1. On 1st March, 1922, at 9 A. M., the plaintiff bought 120 maunds of salt from the defendant, which were separated and packed in 60 of the plaintiff's own gunny bags. He took away 35 bags and left 25 in the custody of the defendant. That evening the excise-man made the defendant pay Rs. 150, enhanced salt duty on the 60 bags, which he had sold Having heard that the duty of excise was increased from the commencement of March 1st to recompense himself the defendant sold the 25 bags to other persons. Subsequently, the excise-man, who was acting under a misapprehension, refunded the excess duty to the defendant. The plaintiff sued for the value of his 25 bags of salt, on the date, when they were taken from him by defendant. The short point for determination is whether defendant was justified in selling these 25 bags. The Subordinate Judge finds, without giving any reason for his finding, that the defendant had a lien for the excess duty payable on the 25 bags left in his custody, and therefore, he had a right to sell the bags.
2. The counter-petitioner supports this finding by reference to Section 10, Act VIII of 1894.
3. In the event of any duty of excise, on any article being imposed, increased, decreased or remitted, after the making of any contract for the sale of such article, if such increase so takes effect that the increased duty is paid, the seller may add so much to the contract price, as will be equivalent to the increase of duty and shall be entitled to recover such addition.
4. 'Increase' in this section refers to the act of Government and not to the levy of the excise at the factory Any party who had contracted before March 1st and whose contract was still subsisting (that is to say, in the words of the English Statute, before there had been clearance and delivery, 39, 40 Vict. c. 20) would come within the mischief of Section 10; but it has no reference to parties who enter into a contract of sale after the increase of the tax, although they themselves may never have heard of such increase.
5. If the Subordinate Judge acted with reference to Section 10, his mistake, in all probability, was that he took imposition to mean levy. The levy was at 9 P.M., but the imposition was from mid-night 28th February to 1st March. I have not been shown any other provision of law giving defendant a vendor's lien in the circumstances of this case. The petition is, therefore, allowed with costs throughout, and plaintiff is given a decree as prayed for, the decree of the Lower Court being reversed. The fact that the market rate was due to a misunderstanding of the intentions of Government is no reason for not allowing plaintiff to claim recompense at the rate. I accept the finding that the rate is Rs. 6-12-0 per bag.