1966 (6) TMI 16 - HC - Central Excise

Summary

Issues Involved:
1. Applicability of the limitation bar prescribed by sub-section (2) of Section 40 of the Central Excises and Salt Act, 1944.
2. Determination of the crucial order for purposes of limitation.
3. Admissibility of the opinion of an expert without the expert being examined.
4. Legality of the order of the Central Excise Collector.
5. Validity of the notice under Section 80, CPC.
6. Timeliness of the suit.
7. Bar of the suit under the Central Excises and Salt Act, 1944.
8. Plaintiff's entitlement to relief.

Detailed Analysis:

1. Applicability of the Limitation Bar Prescribed by Sub-section (2) of Section 40 of the Central Excises and Salt Act, 1944:
The court examined whether Section 40 of the Act barred civil suits challenging orders of levy, assessment, or penalties. The court concluded that Section 40 only bars suits of a tortious nature for compensation or damages, not suits challenging illegal taxes or orders imposing a tax, duty, or penalty. The court referenced several precedents, including the judgments in *Panchayat Board, Tirukottiyur v. Western India Matches Co.*, and *Province of Madras v. Satyanarayanamurthy*, to support this interpretation.

2. Determination of the Crucial Order for Purposes of Limitation:
The court held that if Section 40 were applicable, the limitation period would be reckoned from the date of the Collector's order. Since the suit was filed within six months from the date of the Collector's order, it was within the prescribed limitation period.

3. Admissibility of the Opinion of an Expert Without the Expert Being Examined:
The court ruled that the opinion of an expert is inadmissible without the expert being examined. The court cited several precedents, including *Palaniappa v. Bombay Life Assurance Co., Ltd.*, and *Perumal Mudaliar v. S. I. Rly. Co. Ltd.*, to emphasize that expert evidence must be given orally to allow for cross-examination.

4. Legality of the Order of the Central Excise Collector:
The court found that the order of the Collector was unsustainable. The discrepancies in the marks and numbers on the packages and the negligible difference in weight were insufficient to prove that the seized goods were different from those permitted to be transported. The court also noted that the evidence used by the Collector, including Exs. B-29 and B-30, was inadmissible.

5. Validity of the Notice Under Section 80, CPC:
The court held that the omission to mention one of many grounds in the notice under Section 80, CPC, does not amount to non-compliance with the provisions. The court emphasized that the object of the section is to inform the defendants of the substance of the ground of complaint, and the plaintiff's notice fulfilled this requirement.

6. Timeliness of the Suit:
The court concluded that the suit was filed within the prescribed limitation period, as the limitation prescribed under Section 40 does not apply to this cause of action. The general law of limitation, which prescribes a three-year period, was applicable.

7. Bar of the Suit Under the Central Excises and Salt Act, 1944:
The court determined that the suit was maintainable despite the provisions of the Act. The court reasoned that the Act did not provide an adequate alternative remedy, as the appeal was subject to the payment of the entire tax, which could be prohibitive.

8. Plaintiff's Entitlement to Relief:
The court concluded that the plaintiff was entitled to relief. The order of the Collector was declared unsustainable, and the plaintiff's suit was decreed with costs.

Conclusion:
The appeal was allowed, the judgment and decree of the lower court were set aside, and the plaintiff's suit was decreed with costs. The court emphasized the importance of adhering to the principles of judicial procedure and ensuring that evidence is admissible and properly examined.