C.M.LODHA, C.J. - (1.) THIS is a defendant's first appeal from the judgment and decree dated February 29, 1968, passed by the District Judge Pair, whereby the learned District Judge decreed the plaintiff -respondent's suit for the recovery of Rs. 2,14,520/ -, on account of arrears of excise duty for the period commencing from April 1, 1949 to March 31, 1950.
(2.) THE defendant Maharaja Shree Umaid Mills Ltd., Pali, incorporated under the Marwar Companies Act, 1923 has its registered office at Pali, and is running a cloth and yarn Mill at Pali, since 1941. The plaintiff's case is that under the Rajasthan Excise Duties Ordinance, 1949 (XXV of 1949) (which will hereinafter be referred to as 'the Ordinance') the defendant was liable to pay to the State of Rajasthan excise duty on the stock of manufactured cloth lying in the Mills on April 1, 1949 and also on the cloth manufactured during the period from April 1, 1949 to March 31,1950, at the rates set forth in the Schedule to the Ordinance. It is averred that the total amount, which became payable on account of the excise duty under the Ordinance for the said period, works out to Rs. 2,14,520/ - but nothing was paid by the defendant to the State of Rajasthan. The plaintiff goes on to state that under Articles 278 and 295 of the Constitution of India, the President of India entered into an agreement with the then Rajpramukh of Rajasthan on February 25, 1950, whereby the patties agreed to accept the recommendations of the Indian States Finance Enquiry Committee 1948 -49, contained in Part I of its report read with Chapters I, II, III of Part II of its report, in so far as they applied to the State of Rajasthan together with the recommendations contained in Chapter V of Part II of the said report. It is alleged that by virtue of the said agreement, the Union of India became entitled to recover the excise duty which was payable by the defendant to the State of Rajasthan as from April 1, 1949, to the date, the Central Excise and Salt Act, 1944 (hereinafter referred to as 'the Act of 1944') was extended to the State of Rajasthan by Section 11 of the Finance Act of 1950, i.e., before April 1, 1950. The plaintiff averred that by a notice dated February 7, 1951, the Superintendent, Central Excise, Jodhpur, called upon the defendant to pay the sum of Rs. 2,14,520/ - within a period of thirty days from the date of receipt of the notice and also issiud certificates of recovery under Section 11 of the Act of 1944 and Section 10 of the Ordinance of 1949. It is further alleged that the Superintendent, Central Excise, Jodhpur, also made an application under Section 257 of the Rajasthan Land Revenue Act, 1956, to the Collector, Pali for effecting recovery of the said sum of Rs. 2,14,520/ - and on the proceedings being resisted by the defendant, the Additional Collector, Pali, by his order dated September 19, 1964, held that the certificates could not be executed through the revenue agency and returned the same unexecuted. On the aforesaid facts, the plaintiff prayed for a decree for Rs. 2,14,520/ -, against the defendant with interest at the rate of 6% per annum from the date of the suit upto the date of the decree and from the date of the decree to the date of payment. The suit was resisted by the defendant appellant on a number of grounds. It pleaded that nothing becomes payable by the defendant to the State of Rajasthan under the Ordinance of 1949. It also denied its liability to pay the amount of the excise duty claimed by the plaintiff. In the additional pleas, the defendant pleaded that no rules had been framed under the Ordinance at all and the Jaipur Excise Duties Rules of 1945, which had been notified to be applicable under the Ordinance, were never published. It was also pleaded that nothing was done by the officers of the Rajasthan Government for creating liability against the defendant for any amount of the excise duty. It was pleaded in the alternative that there was no provision in the Jaipur Excise Duties Rules for the purpose of levying, collecting or recovering duty on the goods already cleared from the premises of the Mills. The defendant questioned the validity of the notice dated February 7, 1951, issued by the Superintendent, Central Excise, Jodhpur, calling upon the defendant to pay the amount on the ground that the Superintendent had no authority to issue a notice of demand as he was not an officer under the Ordinance under which the duty was sought to be levied and collected. The defendant also challenged the jurisdiction of the civil court to try and decide the suit. Bar of limitation was also pleaded. Besides the abovementioned objections, the defendant pleaded that the plaint was not properly signed, verified and presented.
(3.) THE plaintiff filed an additional written statement on January 7, 1976, and on the pleadings of the parties, the trial Court framed the following issues on March 11, 1967: - (1) Is the plaintiff entitied to duty on 13455678 yards instead of on 1340589 yards as admitted by the defendant to -day and also on 273600 yards instead of on 228000 yards, as admitted by the defendant to -day ? (2) Was excise duty payable to the State of Rajasthan ? (3) Is the plaintiff entitled to recover that excise duty for reasons given in para 4 of the plaint ? (4) Is the suit not triable by a civil court for reasons given in para 14 of the written statement ? (5) Is the suit barred by time ? (6) (A) Was the person signing and verifying the plaint authorised to do so and if so, properly ? (B) If not, to what effect ? (7) Was the Rajasthan Excise Duties Ordinance, 1949, levying duty on cloth maufactured and cleared from the Mills prior to 19 -9 -49, ultra vires of the Constitution ? (8) (A) Is the presentation of the suit invalid for reasons given in para 19 of the written statement ? (B) If so, has the defect been rectified on 19 -2 67 ? (9) Is the plaintiff estopped from making the claim for reasons given in para 20 of the written statement ? (10) Is the suit not maintainable for reasons given in paras 10 to 13 of the written statement ? '11) (A) Was any assessment of the excise duty made and if so, by a competent authority ? (B) If not, is the amount not recoverable as explained in para 21 of the written statement ? (12) To what relief, if any, the plaintiff is entitled ? ;