Andhra HC (Pre-Telangana)
Secretary, Department Of Finance, ... vs Murali Tobacco Co., Guntur on 1 July, 1999
Equivalent citations: 1999(5)ALD148, 1999(5)ALT225
Author: I. Venkatanarayana
Bench: I. Venkatanarayana
JUDGMENT
1. The defendants are the appellants. O.S.No.130 of 1980 on the file of the Subordinate Judge, Guntur was filed by the plaintiff seeking a declaration that the order in Revision of the 1st defendant dated 14-6-1978 confirming the levying of duty of Rs.34,200/- is illegal and for refund of Rs.1,750/- to the plaintiff being the penalties collected from the plaintiff. For the sake of convenience the parties will be referred to in this appeal as per their status in the suit.
2. The plaint averments are set out as hereunder: The plaintiff is a company carrying on business in tobocco under a valid central excise licence obtained by the plaintiff. On 6-5-1972 one Ryot Grower Inturi Venkateswarlu of Suravarapalli near Chilakaluripet, Guntur District, sent 38 packages of tobacco scrap weighing 3,359 Kgs. under cover of his T.P. 3 No.307456 dated 5-5-1972 and a second consignment of 14 packages of tobacco V.F.C Leaf weighing 1,049 Kgs., was sent by one Gokanakonda Ramalingaswamy of Ramakur of Addanki Mandal, Prakasam District under his T.P.3.No.22775 dated 5-5-1972 to the plaintiffs warehouse at Guntur and both the consignments were received at about 7-00 a.m. on 6-6-1972 at the plaintiff's warehouse and they were produced before the concerned excise authority (Sector Officer) and duly check-weighed by him for the first warehousing and duly approved and signed by the Sector Officer in token of duly warehousing the said consignments on 8-5-1972. The plaintiff had given the said tobacco for processing evidenced by Part II Warehouse Register of the plaintiff. The plaintiff noticed some corrections on the T.P.3 Form No.307456 dated 5-6-1972 and as a bona fide trader he reported the same to the Sector Officer who initialled the warehouse registers and checked the aforesaid 38 packages of tobacco. He also found corrections and scorings in the said T.P.3 Form and they were duly attested by the curer Inturi Venkateswarlu by his initials. On the date of check by the Excise Officer he also found the said attestation of the curer on the corrections and scorings and rightly as a prudent officer directed the plaintiff to re-warehouse the consignment in his godown in the regular discharge of his duties. Thus the plaintiff did warehouse the two consignments referred to in Para 3, 38 and 14 packages respectively and made appropriate entries in the warehouse registers duly maintained by the plaintiff in the regular course of his business under valid certificates of the Central Excise Officer. After the aforementioned validation and approval by the Check Officer, the untenable charges were levelled against the plaintiff in an illegal and uncharitable manner. The allegation against the plaintiff is that he received the above two consignments, totalling 52 packages (4408 Kgs.) under the said invalid T.P.3s in lorry APK.798 on 6-5-1972, that by another lorry APG 2115 the plaintiff received 52 packages (4550 Kgs.) net of tobacco into his warehouse without any transport document on the same day which consignment was not warehoused and accounted for by the plaintiff and that on 22-4-1972 the plaintiff received 40 packages weighing 4000 Kgs., net tobacco without any transport document in lorry APK. 798 into his warehouse but he did neither warehouse nor account for the said stock. It is the contention of the plaintiff that these allegations are based on the wrong entries on the trip sheets, way bills etc., made by uneducated drivers in lorry APK 798 on 6-5-1972 at the instance of the curers or the brokers and also mainly due to the fact that the 2nd defendant miserably failed to ascertain or understand the correct crucial facts of the case and what actually happened was not taken note of by the Central Excise Authorities who ought to have seen that the plaintiff received 52 packages of tobacco under the said 2 T.P.3s only in Lorry No.A.P.G.2115 (trip sheet 43 dated 5-5-1972) into his warehouse on 6-5-1972 which stock was duly warehoused by the proper Central Excise Officer and that the plaintiff did not receive any other tobacco in lorry APK 798 on 6-5-1972 as clearly stated by the driver of the said lorry and as could be seen from the trip sheet book of the said lorry. Failure to note the above facts by the the 2nd defendant resulted in the wrong allegation No.2 stated in the charge memo. The plaintiff in his explanation has clearly set out that the 2nd defendant failed to note that the scorings etc., on the T.P.3s were handed over at the plaintiff's warehouse and as all the foils of the T.P3s were given, the plaintiff endorsed the receipt endorsement on all the foils of the T.P.3s. The plaintiff in his detailed explanation denied the allegation that the 40 packages of tobacco were transported without any valid document. The 2nd defendant levied duty of Rs.34,200/- in his Administration Order No.129/75 dated 6-12-1975 and also levied penalties of Rs.1,000/- and Rs.750/- in lieu of confiscation of tobacco and that the plaintiff duly paid the penalties under protest. The plaintiff preferred an Appeal No.1220/76 to the Appellate Collector of Central Excise, Madras who in his Order dated 7-7-1976 simply confirmed the orders of the Deputy Collector, Guntur, without addressing himself to the legality and the facts of the case in a dispassionate manner. Against the order passed by the Appellate Collector the plaintiff preferred a revision to the 1st defendant who also dismissed the same by his order No.589/78 dated 14-6-1978. Hence the plaintiff filed the present suit for a declaration that the levy of duty of Rs.34,200/- by the defendants is illegal, arbitrary and opposed to the orders of the Government and for refund of Rs.1,750/- which was illegally collected from the plaintiff.
