IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 19TH NOVEMBER 2010 / 28TH KARTHIKA 1932 WP(C).No. 25882 of 2010(I) -------------------------- PETITIONER(S): --------------- SARASAN, AGED 47 YEARS,S/O.KUMARAN, KANDALASSERIL THEKKETHIL, ILAYIDATHU THARAYIL, ILIPPAKULAM P.O., MAVELIKKARA. BY ADV. SRI.V.ANIL (K/1480/98) RESPONDENT(S): --------------- 1. THE ADDL.EXCISE COMMISSIONR, (EXCISE & ENFORCEMENT), EXCISE COMMISSIONERATE NANDAVANAM, TRIVANDRUM. 2. THE DEPUTY COMMISSIONR, EXCISE DIVISION OFFICE, ALAPPUZHA. 3. THE DISTRICT TREASURY OFFICER, ALAPPUZHA. 4. THE EXCISE INSPECTOR, EXCISE RANGE OFFICER, NOORANADU. BY GOVERNMENT PLEADER SMT.K.R.DEEPA FOR R1-4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J. ------------------------------- W.P.(C) No.25882 OF 2010 ------------------------------- Dated this the 19th day of November, 2010 J U D G M E N T The petitioner is the owner of a two wheeler bearing registration No.KL 31 A 5329. The said vehicle was seized on 20.8.2009 for the reason that the petitioner was found transporting 4.60 liters of Indian made Foreign Liquor. C.R.No.101 of 2009 of Noornad Excise Range was registered against him. Simultaneously, proceedings were initiated against the petitioner under Section 67 B of the Abkari Act for confiscation of the vehicle. A show cause notice under Section 67 C(1) of the Abkari Act was issued to the petitioner. After receipt of the show cause notice, the petitioner submitted an application dated 15.9.2009 for interim custody of the vehicle. Interim custody was thereupon granted on furnishing security for Rs.30,000/-, being the market value of the vehicle. Later, after notice to the petitioner, the Deputy Excise Commissioner passed orders on 20.2.2010 ordering confiscation of the vehicle. Ext.R1(a) is the copy thereof. The said order was served on the petitioner in person on 28.2.2010, as can be seen from the endorsement made by him in Ext.R1(a) itself. The petitioner submits that aggrieved by that order, he has filed Ext.P2 appeal before the Additional Excise Commissioner and it is pending. The grievance voiced by the petitioner is that even W.P.(C) No.25882/2010 2 before the appeal is disposed of, the Deputy Commissioner of Excise has issued Ext.P3 order directing seizure of the vehicle. Ext.P3 is under challenge in this writ petition, wherein the petitioner seeks a direction to the respondents not to proceed with Ext.P3 order, till the appeal is disposed of. The petitioner has also prayed for a direction to the first respondent to consider and dispose of Ext.P2 appeal on the merits, within a time limit to be fixed by this Court. 2. A counter affidavit dated 3.11.2010 has been filed on behalf of respondents 1 and 2. It is stated therein that though a copy of Ext.R1(a) order confiscating the petitioner's vehicle was served on him on 28.2.2010, he did not file an appeal within the period of 30 days specified in section 67 E (1) of the Abkari Act or surrender possession of the vehicle. It is stated that Ext.P2 appeal was belatedly filed, that Ext.P2 appeal memorandum which does not bear the date was presented on 14.8.2010, long after the period of limitation expired, that it was not properly filed, and therefore, it was rejected as time barred and the decision communicated to the petitioner by Ext.R1(b) letter dated 21.8.2010. It is submitted that Ext.P3 order was passed on 30.7.2010 by the Deputy Commissioner of Excise for the reason that no order staying Ext.R1(a) was produced W.P.(C) No.25882/2010 3 before him. 3. When the writ petition was taken up today, none appeared for the petitioner. There was also no representation on behalf of the petitioner. I heard Smt.K.R.Deepa, the learned Government Pleader appearing for the respondents. I have also gone through the pleadings and the materials on record. It is evident from the averments in the writ petition that the vehicle belonging to the petitioner was ordered to be confiscated on 20.8.2010 by Ext.R1(a) order and a copy thereof was also personally served on him on 28.2.2010. Under section 67E of the Abkari Act, an appeal from Ext.R1(a) has to be presented within 30 days from the date of communication of the order. Ext.P2 appeal was not admittedly filed within the said period of 30 days. The appeal bears the date 20.8.2010 and it was rejected on 21.8.2010. 4. The provisions of the Abkari Act do not empower the appellate authority to condone the delay in filing the appeal. Even in Ext.P2, the petitioner has no case that a copy of the order was not served on him. In the absence of any power in the appellate authority to condone the delay in filing the appeal, I am of the opinion that this Court cannot in exercise of the jurisdiction under Article 226 of the W.P.(C) No.25882/2010 4 Constitution of India direct the appellate authority to entertain the appeal and dispose it of on merits. Ext.P3 order directing the petitioner to produce vehicle and ordering seizure of the vehicle was passed for the reason that Ext.R2(a) order has become final. It cannot therefore be said that Ext.P3 order is in any way illegal. I accordingly hold that there is no merit in the writ petition. The writ petition fails and it is accordingly dismissed. No costs. P.N. RAVINDRAN, JUDGE. nj.