judgement:
Civil Appeal No. 2040 of 1974.
Appeal by special leave from the Judgment and order dated the 13th June, 1974 of the Andhra Pradesh High Court in W.P. No. 2145 of 1972.
Niren De, Attorney General of India and P. P. Rao, for the appellant.
r A. Subba Rao for the respondent.
The Judgment of the Court was delivered by RAY, C.J.
This appeal is by special leave from the judgment dated 13 June, 19?4 of the Andhra Pradesh High Court quashing an order of dismissal.
The principal question canvassed by the Attorney General is that the High Court should not have interfered with the findings of the Tribunal.
The State Government in the year 1964 received certain complaints alleging misconduct against the respondent.
The Director of Anti Corruption Bureau was asked to inquire and make a report.
The Government in the light of advice tendered by the Vigilance Commission referred the matter to the Tribunal constituted under Andhra Pradesh Civil Services (Disciplinary Proceedings Tribunal) Act, 1960.
Three charges were framed against the respondent.
Broadly stated the charges were that the respondent claimed false travelling allowance on certain days in the months of January, April and September, 1964.
The respondent denied the charges and submitted a written statement on 4 November, 1968.
The Tribunal made inquiries and on 9 December, 1968 recommended dismissal of the respondent from the service.
The Government thereafter gave a notice to the respondent on 22 February, 1969 to show cause why the penalty of dismissal from service should not be imposed on him.
On 20 March, 1969 the respondent submitted his written explanation.
The Government after considering the explanation of the respondent, by an order dated 24 May, 1969 dismissed the respondent from service.
523 The respondent challenged the order of dismissal in the Andhra Pradesh High Court.
The High Court by judgment dated 27 July, 1970 set aside the order of dismissal on the ground that the recommendations of the tribunal were not communicated to the respondent alongwith the notice regarding the proposed punishment of dismissal.
The High Court observed that it was open to the punishing authority to issue a fresh show cause notice regarding the proposed punishment after communicating the enquiry report and the recommendations of the Tribunal The Government thereafter complied with the directions of the High Court.
The Government cancelled the order of dismissal dated 24 May, 1969.
The Government, however, ordered that the respondent shall be deemed to have been under suspension from service from 21 May, 1969 until further orders.
The order of suspension was challenged by the respondent and set aside by the Andhra Pradesh High Court on 22 March, 1970.
The Government then issued fresh notices dated 16 September, 1970 and 25 September, 1970 to the resplendent and communicated the report of the Tribunal and the recommendations of the Tribunal and the Vigilance Commission regarding the proposed penalty.
The respondent submitted his explanation on 6 and 23 October, 1970.
The Government considered the same.
The Commerce Department thereafter by an order dated S May, 1972 dismissed the respondent from service.
The charges against the respondent were that he made three false claims for travelling allowance for three journeys.
The first journey was on 3 January, 1969 from Rajahmundry to Hyderabad The second journey was on 19 April, 1964 from Rajamundry to Hyderabad and Hyderabad to Rajahmundry on 24 April, 1964.
The third journey was from Rajahmundry to Guntur on 13 September, 1964 and Guntur to Rajahmundry on 16 September, ]964.
The respondent in his written statement filed before the Tribunal denied the charges and maintained that he travelled by first class on the days mentioned in the claim for travelling allowance.
He stated that he travelled by first class from Rajahmundry to Hyderabad on 3 January, 1964 in accordance with his tour programme and claimed the travelling allowance.
He also said that he travelled by first class from Rajahmundry to Hyderabad on 19 April, 1964 and from Hyderabad to Rajahmundry on 24 April, 1964 and claimed travelling allowance.
In Exhibit P 45 which was his signed statement dated 8 January, 1967, he stated that on 3 January, 1964 he went with his Joint Director from Vijayorgram from Rajahmundry in a car.
In that statement he said that he went from Hyderabad to Waltair on 7 January, 1964 and he claimed travelling allowance from Vijayawada to Hyderabad.
In Exhibit P 45 he said that on 19 April, 1964 he travelled from Rajahmundry to Vijayawada by first class and he went to Hyderabad by first class on 19 April, 1964.
In Exhibit P 45 he said that he did not 524 travel on 24 April, 1964 from Hyderabad to Rajahmundry because.
A there was no accommodation.
He waited at Hyderabad.
On 28 April, 1964 he got reservation and travelled to Rajahmundry.
The Tribunal on enquiry found the respondent guilty of charges 1 and 2.
In the Enquiry Report dated 9 December, 1968, the Tribunal recommended dismissal of the respondent.
The respondent in the High Court challenged the order of dismissal.
The High Court set aside the order of dismissal on the grounds that the prosecution did not adduce every material and essential evidence to make out the charges and that the conclusion reached by the Tribunal was not based on evidence.
The High Court held that Exhibit P 45 was not admissible in evidence according to the Evidence Act and it was not safe to rely on such a statement as a matter of prudence.
The High Court said that corruption or misconduct under rule 2(b) of the Andhra Pradesh Civil Service (Disciplinary Proceedings Tribunal) Rules, has the same meaning as criminal misconduct in the discharge of official duties in section 5(1) of the Prevention of Corruption Act, 1947.
The High Court in that background discussed the evidence and findings of the Tribunal as to whether the prosecution placed evidence in respect of the ingredients of the charge under section 5(1)(d) of the Prevention of Corruption Act, 1947 The High Court referred to these features in regard to the finding of the Tribunal.
Four years elapsed between the journeys forming subject matter of the charge and the framing of the charge.
The respondent in his evidence said that he secured accommodation through the Conductor incharge of the first class compartment after the arrival of the train.
It was possible that the respondent might have converted his ticket to first class one once he found that first class accommodation was available on the train even though he had purchased a ticket of lower denomination.
The conductor 's chart is the only basis for showing whether a particular person travelled by first class by a particular train and not by a copy of the reservation chart kept at the starting station.
Though the prosecution produced evidence to show that the respondent did not purchase or reserve first class accommodation in advance, the prosecution failed to produce the Conductor 's charts relating to the trains in question.
According to the High Court "The prosecution utterly failed to adduce any evidence to exclude these possibilities".
The High Court said that it was doubtful whether Exhibit P 45 was admissible in evidence.
It was said to be taken during the course of investigation.
The High Court said that even if the statement is accepted, it only shows that the respondent did not actually travel on the days mentioned in the tour programme according to which travelling allowance was paid.
The respondent made the statement marked Exhibit P 45 on 8 January, 1967.
The charge sheet was framed on 17 November, 525 1967.
The respondent filed the written statement on 2 August, 1968.
He filed an additional written statement on 4 November, 1968.
It is apparent that the charge sheets were framed after investigation.
It transpired on evidence before the Tribunal that one first class ticket bearing No.03834 was collected at Hyderabad on 4 January" 1964.
The further evidence about ticket No. 03834 was that it was issued to one P. Ramachandra Raju who travelled from Rajahmundry to Hyderabad on the night of 3 January, 1964.
The further evidence before the Tribunal was that one first class ticket bearing No. 04049 for the journey from Rajahmundry to Hyderabad was sold to one A. section Murty for the journey an 19 April, 1964.
The Tribunal examined the respondent.
The respondent was given full opportunity to deal with Exhibit P 45.
The High Court was not correct in holding that the domestic enquiry before the Tribunal was the same as prosecution in a criminal case.
The High Court was also in error in holding that Conductor 's chart would show whether the respondent travelled or not.
The High Court accepted the explanation that Conductor 's charts were burnt and, therefore, they could not be produced.
Further, Conductor 'section chart could not show the name of the persons paying the money.
There was positive evidence before the Tribunal of tickets being purchased by persons other than respondent on 3 January, 1964 and 19 April, 1964.
These features figured prominently before the Tribunal.
The High Court all throughout treated the enquiry before the Tribunal as a criminal prosecution.
The scope of Article 226 in dealing with departmental inquiries has come up before this Court.
Two propositions were laid down by this Court in State of Andhra Pradesh vs section Sree Rama Rao(1).
First, there is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him,.
the rule followed in criminal trials that an offence is not established unless proved by evidence beyond reasonable doubt to the satisfaction of the Court must be applied.
If that rule be not applied by a domestic Tribunal o Inquiry the High Court in a petition under Article 226 of the Constitution is not competent to declare the order of the authorities holding a departmental inquiry invalid.
The High Court is not a Court of Appeal under Article 226 over the decision of the authorities holding a departmental enquiry against a public servant.
The Court is concern ed to determine whether the enquiry is held by an authority competent in that behalf and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated.
Second, where there is some evidence which the authorities entrusted with the duty to hold the enquiry has accepted and which evidence may reason ably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court to review the evidence (1) 526 and to arrive at an independent finding on the evidence.
The High A Court may interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion.
The departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there is some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ under Article 226.
