Judgment :- The plaintiff in O.S. No. 857 of 1967 on the file of the City Civil Court, Madras is the appellant herein. He is a dealer in tobacco and he used to get tobacco from various merchants from Andhra State and other places. On 23-5-1966 one Kotty Venkayya doing tobacco business at Eluru despatched 11 bundles of tobacco weighing dry weight 759 kgs. under T.P.I., permit in his name by Lorry. The said Lorry was unloaded on 25-5-1965 at Madras. The third respondent, who is the Inspector of Central Excise, came and scrutinised the permit and weighed the tobacco. On weighment it was found that the gross weight was 1, 060 kgs. and net weight was 994 kgs. as against 759 kgs. gross dry weight and 693 kgs. net dry weight as found in the permit. In view of this excess weight on the ground that the same was not covered by a permit, the excess tobacco was seized. Ex. B 3 dated 25-5-1966 is the statement given by the appellant before the Collector of Central Excise and Ex. B 3 dated 26-5-1966 is the form of seizure report of the Inspector of Central Excise. There had been correspondence between the appellant and the Collector of Central Excise and an order was passed on 17-6-1966 marked as Ex. A 5 by the second respondent, the Collector of Central Excise, permitting the appellant to take delivery of the tobacco seized on executing a bond. Ultimately by an order dated 28-7-1966 marked as Ex. A 7 the Assistant Collector of Central Excise stated that the excess weight was due to the wetting of the tobacco and that constituted only 43 % excess weight and up to 45 % the excess could be allowed and therefore, purporting to give the benefit of doubt to the appellant, he directed the release of the tobacco. The appellant did not take delivery of the tobacco even then. Thereafter the Collector of Central Excise wrote a further communication to the Collector on 6-10-1966 marked as Ex. A 16 calling upon him to take delivery of the tobacco which had been ordered to be released even on 28-7-1966 itself. The appellant did not take delivery of the tobacco even then. Thereafter the Collector of Central Excise wrote a further communication to the Collector on 6-10-1966 marked as Ex. A 16 calling upon him to take delivery of the tobacco which had been ordered to be released even on 28-7-1966 itself. Contending that by the time the order was passed on 28-7-1966 the tobacco had become useless for the purpose of manufacturing snuff, the appellant did not take delivery and after issuing a notice under Section 80, Code of Civil Procedure, he instituted the suit for recovery of a sum of Rs. 6, 002.82 made up of Rs. 4, 002.82 being the value of the tobacco seized and Rs. 2, 000 the estimated loss of profit. The appellant in the plaint contended that the action of the authorities in seizing the tobacco was illegal, malafide and in excess of the powers given under the rules and regulations. The suit was resisted by the respondents on several grounds which are reflected in the following issues framed by Trial Court.1. Whether the suit has been properly laid against the Union of India? 2. Whether proper notice under Section 80 CPC has been issued? 3. Whether the suit is barred under section 40(1) and (2) of the Central Excises and Salt Act of 1944? 4. Whether the seizure of the plaintiff's goods was improper and against rules and regulations? 5. Whether the goods were damaged because of the Act of the defendants? 6. Whether the plaintiff is guilty of lapses in not taking the delivery of the goods and is not entitled to damages? 7. Whether the plaintiff has suffered loss of reputation and is entitled to damages and if so, at what amount? 8. Whether the plaintiff is the owner of the consignment and is entitled to claim the value thereof? 9. Whether the defendants have acted in excess of their power and authority and are liable for damages? 10. To what relief, if any, is the plaintiff entitled? The learned IV Assistant Judge, City Civil Court, Madras by his Judgment and decree dated 9th January, 1970 dismissed the suit and against the said dismissal the present appeal has been filed by the plaintiff in the suit. 10. To what relief, if any, is the plaintiff entitled? The learned IV Assistant Judge, City Civil Court, Madras by his Judgment and decree dated 9th January, 1970 dismissed the suit and against the said dismissal the present appeal has been filed by the plaintiff in the suit. 2.I am not going into in detail the findings of the learned trial judge on the different issues for the simple reason that I am agreeing with his conclusion that the suit instituted by the appellant is liable to be dismissed because of the bar of limitation provided for in Section 40(2) of the Central Excises and Salt Act, 1944 hereinafter referred to as the Act. I have already referred to the fact that the seizure took place on 25-5-1966 and the actual order directing the release of the tobacco was passed on 28-7-1966. The suit was instituted on 11-2-1967. Section 40 of the Central Excises and Salt Act, at the relevant time, consisted of two sub-sections :Sub-section (1) was: "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." Sub-section (2) was: " 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 it will be seen that there are vital differences between the two sub-sections. Sub-section (1) refers to the Central Government or any officer of the Government. It also refers to any order passed in good faith or any act in good faith done or ordered to be done under the Act. If an order has been passed in good faith or any act in good faith has been done or ordered to be done under the Act, sub-section (1) gives complete and absolute protection obviously because of the good faith on the part of the Government or the Officer. Thirdly sub-section (1) refers to suits only. On the other hand, sub-section (2) does not refer to either the Government or any officer of the Government and it is in general terms. Thirdly sub-section (1) refers to suits only. On the other hand, sub-section (2) does not refer to either the Government or any officer of the Government and it is in general terms. From the language of sub-section (2) itself, it is seen that it will apply to any person against whom a suit can be filed or maintained or action can be initiated or prosecution can be launched. Secondly, sub-section (2) does not refer to any good faith on the part of any person doing anything or ordering anything to be done under the Act. Thirdly sub-section (2) refers to suit, prosecution or any other legal proceeding as against sub-section (1) referring to suits only. Fourthly, sub-section (2) merely provides for a period of limitation for the institution of such proceedings as against the complete and absolute protection against suits only provided for in sub-section (1) and the said period of limitation is six months from the accrual of the cause of action or from the date of the Act or older complained of. In this case, as I have pointed out already, the cause of action is the alleged illegal seizure that took place on 25-5-1966. Paragraph 13 of the plaint states that the cause of action arose at Madras on 23-5-1966 (a mistake for 25-5-1966) when the goods were seized and subsequently when the notices demanding the damages were sent. As far as the statute is concerned it talks of accrual of cause of action or the data of the act or order complained of. The act complained of in this case is the Act of seizure which took place on 25-5-1966. Even assuming that the cause of action to claim damages accrued to the appellant on 28-7-1966 when the tobacco was directed to be released, still the suit instituted on 11-2-1967 'was beyond six months from the date. Consequently, on the face of these facts as well as the language of Section 40 (2) the suit is barred by limitation. 