Niketa Kishorekumar vs The Assistant Excise Commissioner and Others

P.A. Mohammed, J.—The dispute involved in this writ petition relates to the confiscation of a vehicle u/s 67B of the kerala Abkari Act (Act 1 of 1077) (for short the ''Act''). The Petitioner who is the owner of a Tanker Lorry bearing Registration No. KA03/1767 mainly seeks to quash Exts. P-2 and P-3 orders passed by the Respondents 1 and 2 respectively.

The case of the Petitioner can be concisely started thus: On 13th March 1992 the above vehicle was seized by the officers of the excise Department alleging that it was used for transportation of spirit without valid permit. Before confiscating the vehicle no show cause notice was issued to him. Therefore the Petitioner''s Counsel sent a petition on 30th March 1992 to the first Respondent, the Assistant Excise Commissioner, Waynad. In reply to the said letter the 1st Respondent sent Ext. P-2 letter dated 13th October 1992 to the Counsel. In Ext. P-2 it was revealed that the vehicle was taken possession by the 1st Respondent alleging that it was used for commission of offence under the provisions of the Act. It is further pointed out that it was used for transport of spirit without any valid permit which is punishable u/s 55(a) of the Act. The 1st Respondent further said that the above vehicle is liable for confiscation u/s 67(B) of the Act though a final order has not been passed in that regard. It is also stated in Ext. P-2 that the confiscation order will be sent to the Petitioner in due course. It is also brought to the notice of the Petitioner that the appellate authority in the present case is the Joint Excise Commissioner, Thiruvananthapuram. When the Petitioner received Ext. P-2 he readily filed Ext. P-1 appeal dated 24th November 1992 before the 2nd Respondent. The said appeal was disposed of by the 2nd Respondent as per Ext. P-3 dated 17th April 1993. By the said order the 2nd Respondent upheld the order of confiscation by the authorised officer in exercise of powers conferred on him u/s 67E of the Act. The 2nd Respondent further brought to the notice of the Petitioner that he is at liberty to prefer revision petition before the Commissioner of Excise Board of Revenue, Trivandrum against Ext. P-3 within a period of 30 days from the date of the order. This writ petition has been filed in the aforesaid background seeking to quash Exts. P-2 and P-3 orders as pointed out earlier.

On behalf of the 1st Respondent a counter-affidavit has been filed controverting the contentions in the writ petition. Along with the said counter-affidavit a copy of the order of confiscation dated 17th February 1993 has been produced as Ext. R-1(d). Ext. R-1(d) reiterates that the above vehicle has been confiscated to the Government u/s 67B(2) of the Act. The Counsel for the Petitioner submits that the copy of the said order has not been served on the Petitioner and therefore for the purpose of this writ petition Ext. P-2 order can be treated as an order of confiscation inasmuch as the appellate authority treated it so and Ext. P-3 is the appellate order passed by the 2nd Respondent.

The Counsel for the Petitioner predominantly contended that the observation of the 2nd Respondent in Ext. P-3 that the Petitioner can prefer a revision petition before the Excise Commissioner cannot be said to be legal or correct. He places emphasis on the provisions contained in Section 67F of the Act which reads thus:

Revision-

(1) The Commissioner may, before the expiry of thirty days from the date of an order passed u/s 67B or Section 67E, of his own motion, call for and examine the record of that order and may make such inquiry or cause such inquiry to be made and may pass such orders as he deems fit:

Provided that the Commissioner shall not call for and examine the record of any order passed u/s 67B if an appeal against such order is pending before the appellate authority:

Provided further that no order prejudicial to a person shall be passed under this section without giving him an opportunity of being heard.

(2) An order of the Commissioner under Sub-section (1) shall be final and shall not be called in question in any Court.