Again, this Court in Railway Board, representing the Union of India, New Delhi & Anr vs Niranjan Singh(1) said that the High Court does not interfere with the conclusion of the disciplinary authority unless the finding is not supported by any evidence or it can be said that no reasonable person could have reached such a finding.
In Niranjan Singh 's case (supra) this Court held that the High Court exceeded its powers in interfering with the findings of the disciplinary authority on the charge that the respondent was instrumental in compelling the shut down of an air compressor at about 8.15 a.m.
On 31 May, 1956.
This Court said that the Enquiry Committee felt that the evidence of two persons that the respondent led a group of strikers and compelled them to close down their compressor could not be accepted at its face value.
The General Manager did not agree with the Enquiry Committee on that point.
The General Manager accepted the evidence.
This Court said that it was open to the General Manager to do so and he was not bound by the conclusion reached by the Committee.
This Court held that the conclusion reached by the disciplinary authority should prevail and the High Court should not have interfered with the conclusion.
The jurisdiction to issue a writ of certiorari under Article 226 is a supervisory jurisdiction.
The Court exercises it not as an Appellate Court.
The findings of fact reached by an inferior court or Tribunal as a result of the.
appreciation of evidence are not reopened or questioned in writ proceedings.
An error of law which is apparent on the face of the record can be corrected by a writ, but not an error of facts however grave it may appear to be.
In regard to a finding of fact recorded by a Tribunal, a writ can be issued if it is shown that in recording the said finding, the Tribunal had erroneously refused to admit admissible and material evidence, or had erroneously admitted inadmissible evidence which has influenced the impugned finding.
Again if a finding of fact is based on no evidence, that would be regarded as an error of law which can be corrected by a writ of certiorary.
A finding of fact recorded by the Tribunal cannot be chal (1) ; 527 lenged on the ground that the relevant and material evidence adduced before the Tribunal is insufficient or inadequate to sustain a finding.
The adequacy or sufficiency of evidence led on a point and the inference of fact to be drawn from the said finding are within the exclusive jurisdiction of the Tribunal.
See Syed Yakoob vs K. section Radhakrishnan & ors(1).
The High Court in the present case assessed the entire evidence and came to its own conclusion.
The High Court was not justified to do so.
Apart from the aspect that the High Court does not correct a finding of fact on the ground that the evidence is not sufficient or adequate, the evidence in the present case which was considered by the Tribunal cannot be scanned by the High Court to justify the conclusion that there is no evidence which would justify the finding of the Tribunal that the respondent did not make the journey.
The Tribunal gave reasons for its conclusions.
It is not possible for the High Court to say that no reasonable person could have arrived at these conclusions.
The High Court reviewed the evidence, re assessed the evidence and then rejected the evidence as no evidence.
That is precisely what the High Court in exercising jurisdiction to issue a writ of certiorari should not do.
The respondent raised another contention that the State did not give the respondent a document described as 'B ' Report and Investigation Report of the Anti Corruption Bureau.
The ground advanced by the respondent in the petition before the High Court was that 'B ' Report and Investigation Report to which the reference is made by the Tribunal in its report and which are relied on to support the charges, were not made available to the respondent.
The High Court did not express any opinion on this question because the High Court set aside the dismissal in the ground that there was no evidence for the Tribunal to come to that conclusion.
The State in the affidavit filed in the High Court in answer to the respondent 's petition said that 'B ' Report and Investigation Report are secret reports which are intended for the reference of the Tribunal of Disciplinary Proceedings and the Government and, therefore, these reports are not supplied, to the officers.
We need not express any opinion on that answer of the State in the affidavit.
The respondent in answer to the affidavit of the State said that the Tribunal used the 'B ' Report and the Investigation Report against the respondent and did not supply copies.
It is because the respondent alleged in the writ petition that the Tribunal relied on 'B ' Report and Investigation Report, we looked into the Inquiry Report of the Tribunal to find out whether that was a correct statement.
We find that there is a reference to 'B ' Report by the Tribunal only because the respondent challenged the genuineness and authenticity of Exhibit P 45.
The respondent 's case was that if he made a statement like Exhibit P 45, the Investigating Officer would have sent it along with his report.
The Inquiry Officer says that the Investigating officer recorded the statement of the respondent.
The Tribunal has not relied on 'B ' Report or Investigation Report.
The (1) ; 528 respondent never demanded 'B ' Report and Investigation Report.
The A respondent was interested before the Tribunal to displace Exhibit P 45 by doubting its genuineness.
The Tribunal found that Exhibit P 45 was genuine and was a statement made and signed by the respondent in the presence of the Investigating Officer.
It does not appear that the Tribunal based its finding only on Exhibit P 45.
For these reasons we are of opinion that the High Court was wrong in setting aside the dismissal order by reviewing and re assessing the evidence.
The appeal is accepted.
The judgment of the High Court is set aside.
Parties will pay and bear their own costs.
V.P.S Appeal allowed.

summary:
(1) The jurisdiction of the High Court to issue a writ of certiorari under article 226 is a supervisory jurisdiction, and not as an appellate court.
The findings of fact reached by an inferior court or tribunal as result of the appreciation of evidence are not reopened or questioned in these proceedings.
An error of law which is apparent on the face of record can be corrected but not an error of fact, however grave it may be.
In regard to a finding of fact recorded by a tribunal a writ can be issued if it is shown that the tribunal had erroneously refuged to admit admissible and material evidence or had erroneously admitted inadmissible evidence which has influenced the impugned finding.
Again, if a finding of fact is based on the evidence, that would be regarded as an error of law which can be corrected be a writ of ' certiorari, but if there is some evidence which may reasonably support the conclusion, its adequacy or sufficiency and the inference of ' fact drawn, are within the exclusive jurisdiction of the tribunal.
The Court is concerned to determine whether the inquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated.
Therefore, in departmental enquires relating to the guilt of delinquent officers, the High Court may interfere only where the departmental authorities have held tax proceedings against the delinquent officer in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of inquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case, or by allowing themselves to be influenced by irrelevant considerations or where the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion.
[525 E 527B] State of Andhra Pradesh vs section Sree Rama Rao ; Railway Board, representing the Union of India New Delhi & Anr.
vs Niranjan Singh ; and Syed Yakoob vs K. section Radhakrishnan & Ors.
[1964] 5 S.C.R. 64, referred to.
(2) There is no warrant for the view that in considering whether a public officer is guilty of misconduct charged against him the rule followed in criminal trials, namely, that an offence is not established unless proved beyond reason able doubt, must be applied.
[525F G] In the present case, charges that the respondent fraudulently claimed travelling allowance were inquired into by the Disciplinary Proceedings Tribunal.
The Tribunal found him guilty and recommended dismissal.
The Government accept ed the recommendation and dismissed the respondent.
In a writ petition challenging the order of dismissal, the High Court equated the charge of mis conduct to a charge under s.5(1)(d) of the Prevention of Corruption Act, 1947 discussed the evidence and findings of the Tribunal on that basis and held that the prosecution did not adduce material and essential evidence namely; the conductor 's chart which would show whether the respondent travelled on a particular day, that a statement made by the respondent during investigation was not admissible in evidence, that it was not safe to rely on it and set aside the order of dismissal.
Allowing the appeal to this Court.
^ HELD .
(a) The High Court was not correct in holding that the domestic inquiry before the Tribunal was the same as prosecution is a criminal case.
[525C D] 3 L925SupCI/75 522 (b) The respondent was given full opportunity to explain the statement A made by him during investigation.
Further, the Tribunal did not base its findings only on that statement.
It had given its reasons for its conclusion and it is not possible for the High Court to say that no reasonable person could have arrived at that conclusion.
The High Court had accepted the explanation that the conductors ' charts were destroyed and therefore could not be Produced.
Moreover, the conductor 's chart would not show the names of the persons paying the money.
The High Court reviewed and re assessed the evidence and then rejected evidence as no evidence, and this is precisely what the High Court, in exercising jurisdiction under Art 226, should not do.
[525SC; 527B D] (c) The respondent 's contention that the Tribunal relied upon certain reports which were not available to the respondent is not correct.
A reference to the inquiry report of the Tribunal shows that the Tribunal had not relied upon those documents for finding the respondent guilty.
[527G 528B]


judgement:
Appeal No. 1527 of 1974.
Appeal by Special Leave from the Judgment & Order dated the 14th December, 1973 of the Delhi High Court in Civil Writ No. 1678 of 1967.
F. section Nariman, Addl.
Gen. of India, D. N. Mukherjee and R. N. Sahthey, for the Appellants.
N. A. Palkhiala, Ravinder Narain, J. B. Dadachanji, O. C. Mathur, K. J. John and K. R. Jhaveri, for the Respondent.
419 The Judgment of the, Court was delivered by Goswami, J.
This appeal is by special leave from the judgment of the Delhi High Court in a writ application there under article, 226 of the Constitution.
