JUDGMENT : The petitioner was doing business in Ernakulam, in the manufacture and sale of spirituous preparations and allopathic tinctures, having executed for the purpose, an agreement, Ext. P1, on November 30, 1950, with the Government of the State of Travancore-Cochin, now represented by the third respondent, the State of Kerala, and having taken the necessary licence. The petitioner obtained the requisite spirit for the manufacture, from the Travancore Sugars and Chemicals Ltd., with the previous sanction of the Excise department, but had to pay duty to Government on the quantity used in manufacture, at rates of Rs. 5, Rs. 17 annas 8, and Rs. 21 annas 4 per gallon, depending upon the nature of the product manufactured. A fixed percentage of spirit allowed on account of wastage was duty-free, but anything in excess of it was chargeable to duty, which may amount to Rs. 35 per gallons. On August 18, 1954, the petitioner was served with a notice, Ext. P2, from the then Assistant Excise Commissioner, Ernakulam, now represented by the first respondent, alleging, that during the months of April, May, July, August and October, in the year 1951, there had been excessive wastage of spirit to the extent of 133.91 gallons, and demanding payment by him of Rs. 6431-13-7 towards duty thereon. He applied to the Travancore-Cochin Board of Revenue by Ext. P3, for the withdrawal of the demand, but his application was rejected by order, Ext. P4 on August 1, 1955. He then moved the Government under S. 9 of the Travancore-Cochin Board of Revenue Act, 1950, hereinafter referred to as the Act, by a petition, Ext, P5, for revising Ext P4; without disposing of it, Government forwarded Ext. P5 to the Travancore-Cochin Board of Revenue, for such action as it considered proper, and intimated the petitioner accordingly. Afterwards, when steps were taken against the petitioner under the Revenue Recovery Act for the realisation of the duty charged, the petitioner moved the Kerala Board of Revenue which came into being and is impleaded as the second respondent, by an application Ext. P6, for a review of Ext. P4; the second respondent ordered interim stay of proceedings under the Revenue Recovery Act by Ext. P7 dated May 7, 1958, but on October 23, 1958, dismissed Ext. P5 by order Ext. P2. This petition is under Article 226 of the Constitution and is to quash Exts. P6, for a review of Ext. P4; the second respondent ordered interim stay of proceedings under the Revenue Recovery Act by Ext. P7 dated May 7, 1958, but on October 23, 1958, dismissed Ext. P5 by order Ext. P2. This petition is under Article 226 of the Constitution and is to quash Exts. P2, P4 and P8. The learned Government Pleader who appeared for the respondents raised the objection, that the petition must be dismissed in limine on account of the delay in preferring it. On this point, the petition to Government to revise Ext. P4 cannot avail the petitioner, as, on what has been stated above, Government must be deemed to have declined to entertain it. But the petitioner chose to exercise the right of review conferred by S. 10 of the Act, though nearly three years after the passing of Ext. P4, the order sought to be reviewed. S. 11 of the Act which prescribes a period of limitation, as it were, for an application for review, is in these terms:- “Every application under S. 10 for a review of the order must be made within a period of three months from the date of the order or within such further time as the Board may see fit.” Under this provision, it was very well open to the Board of Revenue to reject the application, as made more than three months after the date of the order to be reviewed without sufficient reason, as it was to entertain the application and deal with it on its merits; in this instance, the Board chose to adopt the latter course, did not reject the application as having been made out of time, but entertained it, ordered interim stay of recovery proceedings upon it, and ultimately when the Board rejected it, it did so, not on the ground of any delay in making it, but for the reason that on the merits no interference was warranted. No express order condoning delay in preferring an application for review is prescribed by S. 11, it being sufficient that the Board “sees fit” to do so; apparently, the object is to leave it to the unfettered discretion of the Board, to entertain the application or not. It may be, that in this case, the Board overlooked an obvious point of limitation, but this cannot alter the legal position under S. 11. It may be, that in this case, the Board overlooked an obvious point of limitation, but this cannot alter the legal position under S. 11. In this view, my ruling in O.P. 443 of 1958 and similar rulings given earlier as to the effect of making review applications where none is warranted by statute, or are dismissed on the ground of limitation, are inapplicable and need not be considered. This petition was made to this court within fourteen days of the dismissal of the application for review. The objection on the ground of delay is therefore overruled. In my opinion, the petitioner is entitled to succeed also on the merits. It is necessary to have an idea of the scope of the relevant rules on the subject. The rules were framed by Government by Notification R.Dis. 2201/49/R.D. in the exercise of the power conferred by S. 26 of the Travancore Abkari Act, IV of 1073 as continued in force by the United State of Travancore & Cochin Administration and Application of Laws Act, 1125, in order to provide for the supervision and control of pharmaceutical laboratories like that of the petitioner, licensed for the manufacture under bond of medicinal preparations using spirit and were made applicable mutatis mutandis to the former Cochin State by Notification dated October 21, 1950. They provide for an Excise office being located in the premises of the laboratory, preferably at the entrance, and a responsible Excise Officer, appointed by the Commissioner of Excise, being stationed as the “Officer-in-charge”, to perform the functions and to discharge the duties specifically assigned to him, the cost of the Excise establishment being borne by the licensee. The laboratory is to be under the joint lock and key of the officer-in-charge & the licensee, the different sections of the laboratory capable of being secured with Excise locks during the absence of the officer-in-charge. This officer is made responsible for the safe custody of spirits or alcohol in storage in the laboratory, for its issue for use in specified quantities, ordinarily once a day on applications made by the licensee in prescribed form, and for the preservation of the manufactured products separately until the duty payable is levied. He has also to ensure, that spirit issued for any preparation is added to the materials in his presence, and is not diverted to any other purpose. He has also to ensure, that spirit issued for any preparation is added to the materials in his presence, and is not diverted to any other purpose. Accounts relating to these are to be maintained in forms specified both by the