It is pointed out that what is contained in Section 67F(1) is a suo motu power available to the Commissioner for examining the record of any order passed under Sections 67B and 67E. After exercising the power of suo motu the Commissioner may make such inquiry or cause such inquiry to be made and may pass such orders as he deems fit. The contention of the Counsel appears to be correct if the provision is interpreted in its strict sense.

The question still remains whether a party whose appeal has been dismissed can request the Commissioner to exercise the revisional power by moving an application in that behalf. Section 67F does not as such authorise any party other than the Commissioner to invoke the power of revision against an order passed u/s 67B or u/s 67F. In this context it is appropriate to examine as to how the similar provisions contained in the other enactments has been construed by the Courts. It cannot be disputed that the power given to the Commissioner u/s 67F is very vide and the purpose of the provision is to render justice to the parties. A similar provision is contained in Section 35 of the K.G.S.T. Act. The said section authorises the Deputy Commissioner on his own motion to call for and examine any order passed or proceeding recorded under the Act by any officer or authority subordinate to him other than an Appellate Assistant Commissioner and to make such enquiry or cause such enquiry to be made and also to pass such order thereon as he thinks fit. The above provision came up for interpretation before the Division Bench of this Court in Deputy Commissioner v. Balachandran 1988 (1) KLT 233 : (1988) 69 S.T.C. 165. The Division Bench in the course of its judgment observed as below:

On a fair interpretation of Sections 35 and 36 of the Kerala Act, in the light of the various decisions mentioned above, we are of the view that the power of revision is conferred on the Deputy Commissioner to remedy injustice. The power is couched in very wide terms. The purpose for which the power of such amplitude is given is to safeguard the interest of the Revenue and also that of the Assessee. It is open to the Assessee or to the Revenue to bring it to the notice of the authority (Deputy Commissioner) any error made by a subordinate authority and it is for the Deputy Commissioner to consider whether the case is a fit one, in exercise of the revisional jurisdiction. Since the power of revision can be exercised to set right the error or illegality of a subordinate authority and it could be exercised for or against the Assessee, such power can be exercised, even if the Assessee has not filed an appeal against the order, for the purpose of setting right the improper or the illegal order. It is true that the language of Section 35 literally states that the power has to he exercised suo motu. When circumstances warranting the exercise of the power come to the notice of the concerned authority, the mere fact that the circumstances for the exercise of that power are show to exist, by the Assessee in a particular case, cannot be a factor or reason for the non-exercise or refusal to exercise the said power.

The principle laid down by the Division Bench in the above case, I am of the view, can be made applicable to the provisions contained in Section 67F of the Act. In substance the aggrieved party can bring the illegality or irregularity contained in an order passed u/s 67B or Section 67E to the notice of the Commissioner and request him to invoke the power conferred on him u/s 67F of the Act. When such request is made by the aggrieved party the Commissioner can exercise the power suo motu on the basis of the material brought to his notice Calling for and examining the records of the case in question. The Commissioner cannot refuse to invoke the power u/s 67F suo motu on the ground that no such right has been conferred on the aggrieved party. In the aforesaid premise the Petitioner is entitled to move the Commissioner requesting him to invoke the revisional power u/s 67F of the Act.

It is pertinent to note in this context that the 2nd Respondent Ext. P-3 has pointed out that the Petitioner is at liberty to prefer a revision petition before the Commissioner within a period of 30 days from the date of the order. In view of my finding recorded above, I think it would be appropriate to allow the Petitioner to file a petition in that behalf before the Commissioner within period of 30 days from today. It is relevant to note in this context that the Petitioner after filing the present writ petition had obtained an interim order from this Court staying the auction of the vehicle confiscated. I am told that the said interim order is now continuing in force. In case the Petitioner files the petition as above, the same shall be considered and decided by the Commissioner on merits. I also make it clear that the interim order passed by this Court in C.M.P. No. 18134 of 1993 shall be kept operative till a final decision is taken by the Commissioner as directed above.

