TaxTMI 
TaxTMI 
2020 (5) TMI 538
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....resented by his attorney Sri Merengkaba and Sri I. Olem represented by his attorney Sri Yashi Long kumer respectively. The petitioners are license holders of Para Military Bonded Warehouses based in Dimapur and engaged in the supply business of wholesale Indian Made Foreign Liquour (IMFL) to Para Military Forces in the State of Nagaland by importing it from other parts of India. The petitioners possessed valid license for wholesale vend of "IMFL". Both the petitioners each on 18.11.2019 imported three number of consignments containing 1600 cases each of IMFL under valid import permits bearing Nos. (i) 59/RT/PMBW/IMFL/19-20, (ii) 60/RT/PMBW/IMFL/19-20 and (iii) 57/RT/PMBW/IMFL/19-20 in WP(C) No.9322/2019, (iv) 61/RAE/PMBW/IMFL/19-20, (v) 60/RAE/PMBW/IMFL/19-20 and (vi) 63/RAE/PMBW/IMFL/19-20 in WP(C) No.9338/2019, all dated 11.11.2019 issued by the Commissioner of Excise, Government of Nagaland, Dimapur, i.e. the respondent No. 5 to be exported by M/S United Brothers Distillers Pvt. Ltd. Naharlagun, Arunachal Pradesh under valid export permits bearing Nos. (i) Ex-Export/UBDPL/81/19-20, (ii) Ex-Export/UBDPL/82/19- 20 and (iii) Ex-Export/UBDPL/79/19-20 in WP(C) No. 9322/2019, (iv) Ex-....
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....00, it is his contention that none of the offences as stipulated therein covers the act of export and import by the petitioners inasmuch as there were no contravention of any of the provisions under the Act, 2000 or Rules or any license, permit or pass granted under it in respect of manufacture, import, export, transport in order to possess any materials etc nor the said act of transportation of the "IMFL" consignments violated Section 54 of the Act, 2000 as the petitioners neither illegally imported the consignments nor the same were exported illegally. But even then the respondents broke open the digital locks without any authority. The consignments were exported under a valid license issued by the respondent No. 6 to be imported by the petitioners on the basis of valid permits issued by the respondent No. 5. The said transportation of the consignments were through Assam as per the defined route indicated by the respondent No. 6 in the excise passes and as such the process of export and import were not initiated nor completed within the territory and to the extent the Act of 2000 is applicable. 6. Referring to the affidavit-in-opposition of the respondent Nos. 1, 2 and 4 and the....
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....export permit and physical verification report were enclosed. It also concluded that the permits were fake one and the consignments of IMFL under the permit were not fit for human consumption and samples from the items were taken and submitted to the Chemical Analyser of Excise Department, Assam for analysis and report on 23.11.2019, but it is apparent that without the report it was held that the IMFL under the consignments were not fit for human consumption. By the said offence report granting of zimma of the vehicles and the liquor were prayed to be rejected. 8. Referring the said report it is the contention of Mr. Dey that the respondents more specifically the respondent No. 4 in order to make out a case tried to develop the same by sending offence reports one after another to the learned C.J.M. The offence report submitted before the learned C.J.M. at Golaghat on 01.02.2020 indicates unlawful transport, possession and sale of intoxicant "IMFL" but in order to attract the offences as per Sections 53 and 54 of the Act 2000, the same required to be proved which is not the case in hand. Admittedly the consignments were exported and imported beyond the territorial jurisdicti....
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....nd (3) are administrative in nature for the Collector to confiscate under Section 75(3) read with Section 71 of the Act, 2000. Referring to the physical verification of the consignments, Mr. Goswami relies the physical verification report relied in the affidavit-in-opposition by the respondent No. 2 wherein there are variations in respect of batch number and date of manufacture. The said physical stock verification were carried on 23.11.2019 in presence of witnesses which requires a full length trial for final adjudication of the offences charged against the persons concerned. 10. Mr. Goswami submits that the Hon'ble High Court should not interfere while the process for confiscation is on. In support of his contention he relied (1) Oma Ram -Vs- State of Rajastha reported in 2008 (5) SCC 502, (2) State of Karnataka -Vs- K. Krishnan reported in 2000 (7) SCC 80 and (3) Khoday Distilleries Ltd. and Others - Vs- State of Karnataka and Others reported in (1995) 1 SCC 574. 11. Mr. Choudhury, the learned Additional Advocate General, Arunachal Pradesh submits that the export permit was issued by the Assistant Commissioner, Excise under Government of Arunachal Pradesh, and as per records, ....
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....ing the transit were as per the consignment notes and the officials under the said Act, 2000 had no business to break open the digitally locked consignment. The consignments originated in the State of Arunachal Pradesh and the point of delivery was at Dimapur and the Act, 2000 has no applicability in both the said points. Mr. Goswami on the other hand raised the issue of maintainability of the writ petitions more specifically due to the orders passed by the learned Addl. C. J. M, Golaghat rejecting the zimma application which remained unchallenged. Mr. Dey wanted to project that the actions initiated by the Excise Officials are without jurisdiction. If the same is answered in the affirmative then in my considered opinion, the same would have a bearing upon the said orders of the learned Addl. C. J. M, Golaghat rendering the orders infructous as the jurisdiction assumed by the court below would be null and void. Accordingly while exercising the jurisdiction under Article 226 of the Constitution of India by this court it has ample power to interfere with the said orders on its own and as such I am unable to accept the submission of Mr. Goswami. 14. In order to examine the contention....
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....3 shall be deemed to be a police report and the local Magistrate having jurisdiction to inquire into or try the case is empowered to take cognizance of offence on the police report. 16. The aforesaid provisions of Sections 42 and 43 of the Act 2000 are taken note of in order to show the legislative intent and purpose of the Government of Assam in Excise Department vesting the sphere of activity in the field of crime detection and crime punishment upon the officials of Excise department inasmuch as investigation of an offence is the field exclusively reserved for the executive through the Police Department, the Superintendence over which vests in the State Government as held by the Hon'ble Supreme Court in State of Bihar and Anr -Vs- J. A. C. Saldanna and Ors and R. P. Singh -Vs- J. A. C. Saldanna and Ors reported in AIR 1980 SC 326. 17. In Khoday Distilleries Ltd and others -Vs- State of Karnataka and others reported in (1995) 1SCC 574 the Apex Court held that potable liquour as a beverage is an intoxicating and depressant drink which is dangerous and injurious to health and is, therefore, an article which res extra commercium being inherently harmful. A citizen has, therefore, n....
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....as empowered to investigate due to violation of route indicated in the passes issued by the officials of Arunachal Pradesh. Once such suspicion is recorded, the empowered Excise official is authorized to exercise the power conferred upon a police officer carrying out an investigation under Sections 160-171 of the Cr.P.C. The "investigation" envisaged in the Act 2000 is the one defined under Section 2(h) of the Code of Criminal Procedure 1973 which includes all the proceedings under the Code for the collection of evidence conducted by a police officer. The Excise officials are clothed with the power of investigation under Section 160-171 of the Cr.P.C and as the said satisfaction to investigate with reasons was recorded, the concerned Excise official was authorized to seize after search being carried out under Section 165 of the Cr.P.C. Accordingly, the action of the Excise official or officials in breaking the digital lock of the consignments falls under Section 165 Cr.P.C. read with Sections 42 and 43 of the Act, 2000. Chapter IX of the Act, 2000 prescribes the penalties and procedure for the offences covered by it. For investigation the offences as mentioned in the report of Exci....