R.R.Misra, J. - (1.) By means of this writ petition the petitioners have challenged the orders dated 9-8-1983 and 18-10-1985 passed by the Collector, Central Excise, Meerut and Customs Excise and Gold (Control) Appellate Tribunal, New Delhi respectively. Copies of these orders have been annexed as Annexures 11 and 13 to the writ petition.
(2.) M/s. Mohd. Sharif Mohd. Amir had been carrying on a business of khandsari sugar and had obtained a central excise licence for manufacture of khandsari sugar in their factory at Fatehullahganj, Thakurdwara. They were allowed to manufacture khandsari sugar in their factory at Fatehullahganj, Thakurdwara. They were allowed to manufacture khandsari sugar under special procedure on a centrifugal machine of size 22.9. x 45.7 cms. during the khandsari season 1977-78. On 17-4-1978 the Central Excise Officer of Moradabad Division, Moradabad visited their factory at 10 30 a.m. and found the factory working, some freshly manufactured sugar was lying on the dryage plateform and partly being weighed and bagged by the labourers. On inspection of the factory premises, it was found that while centrifugal of size 22.8. X 45.6 cms. as declared installed in the factory as per their A.S.P. was neither on the foundation nor available in the factory, instead, one centrifugal of size 30.5 x 61 cms. had been unauthorisedly installed in the adjoining room closed with shutter. It was also found that molasses was dripping out of it and the sugar was still stuck in its drum as an evidence of its working and manufacturing khandsari sugar at that time. In view of the unauthorised working of the centrifugal and manufacture of khandsari sugar the entire stock of sugar, i.e., 21 bags weighing 18.85 Qtls. of Ist process and 33 bags weighing 22.57 Qtls. khandsari sugar salavat total 54 bags of 41.42 Qtls and one centrifugal of size 30.5 X 61.0 cms., unauthorisedly installed by the petitioners were seized by the preventive squad, for contravention of the provisions of Central Excise Rules, 1944 and an offence-cum-seizure case was booked against the party by the officers. Since none of the partners of the firm was present at the time of seizure, therefore, after waiting for a reasonably long time, statements of the factory employees were recorded and a panchanama was drawn in presence of independent witnesses for seizure of khandsari sugar and centrifugal of size 30.5 x 61.0 cms.
(3.) However, Shri Mohd. Shafiq, brother of the petitioner subsequent to the seizure filed an affidavit before the Collector of Central Excise, Allahabad claiming the ownership of the centrifugal and khandsari sugar seized by the Officers on 17-4-1978. The case was decided by the Collector of Central Excise, Allahabad vide his order in Original No. MP. 33 (78) 10 of 1979 dated 20-2-1979 and it was held that M/s. Mohd. Sharif Mohd. Amir are guilty of violation of Central Excise Rules and duty amounting to Rs. 1,14,011.01 for the entire season was demanded and a penalty of Rs. 2,000 was also imposed on the petitioner. The khandsari sugar and centrifugal seized from the factory of petitioners were also confiscated though allowed to be redeemed on payment of redemption fine.;