9911796707
TMI Blog1984 (7) TMI 79X X X X Extracts X X X X X X X X Extracts X X X X ..... se. 2. The suit is for the value of 50 bags (2305.20 Kgs.) of I.A.C. Gujarathi Pathi Biri tobacco illegally seized by the 3rd defendant from the plaintiff with interest at 12% from 31-7-1961 to 31-10-1966. The suit was filed on 5-11-1966. The plaintiff was a licencee for dealing in Biri tobacco having warehouse licence No. 29/1960 of Shertallai. The Preventive and Intelligence Inspector of the Central Excise Department, Alleppey checked the stock account of the plaintiff's warehouse between 29th and 31st of July, 1961 and seized 50 bags of Biri tobacco from the warehouse for the alleged contravention of clauses (c) and (d) of Rule 151 of the Central Excise Rules, 1944. The second defendant, the Assistant Collector of Central Excise, Trivandrum Division, passed an order under Section 33 of the Central Excises and Salt Act, 1944 confiscating the 50 bags of tobacco. The plaintiff was, however, allowed to redeem the seized tobacco on payment of a redemption fine of Rs. 1,000/- and a penalty of Rs. 250/-. The plaintiff challenged the order of confiscation in O.P. No. 2566 of 1962 before this Court. A Division Bench of this Court by Ext. PI judgment dated 22-11-1963 quashed the order o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trial court and it is against the concurrent decision of the two courts below that the defendants have come up in second appeal. 4. Apart from question Nos. 1 to 3 referred to above, the learned Counsel for the appellants has submitted that the suit is not maintainable as it amounts to a suit for damages for a tortious act against the Central Government and its employees who were discharging a statutory function under the provisions of the Central Excises and Salt Act, 1944. The learned Counsel points out that Rule 200 of the Central Excise Rules empowers the officers concerned to seize and remove the goods or articles in respect of which duty should have been levied for contravention of the provisions of the Act or the Rules. If the articles or goods warehoused had been removed or replaced, the owner of the goods warehoused is liable to be proceeded against under Rule 151 and the goods seized are also liable to confiscation. Section 33 of the Act empowers the Collector of Central Excise or the Assistant Collector, as the case may be, to take proceedings by way of adjudication for the purpose of confiscation of the goods seized and for the imposition of penalty on the owner of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot even be sold in public auction. In substance and effect the relief that the plaintiff is asking for in the suit is for the return of the goods seized or its equivalent in value when it is found that the goods seized cannot be returned in the same condition it was at the time of its seizure. The point now as raised by the learned standing Counsel for the Central Government is not seen raised in either of the courts below, nor is any such question formulated in the memorandum of second appeal on the basis of which notice of the appeal had been issued to the respondent. I, therefore, overrule the contention that the suit is not maintainable for the reason that it is in the nature of a claim for damages for a tortious act by the officers and servants of the Central Government. 6. Counsel for the appellants submits that unless the plaintiff is able to show that the action taken by the Officers of the Central Excise Department in the present case is not bona fide, he is not entitled to any relief in the suit. Counsel relies on sub-section (1) of Section 40 of the Act as it stood at the relevant time, in support of his contention that all actions bona fide taken under the Act are imm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... me for the reason of its deterioration in quality as to have lost its value and marketability. In Ext. P1 judgment this Court had quashed the adjudication proceedings for the reason of violation of the principles of natural justice and the Department was left free to take such action as was permissible in law. The Department has no explanation why no action was taken after Ext. P1 judgment by this Court in O.P. No. 2566 of 1962. It should, therefore, be presumed that there was no case to proceed against the plaintiff and it was for that reason that the Department decided to return the goods to him. Even if it is to be held that the seizure and retention of the goods by the Department are bona fide, the plaintiff is entitled to have the goods restored to him in the same condition as it was seized or its equivalent in value. It is only the value of goods seized that has been decreed to him as the goods seized could no longer be returned in the same condition as it was seized, therefore, answer question No. 1 against the appellants. I have already found that the question of bona fides of the officers of the Department is not of much consequence in a suit of this nature for the return ..... X X X X Extracts X X X X X X X X Extracts X X X X
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