R.S. Pathak, J. - (1.) We have heard learned counsel for the petitioner. The Superintendent of Central Excise, Kanpur issued a notice dated January 25, 1959 wherein he asserted that the petitioner had contravened Rr. 9 and 226 of the Central Excise Rules, 1944 inasmuch as cotton fabrics of certain varieties had been found short at the time of annual stock -taking by the Excise Inspector and he required the petitioner to show cause why duty on those goods should not be demanded and why penalty should not be imposed. The petitioner submitted its explanation. The Superintendent made an order on April 23, 1969 holding that the petitioner had violated Rr. 9 and 226 and that the petitioner should pay duty as wall as penalty. The petitioner applied in appeal but the appeal was dismissed on February 26, 1970 by the Collector, Central Excise who found himself in agreement with the order of the Superintendent. The petitioner then applied in revision to the Central Government. On June 9, 1970 the revision application was allowed in so far as the penalty was waived but otherwise it was dismissed.
(2.) The main contention on behalf of the petitioner is that as the Central Government had set aside the penalty the demand for duty should also have been quashed. The argument runs like this. When the stock of cotton fabrics was found to be short the imposition of a penalty was obligatory. Conversely, if the penalty was set aside it could only be on the ground that there was no shortage in the stock. And if there was no shortage, there was no basis for demanding duty. In our opinion, the contention is misconceived. The penalty was imposed u/sub -R. (2) of R. 9, and it is clear from a perusal of that sub -rule that the imposition of a penalty is not mandatory. All that sub -R. (2) declares is that a producer or manufacturer who removes goods in contravention of sub -R. (1) of R. 9 is liable to a penalty. In other words, by such action he exposes himself to a penalty. That does not mean, however, that the excise authorities must impose a penalty. It is also noteworthy that the Central Government "Waived" the penalty. It did not find that the penalty could not be imposed.
(3.) Then, learned counsel urges that the proceeding before the Central Government was a quasi judicial proceeding and he was entitled to be heard before the revision application was disposed of. No provision of law has been placed before us to show that an oral or personal hearing can be claimed by an applicant as of right. The revision application was filed by the petitioner and he had all the opportunity in the world to put forward his case in that application. He cannot complain that his case was not considered.;