Excise Commissioner vs M/S Jain Black Movers ...
2023 Latest Caselaw 7527 Raj

[2023:RJ-JD:31167] (1 of 20) [CW-17477/2022]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Writ Petition No. 17477/2022

1. Excise Commissioner, Udaipur.

2. District Excise Officer, Udaipur.

----Petitioners Versus Vimal Jain W/o Subhash Chand Jain, Resident Of B-25, Jain Nagar, Meerut City, Up, Through Her Power Of Attorney Holder Subham Agarwal S/o Mukesh Agarwal, Resdident Of Sadar Kabri Bazar, Meerut, Uttar Pradesh.

----Respondent Connected With S.B. Civil Writ Petition No. 17304/2022

1. Excise Commissioner, Udaipur.

2. District Excise Officer, Udaipur.

----Petitioners Versus M/s Hmg Black Carrier, Through Its Partner Gautam Jain S/o Sh. Subhash Chand Jain, Resident Of B-25, Jain Nagar, Meerut City, Up, Through Its Power Of Attorney Holder Arun Kumar S/o Babu Ram, Resident Of Village Lisari Road, Meerut, Uttar Pradesh.

----Respondent S.B. Civil Writ Petition No. 17357/2022

1. Excise Commissioner, Udaipur, Udaipur.

2. District Excise Officer, Udaipur.

----Petitioners Versus Namrata Jain W/o Gautam Jain, Through Power Of Attorney Holder Subham Agarwal S/o Mukesh Agarwal, R/o Sadar Kabri Bazar, Meerut, Uttar Pradesh.

----Respondent S.B. Civil Writ Petition No. 17373/2022

1. Excise Commissioner, Udaipur.

2. District Excise Officer, Udaipur.

----Petitioners Versus M/s Jain Black Movers, Through Partner Gautam Jain S/o Subhash Chandra Jain, Resident Of B-25, Jain Nagar, Meerut City, Up, Residing At Village Lilsari, Lilsari Road, Meerut, Uttar Pradesh.

----Respondent S.B. Civil Writ Petition No. 17445/2022

[2023:RJ-JD:31167] (2 of 20) [CW-17477/2022]

1. Excise Commissioner, Udaipur, Udaipur.

2. District Excise Officer, Udaipur.

----Petitioners Versus M/s Madhu Transport, Through Partner Gautam Jain S/o Subhash Chandra Jain, R/o B-25, Jain Nagar, Meerut City, Up, Residing At Village Lilsari, Lilsari Road, Meerut, Uttar Pradesh.

----Respondent S.B. Civil Writ Petition No. 17446/2022

1. Excise Commissioner, Udaipur.

2. District Excise Officer, Udaipur.

----Petitioners Versus M/s Hmg Black Carrier, Through Its Partner Gautam Jain S/o Sh. Subhash Chand Jain, Resident Of B-25, Jain Nagar, Meerut City, Up, Through Its Power Of Attorney Holder Arun Kumar S/o Babu Ram, Resident Of Village Lisari Road, Meerut, Uttar Pradesh.

                                                                 ----Respondent



For Petitioner(s)          :    Mr. Praduman Singh.
For Respondent(s)          :    Mr. Himanshu Sharma.

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

21/09/2023

1. Since all the instant petitions involve a common controversy,

though with marginal variation in the contextual facts, therefore,

for the purposes of the present analogous adjudication, the facts

and the prayer clauses are being taken from the above-numbered

S.B. Civil Writ Petition No.17477/2022, while treating the same as

a lead case; rival submissions of the parties and the observations

of the Court, in the present order, would also be based,

particularly, on the factual matrix of the lead case.

1.1. The prayer clauses read as under:

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"A. The order dated 07.06.2022 (Annex.2) passed by the learned Tax Board, Ajmer may kindly be quashed and set aside and the appeal so filed by the respondent may kindly be rejected.

B. Any other relief which this Hon'ble Court deems fit in the interest of the Petitioner may kindly be granted. C. Cost of the writ petition may kindly be awarded to the petitioner."

2. Brief facts, which emanates from the pleadings, are that on

04.07.2015, a tanker (hereinafter also referred to as 'vehicle in

question') of the respondent was inspected by the District Excise

Officer (Distillery), Udaipur, during the course of which, theft of

the spirit was found.

2.1. Thereafter, the tanker in question was seized, whereupon

S.B. Civil Writ Petition No.7563/2016 (M/s. H.M.G. Bulk

Carriers Vs. State of Raj. And Ors.), was preferred before this

Hon'ble Court, which was decided on 01.08.2016, by passing the

following order:

"Learned counsel for the petitioner submits that the vehicle of the petitioner has been seized by the Excise Department and pursuant to that seizure the petitioner has moved an application under Section 69 (6) of the Rajasthan Excise Act, 1950 (hereinafter referred to as 'the Act of 1950') before the Excise Commissioner, Udaipur for releasing the vehicle. It is submitted that the aforesaid application of the petitioner is pending before the Excise Commissioner, Udaipur and till date no order has been passed, therefore, a direction be issued to Excise Commissioner, Udaipur to decide the application of the petitioner within a fixed period of time.

