JUDGMENT : A.P.THAKER, J. 1. This first appeal has been preferred by the original defendants against the judgment and decree passed by the learned Civil Judge, Senior Division, Anand, dated 31.12.1997 in Special Civil Suit No.67 of 1989 (Old Civil Suit no.68 of 1982). 2. By the impugned judgment and decree, the Trial Court has held that the show cause notice issued by the defendants to the plaintiff is illegal and time barred and has also passed monitory decree to the tune of Rs.9,33,378.37/- along with interest @ 6% from the date of suit i.e. from 16.03.1982 with the cost of the suit. 3. The appellants are defendants and the respondent is the plaintiff before the Trial Court. For the brevity and convenience, the parties are referred to in this judgment as per the status assigned to them before the Trial Court. 4. It is contended by the defendants that the Central Excises And Salt Act, 1944 (hereinafter referred to as “the Act”)is self contained code and no civil suit is maintainable and no decree could have been passed against the defendants-appellants. It is also averred that the Trial Court has not appreciated the oral and documentary evidence produced by the defendants and has not appreciated the facts that the goods which were checked were handed over to the plaintiff under the suparatnama and therefore, the goods were in physical possession of the plaintiff. It is contended that the plaintiff could not have claimed any damages against the defendants. It is also contended that while checking the goods appropriate panchnama was prepared in presence of the plaintiff’s son. It is also contended that the defendants were not liable for the incident of fire which took place between 21.10.1979 and 23.10.1979. It is also contended that the Trial Court has failed to appreciate that the acquittal in Criminal Court has no relevance in a Civil Proceedings. 4.1. It is contended that the Trial Court has erred in holding that the paper panchnama at exhibit 149 was made in the absence of the plaintiff and observing that the defendants have failed to produce important documents and evidence regarding inquiry and investigation. 4.1. It is contended that the Trial Court has erred in holding that the paper panchnama at exhibit 149 was made in the absence of the plaintiff and observing that the defendants have failed to produce important documents and evidence regarding inquiry and investigation. It is further contended that the Trial Court has materially erred in accepting oral version of the plaintiff about the value of the goods and has also erred in holding that the defendants have not denied or raised the dispute regarding the value of the goods. 4.2. It is also contended that the statements recorded by the defendants are admissible under the Customs Act and it is binding up on the plaintiff and other witnesses, which fact has not been properly appreciated by the learned Trial Court. It is also contended that the show cause notice issued to the plaintiff was adjudicated upon and the plaintiff had taken steps to file appeal before the appropriate forum wherein the plaintiff also lost the matter. It is contended that in view of this, the Trial Court has materially erred in holding that the show cause notice was not issued within a period of six months and held it to be time barred and illegal. It is also contended that the Trial Court has committed error in observing that there was malafide intentions on the part of the defendants as Section 40 of the Act is applicable. 4.3. On all these grounds, it is prayed by the defendants to set aside the impugned judgment and decree passed by the learned Civil Judge, Senior Division, Anand, in the aforesaid suit and to dismiss the suit of the plaintiff with cost through out. 5. The plaintiff has filed the aforesaid suit for recovery of Rs.9,94,054.37/- from the defendants as damages as well as for permanent injunction against the show cause notice issued by the defendant under the provisions of the Act. It is the case of the plaintiff that he is doing tobacco business in the name of Sahjanand Tobacco at the Village Vasna in Anand Division and he was issued license by the Central Excises Department, which came to be renewed from time to time and is in force. It is also averred that the Excise department has taken necessary bonds from the plaintiff at the time of issuing license and the said bonds are also in force. It is also averred that the Excise department has taken necessary bonds from the plaintiff at the time of issuing license and the said bonds are also in force. That the plaintiff used to maintain necessary books and registers as per the Central Excises Laws and he is doing the processing work of tobacco in the warehouse with the previous permissions of the officers of the Central Excise. That the officers of the Central Excise used to do checking of the stock every year and every thing was being done by the plaintiff with the previous permissions of the officers of the Central Excise. 6. It is the case of the plaintiff that his warehouse is situated at Station Road on the public road at Anand and he has also kept the warehouse at Raipur (Madhya Pradesh) and he used to stay at Raipur M.P. According to him, he has entrusted the work of warehouse situated at Anand to his son Mahendrakumar and his near relative Chhaganbhai and he was staying at Raipur M.P. for his business purposes. It is contended that prior to 21.02.1979, stock checking was carried out by the officers of the Central Excise from the warehouse of the plaintiff in presence of the plaintiff and at that time, all the stocks were found to be proper and thereafter the plaintiff left for Raipur M.P. 6.1. It is contended by the plaintiff that on 21.02.1979, the officers of the Central Excise i.e. present defendants and other officers visited the plaintiff’s warehouse and checked and verified the stock and prepared one panchnama in absence of the plaintiff. It is also contended that they have also checked the residential premises of the plaintiff but nothing incriminating was found. It is also contended that the checking of the warehouse by the defendants was in the absence of the authorization of the plaintiff and after preparing one panchnama the officers of the Central Excise have obtained signatures of panch witnesses namely, Arvindbhai Patel and Bhikhabhai Patel who has subsequently filed affidavit on 06.04.1979 to the effect that they did not went into warehouse and they have only singed the panchnama at the instance and under pressure of the officers of the Excise Department. They have also stated that the panchnama was not read over and explained to them. They have also stated that the panchnama was not read over and explained to them. According to the plaintiff, thus, the alleged panchnama was not drawn and prepared in accordance with law. It is contended that it is averred in the panchnama that it was started in the morning at 08.00 a.m. and was completed in the evening at 06.00 p.m. and there were 13,522 bags of 4,33,261-100 kg weight of it in the warehouse. It is stated that it was not possible to make verification of such huge quantity within 10 hours and therefore the said panchnama cannot be said to be having a true and clear picture of the warehouse and the panchnama cannot be relied upon. It is also contended that as per the panchnama there was a deficit of 3,701 bags weighing 1,06,548-400 kgs which cannot be believed. 6.2. It is also contended by the plaintiff that defendants have illegally seized the tobacco for the purpose of getting promotion or reward from the department. It is also alleged that during the period from 21.10.1979 to 23.10.1979 there was a natural fire and due to that major portion of tobacco burnt and remaining tobacco was spoiled, due to, sprinkling of water to extinguish the fire. It is also alleged that despite the plaintiff requested the defendants to dispose of the case and to handover the tobacco to him repeatedly, the same was not paid heed by the defendants which has resulted in to loss to the plaintiff due to inaction on the part of defendants. According to the plaintiff, the defendants have illegally seized the goods and as it was kept aside for long time, it caught fire and therefore to save their skin the defendants have served notice on 29.10.1979 after 6 months by mentioning the date 28.09.1979 wherein contention were false and got up. According to the plaintiff, thereafter, the plaintiff requested the defendants to permit him to dispose of the remaining tobacco but it was not granted. It is also alleged that the defendants have abused their powers and authority and have acted illegally and prepared false panchnama and though the plaintiff has brought to their notice, nothing was done and therefore all the defendants are severally and jointly liable for the loss and damages suffered by the plaintiff. 6.3. It is also alleged that the defendants have abused their powers and authority and have acted illegally and prepared false panchnama and though the plaintiff has brought to their notice, nothing was done and therefore all the defendants are severally and jointly liable for the loss and damages suffered by the plaintiff. 6.3. It is also alleged that the defendants have not acted bonafidely and they have not discharged their duties in accordance with law. 6.4. On the aforesaid grounds, the plaintiff has filed suit for permanent injunction for restraining the defendants from taking action against him under the show cause notice and also for damages to the tune of Rs.9,94,049.37/- which includes the interest of Rs.60,671/- along with the interest and the cost from the defendants. 