The sale of the tobacco by the Central Excise Department was ultra vires and not an act done or ordered to be done under the Act. Therefore, the bar of sec. 40 (2) of Act I of 1944 did not apply to this case.

1. In the suit out of which this appeal arises the plaintiff alleged that on 3-7-1947, the Range Officer of the Central Excise Department seized an excess quantity of 1358 lbs. of non-duty paid tobacco from the shop of the plaintiff and that he also submitted a report against the plaintiff to the Collector of Central Excise, Calcutta, through the Superintendent, Central Excise, Ranchi, and the Assistant Collector of Central Excise, Patna. On the 26th June, 1948, the Collector of Central Excise, Calcutta, confiscated the seized tobacco & ordered that the same be released on payment of the duty imposed and a redemption fine of Rs. 200.00 in lieu of confiscation.

The Collector of Central Excise imposed a further penalty of Rs. 100.00 upon the plaintiff. This order was communicated to the plaintiff on 6-7-1948. The plaintiff alleged that he deposited the amount by two challans on 20-4-1949. Thereafter the plaintiff sent letters to the Department of Central Excise for, delivery of the seized tobacco to him, but the tobacco was not returned. The plaintiff has, accordingly, brought the suit against the Union of India for return of the seized tobacco or in the alternative for a sum of Rs. 2400.00 being the market price of the tobacco at the material point of time. The defence to the suit was that the plaintiff did not deposit the redemption fine and the penalty within the period of three months as required by the rules and, therefore, the confiscation was complete. It was also contended that the suit was barred by limitation under sec. 40 of the Central Excise and Salt Act, 1944 (Act I of 1944). Both the lower Courts have held that the deposit made by the plaintiff was valid and the plaintiff was, therefore, entitled to return of the quantity of seized tobacco. The lower courts have, therefore, granted a decree to the plaintiff for a sum of Rs. 24007-, as claimed.

2. In support of this appeal it was argued by the learned Government Pleader that sec. 40 (2) of Act I of 1944 operated as a bar. Sec. 40 of the Act is in the following terms:

"40. Bar of suits and limitation of suits and other legal proceedings: (1) No suit shall lie against the Central Government or against any officer of the Government in respect of any order passed in good faith or any act in good faith done or ordered to be done under this Act.

(2) No suit, prosecution, or other legal proceeding shall be instituted for any thing done or ordered to be done under this Act after the expiration of six months from the accrual of the cause of action or from the date of the act or order complained of."

In our opinion the argument addressed by the learned Government Pleader is not correct and sec. 40 Of Act I of 1944 does apply to this claim of the plaintiff. Sec.33 of the Act deals with the power of adjudication and states as follows:

"33. Power of adjudication. -- Whereby the rules made under this Act anything is liable to confiscation or any person is liable to a penalty, such confiscation or penalty may be adjudged: (a) without limit, by a Collector of Central Excise.

(b) up to confiscation of goods not exceeding five hundred rupees in value and imposition of penalty not exceeding two hundred and fifty rupees by an Assistant Collector of Central Excise: Provided that the Central Board of Revenue may, in the case of any officer performing the duties of an Assistant Collector of Central Excise, reduce the limits indicated in Clause (b) of this section and may confer on any officer the powers indicated in Clause (a) or (b) of this section,"

Sec.34 provides that

"wherever confiscation is adjudged under this Act or the rules made thereunder, the officer adjudging it shall give the owner of the goods an option to pay in lieu of confiscation such fine as the officer thinks fit".

In this connection rules 211 and 212 of the Central Excise Rules, 1844 are also important. Rule 211 is in the following terms:

"211. On confiscation, property to vest in Central Government. (1) Whe