[2023:RJ-JD:31167] (4 of 20) [CW-17477/2022]

Dr Sachin Achayara puts in appearance on behalf of the Excise Department and submits that he has not objection if a direction is issued to the Excise Commissioner, Udaipur to decide the application of the petitioner preferred under Section 69 (6) of the Act of 1950 within a fixed time.

In view of the above, this writ petition is disposed of and the Excise Commissioner, Udaipur is directed to decide the application filed on behalf of the petitioner under Section 69 (6) of the Act of 1950 expeditiously preferably within a period of two weeks from the date of production of the certified copy of this order.

Stay petition also stands disposed of."

2.2. As the afore-quoted order would reveal, this Hon'ble Court

had directed the State/respondents therein to decide the issue of

releasing the Vehicle in question, while exercising jurisdiction

under Section 69(6) of the Rajasthan Excise Act, 1950

(hereinafter referred to as 'Act of 1950'). In compliance of the said

order dated 01.08.2016, the Excise Commissioner, Rajasthan,

Udaipur (also referred to as 'learned authority') passed an order

on 31.08.2016, whereby the learned authority, acting upon such

the aforementioned order dated 01.08.2016 passed by this

Hon'ble Court, took into consideration, amongst others, the fact

that out of 20,000 liters of spirit, which was there in the tanker in

question, 494 liters of spirit was found missing.

2.3. As regards, the admission of the tanker driver, namely,

Satendra Singh, pertaining to the missing quantity of the spirit,

the learned authority in its order dated 31.08.2016 made an

observation to the effect that the tanker driver accepted that he

had sold the spirit after stealing the same, while the rest was kept

[2023:RJ-JD:31167] (5 of 20) [CW-17477/2022]

with him. The learned authority also recorded in its order that the

tanker driver-Satendra Singh without breaking the seals had

managed to cause such theft upon which a prosecution case No.3

was lodged against him on 03.07.2015 under Section 16/54 of the

Act of 1950, while rest of the spirit was confiscated alongwith the

tanker in question.

2.4. It was also recorded by the learned authority in its order that

Mr. Jagdish Chandra Pal, who appeared before it as counsel on

behalf of the respondent, submitted that the tanker was operating

strictly in accordance with law, but the theft has been caused by

the driver for which the respondent cannot be blamed. Counsel

also submitted before the learned authority that the respondent

has a spirit transportation business all over the State of

Rajasthan.

2.5. The learned Authority further observed that the smuggling of

spirit was apparent and carrying the tanker without proper

security was a big risk. The learned Authority also took into

consideration the circulars of the State of Rajasthan dated

30.11.1961 and 21.08.2014 issued under Section 14 of the Act of

1950, and thereafter, arrived at a finding pertaining to a clear

violation of Section 16/54 of the Act of 1950.

2.6. The learned authority also observed that Section 54-A of the

Act of 1950 created a criminal liability, and in the present case, in

the garb of permit, the smuggling of spirit was apparent on the

face of the record. The learned authority further observed that no

defence as regards Section 54-A of the Act of 1950 has been

taken by the owner by presenting himself in person before the

learned authority. The learned authority thereafter proceeded to

[2023:RJ-JD:31167] (6 of 20) [CW-17477/2022]

decide the matter in compliance of the afore-quoted order passed

by this Hon'ble Court on 01.08.2016 and the provisions of Section

69 (6) of the Act of 1950, while finding that though the driver-

Satendra Singh had accepted that he had stolen the spirit in

question, but it was a mode of smuggling and the offence under

Section 16/54 of the Act of 1950 was proved.

2.6.1. The learned authority further observed that the offence

Section 54-A was also made out against the respondent herein, as

he was deemed to be guilty, and thus, a penalty of Rs.6,00,000/-

was imposed upon the owners/respondents, while ordering for

auction of the vehicles in question under Section 69(7) of the Act

of 1950, if the penalty is not deposited within the stipulated time;

the relevant portion of the order dated 31.08.2016 passed by the

learned authority is reproduced as hereunder:

