1 This second appeal at the instance of the defendants is admitted on the following questions of law formulated in the memorandum of second appeal:
"(i) Whether S.40(1) of the Central Excises and Salt Act is not a legal bar to the maintainability of the suit?
(ii) Whether the claim is not barred by limitation prescribed by S.40(2) of the Central Excises and Salt Act, 1944
(iii) Whether the inference drawn by the Courts below that the action taken by the appellants was not in good faith is supportable is law?
(iv) Whether the award of interest by the Courts below is legally sustainable?
and
(v) Whether the plaintiff was not bound to mitigate the damages by applying for possession of the tobacco pending the proceedings and by taking delivery of the same when called upon to do so?"
The learned standing counsel for the Central Government has urged only questions 1 to 3, questions 4 and 5 were not argued in this case.

2 The suit is for the value of 50 bags (2305. 20 Kga.) of I. A. C. Gujarathi Pathi Biri tobacco illegally seized by the 3rd defendant from the plaintiff with interest at 12% from 31-7-1961 to 31-10-1966. The suit was filed on 5-11-1966. The plaintiff was a licencee for dealing i

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