7. The defendants have resisted the suit inter alia contending that the facts of the plaint are not true and not admitted. It is contended by the defendants that the premises of the warehouse were licensed premises and the Central Excise Officers are legally authorized to visit such premise at any time and it was checked in the presence of authorized Persons of the licensee and panchnama was also drawn in the presence of the panch witnesses. It is also contended that, it appears that the plaintiff has won over the panchas and therefore whatever panchas have subsequently said on affidavit is an afterthought and therefore making such affidavit is of no avail. According to the defendants, during the checking, it was found that as per the register the balance was 13,522 bags, however, on checking it was found that the actual stock was of 9,821 bags. It is contended that the timing of 10 hours was sufficient for such verification. That the procedure followed by the defendants and action taken by them are perfectly legal and valid and it is in accordance with the Act. It is also contended that on actual verification as there was a shortage of 3,701 bags weighing 1,06,548.400 kgs, the same was admitted by the plaintiff in his statement and also by his son Mahendrabhai. That the procedure followed by the defendants and action taken by them are perfectly legal and valid and it is in accordance with the Act. It is also contended that on actual verification as there was a shortage of 3,701 bags weighing 1,06,548.400 kgs, the same was admitted by the plaintiff in his statement and also by his son Mahendrabhai. It is contended that as the stock was not found as per the record of the plaintiff, actual stock was detained as per the Rule 230 of the Central Excise Rules and was handed over to the plaintiff for safe custody and therefore the defendant is not responsible or liable for damages if the goods in seizure have deteriorated, damaged while in custody of the plaintiff. 7.1 It is contended that at the time of preparation of panchnama after the fire, it was found that 4,900 bags of the tobacco were remained totally unaffected by the fire. That the stock in the warehouse was of much inferior quality known as stems which is marketed at Rs.2 per 20 kgs and thus the figure shown by the plaintiff is highly exaggerated. 7.2 The defendants have also contended that they have acted bonafidely in discharging their official duties and therefore the suit is not maintainable according to the law. It is also contended that the show cause notice have been disposed of after hearing the plaintiff and the plaintiff has also filed appeal and revision thereafter. They have denied their liability jointly or severally for the so called damages claimed by the plaintiff. 7.3. It is also contended that the suit itself is not maintainable under Section 40 of the Act and it is time barred. On all these grounds, the defendants have prayed to dismiss the suit with cost and to award compensatory cost under Section 35(a) of the CPC. 8. On the basis of the pleadings of the parties, the Trial Court has framed issues at Exhibit 47 which reads as under:- “1. Whether the plaintiff proves that he is entitled to recover Rs.9,33,378.37 p. From the defts? 2. Whether the plaintiff is entitled to interest as claimed? 3. Whether the plaintiff proves that the suit notice dtd.29/9/79 is illegal? 4. Whether the plaintiff proves that the notice served by the defendants dt.29/9/79 is time barred? 5. Whether the suit is barred by the law of limitation? 6. 2. Whether the plaintiff is entitled to interest as claimed? 3. Whether the plaintiff proves that the suit notice dtd.29/9/79 is illegal? 4. Whether the plaintiff proves that the notice served by the defendants dt.29/9/79 is time barred? 5. Whether the suit is barred by the law of limitation? 6. Whether the suit is not maintainable as per Sec.40 of the Central Excise Act? 7. Whether the plaintiff is entitled to declaration and injunction as prayed for? 8. What is due to the plaintiff from the defendants? 9. What order and decree? No more sought.” 9. It appears from the record that on the basis of oral and documentary evidence and submissions made by both the sides, the Trial Court has answered issue nos.1, 3 and 4 in affirmative, whereas issue nos.2 and 7 have been answered in partly affirmative, and issue nos.6 and 7 has been answered in negative and ultimately the suit has been partly allowed for damages to the tune of Rs.9,33,378.37/- along with 6% interest and also granted the prayer of declaration holding that the show cause notice is time barred and illegal. 10. It appears from the records that the plaintiff has produced the following oral and documentary evidence in support of his case:- Oral evidence:- Sr.No. Details of Oral Evidence Exhibit No. 1 Somabhai Ranchhodbhai Patel 95 2 Mahendrabhai Somabhai Patel 127 3 Arvindbhai Manibhai Patel 147 4 Mahendrakumar Popatlal Bhavsar 154 5 Ratnaji Vasram Makwana 158 6 Shantilal Umedbhai Patel 159 7 Muljibhai Kachrabhai Mangora 161 Documentary Evidence:- Sr. No. Details of Documentary Evidence Exhibit No. 1 Copy of application dated 17.03.1980 addressed to the defendant no.4 110 2 Copy of application dated 06.08.1980 addressed to the defendant no.4 111 3 Copy of receipt of Revision Application 112 4 Copy of notice under Section 80 of CPC dated 31.03.1980 113 5 Original RPAD receipts 114, 117, 121 6 Copy of the order passed by the defendat no.4 in the matter – original No.-5/TOB/1989 DATED 15.04.1980 122 7 Copy of the order passed by Central Board of Excise and Customs, New Delhi, in the matter of order no.26/1981 dated 06.01.1981 123 8 Copy of the order passed by the Customs Excise and Gold (Control) Appellate Tribunal passed in the matter of order no.494-1986 of April 1986 124 9 Copy of Panchnama drawn by the Borsad Town Police Station 155 10 Original Certificate issued by the Manager of Kamleshkumar Chhotalal & Company regarding the amount of damages given by the Insurance Company dated 20.04.1988 160 11 Certified copy of the deposition of Narendrakumar Ishwarbhai (defendant no.2) in Criminal Case No.1766 of 1982 179 12 Certified copy of the deposition of Chandramohan Mehra (defendant no.3) in the aforesaid case criminal case 240 11. The defendant side have produced the following oral and documentary evidence:- Oral evidence Sr. No. Details of Oral Evidence Exhibit No. 1 Chandrakant Himmatlal Jardos (defendant no.1) 168 2 Narendrabhai Ishwarlal Mehta (defendant no.2) 178 3 Chandramohan Amratlal Mahera (defendant no.3) 203 Documentary evidence Sr. No. Details of Documentary Evidence Exhibit No. 1 True copy of the plaintiffs statement in Criminal Case No.1766 of 1982 dated 09.04.1979. 140 2 True copy of the plaintiffs statement in aforesaid Criminal Case dated 24.05.1979. 141 3 Copy of panchnama dated 21.02.1979 prepared by the defendants regarding the tobacco in the plaintiffs warehouse. 149 4 Copy of statement of stock declaration dated 21.02.1979 150 5 Copies of schedule A and schedule B showing the stock position of tobacco bags in connection with the aforesaid panchnama 151 and 152 6 Copy of statement of Arvindbhai Manibhai Patel recorded before the Superintendent Police Inspector, Central Excise Department, Anand dated 02.03.1979 153 7 Certified copy of deposition of Chandrakant Himmatlal Jardos, defendant no.1 in criminal case no.1766 of 1982 175 8 Original warehouse register (part-3) maintained by the plaintiff regarding his tobacco business of the year 1979 dated 22.01.1979 179 12. Heard learned advocate Mr.Harshil Shukla for the appellant-defendant and learned advocate Mr.M.A.Parekh for the respondent original plaintiff. Learned advocate Mr.Parekh has also submitted written submissions. Same is perused along with the records and proceedings of the Trial Court and the decisions cited at bar. 13. The following points arises for the determination of the present appeal:- (i) In the facts and circumstances of the case, whether the Trial Court has committed error of facts and law in arriving at the conclusion that the show cause notice issued by the defendant is illegal? (ii) In the facts and circumstances of the case, whether the Trial Court has committed error of facts and law in deciding the issue of maintainability of the suit under the provisions of Section 40 of the Act? (iii) In the facts and circumstances of the case, whether the Trial Court has committed error of facts and law in observing that the plaintiff is entitled to recover the amount of Rs.9,33,378.37 with interest? (iv) In the facts and circumstances of the case, whether the Trial Court has committed error of facts and law in passing the impugned decree in favour of the plaintiff? (v) What order and decree? 14. My findings on the aforesaid points, for the reasons given below, are as under:- (i) In the affirmative. (ii) In the affirmative. (iii) In the affirmative. (iv) In the affirmative. (v) As per the final order. 15. Learned advocate Mr.Shukla for the appellant defendant has vehemently submitted the same facts which are narrated in the memo of appeal. He has submitted that the warehouse of the plaintiff was visited by the officers of the Central Excise and on stock verification it was found that there was some discrepancy and shortage of stocks of tobacco. He has submitted that the officers of the department have followed the proper procedures and prepared the panchnama in presence of the son and relative of the plaintiff as well as two independent panchas. 15.1. He has also submitted that thereafter show cause notice was issued to the plaintiff under the provisions of the Act. He has also submitted that meanwhile, natural fire took place in warehouse between 21.10.1979 to 23.10.1979. 15.1. He has also submitted that thereafter show cause notice was issued to the plaintiff under the provisions of the Act. He has also submitted that meanwhile, natural fire took place in warehouse between 21.10.1979 to 23.10.1979. He has submitted that the plaintiff has filed the present suit against the defendants for recovery of damages as well as against the show cause notice alleging that the show cause notice was not issued within the limitation period as envisaged in the Act. He has submitted that the Trial Court after recording the evidence of both the sides, has misread the evidence and have also misread the provisions of the Act and has wrongly come to the conclusion that the show cause notice was time barred. He has submitted that against the show cause notice, the plaintiff has already filed appeal and revision before the appropriate authority under the Act. He has submitted that since all these departmental proceedings were attended by the plaintiff even during the pendency of the suit, there was no question of declaring the said show cause notice as illegal and time barred. 