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TMI Blog1982 (11) TMI 57X X X X Extracts X X X X X X X X Extracts X X X X ..... G.C." As the Central Excise authorities found the lorry receipt to be suspicious, the parcel was got opened before mediators. The said parcel contained, in addition to account books, a tin box covered with straw. On opening the tin box, 195 wrist watches (wrist watches) of foreign origin were found. A mediators report, Ex. B-4, was drawn up and an inventory, Ex. B-5, was taken and the watches were seized by D.W. 1. On information that the consignee's name mentioned as "M/s. G.C." refers to one Ghatmal Champalal, the appellant-plaintiff, D.W. 1 and his staff conducted searches at the shop and residence of the plaintiff. But the plaintiff was found missing. After three days, the proprietor of the plaintiff-firm, Ghatmal (P.W. 2) appeared before the Central Excise authorities on summons being issued to him. On that date i.e. 24-10-1964, a statement (Ex. B-1) given by P.W. 2 was recorded by D.W. 2, a resident of Rajahmundry. In Ex. B-1, P.W. 2 stated that he was carrying on business in fancy goods at Rajahmundry in the name of "Ghatmal Champalal", Champalal being his younger brother. His mother is also a shareholder. He stated that he was carrying on business in all kinds of fancy good ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the shop of the plaintiff-firm at Rajahmundry on a salary of Rs. 1000/- per month. One month back, he took the entire amount, which was due to him, after deducting Rs. 536/- against all expenses and that he would go back whenever he found leisure. He further stated as follows :- "Apart from this, I have not got any money from them on credit basis either to purchase any goods or to give at Ahore at their house. I do not know the partners in the shop of Ghatmal." 6. He further stated that the plaintiff-firm was a fancy goods shop dealing in snow, powder, fountain pens, blades, razors, ink etc., and categorically stated that "Articles like watches were not sold so far at the shop". He admitted that he was writing the ledger in Marwadi language. He stated : "When necessary goods were received from Madras, Bombay and Calcutta. Ghatmal used to personally attend to the purchases book. Once I have also purchased goods worth Rs. 3,000/- to Rs. 4,000/- from Madras which do not contain any watches. I have not ordered for purchase of any goods from Bombay. Till to-day, I do not know that watches were seized from the shop of my proprietor. I never went to Bombay for purchase of watches ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acted upon. He stated that the purchases were accounted for in the books of account maintained by the plaintiff-firm in the usual course of business, that the purchase of 95 watches was supported by bills issued by Sha Premji Devichand of Bangalore and that the foreign watches were freely available in the open market and that some other watches were purchased at Bombay, though not evidenced by the bills, and, therefore, there were no grounds made out for believing that the said watches were of foreign origin and were unlawfully imported as such they could not be confiscated. 9. The Collector of Central Excise, after recording the evidence of the parties and holding that the statements given by both P.W. 2 and P.W. 4 were voluntary, came to the conclusion that the plaintiff did not establish his ownership of the watches seized and that the watches shown in the bills did not agree with the watches found in the seized consignment either in the total number of pieces of each make or even in the full description of each make and, accordingly, passed an order under Section 111(d) of the Customs Act directing confiscation of the 195 watches and also the package and the other contents th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er failed to substantiate the case that he was the owner and, therefore, the petitioner could not say that, merely because he was given an opportunity, he must be treated as the owner and that further questions should be gone into in spite of the finding arrived at by the Collector of Central Excise that the petitioner had failed to prove that he was the owner of the goods. In that view, the learned Judge dismissed the writ petition with costs. But the learned Judge observed as follows :- "This order will not preclude the petitioner from establishing in any appropriate proceedings in a Court of law, if he is so advised, that he is the owner of the seized goods." 13. Thereafter, the plaintiff issued a notice, Ex. A-27, dated 6-5-1971 through their lawyer, under Section 80, C.P.C. to the Union of India as well as the Central Board of Excise and Customs and the Collectors of Central Excise, Hyderabad and Guntur, and filed the present suit on 15-6-1972 for the following reliefs : "(a) to pass a decree declaring that the plaintiff is the owner of the plaint schedule watches and account books and for their possession; (b) or in the alternative to pass a decree for Rs. 23,399.67 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not entitled to recover possession of the watches or their value and, consequently, he was not entitled to the declaration prayed for. On issues 3 and 4, it appears, no arguments were advanced. Hence the suit was held to be maintainable and the valuation of the suit was found to be proper. On Issue No. 5 relating to limitation, the learned Subordinate Judge held that the proceedings before the Central Excise authorities wee pending and the revision petition filed by the plaintiff was rejected by the Government on 9-9-1968 and the writ petition filed by the plaintiff was dismissed on 23-3-1971 and, therefore, the aforesaid period should be deducted under Section 14 of the Limitation Act and hence the suit was within time. However, in view of the findings on issue Nos. 1 and 2 against the plaintiff, the learned Subordinate Judge dismissed the suit with costs. 16. In this appeal, Sri M.S.K. Sastry, the learned Counsel for the appellant plaintiff, sought to challenge the findings recorded by the lower Court against the plaintiff on Issue Nos. 1 and 2. He contended that the statements, Exs. B-1 and B-3 recorded from P.Ws. 2 and 4 respectively, were not voluntary and could not be a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ary or that it was taken by any threat or coercion. 19. One other circumstance to be noticed is that the seizure of the watches was made as early as on 21-10-1964 and P.W. 2's statement was recorded on 24-10-1964 and P.W. 4 returned from Ahore to Rajahmundry on 4-11-1964. Therefore, the plaintiff must have been aware by 4-11-1964 that P.W. 4 had purchased the watches at Bangalore and Bombay. But the plaintiff did not immediately send any representation to the Central Excise authorities setting up a claim for the said watches. It is only on 14-10-1965 under Ex. A-17 that the plaintiff for the first time set up a claim to the watches seized on 21-10-1964. But this belated claim belies the claim of the plaintiff. Further, there is no reason why P.W. 4 should have consigned these watches from Bombay when he is alleged to have purchased some of the watches at Bangalore. Moreover, the suspicious way in which the watches were sent by a lorry concealed in a dealwood box also does not show that the purchases were true. Further, the purchases of all the watches were not evidenced by bills. The receipts, Exs. A-10, A-11 and A-12 cover only 95 watches. For the other watches, the plaintiff di ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n this Court on 11-1-1969 and the same was dismissed on 23-3-1971. It is thereafter that the plaintiff issued a suit notice under Section 80, C.P.C. on 6-5-1971 and filed the suit on 15-6-1972. The cause of action for the suit is the seizure of the watches alleged to belong to the plaintiff and the suit is now based on title. This is not a suit where the plaintiff is challenging the orders of the Central Excise authorities. In fact, it is highly doubtful whether such a suit would lie. However, the suit, as framed, is for establishing the plaintiff's title to the watches seized and for recovery of possession of the same. In the writ petition the learned Judge was not inclined to interfere with the finding of fact arrived at by the competent Central Excise authorities in their exercise of their jurisdiction under the statute, that the plaintiff had failed to establish his title to the watches seized. That means, even in writ petition, the finding arrived at by the Central Excise authorities was not shown to be vitiated by any error of law or error of jurisdiction or any error apparent on the face of the record. If so, we do not see how the plaintiff can challenge the said finding onc ..... X X X X Extracts X X X X X X X X Extracts X X X X
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