JUDGMENT

Satish Chandra, J. - Messrs Munshi Lal Budh Sen, the respondent owned a licensed warehouse. Under a licence granted under the Central Excise Act and the Rules the respondent firm is authorised to warehouse the tobacco purchased by him.

2. It appears that 98 bags of tobacco was purchased by Messrs Ram Swarup Ganga Sagar of Baharpur, district Etawah from the respondent firm in September,1958. In October, 1958 the same firm purchased tobacco amounting to 107.35 maunds from the respondent firm. The first consignment reached the destination warehouse in Konch and was duly warehoused there, in the warehouse of Chunni Lal Giasilal, who was the commission agent in these transactions.

3. It appears that the second consignment did not reach the destination warehouse. On 13th November, 1958 the Deputy Superintendent, Central Excise, Farrukhabad enquired from the respondent to inform him about the location of the tobacco. The respondent replied that enquiries have revealed that the tobacco did not reach the destination warehouse. Thereupon, by a notice dated 23rd January, 1959 the Central Excise Authorities demanded from the respondent duty of Rs. 4,849.72 under Rule 156-B of the Central Excise Rules. Aggrieved the respondent filed an appeal which was, however. dismissed on 13-8-1959 by the Collector, Central Excise. Thereupon, the respondent instituted a writ petition in this court.

4. A learned Single Judge of this Court held that so long the consignee does not comply with sub-rule (3) of Rule 156-A of the Central Excise Rules the consignor cannot validly be called upon to present an application in triplicate as contemplated by sub-rule (4) of Rule 156-A. Consequently the consignor cannot be held guilty of failure to present the aforesaid application in triplicate within the meaning of Rule 156-B and the Department was not justified in demanding penalty from the respondent, upon the goods having failed to reach the destination warehouse. On these findings the writ petition was allowed and a direction was issued to the Department not to demand any duty from the respondent in respect of the tobacco in dispute.

5. In our opinion the learned Single judge misconstrued the relevant rules. Chapter VIII of the Excise Manual lays down the rules for warehousing. Under Rule 140-A person keeping a private warehouse has to furnish a bond in the prescribed form with such surety or sufficient security, in such amount and under such conditions as the Collector approves, and binding himself :

"to pay the duty due on the goads deposited therein,

or for the due and safe removal of such goods from one part or division of any warehouse to any other part or division of same warehouse, or to any other warehouse,

and for the due observance of the terms, conditions and requirements of the Act, these Rules and any order made hereunder in respect thereof."

6. Presumably the respondent, when he became the keeper of a warehouse, must have furnished a bound as required by Rule 140. This bond is for binding the warehouse keeper in respect of the three matters mentioned above, of which one is the due and safe removal of the goods deposited in the warehouse from that warehouse to another warehouse.

7. Rule 156 (A) prescribes the procedure in respect of removal of goads from one warehouse to another and it provides :

"156-A. Procedure in respect of goods removed from one warehouse to another-(1) the application for removal of goods from one warehouse to another shall be presented by the consigner in triplicate, and in the proper Form, to the officer-in-charge of the warehouse of removal, at least 24 hours before the intended removal. together with such other information as the Collector may by general or special order require.

(2) Such officer shall then take account of the goods and after completing the removal certificate on all the copies of the application, shall send the duplicate to the officer-in-charge of the warehouse of destination, and hand over the tripl