C.D.PARESH, J. - (1.) IN this writ petition petitioner has claimed mandamus commanding the respondents not to proceed to sell the properties other than the excisable goods of the petitioner. Further mandamus has been claimed commanding the opposite parties first to sell goods detained by them and there after the other excisable goods still left in the warehouse and only then to proceed against the other properties of the petitioner. The other prayers contained in the writ petition need not be repeated for the reason that I have been addressed by the learned counsel for the petitioner on only two grounds, although various grounds have teen taken in the writ petition.
(2.) THE facts of the case may briefly be stated thus : The petitioner firm held a wholesale dealer licence in tobacco and private Bonded warehouse at Sahawar, District Etah, U.P. The claim of the petitioner is that Sarvasri Prem Chander and Satish Chander are the only partners of the firm and Satish Chander carries out transaction of the firm in the name of the firm. On the 30(h of August, 1965 on some suspicion being aroused about the dealings of the petitioner in regard to the private Bonded warehouse the authorities of the Central Excise Department wanted to inspect the private Bonded warehouse and the record thereof but they could not succeed in getting the record and inspection of the warehouse in the presence of the petitioner or any one of the partners of the petitioner. The authorities of the Excise Department, therefore, inspected the warehouse by breaking open the lock in the presence of the Tahsildar Magistrate on 8th to 1lth of September, 1966. On verification it appears that various irregularities were found out. by the Excise Department as contended in the counter affidavit. In connection with those irregularities as it further appears that certain demands for payment of excise duty were made against the petitioner. Various representations appear to have been made against the demand so made by the Excise Department and ultimately the demand so created was sought to be realised by process of attachment and sale of the immovable properties of the petitioner. The properties sought to be attached and sold are given out in Annexure R. 1 and R. 2 filed along with the writ petition. The learned counsel for the petitioner raised before me only two points -(1) that in view of the provisions as contained in Section 11 of the Central Excises and Salt Act, the Excise Department could not have issued citation to the Collector for realisation of the amount unless they have exhausted other remedy under that Section, and (2) that in respect of the properties mentioned in Annexure R. 1 the Collector was not competent to issue any order for the attachment and sale of the property because the provisions contained in Land Revenue -Act have been deleted by the U.P. Zamindari Abolition and Land Reforms. Act and, therefore, the process available under the U.P. Land Revenue Act could not have been employed for the purposes of sale of the immovable properties mentioned therein. Although various grounds have been taken in the writ petition but I was addressed on these two grounds only and no other ground has been pressed before me. The aforesaid two grounds that have been taken by the learned counsel for the petitioner have no force and under the provisions of the law as stands the grounds have not been made out.
(3.) LEARNED counsel for the petitioner wanted me to interpret Section 11 in a way in which, in my opinion it cannot be interpreted. He stressed that the officer who is empowered to levy duty or empowered to require the payment of any duty or other sum of any kind payable to the Central Government under the Act or the Rules should proceed first by deducting the sum from any amount which is outstanding to the credit of the licensee from the Government or he may recover the sum by attachment and sale of the excisable goods belonging to the licensee. In a case where the two methods be not available and then only the officer could issue a certification and employ other methods of realisation. Section 11 of the Central Excise Act read thus : - 'Recovery of sums due to the Government -In respect of duty and any other sums of any kind payable to the Central Government under any of the provisions of this Act or of the rules made thereunder, the officer empowered by the Central Board of Excise and Customs constituted under the Central Board of Revenue Act, 1963, to levy such duty or requires the payment of such sums may deduct the amount payable from any money owing to the persons from whom such sums may be recoverable or due which may be in his hands or under his disposal or control, or may cover the amount by attachment and sale of excisable goods belonging to such person, he may prepare a certificate signed by him specifying the amount due from the person liable to pay the same and send it to the Collector of the district in which such person resides or conducts his business and the said Collector, on receipt of such certificate, shall proceed to recover from the said person the amount specified therein as if it were an arrears of land revenue' ;