TMI Blog1984 (9) TMI 69X X X X Extracts X X X X X X X X Extracts X X X X ..... f the tobacco and why penalty should not be imposed on them. Along with the show cause notice enclosures were copies of the Panchnama dt. 13-4-1967 and 18-4-1967. Panchnama dt. 16-1-1968 and the statements dt. 16-1-1968 and 8-2-1968 were already supplied on the spot as mentioned in the notice. By ex. 59 the plaintiff requested for time of four weeks and it was mentioned that if there was other evidence than the one mentioned in the show cause notice, the same was requested to be supplied. By another application ex. 61 another request was made for time for 20 days and a reminder was also made that copies of additional evidence, if any, be sent to them. By reply ex. 62 dt. 20th May 1968 it was clarified that the documents on which the charge was framed had been supplied and, therefore, the plaintiff should file written explanation within 10 days. Accordingly the reply and the explanation was filed on 1st June, 1968 which is at ex. 63. 3.In the reply it was contended that on 13th April,1967 the firm of M/s. Gandabhai Harilal, had filed Special Civil Suit No. 26/67 in the Nadiad court and obtained ex parte order of attachment before judgment against Popatlal Pranjivandas Bhavsar, who ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintiff before the Collector of Central Excise. That appeal has been dismissed by the appellate order dt. 12-8-1971. The Collector did not go into the question whether the goods were removed before the warehouse was sealed by the court bailiff or whether the goods were removed after such sealing by the court bailiff. The Collector proceeded on the basis of Rule 225 of the Central Excise Rules, which provides that if any excisable goods are removed by any person from the place they are warehoused, a licensee of the warehouse shall be held responsible for such removal and shall be liable to be dealt with according to the provisions of the Act and the Rules as if he had removed the goods himself. Relying on that rule, the Collector held that the plaintiffs are themselves responsible for duty and penalty for the tobacco missing from their warehouse, and, therefore, the appeal was rejected. 6.At the hearing of this Second Appeal, it has been admitted by the learned counsel for the respondent-plaintiff that Revision Application filed by them is pending and is now transferred to the Central Excise Appellate Tribunal, Bombay Range. 7.The suit was filed when the orders of the Assistant ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sdiction of the Civil Court to grant relief is barred. The Supreme Court further observed that liability to pay duty of customs is not a common law liability and it arises by virtue of the Customs Act in respect of any grievance arising in consequence of enforcement of that liability, machinery has been provided by the Act and having regard to the complicated nature of the questions which arise in the determination of liability to pay duty of customs the Legislature has invested the power of determining liability and the manner of enforcement thereof upon a specially authorised hierarchy of tribunals; and therefore the jurisdiction of the civil court was held to be barred by clear implication of the statute. The Supreme Court also observed that the bar of jurisdiction of the civil court does not bar the jurisdiction of the High Court under the Constitution. In the case before the Supreme Court, the Supreme Court was satisfied that identical question was already determined by the Madras High Court and if the plaintiff in that suit had moved the High Court, in exercise of jurisdiction under Article 226, the Union of India had practically no defence. Even in such a clear case the Supr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ction. Further reliance was placed on the Supreme Court judgment in the case of State of West Bengal v. The Indian Iron and Steel Co. Ltd., AIR 1970 SC 1298. In that case interpretation placed by the assessing authority was clearly contrary to the interpretation which had been upheld by the Supreme Court itself in another matter, yet the Supreme Court took the view that it was a case of improper interpretation and not a case of overlooking or ignoring the provisions of law and the Supreme Court followed the well settled principles that if the provisions of the Act form a precise, self-contained code, an assessee cannot be permitted to challenge the same in a Civil Court. The Division Bench ultimately laid down the following principle : "The principle which emerges is that if the assessing authority has misinterpreted a provision, it cannot be said that he has done something which is not in conformity with law or not in accordance with law. It is a question of an erroneous interpretation and having regard to the machinery provided by the Act itself, recourse must be had to that authority. This principle is directly attracted in the present case. On the same analogy it is evident t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re is no machinery provided in the Act to meet with the peculiar circumstances of this type where for a temporary relevant period the custody and possession of the warehouse could not be said to be with the licensee. However, even in the facts of the present case all questions can be decided by the authorities under the Act. It is open to the plaintiff to make same submissions and raise some contentions before the authorities under the Act and the authorities are bound to decide the same in accordance with law and their final decision is also further subject to judicial review under the constitutional provisions. Therefore the plaintiff has ample remedies under the Act without recourse to the civil court. The Civil Court cannot give any relief. It might be merely an additional chance to agitate the same questions and sometimes to obtain a contrary decision satisfactory to the plaintiff. However, under the legislative scheme of the Act, that is not permissible. 12.The plaintiff has succeeded in both the courts below. However, he must fail on the question of jurisdiction of the civil court and in that view the suit must be dismissed. He has filed Revision Application which is pendi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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