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1964 DIGILAW 39 (PAT)

Ambika Prasad v. State Of Bihar

1964-02-19

R.K.CHOUDHARY, V.RAMASWAMI

body1964
Judgment 1. In this case the petitioner Ambika Prasad has obtained a rule from the High Court calling upon the respondents to show cause why, the order of the Superintendent of Excise dated the 6th July, 1959, imposing a composition fee of Rs. 100.00 upon the petitioner in lieu of cancellation of licence, and the order of the Commissioner of Excise dated the 28th December, 1959, dismissing the appeal of the petitioner, and of the Board of Revenue dated the 4th June, 1960, dismissing a revision application of the petitioners, should not be set aside by the High Court by virtue of the authority granted under Article 227 of the Constitution. 2. Cause has been shown by the learned Government Pleader on behalf of the respondents to whom notice of the rule was ordered to be given 3. On the 6th May, 1959, the Superintendent of Excise, Gaya, visited the country spiritshop of the petitioner at Jehanabad and found that one of the bottles contained 18 ounces of country spirit instead of the prescribed quantity of 20 ounces. It was explained by the petitioner that the contents of the bottle had been partly drunk by an employee of the shop and so the quantity contained was less than the prescribed quantity. The explanation was rejected by the Superintendent of Excise who held the petitioner guilty of the charge of selling liquor in short measure and imposed a composition fee of Rs. 100/-under Section 68 of the Bihar and Orissa Excise Act in lieu of cancellation of the licence. The petitioner preferred an appeal against the order to the Collector of Gaya, but the appeal was dismissed. The petitioner took the matter in appeal again to the Commissioner of Excise, but on the 28th December, 1959, the Commissioner of Excise dismissed the appeal "for default because the petitioner was absent. The petitioner thereafter made an application in revision to the Board of Revenue, but the application was dismissed on the 24th June, 1960. 4. On behalf of the petitioner it was submitted by learned Counsel that the order of the Board of Revenue dated the 24th June, 1960 and of the Commissioner of Excise, dated the 28th December, 1959, are both illegal, ultra vires and without jurisdiction. 4. On behalf of the petitioner it was submitted by learned Counsel that the order of the Board of Revenue dated the 24th June, 1960 and of the Commissioner of Excise, dated the 28th December, 1959, are both illegal, ultra vires and without jurisdiction. With regard to the order of the Board of Revenue dated the 24th June, 1960 it was contended that both the grounds given by the Board of Revenue are erroneous as a matter of law. The Board of Revenue has stated in the first place that the petitioner had paid the composition fee of Rs. 100.00 on the 27th October, 1959, and since the payment had been made unconditionally the petitioner had no right to challenge the order of the Superintendent of Excise in appeal. In our opinion the Board of Revenue is not correct in saying that the petitioner had lost the right of appeal from the order of the Superintendent of Excise merely because he had paid the composition fee. The order of the Superintendent of Excise was an order passed under Sec. 68 of the Bihar and Orissa Excise Act, which is an appealable order under Section 8 of that Act. In our opinion the Board of Revenue is not correct in saying that the petitioner has forfeited the statutory right of appeal by payment of the composition fee. The second reason given by the Board of Revenue for dismissing the revision application is that the Excise Commissioner was right in dismissing the appeal on the ground of "default". In our opinion this line of reasoning is also not correct. Under the rules framed by the State Government under Section 89 of the Bihar and Orissa Excise Act there is no provision for dismissal of an appeal merely because the appellant had defaulted in making appearance before the appellate authority. The right of appeal is conferred by Section 8 of the Bihar and Orissa Excise Act which states: "8. (1) The Collector shall, in all proceedings under this Act, be subject to the control of the Excise Commissioner, and shall, in such matters as the State Government may direct, be subject also to the control of the Commissioner of the Division. (1) The Collector shall, in all proceedings under this Act, be subject to the control of the Excise Commissioner, and shall, in such matters as the State Government may direct, be subject also to the control of the Commissioner of the Division. (2) Orders passed under this Act or under any rule made hereunder shall be appealable in such cases, to such authorities and under such procedure as may be prescribed by rule made under Section 89, Clause (c). (3) The Board may revise any order passed by a Collector, the Excise Commissioner, or the Commissioner of a Division." 5. Section 89(c) of the Act grants rule-making power to the State Government for "declaring in what cases or classes of cases and to what authorities appeals shall lie from orders, whether original or appellate, passed under this Act or under any rule made thereunder, and for prescribing the time and manner for presenting, and the procedure for dealing with, such appeals." Rule 3 of the rules framed by the State Government provides as follows: "3. An appeal shall lie to the Excise Commissioner from any original order made by the Collector (but not from any original order made by an officer discharging functions of the Collector) and from any order made by the Collector on appeal: Provided that every memorandum of appeal relating to the cancellation, suspension or withdrawal of a licence for the retail sale of any excisable article from any order of any officer subordinate to the Collector as mentioned in Rule 2 shall be submitted to the Collector through the subordinate officer against whose order the appeal is made within fifteen days from the date of communication to the appellant of the order appealed against. Such petition of appeal shall invariably be forwarded to the Collector by the subordinate authority within ten days of its prementation with the original records of the case, if any, and with any observations that the officer forwarding it may wish to make thereon. Such petition of appeal shall invariably be forwarded to the Collector by the subordinate authority within ten days of its prementation with the original records of the case, if any, and with any observations that the officer forwarding it may wish to make thereon. Similarly an appeal to the Commissioner of Excise from any original order made by the Collector and from any order passed by the Collector on appeal shall be submitted within fifteen days from the date of communication of the Collectors order to the appellant and the Collector shall invariably forward the petition of appeal to the Commissioner of Excise within ten days of its presentation with both original and appellate records of the case and with any observations he may wish to make thereon. The period for the presentation of appeal shall count in all cases from the date of communication of the orders appealed against". Rule 5 states that "every memorandum of appeal shall be presented within six months from the date on which the officer preferring the appeal was informed of the order against which he appeals." Rule 6 further states that "every memorandum of appeal shall be accompanied by the order appealed against, in original, or by an authenticated copy of such order unless the omission to produce such order or copy is explained to the satisfaction of the appellate authority." It is manifest, therefore, that there is no provision either in the statute or in the rules, empowering the Excise Commissioner to dismiss an appeal for default of appearance of the appellant on the date fixed. Even if the appellant had defaulted in appearing on the date fixed, it was the duty of the Excise Commissioner to have disposed of the appeal on merits after perusing the petitioners memorandum of appeal, the report of the subordinate authority and the original record of the case forwarded to him under Rule 3. It is manifest that the procedure adopted by the Excise Commissioner in the present case is not warranted by law. If follows, therefore, that the order of the Excise Commissioner dated the 28th December, 1959, dismissing the appeal for default is illegal, ultra vires and without jurisdiction. It is manifest that the procedure adopted by the Excise Commissioner in the present case is not warranted by law. If follows, therefore, that the order of the Excise Commissioner dated the 28th December, 1959, dismissing the appeal for default is illegal, ultra vires and without jurisdiction. 6 Acting, therefore, in exercise of our authority under Article 227 of the Constitution we set aside the order of the Board of Revenue, dated the 4th June, 1960, and the order of the Commissioner of Excise, dated the 28th December, 1959, and order that the appeal should go back to the Commissioner of Excise for rehearing and disposal in accordance with law. 7. We accordingly allow this application. There will be no order as to costs.