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THE EXCISE COMMISSIONER versus A.O. VARGHESE

High Court of Kerala

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THE EXCISE COMMISSIONER v. A.O. VARGHESE - WA No. 1182 of 2004 [2007] RD-KL 13204 (16 July 2007)

IN THE HIGH COURT OF KERALA AT ERNAKULAM

WA No. 1182 of 2004()

1. THE EXCISE COMMISSIONER,
... Petitioner

2. THE ASSISTANT EXCISE COMMISSIONER,

Vs

1. A.O. VARGHESE,
... Respondent

For Petitioner :GOVERNMENT PLEADER

For Respondent :SRI.M.P.ASHOK KUMAR

The Hon'ble the Chief Justice MR.H.L.DATTU The Hon'ble MR. Justice K.T.SANKARAN

Dated :16/07/2007

O R D E R

H.L. DATTU, C.J. & K.T. SANKARAN, J.

................................................................................... W.A. No. 1182 OF 2004 ...................................................................................

Dated this the 16th July, 2007



J U D G M E N T

H.L. Dattu, C.J.: The State Government being aggrieved by the orders passed by the learned single Judge in W.P.(C) No. 6178 of 2004 dated 20.02.2004 is before us in this appeal.

2. In the Writ Petition filed, the petitioner therein had questioned Ext.P3 order passed by the Commissioner of Excise, wherein he had declined to interfere with the suo motu revision petition filed by the petitioner therein against the orders passed by the Assistant Commissioner of Excise.

3. This Court, while allowing the Writ Petition, had directed the Commissioner of Excise to entertain the revision petition filed by the petitioner therein and decide the same on merits. For doing so, the learned single Judge had relied upon the observations made by this Court in Avinasiappan vs. State of Kerala (1998 (1) KLT 894). Aggrieved by the orders passed by the learned single Judge, the State Government is before us in this appeal.

4. Learned counsel appearing for the revenue brings to our notice that the observations made by this court in Avinasiappan's case has been reversed by the Apex Court and therefore, submits , that the learned single Judge was not justified in directing the Commissioner of Excise to entertain the revision petition filed by the petitioner therein and to decide the same on W.A. No. 1182 OF 2004 2 merits.

5. In the instant case, the petitioner in W.P.(C) 6178 of 2004/respondent herein being aggrieved by the orders passed by the Asst. Commissioner of Excise had preferred a revision petition before the Commissioner of Excise . Revisional powers can be exercised by Commissioner of Excise suo motu , but not at the instance of an aggrieved person. Further this Court had taken the view in Avinasiappan's case that suo motu revisional powers can be initiated either by the department on its own or at the instance of an applicant. Keeping that aspect of the matter in view, the learned single Judge has taken exception to Ext.P3 order passed by the Commissioner of Excise , wherein he had declined to entertain the revision petition filed by the petitioner.

6. The orders passed by this Court in Avinasiappan's case has been overruled by the Apex Court and in that, the Apex Court has stated that under the Act, the Commissioner can exercise his suo motu revisional power on its own and that it cannot be done at the instance of an aggrieved person. If that is so, in our opinion, the Commissioner of Excise was justified in declining to entertain the revision petition filed by the petitioner. The orders so passed by the Commissioner of Excise could not have been interfered with by the learned single Judge, relying upon the decision of this court in Avinasiappan's case. In view of the above and in view of the declaration made by the Apex Court in State of Kerala vs. N. Avinasiappan (Civil Appeal No.225 of 1999), the orders passed by the learned single Judge requires to be interfered with. Accordingly the following: W.A. No. 1182 OF 2004 3

O R D E R



i) Writ Appeal is allowed. ii) The order passed by the learned single Judge in W.P.(C) No. 6178 of 2004 dated 20.02.2004 is set aside. ii) Liberty is reserved to the respondent herein/petitioner in W.P. (C) , if he so desires, to question the correctness or otherwise of the orders passed by the Assistant Commissioner of Excise, before an appropriate forum. Ordered accordingly. H.L. DATTU, CHIEF JUSTICE. K.T. SANKARAN,

JUDGE.

lk


Copyright

Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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