The respondent manufactures various other items hot rolled finished steel products in rectangular cross section of thickness varying between 1.7 mm and 6.55 mm and width varying between 16.2 mm and 311.2 mm and rolled in coils which it supplies to the, Indian Tube Company Limited at Jamshedpur for making tubes and also to others.
This article is subjected to Central Excise Duty under the (hereinafter called the Act).
The dispute between the respondent and the appellants is that while the former describes the said manufactured product as strip the appellants classify it as skelp.
This difference in classifying the product differently results in fiscal misfortune to the respondent since skelp is subjected to a higher Central Excise Duty than strip.
It may be stated that during the period from April 24, 1962 to February 28, 1964, the respondent described its product as skelp and it was subjected then to a lower rate of,duty From February 19, 1964, the respondent claimed that the aforesaid product be classified as strip since there.
had been a levy of higher duty for skelp.
The Assistant Collector, Central Excise, Jamshedpur, who is the primary taxing authority, the Collector of Central Excise, Patna, in appeal, and the Central Government in revision rejected the contention of the respondent by successive orders, each authority upon its own test of the definition of the product as skelp.
That led to the successful writ application of the respondent in the High Court resulting in this appeal.
In the forefront of his argument the learned Additional Solicitor General for the appellants relying upon two decisions of this Court, namely, The Collector of Customs, Madras vs K. Ganga Setty(1) and V. V. Iyer of Bombay vs Jasjit Singh, Collector of Customs and Another,(2) submitted that "it is primarily for the taxing authorities to determine the heads or entry under which any particular commodity fell; but that if in doing so, these authorities adopted a construction which no reasonable person could adopt i.e., if the construction was preverse then it was a case in which the Court was competent to interfere.
In other worlds, if there were two constructions which an entry could reasonably bear, and, one of them which was in favour of Revenue was adopted, the Court has no jurisdiction to interfere merely because the other interpretation favourable to the subject appeals to the Court as the better one to adopt '.
On the other hand with equal emphasis Mr. Palkhivala for the respondent submitted that an assessment without the application of an identifiable test is nothing but perverse and arbitrary.
He submits that in the present case there was no identifiable test before the taxing authorities by which the (1) ; (2) 420 product of the, respondent could be held to be skelp and not strip subjecting the respondent to a heavier duty.
According to the learned counsel there is no difference.
between sklep and strip, the two items being interchangeable.
It may be, noted for our purpose that under section 3 of the Act Central excise Duties are leviable on all excisable goods which are produced or manufactured in India at the rates set out in the First Schedule.
Item No. 26AA in that Schedule relates to iron and steel products and mentions in sub item (iii) therein flats, skelp and strips showing the rate of duty in the third column.
Under rule 8 of the Central Excise Rules, 1944, made under section 37 of the Act, the Central Government may from time to time by notification in the official gazette exempt, subject to such conditions as may be specified in the notification, any excisable goods from whole or any part of the duty leviable on such goods.
In exercise of the power under this rule the Central Government has made such exemptions in the rates of duty as have made it higher on skelp than on strip.
Before we proceed further we may notice how the various Excise authorities dealt with the matter at different.stages.
The first order is that of the Assistant Collector of Central Excise, Jamshedpur, which was on June 17, 1964.
According to him "skelp is the name used in reference to a plate of wrought iron or steel used for making pipe or tubing by rolling the skelp into shape and lap welding or brevetting ,edges together and strip is a term used to describe a flat rolled product of smaller cross section than sheet or bar." He accordingly adopted the definition given in Marymen 's Dictionary of Metallurgy.
The order of the Collector of Central Excise in appeal made on October 24/29, 1964, shows that the authority noted the definition of strip as follows : "Hot or cold rolled finished steel product in rectangular cross section of thickness below 5 mm and of width below 800 mm and supplied, in straight length".
This definition is substantially in.
conformity with the one given by the Indian Standards Institution (ISI).
The appellate authority held that "since the products have not satisfied the above specifications, they have been correctly, classified as 'skelp ' by.
the Assistant Collec tor.
Then comes the order in revision of the Central Government of August 18, 1967.
Inter alia it was held that "the product does have bevel edge, .; peculiar to skelp and not found in strips.
Under the circumstances, there is no doubt whatever that the product in question is correctly classified as skelp".
From the above three orders it is clear that the authorities were not at all certain about a uniform definition of 'skelp ' distinguishing it from 'strip.
Extensive arguments were advanced at the bar with regard to the definitions of there two words.
We may, therefore, look 421 at the various definitions to which our attention has been drawn.
Since the appellants largely upon the definitions given by the Indian Standards Institution, "an expert body", we will first note these definitions.
The ISI 's definitions of strip and skelp as given in IS 1956 1962 (amended upto July 1968) are as follows Upto 1965 the ISI gave, no description of strip.
It had defined skelp in 1962 as follows: Skelp.
"Hot rolled narrow strip with rolled (square, slightly round or beveled) edge.
Strip .
A hot or cold rolled flat product, rolled in rectangular cross section of thickness 10 mm and below and supplied with mill, trimmed or sheared edge.
(a) Narrow strip strip (other than hoop) of width below 600 mm and supplied in straight length or in coil form.
(b) Wide Strip Strip of width 600 mm above and supplied in coil form only.
" Upto 1965 the ISI gave no description of strip.
It had defined skelp in 1962 as follows "Hot rolled.
strip with square or slightly beveled edges, used for making welded tubes".
In 1968 the ISI 's definition of skelp stands as follows "Hot rolled narrow strip with rolled (square, slightly round or beveled edge.
,, Strip was defined by the ISI for the first time in 1965 as follows: "Coiled Strip A hot or cold rolled flat product, rolled in rectangular cross section and supplied in coil form.
Strip A hot or cold rolled flat product, rolled in rectangular cross section thickness below 5 mm and of width below 600mm and supplied in straight lengths".
The ISI 's definition of strip given in 1968 is as follows "A hot or cold rolled flat product, rolled in rectangular cross section of thickness 10 mm and below and supplied with mill, trimmed or sheared edges.
(a) Narrow strip Strip (other than hoop) of width below 600 mm and supplied in straight length or in coil form.
(b) Wide strip Strip of width 600 mm and above and supplied in coil form only".
Annexure 'J ' submitted by the respondent along 'with its rejoinder affidavit in the High Court at page 101 of the record, gives various 422 definitions of skelp taken.
from various dictionaries and treatises such as Hornor J. G. Dictionary of Terms, page 323, year 1952; Brandt D.J.C. Manufacture of Iron & Steel, pages 318 and 319, year 1953; Henderson J.C. Metallurgical Dictionary, page 192, year 1953; Backert A.O.L. A.B.C. of Iron & Steel, page 1912, year 1925 5th edition; Chamber 's Technical Dictionary, year 1967.
Similarly definition of strip is also given from these Dictionaries and books.
It is also pointed out that there is no category of skelp mentioned in Brussels Nomenclature.
British Standards 2094, Part 4; 1954, defines skelp as follows : "Hot rolled strip with square or slightly bevelled edges used for making welded tubes".
Chamber 's Technical Dictionary Revised Edition (Reprinted 1954) defines skelp as follows "Skelp (P. 775) Mild steel strip from which tubes are made by drawing through a bell at welding temperature, to produce lap welded or butt welded tubes".
We may not add to the list but are satisfied that there are a large number of definitions out of which one can be picked up to satisfy the definition of skelp according to some authority and another definition to fit in with the concept of strip according to another authority Since the duties on strip and skelp are not the same, it is absolutely necessary to define the word skelp so that there can be no doubt or confusion in the mind of either of the taxing authority or of the tax payer with regard to the tax liability qua skelp as opposed to strip.
Since, however.
there is no statutory definition of this controversial item different tests have naturally been resorted to by the different authorities and the same variation is discernible even in the affidavits of the appellants submitted before the High Court.
The short question, therefore, that arises for consideration is whether in the above background the High Court was right in interfering with the orders under article 226 of the Constitution.
It is not for the High Court nor for this Court to come to a conclusion on facts as to whether the product can truly come under the description of skelp.
That undoubtedly would require some evidence be taken at the level of the taxing authority provided, however, there is an identifiable, uniform and determinate test by which skelp can be properly distinguished from strip.
In the mass of documents filed before us and the extensive arguments addressed at the bar with regard to the definitions 'culled from various dictionaries, handbooks and authorities, we are not at all surprised that the three authorities came to the same conclusion by depending upon their own chosen tests.
A particular type, of strip may according to certain definitions.
be skelp and according to others not Skelp.
however, cannot be permitted in a fiscal legislation which by all standards should adopt a clear definition of an excisable item which is incapable of giving rise to a confounding contro 423 versy as in this case unless the, matter is beyond doubt in view of the popular meaning, or meaning ascribed to the term in commercial parlance.
