UNION OF INDIA Vs. URVISH SNUFF FACTORY

JUDGEMENT

(1.) In this Second Appeal by the Union on India exercise authorities) certain substantial questions on law have been framed at the time of admission of the Second Appeal. Most of these questions relate to the bar of jurisdiction of the Civil Court in respect of the matters arising under the Central Excises and Salt Act and the Rules thereunder.

(2.) The facts leading to this Second Appeal are brief and simple. The respondent No. 1 herein (the plaintiff) is a partnership firm dealing in tobacco. It was issued a show cause notice (ex. 56) dt. 19/02/1968 wherein it was alleged that M/s. Urvish Snuff Factory (the plaintiff) had removed 3175 Kgs. of Black Chopadia whole leaf tobacco from their warehouse premises otherwise than as provided by the Rules and they had not produced their account books before the Central Excise officers for inspection and the plaintiff was required to show cause as to why duty should not be recovered in respect of the tobacco and why penalty should not be imposed on them. Along with the show cause notice enclosures were copies of the Panchnama dt. 13-4-67 and 18-4-67. Panchnama dt. 16-1-68 and the statements dt. 16-1-68 and 8-2-68 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. 20/05/1968 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 1/06/1968 which is at ex. 63.

(3.) In the reply it was contended that on 13/04/1967 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 is one of the partners in the plaintiff firm which is at Palanpur. In pursuance of the ex parte order of attachment before judgment the bailiff of the Palanpur court came to the warehouse of the plaintiff with a partner Bechardas of Nadiad firm which had filed the suit and the licensed warehouse of the present plaintiff was sealed by the bailiff by putting courts seals and making a panchnama thereof. On 18th April 1967 the seals were opened for making inventory of the goods lying therein and it was found that no tobacco or goods were found inside the warehouse. The panchnama in that regard was also made. These are the two panchnamas which were referred to as endosures to the show cause notice. At the personal hearing before the Assistant Collector Central Excise on 28/09/1968 the statement of partner of the plaintiff firm was recorded. In the explanation ex. 63 and the reply ex. 65 it was contended that during the period from 13th April to 18th April 1967 the licensed warehouse of the plaintiff firm was under the seals of the court and therefore the custody and possession of the warehouse and the goods contained therein was with the court and during this period if tobacco was removed by anyone by that or mischief or other illegitimate way the plaintiff was not liable for such removal and the plaintiff could be asked to pay duty or penalty in that connection.