15.2. He has also submitted that the Trial Court has misread the evidence and has not properly appreciated the entire evidence on record. He has also submitted that pending the first appeal, the amount had already been deposited by the defendant before the Trial Court and 50% amount was allowed to be withdrawn by the plaintiff on furnishing certain security. He has also submitted that the issue answered against the defendants are based upon the assumption and the Trial Court has not read the entire evidence produced in the matter. He has also submitted that there is no detailed discussions of the oral evidence and documentary evidence. He has submitted that the Trial Court has committed serious error of facts and law in passing the decree against the defendants who have acted accordingly to their official duties and there was no negligence on their part. He has submitted that whatever damages has been caused to the plaintiff is caused due to the natural fire as has been averred by the plaintiff in his suit itself. He has submitted that without any proper evidence, the damages has been assessed by the plaintiff and it is blindly accepted by the Trial Court. He has submitted that whatever damages has been caused to the plaintiff is caused due to the natural fire as has been averred by the plaintiff in his suit itself. He has submitted that without any proper evidence, the damages has been assessed by the plaintiff and it is blindly accepted by the Trial Court. He has submitted that the impugned judgment and order of the Trial Court be set aside and the suit of the plaintiff be dismissed. He has relied upon the decisions reported in case of (1991) 2 SCC 119 especially, para 4 to 8 has observed as under:- “4. But the question is whether the issuance of a show cause notice and the initiation of the consequential adjudication proceedings can be described as ‘other legal proceedings’ within the meaning of sub-section (2) of section 40 of the Act? If the said departmental action falls within the expression ‘other legal proceeding’ there can be no doubt that the action would be barred as the same indisputably was initiated six months after the accrual of the cause action. So the crucial question is whether the issuance of the show cause notice dated August 30, 1972 and the passing of the impugned order in adjudication proceedings emanating therefrom constitutes `other legal proceeding' within the meaning of section 40(2) of the Act to fall within the mischief of that sub-section which bars such proceedings if commenced after a period of six months from the accrual of the cause of action. The learned Additional Solicitor General submitted that the expression `other legal proceeding' must be read ejusdem generis with the proceeding expressions `suit' and `prosecution' and if so read it becomes crystal clear that the department's action cannot come within the purview of `other legal proceeding'. How valid is this contention is the question which we are called upon to answer in the present appeal. 5. The rule of ejusdem generis is generally invoked where the scope and ambit of the general words which follow certain specific words (which have some common characteristic and constitute a genus) is required to be determined. By the application of this rule the scope and ambit of the general words which follow certain specific words constituting a genus is restricted to things ejusdem generis with those preceding them, unless the context otherwise requires. By the application of this rule the scope and ambit of the general words which follow certain specific words constituting a genus is restricted to things ejusdem generis with those preceding them, unless the context otherwise requires. General words must ordinarily bear their natural and larger meaning and need not be confined ejusdem generis to things previously enumerated unless the language of the statute spells out an intention to that effect. Courts have also limited the scope of the general words in cases where a larger meaning is likely to lead to absurd and unforeseen results. To put it differently, the general expression has to be read to comprehend things of the same kind as those referred to by the preceding specific things constituting a genus, unless of course from the language of the statute it can be inferred that the general words were not intended to be so limited and no absurdity or unintended and unforeseen complication is likely to result if they are allowed to take their natural meaning. The cardinal rule of interpretation is to allow the general words to take their natural wide meaning unless the language of the statute gives a different indication or such meaning is likely to lead to absurd results in which case their meaning can be restricted by the application of this rule and they may be required to fall in line with the specific things designated by the preceding words. But unless there is genus which can be comprehended from the preceding words, there can be no question of invoking this rule. Nor can this rule have any application where the general words precede specific words. 6. There can be little doubt that the words `other legal proceeding' are wide enough to include adjudication and penalty proceedings under the Act. Even the learned Additional Solicitor General did not contend to the contrary but what he said was that since this wide expression is preceded by particular words of a certain genus, namely, words indicating reference to proceedings taken in courts only, the wide words must be limited to things ejusdem generis and must take colour from the preceding words and should, therefore, receive a limited meaning to exclude proceedings of the type in question. There can be no doubt that `suit' or `prosecution' are those judicial or legal proceedings which are lodged in a court of law and not before any executive authority, even if a statutory one. The use of the expression `instituted' in section 40(2) strengthens this belief. Since this sub-section has been construed by this Court in Raju's case (supra) not to be confined in its application to only Government servants but to extend to others including the assessees and since the words `for anything done or ordered to be done under this Act' are found to be comprehensive enough to include acts of non-compliance or omissions to do what the Act and the Rule enjoin, the limitation prescribed by section 40(2) would undoubtedly hit the adjudication and penalty proceedings unless the expression `other legal proceeding' is read ejusdem generis to limit its ambit to legal proceedings initiated in a court of law. 7. The scope of section 40(2) as it stood before its amendment pursuant to Raju's case came up for consideration before a Division Bench of the Madhya Pradesh High Court in Universal Cables Ltd. v. Union of India, [1977] ELT (J92) wherein the question raised for determination was whether penalty proceedings taken under Rule 173Q for the infraction of Rule 173C with a view to evading payment of duty fell within the expression `other legal proceeding' used in the said sub- section. The High Court conceded that the expression when read in isolation is wide enough to include any proceeding taken in accordance with law, whether so taken in a court of law or before any authority or tribunal but when read with the preceding words `suit' or `prosecution' it must be given a restricted meaning. This is how the High Court expressed itself at page J 106: "Now the language of section 40 (2) is: `no suit, prosecution or other legal proceeding shall be instituted'. `Suit' and `prosecution' which precede the expression `other legal proceeding' can be taken only in a Court of Law". After stating the expanse of the ejusdem generis rule, as explained in Amar Chandra v. Excise Collector, Tripura, AIR. `Suit' and `prosecution' which precede the expression `other legal proceeding' can be taken only in a Court of Law". After stating the expanse of the ejusdem generis rule, as explained in Amar Chandra v. Excise Collector, Tripura, AIR. 1972 SC 1863 at 1868 (Sutherland, Volume 2 pages 399-400) the High Court observed that there was no indication in the said sub-section or elsewhere in the Act that the said general words were intended to receive their wide meaning and were not to be construed in a limited sense with the aid of the ejusdem generis rule. A departmental proceeding like penalty proceedings were, therefore, placed outside the scope of the said sub-section. This view was quoted with approval by a learned Single Judge of the Bombay High Court in C.C. Industries & Others v. H.N. Ray and Another, [1980] ELT 442 at 453. These two cases, therefore, clearly support the view canvassed before us by the learned Additional Solicitor General. 8. We have given our careful consideration to the submission made on behalf of the appellant, reinforced by the view expressed in the aforesaid two decisions. In considering the scope of the expression `other legal proceeding' we have confined ourselves to the language of sub-section (2) of section 40 of the Act before its amendment by Act 22 of 1973 and should not be understood to express any view on the amended provision. On careful consideration we are in respectful agreement with the view expressed in the aforesaid decisions that the wide expression `other legal proceeding' must be read ejusdem generis with the preceding words `suit' and `prosecution' as they constitute a genus. In this view of the matter we must uphold the contention of the learned Additional Solicitor General that the penalty and adjudication proceedings in question did not fall within the expression `other legal proceeding' employed in section 40 (2) of the Act as it stood prior to its amendment by Act 22 of 1973 and therefore, the said proceedings were not subject to the limitation prescribed by the said sub-section.” 16. Learned advocate Mr.Parekh for the original plaintiff has vehemently submitted that the Trial Court has properly appreciated the facts and evidence on record and has properly allowed the suit of the plaintiff. Learned advocate Mr.Parekh for the original plaintiff has vehemently submitted that the Trial Court has properly appreciated the facts and evidence on record and has properly allowed the suit of the plaintiff. He has also referred to the observations made by the Trial Court and has submitted that all the observations made by the Trial Court is in consonance with the facts and evidence on record. There is no illegality committed by the Trial Court in passing the impugned judgment and decree in favour of the plaintiff. He has also submitted that the decreetal amount is still lying before the Civil Court. He has submitted that the Trial Court may be directed to disburse the same to the plaintiff by dismissing the present appeal. He has also submitted that prior to filing the suit, the plaintiff has already issued the notice under Section 80 of the CPC and yet no reply was received from the department of the defendants and therefore the plaintiff has filed the suit. He has also submitted written submissions wherein he has highlighted the facts narrated in the plaint and evidence led before the Trial Court. 