CIVIL APPELLATE JURISDICTION: Civil Appeal No. 13 of 1966.
Appeal from the judgment and order dated January 13, 1964 of the Punjab High Court, Circuit Bench at Delhi in Civil Writ No. 557-D of 1961.
M.P. Vashi, Dalip K. Kapur,, S.V. Tambwekar and A. G. Ramaparkhi, ,for the appellant.
D. Narsaraju, R.M. Mehta and S.P. Nayar, for the respondents. The Judgment of the Court was delivered by
Hegde, J. In this appeal by certificate though. several contentions were raised in the memo of appeal only two of them were pressed at the time of hearing. They are: (1) under the circumstances of the case the confiscation ordered by the Collector, Central Excise is illegal and (2) under any circumstance he could not have confiscated the entire quantity of tobacco used in the mixture.
The appellants are tobacco merchants in Dashrath village near Baroda in Gujarat State. At the relevant time they were holding Central Excise licence in form L-2 and L-5 for the purpose of storing, selling and processing duty paid and non-duty paid tobacco. They had their own duty paid and non-duty paid godowns. In about December 1958 according to their books they possessed the following lots of different varieties of tobacco. variety of tobacco Quantity Rate of duty Veriety of tobacco Quantity Rate of duty
Bmds. Rs. Biri Patti " 251.8 1.20 np per Ib Stems Kandi " 287.20 0.50 Do. Rava " 1326.14 0.50 Do. Stalk Kandi " 57.20 0.06 Do.
On December 13, 1958 the appellants obtained permission from the Local Central Excise authorities to mix the above lots of tobacco. The percentage of different varieties of tobacco when mixed would have been as under:
Rava 68.97 %
Stems Kandi 14.86 %
Biri Patti 13.07 %
Stalk Kandi 3.00%
On December 23, 1958 when the process of mixing was still going on the Superintendent of Central Excise, Preventive Headquarters, Baroda and his party raided the duty paid premises of the appellants. There he seized the entire mixture tobacco weighing Mds. 2004.3 srs. i.e. 1,64,834.50 lbs. of tobacco. According to that Superintendent when experiments were conducted he found in the above mixture percentage of different varieties as under:
Rava 44 %
Biri Patti 51.50 %
Stems Kandi 3 .74 % From this he concluded that ’considerable quantity of nonduty paid Biri Patti tobacco had been utilised in the manufacture of the mixture. Hence notice was issued to the appellants on January 6, 1959 to show cause why action should not be taken against them under rule 40 of the Central Excise Rules 1944 inasmuch as they brought into duty paid premises 60,770 lbs. of Biri Patti tobacco without payment of duty. It was also alleged in that notice that the appellants had removed certain quantity of Rava tobacco from L-2 premises. The appellants submitted their reply on March 13, 1959. At the hearing before the Collector as the appellants challenged the correctness of the experiments conducted by the Superintendent, Central Excise, the Collector himself in the presence of the appellants conducted a fresh experiment. On the basis of that experiment he came to the conclusion that the results obtained by the experiment conducted by the Superintendent, Central Excise are by and large correct.
By his order dated April 13, 1959, the Collector, Central Excise held the appellants guilty of contravening rule 40 and consequently levied on them a penalty of Rs. 2,000 as well as the duty payable under law. He also ordered the confiscation of the seized tobacco weighing 1,64,834.50 lbs. But he gave an option to the appellants of redeeming the same on payment. of a fine of Rs. 1 lac. The appellants paid the amount of fine. under protest and got the goods released.
Thereafter they moved the High Court of Bombay under Art. 226 of the Constitution for quashing the order of the Collector but that application was withdrawn as the appellants first wanted to exhaust their remedy under the Central Excise Act. The appellants unsuccessfully went up in appeal and thereafter in revision under the Central Excise and Salt Act, 1944 against the order of the Collector. After the 3rd respondent dismissed their revision petition they filed in the High Court of Punjab at Delhi Civil Writ No. 557-D of 1961 challenging the legality of the order made by the Collector of Central Excise on April 13, 1959. That petition was dismissed by a Division Bench of that Court on January 13, 1964. This appeal is brought against that decision.
in this Court the finding of the Collector of Central Excise that the appellants were guilty of mixing the duty paid tobacco with non-duty paid tobacco and thereby they contravened rule 40 was not challenged. Nor was there any dispute about the quantity of non-duty paid tobacco used in the mixture. The main contention of Mr. M.P. Vaish, learned Counsel for the appellants was that under rule 40, the Collector could not have confiscated the tobacco mixture as it consisted of both duty paid tobacco as well as tobacco on which duty had not been paid. His alternative contention was that under any circumstance the Collector could not have confiscated anything more than 60,770’ lbs. of the mixture which can be said to represent Biri Patti tobacco on which duty had not been paid. In support of his first contention he heavily relied on the decision of K.T. Desai, J. in Messrs. Valitmahomed Gulamhusain Sonavala & Co. v. C.T..A. Pillai (1).
