9911796707
TMI Blog2013 (2) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... laintiff-appellant surely maintainable against the defendant-respondents and the provisions of Section 92 and 93 cannot be applied as a bar. If Section 92 and 93 is strictly applied irrespective of the factual situation of the case, the plaintiff-appellant will be remediless. As the plaintiff-appellant clearly brought on record with oral and documentary evidence that the price of destructed IMFL was Rs.3,12,604/-. The plaintiff-appellant also calculated godown rent @ Rs.10,000/- per month from 31.03.1995 till 11.11.1997 and the amount was Rs.3,15,000/-. The labour cost for shifting all the stock for destruction, the plaintiff-appellant claimed as Rs. 3000/-. This amount of Rs. 6,30,604 the plaintiff-appellant is entitled to get as damages from the defendant-respondents. The plaintiff-appellant claim of 15% interest per annum on the cost price of the destructed intoxicants i.e. Rs.3,12,604/- is not acceptable & the defendant-respondents should make payment of the same with 6% simple interest thereon from the date of service of notice under Section 80 CPC i.e. from 20.11.1998. The defendant-respondents are directed to make the payment within 60 days failing which the amount sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 24.07.1995 narrating his difficulties and requested the defendants to renew his license for the purpose of selling the unsold stock but received no response. He further wrote letter dated 09.09.1995 and 16.07.1996 requesting the defendants to consider his representation and to issue permits in the name of retail dealers and to the wholesale Bonded Warehouses so that the unsold stock could be disposed of without delay. 3.2. On 05.08.1996 defendant No.3 by a letter directed the plaintiff to sell the unsold stock of IMFL and Beer etc. in conformity with Rule 153 of the Tripura Excise Rules,1990(hereinafter mentioned as Rules) to license holder Bonded Warehouses and to dispose the stock within 20(twenty) days, otherwise, action would be taken as per the provisions prescribed in Rule 95 of the Rules. The plaintiff requested defendant No.3 by his letter dated 12.08.1996 to permit him to dispose the unsold stock of IMFL and Beer to M/S Tripura Bonded Warehouse Agartala, who agreed to purchase the same and expressed his willingness also by writing letter dated 09.12.1996 and 30.01.1997 to the defendants. The defendants by letter dated 14.10.1996 asked the plaintiff to remove ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... his court. Accordingly, the defendant No.2 vide his letter dated 15.05.1997 issued notice to all the existing license holder Bonded Warehouses of Tripura to intimate within 15 days whether they were agreeable to take over the unsold stock of the plaintiff as per the attached list from the godown of the plaintiff. But none of the license holder Bonded Warehouses came forward to take over the unsold stocks from the godown of the plaintiff. The plaintiff also tried to pursue the existing license holder Bonded Warehouses and requested the defendants by writing letter dated 18.06.1997 and 23.07.1997 to arrange disposal of unsold stocks as per order of this court dated 05.05.1997. In the meantime, the defendants arranged for examination of the sample of unsold IMFL and Beer by Public Analyst from the stock of the plaintiff. Till 31st July,1997, the plaintiff did not get any response from the defendants. On 01.08.1997 defendant No.2 intimated the plaintiff that as per report of the Public Analyst, percentage of ethyl alcohol of 28 brands of IMFL and Beer were found much less than the strength required and directed the plaintiff to make arrangement for destruction of his entire stock. On ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as prescribed in the provisions of the Excise Act and Rules framed there under. It is further contended by the defendants that the Govt. of Tripura decided to distribute the license of the Bonded Warehouses throughout the State inviting tenders and such tender was invited before expiry of the license of the plaintiff. The decision of the govt. was challenged by the plaintiff and others filing writ petition before the High Court but that did not succeed and the plaintiff also participated in the tender process but remained unsuccessful. The stock which was lying with the plaintiff was supposed to be disposed of as per the provision prescribed in Rule 153 of the Rules and the plaintiff was asked by the defendants by their letter dated 10.04.1995 to dispose the stock as per Rules but the plaintiff failed to do so and on the contrary, asked the defendants to issue permits to the retailers for disposal of his stock which was not permissible as per law. It is also contended by the defendants that the approach of Tripura Bonded Warehouse which agreed to take the stock could not be permitted as there is no provision in law to maintain 2(two) godowns by a license holder. The defendants have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nue and not in respect of the damages incurred by a person for the fault of the respondents. The trial Court failed to appreciate the legislative intention of those provisions and arrived at a wrong finding. It is amply proved that the plaintiff-appellant has suffered the damage because of the lapses and negligence on behalf of the defendant-respondents and so the plaintiff-appellant is entitled to get the decree as prayed for. 9. Learned Additional G.A., Mr. Chakraborty, on the other hand, has submitted that the defendant-respondents acted according to the provisions prescribed by law. The defendant-respondents cannot go beyond the provisions prescribed and therefore, they cannot be held responsible for payment of the damages claimed by the plaintiff. Defendant-respondents asked the plaintiff-appellant to dispose the stock as per the provisions prescribed in Rule 153 but the plaintiff-appellant failed to do so. Again the plaintiff-appellant was asked to remove the stock to the Tripura Bonded Warehouse within 10 days after payment of the excise duty of the stock but the plaintiff failed to do so and the responsibility of failure should be borne by the plaintiff-appellant for whic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld not dispose the stock and approached the defendant-respondents to issue permit to the retail vendors for disposal of the stock but that was refused by the defendant-respondents saying that the existing law does not permit to do so. When the stock could not be disposed of, the plaintiff-appellant filed a Writ Petition vide Civil Rule No. 47 of 97 before this Court and by order dated 05.05.97 the Writ Petition was disposed of with the following direction:- The petitioner is, therefore, required to furnish the name of the Bonded Warehouse having licence to the Collector within a period of 7(seven) days and the Collector in his turn issue necessary pass for disposal of the remaining stock. In case, no existing