T.P. Nambiar, Member (J) -
(1.) THIS is an appeal filed by the appellant against the orders passed by the Collector of Central Excise and Customs, West Bengal, Calcutta in Order No. 1/Tobacco/1982 dated 30-4-1982. In the first instance, the appeal was filed before the Central Board of Excise and Customs, New Delhi and the same got transferred to this Tribunal and was numbered as ED(T) CAL-132/82. The brief facts of the case are that on 18-1-1979 the Central Excise Officers of Headquarters P. & I. Branch, West Bengal Collectorate in course of their preventive duty at Cooch Behar visited the premises of Roy Biri Factory, Cooch Behar, owned by Shri Rabindra Nath Roy having L-4 No. 1/BIRI/CB/75 L-5 No. 102/54 and L-2 No. 10/ST/55 and verified the stock physically with reference to the statutory C.E. records which resulted in recovery and seizure of 4,80,000 sticks of Swastika Branded biris in 12 bags, 881.500 kgs. (net) of biri tobacco in 20 bags i.e. 36172.4 kgs. (net) of unmanufactured biri tobacco 1125 bags, 885 kgs. (net) of biri leaves in 15 bags. The Central Excise Officers also detected unauthorized removal of (i) 3,60,000 sticks of Ma Bhabani branded biri in 9 bags, (ii) 8998.1 kgs. (net) of unmanufactured biri tobacco in 280 bags and (iii) 1546.1 kgs. (net) of biri tobacco dust. On further verification of the stock in duty-paid godown of the appellants the Central Excise Officers found a shortage of 94 bags of unmanufactured biri tobacco weighing 10717.5 kgs. (net) which were used by the appellants in the manufacture of 3,57,24,000 sticks of branded biris and the said quantity was removed by them surreptitiously without payment of duty and without observing Central Excise formalities. A show cause notice bearing No. V(17)2/CE/P&I/WB/79 dated 26-2-1979, was issued to the appellants directing them to show cause as to why the seized goods namely, (i) branded biris, (ii) unmanufactured biri tobacco and (iii) biri leaves - should not be confiscated and why Central Excise Duty should not be demanded from the appellants for the unauthorized removal of the biri tobacco and branded biris and why the penalty should not be imposed on them under the Central Excise Rules, 1944 for having contravened them. A reply was filed and after adjudication the learned Collector of Central Excise and Customs, West Bengal, Calcutta passed an order in Order No. 3/Tobacco of 1980 dated 20-5-1980 confiscating the Truck bearing Registration No. WGT-335 in question and the branded biris and unmanufactured biri tobacco. He also imposed a penalty of Rs. 2,000.00 under Rule 9(2) read with Rule 32(2) of the Central Excise Rules, 1944 and another penalty,of Rs. 2,000.00 under Rule 151 read with Rule 226 of the said Rules. Against that order the appellants preferred an appeal to the Central Board of Excise and Customs, New Delhi and that was disposed of by Order No. 208-B of 1981 of Central Board of Excise and Customs by setting aside the order of the learned Collector. The matter was remanded for de novo adjudication by him after taking the submissions of the appellants as contained in their reply dated 18-10-1979 to the show cause notice. After the remand order the learned Collector heard the parties and thereafter, the impugned order was passed. In terms of the impugned order, the learned Collector confiscated the biris and made certain charges against the appellants and also imposed penalties on them which were not discussed by the Collector in detail while dealing with each of the charges made against the appellants in the show cause notice.
(2.) The learned Advocate, Shri Prantosh Mukherjee appeared for the appellants. Shri A. Chowdhury, learned J.D.R. appeared for the respondent Collector. The learned Advocate Shri Mukherjee contended that the factory of the appellants is situated within the town and they have got five godowns. They have got a composite licence for all the five godowns and internal movement from one godown to other godown is permissible. It was also contended that the order of the learned Collector is a biased one and is not in accordance with law. It was also contended before us that there is nothing in the order to show as to which of the Rules is contravened and the order is not a speaking one. It was also contended before us that the reply filed by the appellants was not discussed in detail and without such discussion the impugned order was passed. It was also contended that after the seizure the Department made a roaming enquiry to fish out certain materials and such a course was not permissible. In this connection, he relied on the decision of the Allahabad High Court reported in AIR 1972 All. 231 in the case of Collector of Central Excise, Allahabad and Others v. L. Kashi Nath Jewellers. Relying on the above-said decision the learned Advocate, Shri Mukherjee contended that an indiscriminate seizure of the materials with a view to fish out materials in the form of evidence and then to justify seizure from the evidence so gathered is not permissible in law. He further relied on the decision reported in 1984 (17) E.L.T. 482. Shri Mukherjee also relied on the decision of the Supreme Court reported in 1976-SC (page-1785) in the case of Siemens Engineering Ltd. v. Union of India and Others. Relying on the above-said judgment he contended that giving reasons for coming to the conclusion is a basic principle of natural justice and every quasi-judicial authority must pass a reasoned order as otherwise it will be offending the principles of natural justice. Shri Mukherjee, therefore, contended that the impugned order is not a speaking order and it has not taken into consideration the several pleas taken by the appellants in the show cause notice. He further relied on the decision of Supreme Court reported in AIR 1987 SC 454 in the case of Ashoke Kumar Jadav v. State of Haryana. Relying on the above-said decision Shri Mukherjee contended that 'it is one of the fundamental principles of our jurisprudence that no man can be a judge in his own cause and that if there is a reasonable likelihood of bias, it is in accordance with the natural justice and commonsense that the justice likely to be so biased should be incapacitated from sitting. The question is not whether the judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision.' Therefore, it was his contention in this case that the decision given by the learned Collector is a biased one and cannot be acted upon. He further relied upon the decision of the Bombay High Court reported in AIR 1984 Bombay-39p. in the case of Anand Issardas Motiani and Others v. Virji Raisi. Relying on the above-said decision it was contended before us that - Fairness is all fundamental to justice. Fairness at the beginning, fairness during the proceedings and fairness at the conclusion of a judicial proceeding is the sine qua non of the judicial administration. Justice in fact is another name of fairness. It was further contended that any conclusion reached contrary to the principles of natural justice would not be binding on the parties. It was, therefore, contended that the contention of the appellants was not taken into consideration.
