Kalekhan Mohammad Hanif v. Union of India — 1970 DIGILAW 125 (MP)

JUDGMENT Tare, J. This is an appeal by the unsuccessful Plaintiff against the decree dated 13-9-1967, passed by the Second Additional District Judge, Sagar, in Civil Suit No. 4-B of 1965, rejecting the Plaintiff-Appellant's claim for refund of excise duty amounting to Rs.54,589.23 paise, paid on tobacco. The Appellant, a registered partnership firm, carrying on the business of manufacturing and selling of Bidis had stocked duty paid and non duty paid tobacco in different godowns. The non duty paid tobacco was 242621.72 kgs., while the duty paid tobacco was 632 maunds, 18 seers and 8 chhattaks. There was a communal riot at Sagar on 9-2-1961. The mob looted and also destroyed the tobacco kept in the Appellant's godowns. The Appellant-firm got compensation from the Insurance Company regarding the price of duty paid and non duty paid tobacco. However, the Insurance Company refused to pay any compensation in respect of the duty that the Appellant had already paid on the duty paid tobacco, which would come to Rs. 54589.23 paise. As regards the excise duty on the non duty paid tobacco, the Government as ex gratia gesture remitted the sum of Rs. 1,11,719.79 paise. The Appellant-firm, therefore, after serving a notice under Section 80, Code of Civil Procedure filed the present suit against the Union of India contending that the Respondent had no right to retain the excise duty, which according to the Appellant, would be payable on manufacture or sale of Bidis. It has been the Appellant's contention that the excise duty paid was in the nature of an advance which could be appropriated by the Respondent only if the goods had been manufactured or sold. As the goods were not available for manufacture on account of the illegal action of the riotous mob, the Respondent under the provisions of the Central Excises and Salt Act, 1944, could not retain the amount of duty paid and the Respondent is bound to refund that amount. In this case the facts are not in dispute. The learned Counsel for the Respondent, however, urged that the loss has not been proved. In our opinion, that contention is without substance. The Superintendent of Central Excise had himself issued a certificate, Ex. P/11, dated 13-5-1961, showing the loss of tobacco. In that certificate it was also stated that the tobacco belonging to this firm recovered by the local police was 22 bags, weighing 17 mds. In our opinion, that contention is without substance. The Superintendent of Central Excise had himself issued a certificate, Ex. P/11, dated 13-5-1961, showing the loss of tobacco. In that certificate it was also stated that the tobacco belonging to this firm recovered by the local police was 22 bags, weighing 17 mds. and 27.4 kgs. and that it had been given in the custody of the firm pending final action by the police. This quantity given in the Supratnama was from the duty paid stock of the firm. Therefore, we propose to proceed on the indisputable facts that the Appellant had kept the duty paid and non duty paid tobacco as alleged by it in the different godowns and that the entire tobacco was either looted or destroyed by the riotous mob except to the extent that the police was able to recover some quantity from some members of the riotous mob. It is also further clear that excise duty had been recovered by the Respondent in accordance with the Act and the Rules. The only question would be whether there was any liability on the Respondent to refund the excise duty, as the Appellant firm was not able to use the tobacco for the purposes of manufacture. The emphasis of the learned Counsel for the Appellant has been on certain observations made by their Lordships of the Federal Court and their Lordships of the Supreme Court in some cases regarding the nature of the excise duty which can be imposed on manufacture or sale of excisable articles. We shall deal with this aspect a little later. But three questions mainly arise for consideration in the present appeal as follows:- (i) Whether the Respondent is not entitled to appropriate the excise duty already paid and whether the duty being in the nature of an advance, is liable to be refunded? (ii) Whether the civil Court has jurisdiction to try a claim of the present nature having in view the provisions of the Central Excises and Salt Act, 1944? (iii) Whether the suit is within limitation and by what Article of the Second Schedule to the Indian Limitation Act, 1908, is the same governed? (ii) Whether the civil Court has jurisdiction to try a claim of the present nature having in view the provisions of the Central Excises and Salt Act, 1944? (iii) Whether the suit is within limitation and by what Article of the Second Schedule to the Indian Limitation Act, 1908, is the same governed? Coming to the first question about the right of the Respondent to retain the excise duty already paid and the liability for non-refund, it is necessary to examine the provisions of the Central Excises and Salt Act, 1944, and the Central Excises and Salt Rules, 1944. Section 2, Sub-clause (c), which is definition Clause, defines 'curing' to include wilting, drying, fermenting and any process for rendering an unmanufactured