"esjs }kjk izLrqr izdj.k esa lHkh rF;ksa] ifjfLFkfr;ksa] miyC/k nLrkostksa ,oa ekuuh; jktLFkku mPp U;k;ky;] tks/kiqj esa nk;j ,l-ch- flfoy fjV ihVh'ku la[;k 7563@2016 ds vUrxZr ikfjr fu.kZ; fnukad 01-08-2016 vkfn dk v/;;u fd;k x;kA izFke lwpuk izfrosnu ds vuqlkj mDr okgu Vsadj jftLVªs'ku uEcj UP-15-AT-1391 dks oS| ijehV dh vkM+ esa okgu pkyd lrsUnz flag }kjk izdj.k esa ;g Lohdkj fd;k x;k fd mDr Vsadj esa ls fLizV mlh ds }kjk fudky dj csph xbZ ,oa 'ks"k vius ikl fBdkus j[kh xbZ FkhA okgu pkyd us Vsadj ij yxh lhy dks rksM+s fcuk gh fofHkUu rjhdksa ls NsMNkM+ dj fLizV psacj esa ls fLizV fudkyh xbZ rFkk lkFk gh mDr Vsadj esa ,d fMi jkWMlZ cjken gqbZ ftlds ckjs esa okgu pkyd }kjk gh tkfgj fd;k x;k fd ;gh fMi jkWM vlyh gSA blls Li"V izrhr gksrk gS fd okgu pkyd dh ea'kk fLizV pksjh dj mldk voS/k dkjksckj djuk FkkA izdj.k esa ckn ekSdk dk;Zokgh esa Vsadj pkyd lrsUnz flag }kjk LoSPNk ls crk;k x;k fd Vsadj esa ls mlds }kjk fudkydj csph xbZ fLizV esa ls 'ks"k jg xbZ fLizV dks cjken djokuk pkgrk gSaA pkyd lrsUnz flag }kjk crk;s x;s vuqlkj LFkku ij ys tkdj mlds }kjk NqikbZ xbZ ,d IykfLVd tjhdsu esa Hkjh djhcu 05 yhVj fLizV mlds vkf/kiR;

[2023:RJ-JD:31167] (7 of 20) [CW-17477/2022]

ls cjken dh xbZA bl izdkj okgu Vsadj la[;k UP-15-AT-1391 dks 'ks"k 19]506 yhVj fLizV ds lkFk tCr fd;k x;k ,oa blh vk/kkj ij vkcdkjh fujh{kd o`Rr&ekoyh] ftyk mn;iqj }kjk jktLFkku vkcdkjh vf/kfu;e 1950 dh /kkjk 16@54 ds vUrxZr izFke lwpuk izfrosnu tkjh fd;k x;kA iz'kuxr izdj.k esa mDr okgu esa tCr 'ks"k fLizV 19]506 yhVj ds fuLrkj.k ds lac/k esa jktLFkku vkcdkjh vf/kfu;e] 1950 dh /kkjk 69 ¼2&[k½ esa izko/kku gS fd vkcdkjh ;ksX; oLrqvksa ds vkf/kiR; ifjnku fuLrkj.k vkSj fuZeqDr djus ds lac/k esa vkns'k tkjh djus dh vf/kdkfjrk ftyk vkcdkjh ds ikl gksus ls tCr'kqnk fLizV ls lcaf/kr vU; dksbZ fof/kd dk;Zokgh lacf/kr ftyk vkcdkjh vf/kdkjh }kjk lEikfnr dh tk,xhA mDr izdj.k esa VªkaliksVZj@vkosnd Jh fo'kky dqekj xqIrk dks funsZf'kr fd;k tkrk gS fd muds }kjk fLizV ds O;olk; esa lapkfyr Vsadjksa ij yxk;s tkus okys pkydksa dk iw.kZ pfj= lR;kiu lacf/kr iqfyl foHkkx }kjk djok;k tk,sa rFkk lkFk gh fLizV ifjogu ds nkSjku Vsadj esa vR;k/kqfud th-ih-,l- (G.P.S.) iz.kkyh ykxw djus ds lkFk gh dEiuh ds ,d vf/kd`r vfHk;kaf=d O;fDr dks Hkh Vsadj ds lkFk fu;kZrd bdkbZ rd tkus gsrq ikcan fd;k tk,sa ,oa chp&chp jkLrs esa dEiuh dh vksj ls pSafdax lqfo/kk miyC/k djkbZ tk,sa rkfd pkyd }kjk chp jkLrs Vsadjksa ds lkFk voS/kkfud :i ls f[kyokM+ dj fLizV pksjh dh bl izdkj dh ?kVukvksa ls cpk tk ldsA mDr izdj.k esa VªkaliksVZj@vkosnd Jh fo'kky dqekj xqIrk dks funsZf'kr fd;k tkrk gS fd izdj.k esa tCr okgu Vsadj la[;k UP-15-AT-1391 ds pkyd lrsUnz flag dk lacaf/kr ftyk ifjogu vf/kdkjh ls O;fDrxr :i ls lEidZ dj mDr pkyd ds MªkbZfoax ykblsaUl dks fujLr djokus dh dk;Zokgh lqfuf'pr djkosa rkfd fudV Hkfo"; esa dksbZ tugkfu u gks ik;s ,oa mlds }kjk lapkfyr vU; dksbZ okgu dk nq:i;ksx u gks ik;sA i=koyh ij ,slk dksbZ lk{; miyC/k ugha gS ftlls ;g Li"V gksrk gks fd okgu Lokeh us vius okgu dks jktLFkku vkcdkjh vf/kfu;e] 1950 dh /kkjk 69 ¼4½ ds izFke izksfotks ds vUrxZr vius okgu dks vkcdkjh vf/kfu;e ds vUrxZr ?kfVr vijk/k esa iz;qDr gksus ls cpko vFkok lko/kkuh cjrh gks] bl fLFkfr esa okgu vf/kgj.k (Confiscate) fd;k tkuk fof/klEer gSA

jktLFkku vkcdkjh vf/kfu;e] 1950 ds vUrxZr vkcdkjh foHkkx }kjk o"kZ 2008&09 ls o"kZ 2015&16 rd dh vof/k esa izfro"kZ Øe'k% 283] 370] 379] 381] 328]249] 280 ,oa 289 okgu voS/k :i ls

