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TMI Blog1976 (2) TMI 39X X X X Extracts X X X X X X X X Extracts X X X X ..... ations and mainly contending that the irregularities if any, found are of a technical nature, not meriting confiscation and excise duty. A personal hearing was also given to the petitioner and, thereafter, the Asst. Collector passed orders on 25-7-1971 holding (i) that, the tobacco received illicitly was liable for confiscation (ii) that, excise duty must be paid on the quantity illegally removed from the godown. A small fine was also levied. Towards the excise duty, a demand in a sum of Rs. 1,94,451.68 ps. was issued. The petitioner filed an appeal before the Appellate Collector, but the same also was dismissed. Hence this writ petition. 3.Shri G.V.R. Mohana Rao, the learned Counsel for the petitioner, raised four submissions, viz., (i) that, the adjudicating officer, namely, the Asstt. Collector of Central Excise, himself had participated in the investigation and detection of the alleged irregularities and that, the entire investigation was made under his directions and control, and, therefore, he is in the nature of a prosecutor. For that reason, he cannot also act as a Judge. In other words, it was contended that the Asstt. Collector was disqualified from adjudicating in this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... olice, is wholly inappropriate in such cases. The foremost illustration is that of the income-tax officers and sales-tax officers who themselves collect material, investigate and also adjudicate upon the matters before them. In other words, the Central Excise officials are primarily executive authorities, who also perform certain quasi-judicial duties. Merely because the Asstt. Collector gave certain general directions or visited the petitioner's warehouse on certain occasions, it cannot be said that he is disqualified from adjudicating the said matter to the ground of bias. The bias alleged hereto is official bias, and no case has been brought to my notice by the learned Counsel, which supports his contention. The only decision referred to by the learned Counsel is one reported in R.V. Altrincham Justice, (1) 1975 (2) All England Reporters, 78 (at p. 81). In that case it was held that since the Chairman of the Bench of the Magistrate, which convicted the petitioner of supplying smaller quantities of vegetables than was agreed was a member of the Country Council Education Committee and a Governor of two Chasire School, which were some of the institutions to which short deliveries w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the same without leaving the same into his warehouse. I am afraid, the learned Counsel is over simplifying the issue. Each kg. of tobacco is liable to excise duty though, for the sake of facility, excise duty is collected when it is sought to be removed from the warehouse or godown. The allegation against the petitioner is that he illicity removed certain tobacco from his licensed premises, without paying the excise duty thereon and had replaced the same with fresh stocks of tobacco. This finding was arrived at on the basis of the material before the adjudicating authority, including the contents of the Mahazars. It was recorded in the Mahazars prepared in the presence of the petitioner, that many of the borams did not contain the markings of the licenses which was obligatory, while a few of the borams did bear such markings. I am not able to say that the said findings of substitution is based on no evidence. It is not for this court to go into the adequacy or sufficiency of the material, in certiorari proceedings. 7.The second aspect stressed by the learned Counsel is relating to 11 bags weighing 418 kgs. of V.F.C. Farmash tobacco. The petitioner's case was that, the said qu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ether in separate lots and the goods shall be arranged in separate rows, each row, containing, the same number of packages of uniform size and weight. The Collector may also require the licensed person or keeper of the warehouse to maintain stock cards in respect of the separate lots and to leave an accessible passage free of packages in the middle of the warehouse or other place of storage and a similar passage along the walls of such warehouse or other place of storage at right angles to the aforesaid passage, so as to facilitate counting, and may require that each separate lot or consignment shall be clearly marked with the number and date of the document under which the goods were admitted to the place of storage, the number of the relevant record in the Entry Book, stock card account or warehouse register and such other identifying particulars as he may direct. (2) A breech of this Rule shall be punishable with a penalty which may extend to one thousand rupees. Rule 226 read as follows :- R. 226 :- Where any person is required by these Rule to maintain any entry book, stock account, or warehousee register in respect of goods produced, manufacture or stored by him, he sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt hold that the violations are merely technical in nature and that, therefore, the petitioner should have been dealt with liberally. By way of illustration, removal of tobacco attracts the levy of excise duty; and if such duty is levied, this court cannot say that since the tobacco removed has been substituted with a similar quantity of other tobacco, the violation must be held to be technical. 10.Regarding the complaint of the learned Counsel that the appellate authority has not dealt with all the submissions raised before it, nor has it dealt with the merits of the dispute, it must be held that the said complaint is not wholly justified. The appellate authority has noted the contentions raised before it and has dealt with each of these contentions. The petitioner's main contention related to the bias on the part of the adjudicating authority, and the replacement of 47 boroms. In addition to the said two specific contentions, it was generally argued that the irregularities are technical in nature and that, there was no evidence in the case to support the findings of the adjudicating authority. The appellate authority has dealt with both the contentions specifically and also hel ..... X X X X Extracts X X X X X X X X Extracts X X X X
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