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TMI Blog1963 (9) TMI 3X X X X Extracts X X X X X X X X Extracts X X X X ..... non-excisable goods under the Act and that, accordingly, he did not file any declaration or return as required by the Act in respect of excisable goods. 3.The impugned order, which is a speaking order gives the facts as well as the grounds upon which the assessment and demand has been made. The order, in short, states that during the period 28-2-1954 to 23-3-1957, the petitioner produced Artificial Silk Fabric, which was an excisable goods under the Central Excises and Salt Act, 1944 and that since he removed the goods from the place of production, in contravention of Rule 9(1) of the Rules made under the Act, the demand was being made under Rule 9(2) of the said Rules. 4.The order states that on 26-3-1957 the Inspector of Central Excise, Shri Goswami in the course of his preventive patrol, visited the factory of the petitioner and found 58 out of the 61 looms therein at work and that a Supervisor of the petitioner, named Pronoy Das Gupta, stated to the Inspector that 2 looms were working in staple fibre while the remaining 56 looms were working with cotton yarn. Since the mill had no licence to produce cotton fabrics, the Inspector, after obtaining the instructions of his supe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assessment with reference to the number of looms in the premises and the total quantity of fabrics produced as far as it could be gathered from the records seized. The amount assessed, being Rs. 1,03,216/5, has been demanded from the petitioner under Rule 9(2) of the Rules, on the finding that the petitioner had removed the goods produced by him from the premises between the evening of 26-3-1957 and the midday of 28-3-1957. 6.Before proceeding to the Petitioner's case in the petition, it would be useful to refer to the relevant provisions of the Act and Rule mentioned above. The provision of the Act which made artificial silk fabric excisable is Item 12A, inserted in the Act in 1954, the relevant portion of which is as follows :- Rayon or artificial silk fabrics —"12A. Rayon or artificial silk fabrics including all varieties of fabrics manufactured either wholly or partly from rayon or artificial silk but do not include any such fabrics —6 pies per sq. yard (ii) if it contains cotton and less than 60% by weight of rayon or artificial silk; Explanation : For the purposes of this item staple fibre shall not be deemed to be rayon or artificial silk." Rule 9 of the Rule ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he petitioner need not impugn the appellate or revisional order or implead the authorities which made those orders. This plea of the petitioner, however, cannot be entertained in view of the decision of the Supreme Court in Collector of Customs v. East India Commercial Co., A.I.R. 1963 S.C. 1124, reversing the decision of this Court reported in A.I.R. 1960 Cal. 1. 8.The appellate order is at p. 62 and the Revisional order is at p. 79 of the Petition. Appeal from an order of the Central Excise Officer lies to the Central Board of Revenue under Section 35 of the Act and a revision lies from the appellate order to the Government of India under Section 36 of the Act. Since the Petitioner moved both the authorities, it is the order of the Central Government in revision, which is the final order in this case. The relevant portion of this order is as follows : "The Government of India have carefully considered all the points made by the applications, but they regret that they do not see any justification to interfere with the order-in-appeal. The revision application is accordingly rejected." It is evident that the application for revision having been rejected, the appellate order m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Petitioner that the condition of deposit under the above provision was in the nature of a preliminary condition, on the failure of which the appeal should be deemed not to have been admitted at all. But the language of the section negatives any such contention. The words `pending the appeal' indicate that the appeal is admitted as soon as it is filed and that the deposit may be made thereafter. It cannot be said that no appeal was filed at all, because of the failure of deposit. 11.Again, under Section 35(1) of the Central Excises and Salt Act, the only order that the Appellate Authority is competent to make is an order 'confirming, altering or annulling the decision or order appealed against'. Hence, even where he uses any other words such as 'rejecting' the appeal, the result is the same, namely, that the order appealed against is 'confirmed'. 12.Without dilating further, it may be held that in the present case, the impugned order has merged in the appellate order and then into the revisional order passed by the Central Government, so that the petitioner cannot obtain any relief without impleading the Central Government and without impugning the revisional order. Nor is it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... owever, is no part of a statute or any statutory instrument [Pugh v. Asutosh, A.I.R. 1929 P.C. 69 (71)]. 