3.Mr. Nainar Sundaram, Learned Councel for the appellant, realising this position only contended that section 40(2) of the Act is not attracted to the present case at all because the illegal seizure cannot be said to be comprehended by the language of Section 40(2) when it used the expression anything done or ordered to be done under this Act. 3.Mr. Nainar Sundaram, Learned Councel for the appellant, realising this position only contended that section 40(2) of the Act is not attracted to the present case at all because the illegal seizure cannot be said to be comprehended by the language of Section 40(2) when it used the expression anything done or ordered to be done under this Act. I am unable to accept this argument for more than one reason. In the first place, the expression, anything done or ordered to be done under this Act merely refers to the factual steps taken in the exercise of the powers conferred by the act and it does not go to the legality or the propriety of the act itself. That was the view taken by the Supreme Court in Firm of Illuri Subbayya Chetty and Sons v. The State of Andhra Pradesh (1) with a reference to a similar language occurring in Section 18-A of the Madras General Sales Tax Act, 1939. That section also used the expression "any assessment made under this Act" and the argument that was advanced before the Court was that the expression "any assessment made under this Act" would apply only to a valid or legal or correct assessment. That argument was rejected by the Supreme Court which stated : "The expression any assessment made under this Act' is in our opinion wide enough to cover all assessments made by the appropriate authorities under this Act whether the said assessments are correct or not. It is the activity of the assessing officer acting as such officer which is intended to be protected and as soon as it is shown that exercising his jurisdiction and authority under this Act, an assessing Officer has made an order of assessment, that clearly falls within the scope of section 18A. The fact that the order passed by the assessing authority may in fact be incorrect or wrong does not effect the position that in law, the said order has been passed by an appropriate authority and the assessment made by it must be treated as made under this Act. Whether or not an assessment has been made under this Act will not depend on the correctness or the accuracy of the order passed by the assessing authority. Whether or not an assessment has been made under this Act will not depend on the correctness or the accuracy of the order passed by the assessing authority. In determining the applicability of section 18A the only question to consider, is the assessment sought to be set aside or modified by the suit instituted an assessment made under this Act or not. It would be extremely anomalous to hold that it is only an accurate and correct order of assessment which falls under section 18A. Therefore, it seems to us that the orders of assessment challenged by the appellant in its suit fall under section 18A" * 4.Applying the reasoning of the above judgment, it clearly follows that so long as the appropriate authority takes an action or passes an order under the provisions of the Act, section 40(2) of the Act will be immediately attracted and whether that act or action is right or wrong or illegal will not be germane to the applicability of section 40(2) as such. As a matter of fact if the expression "anything done or ordered to be done under this Act" means only "anything legally, properly or correctly done or ordered to be done under the Act" * , then the question of instituting any suit, prosecution or other legal proceeding for such legal, proper or correct act or order cannot possibly arise and therefore section 40(2) itself will be devoid of any meaning or incapable of application since such legal, proper or correct act or order cannot be complained of, as contemplated by the statutory provision. 5.The next contention advanced by the learned counsel for the appellant is that section 40(2) of the Act will not apply to the present case, because the seizure of tobacco by the third respondent herein was a malafide one. The trial Court has come to the conclusion that the said contention of the appellant is not made out and that the act was done in good faith. For the purpose of a section 40(2) I am prepared to assume that the action of the third respondent was not in good faith. Still the question for consideration is whether section 40(2) will apply to such case or not. 6.As I have pointed out already, there is a clear distinction between section 40(1) and Section 40(2). For the purpose of a section 40(2) I am prepared to assume that the action of the third respondent was not in good faith. Still the question for consideration is whether section 40(2) will apply to such case or not. 6.As I have pointed out already, there is a clear distinction between section 40(1) and Section 40(2). It is Section 40(1) that refers to good faith and when good faith is present, the protection given to the government or the officer concerned is absolute and that the protection is absolute, there is no question of a period of limitation being prescribed for filing a suit or launching a prosecution or initiating any legal proceeding against the Government or the Officer concerned. Only when because of want of good faith, protection provided for in section 40(1) is not available section 40(2) will be invoked and the only limitation provided for in section 40(2) is with regard to the period within which action has to be taken. It has to be remembered that section 40(2) does not grant protection at all. It merely prescribes a period of limitation just like the limitation Act generally prescribe a period of limitation for all actions. As a matter of fact sub-section (1) of section 40 applies only to Government and the officers of the Government and sub-section (2) of section 40 applies to Government, officers of Government and others also and where in a suit the question of want of good faith is alleged against the Government or the officers of the Government and it is found that the Government or its officers have acted in good faith there is no need for them to rely upon section 40(2) at all since section 40(1) itself gives them complete protection on the establishment of good faith and only when such good faith is not established there will be need for them to rely upon section 40(2) by pleading the bar of limitation of time. 7.The above view of mine derives support from certain observations of the Supreme Court contained in the Judgment of that Court in Public Prosecutor, Madras v. R. Raju and Another etc.