ORDER :- This is a petition under Arts. 226 and 227 of the Constitution of India by Mohammad Irfan Khan for quashing the orders passed by the Superintendent, Central Excise, Moradabad, respondent No. 1, and the Deputy Collector, Central Excise, Allahabad, respondent No. 2, and for the grant of a writ of mandamus or any other consequential writ, order or direction which may be necessary in the circumstances of the case.

2. The petitioner is one of the three partners of the registered firm by the name of Messrs Ali Mohammad Khan alias Chhidda Khan which carries on the business of making tobacco products such as chewing and smoking tobacco from tobacco in raw form at Moradabad. The firm purchases tobacco in the form of tobacco leaf, tobacco stems, stalks and dust. On 13-4-1955, the firm received two consignments under Transport permits in Form II and numbered as 584517 and 584518, weighing 146 maunds in all, contained in 128 bags.

These bags of tobacco were despatched by Khan Mohammad of Laharpur in the district of Sitapur. The consignor described the contents of the bags as "crushed leaf (dana)". The bags were stocked in the godown of the petitioner. On 9-9-1955, Sri C. L. Sawhney, the then Superintendent of Central Excise at Moradabad, visited the godown and detained 16 bags weighing 18 maunds on the ground that tobacco stems had been substituted for tobacco leaves. He opened 3 or 4 bags only. He directed the clerk incharge of the godown not to remove the bags until they had been properly checked. The petitioners case is that the bags were in the same condition in which they had been received from Laharpur.

3. Thereafter the Superintendent served a show cause notice Annexure "A", to the counter-affidavit, wherein it was alleged that the petitioners firm had contravened Rules 151(c) and 160 of the Central Excise Rules, 1944 inasmuch as the contents of 18 maunds of crushed leaves (dana) had been substituted by stems. The petitioner claims that the show cause notice is vague but a perusal thereof will clearly show that all the material information was entered therein though not full details, for example, weight, etc. After the conclusion of the enquiry, the Superintendent passed the order dated 1-3-56 contained in Annexure "A" to the petitioners affidavit. A penalty of Rs. 30/- was imposed and the goods were confiscated under R. 151(c) of the Central Excise Rules, 1944, redeemable on payment of redemption fine of Rs. 20/- and duty, as and when 18 maunds stems were cleared from the warehouse. A duty was also imposed under R. 161 on 18 maunds crushed leaves (dana) at the rate of -/6/- annas per maund.

4. The petitioner preferred an appeal against this order before the Collector of Central Excise, Allahabad, (vide Annexure "B" to the petitioners affidavit). The appeal was heard by Sri Mazumdar, Deputy Collector, but before he could pronounce his judgment, he was transferred and was succeeded by Sri R. C. Mehra. Sri R. C. Mehra dismissed the appeal on 7-11-1956, vide his order Annexure "D", without hearing the petitioner afresh on the merits of the appeal.

5. The petitioner is challenging the order of the Superintendent and also of the Deputy Collector on various grounds, the order of the Superintendent on the ground that he was disqualified from holding the enquiry and also because he did not give a reasonable opportunity to the petitioner to meet the facts used against him including the report after enquiry of the Inspector. The order of the appellate authority is challenged on the ground that the petitioner was not heard before Sri Mehra passed the order, nor were the points raised by the petitioner considered while deciding the appeal. In other words, it is contended that the appellate authority acted arbitrarily when it dismissed the appeal in a few words contained in four line type-written order of 7-11-56.

6. The case of the respondents in brief, is that Sri C. L. Sawhney had merely detected the crime, meaning thereby that he suspect

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