In this connection, he also relied on the decision of the Supreme Court reported in 1985 (2) SCC 279 and contended that it is the bounden duty of the authorities to consider all the materials produced by the parties and then to arrive at the conclusion. He also drew our attention to the decision of the Supreme Court reported in AIR 1990 SC 1402 in the case of Km. Neelima Misra v. Dr. Harinder Kaur Paintal and Others. Relying on the above decision the learned Advocate contended that - The shift now for such proceedings is to a broader notion of 'fairness' or 'fair procedure' in the administration as well as quasi-judicial function. It was his contention that in all such cases there is a duty cast on the quasi-judicial authority to act fairly in consonance with the rules of natural justice. Shri Mukherjee further contended that the conclusion arrived at by the learned Adjudicating Authority is not based on any evidence and it is only on assumption and conjectures. In this connection, he drew our attention to the decision of the Supreme Court reported in 1971 SC 746. In that decision it was held by their Lordships of the Supreme Court that the authorities concerned had come to the conclusion based on pure assumption and conjectures and on no evidence and on that ground alone the orders should be quashed. He also relied on the decision of the Tribunal reported in 1980 (6) E.L.T. 121 in the case of J.B.A. Printing Inks Ltd. v. Union of India and Others. Relying on the above-said decision Shri Mukherjee contended that the show cause notice must enjoin upon the party to show cause to the proper officer why he should not pay a certain stated amount which must be manifestly specified in the notice itself and the party must not be relegated to conjecture, speculation or calculations or ascertainment of the exact amount payable and that the amount of duty finally determined should not exceed the amount so specified. Relying on the above-said decision he contended that in this case there was no such specified amount shown in the show cause notice and the same is belated.
Replying to the above-said contention the learned J.D.R., Shri A. Chowdhury contended that the Adjudicating Authority has taken into consideration the specific charges which were alleged against the appellants. The Adjudicating Authority also stated the replies given by the appellants and therefore, the Adjudicating Authority has clearly discussed the facts of the case in the light of the replies given by the appellants and has given a speaking order in this behalf. He, therefore, contended that the decisions relied on by the Ld. Advocate are not applicable to the facts of this case. He also submitted that fair opportunity was given to the appellants and the case was decided very fairly by giving sufficient opportunity to the appellants. It was also his contention that the pleas raised by the appellants were examined by the Adjudicating Authority in detail and thereafter, a finding has been given. It was, therefore, contended that there was no denial of fairness, nor denial of natural justice. Shri Chowdhury also contended that there was no question of fishing out materials by the Department after the seizure was made. He also contended that it cannot be said that the seizure was made in an indiscriminate manner. Shri Chowdhury also contended by referring to the order-in-original that the show cause notice was elaborate and has given the party a notice against the charges alleged against them. He also contended that the detailed reply given by the party was very carefully considered by the Adjudicating Authority and he has come to the conclusion by giving sufficient reasons in this behalf. Shri Chowdhury also contended that there is nothing to show that the Adjudicating Authority was biased in this case. There is no basis to hold that he was biased in this case and that the Adjudication Order is not a nullity on that ground. He also contended that the learned Adjudicating Authority has clearly discussed several contraventions of rules under the Central Excise Rules, 1944 and then imposed the penalty on the appellants. In this connection, he drew our attention to the impugned order-in-original and justified the arguments advanced by him.
(3.) WE have considered the submissions made by both the sides. In order to appreciate the contentions of the parties it is necessary for us to deal with the charges and the replies furnished by the appellants and then to consider the reasonings of the Adjudicating Authority to find out whether those reasonings are reached on any material evidence or whether the contentions of the parties were examined in detail and whether the findings reached by the Adjudicating Authority are sustainable in law.;