The seized tobacco mixture weighed 1,64,834.50 lbs. That included 60,770 lbs. of Biri Patti tobacco on which duty had not been paid. But on the remaining quantity duty had been paid. The tobacco seized was found in the godown licenced to store duty paid tobacco. Hence the appellants were clearly guilty of contravening rule 40 of the Central Excise Rules which reads:
"Except as provided in the proviso to
sub-rule (1) of rule 32 and in rule 171 no
wholesale purchaser of unmanufactured tobacco
for the purpose of trade or manufacture and no
wholesale purchaser of other unmanufactured
products from a curer shall receive into any
part of his premises or into his custody or
possession, any unmanufactured tobacco or
other unmanufactured products, other than
tobacco or other unmanufactured products
imported from a foreign country otherwise
than under a valid permit granted by an
officer showing that the proper duty has been
paid; and every such wholesale purchaser who
receives or has in his custody or possession
any such goods, in contravention of this rule
shall, in respect of every such offence, be
liable to pay the duty leviable on such (1) (1960) 42 B.L.R., p. 634.
goods, and to a penalty which may extend to
two thousand rupees, and the goods shall also
be liable to confiscation." .lm0
In view of this rule the legality of the order
made by the Collector in so far as he levied
duty as well as penalty cannot be challenged
and was not challenged before us. But so far
as the confiscation is concerned’ it was urged
that under the rule in question only
tobacco on which duty had not been paid could
alone have been confiscated. In the instant
case even according ,to the finding of the
Collector only on 66,770 lbs. of Biri Patti
tobacco the duty had not been paid; but on the
remaining tobacco seized duty had been paid,
it was not possible to separate the duty paid
tobacco from the non duty-paid tobacco; hence
it was impermissible for the Collector to
confiscate the said tobacco under Rule 40 as
that rule permitted the confiscation of only
non-duty paid tobacco. In Sonavala’s case(1)
referred to earlier Desai, J. had held that
the right to confiscate smuggled goods under
s. 167(8) of the Sea Customs Act, 1878 does
not carry with it the right to confiscate
unsmuggled goods. The words "such goods’
appearing in s. 167(8) of the Act cannot be
interpreted .to mean similar goods. It is not
open to the Customs authorities to confiscate
similar goods even though they may be of the
same quality, bulk and value. The words
’such goods’ mean the very goods which have
been smuggled. If the smuggled goods lose
their identity, it would not be open to the
Customs officers to confiscate any part of
those goodS. Where, therefore, gold that has
been smuggled has in the melting process got
so mixed up with gold that is unsmuggled that
it is impossible to separate the smuggled gold
from the unsmuggled one, the right to
confiscate smuggled gold ceases when the two
get inextricably mixed up. The broad
proposition laid down by Desai, J. undoubtedly
supports the contention advanced on behalf
of the appellants. We shall presently show
that this statement of the law is not correct
but it is necessary to mention at this
juncture that in the Sonavala’s case(1) an
innocent third party had purchased the
smuggled gold for proper value and mixed the
same with unsmuggled gold, which circumstance
had an important bearing on the decision of
the case.
In Institutes of Justinian at page 104
dealing with the topic commixtio it is
observed:
"If the things mixed, still remaining the
property of their former owners, were easy to
separate again, as for instance, cattle united
in one herd, when one owner brought his claim
by vindicatio ’his property was restored to
him without difficulty but if there was
difficulty in separating the materials from
each other, as in dividing the grains of wheat
in a heap, the obvious (1960) 42 B.L.R.p. 634.
mode would be to distribute the whole heap in
shares proportionate to the quantity of wheat
belonging to the respective owners. But it
might happen that the wheat mixed together was
not all of the same quality, and therefore
the owner of the better kind of wheat would
lose by having a share determined in amount
only by the quantity of his wheat; and the
judge therefore was permitted to exercise his
judgment how great an addition ought to be
made to his share to compensate for the
superior quality of the wheat originally
belonging to him." In Williams on Personal Property (18th Edn.) at p. 50, it is observed:
"The acquisition of ownership by
accession or confusion of substances also
presupposes a previous title. Thus the young
of a domestic animal belong to the owner of
the mother. If any substances, for instance
tallow, belonging to. various owners be mixed
by consent or accidentally, the mass appears
to belong to the owners of its parts in
common. And if the confusion be made wilfully
by one without the other’s leave, the mass
belongs to the latter, whose ownership is thus
unlawfully invaded." Dealing with the same topic it is observed in Halsbury’s Laws of England 3rd Edn. (Vol. 29) at p. 378.