16.1. It is submitted that the plaintiff was carrying on business of tobacco with a license issued by the authority and was renewed every year. He has also submitted that the stock of the plaintiffs warehouse was carried out somewhere in the month of December to January of 1979 and the same was noted in the register. He has submitted that prior to 21.02.1979 the plaintiff-respondent had went to Raipur M.P. and his son Mahendrabhai and near relative Chhaganbhai used to look after the warehouse in his absence. According to him, however both of them were not authorized persons to act for the plaintiff as per Rule 3 of the Act. He has submitted that on 21.02.1979, the officers of the Central Excise visited the warehouse of the plaintiff for verification of the stock. He has submitted that the officers of the Central Excise have alleged to have prepared panchnama which is at exhibit 149, but, the same have not been properly drawn and it was not drawn in presence of the panchas, namely Arvindbhai Manibhai Patel, who in his deposition at exhibit 147 has clearly stated that in his presence no checking was carried out. That Mr. That Mr. Mahendrakumar Popatlal Bhavsar at exhibit 154 has also supported the version of the plaintiff. He has also referred to the deposition of the plaintiff’s son Mahendrakumar and has stated that no panch were present at the time of drawing of panchnama. According to him, the entire panchnama is just paper panchnama which cannot be relied upon and rightly the trial Court has discarded it. 16.2. While referring to the evidence of Narendrabhai Ishwarlal Mehta at exhibit 178, he has stated that even if the version of these witness that they have used 4 to 5 scales for weighing the bags, it would not be possible to complete the verification of 13522 bags in less than 9 hours. He has also submitted that the plaintiffs tobacco was seized on 21.02.1979 whereupon the plaintiff has frequently requested to release the same, but, the defendant side has not paid heed to it. He has submitted that as per Section 110(2) of the Customs Act, 1962, the seized goods needs to be returned to the owner, if any action is not taken within six months of the seizure. According to him, in the present case after passing six months the defendant has issued time barred notice dated 29.09.1979 which is clearly illegal one. 16.3. He has submitted that the fire took place in the warehouse from 21.10.1979 to 23.10.1979 in which several bags of tobacco were destroyed and due to rainy water tobacco was spoiled. He has submitted that when the plaintiff approached the defendant authority for permission to sell the remaining bags, they did not reply it and ignored it and due to such inaction on the part of the officers of the defendant, the plaintiff has suffered heavy loss. According to him, even under the provisions of the Act and Rules, the defendants were legally bound to release the tobacco. 16.4. On the point of damages when the pertinent question was put to learned advocate for the original plaintiff Mr.Parekh, he has repeatedly read the observations of the Trial Court regarding the damages awarded to the plaintiff. In this regard, he has also submitted that the plaintiff has placed on record the copies of the statement prepared by the officers during the checking with documentary list at exhibit 109. In this regard, he has also submitted that the plaintiff has placed on record the copies of the statement prepared by the officers during the checking with documentary list at exhibit 109. When his attention was drawn that those document has not been exhibited in evidence he has repeatedly stated that the Trial Court has accepted the version of the plaintiff regarding the value of the goods. He has also submitted that as observed by the Trial Court the defendant side has not objected to the calculations made by the plaintiff and the defendant has also not produced any contrary evidence in respect of valuation of the goods. Learned advocate Mr.Parekh has also submitted that in the Criminal Trial this fact was brought on record and this facts has been considered by the Trial Court Judge in his judgment, which is just and legal one. He has submitted that observations of the Trial Court Judge regarding the valuation of the goods is the base for his argument and he has heavily relied upon this observation for the amount of damages. 16.5. Learned advocate Mr.Parekh also vehemently submitted that learned Trial Court has properly appreciated the entire facts and evidences produced by both the sides and has rightly passed the impugned judgment and decree in favour of the plaintiff. According to him, the judgment and decree passed by the Trial Court are proper and the present appeal is devoid of the merits and the same may be dismissed with the cost. He has also submitted that the amount deposited during the pendency of this appeal, may be ordered to be released in favour of the plaintiff immediately. He has relied upon the following decisions in support of his submissions:- (i) In case of Union of India (Uoi) and 2 Ors. V. A.Y.Yemani reported in 1984 (18) ELT 720 Ker (ii) In case of J.R.Sehgal V. Collector of Central Excise reported in 1983 (12) ELT 760 Del (iii) In case of Union of India V. Narasimhalu reported in (1969) 2 SCC 658 . (iv) In case of Shanti Lal Mehta V. Union of India And Ors reported in ILR 1983 Delhi 374. 17. In the rejoinder, learned advocate Mr.Harshil Shukla for the appellant has submitted that there was no any malafide intentions on the part of the officers of the Central Excise. (iv) In case of Shanti Lal Mehta V. Union of India And Ors reported in ILR 1983 Delhi 374. 17. In the rejoinder, learned advocate Mr.Harshil Shukla for the appellant has submitted that there was no any malafide intentions on the part of the officers of the Central Excise. He has submitted that whatever damage is caused is due to natural fire broke out in the warehouse for which the defendants could not be held liable. He has submitted that the appeal may be allowed and the impugned judgment and decree of the Trial Court be set aside and the suit of the plaintiff be dismissed with cost. 18. Point No.(i) The plaintiff has challenged the show cause notice issued under the Act on the grounds that it was issued after lapse of 6 months and it is time barred. To decide this point of limitation of six months, it needs to refer to Section 40 of the Act prior to its amendment, which reads as under:- “40. Protection of action taken under the Act. (1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Central Government or a State Government for anything which is done, or intended to be done, in good faith, in pursuance of this Act or any rule made thereunder. (2) No proceeding, other than a suit, shall be commenced against the Central Government, or any officer of the Central Government, or a State Government for anything done or purported to have been done in pursuance of this Act or any rule made thereunder, without giving the Central Government or such officer a month's previous notice in writing of the intended proceeding and of the cause thereof or after the expiration of three months from the accrual of such cause.” 18.1. In this regard, learned advocate for the defendant appellant has relied upon the decision in case of Assistant Collector of Central Excise, Guntur V. Ramdev Tobacco Company reported in 1991 SCC (2) 119, wherein there was an issue raised in respect to word “other legal proceedings” were occurred under Section 40(2) prior to its amendment. In this regard, learned advocate for the defendant appellant has relied upon the decision in case of Assistant Collector of Central Excise, Guntur V. Ramdev Tobacco Company reported in 1991 SCC (2) 119, wherein there was an issue raised in respect to word “other legal proceedings” were occurred under Section 40(2) prior to its amendment. While referring to the unamended provisions of Section 40(2) of the Act, the Apex Court has observed that the expressing, “other legal proceedings” under Section 40(2) as it is to prior to its amendment in 1973, is wide enough to include adjudication of penalty proceedings under the Act but the wide expression read as “ejusdem generis” that the proceedings were “suit” and “prosecution” as they have constituted genus. It was further observed therein that “suit” or “prosecution” which those judicial or legal proceedings which are allowed in a Court of law and not before any executing authority, even if a statutory one. The use of expression “institute” under Section 40(2) of the Act strengthens this belief. It was further observed that in view of such construction of provisions, the penalty to adjudication proceedings by the authority would not fall within the expression “other legal proceedings” implied in the then Section 40(2) and therefore, the said proceedings were not subject to the limitations prescribed therein. 18.2. In the present case, it is admitted fact that notice has been issued to the plaintiff after six months. It is also admitted facts that against the said notice, the plaintiff ha approached the authority by way of appeal and even thereafter by way of revision, challenging the said notice. Thus, the alternative appropriate remedy has already been exhausted by the plaintiff, of course during the pendency of the suit. Thus, there was no question of declaration to be wade in respect of show cause notice issued to the plaintiff. However, as observed and held by the Apex Court in the aforesaid decision, the issuance of show cause notice in departmental proceedings for seeking penalty cannot be held to be beyond the limitation period. Admittedly, in this Case, the authority has not initiated any legal proceedings of recovery or penalty against the plaintiff. The course adopted by the defendant authority is in the realm of Quasi-judicial proceedings of seeking penalty under the Act. Admittedly, in this Case, the authority has not initiated any legal proceedings of recovery or penalty against the plaintiff. The course adopted by the defendant authority is in the realm of Quasi-judicial proceedings of seeking penalty under the Act. Therefore, though the notice has been issued after six months from the date of checking i.e. 21.02.1979, the notice cannot be held to be illegal one and no declaration or injunction against the same can be granted in favour of the plaintiff. 