TaxTMI 
TaxTMI 
2013 (2) TMI 110
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....is Warehouse as "Tripureswari Bonded Warehouse" situated at Jagannathbari road, Krishnanagar. He was initially granted a license by the defendant No.2 for 1(one) month 15(fifteen) days w.e.f. 14.02.1991 to 31.03.1991. His license was time to time renewed upto to 31st March,1995. Before expiry of the period of license, the plaintiff applied for renewal of his license for the year 1995-96 but the defendants rejected the prayer by Memo dated 31.03.1995. Challenging such renewal, plaintiff filed a Writ case vide Civil Rule No.487 of 1995 before this court but it was withdrawn on 25.06.1996 on technical ground. 3.1 The defendant No.2 by a Memo dated 10.04.1995 asked the plaintiff to sell the stocks of IMFL products and Beer which were lying unsold in his stock on 31st March,1995 to other license holder Warehouses. On receipt of that letter, the plaintiff by his letter dated 24.05.1995 informed defendant No.2 that no license holder Warehouses were ready to purchase his stock and therefore, requested defendant No.2 for issuing necessary permission for selling the unsold stock to the retailers. On receipt of that letter dated 24.05.1995 the defendant No.3 informed the plaintiff vide Mem....
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....key was with the plaintiff and the other was with the Inspector of Excise of the defendants. The plaintiff by his letter dated 23.12.1996 informed defendant No.2 narrating all the facts and difficulties he was facing and requested the defendant No.2 as well as the Commissioner of Excise by sending a copy of the same, to allow him to dispose of the stocks as per Clause 153(1) and 153(2) of the Excise Rules within 7 days and otherwise, he will be compelled to take shelter of law. 3.4 Since all approach of the plaintiff failed to dispose the unsold stock of IMFL and Beer and it was lying in his godown under double lock, he again filed a writ petition (Civil Rule No.47 of 97) before this court praying for a direction upon the defendants for disposal of the stocks and this court by order dated 05.05.1997 directed to dispose the stock to the existing licensees of the Bonded Warehouses and if the same is not acceptable to them, the same should be disposed of by the defendants according to Rules. To comply with the order of this court, the defendant No.3 deputed one Sub-inspector of Excise vide letter dated 02.05.1997 to verify and assess the unsold stocks. Accordingly, a list of unsold....
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.... IMFL and Beer the plaintiff suffered a loss amounting to Rs.3,12,604/- and the amount is based on the sale price of the goods destructed as per the rates fixed by the defendants. The plaintiff was bound to unnecessarily keep the stock from 01.04.1995 to 11.11.1997 i.e. from the date of expiry of license till the date of disposal of entire stock on 11.11.1997 @ Rs.10,000/- per month and the plaintiff therefore prayed that he is entitled to get Rs.3,15,000/- towards rent of the godown. The plaintiff further stated that for destruction of the stock it had to be shifted from the godown and for loading, unloading and carrying cost, the plaintiff claimed an amount of Rs.3000/-. Plaintiff also claimed interest @ 15% per annum over Rs.3,12,604/-(cost of destructed IMFL and Beer) and on that account claimed an amount of Rs.1,68,023/-. In total the plaintiff claimed an amount of Rs.7,98,627/- and prayed for decree. The plaintiff enclosed the detail calculations in the schedule of the plaint. The plaintiff issued notice under Section 80(1) of CPC but received no response. He, therefore, prayed for the decree along with the cost of the suit. 4. Defendants contested the suit by filing wr....
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....rom the defendants as Godown rent? D. Is the plaintiff entitled to get interest, as prayed for, in this suit, if so, what shall be the rate of interest? E. Is the plaintiff entitled to get decree, as prayed for? F. What other relief/reliefs the parties are entitled in this suit? 6. In course of trial plaintiff examined himself as P.W.1 and the plaintiff also proved 32 items of documents and those have been marked as Exhibits. Learned trial Judge listed those exhibited documents in Para 5 of the judgment and for brevity, I do not like to reproduce here the list of those documents. On behalf of the defendants, one D.W. namely Sri Asim Saha, a Senior Inspector of Excise has been examined. 7. Learned trial Judge decided all the issues against the plaintiff and dismissed the suit. Hence, this appeal. 8. It is contended by learned Sr. counsel, Mr. Bhowmik that the court below wrongly considered the provisions of Section 92 and 93 of the Tripura Excise Act(herein-after mentioned as Act) and Rule 153 of the Rules and arrived at a wrong and perverse findings. He has contended that the power of the Civil Court cannot be ousted by imposing a bar in respect of any loss ....
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....tocks lying in the godown to the retailers but such prayer was rejected by the defendants. His prayer for extension of license period for the disposal of stock was also refused. The defendant-respondents asked the plaintiff-appellant to dispose the stock as per the provisions prescribed in Rule 153 of the Rules. It is further an undisputed fact that the plaintiff-appellant proposed to dispose the stock to "M/S Tripura Bonded Warehouse", Agartala and requested the defendant-respondents to permit him accordingly and the said "M/S Tripura Bonded Warehouse", Agartala also intimated their willingness to the defendant-respondents on that aspect. The said "M/S Tripura Bonded Warehouse", Agartala had agreed to take the stock on condition that the stock should be kept in the godown of the plaintiff-appellant till the disposal of the stock and that the said Tripura Bonded Warehouse will bear the rent of the godown but the defendant-respondents did not agree to the proposal since a license holder Bonded Warehouse cannot maintain different Godowns at different places and the defendant-respondents asked the plaintiff-appellant to dispose the stock and to shift the same within 10 days on payment....
