9911796707
TMI Blog1980 (7) TMI 106X X X X Extracts X X X X X X X X Extracts X X X X ..... quality of sugar produced in a factory during year commencing 1st November, 1960 as is in excess of the yearly average quantity of sugar produced in that factory during the preceding two years commencing on the 1st November, 1958 and ending with 31st October, 1960. 3. Subsequently on 9th of May, 1961 a Trade Notice No. 50/1961 was issued by the Collector, Central Excise, Allahabad clarifying the notice which was issued by the State Government on 4th May, 1961 and further laid down the manner in which the said exemption would be calculated. 4. The plaintiff-respondent's company filed the suit for recovery of Rs. 30,290/- with pendente lite and future interest at the rate of 9% per annum alleging that they were entitled to refund of the said amount in view of the notification dated 4th May, 1961. 5. The Union of India in defence took up the plea that by virtue of notification dated 4th May, 1961 read along with the Trade Notice No. 50/1961 the plaintiff-respondent was not entitled to any rebate of excise duty and as such was not entitled to the relief claimed in the plaint. It was further pleaded that the suit was not maintainable in the the Civil Court, and the only remedy ope ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... settled that the jurisdiction of the Civil Court is all-embracing except to the extent it is excluded by an express provision of law or by clear intendment arising from such law. In Dhulabhai v. State of M.P., AIR 1969 S.C. 78, the Supreme Court of India had occasion to consider in detail as to in which circumstances the suit would be maintainable in the Civil Court and in which not. After examining the various authorities the following propositions were laid down :- "(1) Where the statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded, if there is adequate remedy to do what the Civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provision of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the Civil Court. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 35-A, 36 and 40 of the Act are quoted below : "35. Appeals.- (1) Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or the rules made "hereunder may, within three months from the date of such decision or order, appeal therefrom to the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963 (L/V of 1963), or, in such cases as the Central Government directs, to any Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise and empowered in that behalf by the Central Government. Such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against : Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order. (2) Every order passed in appeal under this section shall, subject to the power of revision conferred by Section 36, be final. 35-A. Revision by Board. - The Central Board of Excise and Customs constituted unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... against the Central Govt. or any officer of the Central Government or a State Government for anything which is done, or intended to be done, in good faith, in pursuance of this Act or any rule made thereunder. (2) No proceeding, other than a suit, shall be commenced against the Central Govt. or any officer of the Central Government or a State Government for anything done or purported to have been done in pursuance of this Act or any rule made thereunder, without giving the Central Government or such officer a month's previous notice in writing or the intended proceeding and of the cause thereof or after the expiration of three months from the accrual of such cause". 13. Section. 35 of the Act empowers any person aggrieved by any decision or order passed by a Central Excise Officer under the Act and Rules framed thereunder to file an appeal before the Central Board of Excise and Customs or in such cases as the Central Government directs to any Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise. The appellate authority has been given the power to make such a further inquiry and pass such orders as he thinks fit confirming, altering or annulli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , and Rules made thereunder. This Section 40 only restricts the filing of suits against the officers of the Central Government or State Government if they act in good faith. By a reading of this section it cannot be inferred that the suits other than those mentioned in Section. 40 would lie in the Civil Court. The view taken in the Union of India v. Ghasi Ram - AIR 1967 All. 546 by a learned single Judge of this Court, in our opinion, is not a correct view and cannot be sustained. 16. In the instant case, the plaintiff-respondent is seeking a refund in view of the notification issued by the Central Government on 4-5-1961. In case such a refund is refused by the Central Excise Officer, the plaintiff-respondent could have filed an appeal under Section 35 of the Act. The powers of the appellate authority being very wide, the effective relief could be given to the plaintiff-respondent by the appellate authority. The Trade Notice dated 9th May, 1961 only explains the import and lays down the procedure for the enforcement of the notification dated 4th May, 1961. It is always open to the appellate authority constituted under the Act to interpret the notification as well as the Trade Not ..... X X X X Extracts X X X X X X X X Extracts X X X X
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