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TMI Blog1971 (11) TMI 53X X X X Extracts X X X X X X X X Extracts X X X X ..... he dues from the assets by Shri Jai Narain Paliwal immediately." 2.The plaint case was that Jai Narain Paliwal was dealing in tobacco business in the name of the firm Jai Narain Sant Kumar. It was alleged that on 25th March 1949 and 28th May 1949 Jai Narain Paliwal brought 125 bags and 120 bags of unmanufactured tobacco from Kanpur and Mau Ranipur respectively. According to the plaintiff both the consignments were duty paid, it was alleged that the Collector, Central Excise, Allahabad illegally by his order dated 1st March 1952 imposed two penalties of Rs. 1,000 each on the aforesaid two consignments for contravention of rules 40, 42 and 226 of the Central Excise Rules. 3.Against the order of the Collector, Central Excise, Jai Narain Paliwal preferred an appeal which was dismissed by the Central Board of Revenue. Thereafter, Jai Narain Paliwal filed a suit, challenging the imposition of two penalties for an injunction in the court of the Civil Judge, Farrukhabad. That suit was dismissed and an appeal preferred by Jai Narain Paliwal was also dismissed by the learned District Judge, Farrukhabad. The suit filed by Jai Narain Paliwal was suit No. 80 of 1955 while the appeal preferr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re duty paid. It was further pleaded that since Jai Narain Paliwal was liable to pay the penalty and the plaintiff, being the heir of Jai Narain Paliwal was also liable to pay the penalty and was not entitled to get an injuction. It was denied that a valid notice under section 80 C.P.C. was served. 4.It was held by the trial court that the notice under section 80 of the Code of Civil Procedure served by the plaintiff was invalid. The trial court also held that suit was barred by section 11 of the Code of Civil Procedure. It further held that the order imposing the penalty was not time barred. The trial court was of the opinion that in the appeal preferred by Jai Narain Paliwal it was held by the learned District Judge that the suit was barred by sub section (2) of section 40 of the Act and that finding operated as res judicata. The trial court further held that the amount of the two penalties imposed on Jai Narain Paliwal could be realised from his heirs and on these findings dismissed the plaintiff suit. 5.In appeal by the plaintiff it was held by the lower appellate court that the plaintiff's cause of action was based on the order of the Assistant Collector, dated 13th Novemb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 80 C.P.C. was invalid. 8.As regards the contention raised by the learned counsel for the respondent I do not find any force in them. I have gone through the notice under section 80 of the Code of Civil Procedure and no illegality in that notice has been pointed out to me by the learned counsel. The notice complies with all the requirements of section 80 of the Code of Civil Procedure and it must, therefore, be held that the notice was valid. 9.As regards the bar of section 40 of the Act there is no force in the submission of the learned counsel for the respondent. Section 40 of the Act deals with bar of suit and limitation of suits and other legal proceedings and reads as follows: "(1) No suit shall lie against the Central Government or against any officer of the Government in respect of any order passed in good faith or any act in good faith done or ordered to be done under this Act. (2) No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under this Act after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of." The learned counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision in the Act for recovery of the amount of penalty from anybody else except the 'said person', which in the instant case was Jai Narain Paliwal. Under section 11 of the Act the obligation was of personal nature which died with the offender, i.e. Jai Narain Paliwal. The proceedings contemplated by section 11 of the Act are in the nature of summary proceedings and do not survive the offender on whom the penalty was imposed, as is clear from section 11. It is well established that penal statutes must be construed strictly. (The Craies on Statute Law 6th Edn. page 529). It is not denied that the amount sought to be realised from the plaintiff was in the nature of penalties imposed on plaintiff's husband. It is obvious that the demand was penal in nature. 12.Section 11 of the Act is a procedural section and the procedure prescribed in that section cannot be applied against the person representing the estate of the deceased Jai Narain Paliwal except by way of regular suit, proceedings contemplated by section 11 of the Act are intended to apply only to the defaulter and not to his representative because right to bring summary proceedings does not survive against the personal represe ..... X X X X Extracts X X X X X X X X Extracts X X X X
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