M. Ashok Kumar v. State Of T.S., Rep. Prl. Secy To Rev. (Excise) Dept

THE HONOURABLE SRI JUSTICE A.V.SESHA SAI WRIT PETITION No.19265 of 2018 ORDER:

Heard learned counsel for the petitioner and the learned Government Pleader for Prohibition and Excise. The order, passed by the Commissioner, Prohibition & Excise, Telangana State, Nampally, Hyderabad-second respondent herein, vide proceedings in C.R.No.625/ 2018/ CPE/TS/D1, dated 11.04.2018, is under challenge in the present Writ Petition.

By way of the said order, the second respondent herein rejected the appeal filed by the petitioner herein, under Section 46 (c) of the A.P.Excise Act, 1968 (for brevity, 'the Act'), on the ground of delay.

Vide proceedings C.R.No.B4/793/2015, dated 01.04.2017, the Deputy Commissioner of Prohibition & Excise, Nampally Divisionthird respondent herein, in exercise of the powers conferred under Section 46 of the Act, ordered confiscation of the vehicle i.e. Honda bike bearing No.TS-6 EA 5282. Aggrieved by the said order of confiscation, petitioner herein filed a statutory appeal, under Section 46 (c) of the Act, on 21.02.2018 before the second respondent. The second respondent herein, by way of the impugned order, dismissed the said appeal as time-barred, holding that there was a delay of 256 days in filing the said appeal and that the appellate authority had no power to condone the delay.

It is contended by the learned counsel for the petitioner that, though the petitioner herein stated, in categorical and clear terms, in the Grounds of Appeal, about the knowledge of passing of the impugned order on 16.02.2018, the appellate authority did not consider the same and dismissed the appeal on the ground of delay. It is further stated by the learned counsel for the petitioner that the petitioner herein also stated in the Grounds of Appeal that no show cause notice was issued by the appellate authority, which is a mandatory requirement under Section 46-A of the Act.

On the other hand, it is submitted by the learned Government Pleader that there is absolutely no illegality nor there exists any procedural infirmity in the impugned action and, in the absence of the same, the impugned order cannot be faulted and the Commissioner, Prohibition & Excise, Telangana State, Nampally-second respondent herein has absolutely no power to condone the delay. In this context, it may be appropriate to refer to the provisions of Sections 46-A and 46 (c) of the Act, which read as under:

Section 46-A :Issue of show cause notice No order of confiscation of any property shall be made under Section 46 unless the person from whom the said property is seized, (a) is given a notice in writing informing him of the grounds on which it is proposed to confiscate such property ; and (b) is given an opportunity of making a representation writing within such reasonable time as may be specified in the notice.

Section 46C : Appeal

Any person aggrieved by an order passed by Deputy Commissioner of Prohibition and Excise under Section 46 may, within sixty days from the date of passing such order, appeal to the Commissioner of Prohibition and Excise, who may after giving reasonable opportunity to the appellant pass such orders as he deems fit.

It is very much evident from a reading of the above provisions of law that, before ordering confiscation of the properties seized, it is mandatory on the part of the respondent authorities to issue a notice and to afford opportunity of making representation, in writing, to the persons likely to be affected by the order of confiscation. In the instant Writ Petition it is the categorical case of the petitioner herein, in the Grounds of Appeal, that he did not receive the said show cause notice from the respondents and, for the first time, he came to know of the confiscation orders only on 16.02.2018 and filed the appeal before the second respondent on 21.02.2018.

A reading of Section 46 (c) of the Act discloses that the order of confiscation of the Deputy Commissioner, passed under Section 46-A of the Act, is appealable before the Commissioner of Prohibition & Excise within a period of sixty days from the date of passing the order. When it was the specific case of the petitioner herein before the appellate authority, that, for the first time, he came to know of the confiscation orders only on 16.02.2018, the second respondent-appellate authority ought to have verified the said factum and should have come to the conclusion thereafter. Without service of the notice on the owner of the vehicle, his

presence cannot be expected before the primary authority under Section 46-A of the Act. In the absence of service of show cause notice, in accordance with Section 46-A of the Act, the appellate authority cannot nonsuit the owner of the vehicle on the ground of delay. If no notice, as mandated under Section 46-A of the Act, is served on the affected person, the date of knowledge alone shall be taken into consideration and, in the considered opinion of this Court, the same would be harmonious interpretation of the provision of law. Otherwise, the very purpose of providing the statutory remedy would be defeated.

For the aforesaid reasons, the Writ Petition is allowed, setting aside the order, passed by the Commissioner of Prohibition & Excise, Telangana State, Nampally, Hyderabadsecond respondent herein, vide proceedings C.R.No.625/2018/CPE/TS/D1, dated 11.04.2018, and the appeal, filed by the petitioner herein, stands restored to file before the second respondent for consideration of the same, keeping in view the observations made supra. It is also further made clear that, if the petitioner herein had knowledge of the confiscation order, even prior to 16.02.2018, as stated in the primary order passed by the Deputy Commissioner, it is for the Commissioner to examine the same and come to a just and reasonable conclusion. There shall be no order as to costs.

Miscellaneous petitions pending, if any, shall stand closed.

___________________ A.V.SESHA SAI,J 26th June, 2018 Tsy