"Ownership of goods may be acquired by
confusion or intermixture, if the goods, when
mixed, are indistinguishable. If the goods
are mixed by agreement or consent the
proprietors have an interest in common in
proportion to their respective shares; if
mixed by accident or the act of a third
party, or which neither owner is responsible,
the proprietors become owners in common of
the mixed property in proportion to the
amounts contributed. Where, however, one man
wilfully mixes his goods with those of another
without the approbation or knowledge of the
other, the whole be longs to the latter." The law on this topic was stated by Bovill, C.J. as early as 1868’ in Spence and Anr. v. The Union Marine Insurance Co. Ltd.(1) thus:
"In our own law there are not many
authorities to be found upon this subject
but, as far as they go, they are in favour
of the view, that, when goods of diffe(1) Law Reports (Common Pleas) 3, 1867-68.
rent owners become by accident so mixed
together as to be undistinguishable, the
owners of the goods so mixed become tenants
in common of the whole, in the proportions
which they have severally contributed to it.
The passage cited from the judgment of
Blackburn, J., in the case of the tallow
which was melted and flowed into the sewers,
is to that effect: Buckley v. Gross. And a
similar view was adopted by Lord Abinger in
the case of the mixture of oil by leakage on
board ship in Jones v. Moore. ’
"It has been long settled in our law,
that where goods are mixed so as to become
undistinguishable, by the wrongful act or
default of one owner, he cannot recover, and
will not be entitled to his proportion, or any
part of the property, from the other owner,
but no authority has been cited to shew that
any such principle has ever been applied, nor
indeed could it be applied, to the case of an
accidental mixing of the goods of the two
owners; and there is no authority nor sound
reason for saying that the goods of several
persons be the property of their several
owners, and become bona-vacantia."
The same principle was again reiterated by the House of Lords in Smurthwaite and Ors. v. Hannay and Ors.(1)
The rules enunciated above are of assistance in finding out a solution to the problem before us though they do not govern the same. In the instant case there is no doubt that the appellants were guilty of an unlawful act in mixing duty paid tobacco with the non-duty paid tobacco but the fact remains that they were the owners of both those lots at the time they mixed them and hence the legal principles set out earlier do not cover such a case. It must also be remembered that in dealing with a provision relating to forfeiture we are dealing with a penal provision. It would not be proper for us to extent the scope of that provision by reading into it words which are not there and thereby widen the scope of the provision relating to confiscation. Rule 40 permits the Central Excise authorities to confiscate only those goods on which duty has not been paid. It does not permit them either specifically or by necessary implication to confiscate other goods. Therefore it was not permissible for the Collector to confiscate the entire tobacco mixture. At the same time no person can be permitted to benefit by his wrongful act. No rule of law should be so interpreted as to permit or encourage its circumvention. If by the wrongful act of a party he renders it impossible for the authorities to confiscate under rule 40 the non(1) [1894] A.C.p. 494. duty paid goods it is in our opinion open to those authorities to confiscate from out of the goods seized, goods of the value reasonably representing the value of the non-duty paid goods mixed in the goods seized. Applying that rule to the facts of this it follows that the Collector, Central Excise could have confiscated out of the tobacco seized,. so. much of it as can be held to reasonably represent the value of the tobacco on which the duty had not been paid.
As noticed earlier the tobacco confiscated had been returned to the appellants after realising from them a sum of Rs 1 lac as fine. The Counsel for the parties agreed at the hearing that the’ value of the Biri Patti tobacco used in the mixture for which no duty had been paid could be fixed at Rs. 35,000. In view of this agreement it is not necessary for us to remit the case back to the Collector of Central Excise for assessing the value of the tobacco on which duty had not been paid. In view of our earlier findings the fine to be levied on the appellants in lieu of the confiscation that could have been ordered has to be fixed at Rs. 35,000. From this it follows that the Collector has to refund to the appellants a sum of Rs. 65,000 which he has collected from them in excess of the aforementioned Rs. 35,000. The appeal is allowed to that extent. In the circumstances of the case we direct the parties to bear their own costs both in this Court as well as before the High Court. R.K.P.S. Appeal allowed in part.