18.3. It is pertinent to note that the Trial Court while dealing with the issue of notice, in para 22 has observed that during the pendency of the suit against the said notice, departmental proceeding was going on and therefore there was no question of granting any permanent injunction against the defendant arises and yet it has declared the notice as illegal and time barred. The Trial Court has not considered the provision of Section 40(2) of the Act which clearly does not apply to the departmental proceedings and only applies for initiation of suit or prosecution. Therefore, in view of the aforesaid facts and legal provisions, it is clearly found that the Trial Court has committed error in declaring the show cause notice as illegal and time barred. Hence, considering the facts and circumstances of the case, I have decided the point no.1 accordingly. 19. Point No. (ii):- Learned advocate for the original plaintiff has relied upon the decision in the case of Union of India (Uoi) and 2 Ors. (Supra). The Karnataka High Court was dealing with the Second Appeal, wherein the Suit was based on the facts that the tobacco goods were illegally seized by the officers of the department and it was confiscated. Thereafter the plaintiff was allowed to redeem the seized tobacco on the payment of redemption fine. The order of the confiscation was challenged by the plaintiff before the High Court by preferring application wherein order of confiscation came to be quashed on the ground of violation of principles of natural justice. The Excise Department thereafter ordered the release of the tobacco to the plaintiff and directing him to take delivery of the same within ten days from the date of the order. The plaintiff did not take the delivery of the goods on the ground that the seized goods were rendered unfit for use and it became unfit for sale. The Excise Department thereafter ordered the release of the tobacco to the plaintiff and directing him to take delivery of the same within ten days from the date of the order. The plaintiff did not take the delivery of the goods on the ground that the seized goods were rendered unfit for use and it became unfit for sale. It was the case of the department that goods were auctioned but there was no purchaser and therefore it came to be destroyed. On that basis, the plaintiff therein filed a suit for damages along with the interest. 20. It was resisted by the department on the ground of maintainability in view of the provisions contained in Sub-section 1 of Section 40 of the Act. There was also contention that the suit is barred by the limitation under Sub-section 2 of Section 40 of the Act. The Trial Court over-ruled both the pleas and decreed the suit. In the appeal, the District Court has also confirmed the decision of the Trial Court. Against that order, the Second Appeal was preferred before the High Court. The Kerala High Court has confirmed the order of the Trial Court and the Appellate Court and observed that the provisions contained in Sub-section 1 of Section 40 of the Act does not protect an act done in violation of provisions of the Act or beyond the jurisdiction of the officer or the authority concerned. It was also observed that there was a case for damages for the tortious act. The suit was only for the value of the goods illegally seized and retained by the defendants. 21. Learned advocate has also relied upon the decision of the Delhi High Court in case of J.R.Sehgal V. (Supra), wherein it was a case of non-compliance of Section 110 of the Customs Act and on that basis, it was held that as there was non-compliance with the provisions of the Act, action against the department cannot be termed as without jurisdiction. Learned advocate for the plaintiff has also relied upon the decision in case of Union of India V. (Supra), wherein the question was relating to the Sea Customs Act, as there was no liability of payment of any import duty upon the goods. On that basis it was held that jurisdiction of the Civil Court was not barred. Learned advocate for the plaintiff has also relied upon the decision in case of Union of India V. (Supra), wherein the question was relating to the Sea Customs Act, as there was no liability of payment of any import duty upon the goods. On that basis it was held that jurisdiction of the Civil Court was not barred. It was also observed that the Civil Court have jurisdiction to examine cases in which customs authority has not complied with the provisions of the statute or the officers of the Customs has not acted in conformity in the Fundamental Principles of Judicial Procedure or the authority has acted in violation of the Fundamental Principles of Judicial Procedures or he has made an order which is not within his competence or the statute which imposes liability is Unconstitutional, or where the order is alleged to be malafide, a Civil Suit will lye for obtaining appropriate relief in such cases. However, the jurisdiction of the Civil Court to entertain the suit challenging the validity of the imposition of the duty of the customs is excluded. 22. Learned advocate for the plaintiff has also relied upon the decision of the Delhi High Court in case of Shantilal Mehta (Supra), this was also the case wherein premises of the petitioner was searched by the Customs Authority and certain items of ornaments and diamonds were seized. Thereafter, the order was passed releasing certain items of the seized goods. Further, certain goods were ordered to be confiscated. The order of confiscation was challenged. Considering the facts, it was observed that right to restoration of the goods is a vested Civil Right and on expiry of the initial period of six months this right to restoration of the goods vested indefeasibly and absolutely in the petitioner and it cannot be taken away. The defence raised by the department regarding the provisions of Section 123 of the Customs Act, it was held that, that Section does not apply with the facts of the case. 23. The defence raised by the department regarding the provisions of Section 123 of the Customs Act, it was held that, that Section does not apply with the facts of the case. 23. Now, it is pertinent to note that Sub-section 2 of Section 40 of the Act as referred to herein above provides that no proceedings, other than a suit, shall be commenced against the Central Government or any Officer of the Central Government or State Government for anything done or purported to have been done in pursuance of this Act or any rule made there under, without giving the Central Government a month’s previous notice in writing of the intended proceedings and of the cause thereof or after the expiration of three months from the accrual of such cause. Thus, the provision relates regarding the proceedings other than a suit. Further, before filing of such proceedings, prior notice needs to be issued. There is no restrictions of filing of a suit for damages and where prior notice is issued. Now, admittedly, in the present case, the plaintiff has already issued prior notice to the Government for his intended action of filing suit for damages and the plaintiff has filed a suit after service of notice. The suit is also for damages. Therefore, considering the facts of the present case, the suit is maintainable even under Section 40(2) of the Act. Therefore, the Trial Court has not committed any error of facts and law in holding that the suit is maintainable. Hence I have decided point no.(ii) accordingly. Point No. (iii & iv) 24. Since the evidence on record pertaining to both these issues are inter connected, to avoid repetition of the same, both are discussed together. 25. Now the entire case of the plaintiff is based upon the facts that the defendants have seized the goods and it was kept in the plaintiff’s warehouse and he was not permitted to get it back though repeatedly requested. It is also case of the plaintiff that in the month of October 1979, there was fire broke out in his warehouse and due to that certain bags of tobacco burnt and thereafter due to rainy water, other bags were also spoiled and for that purpose, the defendants are liable for the damages and interest thereof. 26. It is also case of the plaintiff that in the month of October 1979, there was fire broke out in his warehouse and due to that certain bags of tobacco burnt and thereafter due to rainy water, other bags were also spoiled and for that purpose, the defendants are liable for the damages and interest thereof. 26. Now, on perusal of the oral and documentary evidence, it transpires that the plaintiff Somabhai in his oral evidence at exhibit 95 has narrated the factum of seizure of tobacco in question, in his absence and in absence of his authorized agent. He has also stated that after seizure of the goods, the goods were burnt in fire within 8 to 10 days. He has also stated that since he came to know about the goods lost in fire, he immediately came back and thereafter, panchnama was prepared by the officers of the Excise Department. He has also stated that 1/3 goods were burnt and he has issued notice to the defendants for handing over the remaining goods to him but the defendants did not reply to it. He has also stated that in the year 1984, he has acquired the goods and during that period the entire tobacco was spoiled. He has also produced the copies of the notice as well as the receipt thereof by the defendant. 26.1. During his cross-examination, he has stated that he had no knowledge regarding the checking of his warehouse on 21.02.1979. According to him, when he went to Raipur(M.P.) prior to that date, there were 13,500 bags in stock. According to him, prior to 5 to 6 days of 21.02.1979, he went to Raipur, M.P. The actual stock in the warehouse was as per the detail mentioned in the register. He has denied that there were deficit of 3,701 bags in the stock. He has admitted that as the tobacco bags were seized by the officers of the Excise Department, however, has denied the statement that it was handed over to him in his custody for proper maintenance. He has shown his ignorance as to whether the panchnama was prepared in presence of his son Mahendrabhai. He has denied that he and his son has given statement before the officers of the Central Excise that there were deficit of 3,701 bags from the stock register. He has shown his ignorance as to whether the panchnama was prepared in presence of his son Mahendrabhai. He has denied that he and his son has given statement before the officers of the Central Excise that there were deficit of 3,701 bags from the stock register. He has admitted that he has no knowledge as to after the fire broke out, the officer of the Central Excise had prepared panchnama. However, he has admitted that 4,100 bags were found to be in good condition and to that effect panchnama was prepared. He has stated that there is a mention regarding the condition of the tobacco due to fire. He has admitted that there is mention in the panchnama that due to internal reasons, fire broke out. 26.2. He has admitted to the facts as to the proceedings of appeal as well as revision before the appellate authority. According to him, prior to the receipt of notice dated 29.09.1979, fire was broke out in his warehouse. He has shown his inability to remember as to on which date and in which month fire broke out, however, has denied that the fire has broke out after the service of notice dated 29.09.1979. He has denied the suggestions that after such panchnama, the goods were handed over to him. He has denied the suggestions that after the goods kept in his warehouse, it was his responsibility to maintain it properly. 