In absence of any clear criterion to determine what is skelp.
and not strip, no useful purpose would be served by even remanding, the matter to the Excise authorities for a decision after taking necessary evidence.
It is only when a taxing law provides for a clear and unequivocal test for determination as to whether a particular product would fall under strip of skelp it may be possible for the authorities.
to address itself to the evidence submitted by the parties in order to come to a decision on the basis of the test.
This is, however, not possible in this ' case in view of the fact that there is no identifiable standard.
The best way is to define the product for the purpose of excise duty in approximate terms demarcating clearly the distinction between.
the two terms.
The absence of any identifiable standard would, therefore, naturally give rise, to the scope for arbitrary assessment at the hands of different authorities.
Whether this has happened in this case, as. ' complained by the respondent citing the instance of the Hindustan Steel Company, Rourkela, it is not necessary for us to pursue in this,, appeal.
We are, therefore, unable to hold that the High Court has.
gone wrong in granting the reliefs prayed for.
The appellants strenuously emphasized upon the test relied upon in the Revisional order as to skelp having bevelled edges which, according to them, is peculiar to skelp and not to strip.
But this does not bear scrutiny as on the counter affidavit of the Union of India in the High Court at page 57 of this record it shows that "as regards tested Hot rolled Strips the edges are never looked into, they can be bevelled, square or have Mill edge" (emphasis added).
This is an admission of the appellants that strips may also have bevelled edges.
The two decisions relied upon by the appellants do not come to their aid in this case since there is no identifiable standard or test to determine clearly which product can be skelp and not strip.
In Ganga Setty 's case (supra) the controversy arose with regard to whether "feed oats" fell within item 42 (fodder) or within item 32 (grain) of parti cular circular.
Dealing with the matter this Court observed as follows: ". any particular species of grain cannot be excluded merely because it is capable of being used as cattle or horse feeds.
The decision of the Customs authorities, therefore, this Court held could not be characterized as Perverse or mala fide calling for interference.
Similarly following Ganga Setty 's case (supra) in Jasjit Singh 's case (supra) the conclusion and findings of the Customs authorities were accepted a reasonable.
In both the above cases there were definite tests by which the particular article could be held to fall under one item and not under the other and the construction of the authorities 424 with regard to the scope of the particular entries was, therefore, held to be reasonable and not calling for interference by the court.
The ,question that arises in the instant case is of a completely different nature as pointed out above there being no identifiable test reasonably capable ,of distinguishing skelp from strip.
In the result the appeal fails and is dismissed with costs.
P.H.P. Appeal dismissed.

dataset_name: IN-Abs

summary:
The respondent manufactures hot rolled finished steel products in rectangular cross section, of thickness varying between 16.2 mm and 311.2 mm in coils (hereinafter a referred to as the Product) product as Strip whereas the appellant classifies it as a skelp.
to higher excise duty than Strip.
The Assistant Collector the product as Skelp.
On appeal to the Collector of and rolled The respondent describes the Sklip is subject Central Excise treated Central Excise, he confirmed it and in revision the Central Government also approved.
The respondent filed a Writ Petition in the High Court.
The High Court accepted the contention of the respondent.
On appeal by Special Leave the appellant contended before this Court : (i) That it is primarily for the Taxing Authorities to determine the head or nature under which any particular commodity fell.
(ii) The Court can interfere with the decision only if it is perverse.
if there were two constructions possible and if the Taxing Authority accepts one of them the Court cannot interfere.
The respondent submitted '.
(i) Assessment without application of an identifiable test is perverse and arbitrary.
(ii) In the present case.
there was no iden tifiable test before the Taxing Authorities.
There is no difference between Skelp and Strip.
Dismissing the appeal, Held : There are large number of definitions out of which one can be picked up to satisfy the definition of Skelp according to some.
authority and another definition to fit in with the concept of strip according to another authority.
Since there is no statutory definition for Skelp and Strip, different tests have been resorted to by the different authorities.
The question arises whether the High Court was right in interfering with the orders under article 226 of the: Constitution.
It is not for this Court to come to the conclusion on facts.
The absence of any identifiable standard naturally gives rise to the scope for arbitrary assessment at the hands of different authorities.
It is not possible to hold that: the High Court has gone wrong in granting the reliefs prayed for.
[422D F; 423C]


judgement:
Civil Appeal No. 1109 of 1973.
Appeal by Special Leave from the Judgment and order dated the 10th March., 197 ' ' of the Punjab and Haryana High Court in L.P.A. No. 714 of 1970 and Civil Appeals Nos.
1411 1314, 872, 873, 1369 and 1582 of 1974.
F. section Nariman (In C.As.
1109 and 1582), Harbans Singh (in C.A. No. 1109/73) and O. P. Sharma, (In all the appeals), for the appellants.
Hardyal Hardy, section K. Mehta and M. Qamarrudin, for respondents No. 1 & 8.
V. C. Mahajan, Urmila Sirur, section C. Agarwala and V. J. Francis, for respondents Nos.
2 5, 9 12 and 15 21 (in C.A. No. 1109/73).
Urmila Sirur, for respondents 2 7, 12, 13, 15 18, 20 22 26, 27 30, 32 36, 38, 41, 44 46, 50 57 & 59 62 (In C.A. Nos. 1411 1412/ 74) and for all the respondents in (In C.A. No. 1414/74) Except Respondent No. 113 and respondents Nos.
1. 3 16 and 18 23 (In C.A. No. 1369/74).
F. V. C. Mahajan and Urmila Sirur, for respondents Nos.
(All respondents in C.A. No. 872/74), and respondents Nos. 1, 2, 4 54, 5681, 83 and 85, (In C.A. No. 873/74) and respondents Nos. 1 214 (In C.A. No. 1582/74).
Balak Ram, for respondent No. 245 (In C.A. No. 1582/74).
G The Judgment of the Court was delivered by RAY, C.J.
These appeals are by special leave from the judgment dated 10 March, 1972 of the Punjab and Haryana High Court.
The respondents were teachers in the former State of Pepsu.
On 1 November, 1956 the former State of Pepsu merged in the State of Punjab.
These teachers claim the revised scale of pay as well as the posts of Masters.
Their claims are based on these grounds.
First they have taken the Degrees in Bachelor of Teaching or its equivalent.
Second, the letter dated 23 July, 1957 which became effective from 531 1 May, 1957 entitles them to the revised grade if they took the Degrees in Bachelor of Teaching or its equivalent.
Third, the letter dated 7 November, 1958 entitles the respondents to the posts of Masters to the extent of 25 per cent of the vacancies.
The letter dated 23 July, 1957 is addressed by the Secretary to the Punjab Government.
The letter is on the subject: "Revision of Scales of pay of low paid Government servants".
The letter states that after carefully considering the recommendations made by Pay Revision Committee it has been decided that the existing scales of pay of certain categories of posts should, with effect from 1 May, 1957, be revised as shown therein.
It is, thereafter stated that it has been decided that all teachers according to their qualifications should placed in the following two broad categories: Category 'A ' B.A./B.Sc./B.Com./B.Sc.
(Agriculture) and B.T./ Diploma in Physical Education/Diploma in Senior Basic Training.
Category 'B ' consists of four groups.
The first group consists of Matriculates with Basic Training (including Junior Teachers).
The second group consists of Junior School Teachers (including Assistant Mistresses with B.A./Inter Matric Plus J.A.V. Training).
Groups III and IV are also mentioned which are not relevant for the purposes of these appeals.
Thereafter the crucial portions in the letter are these.
For category 'A ' the scale of pay is Rs. 110 8 19/10 250 with a higher start for M.A. Or M.Sc.
as at present.
The existing per centage of posts fixed by Government for the scales of Rs. 110 8 190/ 10 250 and Rs. 250 10 300 should remain unchanged at 85 per cent and 15 per cent respectively.
It may be stated here that the scale of pay of Head Masters being item (1) in Appendix is Rs. 250 10 350.
The scale of pay of Masters, Science Masters, Agriculture Masters, Clerical and (Commercial Master and Assistant District Inspector of Schools is Rs. 250 10 300.
The scale of pay of Second Master, Masters, Physical Training Masters Assistant District Inspector of Schools.
Agriculture Masters, Clerical and Commercial Masters and Science Masters being item (2) is Rs. 110 8 190 10 250 with a start of Rs. 126/ to M.A./M.Sc./M.III/B T. and Rs. 150/ to M.A./ M.Sc./M.Ed.(11)/B.T. and Rs. 150/ to M.A./M.Sc./M.Ed.
(11)/B.T '.
The second letter on which the respondents relied is.
dated 7 November 1958.
This letter is from the Deputy Director (Schools) to the Inspector of Schools.
The subject is: Promotion of the so called unadjusted B.A. B.T./B.Ed., teachers to the posts of Master on Rs. 110/250 grade It is stated there that it has been decided that 25 Per cent posts of B.T./B.Ed.