product fit for marketing or manufacture. Clause (d) of Section 2 defines 'excisable goods' to mean goods specified in the First Schedule as being subject to a duty of excise and includes salt. Clause (f) of Section 2 defines 'manufacture' as follows:- Manufacture includes any process incidental or ancillary to the completion of manufactured product; and (i) in relation to tobacco, includes the preparation of cigarettes, cigars, cheroots, bins, cigarette or pipe or hookah tobacco, chewing tobacco or snuff; ..............................and the word 'manufacturer' shall be construed accordingly and shall include not only a person who employs hired labour in the production or manufacture of excisable goods, but also any person who engages in their production or manufacture on his own account. Section 3 of the Act is the charging section. It is as follows: Section 3.-Duties specified in the first Schedule to be levied,-(1) There shall be levied and collected in such manner as may be prescribed duties of excise on all excisable goods other than salt which are produced or manufactured in India as, and at the rates, set forth in the First Schedule. (1-A)-the Provisions of Sub-section (1), shall apply in respect of all excisable goods other than salt which are produced or manufactured in India by, or on behalf of, Government, as they apply in respect of goods which are not produced or manufactured by Government. (1-A)-the Provisions of Sub-section (1), shall apply in respect of all excisable goods other than salt which are produced or manufactured in India by, or on behalf of, Government, as they apply in respect of goods which are not produced or manufactured by Government. (2) The Central Government may, by notification in the Official Gazette, fix, for the purpose of levying the said duties; tariff values of any articles enumerated, either specially or under general headings, in the First Schedule as chargeable with duty ad valorem and may alter any tariff values for the time being in force; (3) Different tariff values may be fixed for different classes or descriptions of the same article. Section 4 of the Act relates to determination of value for the purposes of duty; while Section 6 prescribes certain operations to be subject to a licence. Section 9 relates to offences and penalties and Section 11 relates to recovery of sums due to Government. Section 11 reads as follows:- Section 11. - Recovery of sums due to Government.-In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder, the officer empowered by the Central Board of Revenue to levy such duty or required the payment of such sums may deduct the amount so payable from any money owing to the person from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may recover the amount by attachment and sale of excisable goods belonging to such person; and if the amount payable is not so recovered he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrear of land revenue. Section 16 casts on the owners or occupiers of land to report manufacture of contraband excisable goods. Section 33 pertains to adjudication of confiscations and penalties. Section 35 provides for appeals. Section 16 casts on the owners or occupiers of land to report manufacture of contraband excisable goods. Section 33 pertains to adjudication of confiscations and penalties. Section 35 provides for appeals. It is as follows:- Section 35.-Appeals.-Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under this Act or the rules made thereunder may, within three months from the date of such decision or order, appeal therefrom to the Central Board of Revenue, or, in such cases as the Central Government directs, to any Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise and empowered in that behalf by Central Government. Such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering or annulling the decision or order appealed against; Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order. (2) Every order passed in appeal under this section shall, subject to the power of revision conferred by Section 36, be final. Further on, Section 36 provides for a revision to the Central Government on the application of any person aggrieved by any decision or order passed under the Act or the Rules made thereunder by any Central Excise Officer or by the Central Board of Revenue, and from which no appeal lies. Section 40 of the Act provides for a bar of suits and limitation of suits and other legal proceedings. It is as follows:- Section 40. Bar of suits and limitation of suits and other legal proceedings.