[2023:RJ-JD:31167] (8 of 20) [CW-17477/2022]

efnjk ,oa vkcdkjh ;ksX; oLrqvksa ds ifjogu esa iz;qDr gksus ds dkj.k vkcdkjh vijk/kksa esa tCr fd;s x;s gSA ;g vkadM+s voS/k 'kjkc dh rLdjh esa okguksa ds iz;qDr gksus dh okjnkrksa esa o`f) gksuk izekf.kr djrs gSA vijkf/k;ksa dh bl eukso`fr ij vadq'k yxkus ds fy, tCr okguksa ij U;k;laxr tqekZuk jkf'k vkjksfir fd;k tkuk U;k;ksfpr izrhr gksrk gSA blls vijkf/k;ksa dh voS/k 'kjkc dh rLdjh djus dh izo`fr esa fod"kZ.k gksxkA jktLFkku vkcdkjh vf/kfu;e] 1950 esa bl rjg ds voS/k efnjk ,oa vkcdkjh ;ksX; oLrqvksa ds ifjogu] Hk.Mkj.k ,oa fodz; ij vadq'k yxkus gsrq Hk;ksijks/kh fuokjd (Deterrent) izko/kku gS rFkk bldk m)s'; ,sls O;fDr;ksa dks grksRlkfgr (Demoralise) djuk gS tks efnjk ,oa vkcdkjh ;ksX; oLrqvksa ds voS/k O;olk; esa fyIr gSA jktLFkku vkcdkjh vf/kfu;e 1950 dh /kkjk 69 ds izko/kkuksa vuqlkj vkcdkjh ;ksX; oLrqvksa ds voS/k ifjogu esa iz;qDr okguksa ij muds orZeku cktkj ewY; rd tqekZuk jkf'k vkjksfir dh tk ldrh gSA bl izdj.k esa vkosnd tfj;s vf/koDrk }kjk THE NEW INDIA ASSURANCE

COMPANY LIMITED ikWfylh la[;k 32220231140100001238 fnukad 27-08-2014 dh izfr izLrqr dh xbZ gSA ftlesa okgu dk cktkj ewY; 8]00]000@& :i;s n'kkZ;k x;k gSA mDr okgu Vsadj jftLVªs'ku uEcj UP-15-AT-1391 jktLFkku vkcdkjh vf/kfu;e ds izko/kkuksa ds rgr vkcdkjh ;ksX; oLrqvksa ds oS/k ijfeV dh vkM+ esa rLdjh fd;s tkus ls vf/kgj.k ;ksX; gS] rnuqlkj okgu ds vf/kgj.k ls eqfDr ds fodYi esa tqekZuk jkf'k okgu ds cktkj ewY; ,oa izkFkhZ }kjk fd;s x;s vijk/k dks ,oa izdj.k esa ikfjr ekuuh; mPp U;k;ky; }kjk ,l-ch- flfoy fjV ihfV'ku la[;k 7563@2016 ds vUrxZr ikfjr fu.kZ; fnukad 01-08-2016 dh ikyuk n`f"Vdks.k dks e/;utj j[krs gq, okgu Lokeh ij jktLFkku vkcdkjh vf/kfu;e] 1950 ds izko/kkuksa ds rgr tqekZuk jkf'k vkjksfir dh tkuh gSA vr% mDr tCr okgu ij :i;s 6]00]000@& ¼:i;s N% yk[k ek=½ tqekZuk jkf'k vkjksfir dh tkrh gSA ;g vkns'k jktLFkku vkcdkjh vf/kfu;e 1950 dh /kkjk 16@54 ds vUrxZr iathd`r vfHk;ksx ds v/;;/khu fd;k x;k gSA bl vkns'k ds rgr 15 fnu dh vof/k esa okgu Lokeh@vkosnd }kjk :i;s 6]00]000@& dh tqekZuk jkf'k jktdks"k esa tek djok dj okgu dks vf/kgj.k ls eqDr ugha djok;k tkrk gS rks okgu dks vf/kgfjr ekurs gq, ftyk vkcdkjh vf/kdkjh] mn;iqj jktLFkku vkcdkjh

[2023:RJ-JD:31167] (9 of 20) [CW-17477/2022]

vf/kfu;e] 1950 dh /kkjk 69 ¼7½ ds vUrxZr fu;ekuqlkj okgu jftLVªs'ku uEcj UP-15-AT-1391 dh uhykeh dh dk;Zokgh djsaA jktLFkku vkcdkjh vf/kfu;e 1950 dh /kkjk 9 A ds vUrxZr bl vkns'k dk vihyh; U;k;ky; ekuuh; jktLFkku dj cksMZ] vtesj gSA "

2.7. Thereafter, the said order dated 31.08.2016, upon being

challenged before the learned Rajasthan Tax Board, Ajmer (also

referred to as 'learned Tax Board'), was reversed vide the

impugned judgment dated 07.06.2022, on the ground, amongst

others, that the 'deemed to be guilty' as provided under Section

54-A of the Act of 1950 was not made out as the petitioner-

Department itself confirmed that no proceeding was pending with

regard to Section 54-A of the Act of 1950.

