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TMI Blog1966 (6) TMI 17X X X X Extracts X X X X X X X X Extracts X X X X ..... s than twenty-five power-looms in all are installed. Originally when the bill was introduced, Clause (v) of Item No. 12A exempted art silk fabric produced or manufactured in one or more factories by or on behalf of the same person in which less than ten power looms in all were installed but as a result of the representation made by the Art Silk Manufacturers' Association, Surat, to the Government, the exemption limit in terms of power looms was raised from 10 to 25 and the Finance Act, 1954, as ultimately passed, gave exemption in respect of art silk fabric produced or manufactured in one or more factories by or on behalf of the same person in which less than 25 power looms in all were installed. Since the said joint family owned 64 power looms, it became liable to payment of excise duty on art silk fabric manufactured by it on the said power looms with effect from 28th February 1954. On 20th April 1954, however, a partition was effected of the said power looms among Dhirubhai and his two sons, Kirtikumar and Narendra and as a result of the partition 18 power looms went to the share of Dhirubhai, 22 power looms went to the share of Kirtikurar and 24 power looms went to the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er looms in the prescribed forms. The alleged joint family firm was also required to submit an Application for taking out a licence and executing the necessary bond without any delay. It was stated in the letter that if the alleged joint family firm was aggrieved by this decision it may represent its case to the Assistant Collector of Central Excise, Baroda, within three months from the receipt of the letter. Dhirubhai as the sole proprietor of Nalini Silk Mills accordingly preferred a representation dated 2nd August 1954 to the Assistant Collector of Central Excise pointing out that in view of the partition effected between the members of the joint family, none of them was liable to payment of excise duty from 20th April 1954 and that the view expressed by the Superintendent of Central Excise was, therefore, incorrect, but the Assistant Collector of Central Excise by his order dated 13th September 1954 stated that having regard to all the facts of the case, he did not see any reason to interfere with the decision of the Superintendent of Central Excise. Dhirubhai, Kirtikumar and Narendra thereupon each gave a notice under Section 80 of the Code of Civil Procedure to the Government ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge who heard the appeals agreed with the view taken by the learned trial Judge on all the points urged before him and dismissed the appeals. The learned District Judge on a consideration of the oral as well as documentary evidence on record came to the conclusion that the partition alleged by the plaintiffs was established and that the plaintiff in each suit carried on his own independent and separate business of manufacturing art silk fabric on the power looms allotted to him on partition with effect from 20th April 1954. The learned District Judge relied on the memorandum of partition in reaching this conclusion and in regard to the admissibility of the memorandum of partition he held that the memorandum of partition was not an instrument of partition but was merely a record of the partition effected on the previous day and it was, therefore, not required to be stamped as an instrument of partition nor was it required to be registered and it could not, therefore, be held to be inadmissible on the ground of want of proper stamp or registration. The learned District Judge negatived the plea of the Union of India that the partition was invalid because it was effected with a view ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion. The argument under this head is, therefore, wholly devoid of merit and must be rejected. 5. The argument under the second head was that the jurisdiction of the civil Court to entertain the suits was excluded by reason of the provisions enacted in Sections 35 and 36. It was contended on behalf of the appellant that a new liability of excise which did not exist at common law was created by the Act which at the same time gave a special and particular remedy in Sections 35 and 36 and this remedy given in Sections 35 and 36, therefore, excluded the common law remedy in the civil Courts. The appellant thus sought to bring the case within the third class stated by Willis J., in Wolverhamption New Water Works Ltd. v. Hawkesford (1859) 6 C.B. (N.S.) 336: Where a statute creates a liability not existing at common law and gives also a particular remedy for enforcing it with respect to that class, it has always been held that the party must adopt the form of remedy given by the statute . It was also pointed out on behalf of the appellant that Section 35(2) attached finality to every order passed in appeal under Section 35(1), subject to the power of revision conferred by Section 36 an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the rules made under this Act anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged- (a) without limit, by a Collector of Central Excise; (b) up to confiscation of goods not exceeding five hundred rupees in value and imposition of penalty not exceeding two hundred and fifty rupees, by an Assistant Collector of Central Excise: Provided that the Central Board of Revenue may, in the case of any officer performing the duties' of any Assistant Collector of Central Excise, reduce the limits indicated in Clause (b) of this section, and may confer on any officer the powers indicated in Clause (a) or (b) of this section. 