-(1) No suit shall lie against the Central Government or against any officer of the Government in respect of any order passed in good faith or any act in good faith done or ordered to be done under this Act. (2) No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under this Act after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of. (2) No suit, prosecution or other legal proceeding shall be instituted for anything done or ordered to be done under this Act after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of. Thus, if the action of the Central Excise authorities be within the statutory powers, the only remedy available to the person would be the one provided by the Act and in that event, Section 40 would bar a suit. A suit can only be filed if the matter be squarely governed by the provisions of section 40 of the Act. Otherwise, the civil Court will have no jurisdiction to entertain a suit. The Act does not make any provision for refund of excise duty properly levied. It is only Section 30, which empowers the Central Government to exempt the carriage of excisable goods within any local limits or in any class of vessels from the operation of the Chapter. However, Chapter III of the Central Excises Rules, 1944, provides for levy and refund of and exemption from excise duty. Rule 9 of the Rules prescribes time and manner of payment of duty; while Rule 9-A provides for the date for determination of duty and tariff valuation. Rule 9-B provides for provisional assessment to duty. Rule 11 of the Rules, which is material, is as follows:- Rule 11.-No refund of duties or charges erroneously paid, unless claimed within three months.-No duties or charges which have been paid or have adjusted in an account-current maintained with the Collector under Rule 9, and of which repayment wholly or in part is claimed in consequence of the same having been paid through inadvertence, error or misconstruction, shall be refunded unless the claimant makes an application for such refund under his signature and lodges it with the proper officer within three months from the date of such payment of adjustment, as the case may be. It is not the Appellant's case that the duty had been paid by mistake. The same had been duly paid by the Appellant and it was duly recovered by the Respondent in accordance with the provisions of the Act and the Rules. It is not the Appellant's case that the duty had been paid by mistake. The same had been duly paid by the Appellant and it was duly recovered by the Respondent in accordance with the provisions of the Act and the Rules. But the only contention of the learned Counsel for the Appellant is that the charging section, namely, Section 3 provides for levy of duty on excisable goods, which are produced or manufactured in India. Therefore, his suggestion is that excise duty would be payable on goods produced or manufactured and from that point of view, the further suggestion is that the manner of collection of excise duty on goods kept in godowns would be in the nature of an advance. We may observe that this line of argument would be contrary to the very definition of 'manufacture' as per Section 2(f) of the Act, which includes any process incidental or ancillary to the completion of a manufactured product. In our opinion, 'curing' as denned by Section 2(c) to include wilting, drying, fermenting and any process for rendering an unmanufactured product fit for marketing or manufacture, would be a process incidental or ancillary to the completion of a manufactured product. The duty on the tobacco had been recovered after the curing process had been gone through. In that sense, the duty paid goods were separately kept from the non duty paid goods. The main reliance of the learned Counsel for the Appellant is on certain observations made by their Lordships of the Federal Court and by their Lordships of the Supreme Court in some cases, which we propose to dismiss presently. In the matter of the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 AIR 1939 FC1. His Lordship Gwyer, C.J. with reference to the powers of the Central Legislature and the State Legislature with reference to Entry No. 45 in the Federal Legislative List made the following observations: I am impressed also by another argument. In the matter of the Central Provinces and Berar Sales of Motor Spirit and Lubricants Taxation Act, 1938 AIR 1939 FC1. His Lordship Gwyer, C.J. with reference to the powers of the Central Legislature and the State Legislature with reference to Entry No. 45 in the Federal Legislative List made the following observations: I am impressed also by another argument. The claim of the Government of India must be that any provincial Act imposing a tax on the sale of any goods (other than a turnover tax) is an invasion of Entry (45) in the Federal Legislative List, whether the goods are at the time the subject of a central excise or not, and no matter how improbable it is that any excise duty will ever be imposed upon them. Duties of excise in the nature of things will always be confined to a comparatively small number of articles; but it is a necessary corollary of the argument of the Government of India that the power to impose excise duties, though only exercised with respect to this small group, is an absolute bar to the exercise by the Provinces of any jurisdiction by way of a tax on sales over every other material, commodity and article manufactured or produced in India and to be found in the Province. Nay, more; for though excise duties can only be imposed in respect of goods manufactured or produced in India, it is part of the Government of India's case that to impose a tax on the sale of goods manufactured or produced elsewhere will infringe the provisions of lection 297 (1)(b), Constitution Act, against discrimination. It is not necessary for me here to say whether I agree with the latter argument