officer-in-charge and by the licensee. An account has to be taken of the stock of spirit or alcohol in store at intervals not exceeding three months. Rule 46, with the note appended to it, is the most important provision for the purpose of this case and may be extracted:- Rule 46[i] “The Commissioner may fix the maximum wastage of spirit that may be allowed during the production of a particular medicinal preparation.” [ii] “Any wastage which, in the opinion of the Commissioner is excessive or is not properly accounted for may be charged with Excise Duty at such rates as he may deem appropriate in each case.” Note: “Until such time the maximum wastage of spirit that may be allowed during the manufacture of each medicinal preparation is fixed under clause [i] above, an allowance up to a maximum of 15 per cent shall be allowed for wastage on the total quantity of spirit used in the manufacture of medicinal preparations that are stored in the Finished Products Store during a month. If such monthly wastage exceeds 15 per cent, the officer-in-charge shall obtain from the licensee an explanation for the excess wastage and submit it to the commissioner with his remarks before the end of the succeeding month. If, after scrutinising the explanation, the Commissioner is of the opinion that the wastage is excessive or that it could have been minimised further by the exercise of proper care and precaution he may call upon the licensee to pay duty on such excess wastage as he deems appropriate at the rate prescribed for rectified spirit. Failure to give the explanation by the licensee would be taken to mean that he has no explanation to offer, whereupon the Commissioner may on receipt of report from the officer-in-charge call upon the licensee to pay duty on the wastage in excess of 15 per cent. The Commissioner’s decision shall be final”. Failure to give the explanation by the licensee would be taken to mean that he has no explanation to offer, whereupon the Commissioner may on receipt of report from the officer-in-charge call upon the licensee to pay duty on the wastage in excess of 15 per cent. The Commissioner’s decision shall be final”. To summarise the provisions of the above rule and its note, until the maximum wastage of spirit allowable for each medicinal preparation is prescribed, which has not so far been done, wastage up to a maximum of 15 per cent in the manufacture of each medicinal preparation is permitted, the total wastage every month has to be calculated and ascertained in the above manner on the quantity used during the month, the explanation of the licensee for excessive wastage has to be taken from the licensee by the officer-in-charge, who must then endorse his remarks thereon, and forward them, together with the explanation, to the Commissioner, who in his turn has to decide, whether the wastage for the month had been excessive or could have been minimised, and then to impose duty on such quantity as he thinks proper, at the rate specified for rectified spirit. The above survey of the relevant rules is sufficient to give a picture of the elaborate machinery devised by the rules, in order to provide checks and safeguards at almost every step against improper use of spirit. The prescription for a monthly ascertainment of wastage, and the imposition of a duty on the officer-in-charge to obtain the explanation from the licensee & to endorse his own remarks on excessive use every month, and of a like duty on the Commissioner, now replaced by the Kerala Board of Revenue to take a decision on the materials placed before him or the Board, are not empty or meaningless formalities, but are conceived in the best interests of the licensee and the department alike. The importance of the explanation of the licensee, and of the opinion thereon of a responsible officer-in-charge, stationed at the spot, solely and exclusively to control and supervise the manufacture, taken and formed during the month under review, when the facts are fresh in their minds, is not to be disregarded, and suggests that though the account books and registers maintained are evidentiary of the quantity used, they are not conclusive as to liability for duty on excess quantity. What happened in this case was, as seen from the counter-affidavit of the respondents, that in February, 1954, that is very nearly three years after the event, the Excise Commissioner, Trichur, reported to the Board of Revenue, that “calculating wastage of spirit as contemplated in Rule 46 of the Rules............there was excess wastage in the laboratory of the petitioner during the months of April, May, July, August and October, 1951”; this must have been according to the account books. What explanation the petitioner would have been offered, and what remarks the officer-in-charge would have then made upon the explanation, are matters of conjecture, as these were not taken or made. The petitioner had made a point of this breach of the rules, as an illegality in Exts. P3, P5 and P6, and more particularly in Exts. P3 and P5 and had maintained, that he could not be charged with duty on such alleged excess wastage in the circumstances. The Board of Revenue, however, took the view in. Ext. P3, that this breach was only an irregularity. It might well be, that the petitioner would have offered an explanation at the relevant time, which the officer-in-charge would have accepted as valid; it might also be, that the explanation & the view of the officer would have weighed with the Commissioner or the Board of Revenue. The learned Government Pleader urged, that the orders impugned were passed only after affording the petitioner an opportunity to be heard; the complaint was not, that the orders themselves were passed in disregard of the principles of natural justice, but was, that the rules, which were enacted also for the benefit and protection of the petitioner, were violated. Granting that he had the opportunity to explain, though late, I fail to see, what substitute can be thought of for the opinion of the officer-in-charge. I am therefore of the view, that Rule 46 is mandatory; it was not disputed that these rules have statutory force. Granting that he had the opportunity to explain, though late, I fail to see, what substitute can be thought of for the opinion of the officer-in-charge. I am therefore of the view, that Rule 46 is mandatory; it was not disputed that these rules have statutory force. It may be, that the officer-in-charge at the material time, was grossly negligent, or was indifferent to his duties, as prescribed by the rules, in the matter of supervision and control; he seems to have failed, in what was his obvious duty under Rule 46, to demand an explanation from the petitioner for excessive use of spirit, if he was able to detect it, and in endorsing his remarks upon such explanation. If so, it seems to me, that the remedy of the department is clear. It is sufficient for the present purpose to hold, that the petitioner cannot be held liable, without a prior compliance with Rule 46. The orders Exts. P2, P4 and P8 are hereby quashed. The petition is allowed, no costs. Allowed.