7. Section 34 provides that where confiscation is adjudged, the officer adjudging it shall give the owner of the goods an option to pay fine in lieu of confiscation. Then come Sections 35 and 36 which are strongly relied on behalf of the appellant and they run as follows: 35. Appeals: Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or the rules made thereunder may, within three months from the date of such decision or order, appe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 52 provides for clearance of excisable goods on payment of excise duty in the following terms: 52. Clearance on payment of duty: When the manufacturer desires to remove goods on payment of duty, either from the place or premises specified under Rule 9 or from a store-room or other place of storage approved by the Collector under Rule 47, he shall make application in triplicate (unless otherwise by rule or order required) to the proper officer in the proper Form and shall deliver it to the officer at least twelve hours (or such other period as may be elsewhere prescribed or as the Collector may in any particular case require or allow) before it is intended to remove the goods. The officer shall, thereupon, assess the amount of duty due on the goods and on production of evidence that this sum has been paid into the Treasury, or paid to the account of the Collector in the Reserve Bank of India or the State Bank of India, or has been despatched to the Treasury by money-order shall allow the goods to be cleared. Rule 174 which is the next relevant rule for the purpose of the present appeals requires every manufacturer of excisable goods other than salt, which would include art sil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e readily inferred and that even if a provision giving the orders a finality is enacted, civil Courts still have jurisdiction to interfere where fundamental provisions of the statute are not complied with, or where the statutory Tribunals do not act in conformity with the fundamental principles of judicial procedure. Gajendragadkar J., as he then was, speaking for the Court on that occasion summed up the law as follows: In dealing with the question whether Civil Courts' jurisdiction to entertain a suit is barred or not, it is necessary to bear in mind the fact that there is a general presumption that there must be a remedy in the ordinary civil Courts to a citizen claiming that an amount has been recovered from him illegally and that such a remedy can he held to be barred only on very clear and unmistakable indications to the contrary. The exclusion of the jurisdiction of civil Courts to entertain civil causes will not be assumed unless the relevant statute contains an express provision to that effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... had taken place outside the Province of Madras. He accordingly contended that sales-tax was wrongly demanded from him in respect of these latter sales and filed a suit in the Court of the Subordinate Judge, Kumool, for refund of ₹ 11, 389-0-9 being the amount of tax alleged to have been illegally recovered by the Government in respect of such sales. The learned Subordinate Judge dismissed the suit on the question of limitation but on appeal the High Court of Madras took a different view on the question of limitation and decreed the suit of Basappa on the ground that some of the sales had taken place outside the Province of Madras and the levy of tax on the said sales was, therefore, illegal and since the legal and illegal levies were inextricably mixed up, the entire demand for tax was rendered illegal and void. The Government thereupon preferred an appeal to the Supreme Court and the main question debated before the Supreme Court was as to the jurisdiction of the civil Court to entertain the suit. The argument urged on behalf of the Government was that by reason of Sections 11 and 12 and particularly the provision enacted in Section 11 sub Section (4) the jurisdiction of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce with which would make the proceedings illegal and without jurisdiction, still remains, unless the statute goes further and states either expressly or by necessary implication that the civil Court's jurisdiction is completely taken away. The learned Judge then proceeded to apply this test to the case before him and observed at page 1877: Applying these tests, it is clear that without a provision like Section 18A in the Act, the jurisdiction of the civil Court would not be taken away at least where the action of the authorities is wholly outside the law and is not a mere error in the exercise of jurisdiction. Mr. Sastri says that we must interpret the Act in the same way as if Section 18A was implicit in it and that Section 18A was added to make explicit what was already implied. We cannot agree. The finality that statute conferred upon orders of assessment, subject, however, to appeal and revision, was a finality for the purposes of the Act. It did not make valid an action which was not warranted by the Act, as for example, the levy of tax on a commodity which was not taxed at all or was exempt. In the present case, the taxing of sales which did not take place within th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eld that since the sales on which tax was levied by the taxing authorities were sales which took place outside the Province of Madras, the taxing of those sales was wholly outside the jurisdiction of the taxing authorities and the civil Court had, therefore, jurisdiction to question and set aside such illegal action of the taxing authorities. The present appeals before me are directly covered by this decision of the Supreme Court. Sections 35 and 36 of the present Act are, as pointed out above, substantially in the same terms as Sections 11 and 12 of the Madras General Sales Tax Act, 1939. The remedy given by Sections 35 and 36 does not, therefore, exclude the jurisdiction of the civil Court where the action of the Excise Officers is wholly outside the statute, as for example, where the Excise Officers insist on compliance with the provisions of the Act or the Rules in case of goods which are not excisable goods and, therefore, not within the scope and ambit of the Act and the Rules. It is a fundamental postulate of the Act and the Rules that the goods should be excisable goods liable to payment of excise duty and the provisions of the Act and the Rules are applicable only in relat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... suit out of which this decision arose was filed by the plaintiffs to recover a sum of ₹ 65. 