or not; it is sufficient to point out how on one ground or the other this interpretation of the federal entry would exclude the Province from an immense field of taxation in which the Government of India does not now and probably would never in the future seek to compete. I should find it exceedingly difficult to adopt an interpretation of the two entries which would have consequences such as these. This opinion of his Lordship was concurred in by the other Judges, though they gave separate reasons of their own. I should find it exceedingly difficult to adopt an interpretation of the two entries which would have consequences such as these. This opinion of his Lordship was concurred in by the other Judges, though they gave separate reasons of their own. With reference to the nature of the excise duty their Lordships of the Supreme Court in M/s. Chhotabhai Jethabhai Patel and Co. v. Union of India AIR 1962 SC 1006 , their Lordships made the following observations:- In our view, a duty of excise is a tax-levy on home produced goods of a specified class or description, the duty being calculated according to the quantity or value of the goods and which is levied because of the mere fact of the goods having been produced or manufactured and unrelated to and not dependent on any commercial transaction in them. The duty in the present case satisfies this test and therefore it is unnecessary to seek other grounds for sustaining the validity of the tax. In Union of India v. Delhi Cloth and General Mills AIR 1963 SC 791 , their Lordships with reference to the nature of the excise duty observed as follows:- Excise duty is on the manufacture of goods and not on the sale. Mr. Pathak is therefore right in his contention that the fact that the substance produced by them at an intermediate stage is not put in the market would not make any difference. If from the raw material has been brought into existence a new substance by the application of processes one or more of which are with the aid of power and that substance is the same as 'refined oil' as known to the market an excise duty may be leviable under Item 23 (the present item 12). But has it been shown that the substance produced by the Petitioners is at any intermediate stage before Vanaspati comes into existence, 'refined oil' as known to the market? We are not satisfied that this has been shown. As already stated, a summary of the numerous processes necessary to turn the raw groundnut or til oil into vegetable product has been given in the affidavit sworn to by the experts on both sides. It does not appear to be disputed that the process of deodorisation is applied in the Petitioners' factory after hydrogenation is complete. As already stated, a summary of the numerous processes necessary to turn the raw groundnut or til oil into vegetable product has been given in the affidavit sworn to by the experts on both sides. It does not appear to be disputed that the process of deodorisation is applied in the Petitioners' factory after hydrogenation is complete. The Appellant's case is that before hydrogenation has started the substance in the hands of these Petitioners is 'refined oil' as known to the market. That raises the important question whether any oil is known as 'refined oil' in the market before deodorisation has taken place. As already indicated, the Appellant's case is that deodorisation is not necessary for 'refined oil' to come into existence; the Respondents' case on the other hand is that without deodorisation the substance is not 'refined oil'. In South Bihar Sugar Mills Ltd. v. Union of India AIR 1968 SC 922 , their Lordships of the Supreme Court made the following observations:- The Act charges duty on manufacture of goods. The word 'manufacture' implies a change but every change in the raw material is not manufacture. There must be such a transformation that a new and different article must emerge having a distinctive name, character or use. The duty is levied on goods. As the Act does not define goods, the Legislature must be taken to have used that word in its ordinary, dictionary meaning. The dictionary meaning is that to become goods it must be something which can ordinarily come to the market to be brought and sold and is known to the market. That it would be such an article which would attract the Act was brought out in Union of India v. Delhi Cloth and General Mills Ltd. (supra). It is true that in essence the excise duty is a tax on production or manufacture of excisable goods. The manner of levy and collection of the tax is laid down by the Act and the Rules. For that purpose, we have also to take into consideration the definition of 'manufacture' as per Section 2(f) of the Central Excises and Salt Act, 1944. However, it does not imply that tax can be levied on manufactured goods only. The manner of levy and collection of the tax is laid down by the Act and the Rules. For that purpose, we have also to take into consideration the definition of 'manufacture' as per Section 2(f) of the Central Excises and Salt Act, 1944. However, it does not imply that tax can be levied on manufactured goods only. It is levied on production or manufacture of goods and the tax can validly be levied and collected