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TMI Blog1972 (2) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... eed by the lower appellate court holding the order of the Assistant Collector, Central Excise, dated May 31, 1962, as illegal and inoperative and restraining the Union of India from recovering the fine and duty imposed and for direction for return of the confiscated goods, the Union of India has filed this appeal. 2. There is no dispute that under the transfer permit, Ex. 38, whose copy and coun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid. On that footing the plaintiff could never be held liable for contravention of Rule 40 of the Excise Rules, which runs as under :- "Except as provided in the proviso to sub-Rule (1) of Rule 32 and in Rule 171, no wholesale purchaser of unmanufactured tobacco for the purpose of trade or manufacture and no wholesale purchaser of other unmanufactured products from a curer shall receive into any ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rmit by a competent officer showing proper duty payment was obtained by the plaintiff, there was no contravention of Rule 40. Therefore, the latter part of Rule 40 that every such wholesale purchaser who receives or has in his custody or possession any such goods, in contravention of the Rule, shall suffer the penalty and be liable for confiscation, cannot apply. 4. Mr. Nanavati, however, vehemen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ey came to the plaintiff. The substitution must be by A.J. Chaudhary, as found by the Department in its order. We need not go into this aspect, because the material question, which is to be decided, is whether Rule 40 was attracted, so far as the plaintiff was concerned. The plaintiff got the goods under a valid permit. If the authority wrongly certified payment of duty, the authority, for their f ..... X X X X Extracts X X X X X X X X Extracts X X X X
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