9911796707
TMI Blog1973 (12) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... s. First Appeal No. 222 of 1969 arises out of Money Suit No. 62 of 1966 whereas First Appeal No. 221 of 1969 arises out of Money Suit No. 61 of 1966 both instituted by the appellant in the court below. Money Suit No. 62 aforesaid was for a money decree for a sum of ₹ 2,80,593.44 paise whereas in Money Suit No. 61 of 1966 a money claim of ₹ 41,79.141.68 was made. Both these sums were prayed to be recovered by way of refund from the defendants respondents as having been allegedly illegally realised without any authority of law as excise duty in the purported exercise of the defendants respondent s power under the Excise Act. The point involved is common and the facts please are also common in both the suits except with regard to the amounts involved and the item of produce which has been subjected to excise duty. Whereas in Money Suit No. 62 of 1966 from which First Appeal No. 220 of 1969 arises the claim in based upon the alleged illegal realisation of excise duty on steel ingots out of steel scrap which had already borne excise duty, in First Appeal No. 221 of 1969 arising out of Money Suit No. 61 of 1966, the plaintiff has based its claim on such realisation of Central ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , 1966 and those cases have since been reported in A.I.R. 1967 Patna 375 and A.I.R. 1967 Patna 377. The fact that the present suits were pending in the court below in respect of the same claims was brought to their Lordships notice by way of preliminary objection to the maintainability of those writ applications, but their Lordships rejected this contention and held that ordinarily when the alternative remedy of civil suit had been availed of, it will not be proper for this Court to exercise its extraordinary jurisdiction under Article 226 of the Constitution, by the Civil Court s jurisdiction under the taxing statutes is of a very limited nature and, therefore, where. the main grievance of a party is that the principles of natural justice were violated, the power of the High Court will not be reflected by the fact that a Civil Suit has been filed by the aggrieved party. It transpires from the records that on a rehearing of the matter the Assistant Collector of Central Excise again rejected the plaintiff appellant s claim for refund which was the subject matter of Money Suit No. 62 of 1966 by an order dated the 18th December, 1968 and the claim involved in money Suit No. 61 of 1966 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... only relevant provisions of Excise Act which need be referred to here are sections 35, 36 and 40. Section 35 reads as follows :- * * * * The learned Subordinate Judge has taken recourse to the provisions of section 40 quoted above for holding that the cognizance of suits of the present nature was expressly barred. In my view, the decision of the learned Subordinate Judge on this question is manifestly erroneous. Section 40 protects the Government or any of its officer for acts done under the Act in good faith. The provisions of section 40 provide an immunity to the officers purporting to exercise their powers under the Act bona fide, thereby barring suits either of tortuous nature for compensations or damages on the one hand and Criminal prosecutions on the other. The questions regarding collection of illegal taxes or orders imposing tax or duty or penalty are not covered by section 40. While dealing with a similar question relating to the construction of section 225 of the Madras Local Boards Act (14 of 1920) a Full Bench of the Madras High Court in Panchayat Board, Thiruvottiyur v. West India Matches Co, (AIR 1939 Madras 421) held in support of the v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n appeal shall be final and only subject to the power of revision conferred by section 36. It was argued that since finality has been attached to an appellate order passed under section 35 which has been made subject to only revision interference under section 36. It must be held that any order passed under the Act cannot be collaterally attached by bringing a suit in the Civil Courts. In my view there is no substance even in this argument on behalf of the respondents. Where a levy of tax is made outside the scope of the Act or is alleged to have been made without any authority of law or in clear violation of the statutory provisions or rules or notification having,force of law, then such a levy is assailed on the ground of illegal assumption of jurisdiction and in such cases the jurisdiction of the Civil Court cannot be held to be ousted by the provisions of Sections 35 and 36. In the present cases, in paragraph 17 of the plaint of Money Suit No. 61 of 1666 and in paragraph 18 of the plaint of Money Suit No. 61 of 1966. It has been clearly averred that the duty realised was exempt under Notification No. 75 of 1962 and that the realisation thereof and the refusal to make a refund w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d statutes. 8. Unless therefore, there are compelling reasons to come to a conclusion that even where the levy and the realisation of taxes or duties are being challenged as being without any authority of law and wholly without jurisdiction, the Civil Court s jurisdiction is barred, the Civil Court will be jealous to guard its own jurisdiction against any such inference of its ouster. There are no such compelling reasons either in the Excise Act or in the rules framed thereunder. I have taken of the provisions of sections 35, 36 and 40 of the Excise Act finds support from a number of decisions. Union of India v. Vittappa Kamath (A.I.R. 1957 Madras 110), Union of India, represented by the Secy. to Government, Ministry of Finance, New Delhi v. Balabhadra Ramaiah and others (A.I.R. 1961 Andhra Pradesh, 540). Bemmidala Pernaish v. Union of India (A.I.R. 1967 Andhra Pradesh, 338) and Union of India v. Ghasi Ram Laxmi Narain (A.I.R. 1967 Allahabad, 546) all these cases have taken a similar view of the provisions of the Excise Act in question. In the case of Balabhadra Ramaiah (Supra) which is a decision of a learned Single Judge of the Andhra Pradesh High Court it has been expressly ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