at an intermediate stage as suggested by the Act and the Rules. It would not, therefore, become an advance if the tax has been levied and collected in accordance with the provisions of the Act. It would be another matter that by vis major or by the act of some agency, the goods may not be available to the manufacturer for further processes. In that event, the tax cannot be said to have been unauthorisedly levied or collected. We reject that argument altogether. The learned Counsel for the Appellant did not dispute the fact that the tax had been validly levied and collected in accordance with the Act and the Rules. But his contention is that tax being leviable on produced or manufactured goods, the same would be in the nature of an advance. That is, in our opinion, a wholly untenable contention. In this view of the matter, we have to Judge the question of jurisdiction of the civil Court. In Smt. Ujjam Bai v. State of Uttar Pradesh AIR 1962 SC 1621 the Petitioner had filed a petition under Article 32 of the Constitution of India. Two questions had been referred to a larger Bench as follows:- (i) Is an order of assessment made by an authority under a taxing statute which is intra vires, open to challenge as repugnant to Article 19(1)(g), on the sole ground that it is based on a misconstruction of a provision of the Act or of a notification issued thereunder? (ii) Can the validity of such an order be questioned in a petition under Article 32 of the Constitution? The Petitioner had also filed a petition for restoration of the appeal. (ii) Can the validity of such an order be questioned in a petition under Article 32 of the Constitution? The Petitioner had also filed a petition for restoration of the appeal. The majority of their Lordships laid down that 'an order of assessment made by an authority under a taxing statute, which is intra vires and in the undoubted exercise of jurisdiction cannot be challenged on the sole ground that it is passed on a misconstruction of a provision of the Act or of a notification issued thereunder. Nor can the validity of such an order be questioned in a petition under Article 32 of the Constitution. The proper remedy for correcting an error in such an order is to proceed by way of appeal, or if the error is an error apparent on the face of the reeord, then by an application under Article 226 of the Constitution. According to their Lordships, Article 32 of the Constitution would not give the Supreme Court an appellate jurisdiction such as is given by Articles 132 and 136 of the Constitution of India'. With reference to the jurisdiction of a civil Court to try cases of a Civil Nature, their Lordships held that 'whenever a judicial or quasi-judicial tribunal is empowered or required to enquire into questions of law or fact for the purpose of giving a decision on it, its findings thereon cannot be impeached collaterally or on an application for certiorari, but they would be binding until reversed by an appellate Court. Therefore, where a quasi-judicial authority has jurisdiction to decide a matter, it would not lose its jurisdiction by coming to a wrong conclusion, whether it is wrong in law or in fact. We may further observe that civil Courts would be able to interfere with the decisions of special Tribunals only if the special Tribunal has acted without jurisdiction or in excess of jurisdiction. We are unable to envisage any other situation in which a civil Court would be able to interfere with the decision of a special Tribunal. Of course, in a case of prerogative powers under Article 226 of the Constitution of India, the powers would be wider, namely, of issuing a Writ of Certiorari or even a Writ of Mandamus or such other Writs or directions as may be found necessary. Of course, in a case of prerogative powers under Article 226 of the Constitution of India, the powers would be wider, namely, of issuing a Writ of Certiorari or even a Writ of Mandamus or such other Writs or directions as may be found necessary. But civil Courts at least cannot sit in judgment over the decisions of a special Tribunal except as indicated above. In that event, the civil Courts would declare the decision of the special Tribunal to be without jurisdiction or in excess of jurisdiction and for that reason, of no legal effect. In M/s. Kamala Mills Ltd. v. State of Bombay AIR 1965 SC 1942 , their Lordships of the Supreme Court reiterated that view. In this connection it is pertinent to note that their Lordships of the Privy Council had to consider two types of cases. The observations of their Lordships of the Privy Council have been approved of by their Lordships of the Supreme Court not only in the said case, but also in other cases. One was the case of The Secretary of State v. Mask and Co. AIR 1940 PC 105, wherein their Lordships laid down that ordinarily the civil Courts would have jurisdiction to decide all disputes of a civil nature and the exclusion of jurisdiction of a civil Court is not to be readily inferred, but it can be inferred either by explicit provision made in the Act or it can be inferred by necesssary implication or intendment, such as where a special enactment may provide its own machinery. Another case was the case of Raleigh Investment