2.7.1. The learned Tax Board in the impugned judgment has also

examined and concluded that the penalty imposed by the learned

authority was unlawful because in the given factual matrix, no

case for imposition of penalty under Section 69 of the Act of 1950

was made out, as per Section 54-A of the Act of 1950, which is a

mandatory provision. The learned Tax Board has also gone into

the merits of the case and found that the irregularities on the part

of the tankers in question were not of such a nature, which would

attract such penalty.

3. Mr. Praduman Singh, learned counsel appearing on behalf of

the petitioner-Excise Commissioner submits that the impugned

judgment of the learned Tax Board suffers from grave legal

infirmity, because the observation of the learned Tax Board that

the owner of the vehicle in question has already suffered losses

due to a penalty having been imposed by the contractor(s) as a

part of the contractual agreement between the two private

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parties, is not a proposition which could have been gone into by

the learned Tax Board; the payment of Rs.17,32,208/- as per the

contractual breach of the agreement dated 15.10.2014 can have

no bearing in the present case.

3.1. Learned counsel further submits that the learned authority

was bound by the orders of the learned Single Bench of this

Hon'ble Court as well as the Division Bench of this Hon'ble Court,

and thus, a decision to impose penalty while invoking Section 69

(6) of the Act of 1950 and auctioning of the vehicle in question in

a public auction was justified.

3.2. Learned counsel also submits that the learned Tax Board has

gone into Section 54-A of the Act of 1950, which is for punishment

to the owner, and though Section 54-A of the Act of 1950 was not

invoked in the present case, but independent of it, Section 69 of

the Act of 1950 can be invoked, as it is exclusively for the vehicle

in question.

3.3. Learned counsel further submits that absolving of the

respondent under the first proviso to Section 54-A of the Act of

1950 was not appropriate, because the learned Tax Board ought to

have realized that the missing of the spirit was nothing, but an act

of theft; moreover, it was also smuggling of the spirit.

3.4. Learned counsel also submits that it was within the ambit of

the petitioner to have imposed the penalty in question, as per the

mandate of Section 69 of the Act of 1950.

3.5. Learned counsel also submits that the proceedings under

Section 58 (c) of the Act of 1950 were to be dealt with separately

[2023:RJ-JD:31167] (11 of 20) [CW-17477/2022]

because those were against the civil liability of the owner of the

vehicle in question.

4. On the other hand, Mr.Himanshu Choudhary, learned counsel

for the respondent, while effectively assisting the Court, has

opposed the submissions made on behalf of the petitioner, and

submitted that since Section 54-A of the Act of 1950 was not

invoked, therefore, the owner's absolute liability would not come

in and the order of the learned authority was solely based on the

'deemed to be guilty' part of Section 54-A of the Act of 1950, and

thus, the order of the learned authority was bad, and thus, the

same has rightly been interfered with by the learned Tax Board

vide the impugned judgment.

4.1. Learned counsel further submits that the first proviso to

Section 69 (4) of the Act of 1950 clearly requires the authority to

have applied its mind, on the issue as to whether the owner had

no reason to believe that such offence was being or likely to be

committed, and whether he had exercised due care and caution

for prevention of commission of such offence. Learned counsel

also submits that there was gross failure on the part of the

authority to act upon the first proviso to Section 69 (4) of the Act

of 1950, in the matter as done.

4.2. Learned counsel further submits that if at all the

proceedings under Section 58 (c) of the Act of 1950 were to be

carried out, the maximum amount of penalty, which could be

imposed, was Rs.5,000/- only.

4.3. Learned counsel also submits that they had certainly

approached this Hon'ble High Court earlier in the year 2016 by

preferring the aforementioned S.B. Civil Writ Petition

[2023:RJ-JD:31167] (12 of 20) [CW-17477/2022]

No.7563/2016, as the tanker was not released, but that was only

to ensure efficacious and quick disposal of the tanker in question,

whereas the learned authority has proceeded, as if it has been

directed to impose penalty upon the respondent-owner.

4.4. Learned counsel further submits that there was no mandate

to impose the penalty in question, rather the mandate was only to

consider the case of the petitioner on its merits, and on merits, no

case was made out, as the owner had taken all requisite and

necessary steps, which comes within the purview of his exercising

due care and caution in prevention of the commission of such

offence. Learned counsel thus submits that the impugned

judgment passed by the learned Tax Board was in accordance with

law.

