Govinda Menon, J.-In this Second Appeal the appellant is the Union of India, represented by the Secretary, Ministry of Finance, Government of India, New Delhi and the questions that arise are firstly whether a Civil Court has got jurisdiction to order refund of amounts alleged to have been illegally collected as Central excise-tax on betel-nuts and secondly whether on the facts of the case there has been such illegal collection. The respondents filed O.S. No. 183 of 1947 in the Court of the District Munsif, Mangalore, for refund of Rs. 502, stated to have been illegally collected as Central excise-tax on cured betel-nuts. The trial Court held that the suit was not maintainable and dismissed the same. In appeal the learned Subordinate Judge, South Kanara, came to a contrary conclusion and decreed the suit as prayed for and hence the present Second Appeal.

Under the Indian Finance Act of 1944 the Government of India imposed an excise duty of two annas per pound on cured betel-nuts produced on and after 1st April, 1944. The first plaintiff a dealer in arecanuts had already stocked-cured nuts by the end of March, 1944, which could not be brought within the taxation under the Finance Act of 1944. The Sub-Inspector of Central Excise checked the pre-excise stock, i.e., the goods which the first plaintiff had stocked with him before 31st March, 1944 and issued a certificate, Exhibit A-1, on 12th April, 1944, showing that the first, plaintiff was in possession of arecanuts cured, before 31st March, 1944 and the quantity was 16 candies 1 maund which corresponded to 92451b. On 17th and 19th of April, 1944 and 6th May, 1944, the first plaintiff sold 7 candies, 16 maunds, 251b., out of the pre-excise stock to one Ullal Hari Varman Nayak as per entries in Exhibit A-8 and a reference had been made to the pre-excise certificate, Exhibit A-1. Subsequently the Assistant Inspector of Excise issued a demand order, Exhibit A-2, dated 2nd December, 1944, calling upon the first-plaintiff to pay excise duty of two annas per pound on 92451b. which according to the first plaintiff was identical with the weight mentioned in the pre-excise certificate. Against that demand order, there was an appeal to the Collector of Central Excise. Meanwhile as the stock had to be sold the goods were handed over to the second plaintiff for sale and the quantity thus handed over came to 7 candies, 12 maunds and 121b. This quantity was bonded and a tax of Rs. 502 was collected whereupon the second plaintiff paid the amount under protest and filed a petition for refund. The Collector of Central Excise dismissed it on 15th April, 1946 and on appeal to the Central Board of Revenue, the Order of the Collector was confirmed. The present suit is for recovery of the illegal levy of Rs. 502.

The contention put forward on behalf of the Central Government is that the stock sold by the first plaintiff to the second plaintiff was not pre-excise stock but that the first plaintiff was trying to use the pre-excise certificate as a shield against the imposition of duty on the goods cured after 31st March, 1944 and that was why exemption was cancelled.

At the very outset the contention raised on behalf of the Central Government was that even if the levy was illegal the Civil Court had no jurisdiction in accordance with certain provisions of the Central Excises and Salt Act, 1944 and as such the suit ought to be dismissed as not being maintainable.

In this connection it is necessary to refer to the provisions of the Act before we deal with the question of maintainability of the suit in a Civil Court for recovery of the illegal levy. Section 3 defines excisable goods as goods specified in the First Schedule as being subject to duty of excise and excludes salt. Item No. 12 in the First Schedule relates to betel-nut cured and defines the same as follows:-

“‘Betel-nut’ means the fruit of the areca-palm (areca catechu) whether with or without husk, whether cured or uncured but does not include the

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