Co. Ltd. v. Governor General in Council AIR 1947 PC 78, wherein their Lordships of the Privi Council laid down that even if a question of ultra vires nature of a provision of the Income-tax Act would have to be raised, the same ought to be raised before the special Tribunal and not in a civil Court. Of course, the said view of their Lordships of the Privy Council now stands modified slightly. Of course, the said view of their Lordships of the Privy Council now stands modified slightly. But, there can be no doubt that if a special Tribunal has acted within jurisdiction and according to the statutory powers conferred on it, the same, in any event, cannot be agitated in a civil Court, as the power of the civil Court would be limited In Ram Swarup v. Shikar Chand AIR 1966 SC 893 , their Lordships of the Supreme Court brought out the distinction very clearly in the following observations:- "It cannot be seriously disputed that the jurisdiction of the civil Courts to deal with civil causes can be excluded by the Legislature by special Acts which deal with special subject-matters; but the exclusion of the jurisdiction of the civil Courts must be made by a statutory provision which expressly provides for it, or which necessarily and inevitably leads to that inference, In other words, the jurisdiction of the civil Courts can be excluded by a statutory provision which is either express in that behalf or which irresistibly leads to that inference. One of the points which is often treated as relevant in dealing with the question about the exclusion of civil Courts' jurisdiction, is whether the special statute which, it is urged, excludes such jurisdiction, has used clear and unambiguous words indicating that intention. Another test which is applied is: does the said statute provide for an adequate and satisfactory alternative remedy to a party that may be aggrieved by the relevant order under its material provisions? Applying these two tests, it does appear that the words used in section 3 (4) and Section 16 of the U.P. (Temporary) Control of Rent and Eviction Act, 1947, are clear. In this connection we can do no better than to advert to the latest pronouncement of their Lordships of the Supreme Court in Dhulabhai v. State of M.P. 1969 MPLJ 1 : AIR 1969 SC 78 , wherein their Lordships took note of the earlier case law and laid down the following 7 principles for determining the question regarding jurisdiction of civil Courts to interfere with the decisions of special Tribunals:- (1) Where the statute gives a finality to the orders of the special tribunals the civil Court's jurisdiction must be held to be excluded if their is adequate remedy to do what the civil Court would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the Court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil Court. Where there is no express exclusion, the examination of the remedies and the scheme of the particular Act to find out the intendment becomes necessary and the result of the inquiry may be decisive. In the latter case it is necessary to see if the statute creates a special right or a liability and provides for the determination of the right or liability and further lays down that all questions about the said right and liability shall be determined by the tribunals so constituted, and whether remedies normally associated with actions in civil Courts are prescribed by the said statute or not. (3) Challenge to the provisions of the particular Act as ultra vires cannot be brought before Tribunals constituted under that Act. Even the High Court cannot go into that question on revision or reference from the decision of the Tribunals. (4) When a provision is already declared unconstitutional or the constitutionality of any provision is to be challenged, a suit is open. A writ of Certiorari may include a direction for refund if the claim is clearly within the time prescribed by the Limitation Act but it is not a compulsory remedy to replace a suit. (5) Where the particular Act contains no machinery for refund of tax collected in excess of constitutional limits or illegally collected, a suit lies. (6) Questions of the correctness of the assessment apart from its constitutionality are for the decision of the authorities and a civil suit does not lie if the orders of the authorities are declared to be final or there is an express prohibition in the particular Act. In eirther case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply. In eirther case the scheme of the particular Act must be examined because it is a relevant enquiry. (7) An exclusion of jurisdiction of the civil Court is not readily to be inferred unless the conditions above set down apply. Their Lordships examined the case law with reference to Section 17 of the Madhya Bharat Sales Tax Act, 1950, on the basis of the principles stated above and held that a civil suit for illegal collection of tax was not barred. We may observe that the present one is not a case of that type. In the present case the excise duty had been validly and legally recovered in accordance with the provisions of the Act and the Rules. That is not disputed by the learned Counsel for the Appellant. His only contention is that the tax was not payable