27. The plaintiff’s witness Mahendrabhai Somabhai Patel who is the son of the plaintiff, in his deposition at exhibit-127 has stated that on 21.02.1979 his father was at Raipur (M.P.) He has stated that on that day, officers of the Central Excise Department have checked the warehouse for 5 to 6 hours and thereafter they have obtained signatures of two panchas. He has also stated that signatures of one Bhikhabhai Patel and Arvindbhai Patel were obtained whereas his signature was not obtained. He has also stated that thereafter, he was called at Anand Office and his signature was obtained in papers of which some papers were blank and some were having writing in them. He has stated that when the warehouse was checked on the same day there was checking made on residential premises also. He has also stated that thereafter, he was called at Anand Office and his signature was obtained in papers of which some papers were blank and some were having writing in them. He has stated that when the warehouse was checked on the same day there was checking made on residential premises also. He has stated that the officers of Excise Department have told him that there is a shortage of 3,701 bags but they could not find any evidence and that they have seized the remaining bags for the purpose of recovery of duty. He has also stated that no verification was carried out for the shortage of bags in his presence. He has also stated that thereafter, after 8 to 9 months, tobacco were burnt due to fire and fire brigade was called and water was sprinkled there. He has also stated that thereafter, after 3 to 4 days there was further fire and fire brigade was called. He has stated that due to sprinkling of water all the tobacco was damaged. He has also stated that as there was no ventilation for air circulation, the fire has broken out. He has stated that the officers of the Excise Department made heap of the tobacco and therefore there was no air circulation. He has deposed that the Police has prepared panchnama of the fire and recorded statement of the various witnesses. 27.1.During his cross-examination, he has admitted that there is license of tobacco in his favour and his statement was recorded by the Superintendent of Excise Department on 21.02.1979 and at the time of checking he was present. He has also admitted that the officers of the Excise Department has told him that checking of the warehouse is to be done and at that time Chhaganbhai was also with him. He has admitted that stock verification was being conducted by the officers of the Excise Department and two panchas namely Bhikhabhai and Arvindbhai were present. He has submitted that after the closure of the proceedings of panchnama his signature as well as signatures of panchas were obtained. He has also admitted that after the checking of the stocks, the same were kept in his godown. He has denied that there was no negligence on the part of Excise Department for the burning of the tobacco but it was his own negligence. He has also admitted that after the checking of the stocks, the same were kept in his godown. He has denied that there was no negligence on the part of Excise Department for the burning of the tobacco but it was his own negligence. 27.2.Thus from his evidence it is clear that officers of the Excise Department has carried out checking in his presence and at that time, Chhaganbhai as well as two panchas were present. Not only that, it also reveals that after checking the stocks were kept as it was in the godown. It also reveals from his evidence that his statement was recorded by the Superintendent, Excise Department at Anand. 28. On perusal of the evidence of panch witness Arvindbhai Patel at Exhibit 147, it appears that he has admitted his signature on the panchnama but he has denied the factum of the preparation of the panchnama in his presence by the officers of the Excise Department. 29. On perusal of evidence of Mahendrakumar Popatbhai Bhavsar at exhibit 154, it reveals that he is panch witness of panchnama prepared by the police in respect of fire broke out in the warehouse of the plaintiff. According to his evidence, he is also doing business of tobacco and they are keeping tobacco bags in a place where there is air and light and they used to keep stock card in which the particulars regarding the number of bags, weight as well as lot number are mentioned. He has stated that if the tobacco is not properly stored and there is no ventilation then there is likelihood of fire being broke out. He has stated that he was called by the Police in the warehouse of Somabhai and in respect of preparation of the panchnama for the alleged fire. In his evidence copy of panchnama has been produced at exhibit 155. From his evidence which included the cross-examination, it appears that he has admitted that the goods in the warehouse is of the ownership of the owner of the warehouse and if there is any damage then it is the responsibility of the owner thereof. He has also stated that there should be a proper ventilation facility in the godown. He has stated that he has not went into the warehouse nor he have inquired regarding the ventilation in the said warehouse. He has also stated that there should be a proper ventilation facility in the godown. He has stated that he has not went into the warehouse nor he have inquired regarding the ventilation in the said warehouse. He has stated that after reading the panchnama he has put up the signature. Thus from his evidence it is clear that fire was broke out in the godown of the plaintiff. On perusal of the facts in the panchnama at exhibit 155 it reveals that due to heat, accidental fire broke out. 30. On the perusal of deposition of witness Ratnaji Vasram Makwana at exhibit- 158, it transpires that he is a labourer and according to his version, he is engaged in arranging the goods in the warehouse in a square manner. He has also stated that they are placing bags in a manner that there is a line of 5x4 in a shape of square and around that bags, open place is being kept. He has stated that in one square they are not arranging more than 500 bags. He has also stated that open lands are being kept on all the four corners for the purpose of air circulation. He has also stated that from that open land, it is easy to calculate the bags. He has also stated that the boards are being affixed on wall in godown showing the details of tobacco, which includes the brand of tobacco, name of the village, number of bags, weight of the bags, etc. He has stated that from this board, as these facts could be known. He has stated that there are more than 25 godowns in the vicinity and Excise Inspectors are visiting them. According to him, on the date of incident of fire, he found smoke coming from the godown of the plaintiff and told Janakbhai. He has stated that Janakbhai told his brother and thereafter, four to five fire brigade vehicles came there and they have sprinkled the water and after four to five hours, the fire extinguished. He has stated that when he saw the heap of the material in the warehouse and there was no arrangement of bags formed in the square manner. He has stated that due to sprinkling of the water, tobacco may be deteriorated. He has stated that when he saw the heap of the material in the warehouse and there was no arrangement of bags formed in the square manner. He has stated that due to sprinkling of the water, tobacco may be deteriorated. He has also stated that, in absence of light and air due to internal pressure, natural fire broke out in tobacco. In his corss-examination he has stated that when the fire broke out, at that time, he was serving in Gnyan Yagna Tobacco Company. He has admitted that when the fire broke out, Janakbhai and his watchman were there, however, he has voluntarily stated that both were sleeping. He has stated that whenever, there is checking by the Officers of the Excise Department, they are weighing by sample testing and thereafter, they will arrange the bags as it was prior to checking. He has admitted that he has only seen the smoke and he did not know that why there was fire. 31. On perusal of the evidence of one Shantilal Umedbhai Patel at exhibit-159, it appears that he, also dealt with in the business of tobacco and earlier in his warehouse, fire was broke out and he got the damages from the insurance company. He has mentioned the procedure regarding the registration of mentioning material in the register kept by the tobacco businessmen in the warehouse and the preparation of the registers and the manner in which the bags are being kept in the warehouse. He has also stated that the bags are being kept in such a manner that there is sufficient place available from all the corners so that no natural fire is broke out. He has stated that if no such place is kept open, then, there is possibility of natural fire. He has also stated that sometimes, if there is tobacco having moisture, then also fire is broke automatically. He has also stated that if there is very much height of the bags and there is no place for air circulation in that case also, due to weight there is possibility of fire being broken out. 31.1. Regarding the fire broken out in his warehouse in the year 1987 he has stated that as there was some goods having moisture and there was a height of the bags, fire broke out and he has received compensation from the insurance company. 