5. Heard learned counsel for the parties as well as perused the

record of the case.

6. This Court finds that the scheme of law creates an absolute

liability upon the owner under the Act of 1950 for violation of the

excise law under Section 54 of the Act of 1950; such absolute

liability has been created by virtue of the Section 54-A, which

reads as follows :-

"54-A. Owner of animal, cart, vessel, raft, motor vehicle or any other means of conveyance deemed to be guilty in certain cases.- Where any animal, cart, vessel, raft, motor vehicle or any other means of conveyance is used in the commission of an offence under this Act, and is liable to confiscation, the owner thereof, except in case of a motor vehicle or other means of conveyance being owned by the Central Government or any State Government or any of their undertaking, shall be deemed to be guilty of such offence and such owner shall be liable to be proceeded

[2023:RJ-JD:31167] (13 of 20) [CW-17477/2022]

against and punished accordingly unless he satisfies the Court that he had no reason to believe that such offence was being or likely to be committed and he had exercised due care in the prevention of the commission of such an offence."

7. This Court is conscious of the fact that the petitioners have

not proceeded under Section 54-A of the Act of 1950, as admitted

by their officers and recorded by the learned Tax Board in the

impugned judgment. The deliberation by the learned authority as

well as by the learned Tax Board was about the 'deemed to be

guilty' part, as far as the owners/respondents are concerned,

pertaining to Section 54-A of the Act of 1950.

8. The owners/respondents cannot be held 'deemed to be

guilty' because no such proceedings were pending, does not seem

to be plausible course of action by the learned authority and the

learned Tax Board, because once the Hon'ble High Court in an

earlier order date 01.08.2016 gave a specific direction that

authorities were to proceed under Section 69 of the Act of 1950,

which was to deal with the confiscation and not to deal with the

criminal liability of the owner, which is specifically there in Section

54-A of the Act of 1950; whereas the liability, which will accrue

out of the vehicle in question alongwith all other articles, has to be

dealt with under Section 69 of the Act of 1950.

8.1. Thus, Section 69 of the Act of 1950 is the part where

irrespective of continuance or non-continuance of the proceedings

under Section 54-A of the Act of 1950 once the offence was found

to have been committed and the vehicle in question had to be

released, then the jurisdiction would be as per Section 69 (6) of

the Act of 1950; the said Section 69(6) reads as under:-

[2023:RJ-JD:31167] (14 of 20) [CW-17477/2022]

"69. What things are liable to confiscation:-

1......

2......

(6) Whenever any means of conveyance as referred to in Clause (e) of Sub-section (1) is seized in connection with commission of an offence under this Act, the Excise Commissioner or any officer authorised in this behalf by the State Government shall have, and, notwithstanding anything contained in any law for the time being in force any Court, Tribunal or other authority shall not have, jurisdiction to make order with regard to the possession, delivery, disposal, release of such means of conveyance."

9. Section 69 (4) of the Act of 1950 is the specific provision

which is dealing with the conveyance, and since the present

controversy narrows down to the conveyance, therefore, Section

69 (4) of the Act of 1950 is the provision which has maximum

significance in the present adjudication; the said Section 69 (4)

reads as follows:-

"69. What things are liable to confiscation:-

1......

2......

3......

4. Where any means of conveyance referred to in Clause

(e) of Sub-section (1) is seized in connection with the commission of any offence under this Act, a report of such seizure shall, without unreasonable delay, be made by the person seizing it to the Excise Commissioner or to the officer, not below the 34 rank of the District Excise Officer, as may be duly authorised by the State Government in this behalf and whether or not a prosecution is instituted for commission of such an offence, the Excise Commissioner or the officer authorised in this behalf by the State Government, having jurisdiction over the area where the said means of conveyance was seized, may, if satisfied that

[2023:RJ-JD:31167] (15 of 20) [CW-17477/2022]

the said means of conveyance was used for commission of offence under this Act, order confiscation of the said means of conveyance:

Provided that before ordering confiscation of the said means of conveyance a reasonable opportunity of being heard shall be afforded to the owner of the said means of conveyance and if such owner satisfies the Excise Commissioner or the officer authorised by the State Government in this behalf that he had no reason to believe that such offence was being or likely to be committed and he had exercised due care in the prevention of the commission of such an offence, the Excise Commissioner or the officer authorised by the State Government in this behalf, may not confiscate the said means of conveyance:

Provided further that where such means of conveyance is owned by the Central Government or any State Government or any of their undertaking, no order of confiscation of such means of conveyance shall be passed by the Excise Commissioner or an officer authorised by the State Government in this behalf and the matter shall be referred to the State Government by the Excise Commissioner or the officer authorised by the State Government in this behalf, for making such orders regarding means of conveyance as the State Government may deem fit:

Provided also that before ordering confiscation under this sub-section the owner of the means of conveyance, referred to in Clause (e) of Sub-section (I), may be given an option to pay in lieu of confiscation, a fine not exceeding the market price of such means of conveyance."

