Surendra Kumar Vs. the Inspector/Range Officer, Central Excise and anr.

Surendra Kumar vs The Inspector/Range Officer, Central Excise and anr.

Type Court Judgment Court Allahabad Decided Dec 10, 1991

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Citation: sooperkanoon.com/483628
Court: Allahabad High Court
Judge: S.D. Agarwala and ; S.P. Srivastava, JJ.
Decided On: Dec 10, 1991
Case Number: Civil Misc. Writ Petition No. 62 of 1983
Subject: Excise

Case Summary

AI-generated summary - not the official court judgment text.

Natural justice - Central excise--Demand of duty--Assessee having licence for private bonded warehouse for unmanufactured tobacco--Demand of duty on unmanufactured tobacco transferred to D by assessee--Assessee filing writ petition claiming transfer to be with permission of authorities and that tobacco was re-wareho...

Key legal issue: Excise

Parties & Advocates

Appellant / Petitioner

Surendra Kumar

Respondent

The Inspector/Range Officer, Central Excise and anr.

Legal References

Reported In: 1993(42)ECC59

Excerpt

natural justice - central excise--demand of duty--assessee having licence for private bonded warehouse for unmanufactured tobacco--demand of duty on unmanufactured tobacco transferred to d by assessee--assessee filing writ petition claiming transfer to be with permission of authorities and that tobacco was re-warehoused by d--assessee's objections not considered--assessee not given show cause notice before raising demand and not heard--demand not sustainable--matter to be decided by authorities after giving opportunity of hearing to assessee--central excise rules, 1944, rules 174, 178. - u.p. zamindari abolition & lands reforms act, 1951 [act no. 1/1951]. section 3(4) & u.p. land revenue act, (3 of 1901). sections 14-a (3) & 14; [s.rafat alam, r.k.agarwal & ashok bhushan, jj] expression collector- held, it includes additional collector. powers and functions of collector can be exercised by additional collector under section 198(4) of 1950 act, provided he has been so directed by collector of the district. [1996 aihc 3628 overruled]......trader rules 174 and 178 of the central excise rules, 1944. the petitioner has executed a general bond as required by law in respect of the warehouse. the dispute in the present petition is in regard to the removal of four consignments of manufactured tobacco from the warehouse of the petitioner under the consignor's bond executed in form b-5 to the warehouse of m/s. d.h. tobacco company ishahari, rohtak division of chandigarh collectorate.2. the case of the petitioner is that the petitioner obtained accessory permit for transport of unmanufactured tobacco to m/s. d.h. tobacco company and in accordance with the permit the petitioner had removed from the warehouse of the petitioner the unmanufactured tobacco which was duly re-warehoused at the warehouse of m/s. d.h. tobacco company. the details of the four consignments, the details of their removal and the receipt by m/s. d.h. tobacco company have been mentioned in para 8 of the writ petition.3. the central excise inspector issued four notices of demand in form dd which have been attached as annexures 1, 3, 4 and 5 of the writ petition.' in accordance with the demand notices, the total amount of the demand of excise duty comes to rs. 54,948/-.4. after the petitioner received the first notice of demand which was dated 31.12.76, the petitioner filed objection on 16.1.76 which has been attached at annexure 2 to the writ petition. on receipt of the demand notices annexures 3, 4 and 5 which are of the same date, namely, 6.8.77, the petitioner filed objection on 14.8.77 which is annexure 6 to the writ petition. the petitioner's case in these objections is that he has not committed any illegality and has transported the unmanufactured tobacco from the warehouse of the petitioner to m/s. d.h. tobacco company as per the permit and the demand is wholly illegal. in the writ petition, the petitioner has categorically averred in para 28 that the demand has been raised in the notice without issuing any show cause notice to.....

Full Judgment

S.D. Agarwala, J.

1. The petitioner Surendra Kumar is a sole proprietor of the firm M/s. Sharda Tobacco Store, Miranpur, Tahsil Jansath, District Muzaffarnagar. The above-mentioned firm holds a licence for a private bonded warehouse for unmanufactured tobacco trader rules 174 and 178 of the Central Excise Rules, 1944. The petitioner has executed a general bond as required by law in respect of the warehouse. The dispute in the present petition is in regard to the removal of four consignments of manufactured tobacco from the warehouse of the petitioner under the consignor's bond executed in Form B-5 to the warehouse of M/s. D.H. Tobacco Company Ishahari, Rohtak Division of Chandigarh Collectorate.

2. The case of the petitioner is that the petitioner obtained accessory permit for transport of unmanufactured tobacco to M/s. D.H. Tobacco Company and in accordance with the permit the petitioner had removed from the warehouse of the petitioner the unmanufactured tobacco which was duly re-warehoused at the warehouse of M/s. D.H. Tobacco Company. The details of the four consignments, the details of their removal and the receipt by M/s. D.H. Tobacco Company have been mentioned in para 8 of the writ petition.

3. The Central Excise Inspector issued four notices of demand in form DD which have been attached as Annexures 1, 3, 4 and 5 of the writ petition.' In accordance with the demand notices, the total amount of the demand of excise duty comes to Rs. 54,948/-.

4. After the petitioner received the first notice of demand which was dated 31.12.76, the petitioner filed objection on 16.1.76 which has been attached at Annexure 2 to the writ petition. On receipt of the demand notices Annexures 3, 4 and 5 which are of the same date, namely, 6.8.77, the petitioner filed objection on 14.8.77 which is Annexure 6 to the writ petition. The petitioner's case in these objections is that he has not committed any illegality and has transported the unmanufactured tobacco from the warehouse of the petitioner to M/s. D.H. Tobacco Company as per the permit and the demand is wholly illegal. In the writ petition, the petitioner has categorically averred in para 28 that the demand has been raised in the notice without issuing any show cause notice to the petitioner and without giving him any opportunity in that regard. A counter-affidavit has been filed by Sri S.L. Sharma on behalf of the Excise Authority. In this counter-affidavit, it has not been specifically denied that the petitioner was afforded an opportunity to show cause before the notice of demand was issued (sic). In the circumstances it is established on record that the impugned demand notices have been issued against the petitioner without affording him any opportunity of being heard and without deciding the objections filed by the petitioner vide Annexure 2 and 6 to the writ petition. Since the demand notices have been issued against the petitioner without affording him any opportunity of being heard, in our opinion, the demand notices cannot be sustained in the eye of law.

5. In the result, the petition is allowed. The demand notices attached as Annexure 1, 3, 4 and 5 to the Writ petition, details of which are given below

1. D.D. 2 No. 051890 dated 31st December 1975 for a sum of Rs.15,360/-

2. D.D. 2 No. 051891 dated 6th August, 1977 for Rs.17,628/-

3. D.D. 2 No. 051892 dated 6th August, 1977 for Rs.11,760/-

4. D.D. 2 No. 051893 dated 6th August, 1977 for Rs.10,200/-

are quashed. The respondents are directed to dispose of the objections dated 16.1.76 and 14.8.77 after hearing the petitioner. It is, however, made clear that in case the petitioner's objections are not accepted, it will be open to the authorities to raise fresh demand against the petitioner in accordance with law. The objections shall be disposed of by the respondent Excise Authorities by a reasoned order.

Same Court & Year Allahabad · 1991 Same Parties Surendra Kumar vs The Inspector/Range Officer, Central Excise... Same Subject Excise Same Judge S.D. Agarwala and ; S.P. Srivastava, JJ.

Excise