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TMI Blog2001 (9) TMI 111X X X X Extracts X X X X X X X X Extracts X X X X ..... ed unaccounted tobacco in the warehouse of the appellant at Pudukottai within the jurisdiction of the Competent Authority at Madurai and also at Puliampatti within the jurisdiction of the authorities concerned at Coimbatore. The relevant period of receipt of unaccounted tobacco in the warehouse of the appellant on 6 counts was for 11-8-1972 to 25-1-1974. The unmanufactured tobacco said to have been received by the appellant during the said period was shown as 3,20,070 Kgs., but the authority concerned having the jurisdiction at Madurai had restricted the quantum to 2,51,400 Kgs. of unaccounted tobacco received in the warehouse at Pudukottai for the demand of excise duty under Rule 40 of Central Excise Rules, 1944, herein after referred to as "the Rules". While claiming duty as payable at appropriate rate prevailing at the relevant time, the Collector of Central Excise, Madurai had also imposed penalties of Rs. 2,000/- under Rule 40 and Rs. 2,000/- under Rule 32 of the Central Excise and Salt Act, 1944, herein after referred to as "the Act". The appeal filed by the appellant before the Central Board of Excise and Customs, New Delhi was rejected by order dated 23-1-1982 confirming th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ordingly, the writ petition filed by the appellant as petitioner was dismissed. Aggrieved at the said order dated 1-11-1995 and made in W.P. No. 2014 of 1985, the writ petitioner as appellant has come forward with this appeal. 4.We have heard the arguments on both sides and perused the records produced before us. 5.The learned Senior Counsel Mr. G. Rajagopalan, on behalf of the appellant contended that the order of the learned single Judge dismissing the writ petition on the ground that the order passed by the learned Tribunal referred to above has become final for want of challenging the same, is not correct, that the 1st respondent cannot order for payment of excise duty as mentioned in the order dated 5-1-1985 under Rule 9A(1)(ii) of the Rules, but can pass an order only under Rule 9A(5) of the Rules under which no excise duty can be levied on unmanufactured tobacco with effect from 1-3-1979 in view of the withdrawal of excise duty on such product and that, in any event, the claim made under the impugned order for excise duty is barred under Section 11A of the Act. Accordingly the learned Senior Counsel sought for setting aside the order of learned single Judge. 6.Per cont ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... regard to levy of excise duty and penalties under the relevant provisions of the Act and Rules. Even though in the said show cause notice dated 22-7-1980 the receipt of unaccounted tobacco in the warehouse of the appellant was fixed at 3,20,070 Kgs. of unmanufactured tobacco, subsequently the authorities concerned had restricted the quantum to 2,51,400 Kgs. of unmanufactured tobacco which relates the illegal receipt at the warehouse in Pudukottai. 8.A perusal of Rule 40 of the Rules would reveal that a wholesale purchaser who receives or in his custody or possession of unmanufactured products from any curer otherwise than under a valid permit granted by an officer showing that the proper duty has been paid or under any other valid transport document recognised by the Central Government in lieu thereof which shall show that the proper duty has been paid is deemed to have been contravened the Rules and shall in respect of every such offence be liable to pay the duty leviable on such products and to pay a penalty which may be extended to Rs. 2,000/- apart from the products being liable to be confiscated. 9.A perusal of Rule 9A(1)(ii) of the Rules would reveal that the rate of dut ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... continuation of the earlier order passed by the Collector of Central Excise, Madurai, in this writ petition. 10.There can be no dispute that excise duty can be levied for illegal receipt of tobacco weighing 2,51,400 Kgs. in the warehouse of the appellant at Pudukottai which is within the Jurisdiction of the Collector of Central Excise, Madurai under Rule 40 of the Rules. The rate of duty to be levied for the proceedings initiated under Rule 40 of the Rules has to be worked out only under Rule 9A(1)(ii) of the Rules prevailing at the time of commission of the offence of illegal receipt of tobacco in the warehouse of the appellant. Admittedly, levy of duty on unmanufactured tobacco was withdrawn by the authorities concerned only with effect from 1-3-1979. The Collector of Central Excise, Madurai had initiated action for the commission of offence of illegal receipt of tobacco in the warehouse of the appellant for the period prior to 1-3-1979 by issue of notice dated 22-7-1980. At the time of commission of the above said offence by the appellant, duty can be levied, since levy of duty on unmanufactured tobacco was withdrawn only with effect from 1-3-1979 and not with retrospective ef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for revision filed by the appellant. 12.A perusal of Section 11A of the Act would reveal that when any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded, a Central Excise Officer may, within 6 months from the relevant date, serve notice on the person chargeable with the duty which has not been levied or paid or which has been short levied or short paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. The proviso to the above said Section would also reveal that where any duty of excise has not been levied or paid or has been short levied or short paid or erroneously refunded by reason of fraud, collusion or any wilful misstatement or suppression of facts, or contravention of any of the provisions of this Act or of the rules made thereunder with intent to evade payment of duty, by such person or his agent, the provisions of this sub-section shall have effect, as if, for the words "six months", the words "five years" were substituted. In this case it is a specific case of the respondents that the appellant had committed an offence of illegal r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntral Excise, Kanpur against the petitioner on 19th February, 1979. It preferred an appeal before the Central Board of Excise and Customs, New Delhi on 18th April, 1979. The appeal was dismissed on 31st December, 1979. Thereafter, the petitioner filed the revision under Section 36 of the Customs and Excise Act. After the revision had been filed by the petitioner, the Central Excise Act was amended. By this amendment, Section 35G was inserted under which the Tribunal could send a reference to the High Court if it was satisfied that the case involved question of law. Before the Tribunal, the petitioner raised a number of grounds which are enumerated in paragraph 10 of the writ petition. The application was rejected on 4th April, 1986. Thereafter, instead of filing an application under sub-section (3) of Section 35G of the Central Excise and Salt Act, the petitioner filed the present writ petition and obtained a stay order. The petitioner's counsel was informed on the last occasion that the writ petition was not maintainable. The time was sought for converting the writ petition into application for reference, but this has not been done, since a specific remedy for filing an applicatio ..... 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