31.1. Regarding the fire broken out in his warehouse in the year 1987 he has stated that as there was some goods having moisture and there was a height of the bags, fire broke out and he has received compensation from the insurance company. Further he has also admitted that whatever goods arrived at their warehouse, are being kept in square shape and within a week they have to inform officer of the Excise Department and officers of the Excise Department can check it. He has submitted that at the time of checking, the Inspector used to take out 2 to 5 bags from the same and thereafter it is being kept as it is. 32. Witness Muljibhai Kachrabhai Mangora at exhibit 161 has stated that at the relevant time he was working as labourer with the plaintiff Somabhai and he used to keep heap of 10 as well as 20 bags and height of that heaps would be 10 feet. He has also stated that on that heaps of bags they used to attach papers and they were keeping the bags in such a manner that there would be proper space for air circulation. He has submitted that there were four workers in the warehouse of the plaintiff and usually they were keeping 10 to 12 bags. He has also stated that initially there was a checking in the warehouse of the plaintiff and thereafter Somabhai left for Raipur M.P. He has stated that when the plaintiff went out of city for 5 to 6 days, five to six officers from the Excise Department came there and they directed him to open the godown and therefore he told Mahendrabhai. According to him, Mahendrabhai gave the keys and the officers of the Excise Department told him to bring labourers and therefore he went for bringing labourers. He has stated that at 11 o’clock he brought 6 to 8 labourers and Excise Officers have told them to bring bags from different heaps and he got the same from the labourers and thereafter the officers have weighed it. According to him, about 400 to 500 bags were weighed. He has stated that while bringing out the bags from the heaps, other bags were not touched and thereafter being weighing of the bags were kept there and according to him, they were not arranged properly. According to him, about 400 to 500 bags were weighed. He has stated that while bringing out the bags from the heaps, other bags were not touched and thereafter being weighing of the bags were kept there and according to him, they were not arranged properly. During his cross-examination he has stated that when the officers of the Excise Department came, he was alone and thereafter Mahendrabhai and Chhaganbhai were called. He has also stated that officers have checked the bags and weighted it and they were making notes thereof. He has stated that the bags from all the lots were checked and weighted. He has admitted that the officers of the Excise Department had told him to arrange the bags as it was there prior to checking, but, as he and labourers have no time they have not arranged so. 32.1. Thus, from his evidence it transpires that the factum of checking of the warehouse and bags in presence of Mahendrabhai and Chhaganbhai with these witnesses and there were 6 to 8 labourers engaged in it is proved. It also appears from his evidence that the bags from all the lots were checked and weight was done and the officers of the Department has instructed to arrange the bags in the same manner as it was prior to the checking, but, the same was not so arranged. 33. On the perusal of the oral evidence of Chandrakant Himmatlal Jardos -defendant no.1 at exhibit 168, it appears that he has narrated factum of checking of the warehouse of the plaintiff in presence of Mahendrabhai and Chhaganbhai, two panchas and with other officers of the Department. He has also narrated the factum of shortage of bags of 3,701 from the total bags of 13,522 as has been shown in the stock register. He has stated that they have not detained or seized any of the goods and they have handed over it back to the party concerned. He has also stated that after the entire panchnama was prepared, at that time of checking, Somabhai was not present. He has also stated that registers were checked and signatures of panchas were obtained. 33.1. During his extensive cross-examination, it was tried to be shown that the panchnama was not prepared in presence of the panchas and the entire checking was not proper one. He has also stated that registers were checked and signatures of panchas were obtained. 33.1. During his extensive cross-examination, it was tried to be shown that the panchnama was not prepared in presence of the panchas and the entire checking was not proper one. But, nothing helpful to the plaintiff comes out from his evidence. Of course, he had admitted that during the checking they have weighted randomly 10% of the bags and on that basis they have prepared the shortage of the stock. He has denied the suggestion that the panchnama was not prepared in presence of the panchas and there was no any shortage of 3,701 bags as alleged. He has admitted that his deposition was recorded in the Criminal Case no.1766 of 1982. He has admitted that if there is detection of huge evasion of excise duty, then, they will get price. He had admitted that the labourers were bringing bags from the lot and on the basis of the information made on the bags, regarding the lot number and weight, the officers were verifying it and after verifying the number of bags was weighted on the scale. 33.2. Thus, from his evidence it is brought out that the bags were weighted at the place and Somabhai was not present. 34. The defendant no.2 Narendrabhai Ishwarlal Mehta, who was officer with the other officers visiting the warehouse of the plaintiff, in his deposition at exhibit 178 has reiterated factum of checking of the tobacco and having found shortage of 3,701 bags and of carrying out due procedure thereof, preparation of panchnama and etc. He has also stated that at the time of checking Mahendrabhai as well as Chhaganbhai were present. That the Mahendrabhai has called two panchas. According to him, he remained there for 3 to 4 hours and other officers remained thereafter. During his cross-examination, he has admitted that he was examined as witness in the Criminal Case. A copy of deposition in the Criminal matter has been produced at exhibit 179. He has admitted that while checking, the Excise Officers have made checking of the stock randomly and at the time of stock checking, there is always stock verification. He has admitted that if owner of the warehouse appoints anybody to act for himself, he has to inform the officers. He has admitted that while checking, the Excise Officers have made checking of the stock randomly and at the time of stock checking, there is always stock verification. He has admitted that if owner of the warehouse appoints anybody to act for himself, he has to inform the officers. He has admitted that when he was present, there was no exact figure of shortage of the bags. He has also stated that in his presence panchas have not read the panchnama and panchas as well as Mahendrabhai have not signed it in his presence. He has also admitted that there are varieties of the tobaccos and there is averment in the exhibit 150 regarding the nature of the tobacco and the number of bags. He has admitted that he cannot say as to who has got it written. He has shown his ignorance as to whether there was fire broke out in the warehouse of the plaintiff on 21.10.1979 and 23.10.1979. He has denied the suggestion that he did not permit the plaintiff from selling the tobacco and has also denied the suggestion that for recovery of Excise duty on the shortage of the bags of 3,701, the remaining tobacco were not permitted to be sold. He has admitted that he has not inquired regarding the prices of the tobacco. He has denied the suggestion that the fire broke out due to natural cause. He has stated that according to the record, he says that fire was not naturally broke out. 35. The defendant’s witness namely Chandramohan Amratlal Mahera, who was also a member of checking party of the Excise Department, has in his deposition at exhibit 203, has categorically supported the case of the defendants regarding the checking of the warehouse of the plaintiff and preparation of the panchnama as well as having shortage of 3,701 bags on the stocks. He has stated that during the checking, the plaintiff was not present, but his son was present through out. He has stated that he has not signed the panchnama nor he has read it. He has admitted that the entire warehouse was full of bags and bags were weighted in the plaintiffs warehouse. He has denied the suggestion that they have prepared the paper panchnama and they have filed false case for getting promotion. He has also denied the suggestion that they have not acted bonafidely. He has admitted that the entire warehouse was full of bags and bags were weighted in the plaintiffs warehouse. He has denied the suggestion that they have prepared the paper panchnama and they have filed false case for getting promotion. He has also denied the suggestion that they have not acted bonafidely. He has admitted that before filing of the suit, notice was issued to the department. He has admitted that in every year there was a stock checking in the warehouse. He has shown his ignorance as to whether there was a fire in the warehouse. He has also stated that he cannot say as to whether due to sprinkling of the water, the entire tobacco was destroyed. He has admitted that the suit has been filed for the recovery of the tobacco bags and has admitted that his deposition has been recorded in the Criminal Case. The copy of the same has been produced at exhibit 204. 36. In view of the aforesaid oral evidence, it clearly appears that there is no dispute regarding the checking of the warehouse of the plaintiff by the officers of the Excise Department. It also reveals from the evidence that at the time of checking plaintiff Somabhai was not present. It is also established that at the time of checking Mahendrabhai and Chhaganbhai were also present. Not only that, but as per evidence of the labourer Muljibhai Kachrabhai Mangora that he himself has called other labourers and the officers have instructed them to bring bags from the different lots of bags and the weight was carried out of almost 400 to 500 bags. He has also stated that the officers have returned back the bags and have instructed them to arrange it as it was, prior to checking, however, as there was no time available for them, they did not do so. It also reveals from his evidence that the necessary writing was also being done as and when there was weighting of the bags. Thus the factum of preference of the panchnama and weighting of the bags and handing over the bags to the plaintiff side is clearly established. 