10. This Court further finds that the legislative intention of

Section 69(4) of the Act of 1950 was that the conveyance, which

was seized after satisfaction of the concerned authority to the

effect that it was used for commission of the offence under the Act

of 1950, such confiscation was to be ordered. The first proviso to

Section 69(4) provides a safeguard to the owner, if he could prove

[2023:RJ-JD:31167] (16 of 20) [CW-17477/2022]

due care, which he has taken for prevention of commission of the

offence; the second proviso to the said Section deals with an

exception to the vehicle/conveyance being owned by the Central

Government, State Government or any of their undertaking; and

the third proviso gives a right to the authority to provide for an

option to pay, in lieu of confiscation, a fine not exceeding the

market price of the means of conveyance.

11. The in-depth adjudication made in the impugned orders as

regards Section 54-A of the Act of 1950 may not be relevant at

this stage, because once the offence is committed and the Excise

Commissioner/ learned authority was convinced that the

conveyance was used in commission of the offence, which is the

case herein, the ambit of the case will narrow down to Section 69

(4) of the Act of 1950 and Section 69 (6) of the Act of 1950,

whereby the conveyance was to be dealt with by the authorities in

question.

12. This Court also finds that the confiscation of the vehicle was

justified in the present facts and circumstances because there is

no doubt that the tanker(s) in question was involved in the theft of

spirit, which is an offence under the Act of 1950, and thus, as a

conveyance, it was required to be confiscated, and was thus,

rightly confiscated. The presence or absence of the proceedings

under Section 54-A of the Act of 1950 thus would have no bearing

on this case.

12.1. The authority has rightly exercised its discretion to the

extent that it was convinced that the tanker(s) in question was

involved in the offence under the Act of 1950, and thus, it was

liable to be saddled with the penalty which could be to the extent

[2023:RJ-JD:31167] (17 of 20) [CW-17477/2022]

of market price of the conveyance, as an alternate to the release

of the conveyance. In this case, the conveyances have already

been auctioned and the amount in question, which is the market

price, is lying with the petitioner-Department.

13. The only point of consideration, which remains is the

application of Section 69 (4) proviso (1) of the Act of 1950, by

which the owner has been given a liberty to establish before the

authority that he had exercised due care in prevention of the

commission of the offence and there was no reason to believe that

such offence was being likely or to be committed due to his

negligence.

14. This Court also finds that the learned authority has come to

the conclusion in its order that the driver of the tanker, namely,

Satendra Kumar has accepted that he has committed the theft of

the spirit in question for the purpose of the same to earn undue

profits. The learned authority has also taken into count that all the

documents of the tanker(s) including valid permits etc. were there

with the owner(s) of the vehicle(s) and a driver(s) with a valid

licence to drive the vehicle(s) was engaged by the owner(s) to

transport the spirit. In the whole factual matrix, the learned

authority could not point out as to where the respondents as

owners had failed to exercise due care and caution for prevention

of the commission of the offence.

15. This Court further finds that the learned Authority has only

gone into the seriousness of the offence, but has completely

ignored the statement of the driver admitting committing the theft

and then getting the offence compounded. There is nothing on the

record as well as in the order of the learned authority, which could

[2023:RJ-JD:31167] (18 of 20) [CW-17477/2022]

suggest that such due care was not taken by the respondents

(owners). However, the onus was upon the respondents to have

further put thrust on the issue. For balancing the equities, the

learned Tax Board has narrated the eventuality in Paragraph-18 of

the impugned judgment dated 07.06.2022, which reads as under:

