TMI Blog1968 (10) TMI 46X X X X Extracts X X X X X X X X Extracts X X X X ..... As noticed earlier the tobacco confiscated had been returned to the appellants after realising from them a sum of ₹ 1 lac. as fine. The Counsel for the parties agreed at the hearing that the value of the Biri Patti tobacco used in the mixture for which no duty had been paid could be fixed at ₹ 35,000/-. In view of this agreement it is not necessary for us to remit the case back to the Collector of Central Excise for assessing the value of the tobacco on which duty had not been paid. In view of our earlier findings the fine to be levied on the appellants in lieu of the confiscation that could have been ordered has to be fixed at ₹ 35,000/-. From this it follows that the Collector has to refund to the appellants a sum of ₹ 65,000/- which he has collected from them in excess of the aforementioned ₹ 35,000/-. The appeal is allowed to that extent. In the circumstances of the case we direct the parties to bear their own costs both in this Court as well as before the High Court. - 13 of 1966 - - - Dated:- 30-10-1968 - S.M. Sikri, R.S. Bachawat and K.S. Hegde, JJ. [Judgment per : Hegde, J.]. - In this appeal by certificate though sev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onducted a fresh experiment. On the basis of that experiment he came to the conclusion that the results obtained by the experiment conducted by the Superintendent, Central Excise, are by and large correct. 5. By his order dated April 13, 1959, the Collector, Central Excise held the appellants guilty of contravening Rule 40 and consequently levied on them a penalty of Rs. 2,000/- as well as the duty payable under law. He also ordered the confiscation of the seized tobacco weighing 1,64,834.50 lbs. But he gave an option to the appellants of redeeming the same on payment of a fine of Rs. 1 lac. The appellants paid the amount of fine under protest and got the goods released. 6. Thereafter they moved the High Court of Bombay under Article 226 of the Constitution for quashing the order of the Collector but that application was withdrawn as the appellants first wanted to exhaust their remedy under the Central Excise Act. The appellants unsuccessfully went up in appeal and thereafter in revision under the Central Excises and Salt Act, 1944 against the order of the Collector. After the 3rd respondent dismissed their revision petition they filed in the High Court of Punjab at Delhi Civ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o two thousand rupees, and the goods shall also be liable to confiscation." In view of this rule the legality of the order made by the Collector in so far as he levied duty as well as penalty cannot be challenged and was not challenged before us. But so far as the confiscation is concerned it was urged that under the rule in question only tobacco on which duty had not been paid could alone have been confiscated. In the instant case even according to the finding of the Collector only on 66,770 lbs. of Biri Patti tobacco the duty had been paid; but on the remaining tobacco seized duty had not been paid, it was not possible to separate the duty paid tobacco from the non-duty paid tobacco; hence it was impermissible for the Collector to confiscate the said tobacco under Rule 40 as that rule permitted the confiscation of only non-duty paid tobacco. In Sonavala's case, 62 Bom. LR 634 = (AIR 1961 Bom. 48) referred to earlier Desai.J., had held that the right to confiscate smuggled goods under Section 167(8) of the Sea Customs Act, 1878 does not carry with it the right to confiscate unsmuggled goods. The words 'such goods' appearing in section 167(8) of the Act cannot be interpreted to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es, for instances tallow, belonging to various owners be mixed by consent or accidentally, the mass appears to belong to the owners of parts in common. And if the confusion be made wilfully be one without the other's leave, the mass belongs to the latter, whose ownership is thus unlawfully invaded." Dealing with the same topic it is observed in Halsbury's Laws of England 3rd. Edn. (Vol. 29) at p. 378 : "Ownership of goods may be acquired by confusion or intermixture, if the goods, when mixed, are indistinguishable. If the goods are mixed by agreement or consent the proprietors have an interest in common in proportion to their respective shares; if mixed by accident or the act of a third party, for which neither owner is responsible, the proprietors become owners in common of the mixed property in proportion to the amounts contributed. Where, however, one man wilfully mixes his goods with those of another without the approbation or knowledge of the other, the whole belongs to the latter." The law on this topic was stated by Bovill, C.J., as early as 1868 in Spence v. The Union Marine Insurance Co. Ltd., (1868) LR 3 CP 427 thus : "In our own law there are not many authoritie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fiscate the entire tobacco mixture. At the same time no person can be permitted to benefit by his wrongful act. No rule of law should be so interpreted as to permit or encourage its circumvention . If by the wrongful act of a party he renders it impossible for the authorities to confiscate under Rule 40 the non-duty paid goods, it is in our opinion open to those authorities to confiscate from out of the goods seized, goods of the value reasonably representing the value of the non-duty paid goods mixed in the goods seized. Applying that rule to the facts of this case, it follows that the Collector Central Excise could have confiscated out of the tobacco seized so much of it as can be held to reasonably represented the value of the tobacco on which the duty had not been paid. 12. As noticed earlier the tobacco confiscated had been returned to the appellants after realising from them a sum of Rs. 1 lac. as fine. The Counsel for the parties agreed at the hearing that the value of the Biri Patti tobacco used in the mixture for which no duty had been paid could be fixed at Rs. 35,000/-. In view of this agreement it is not necessary for us to remit the case back to the Collector of Cen ..... X X X X Extracts X X X X X X X X Extracts X X X X
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