K.N. SETH, J. :- The learned Civil Judge, Budaun, under the proviso to Section 113 of the Code of Civil Procedure, has referred the following question for the opinion of this Court :-

"Whether provisions of Section 11 of the Central Excises and Salt Act. 1944 are violative of Art. 14 of the Constitution."

2. Shabbir Hasan Khan brought a suit for an injunction restraining the defendants from telling and auctioning the movable properties detailed in annexure 'A' of the plaint and from taking any coercive action against the plaintiff for recovery of excise duty etc. It was alleged that the plaintiff cultivated tobacco in the year 1965-66 and the produce was stored by him in a godown. The tobacco got somewhat deteriorated and the plaintiff applied to the Central Excise Department for its disposal. The application remained pending for a long time. The Deputy Superintendent, Central Excise Department at Budaun, harboured some gudge against the plaintiff and maliciously reported that he had removed the tobacco from the premises, the departmental officials, without any enquiry and without adopting the prescribed procedure, issued a certificate to the Collector, Budaun, to realise a sum of Rs. 11,016.72 on account of excise duty as arrears of land revenue. On the basis of the recovery certificate, movable properties of the plaintiff detailed in annexure 'A' to the plaint were attached on or about 10th of September, 1967. It was alleged that the tobacco in question was still in existence and the defendants had no jurisdiction or justification to attach and sell the properties without first taking steps to recover the excise duty by attachment and sale of the excisable goods. It was further alleged that Section 11 of the Central Excises and Salt Act, 1944, (hereinafter referred to as the Act), under which action was taken, was ultra vires and illegal as violative of Art. 14 of the Constitution of India. Section it of the Act was also bad for the reason that it afforded no opportunity to the growers to have their say in the matter of determination of excise duty. The attachment of the movable properties of the plaintiff was illegal and without jurisdiction and hence the suit.

3. Defendant No. 1 contested the suit and alleged that the plaintiff was a habitual defaulter and always avoided payment of excise duty on one pretext or the other. It was asserted that in the year 1965-66 the excise duty amounting to Rs. 11,016.72 was assessed on the plaintiff and he was served with a copy of the assessment order. On his failure to pay the excise duty assessed, a recovery certificate under Section 11 of the Act was issued which was perfectly legal. It was also pleaded that the Civil Court had no jurisdiction to try the suit.

4. On behalf of defendant No. 2, it was pleaded that on receipt of the certificate under Section 11 of the Act the Collector was under an obligation to recover the amount due as arrears of land revenue and the proceedings taken were valid and in accordance with law.

5. The learned Civil Judge was impressed with the argument that Section 11 of the Act provides a remedy, in addition to that available under the ordinary law, for recovery of excise duty from defaulters and an unfettered discretion was conferred on the Central Board of Revenue to recover the amount from a person liable to pay excise duty either by taking recourse to the remedy provided by Section 11 of the Act or by way of a suit under the ordinary law of the land. The remedy under the Act being more drastic and there being no guideline provided under the Act it was within the unfettered discretion of the authority to proceed to recover the amount due either by issuing a certificate to the Collector under Section 11 of the Act or to recover it by means of a suit. It was thus possible to discriminate between persons by whom excise duty was payable. Reliance was placed on the case of Northern India Caterers (P) Ltd. v. State of Punjab, AIR 1967 SC 1581. In the afor