1973 (12) TMI 89 - HC - Central Excise

Issues Involved:
1. Maintainability of the suits.
2. Jurisdiction of the Civil Court to try the suits.

Issue-wise Detailed Analysis:

1. Maintainability of the Suits:
The primary question in these appeals is whether the suits filed by the plaintiff are maintainable under Section 9 of the Code of Civil Procedure or barred under the provisions of the Central Excises and Salt Act, 1944 (Excise Act). The plaintiff sought a refund of sums allegedly illegally realized as excise duty, claiming that the amounts were collected without any authority of law. The Subordinate Judge dismissed the suits on the ground that they were not maintainable due to the Civil Court's lack of jurisdiction.

2. Jurisdiction of the Civil Court:
The core issue is whether the Civil Court has jurisdiction to entertain the suits considering the provisions of Sections 35, 36, and 40 of the Excise Act. Section 40 of the Excise Act provides immunity to government officers for acts done in good faith under the Act, barring suits for compensation or damages. However, the court held that Section 40 does not bar suits challenging the collection of illegal taxes or orders imposing tax or duty. The court referenced a Full Bench decision of the Madras High Court in Panchayat Board, Thiruvottiyur v. West India Matches Co., which supported the view that provisions similar to Section 40 do not bar suits for the recovery of illegally collected taxes.

Arguments and Court's Analysis:
- The Government Advocate argued that Sections 35 and 36 of the Excise Act, which provide for appeals and revisions, imply a bar on Civil Court jurisdiction. However, the court found no substance in this argument, stating that if a levy is made without authority or in violation of statutory provisions, the Civil Court's jurisdiction is not ousted.
- The court cited the Judicial Committee of the Privy Council in Secretary of State versus Mask & Co., which held that exclusion of Civil Court jurisdiction must be explicitly expressed or clearly implied. The Supreme Court's decision in Firm of Illuri Subbayya Chetty & Sons versus State of Andhra Pradesh was also referenced, emphasizing the general presumption of a remedy in Civil Courts unless clearly barred by statute.

Previous Writ Applications:
The court noted that two writ applications were previously filed and allowed on the grounds of violation of natural justice, directing the Assistant Collector of Central Excise to rehear the refund claims. Despite this, the Assistant Collector again rejected the claims, leading to the present suits.

Amendment of the Plaints:
The appellant sought to amend the plaints to reflect the new orders passed by the Assistant Collector after rehearing. The court found no valid reason to deny these amendments and directed the lower court to allow them.

Conclusion:
The court concluded that the Civil Court's jurisdiction is not barred by the Excise Act for suits challenging the legality of tax collection. The success of the plaintiff's claim depends on whether the duty in question was exempt under the relevant notification. The appeals were allowed, the judgments and decrees of the lower court were set aside, and the cases were remanded for further proceedings in accordance with the law.

Judgment:
Appeals allowed and cases remanded. No order as to costs.

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