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TMI Blog1995 (5) TMI 36X X X X Extracts X X X X X X X X Extracts X X X X ..... under mistake of fact ( emphasis supplied). The law regarding the validity of duty on aqueous solution of resin was clarified by a judgment of the Delhi High Court wherein it was held that the department was not entitled to levy duty on water solution of resin and as such solution does not fall within the definition of resin. The plaintiff claims that in view of this decision of Delhi High Court the realisation of duty from the plaintiff was illegal and as such the plaintiff filed an application before the Assistant Collector of Customs and Central Excise, Guwahati, for refund of the amount. The Assistant Collector by order dated 31-7-1981 rejected the claim for refund. It is stated in the plaint that this rejection by the Asstt. Collector is without authority of law and it is further stated that the realisation of the duty is unconstitutional and illegal and the Government is liable to refund the amount to the Company. A notice under Section 80 of the Code of Civil Procedure was issued and thereafter the suit was filed for realisation of the aforesaid amount. 3.The defendants filed a written statement wherein it was stated inter alia as follows : that the plaintiff cannot see ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther law, the(5) provisions of this Section shall also apply to a claim for refund of any amount collected as duty of excise made on the ground that the goods in respect of which such amount was collected were not excisable or were entitled to exemption from duty and no court shall have any jurisdiction in respect of such claim. 6.Section 35 provides for Appeal to Collector against an order passed by a Central Excise Officer, lower in rank than a Collector of Central Excise. Section 35A provides for procedure in such an appeal. Section 35B provides for appeal to the Appellate Tribunal against an order of Collector of Central Excise and against an order passed by the Collector (Appeals) under Section 35A of the Act. Section 15A (sic Tariff Item?) of the Act provides for duty on Artificial or Synthetic Resins and Plastic materials and Articles thereof. 7.The learned Judge in deciding issues Nos. 3, 4 5 relied on certain decisions and came to the following findings - In deciding Issue No. 3 the learned Judge referred to Section 11B of the Act and found that the plaintiff brought the suit stating that the duty was paid by mistake of law and fact, but as we have pointed out earl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... edy have been provided for refund of the amount. The third case which has been considered is 1990 (2) GLJ 86 (M/s. Assam Industrial Corporation v. Union of India). That was a case under the Central Excise Act and Rules and that matter arose out of a writ, further that case did not consider Section 11B nor Section 35A or 35. In that case the writ court considered whether the writ court was competent to give relief in exercise of power under Article 226 of the Constitution of India. So, this case is no authority to decide as to whether the civil court has jurisdiction for the suit as in the present case. The fourth case is 1988 (33) E.L.T. 249 (S.C.) = AIR 1990 SC 772 (Salonah Tea Company Ltd. v. The Superintendent of Taxes, Nowgong). The point which arose for decision can be found from paragraph 6 of the judgment. The Supreme Court pointed out as follows : "The only question that falls for consideration here is whether in an application under Article 226 of the Constitution the Court should have directed refund." In this connection, the Supreme Court inter alia pointed out as follows : "Normally speaking in a society governed by rule of law taxes should be paid by citizen ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ach the civil court to ventilate their grievances. But the legislature makes law and may provide special remedy for ventilation of those particular grievances and if a special remedy is provided, that special remedy must be availed of and the jurisdiction of the civil court may be deemed to be ousted. These two decisions further decided that if a particular order or decision or procedure adopted to arrive at the decision are absolutely without jurisdiction or mala fide in nature, then also the civil court would have the right to declare that particular decision to be null and void. For the decision of this particular case, the last decision i.e. 1983 (13) E.L.T. 1534 (S.C.) = 1969 (2) SCC 658 (supra) is the most relevant case. This was a case under Sea Customs Act, 1878 and certain customs duty were imposed under Sections 188 and 191. A suit was filed challenging the legality and validity of the imposition of that duty and the trial court decreed the suit holding that the claim was not barred. On appeal, the Special Judge of the Civil Court held that the civil court had no jurisdiction to entertain the suit and reliance was placed on Secretary of State for India v. Mask Co . (LR ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the officer of Customs has not acted in conformity with the fundamental principles of judicial procedure or the authority has acted in violation of the fundamental principles of judicial procedure or he has made an order which is not within his competence or the statute which imposes liability is unconstitutional, or where the order is alleged to be mala fide. A civil suit will lie for obtaining appropriate relief in these cases. 10.But the exclusion of the jurisdiction of the civil court to entertain a suit does not exclude the jurisdiction of the High Court to issue high prerogative writs against illegal exercise of authority by administrative or quasi- judicial tribunals. The finality which may be declared by the statute qua certain liability either by express exclusion of the jurisdiction of the civil court or by clear implication does not affect the jurisdiction of the High Court to issue high prerogative writs." 11.So, relying on that decisions, we hold that Civil court has no jurisdiction to entertain the suit and the jurisdiction is ousted by Section 11B(4) and (5). In that view of the matter, the suit of the plaintiffs is liable to be dismissed which we hereby do. Sri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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