Masters in Rs. 110 250 grade should be filled by promotion from amongst the teachers working in the lower grade who have passed the B.A. B.T./B.Ed.
Examinations.
The selection is to be made on the basis of seniority cum merit.
532 Two of the relevant rules in Punjab Educational Service Class III A school Cadre Rules, 1955 which were in force with effect from 23 May, 1957 are numbered 7 and 10.
Rule 7 speaks of the method of recruitment.
The methods of recruitment are: (a) by direct appointment, or (b) by transfer of an official from other Services or posts of Government in the Education Department of any Government in India, or (c) by promotion from lower grades in the service.
The manner of appointment shall be strictly by selection etcetera as mentioned there.
Rule 10 states that "members of the service will be entitled to such scales of pay as may be authorised by the Government from time to time.
The scales of pay in force are specified in Appendix 'A ' against each post".
Appendix 'A ' is an appendix to the Rules.
This Appendix mentions Masters as item No. 2.
The scale of pay given in item No. 2 for the posts of Masters, who are ordinary graduates with 'degree of Bachelor of Teaching or equivalent thereof is Rs. 110 8 190/10 250 whereas for M.As.
and M.Scs.
with the degree of Bachelor of Teaching or Masters of Teaching or their equivalent, the start of the grade is higher as already mentioned.
The letter dated 23 July, 1957 revised the scales of pay with effect from 1 May, 1957.
These appeals concern teachers who are in category 'A '.
The revised scale given to teachers in category 'A ' is Rs. 110 8 190/10 250.
Any teacher who would satisfy the test mentioned in category 'A ' would be entitled to the scale of pay.
Counsel on behalf of the State contended that there was not to be a mass increase of all teachers to that grade of pay but the letter dated 23 July, 1957 meant that a teacher who passed Bachelor of Teaching examination would be entitled to be appointed a Master and on being so appointed would be entitled to the scale of pay.
With regard to the letter dated 7 November 1958 which stated that 25 per cent posts of B.T./B.Ed.
Masters in Rs. 110 250 grade should be filled by promotion from amongst the teachers who were in lower grade, counsel for the State contended that teachers who were qualified by possessing B.T. B.Ed.
degrees would be entitled to get 25 per cent of the posts provided the respective posts according to their subject combination were vacant.
Rule 10 entitles the teachers to such scales of pay as may be authorised by the Government from time to time.
The letter dated 23 July, 1957 shows that teachers who possess the degree of Bachelor of Teaching or its equivalent on 1 May 1957 will be entitled to scales of pay mentioned therein.
Those who will pass the examination of Bachelor of Teaching thereafter will be entitled to their revised scale of pay with effect from the date they pass the examination.
The contention of the State that there was not to be a mass increase of scale of pay is unsound.
Teachers who possessed degrees became entitled to scales of pay according to category 'A '.
The High Court rightly referred to the letter of the Secretary of the Department dated 24 September, 1957 that teachers holding B.A., 533 B.T./B.A., B.Ed.
qualifications would hence forth be placed in category 'A '.
The High Court rightly came to the conclusion that the scale of pay of Rs. 110 250 would be effective either from the date when the teachers would pass the examination of Bachelor of Teaching or its equivalent or 1 May, 1957, whichever is later.
The High Court, however, gave the teachers the scales of salary confined to a period of 3 years and 2 months counting back from the date of the presentation of the writ petition.
In other words, the High Court did not allow the teachers any claim prior to 1967.
The letter dated 7 November, 1958 was necessary because in spite of the revised grade of Rs. 110 250 having been granted to Bachelor in Teaching or equivalent thereof, they were not being appointed by process of promotion to the posts of Masters.
The letter stated that "selection is to be made on the basis of seniority cum merit, due regard being paid to good reputation regarding character, popularity among students and parents and capacity to maintain discipline".
The respondents claimed that according to the letter those of them who were Bachelor in Teaching or Bachelor in Education were entitled to be appointed to the posts of Masters.
The teachers could not claim vacancies by promotion exceeding 25 per cent.
Their claim for appointment by promotion had to take into consideration not merely their seniority but also their merit.
This percentage of 25 as fixed by the letter is covered by Rule 7(ii) and the principle of selection for appointment is covered by Rule 7 clause (iii).
Therefore, the earlier letter dated July 23, 1957 fixed the scale of pay on the basis of academic qualifications.
The subsequent letter dated 7 November, 1958 recognised the right of promotion to the posts of Masters to the extent of 25 per cent.
The High Court said that the contention of the State that the teachers could not be considered for promotion unless they satisfied the condition of subject combination namely, that if they were ordinary graduates with training qualifications, they must have studied two out of the four subjects, namely, History Geography, Economics and political Science is not supported by the letter dated 7 November, 1958.
The High Court rightly said that the letter does not speak of any limitation of subject combination for promotion.
Some of the teachers were from time to time promoted to the posts of Masters but never continuously beyond a period of six: months.
After completion of six months, there was a break to avoid continuity in service for the posts of Masters beyond six months.
The State contended that the teachers could not be considered for promotion unless the Board were satisfied that the teachers if ordinary graduate with training qualifications`must have also studied two out of four subjects of History, Geography, Economics and Political Science.
The teachers on the other hand contended that once the State Government had taken a decision as embodied in the letter dated 7 November, 1958 the policy of not allowing the teachers to continue beyond six months on 534 temporary basis was nullifying the letter and spirit of the decision of the letter dated 7 November, 1958.
The teachers also contended that the promotion of teachers to Masters is completely independent of any consideration like the combination of subjects.
The High Court rightly held that letter dated 7 November, 1958 was subject only to two limitations.
One was that teachers could not claim more than one fourth of the vacancies of the posts of Masters and the other was that the claim by way of promotion would be considered by the appointing authority on the basis of seniority cum merit.
The High Court rightly held that the letter dated 7 November, 1958 was not subject to the condition of subjects combination being fulfilled.
There are three categories of teachers Science Masters, Mathematics Masters and Social Studies Masters.
No condition of combination of subjects can be read into the letter of 7 November, 1958.
The second conclusion of the High Court is correct that the teachers were to be treated as serving in that scale of pay continuously and not on six months basis.
The third conclusion which the High Court arrived is correct that the teachers were to be considered for appointment to the posts of Masters to the extent of 25 per cent quota as recognised for their category of teachers on the basis of seniority cum merit without being subjected to the condition of subject combination.
The judgment of the High Court is affirmed.
The appeals are dismissed.
The respondents will be entitled to one set of costs.
P.B.R. Appeals dismissed .

summary:
Promotion from lower grades in the service to a higher grade is one on the methods of recruitment under r. 7 of the Punjab Educational Service Class III School Cadre Rules, 1955 Rule 10 of the rules states that members of the service would be entitled to such scales as may be authorised by the government from time to time.
The State Government issued letter dated 23rd July, 1957 on the subject of revision of scales of low paid government servants in which it was stated that the then existing scales of pay of certain categories of posts should, with effect from 1 May, 1957, be revised as shown therein.
In that letter teachers according to their qualifications were placed in categories A and B, and the respective scales o pay to which they were entitled were mentioned.
The letter dated 7 November, 1958 issued by the Deputy Director (Schools) to the Inspector of Schools stated that 25% of the posts of B.T./B.Ed.
masters should be filled by promotion from amongst teachers working in the lower grade who have passed the above examinations and that the selection was to be made on the basis of seniority cum merit.
The respondents who were teachers were promoted from time to time as masters but were never allowed continuously beyond six months to avoid continuity in service and were not given the revised scales.
They claimed the revised scales of pay as well as the posts of masters on the ground that they had taken the degrees in Bachelor of Teaching or its equivalent, that the letter dated 23 July, 1957 which became effective from 1 May, 1957 entitled them to the revised grade if they took the degree of Bachelor of Teaching or its equivalent and that the letter of 7 November 1958 entitled them to the posts of masters to the extent of 25% on the vacancies.
The High Court allowed their prayers.
In appeal to this Court it was con tended by the State that (1) there was not to be a mass increase of pay of all teachers to that grade of pay but what the letter dated 23 July, 1957 meant was that a teacher who passed B.T. examination would be entitled to be appointed a master and on being so appointed would be entitled to the scale of pay.
and (ii) that according to the letter of 7 November 1958 teachers who were qualified by possessing B.T./B.Ed.
degrees would be entitled to get 25% of the posts provided the respective posts, according to their subject combination, were vacant.
Dismissing the appeals, ^ HELD: The letter dated 23 July, 1957 fixed the scale of pay on the basis of academic qualifications while the letter dated 7 November 1958 recognised the right of promotion to the posts of masters to the extent of 25%.
[533E] 1.(a) Rule 10 entitles the teachers to such scales of pay as may be authorised by the Government from time to time.
Letter dated 23 July,.
