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TMI Blog1985 (11) TMI 61X X X X Extracts X X X X X X X X Extracts X X X X ..... yam Das Banka (decd) Ramavatar Banka (R. 6) Narayan Das Banka (R. 7) Murari Lal Banka (R. 8) 3. It may also be pointed out that on 25-11-1980 vide order no. 3 a prayer was made on behalf of the petitioners that respondents nos. 6, 7 and 8 who belong, to the branch of Lakshmi Devi (2nd wife of Gangadhar Banka), are not necessary parties and so their names were ordered to be expunged. Thus in the branch of Gangadhar Banka the petitioners now remain only legal representatives on the record. From the order of the District Certificate Officer (Respondent no. 5) as contained in Annexure 1, an English translation of which is Annexure 1-A, it is evident that certain facts are admitted. Respondent no. 5 has clearly pointed out at page 136 of the brief that the admitted fact is that in the family of Gangadhar Banka there was partition in 1955 and his sons became separate in their family and business life and by being separate inter se they began doing their exclusive independent business and that the sons of Gangadhar Banka who resided at Jhajha had no concern with the business of Gangadhar Banka vice versa Gangadhar Banka had no concern wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... central excise duty to respondent no. 1 after giving them fullest opportunity to explain their case. It has also been asserted in the counter-affidavit that Gangadhar Banka and Shriram Banka availed of the appeal and revision facilities provided under the 1944 Act and the appellate authority and the re visional authority in their orders confirmed the aforesaid order-in-original of respondent no. 1 with regard to the liability of the aforesaid party to pay the central excise duty. Gangadhar Banka and Shriram Banka were required to pay by way of central excise duty of Rs. 6,57,690.10 paise on cotton fabrics manufactured by them, plus penalty of Rs. 1000 each as communicated by the Assistant Collector, Central Excise, Bombay in his letter dated April 15, 1967 and August 9, 1974 the later communication being issued after the Government of India's decision in revision dated 29-4-1974. There was no response to the above communication and so the Assistant Collector of Central Excise, Bombay (respondent 2) issued a certificate dated 23-9-1974 under section 11 of the 1944 Act addressed to the District Collector, Monghyr (Bihar) asking him to initiate recovery proceedings in respect of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue Recovery Act, 1890 (hereinafter referred to as the 1890 Act), for substituting legal representative of a certificate debtor. Admittedly the certificate was issued against Gangadhar Banka. For this purpose Mr. Balbhadra Prasad Singh relied on a case reported in 1972 Allahabad Weekly Reporter at page 235, but this decision has not been made available to us and so it is not possible for us to refer to that decision. 10. Mr. Sudhir Kumar Katriar, on behalf of respondent nos. 1 to 3, has submitted that the 1890 Act does not lay down the procedure for recovery of the public demand. He has referred to section 7 of the 1890 Act which lays down that nothing in the foregoing sections shall be construed to affect the provisions of any other enactment for the time being in force for the recovery of land revenue or of sums recoverable as arrears of land revenue. He has submitted on the basis of section 7 of the 1890 Act that the local laws are saved by section 7 and so the local laws will be applicable in this case. For this purpose he has relied on section 3(b) of the 1890 Act which lays down that the Collector of the other district shall, on receiving the certificate, proceed to recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e for recovery of land revenue in Chapter XI of the Mysore Land Revenue Code dealing with the realisation of land revenue and other revenue demands and it cannot be said that the provisions of that Chapter can be reached only through section 193 of the Code. It was also held in this decision by the Mysore High Court that so far as arrears of land revenue or other public demands recoverable as land revenue accruing or arising in other States are concerned, the law by which the, machinery under Chapter XI of Mysore Land Revenue Code is invoked is the Revenue Recovery Act. In this case the certificate for public demand was sent from West Bengal to Mysore and in those circumstances it was held that the local law will be applicable in view of section 7 of the 1890 Act. 14. Mr. Sudhir Kumar Katriar has also relied on the case of Padrauna Raj Krishna Sugar Works Ltd. and Others v. Land Reforms Commissioner, U.P., Lucknow and Others 1962 ALJ (Vol. 60) page 616 where it has been held in paragraph 30 that once a certificate has been sent to the Collector under section 46 (2) of the Act the same is realisable in the manner provided by the Land Revenue Laws prevailing in the State in which t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... notice under section 7. However, the proviso to section 52 lays down that where the certificate is executed against such legal representative he shall be liable only to the extent of the property of the deceased which has come to his hands and has not been duly disposed of; and, for the purpose of ascertaining such liability, the Certificate Officer executing the certificate may, of his own motion or on the application of the certificate holder, compel such legal representative to produce such accounts as the Certificate Officer thinks fit. Section 52 (2) of the 1914 Act provides that for the purpose of this section, property in the hands of a son or other descendent which is liable under the Hindu law for the payment of the debt of a deceased ancestor, in respect of which a certificate has been filed, shall be deemed to be property of the deceased which has come to the hands of the son or other descendant as his legal representative. 17. Thus, it cannot be doubted that the Certificate Officer can proceed against the legal representative in view of section 52 of the 1914 Act. Under such circumstances it has to be held that the Certificate Officer was justified in proceeding agai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the public demands as if it were an arrear of land revenue which had accrued in his own district which clearly shows that the procedure laid down in the district where arrear is to be realised has to be followed. Section 5 of the 1890 Act lays down that where any sum is recoverable as an arrear of land revenue and by public officer other than a Collector or by any local authority, the Collector of the district in which the office of that officer or authority is situate shall, on the request of the officer or authority, proceed to recover the sum as if it were an arrear of land revenue which had accrued in his own district and may send a certificate of the amount to be recovered to the Collector of another district under the foregoing provisions of this Act, as if the sum were payable to himself. This clearly shows that the public officer other than a Collector has also authority to sign the certificate. Section 6 of the 1890 Act relates to the property liable to sale. I have already mentioned about section 7 of the 1890 Act. Section 10 lays down that where a Collector receives a certificate under this Act from a Collector of another State, he shall remit any sum recovered by him ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... umstances, the certificate cannot be held to be void on the ground that it was signed by the Assistant Collector of Central Excise. 22. Mr. Balbhadra Prasad Singh pressed only the aforesaid two grounds before us and both the grounds have been disposed of. 23. In view of my discussions above, I hold that there is no merit in this writ petition. It is, accordingly, dismissed, but there will be no order as to costs. 24. [Order per : Udhay Sinha, J.]. - I agree with the judgment just delivered by my learned Brother. I would, however, like to add a few words of my own. 25. After the series of litigations, it is no more in doubt that Gangadhar Banka and Sriram Banka were liable to pay the central excise duty. The next question is whether the Assistant Collector, Central Excise could issue requisition for realisation of the dues by certificate process. Section 11 of the Central Excises and Salt Act, 1944 clearly empowers him to transmit a requisition. The next question would be whether he could request Collector of Munger to collect the dues as public demand, no doubt, would be in terms of the Schedule to the Bihar Public Demand Recovery Act. The Central Excise Act places no bar ..... X X X X Extracts X X X X X X X X Extracts X X X X
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