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TMI Blog1966 (5) TMI 10X X X X Extracts X X X X X X X X Extracts X X X X ..... uently on 21-3-1956 notices were issued to the plaintiff under Rule 10A of the rules framed under the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act) calling upon the plaintiffs to pay an additional duty @ -/8/- per lb. on the aforesaid goods. The plaintiffs made representations to the department and failing to get the appropriate relief from the departmental authorities instituted the two suits in appeal. The plaintiffs alleged, inter alia, that the proper duty of -/6/- per lb. had been paid and no additional duty could be levied on them. It was further alleged that the notices were in fact under Rule 10 of the Central Excise Rules, 1944 (hereinafter called the Rules) framed under Section 37 of the Act and since they were sent after three months of date when the duty was initially paid on the goods they were barred by time and the plaintiff could not be asked to pay any additional duty on the said goods. 2.The defendant contended, inter alia, that there was short levy and the proper duty payable on the said goods was at the rate of -/14/- per lb. and since the duty of -/6/- per lb. had been paid by the plaintiffs they were liable to pay the additional amo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onths from the accrual of the cause of action or from the date of the act or order complained of. 5.He argued that Sections 35 and 36 of the Act provide for remedies for a person aggrieved by any decision or order passed by a Central Excise Officer. If a person has any such grievance it is open to him to proceed in the manner prescribed by the provisions of the aforesaid sections and he can challenge the order by way of appeal or revision. He emphasized that the provisions in Section 35 sub-section (2) of the Act gives finality to an order passed in appeal which is subject only to the power of revision conferred by Section 36. If a person who was aggrieved by any order by a Central Government Officer and had persued the remedy as provided for under Sections 35 and 36 then he has to remain content with the orders passed under Sections 35 and 36 and it is not open to him to seek any further redress in a court of law. He contended that an order passed by a Central Excise Officer could only be challenged by way of appeal or revision under Sections 35 and 36 of the Act and it could not be questioned in a civil court. If the contention of the learned counsel is correct, the obvious res ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ere guilty of any misrepresentation which had resulted in short-levy of excise duty from them. The court below expressed the view that the short-levy was due to inadvertence on the part of the departmental authorities and the officer could only set under Rule 10 within three months from the date on which the duty had been paid, viz., 29-4-1953. The clear case of the plaintiffs was that even if they were required to pay any additional duty, the Central Excise Officer could only set under the Rule 10 and his action in issuing notices under Section (sic) 10A was illegal. Rule 10 mentions the circumstances under which the duty charged had been short-levied and empowers the officer to demand the balance of the dues from a person. He has however to act within three months from the date on which the duty charged was paid. Rule 10A is a residuary provision which would be attracted only in those cases where the Rules do not make any specific provisions for the collection of any duty or deficiency in duty. The provision of Rule 10A could only apply when the matter is beyond the ambit of Rule 10. Where the provisions of Rule 10 are clearly attracted then it is obvious that Section 10A would n ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntains an express provision to that effect, or leads to a necessary and inevitable implication of that nature. The mere fact that a special statute provides for certain remedies may not by itself necessarily exclude the jurisdiction of the civil courts to deal with a case brought before it in respect of some of the matters covered by the said statute." 7.As mentioned above, Section 35 of the Act pointedly refers to the decision or order by a Central Excise Officer "under this Act or the Rules made thereunder". If the officer had acted not under the Act or the Rules made thereuunder but in an arbitrary manner, then clearly Section 35 would not be applicable. The provisions of Section 40 give protection to the Central Government or officer of the Govt. "in respect of any order passed in good faith or any act in good faith done or ordered to be done under this Act." If an action is brought in respect of any such order or act done in good faith, then no liability could be fastened on the Central Government or against any officer. But if the suit is not in respect of any order or act, but challenges the validity of any such order or Act, then it would not be said that the suit could b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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