1957 showed that teachers who possessed the degree of B.T. Or its equivalent on 1 May, 1957 would be entitled to scales of pay mentioned therein.
Those who will pass the examination of ' B.T. thereafter would be entitled to their revised scale of pay with effect from the date they passed the examination.
[532G] (b) The contention of the State that there was not to be a mass increase of scales of pay is unsound.
Teachers who possessed degrees became entitled to the scales of pay according to category A. [532H] 530 (c) The High Court rightly came to the conclusion that the scale of pay would be effective either from the date when the teachers would pass the examination of B.T. Or its equivalent or I May, 1957, whichever is later.
[533B] (2) The High Court rightly held that the letter dated 7 November, 1958 was subject only to two limitations namely (1) that teachers could not claim more than one fourth of the vacancies of posts of masters, and (ii) the claim by way of promotion would be considered by the appointing authority on the basis of seniority cum merit.
No condition of combination of subjects could be read into the letter of 7 November 1958.
The High Court was also correct in holding that the teachers were to be treated as serving in that scale of pay continuously and not on six months basis, and that the teachers were to be considered for appointment to the posts of masters to the extent of 25% quota as recognised for their category of teachers on the basis of seniority cum merit without being subjected to the condition of subject combination.
[534A D]


judgement:
: Criminal Appeal No. 74 of 1971.
Appeal by Special Leave from the Judgment and order dated the 25th January 1972 of the Bombay High Court in Criminal Appeal 1025 of 1959.
N. H. Hingoorani and Mrs. K. Hingoorani for the Appellant.
section B. Wad and Al.
N. Shroff for the Respondent.
The Judgment of the Court was delivered by V BEG, J.
The appellant before us by special leave to appeal was convicted under Section 135(b) (ii) of the (hereinafter referred to as 'the Act '), and sentenced to six months rigorous imprisonment and a fine of Rs. 2,000/ , and, in default, to three months further rigorous imprisonment.
Goods in respect of which this offence was found to have been committed were also confiscated.
On 21 4 1967, Police Officers of the Anti Corruption and Prohibition Bureau, Greater Bombay, acting on information received, had searched room No. 10 at 56, Sheriff Deoji Street, Bombay.
This room was divided by partitions into three parts.
In the central portion the police found the appellant and three other persons.
This portion was again sub divided with a locked connecting door fixed in the passage to the sub divided part.
This was opened by one of the two Godrej lock keys produced by the appellant from a side pocket of his trousers.
Eleven wooden boxes covered with jute cloth and secured by iron strips were found there.
On opening them, six of them were found to contain cigarette lighters of "Imco Triplex Junior '? brand "Made in Austria".
Each of the six boxes were tightly packed with 1200 lighters.
The remaining five boxes contained fifty sealed tins of flints for cigarette lighters which bore the following writing: "Tego Lighter Flints of Superior Quality Made in Germany".
On the wooden boxes containing the lighters were found written "Dubai" and "Made in Austria".
The five boxes containing flints had the words "Dubai" and "Made in West Germany" inscribed on them.
A panchnama was prepared before Panchas.
A rent receipt in the name of the appellant in respect of room No. 10, in this house, of which a portion was occupied by the appellant, and a bill for the consumption of electricity were also seized from the custody of the appellant together 541 with the Godrej lock and the keys produced by the appellant.
Subsequently, the seized articles were made over to the inspector of Central Excise and Customs, Marine and Prevention Division, Bombay, on 24 4 1967, under Section 110 of the .
The value of 7200 cigarette lighters was stated as Rs. 14,400/ and of 250 tins of flints as Rs. 15,000/ on which Customs duty of Rs. 15,840/ and Rs. 10,500/ respectively was alleged to be payable.
In the complaint filed on 30th October, 1968, by the Assistant Collector of Central Excise, Marine and Prevention Division, Bombay, it is alleged that the cigarette lighters and flints were imported into India without an import licence and in contravention of provisions of Government of India, Ministry of Commerce & Industry, Import Control order No.17/55 dated 7 12 1955 (as amended) issued under Section 3(2) of the Import & Export (Control) Act, 1947, which was to be deemed to be an order passed under Section 11 of the Act.
It was submitted that the accused, having been concerned in a fraudulent evasion of payment of Rs. 26,340/ as customs duty to the Government, had committed offences punishable under Section 135(a) and (b) of the Act.
The goods were also as a necessary consequence, said to be liable to confiscation under Section 111 (d) of the Act.
The appellant had denied being in possession of the offending goods although he had admitted the production of keys from his possession He alleged that the portion of the room from which the goods were recovered was sublet to Dwarumal and Kishen who had kept the goods there.
The appellant 's explanation had been disbelieved by the trying Magistrate as well as by the High Court.
The production of the key which, according to the prosecution evidence, the appellant had at first refused to produce, proved that the portion in which the boxes were kept was in appellant 's exclusive possession with all that was contained in it.
It is possible that he may have sub let other portions of the partitioned room to other persons, but there is no reason to doubt that the appellant was not only in possession of the bodies but knew something about the incriminating nature of their contents.
Otherwise, why should he, at first, have refused to produce the key he had ? Furthermore, the appellant had not given any evidence to show that his sub tenants had placed the boxes there, or that there was any reason why he should allow them to use the portion reserved by him for himself.
His case rested on his bare assertions in a written statement.
Of course, no one had come forward to state or allege that the goods found, in the circumstances stated above? had been imported without payment of duty.
The only question raised before us was whether the presumption contained in Section 123 of the Act, corresponding to Section 128(A) of the .
Or any other provision of law would place the onus of proving innocent possession of these goods upon the appellant.
Section 123 of the Art reads as follows: "123.
Burden of proof in certain cases.
(1) Where any goods to which this section applies are seized under this Act in the reasonable belief that 542 they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.
(2) This section shall apply to gold, diamonds, manufacturers of gold or diamonds, watches, and any other class of goods which the Central Government may by notification in the official Gazette specify".
lt is true that lighters and flints were notified as provided in Section 123(2) in the official Gazette of 26 8 1967.
Nevertheless, as the provisions of Section 123(1) of the Act only lay down a procedural rule, they could be applied when the case came up for trial before the Presidency Magistrate who actually decided it on 15 7 1969.
Indeed, the complaint itself was filed on 30 10 1968.
It is immaterial that the appellant was found in possession of the goods on 21 4 1967 There is, however, another objection to the applicability of Section 123(1) of the Act.
It is that it would apply only to goods seized under the Act.
lt is contended that the goods in respect of which the appellant was prosecuted were not seized under the Act.
Reliance was placed for this contention upon Gian Chand & ors.
vs the State of Punjab (1) Even if the goods with which we are concerned here were not seized under the Act, as provided by Section 111 of the Act, it is contended on behalf of the State that Section 106, read with Section 114 of the Evidence Act, was sufficient to enable the prosecution to ask the Court to presume that the appellant knew that the goods must have been smuggled or imported in contravention of the law.
The appellant had not produced evidence to show that the goods were legally brought into India.
Reliance was placed on behalf of the prosecution on: Collector of Customs, Madras & ors.
vs D. Bhoormal (2); M/s. Kanungo & Co. vs The Collector of Customs, Calcutta & Ors(3), Issardas Daulat Ram & ors.
vs the Union of India & Ors.(4), Anant Gopal Sheorey vs The State of Bombay(5).
Learned Counsel for the appellant had in his turn, relied upon The State of Punjab vs Gian Chand & ors.(6).
He contended that it was necessary for the prosecution to prove: (1) that, the goods in question were actually smuggled or brought into the country without payment of customs duty at a time when payment of such duty had become obligatory; and, (2) that, the appellant was dealing with them knowing them to be smuggled goods.
It was contended that mere possession by the accused of such goods could not enable the prosecution to apply Section 106 of the Evidence Act when the appellant could not know where the goods came from.
It was urged that there was no evidence which could enable the appellant to know where the goods came from or when the goods were imported or that duty, if leviable was not P d on them.
The admissibility and sufficiency of (1) [1962] (Suppl.) 1 S.C.R. 364.
(2) ; (3) A.I.R. (4) [1962] Suppl.
(1) S.C.R. 358.
(5) ; (6) Criminal Appeal No. 195 of 1962 decided by this Court on 2 4 1968.
543 the inscriptions on the goods and the writing on boxes in which they were found, for proving the place from where they came, or when they were imported, were questioned.
The contention was, that even if the appellant is deemed to be in possession with full knowledge of what the goods actually were, the Court could not go further and assume them to be smuggled or imported into the country from another country of their assumed origin after a time when the restrictions on their import had been imposed.
Unfortunately, the appellant did not admit the possession of the goods at all.
If he could have succeeded in explaining satisfactorily how he was an innocent receiver of such goods without knowing that they were illegally imported or smuggled he may have had a chance of getting the benefit of doubt The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into this country very recently from another country.
