JUDGMENT
S.K. Kapur, J.
1. The petitioner deposited 60 bags of unmanufactured tobacco weighing 75 maunds-6 seers in his private bonded warehouse vide warehouse entry No- 2/56 on 2nd July, 1956. It appears that the excise authorities took a representative sample of the goods and sent it to the Chemical Examiner for examination and report. The Chemical Examiner made his report on 23rd October, 1959. that the tobacco content was 51.9% calculated on the basis hat tobacco has ash content of 19%. From that report, the Excise authorities prima facie, came to the conclusion that the tobacco, originally warehoused, had been surreptitiously removed without payment of duty and substituted by an adulterated and inferior tobacco. The Supdt. Central Excise, Delhi, therefore, issued a ntoice to the petitioner on 23rd November, 1960, requiring him to show cause why the tobacco should nto be confiscated and penalty imposed on him for violation of various rules of the Central Excise Rules, 1944. Considerable correspondence passed between the parties and in his letters the petitioner inter alia Insisted an inspection of his application for destruction of tobacco, had bee recorded in the relevant register. The Superintendent however, required the petitioner to give him the particulars of that application as he had doubts regarding the petitioner having made any such application. According to the learned counsel for the petitioner, it was necessary to draw the attention of the Supdt. to the said application as the same showed that the tobacco, as originally deposited was unmarketable and there could have been no point in the petitioner substituting the same. The petitioner also enquired regarding the basis of the suspicion that the goods had been substituted and by his letter dated 15th March, 1961, the Supdt. replied that substitution stood confirmed from the report of the Chemical Examiner. The petitioner, therefore, demanded an opportunity to examine the Chemical Examiner to find out, inter alia, as to how he arrived at those calculations. He also wanted to get the samples analysed by some independent good chemist. According to the learned counsel for the petitioner, it was necessary to examine that Chemical Examiner to find out the basis of his calculations contained in his report and various toher things such as when and in what conditions was the sample sent to him and for how many days and how the sample was kept before actual analysis etc; The Supdt., however, declined the opportunity to the petitioner to examine the Chemical Examiner and his order inter alia observed :
“The party has been clearly told that the charge of substitution is based on the report of the Chemical Examiner, a relevant extract of which has been duly supplied to the party. As such, there is no provision of producing the Chemical Examiner for cross examination by the party. Further the fact of Central Excise Inspector having made a report for destruction of tobacco is no bar for starting proceedings for substitutions; coming to ntoice.”
2. In the reply affidavit, it has been admitted that an application for destruction of goods had been made. It is further stated in the said affidavit that “but is nto known whether the tobacco in question had in fact deteriorated to such an extent that it was in fact unfit for human consumption.” One of the contentions raised by the learned counsel for the petitioner was, that if the Supdt. had taken ntoe of that an application for destruction had been made on the ground that the tobacco was unremarkable and unfit for human consumption, that might have considerably influenced his mind in the matter. The learned counsel also argued that denial of an opportunity to examine the Chemical Examiner amounted to denial of natural justice.
3. By his order dated 5th October, 1961, the Supdt. of C.E. imposed a penalty of Rs. 50/- on the petitioner and ordered confiscation of the goods. He, however, gave an opportunity to the petitioner to get the goods released on payment of fine of Rs. 70/- in addition to the basic and additional excise duty, which came to over Rs. 7.000/-. The petitioner’s appeal before the Collector was rejected on 7th February, 1962 by the Collector, C.E., New Delhi for failure of the petitioner to deposit the Govt. dues, and his revision petition before the Central Government was also rejected on 16th January, 1963. The petitioner, therefore, filed the present writ petition impugning the aforesaid orders.
4. The main attack of the learned counsel was based on denial of natural justice as discussed in the earlier part of the judgment. In my opinion, denial of an opportunity to examine the Chemical Examiner constitutes such violation of natural justice as will entail the setting aside of the impugned orders. The petitioner was entitled to examine the Chemical Examiner to find out the basis of his report and also the treatment according to the sample between the period it was taken and analysed. For this reason, the three main orders have to be quashed,
5. Mr. Shankar, learned counsel for the respondents raised an objection that the petitioner failed to avail of alternative remedy, and therefore, the petition should nto be entertained. For the reasons given in Gupta Tobacco Corporation v. Collector, Central Excise (C.W. 156-D/1963) petition on the ground of existence of an alternative remedy.
6. The petition, therefore, succeeds and the three impugned orders are quashed, with no order as to costs.