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TMI Blog1961 (7) TMI 90X X X X Extracts X X X X X X X X Extracts X X X X ..... f ₹ 25 533 was paid in four installments between 28-9-51 and 18-1-52 and a sum of ₹ 11 766 was in arrears. Under the Finance Act of 1951 duty on certain categories of tobacco was reduced from 8 annas per 1b. to 6 annas per 1b. The difference at the rate of 2 annas per 1b. was to be refunded on production of certificates from Superintendents of Central Excise stating that the tobacco was of that category. At a later stage in accordance with the orders in force then the licensees produced certificates from the Superintendents Central Excise Bhavnagar and Trivandrum in respect of 1 284 and 27 28 5 1 of tobacco respectively. Accordingly on 26-3-52 the Superintendent Central Excise Anand as per orders in force then reassessed the above referred quantity of tobacco i.e. 1 284 86 and 2728 5 1 at 0-6-0 per 1b. instead of 0-14-0 per 1b. and allowed an adjustment of ₹ 14 156 at 0-8-0 per 1b. thereon. This adjustment resulted in excess payment of duty amounting to ₹ 2 390 by the licensee who claimed refund of that much amount. On scrutiny of the certificate issued by the Superintendent Trivandrum in respect of 27 28 5 1 of tobacco it was observed that it was incomplete ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... endent Central Excise Anand was without jurisdiction or without authority illegal and improper. It was denied that Rule 10 of the Central Excise Rules 1944 applied to the facts of this case. It was contended that the suit was barred by law of limitation and by the provisions of Section 40 of the Central Excises and Salt Act 1944. 5. The learned Civil Judge held that the Superintendent Central Excise Anand was Justified in re-assessing the tobacco at 14 annas per pound and that his action was with jurisdiction legal and proper. He also ordered that the orders of the Assistant Collector Central Excise Anand of the Collector of Central Excise Baroda and of the Government of India were quite legal with jurisdiction and proper. He held that the suit was not barred by limitation but was barred by the provisions of Section 40 of the Central Excises and Salt Act 1944 He also held that Rule 10 of the Central Excise Rules 1944 did not apply to the facts of the present case but Rule 10A of the said Rules applied. On these findings he dismissed the suit of the plaintiff with costs. 6. In First Appeal these findings are challenged. The finding of the lower Court that the suit is not barre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e within three months from the date on which the duty or charge was paid or adjusted in the owners account-current if any or from the date of making the refund. 10 Residuary powers for recovery of sums due to Government. Where these Rules do not make any specific provision for the collection of any duty or of any deficiency in duty if the duly has for any reason been short-levied or of any other sum of any kind payable to the Central Government under the Act or the Rules such duty deficiency in duty or sum shall on a written demand made by the proper officer be paid to such person and at such time and place as the proper officer may specify. 8. In view of Rule 10A the authority of the Excise Officers to demand an amount ₹ 35 299 as a consequence of the Finance Act of 1951 is not challenged before us and it is conceded that the demand of an additional amount of ₹ 35 299 was perfectly right under Rule 10A of the Central Excise Rules 1944 The Superintendent of Central Excise Anand passed an order on 26-3-52 stating that in view of the certificate issued by the Superintendent Central Excise Trivandrum he was satisfied that 27028 1/2 lbs. of tobacco fell under the special ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a provision is made for the assessment of tax or duty payable. Rule 10 of the Excise Rules already quoted above provides for two circumstances (1) when there is a short levy and (2) when after having been levied the duty has been erroneously refunded. The short levy referred to is a short levy through inadvertence error collusion or mis-construction on the part of an officer or through mis-statement as to the quantity description or value of such goods on the part of the owner. The rule provides that for the deficiency in the case of a short levy or the amount in the case of an erroneous refund demand of the refund may be made within three months from the date on which the duty or charge was paid or from the date of making the refund. Rule 10A of the Excise Rules gives powers to the authorities for the recovery of sums due to Government in two cases: (1) where the rules do not make any specific provision for the collection of any duty or of any deficiency in duty if the duty has for any reason been short-levied and (2) where any other sum of any kind is payable to the Central Government under the Act or the Rules. In these cases power was given to demand the amount and to recover t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 377; 21 143 was wrong and the assessment should have been ₹ 34 657 by adding the amount of ₹ 13 514 at the rate of eight annas per 1b. on 27028 1/2 1b. of tobacco as the certificate granted by the Superintendent Central Excise Trivandrum was not found to be in order. In other words the previous amount of ₹ 21 143 was treated as a short levy. If it is a short levy the question whether Rule 10 or Rule 10A applies would depend on the nature of the short levy. It is conceded that the short levy was due to the fact that there was an error in construing the certificate of the Superintendent Central Excise Trivandrum . As the short levy was due to an error and misconstruction on the part of the officer the short levy would fall under Rule 10 and the deficiency can be recovered under Rule 10 only within three months from the date on which the duty or charge was paid or adjusted. The whole duty namely the amount of 21 143 had been paid. In fact more had been paid to the extent of ₹ 2 390. The whole amount including the excess was paid on 18-1-52. Under Rule 10 therefore the deficiency due to the short levy can he recovered only within three months from 18-1-52. Even ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of time. The order does not therefore fall under Rule 10A of the Excise Rules as the order (Ex. 76) is not an order passed under the Act or under the Rules. Section 40 of the Excise Act does not therefore save the liability of the Central Government or an officer of the Government in respect of an act done or order passed which is obviously illegal and contrary to the Act and Rules. The learned Government Pleader next contended that the suit is also barred under Section 35(2) of the Act. Section 35(2) of the Act reads as follows: Every order passed in appeal shall subject to the power of revision conferred by Section 36 be final. Section 35 which provides for appeals also provides that every order passed in appeal under that section shall subject to the power of revision conferred by Section 36 be final. It is contended that as the plaintiff has resorted to an appeal to the Collector and also to a revision application to the Government of India the orders passed by the Collector in appeal and by the Government of India in revision are final and that no suit lies against the Government or its officer. The Learned Government Pleader relies on Secretary of State v. Mask and ..... X X X X Extracts X X X X X X X X Extracts X X X X
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