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....cise and the same can be opened only in presence of both the person. The intoxicants to be sold to the retailers only under permit issued by the Excise authority and without such a permit no intoxicants can be sold to the retailers. The procedure what the authority has prescribed in the provisions of the Act and Rules has well been stated by D.W.1 in his cross examination. For ready reference and appreciation, the statement of D.W.1 in cross examination is reproduced here which reads thus:- "Cross- Before September,2000 nothing was known to me in connection with the subject-matter of the present suit. Now I cannot remember who have signed the written statement and verification thereof. It was a condition of the tender for bonded warehouse that the owners of the existing warehouse, i.e., holder of the permit may participate the tender. The retailer apply for permit for purchasing liquor from the bonded warehouse of their choice and accordingly, Excise Department issue permit to the retailer for purchasing liquor from the Bonded Warehouse of their choice. In that case the Excise Duty of liquor is paid by the retailer at the time of issue of permit. After depositing the Excise D....
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.... who would purchase the intoxicants from the Bonded Warehouses as per the permit issued by the Excise Authority. Law is very clear that the licenses of Bonded Warehouses are distributed by the defendant-respondents and the licenses of retail vendors are also distributed by the defendant-respondents. The defendant-respondents issue permits to the retail vendors and the retail vendors opt for purchasing the intoxicants from the Warehouse of their choice. The provisions of law as prescribed in the Act and Rules is abundantly clear that a license holder Bonded Warehouse owner cannot dispose any quantity of the intoxicants from the Bonded Warehouse to any retail vendors or otherwise unless a permit is issued to a retailer by the defendant-respondents. In the moment the license of the plaintiff-appellant had expired, he was handicapped in respect of sale of unsold stocks and he was supposed to dispose it according to the provisions prescribed by Rules. Rule 153 is relevant here which reads thus:- "153. Sale by one vendor to another vendor.: (1) A person who has been a licensed vendor may, on expiration of his license, with the sanction of the Collector, sell wholesale to another licen....
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....Wirehouses to collect the stock but the Collector failed to discharge his duty. Sub Rule (2) of Rule 153 prescribes that the Collector would pass appropriate order to a new licensee in respect of the stock of a previous license holder but the Collector has failed to do so though there was enough representation on the part of the plaintiff. The trial court, as I find, totally failed to appreciate the factual and legal aspect of the case and arrived at a wrong finding misreading the provisions of Section 92 and 93 of the Act. 13. Let us have a glimpse to section 92 & 93 of the Act, which reads thus-- "92. Bar to certain suit:- No suit shall lie in any civil court against the State Government ,Excise Commissioner, Collector or any Excise Officer for damages for any, act done in good faith or ordered to be done in pursuance of this Act or of any other law for the time being in force relating to the excise revenue. 93. Limitation of suit and prosecutions:- No civil court shall try any suit against the Government or any Excise Officer in respect of anything done, or alleged to have been done, in pursuance of this Act, and, except with the previous sanction of the State Govern....
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.... person who alleged to have suffered damage for action and/or inaction of the State Govt. or the government servant. The principles of exclusion of the jurisdiction of the Civil Courts has been laid down by Hon'ble Apex Court in the case of Dulabhai and Ors V. State of Madhya Pradesh and Anr. Reported in AIR 1969 SC 78 which reads as follows:- (1) Where the statute gives a finality to the orders of the special tribunals the Civil Court's jurisdiction must be held to be excluded if there is adequate remedy to do what the Civil Courts would normally do in a suit. Such provision, however, does not exclude those cases where the provisions of the particular Act have not been complied with or the statutory tribunal has not acted in conformity with the fundamental principles of judicial procedure. (2) Where there is an express bar of the jurisdiction of the court, an examination of the scheme of the particular Act to find the adequacy or the sufficiency of the remedies provided may be relevant but is not decisive to sustain the jurisdiction of the civil court. Where there is no express exclusion the examination of the remedies and the scheme of the particular Act to find out t....
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....reasoning that a civil court cannot under any circumstances entertain a civil suit in respect of proceedings pending before the Registrar, Cooperative Societies. Even where exclusion of jurisdiction of the civil court is statutorily provided, still on availability of requisite grounds the civil court can entertain a civil suit on well-defined parameters settled by the Constitution Bench of the Supreme Court in Dhulabhai v. State of M.P. In any case it is not possible to subscribe to the view that the Registrar of Cooperative Societies could have ignored the order of the civil court as not binding on him in view of the provisions contained in Sections 93(3),93(1)(c) and 60 of the Delhi Cooperative Societies Act. It will be a dangerous proposition to be laid down as one of law that any individual or authority can ignore the order of the civil court by assuming authority upon itself to decide that the order of the civil court is one by coram non judice. The appropriate course in such case is for the person aggrieved first to approach the civil court inviting its attention to the relevant provisions of law and call upon it to adjudicate upon the question of its own jurisdiction and to ....
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....any original suit, application or execution proceeding and no injunction shall be granted by any court or other authority in respect of any action taken or to be taken in pursuance of any power conferred by or under this Act." In the case at hand, the plaintiff-appellant under a license issued by the authority, gathered the stock of IMFL and Beer etc. but because of his license was not renewed and/or that he did not get the license following tender process, and, because of the law that he cannot dispose the stock of his own, definitely the responsibility was on the defendant-respondents to arrange disposal of the stock of the plaintiff-appellant. Rule 153 clearly prescribes the provision for disposal of such stock which the defendant-respondents failed to apply and therefore, a Civil suit for damages and/or loss caused to the plaintiff-appellant surely maintainable against the defendant-respondents and the provisions of Section 92 and 93 cannot be applied as a bar. If Section 92 and 93 is strictly applied irrespective of the factual situation of the case, the plaintiff-appellant will be remediless. The decision of the Court below in respect of Section 92 and 93 of the Act as hel....