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TMI Blog2019 (6) TMI 510X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Civil Court. Therefore, it is necessary to consider whether the jurisdiction is impliedly barred. This question is no longer res integra. The Hon ble Apex Court in the case of DHULABHAI VERSUS STATE OF MADHYA PRADESH AND ANOTHER [ 1968 (4) TMI 64 - SUPREME COURT] laid down the principles to decide whether the jurisdiction of the Court is barred under Section 9 of C.P.C. and held that Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssuance of suit summons in three original suits (viz.,) O.S.Nos.287, 285 & 286 of 2013 filed by the respondents 1 and 2 herein respectively. 3. The above said civil suits were filed in respect of original assessment orders issued by the Assistant Commissioner, Central Excise. It is the admitted position that these assessment orders are appealable orders under Section 35 of the Central Excise Act, 1944. The respondents herein did not file an appeal against the said orders; instead, civil suits were filed for a declaration that the respondents herein are entitled for exemption from Excise Duty (in O.S.No.287 of 2013 only) and also for a declaration that the Assessment Orders are Null and Void and, consequently, for a permanent injunction res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... revision petitioners should have filed an Interlocutory Application under Order 7 Rule 11(d) C.P.C. to reject the plaint as barred by law, instead of filing the present civil revision petitions. In the alternative, the learned counsel also submitted that it is open to the Civil Court to frame a preliminary issue with regard to jurisdiction before deciding the suit on merits. Therefore, he submitted that the present Civil Revision Petitions are not maintainable. In addition, the learned counsel for the respondents referred to Section 40 of the Central Excise Act, 1944; in specific, he drew the attention of this Court to Section 40(2) and the same is extracted hereunder: "40. Protection of action taken under the Act. (2) No proceeding, ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ises for consideration is whether the jurisdiction of the Civil Court is expressly or impliedly barred. On perusal of the Central Excise Act, it is clear that there is no express bar to the exercise of jurisdiction by the Civil Court. Therefore, it is necessary to consider whether the jurisdiction is impliedly barred. This question is no longer res integra. The Hon'ble Apex Court in the case of Dhulabhai vs. State of Madhya Pradhesh reported in AIR 1969 SC 78(CB) laid down the principles to decide whether the jurisdiction of the Court is barred under Section 9 of C.P.C. Paragraph No.35 of the said judgment is relevant and the same reads as under:- "(1) Where the statute gives a finality to the orders of the special tribunals the civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In either case the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o.3 enunciated in Kamala Mills becomes applicable, viz., where a statute creates a special right or a liability and also provides the procedure for the determination of the right or liability by the Tribunals constituted in that behalf and provides further that all questions about the said right and liability shall be determined by the Tribunals so constituted, the resort to civil court is not available - except to the limited extent pointed out therein ...." 10. When this case is analyzed in light of the above binding and authoritative judgments of the Hon'ble Supreme Court, as already stated, it is clear that the Assessment Orders in each of the cases is an appealable order. When a specific statutory remedy is provided, especially in ..... X X X X Extracts X X X X X X X X Extracts X X X X
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