unless the excisable goods were available for production or manufacture. As the goods disappeared, or were destroyed, the tax said to have been collected as an advance was liable to be refunded. We do not think that this line of argument can be accepted. Once the tax had been validly levied and collected, it could not be treated as an advance, nor was it liable to be refunded. It cannot be said to be a tax illegally recovered contrary to the provisions of the Act and the Rules. Therefore, precisely the present case would be governed by the Privy Council case of Raleigh Investment Co. Ltd. v. Governor General in Council (supra). In this view of the matter, we have no doubt that the present suit was not tenable as the jurisdiction of the civil Court would necessarily be excluded. The civil Court would have jurisdiction only if the special Tribunal acted without jurisdiction or in excess of jurisdiction or the procedure followed by it was revolting to judicial conscience as being opposed to the principles of natural justice. Therefore, differing from the learned Judge of the trial Court, we are of the view that the civil Court had no jurisdiction in entertaining a suit of the present type despite the enactment of section 40 of the Central Excises and Salt Act, 1944, which permits a suit to be filed under the conditions and in the manner laid down. Therefore, differing from the learned Judge of the trial Court, we are of the view that the civil Court had no jurisdiction in entertaining a suit of the present type despite the enactment of section 40 of the Central Excises and Salt Act, 1944, which permits a suit to be filed under the conditions and in the manner laid down. But, even so, the section does not authorise a suit to be filed if the said conditions are not fulfilled and if the action of the Central Excise authorities be within the statutory powers conferred by the Act and the Rules; in that event, any application for refund ought to have been made to the Central Excise authorities within the period specified by Rule 11 of the Central Excise Rules, 1944. This brings us to the last question of limitation. The learned Judge of the trial Court held that Article 120 of the Schedule 2 of the Indian Limitation Act, 1908, was applicable. We may observe that it will apply to suits which are maintainable in a civil Court and where the Central Excise authorities have acted without jurisdiction or in excess of jurisdiction or have adopted a procedure revolting to judicial conscience so as to be opposed to the principles or natural justice. But to a case where the Central Excise authorities have acted within the statutory powers conferred by the Act and the Rules, the limitation laid down by Section 40 of the Act will be applicable and a suit can be filed only in the manner provided by the said section and not otherwise. In this connection we may observe that the situation contemplated by a Division Bench of this Court in Ramsingh v. State of M. P. 1965 MPLJ 716 is not present in this case. In that case the revenue authorities after completion of the sale in favour of the Plaintiff had purported to set aside the same in flagarant violation of the provisions of the Dhar State Land Revenue and Tenancy Act, 1940-41. In that case the revenue authorities after completion of the sale in favour of the Plaintiff had purported to set aside the same in flagarant violation of the provisions of the Dhar State Land Revenue and Tenancy Act, 1940-41. It was because of that fact that the Division Bench in that case held that the civil Courts' jurisdiction would not be barred as the action of the revenue authorities in flagrant violation of the provisions of the Dhar State Land Revenue and Tenancy Act, 1940-41 amounted to deprivation of property contrary to Article 19(1)(f) of the Constitution of India as also Article 31(1) of the Constitution of India. Had that been the position in the instant case, we might have been inclined to agree with the trial Judge that the civil Court had jurisdiction and that the suit is within time. But that not being the position on facts and in law, we are unable to agree with the learned trial Judge on these two questions. Even apart from that, we would affirm the view of the trial Judge that the Appellant was not entitled to any refund, whatsoever. On the question of Limitation, the facts in the present case are that excise duty had been paid by the Appellant-firm from 27-1-1961 to 31-1-1961, as is clear from the letter, Ex. P/3, sent by the Appellant to the Collector. The goods were destroyed on 9-2-1961. The suit was filed on 5-12-1964. In the suit the cause of action was said to have arisen on 8-4-1964. Evidently, no cause of action could have arisen on that date merely because the Central Excise authorities refused to refund the tax already paid according to the Act and the Rules. In this view of the matter the suit was clearly barred by time as per Section 40 of the Central Excises and Salt Act, 1944. In this view of the matter, the appeal fails and is accordingly dismissed with costs. Counsel's fee in this Court shall be according to schedule or certificate, whichever be less. The costs of the trial Court shall be borne as directed by that Court.