The inscriptions or them and writing on the boxes were parts of the state in which the goods in unopened boxes were found from which inferences about their origin and recent import could arise.
The appellant 's conduct, including his untruthful denial of their possession, indicated consciousness of their smuggled character or means rea.
In any case, there was some evidence to enable the Courts to come to the conclusion that the goods must have been known to the appellant to be smuggled even if he was not a party to a fraudulent evasion of duty.
Consequently, the appellant had been convicted only under Section 135(1)(ii) of the Act.
We do not find sufficient reasons to interfere with this finding of fact or the sentence imposed.
It would also follow that the goods were rightly confiscated.
Accordingly, this appeal is dismissed.
V.M.K. Appeal dismissed.

summary:
Section 123(1) of the , provided that, where any goods to which this section applies are seized under this Act in the reasonable relief that they are smuggled goods, the burden of proving that they are not smuggled goods shall be on the person from whose possession the goods were seized.
On 21 4 1967 Police officers of the Anti Corruption and Prohibition Bureau.
Greater Bombay, acting on information received, had searched room No. 10 at 56, Sheriff Deoji Street Bombay.
This room was divided by petitions into three parts.
In the central portion the police found the appellant and three other persons.
This portion was again sub divided with a locked connecting door fixed in the passage to the sub divided part.
This was opened by one of the two Godrej lock keys produced by the appellant from a side pocket of his trousers.
Eleven wooden boxes covered with jute cloth and secured by iron strips were found there.
On opening them.
six of them were found to contain cigarette lighters of "Imco Triplex Junior" brand "Made in Austria.".
Each of the six boxes were tightly packed with 1 200 lighters.
The remaining five boxes contained fifty sealed tins of flints for cigarette lighters which bore the Following writing: "Tego Lighter Flints of Superior Quality Made in Germany" inscribed on them.
A panchnama was prepared before Panchas.
A rent receipt in the name of the appellant in respect of room No. 10, in this house, of which a portion was occupied by the appellant, and a bill for the consumption of electricity were also seized from the custody of the appellant together with the Godrej locks and the keys produced by the appellant.
On 30th October.
1968 the Assistant Collector of ' Central Excise, Marine and Prevention Division.
Bombay, filed a complaint alleging that the appellant had committed offences punishable under Section 135(a) and (b) of the .
The appellant had denied being in possession of the offending goods although he had admitted the production of keys from his possession.
The trying Presidency Magistrate convicted him under section 135(b)(ii) of the and sentenced him to six months rigorous imprisonment and a fine of Rs. 2,000/ , and in default, to three months further rigorous imprisonment.
The High Court dismissed his appeal.
This appeal has been preferred on the basis of the special leave granted by this Court.
It was contended for the appellant that: (1) the presumption contained in s.123(1) of the Act would not place the onus of proving innocent possession of the goods in question upon the appellant; and, (ii) the goods in respect of which the appellant was prosecuted were not seized under the Act.
Rejecting the contentions and dismissing the appeal.
the court ^ HELD: (1) Though lighters and flints were notified provided in Section 123(2), in the official Gazette of 26 8 1967 the provisions of Section 123(1) which only lay down a procedural rule, could be applied when the case came up for.
trial before the Presidency Magistrate.
He divided it on 15 7 1969.
The complaint itself ' was filed on 30 10 1968.
It is immaterial that the appellant was round in possession of the goods on 21 4 1967.
[542 B C] (ii) The very appearance of the goods and the manner in which they were packed indicated that they were newly manufactured and brought into this country very recently from another country.
The inscriptions on them and writing on the boxes were Parts of the state in which the goods in unopened boxes were found from which inferences about their origin and recent import 540 could arise.
The appellant 's conduct, including his untruthful denial of their h possession, indicated consciousness of their smuggled character or means rea.
There was some evidence to enable the courts to come to the conclusion that the goods must have been known to the appellant to be smuggled even if he was not party to a fraudulent evasion of duty.
[543 B D] Gian Chand & ors.
vs The State of Punjab, [1962] Suppl.
l S.C.R. 364 Collector of Customs, Madras & ors.
vs D. Bhoormull ; M/s, Kanungo & Co. vs The Collector of Customs, Calcutta & ORS.
A.I. R. 1972 S.C. 2136, Issaradas Daulat Ram & ors vs The Union of India & ors [1962] Suppl.
1 S.C.R. 358, Gopal Sheorey vs The State of Bombay ; and The State of Punjab vs Gian Chand & ors.
Criminal Appeal No. 195 of 1962 decided by this court on 2 4 1968, referred to.


judgement:
Appeal from a judgment and decree of the High Court of Judicature at Patna dated 14th February, 1946, in Appeal from Original Decree No. 117 of 1942 arising out of Title Suit No. 9 of 1939: Civil Appeal No. 40 of 1950.
S.C. Misra for the appellant.
N.C. Chatterjee (P. B. Gangoli, with him) for the re spondent.
154 1951.
February 5.
The judgment of the Court was deliv ered by MAHAJAN J.
This appeal arises out of Suit No. 9 of 1939 instituted in the Court of the Subordinate Judge of Palamau by the appellants against the respondents for a number of declarations in respect to the title to certain lands and for an injunction restraining the respondents from proceed ing with a rent suit.
The suit was decreed by the Subordi nate Judge but on appeal this decision was reversed by the High Court of Judicature at Patna and the appellants ' suit was dismissed.
The salient facts of the case are as follows: Village Darha belonged to a family of Pathaks as their ancestral lakhraj.
Over a hundred years ago the Pathaks granted the entire village in mokarrari to the ancestors of the family of Singhas (defendants ' first and second parties) at an annual jams of Rs. 24.
The mokarrari interest eventually devolved on three branches of the Singha family, each branch getting in the following proportions: Parameshwar Dayal and others, defendants ' first party, to the extent of six annas; Bisheswar Dayal Singh, defendants ' second party, to the extent of eight annas; and Madho Saran Singh, to the extent of two annas.
Subsequently, the two anna share of Madho Saran Singh was purchased by Hiranand Jha, father of the plaintiffs, jointly with.
Durganand Jha and Dharam Dayal.
Dharam Dayal was a mere benamidar for Hiranand Jha.
On the 5th June, 1916, Bisheshwar Dayal Singh purchased six anna share in the lakhraj interest from Deolal Pathak and others and on the 9th February, 1917, he purchased another two anna share from Mandil Pathak.
By virtue of these purchases he came to own the lakhraj interest to the extent of eight anna share.
He already held the mokarrari interest to the same extent which had devolved on him by inheritance.
Some time in the year 1917 or 1918 Hiranand Jha and Durganand Jha, who had acquired by purchase two anna mokar rari interest of Madho Saran Singh, 155 purchased in execution of a rent decree the raiyati interest in the whole village and came into possession of it.
They thus became mokarraridars of two anna share and raiyats of sixteen annas of the village lands.
In the year 1918, Title Suit No. 59 of 1918 was insti tuted in the court of the Subordinate Judge of Palamau for partition of the lands situate in several villages and belonging to the family of the defendants ' first and second parties.
The Jhas were impleaded as defendants in ' the suit, being co sharers in part of the property in suit.
This suit was decreed in the year 1921, and in the final partition an allotment of two annas share in Darha village was made in their favour.
The remaining fourteen anna share excluding khatian 1, 3 and 6 was allotted to the defendants ' first party.
These three khatians were allotted to Bisheshwar Dayal Singh and in exchange for the remaining portions of his interest in that village he was given some property in village Holeya.
The result of the partition proceedings was that the defendants ' first party came to hold fourteen anna mokarrari interest in village 'Darha, Bisheshwar Dayal Singh 's interest was limited to three khatians only, and the Jhas got a separate allotment for their two anna share in the mokarrari.
It appears that some time about the year 1926 the lakhraj interest holders, i.e., the Pathaks and Bisheshwar Dayal Singh, were in default in the payment of the cess due to Government.
On the 17th August, 1926, pro ceedings were taken against them for recovery of the cess and their interest was sold in execution of a certificate on the 18th October, 1927, to one Bijainandan Sahay.
The sale obviously was of the lakhraj interest.
This was confirmed on the 19th December, 1927, and a sale certificate was issued on the both March, 1928.
This was followed by deliv ery of possession on 15th July, 1928.
Possession was ob tained by one Kamta Prasad who had acquired this interest from Bijainandan Sahay on the 20th April, 1928.
On the 1st May, 1933, Kamta Prasad transferred his interest in the village to the plaintiffs who thus became proprietors of sixteen anna share in the village and mokarraridars as to two anna 156 share and raiyats of the entire sixteen annas in the whole village.
On the 21st September, 1934, the defendants ' first party as mokarraridars brought a suit against the plaintiffs for arrears of raiyati rent for the years 1338 39 F. to the extent of six annas share and for the years 134041 F. to the extent of fourteen anna share claiming that under the parti tion decree they got a fourteen anna share in the mokarrari interest in the village.