13.The words 'any place specified therein' in sub-rule (2), it is next contended, has reference to the place which is to be specified by the Collector under sub-rule (1). But this is also not correct. These words, in sub-rule (2), refer to any place referred to in sub-rule (1), the word 'therein' standing for sub-rule (1). It must be said that the wording of sub-rule (2) is not happy, but the meaning is clear. To accept the petitioner's contention would enable every producer of excisable goods to evade the duty unless the Collector could perform the impossible task of detecting each place where excisable goods are produced and notify them before applying Rule 9(2). This contention must, accordingly, fail. (b) The main ground urged on behalf of the petitioner is that the principles of natural justice have been violated both in levying the duty as well as in assessing its quantum. Under the present head I shall deal with the first part. It is clear from Rule 9(2) that the levy under that provision can be made only if three conditions are present : That goods manufactured a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... followed in making the levy, in such case, nor does the statute itself say anything on the point. Even assuming that taxation is by its nature a quasi-judicial proceeding, the question remains what type of inquiry is required by the rules of natural justice, where the governing statute is silent as to the procedure to be followed. It has been established both in England and in India [vide N.P.T. Co. v. N.S.T. Co. (1957) S.C.R. 98 (106)], that there is no universal code of natural justice and that the nature of hearing required would depend, inter alia, upon the provisions of the statute and the rules made thereunder which govern the constitution of a particular body. It has also been established that where the relevant statute is silent, what is required is a minimal level of hearing, namely, that the statutory authority must 'act in good faith and fairly listen to both sides' [Board of Education v. Rice, (1911) A.C. 179] and, "deal with the question referred to them without bias, and give to each of the parties the opportunity of adequately presenting the case" [Local Government Board v. Arlidge, (1915) A.C. 120 (132)]. There is no allegation of bias in this case. As regards givi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s used as the basic ingredient. But at the time of the search cotton yarn was actually found in the factory. To this, the petitioner's reply was that that cotton was used for some process relating to the goods produced by other owners. But the petitioner never made any attempt to examine these other owners. At the search, again, the respondent found a sari in the petitioner's store room which contained both cotton and artificial silk. The petitioner's contention was that this had been supplied by another producer for "sizing" and "folding". But no such producer was examined. 18.In these circumstances he cannot complain of a denial of natural justice. [Soni Hinduji v. Union of India, (1962) S.C. Petn. No. 313/60, unreported]. Having regard to the fact that he had himself removed the goods produced at his factory and that he rendered no assistance examining witnesses or producing other relevant materials to show what was being produced at his factory his complaint of a violation of the principles of natural justice is not maintainable at all. 19.As to the requirement that the percentage of artificial silk used in the product must exceed 60% in order to render it excisable, the re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in various cases, a proceeding under Article 226 is not the proper forum for the investigation of such disputed facts [Sohan Lal v. Union of India, AIR 1957 S.C. 529; Union of India v. Verma AIR 1957 S.C. 882; Union of India v. Ghaus, AIR 1961 S.C. 1526]. Further as observed in Abraham v. I.T. Officer, A.I.R. 1961 S.C. 609, where the statute provides a complete machinery for giving the aggrieved party relief, he cannot approach the Court under Article 226, without exhausting those remedies. In the present case, he did indeed prefer an appeal and a revision. But in both cases, he failed to make the statutory deposit and hence his appeal and revision were rejected. He cannot now seek relief under Article 226. If so advised, he may bring an action under the general law, if otherwise open to him, where he may thrash out the disputed points on proper evidence and establish that the impugned levy could not be sustained under the law. 21.As to the quantum of duty to be levied, the rate as given in Item 12A of the First Schedule of the Act is 6 pies per yd. of the fabric produced. But the respondent has given relief to the petitioner by applying Rule 69 MMMM, which was inserted on 7-6 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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