wholesaler is agreeable to lift the remaining stock from the petitioner s Bonded Warehouse then Collector will pass appropriate order according to rules for disposal of the stock. With the above order and direction this writ petition is disposed of. It is also an undisputed fact that after above order was passed by this court, the defendant-respondents deputed a Sub-inspector of Excise and that Sub-inspector of Excise on 02.05.1997 verified and assessed the unsold sto ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the Excise Department the owner of owner bonded warehouse cannot sell liquor to the retailer. The Bonded Warehouse is always under the system of double lock having a key of lock with the Inspector of Excise, in charge of the Bonded warehouse and another with the owner of the bonded warehouse and the liquor is delivered from the warehouse as per permit in presence of the Inspector. In absence of the Excise Inspector, owner of the bonded Warehouse cannot open it and he has no right to do it. The Tripura Bonded Warehouse agreed to dispose of the stock of the plaintiff keeping the stock in the bonded warehouse(existing) of the plaintiff. W.V. it is not permissible in law . It is not correct that as per Excise Acts and Rules the Tripura Bonded Warehouse might be permitted to dispose of the stock of the plaintiff keeping the stock in the Warehouse of the plaintiff. It is not correct that though the Tripura Bonded Warehouse expressed to purchase the stock of the plaintiff, the defendant intentionally refused the same causing loss to the plaintiff. The owner of bonded warehouse need not pay the excise duty to the Government until he sells out his stock to the retailer. It is not corre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Provided that the intoxicant is fit for use and, in the case of country spirit, that it is within the limits of strength fixed for retail sale. (2) If he is unable to dispose of them in this manner he shall, on the requisition of the Collector, surrender the same to such officer as the Collector may appoint in this behalf; and the person whom a new license has been granted instead of the said licensed vendor or, if no such new license has been granted, then any licensed vendor of the intoxicant within the district shall, in the requisition of the Collector, be bound under penalty, if the Collector sees fit of forfeiting his license, to buy the said intoxicant at such price as the Collector may adjudge, and in any quantity not exceeding that which the Collector may determine to be ordinarily saleable by him in fourteen days; Provided that, if the Collector considers that the intoxicant or any part thereof is unfit for use or has otherwise deteriorated so as to be un saleable he shall cause the same to be destroyed with any compensation being claimable by the former licensed. 12. The above provision makes it clear that the Collector has got responsibility for disposal of un ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e revenue or made against any other person under this Act . A bare reading of the above provisions makes it clear that a Civil suit is generally barred against the State Govt. or against an Excise Officer in respect of any damage etc, for the acts done in good faith relating to excise revenue (emphasis supplied). The provision intended to give certain protection to the State Govt. and such officers of the Excise Department of the Govt. from being harassed with frivolous litigation in the Court of law for the act done by them in good faith relating to the excise revenue. Generally, the Excise Officers with a view to enforce the provision of Excise Act and Rules framed thereunder, cause search and seizure of goods/articles which is subject matter of excise duty and also cause arrest of such perpetrators of excise crime. A close reading of the entire scheme of the Act makes it clear that the legislature with a definite intention of protecting the State Govt. and the Officer of the Excise Department, incorporated the provisions excluding jurisdiction of Court only with a view to provide a protection from frivolous cases against them for the acts done by them in good faith relating to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecial right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in Civil Courts are prescribed by the said statue or not. (3) Challenge to the provisions of the particular Act us ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on a revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... st be obeyed and respected by all concerned. A judicial order, not invalid on its face, must be given effect to entailing all consequences, till it is declared void in a duly constituted judicial proceedings. In the case of Bantawala V. Life Insurance Corporation of India Anr. reported in (2011) 13 SCC 446, the Apex Court relying on the principles laid down in Dhulabhai(Supra) on the question of ouster of jurisdiction of Civil Court, in Para 86 of the judgment held thus:- 86. We may next deal with the contention of the respondents that the exclusionary clauses are to be read strictly. In Church of North India v. Lavajibhai Ratanjibhai,(2005) 10 SCC 760, relied upon by the respondents, this Court was concerned with a suit for declaration as to the succession to a particular trust governed under the Bombay Public Trusts Act. Such a suit was squarely covered under that Act and, therefore, it was held that the civil court will not have the jurisdiction to entertain the suit. The seven principles laid down by the Constitution Bench in Dhulabhai v. State of M.P.(AIR 1969 SC 78) were relied upon in that case. It is sufficient to refer to the first two principles therefrom which are ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mentary evidence that the price of destructed IMFL was Rs.3,12,604/-. The plaintiff-appellant also calculated godown rent @ Rs.10,000/- per month from 31.03.1995 till 11.11.1997 and the amount was Rs.3,15,000/-. The labour cost for shifting all the stock for destruction, the plaintiff-appellant claimed as Rs. 3000/-. This amount of Rs. 6,30,604 the plaintiff-appellant is entitled to get as damages from the defendant-respondents. 14.1 The plaintiff-appellant also claimed 15% interest per annum on the cost price of the destructed intoxicants i.e. Rs.3,12,604/- and thereby claimed a total amount of Rs. 7,98,627/-. I find no justification in the claim of 15% interest of the plaintiff-appellant. The plaintiff-appellant is legally entitled to get Rs.6,30,604/- from the defendant-respondents. The defendant-respondents should make payment of the same with 6% simple interest thereon from the date of service of notice under Section 80 CPC i.e. from 20.11.1998. The defendant-respondents are directed to make the payment within 60 days failing which the amount shall carry a penal interest @ 12% per annum. 15. The appeal is accordingly allowed. 16. The judgment and decree passed by the ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
