the entire proceedings including the levy of the exci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ceipts and deliveries, and making such allowance for waste by evaporation, or other natural causes, as the proper officer may consider reasonable, and as may be in accordance with any instructions issued by the Central Board of Revenue) the owner of such goods or if the premises be a public bonded warehouse the keeper thereof, shall, unless the deficiency by accounted for to the satisfaction of the proper officer be liable to pay the full amount of duty chargeable on such goods as are found deficient and also a penalty which may extend to two thousand rupees." 3. This section proceeds to say that as often as the Collector may does it necessary or proper, and at least once in every year, the stock of excisable goods remaining in a factory, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such circumstances, even an oral direction by the proper officer to conduct a special stock taking will be in accordance with law. In this view, I cannot accept the contention of the learned Counsel that there has been no formation of opinion by the Collector as contemplated by the opening words of Rule 223A. 5. A similar contention based on the wording of Rule 223A was negatived by a Division Bench of this Court in W.P. No. 2609 of 1969 (K. Nataraja Pillai v. Union of India represented by the Secretary, Ministry of Finance, Government of India New Delhi). In that case also there was a special stock taking and a result of which a deficiency discovered and action was taken to collect the excise duty and the penalty under Rule 223A. The sa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Integrated Divisional Office, Salem, and this Court expressed the view that :- "In respect of a particular quantity what will be the normal percentage of driage in the case of tobacco stored in the warehouse has to be considered by the authorities with reference to the nature and quality of the tobacco, the season during which the storage took place and other relevant materials. The respondents, who have been entrusted with the functions of the administration of the Act, can be expected to know as to what will be the normal percentage of driage with reference to a particular quantity of tobacco stored in the warehouse in a particular area. Therefore, when these authorities have considered the question of driage and have felt that the lar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... expertise of the authorities concerned who are duly qualified, to weigh the pros and cons and arrive at a reasonable percentage as being due to such natural causes. Such percentage has been ascertained after due enquiry in the instant case and has been granted." 8. In this case, the deficiency was found to be 49.4 per cent and the entire deficiency was claimed as loss due to driage and evaporation. But the authorities have held that only 5 per cent has been allowed as driage and the balance has been treated unaccounted. The petitioner has not produced any material before the authorities or before this court to conclusively establish that the deficiency of 49.4 per cent could have been really the loss due to driage and evaporation. In the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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