3. The 2nd defendant filed a written statement contending that the civil suit is not maintainable against the orders of the 2nd defendant and that the charges framed against the plaintiff are true and stood proved and it was established beyond doubt that there are corrections in the plaintiffs accounts as well as in the T.P.3 forms, that admittedly the said charge is proved to the hilt by records of the plaintiff and it is also proved by documentary evidence that 52 packages totalling to 4408 Kgs. tobacco were transported to the plaintiff's godown by APK 798 on 6-5-1972, that the way bills and the trip sheets of the lorry make it clear that the two consignments are transported to the plaintiffs company but the plaintiff has not accounted for it and thereby illegally dealt with the stock received by him and that the 2nd defendant has conducted the enquiry impartially and examined all possible oral and documentary evidence, that the order of the 2nd defendant is correct, valid and based on ample material and that the statutory authorities have rightly confirmed the order.
4. On the above pleadings the trial Court framed appropriate issues on the maintainability of the suit and on the merits of the claim of the plaintiff and decreed the suit. Hence the present appeal.
5. The learned Standing Counsel appearing on behalf of the Central Government has contended that a regular civil suit is not maintainable against the orders passed by the Statutory Authority under Central Excise Act and hence the suit ought to have been dismissed on that ground alone. It is his case that there is legal mechanism in built in the Act and that the civil Court has no jurisdiction to entertain the suit and to pass a decree. The learned Counsel appearing for the respondent-plaintiff has contended that the statute cannot take away the jurisdiction of the civil Court conferred under Section 9 of the Code of Civil Procedure. Section 9 empowers the civil Court to try all suits of civil nature except where the cognizance of such suits is expressly or impliedly barred. There has been divergent opinion on this issue between different High Courts on the maintainability of the civil suit where the statute expressly bars the jurisdiction. The Counsel for the respondent contended that inspite of a specific provision in the statute to oust the civil Court's jurisdiction, still a civil suit shall lie where the civil rights are agitated and they are in dispute.
6. A Division Bench of our High Court had an occasion to deal with this aspect in B. Poornaiah v. Union of India, . It was held as follows:
"Where a civil Court's jurisdiction is barred by any statute or for that matter where it is not expressly barred and the question arises whether the remedy of a civil suit is open to an aggrieved person to challenge an illegal order made under the statute, the alternative remedy provided by the Act must be taken into consideration. Where elaborate provisions are made in the statute for alternative and adequate remedies, including provision for recording evidence and for determining facts, Civil Court's jurisdiction is barred. Where, however, there is absence of adequate remedy under the statute or where the provisions of the statute are not elaborate and the power to record evidence etc., or of determining a collateral fact by the authority constituted under the statute upon which the jurisdiction under the Act is vested is not provided for. Civil Courts are not barred from entertaining a suit nowithstanding the fact that there is an express exclusion thereunder. Even where the jurisdiction is excluded, Civil Courts have jurisdiction to examine whether the provisions of the Act have not been complied with or the statutory Tribunal has not acted in conformity with the fundamental principles of judicial procedure. In cases where there is no express prohibition, the general presumptions adverted to above apply with greater force and unless the provisions of the statute give a clear ringing indication of the exclusion of the jurisdiction of civil Courts, civil Court's jurisdiction is not barred. At any rate, it is the civil Courts that have to determine these questions including the question whether the authorities under the statute are expressly empowered for the determination of the particular issue or issues involved, whether of ultra vires nature of the impost or of the jurisdiction of the authorities to impose that tax, before their jurisdiction can be said to be excluded".
In C.V. Subbayya v. P.Anjayya, , the Supreme Court observed as follows:
"The jurisdiction of the civil Courts is taken away under Section 189 only in respect of suits or applications of the nature specified in Parts (A) and (B) of the Schedule to the Act. Where the dispute in question is not regarding matters mentioned in Parts (A) and (B) of that Schedule but is a civil dispute, Section 189 is not attracted and the civil Court has the jurisdiction to decide the same under Section 9, CPC."
Thus it is abundantly clear that where a person is agitating his rights on civil dispute, the jurisdiction vested under Section 9 of the Civil Procedure Code cannot be taken away. Even on the merits of the case, the trial Court had an occasion to examine in detail Exs.A.1 to A.6 which clearly establish that the Excise Inspector had initialled the register kept by the plaintiff. The defendants are bound by the checking and inspection made by the officer. The plaintiff as a bona fide trader has contacted the Excise Officer and got his registers checked as there were corrections in T.P.3 Form. I do not see any infirmity or whatsoever in the cogent and clinching evidence of P.Ws. 1 and 2. In all probability the 2nd defendant was mislaid by the corrected entires in T.P.3 Form and he did not apply his mind to the inspection made by the Excise Inspector at the request of the plaintiff. In these circumstances I have no hesitation to hold that the trial Court has rightly decreed the suit.
7. In the result, the appeal fails and is accordingly dismissed. No order as to costs.