There is yet another point to be considered in view of the provisions contained in the Kerala Abkari (Disposal of Confiscated Articles) Rules, 1996 passed by the Government in exercise of the powers conferred by Sub-section (1) and Clause (g) of Sub-section (2) of Section 29 of the Abkari Act F of 1077. The said Rules came into force with effect from 11th March 1996. It contains comprehensive provisions as to how the articles confiscated under the provisions of the Abkari Act has to be disposed of. Rule 3 provides that when an order for confiscation of any property passed u/s 67B or Section 67E or Section 67F of the Act has become final in respect of the whole or any portion of such property and such property or portion thereof as the case may be, had vested in the Government free from all encumbrances in pursuance of Section 67H of the Act, it shall be sold or disposed of or destroyed by the Officer-in-charge of the Excise Division after observing the procedure prescribed the present rules. Rule 4(1) deals with the procedure relating to the exercise of option of paying in lieu of confiscation of vessels, vehicles, etc. a fine equivalent to the market value thereof and release of property. Sub-rule 1(a) of Rule 4 is as follows:

When an authorised officer adjudging a confiscation of cart, vessel or other conveyance u/s 67E or 67F of the Act offers the owner of such property the option of paying in lieu of confiscation, a fine equivalent to the market value of the cart, vessel or other conveyance as fixed by the Mechanical Engineer of the Excise Department or any Mechanical Engineer of and above the rank of an Assistant Executive Engineer of the Public Works Department of the State, and if the owner of such property agrees to accept such option, he shall be required to pay forthwith such sum as may already have been spent towards the safe custody and upkeep of such property, and to deposit such further sum as may appear likely to be required for such purposes until the payment of the fine.

Sub-rule (2) of Rule 4 deals with procedure relating to temporary release of vessel, vehicle etc., liable to be confiscated on deposit of market value thereof. Sub-rule (2)(a) is as follows:

The cart, vessel or other conveyance liable to be confiscated under the Act may be released temporarily by the authorised officer to its owner on depositing an amount equivalent to the market value of the cart, vessel or other conveyance, fixed by the Mechanical; Engineer of the Excise Department or any Mechanical Engineer of and above the rank of an Assistant Executive Engineer of the Public Works Department of the State in the Treasury Savings Account in favour of the Commissioner of Excise.

The release of vehicle on exercising option to pay the fine in lieu of confiscation and the temporary release of vehicle on deposit of market value of the vehicle liable to be confiscated by the Government u/s 67B or 67F of the Act are intended to case down the rigour of law relating to confiscation and to preserve the confiscated properties from being wasted and damaged during the pendency of the adjudication of the dispute. It is a well known fact that large number of cases of this type are pending adjudication before different authorities. In all such cases the procedure prescribed under Rule 4 will apply in so far as the permanent and temporary release of confiscated properties on payment of fine equivalent to the market value of the property or on deposits of the market value, as the case may be. The market value of vessel or vehicle or any other properties shall be fixed by the Mechanical Engineer of the Excise Department or any Mechanical Engineer of and above the rank of an Assistant Executive Engineer of the Public Works Department of the State. It is also evident from the above rules, the owner of the confiscated properties can move for permanent or temporary release of the properties before the original or appellate or revisional authority under the Act as the case may be, where the adjudication is pending disposal. When request in that behalf is made by any aggrieved party the concerned authority cannot refuse to consider the request provided the provisions in that behalf are complied with by the person who seeks permanent or temporary release as the case may be, of the property confiscated. In the case of permanent release the authority shall finally decide the dispute before so doing.

In view of what is discussed above, I allow the Petitioner to move the Commissioner after filing the petition as directed in para 6 above, for temporary release the vehicle on deposit of the value of the confiscated vehicle under Rule 4(2) pending final adjudication of the dispute by him. If such a petition is filed by the Petitioner the Commissioner shall consider the same and take a decision thereon on merits and in accordance with law. The Original Petition is disposed of as above.