Plaintiffs contested the suit alleging that Bisheshwar 's mokarrari interest had merged in the lakhraj interest that was purchased by him from the Pathaks in the years 1916 17, and that by the sale under the Government 's certificate his whole eight anna interest in the village including both the lakhraj and the mokarrari had passed on to the plaintiffs and that the defendants ' first party could only claim rent from them to the extent of the six anna share in the mokarrari.
This plea was disallowed and the defendants ' first party 's claim for rent was decreed in full.
The decree was upheld on appeal and second appeal.
The question of title was, however, left open.
In the year 1938 another suit for rent was filed by the defendants ' first party as mokarraridars to recover fourteen anna share of the rent for the years subsequent to fasli 1341.
As a result of this suit, the plaintiffs brought the present suit for declaration and injunction on the allegation that the eight anna mokarrari interest of Bisheshwar Dayal Singh had merged in his lakhraj interest, that by the certificate sale Bisheshwar Dayal Singh lost all his interest in the village both lakhraj and mokarrari by reason of merger, that the partition decree of the year 1921 was illegal and in any case, under that decree the defendants ' first party got only six anna mokarrari interest and were entitled to realize rents from the tenants only to that extent.
An injunction was also claimed restraining the defendants from proceeding with the rent suit.
In the plaint, it was alleged that there was a private partition between the mokarraridars by virtue of which the lands of village Darha were divided between the three sets of mokarraridars, each set being 157 in separate possession of its own separate and defined shares.
It was also pleaded that there was another parti tion between the proprietors of the lakhrai interest, that is, between Bisheshwar Dayal Singh on the one hand and Deolal Pathak, Neman Pathak and Surajnath Pathak on the other, by virtue of which the lands that were in mokarrari patties of Parmeshwar Dayal Singh and others and Hiranand Jha and Durganand Jha fell in the patti of Deolal Pathak and others, while, the lands that were in the mokarrari patti of the defendants ' second party fell in his proprietary lakhraj patti and that as a result of these partitions the mokarrari interest of the defendants ' second party merged in his lakhraj interest and under a certificate sale the whole of his interest passed to the plaintiffs.
The trial Judge held that both the partitions alleged by the plaintiffs in paragraphs 5 and 8 of their plaint were proved and that the mokarrari interest of Bisheshwar Dayal Singh merged in his lakhraj interest and that at the certif icate sale the purchaser acquired his complete interest both lakhraj and mokarrari along with the eight anna lakhraj interest of the Pathaks and that the defendants ' first party were mokarraridars of six anna interest in the village and to that extent were entitled to a decree in their rent suit and could not claim a decree for rent to the extent of fourteen anna share.
The High Court in appeal held that none of the partitions alleged by the plaintiffs were proved and that the mokarrari interest of eight annas could not merge in the lakhrai interest of sixteen annas held jointly by Bisheshwar Dayal Singh with the Pathaks.
As a result of this decision the plaintiffs ' suit was dismissed.
In this appeal it was contended by the learned counsel for the appellants that the High Court had erroneously held that the two partitions set up by the plaintiffs in para graphs 5 and 8 had not been proved.
It was argued that the evidence on the record, both documentary and oral, fully established the fact of the two partitions and that in view of these partitions it should have been held that Bisheshwar Dayal Singh 158 became separate owner of eight anna lakhraj interest and in that interest his mokarrari interest of eight annas merged, and that under the certificate sale the whole of this inter est passed on to the purchaser in execution and that being so, the defendants ' first party could only maintain a suit for recovery of rent from the raiyats to the extent of their six anna mokarrari interest.
In our opinion, this appeal can be disposed of on a short point without taking into consideration the respective contentions of the parties raised before us or urged in the two courts below.
The plaintiffs ' case rests solely on the allegation of merger of the eight anna lakhraj interest of Bisheshwar Dayal Singh with his mokarrari interest to the same extent.
It, however, seems to us that there was no scope for the application of the doctrine of merger to the facts disclosed by the plaintiffs in their plaint.
If the lessor purchases the lessee 's interest, the lease no doubt is extinguished as the same man cannot at the same time be both a landlord and a tenant, but there is no extinction of the lease if one of the several lessees purchases only a part of the lessor 's interest.
In such a case the leasehold and the reversion cannot be said to coincide.
It was the plaintiffs ' case that mauza Darha was orginally granted in mokarrari under a single contract of lease and it was by inheritance that the lessee 's interest devolved on three branches of the family, Bisheshwar Dayal Singh getting an interest of eight annas in the whole of the leasehold.
He then purchased a six anna interest in the entire reversion in the year 1916 and another two anna interest in it in the year 1917.
By these purchases he became a joint owner in the entire lakhraj holding to the extent of a moiety.
He, however, never came to own the entire lakhraj interest in the village or the entire mokarrari interest therein.
There was thus no coalescence of the interest of the lessor and the lessee in the whole of the estate which was subject to lakhraj and mokarrari interests and that being so, the mokarrari interest of Bisheshwar Dayal Singh did not merge in his lakhrai interest.
159 Mere purchase by Bisheshwar Dayal Singh of portions of the lakhrai interest could not bring about an extinction of the lease or break its integrity as he was only one of the several joint holders of the mokarrari interest.
An inter se partition of the mokarrari interest amongst the mokarrari dars as alleged by the plaintiffs could not affect their liability qua the lessor for the payment of the whole rent, as several tenants of a tenancy in law constitute but a single tenant, and qua the landlord they constitute one person, each constituent part of which possesses certain common rights in the whole and is liable to discharge common obligations in its entirety.
In the words of Lord Halsbury in White vs Tyndall(1), the parties to whom a demise is made hold as tenants in common but what they covenant to pay is one rent, not two rents and not each to pay half a rent but one rent.
There is a privity of the estate between the tenant and the landlord in the whole of the leasehold and he is liable for all the covenants running with the land.
In law, therefore, an inter se partition of the mokarrari interest could not affect the integrity of the lease and it could not be said that Bisheshwar Dayal Singh under the alleged partition became a mokarraridar under another con tract of lease.
Such partitions amongst several lessees inter se are usually made for convenience of enjoyment of the leasehold but they do not in any way affect the integri ty of the tenancy or make each holder of an interest in it as a separate holder of a different tenancy.
In the present case there was not even an allegation that the tenancy was severed and the several tenancies came into existence as a result of the partition qua the landlord.
Similarly the allegation of partition inter se among the several owners of the lakhraj holding could not in any way affect the integri ty of the lease in the absence of an allegation of a fresh contract between the split up owners of the holding and the different owners in the mokarrari interest.
The lakhraj holding in the village still remains a single holding and it was not alleged that it was split up in different holdings. 'All owners (1) 13 App.
263 21 160 of the lakhraj interest are jointly responsible for payment of the cess to Government and it was because of their de fault in payment of the cess that the whole lakhraj interest was sold in the certificate sale.
In this situation none of the conditions necessary for the application of the doctrine of merger can be said to have been made out by the allega tions made in the plaint.
On the plaintiffs ' own case the lease is still a live one in respect of the six anna inter est of the defendants ' first party and in these circum stances it is not possible to hold that it has become ex tinct to the extent of eight anna interest of Bisheshwar Dayal Singh in the absence of any allegation that any fresh contract, express or implied, was arrived at between the parties.
The leasehold has not in any way been drowned in the reversion and both lakhraj and mokarrari interest are still intact.
For the reasons given above we agree with the decision of the High Court that Bisheshwar Dayal Singh 's interest in the mokarrari did not merge in his lakhraj interest and that under the certificate sale it did not pass to the execution purchaser; on the other hand, it vested in the defendants ' first party by reason of the family partition and they became entitled as mokarraridars to recover rent from the plaintiffs ' raiyats to the extent of fourteen annas share.
All that passed at the certificate sale to the execu tion purchaser and subsequently to the plaintiffs was merely the lakhraj interest of the Pathaks and of Bisheshwar Dayal Singh and it could not be that at this sale qua one judg ment debtor a larger interest passed to the execution pur chaser than in respect of the other debtor.
In view of our decision that the doctrine of merger has no application to the facts of the case, the plaintiffs ' case is bound to fail.
We accordingly hold that there is no substance in this appeal and we dismiss it with costs.
Appeal dismissed.

summary:
If a lessor purchases the whole of the lessee 's interest, the lease is extinguished by merger, but there can be no merger or extinction where one of several joint holders of the mokarrari interest purchases portion of the lakhraj interest.
A partition inter se amongst several mokarraridars does not in any way affect the integrity of the tenancy or make each holder of an interest in it a separate holder of a different tenancy, and notwithstanding such partition the mokarraridars remain liable qua the lessor for the payment of the whole rent as one tenant.
White vs Tyndall (13 App.
Cas. 263) referred to.