SMT. OMWATI Vs. UNION OF INDIA (UOI)

JUDGEMENT

(1.) THIS is a Plaintiff's appeal and arises out of a suit for permanent injunction restraining the Defendant, the Union of India representing the Central Excise Department, from realising Rs. 2,000/ - , imposed as penalty on Jai Narain Paliwal, as arrears of land revenue through the Collector as per order passed by the Asstt. Collector, Central Excise, Fatehgarh on 13 -11 -1962. The order of the Asstt. Collector, Central Excise, dated 13 -11 -1962, is Ex. A -17 on record and is addressed to the Tahsildar, Kaimganj and reads as follows:

(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 25 -3 -1949 and 28 -5 -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 1 -3 -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. 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 Distt. Judge, Farrukhabad. The suit filed by Jai Narain Paliwal was suit no. 80 of 1955 while the appeal preferred by Jai Narain Paliwal was pending in the court of the Distt. Judge, Farrukhabad. Jai Narain Paliwal died and his widow, Smt. Omwati, the present Appellant, was substituted in his place. The appeal filed by Jai Narain Paliwal was dismissed by the learned Distt. Judge on 5 -11 -1962 Thereafter the Asstt. Collector, Centra Excise, Farrukhabad, passed the order dated 13 -11 -1962, which has been quoted in full above and which is Ex. A -17 of record. By that order the Tahsildar Kaimganj, was directed to realise the amounts of the two penalties from the assets left by Jai Narain in the hands of his wife, Smt. Omwati. Thereupon, Smt. Omwati filed the present suit in the court of learned Munsif Hawaii Farrukhabad, for a perpetual injunction restraining the Defendant from realising the amount of Rs. 2,000/ - imposed as penalty on Jai Narain Paliwal. It was alleged by the Plaintiff that the two penalties had been imposed without giving an opportunity to Jai Narain Paliwal to contest the penalties and it was further alleged that the penalties were imposed after the period of six months prescribed by Section 60 of the Central Excise and Salt Act, 1954, hereinafter called the Act. The Plaintiff's case was that the order imposing penalty was without jurisdiction and illegal. The Plaintiff further contended that in the appeal filed by Jai Narain Paliwal before the learned Distt. Judge. Farrukhabad, the learned Judge had decided that the imposition of penalty was illegal and without jurisdiction. The Plaintiffs case was that the penalty could not be recovered from her as it was personal in character and could be recovered only from Jai Narain Paliwal. The relief claimed by the present Appellant in the plaint was as follows:

(3.) 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 the 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 Distt. 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's suit.