37. It also reveals from his evidence that the necessary writing was also being done as and when there was weighting of the bags. Thus the factum of preference of the panchnama and weighting of the bags and handing over the bags to the plaintiff side is clearly established. 37. Now, so far as the factum of breaking out of fire in the warehouse is concerned, there is panchnama prepared by the Police as well as the evidence of plaintiff side which clearly establishes that there was fire broke out in the warehouse. As per the Police panchnama fire broke out due to natural heat and the evidence of Ratnaji Vasram Makwana at exhibit 158, at the time of fire breaking out, one Janakbhai and other watchman were present. However according to this witness, both were slept. Moreover, it also reveals from the panchnama at exhibit 155, prepared by the Police that due to heat, there was accidental fire in the warehouse. At this stage, it is pertinent to note that even as per the plaintiff’s version in pleading that there was a natural fire occurred in the warehouse, due to which tobacco came to be destroyed. Thus, there is no iota of evidence to suggest that for breaking out of fire, anybody from the defendant side was responsible. Of course, the plaintiff has filed his suit on the ground that the officers of the Excise Department has seized the tobacco and they did not permit him to utilize the same even after the fire, he has sustained damages. However, at this stage, it is pertinent to note that even from the evidence of the plaintiff, there is no evidence regarding the actual loss of damages. 38. Further, it reveals from the evidence that the tobacco was lying in the warehouse of the plaintiff. As per the entire oral evidence of the plaintiff witnesses, all the bags of tobacco were kept in the same warehouse. Further it reveals that as per the oral evidence of the plaintiff side, fire was broken out as there was no proper ventilation available and due to heat, fire broke out. Since the tobacco was lying in the warehouse of the plaintiff, it was for the plaintiff to see to it that there is proper ventilation available in it and no untoward incident of fire took place. Since the tobacco was lying in the warehouse of the plaintiff, it was for the plaintiff to see to it that there is proper ventilation available in it and no untoward incident of fire took place. The entire case of the plaintiff is based upon the allegations that due to negligence on the part of officers of the Excise Department, not permitting him to sold out tobacco, he has suffered damages due to fire occurred in his warehouse. But the version of the plaintiff cannot be said to be established in absence of proper evidence to suggest that due to negligence on the part of the officers of the defendants, fire broke out and that they have instructed him to keep the bags in such a manner that no ventilation is available and there is no passage of air in the warehouse. It is also pertinent to note that the checking was made in the February 1979, whereas the fire has broke out in the month of October 1979. Further, as per the Police panchnama at exhibit 155 and the evidence of the plaintiff witness the tobacco were kept in heap shape. Now, it is not the case of the plaintiff that at the time of checking the bags were made empty and tobacco was converted into heap. Thus, the version of the plaintiff is also not probable one. 39. It is pertinent to note that the plaintiff has not produced any documentary evidence regarding the valuation of the goods. He has merely relied upon the copy of stock checking by the defendant, which he has produced along with the documentary evidence list at exhibit 109. However, on the perusal of the deposition of the plaintiff, no such documents have been exhibited in the evidence. It was incumbent on the part of the plaintiff to lead evidence in respect of valuation of the goods in question, however, no such evidence has been produced. Now, the Trial Court has relied upon the evidence produced before the Criminal Court wherein, the plaintiff has been acquitted from the criminal charge and no appeal has been filed, but the decision of the Criminal Court acquitting the plaintiff from the criminal charges cannot be treated as a proof of valuation of the goods. Now, the Trial Court has relied upon the evidence produced before the Criminal Court wherein, the plaintiff has been acquitted from the criminal charge and no appeal has been filed, but the decision of the Criminal Court acquitting the plaintiff from the criminal charges cannot be treated as a proof of valuation of the goods. Even otherwise, the observations and the judgment of the Criminal Court is decided on the principles of proof beyond reasonable doubt and there is no questions of any valuation of the goods in a criminal trial, therefore, the judgment of the Criminal Court acquitting the plaintiff from the criminal charge cannot be said to establish the facts that valuation of the goods is proved by the plaintiff. 39.1. Further, even if the other side i.e. defendant has not produced any evidence against the valuation of the plaintiff does not mean that the plaintiff is absolved from his liability to prove the actual damages and valuation of the goods in question at the time of fire. It is well settled that the plaintiff must succeed or fail on the evidence he produced in the matter and if he fails to do so, he must feel to get the relief sought for in the suit irrespective of the facts that the other side has not lead any contrary evidence. 39.2.Even if the version of the learned advocate Mr.Parekh for the appellant regarding the documents produced in the Criminal Case is accepted for the sake of argument, then also it reveals from those material which is at exhibit 150, 151 and 152. It reveals that these are the stock declaration and copy of panchnama wherein only weight has been shown regarding the various quantity and quality of the tobacco. There is no any iota of material regarding the price of that goods. At this juncture, it is pertinent to note that, at one stage, the plaintiff submits that there was no panchnama prepared by the officers at the place of checking and at the same time, he is relying upon the material which has been part of that panchnama, which has been filed before the Criminal Court to substantiate his claim of damages. Thus, the plaintiff is blowing hot and cold at a time. Thus, the plaintiff is blowing hot and cold at a time. Further, the stock declaration and particulars regarding various quantity and quality of the tobacco that was found on 21.02.1979 at the time of checking, was very well in the warehouse on the date of fire is a question. There is no evidence led by the plaintiff that on the date of fire, what was the actual stock in his warehouse, there is a time gap of almost eight months between the checking by the Officer of the Excise Department and the happening of the accidental fire. The plaintiff ought to have produced appropriate evidence to show that on the date of fire actually how much stock of tobacco was there in his warehouse. It is not the case of the plaintiff that during this eight months period, he has never done any business of tobacco and there was no any purchase and sale of tobacco. Therefore, it was incumbent on the part of the plaintiff to lead evidence regarding the actual loss of damages in the fire. However, on perusal of the entire oral and documentary evidence, there is no such evidence produced by the plaintiff in this regard and in absence of such evidence, no decree for damages could be passed on the assumption and presumption as has been made by the Trial Court. 40. Now, considering the impugned judgment and decree of the Trial Court, it clearly transpires that the Trial Court has not considered all these factual and legal aspects and has merely swayed away with the passing of the acquittal judgment in favour of the plaintiff and on the basis that the defendant side has not produced any evidence regarding the valuation of the goods and on the ground that the suit notice is time barred and illegal. The impugned judgment and decree of the Trial Court, for the reasons given above, are not sustainable in the eyes of the law. 41. Further, considering the impugned judgment of the Trial Court, it appears that the Trial Court has even not bothered to produce the oral evidence of the witnesses and has simply decided the case on the basis of some statement from the evidence. 41. Further, considering the impugned judgment of the Trial Court, it appears that the Trial Court has even not bothered to produce the oral evidence of the witnesses and has simply decided the case on the basis of some statement from the evidence. The Trial Court has failed to follow the principles of evidence that while appreciating the oral evidence of any witness, the version of chief examination, cross-examination as well as re-examination needs to be appreciated. However, in this case, the learned Trial Court has not even referred to the entire evidence of any witness. Due to that, the Trial Court has wrongly come to the conclusion that the defendants are liable for whatever damage is caused to the plaintiff due to natural fire broke out in his warehouse. 42. Therefore, under the facts and circumstances of the case and reappreciation of the entire evidence on record, I have answered point nos.(iii) and (iv) accordingly. Point No.(V):- 43. In view of the aforesaid discussions, the present appeal is liable to be allowed and the impugned judgment and decree of the Trial Court needs to be set aside. Accordingly, I pass the following final order:- : ORDER : The present Appeal is hereby allowed. The impugned judgment and decree dated 31.12.1997 passed by the learned Civil Judge, Senior Division, Anand in Special Civil Suit No.67 of 1989 (Old Civil Suit No.68 of 1982) are hereby quashed and set aside. The Special Civil Suit filed by the plaintiff stands dismissed. After the expiry of the appeal period, the amount deposited by the Government before the Trial Court be returned back to the Government. The parties are directed to bear the respective costs of the suit as well as this Appeal. Appropriate decree be drawn in this appeal. Along with the copy of this judgment and decree, R & P to be sent back to the Trial Court. In view of the order passed in the main matter, civil application does not survive and the same is disposed of accordingly.