9911796707
TMI Blog1965 (11) TMI 21X X X X Extracts X X X X X X X X Extracts X X X X ..... ct, which authorises the firm to warehouse tobacco purchased by it. Messrs. Ram Swarup Ganga Sagar of district, Etawah, purchased 98 bags of tobacco from the petitioner for sale at Konch under the Commission Agency of Chuni Lal Gyasi Lal in September, 1958. Before removing the tobacco from the warehouse of the petitioner Ram Swarup Gangasagar gave certificate C.T. 2. The tobacco reached the destination at Konch and was warehoused there in the warehouse of Chunni Lal Gyasi Lal and this fact was endorsed on the back of certificate C.T. 2. Sometime in Sept./October, 1958, Ram Swarup Ganga Sagar again purchased tobacco weighing 117.35 Maunds from the petitioner. This tobacco was also to be despatched to Konch to be sold there in the Commission ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arise and consequently, the form A.R. 3 never came back to the petitioner. It, therefore, became impossible for the petitioner to re-submit the form A.R. 3 to the Excise authorities. By a letter dated 13-11-1958, the Deputy Superintendent, Central Excise, Farrukhabad, asked the petitioner to inform him about location of the tobacco. The petitioner made enquiries from Chunni Lal Gyasi Lal and learnt that the tobacco never reached Konch in the warehouse of Chunni Lal Gyasilal. Thereupon, the petitioner replied to the Deputy Superintendent by a letter dated 29-11-1958. By a letter dated 23-1-1959, the Central Excise authorities demanded duty amounting to Rs. 4,849.72 np. from the petitioner under Rule 156(B) of the Central Excise Rules, the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ena for the petitioner urged that since the Excise authorities had permitted the removal of the tobacco from the warehouse of the petitioner on the bond of the consignee under Rule 153 of the Excise Rules, they are not entitled, to recover any duty from it. He further contended that since the petitioner had not given a bond as required by the rules and the Excise authorities having accepted the bond of the consignee, the petitioner was not liable to make any payment. The contention of the learned counsel is that Rule 156(B) of the Excise Rules is not applicable to the facts of the present case. 5.The learned counsel for the opposite party on the other hand, has raised a preliminary objection that the petition is not maintainable as the pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive remedy. I am fortified in my view by Himmatlal Harilal Mehta v. State of Madhya Pradesh and Others, AIR 1954 S.C. 403 in which their Lordships observed thus:- "the contention that because a remedy under the impugned Act is available to the assessee, he is disentitled to relief under Act 226 stands negatived by the decision in AIR 1953 SC 252 of this Court in the State of Bombay v. The United Motors (India) Ltd. The principle that a Court will not issue a prerogative writ when an adequate alternative remedy was available does not apply where a party has come to the court with an allegation that his fundamental right had been infringed and sought relief under Act, 226. Moreover, since the remedy provided by the C. P. and Berar Sales Ta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... id. (4) ……………………………………………………………………………… In the instant case, the bond was furnished by the consignee and could not be discharged until the goods were produced before the officer at the warehouse of the destination, the bond of the consignee remained in force and was not discharged. The consignee, was, therefore, under liability to produce the goods or to pay the duty. The consignee did not return the form A.R. 3. The consignee should have returned the form A.R. 3 to the petitioner. It was, therefore, absolutely impossible for the petitioner to re-submit that form to the Excise authorities as required by Rule 156-A of the Excise Rules. Sub-clause 3 of Rule 156-A of the Excise Rules and sub-clause 4 are relevant in this connection. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion and return the triplicate to the consignee for depatch to the consignor. In the instant case, the provisions contained in sub-clause 3 of Rule 156 of the rules were never complied with. The petitioner, therefore, naturally could not comply with the provisions of sub-clause 4 of Rule 156-A. That being the position, Rule 156-B which provides for a penalty of failure to present triplicate application could not be attracted in the instant case. It follows that no action against the petitioner can be taken under Rule 156-B of the Central Excise Rules, and no duty can be demanded from the petitioner. I, therefore, allow the petition with costs and direct the opposite parties not to demand any duty from the petitioner in respect of tobacco ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