"18. izLrqr ekeys esa rks vihykFkhZ ds i{k esa tks fcUnq ik;s tkrs gS] os bl izdkj gS& ¼i½ foHkkx }kjk ckn tkap ;g ik;k x;k fd fofHkUu VSsadjksa esa FkksM+h&FkksM+h ek=k esa tks fLifjV de ikbZ xbZ og MªkbZojksa us ykypo'k fudky yh Fkh mldk dqN Hkkx mUgksaus csp fn;k o dqN muls cjken gqbZSA ¼ii½ fMLVyjh }kjk okgu lhycan gkyr esa Hkstk x;k Fkk ijUrq okgu pkydksa us lhy rksM+s fcuk gh fLifjV pSacj esa ls fLifjV fudky yhA muds ikl nks fMi jkWMl cjken gqbZ Fkh ftuesa ls ,d udyh FkhA ¼iii½ foHkkx }kjk okgu vf/kdj.k djus dh n'kk esa /kkjk 54&, ds rgr vkjksi i= is'k djuk vkKkid Fkk ijUrq foHkkx }kjk okgu ekfyd dh dksbZ feyhHkxr ugha ik;s tkus ds vk/kkj ij vkjksi i= is'k gh ugha fd;k x;kA vr% okgu ekfyd dks viuk okgu NqM+kus dk vf/kdkj Hkh fey x;k gSA foHkkx ds fy;s ;g lEHko ugha gS fd og okgu ekfyd dks nks"kh Hkh ugha ekus vkSj nwljh rjQ mldk okgu fjyht ugha djds /kkjk 69 ds rgr tqekZuk Hkh yxk;sA ¼iv½ vkcdkjh vk;qDr us okgu ekfyd }kjk cjrh tkus ;ksX; nks lko/kkfu;ksa dk mYys[k fd;k gS tks okgu ekfydksa }kjk ugha cjrh xbZ gS tks fd VSsadj esa vR;k/kqfud GPS iz.kkyh yxk;h tkuh pkfg;s ftlls MªkbZoj @okgu dh Vªsfdax lEHko gks rFkk nwljh ,d vfHk;kaf=dh O;fDr dks Hkh Vsadj ds lkFk Hkstuk pkfg;sA vkcdkjh vk;qDr }kjk nf'kZr mijksDr nksuksa fcUnq xkSj djus ;ksX; gSa ijUrq gekjs le{k ,sls dksbZ fu;e is'k ugha fd;s x;s ftlls budh ikyuk djuk vkKkid gksA vr% okgu ekfyd }kjk mDr lko/kkfu;k cjrh tkus okyh vko';d lko/kkfu;ksa esa ugha vkrhA "GPS iz.kkyh ls okgu dh Vªzsfdax dh tk ldrh gS rFkk MªkbZoj ds lkFk&lkFk 'kjkc Hkstus okyh fMLVyjh ;k okgu ekfyd dk ,d ftEesnkj vkneh lkFk gksus ls MªkbZoj ds

[2023:RJ-JD:31167] (19 of 20) [CW-17477/2022]

ysoy ij okgu esa ls 'kjkc dh pksjh djus esa enn fey ldrh gS ijUrq okgu ekfyd }kjk cjrh tkus okyh lko/kkfu;ksa ds ckcr ,d vf/kdkfjd xkbZMykbZUl tkjh dh tkuh pkfg;s ftlls lnHkkfod okgu ekfyd viuk cpko ys ldsA

¼v½ gekjs le{k tks nLrkost is'k fd;s x;s gS muds vuqlkj 'kjkc fuekZrk dEiuh ij ijfeV dh 'krksZ dk mYya?ku djus ij yxh gqbZ 'kkfLr jkf'k :i;s 20]50]142@& :i;s okgu ekfyd ds vokMZj ;qukbZVsM fLifjVl us tfj;s MsfcV uksV lafonk dh 'krksZ ds vuq:i okgu ekfydksa ls olwy dj fy;s gSA vr% vius MªkbZoj dh xyrh dh {kfriwfrZ okgu ekfydksa }kjk dh tk pqdh gS vr% Civil Loss okgu ekfydksa }kjk Hkqxrk tk pqdk gS rFkk dksbZ Criminal Case muds fo:) ugha gS ftlesa os viuh funksZf"krk lkfcr dj ldsaA

¼vi½ tks fLifjV ifjogu ds nkSjku fudkyh xbZ gS og vkSlru dqy fLifjV dk 3 izfr'kr ls Hkh de gSA dqy fLifjV ok"ihd`r Hkh gks tkrh gS gkykafd de gqbZ fLifjV vuqKs; lhek ¼permissable limit½ ds ckgj gS] vr% mudk pksjh fd;k tkuk lkfcr gSA"

16. The dimension of the spirit theft is thus, writ large. Although

the learned Tax Board was not required to go into the mandatory

provision of Section 54 -A of the Act of 1950 as there was already

a direction of this Hon'ble Court to go ahead with Section 69 (6) of

the Act of 1950, which is an independent provision and the said

direction was holding the field.

17. Looking into the overall perspective, this Court finds that the

only scope of intervention in the order of the learned authority

was that the learned authority had exceeded in his endeavour to

punish the owners and has not taken into account the fact that the

driver-Satendra Singh has owned the responsibility of the theft,

and the matter has been closed by the Excise Department; since

nothing is on record, which could suggest that the owners

(respondents) had not taken due care for prevention of

[2023:RJ-JD:31167] (20 of 20) [CW-17477/2022]

commission of the offence in question, therefore, the penalty so

imposed does not commensurate with the act of the owners,

though they cannot be left scot-free in view of the absolute

liability in absence of their own defence, which they failed to

establish before the learned authority.

18. Thus, in a limited intervention, the impugned judgment

dated 07.06.2022 passed by the learned Tax Board is modified to

the extent that the petitioner-Department shall be entitled to

deduct 25% of amount, to the extent of market price of the

vehicle (conveyances) in question, out of the amount so lying with

it, in lieu of release of the conveyances in question, and after such

deduction, in case any amount remains, the same shall be

refunded back forthwith to the owners (respondents) of the

vehicles in question.

19. With the aforesaid observations and directions, the present

petitions stand disposed of. All pending applications also stand

disposed of.

(DR.PUSHPENDRA SINGH BHATI), J.

7-/Jitender//-

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