187-4-0 from the defendant on the ground that it had been illegally recovered by way of sales-tax on sales which were outside the State of Bombay and, therefore, not taxable under the Bombay Sales Tax Act, 1946, which was the relevant sales-tax law in force under which the assessment was made by the sales-tax authorities. The jurisdiction of the civil Court to entertain the suit was challenged on behalf of the defendant on the ground that the suit called in question the assessment made by the sales-tax authorities under the Act which was precluded by Section 20 of the Act. Section 20 was in the following terms: 20. Save as is provided in Section 23, no assessment made and no order passed under this Act or the Rules made thereunder by the Commissioner or any person appointed under Section 3 to assess him shall be called into question in any civil Court, and save as is provided in Sections 21 and 22, no appeal or application for revision shall lie against any such assessment or order. The Supreme Court upheld the claims of the defendant and held that the jurisdiction of the civil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... us and as observed by the Privy Council in Secretary of State v. Mask and Co. (supra) ...decisions on other statutory provisions are not of material assistance except in so far as general principles of construction are laid down . It was on this very ground that the Supreme Court in Kamala Mills Case distinguished its earlier decision in Basappa's Case and pointed out that the determination of the question as to whether Section 20 bars the present suit must rest on the terms of Section 20 themselves because that is the provision under consideration and decision on other statutory provisions cannot be of any material assistance in the determination of such question. Mr. B.R. Sompura cannot, therefore, successfully advance his case by relying on the decision in Kamala Mills Case. We may point out that the statutory provisions governing the determination of the present appeals are more akin to the statutory provisions in Basappa's Case than to the statutory provisions in Kamala Mills Case--in fact are substantially similar to the statutory provisions in Basappa's Case--and the decision in Basappa's Case rather than the decision in Kamala Mills Case would apply in th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... en place and the respondents continued joint in respect of the said 64 power-looms. He contended that in the partition respondent No. 1 who was then a minor was represented by one Gajanan Joshi who was neither a de jure nor a de facto guardian of respondent No. 1 and the partition was, therefore, void and even after attaining majority, respondent No. 1 could not validate the partition by ratifying it since ratification can only be of an act which could have been performed by the principal at the date of the act and in the present case respondent No. 1 being a minor at the date of the partition, could not validly agree to the partition. Now it is undobtedly true that a minor has no capacity to contract and no person who does not possess authority either under the law of contract or under the personal law applicable to the minor to make a contract on his behalf can bind the minor by a contract and such a contract would be wholly void not only qua the minor but also qua other parties to the contract including those sui juris. Pratap Singh v. Sant Kumar Manu Pande v. Musammat Sukhalalia A.I.R. 1958 Patna 78 and Mohammad Ahmed v. Vakil Ahmed [1952]1SCR1133 . But this principle has no ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... must be rejected. 13. Then it was contended by Mr. B.R. Sompura on behalf of the revenue that the present suits were not maintainable since there was no prayer in the plaints for setting aside the decision contained in the letter of the Superintendent of Central Excise dated 28th July 1954 and the decision of the Assistant Collector of Central Excise in appeal contained in the order dated 13th September 1954. But this contention is without force. In the first place these decisions of the Superintendent of Central Excise and the Assistant Collector of Central Excise are not decisions given in exercise of any power conferred on these respective officers under the Act or the Rules. It is clear from the provisions of the Act and the Rules which we have set out above that the proper officer can assess the amount of excise duty on the excisable goods when an application is made to him by the manufacturer for the purpose of clearing the goods on payment of excise duty and he can also demand the amount of excise duty leviable on the excisable goods where they are cleared without payment of the proper excise duty but there is no provision in the Act or the Rules-at least none could be p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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