Summarize the following court judgment. Appeal No. 13 of 1966. Appeal from the judgment and order dated January 13	 1964 of the Punjab High Court	 Circuit Bench at Delhi in Civil Writ No. 557 D of 1961. M.P. Vashi	 Dalip K. Kapur		 S.V. Tambwekar and A. G. Ramaparkhi	 	for the appellant. D. Narsaraju	 R.M. Mehta and S.P. Nayar	 for the respondents. The Judgment of the Court was delivered by Hegde	 J. In this appeal by certificate though. several contentions were raised in the memo of appeal only two of them were pressed at the time of hearing. They are: (1) under the circumstances of the case the confiscation ordered by the Collector	 Central Excise is illegal and (2) under any circumstance he could not have confiscated the entire quantity of tobacco used in the mixture. The appellants are tobacco merchants in Dashrath village near Baroda in Gujarat State. At the relevant time they were holding Central Excise licence in form L 2 and L 5 for the purpose of storing	 selling and processing duty paid and non duty paid tobacco. They had their own duty paid and non duty paid godowns. In about December 1958 according to their books they possessed the following lots of different varieties of tobacco. variety of tobacco Quantity Rate of duty Veriety of tobacco Quantity Rate of duty Bmds. Rs. Biri Patti " 251.8 1.20 np per Ib Stems Kandi " 287.20 0.50 Do. Rava " 1326.14 0.50 Do. Stalk Kandi " 57.20 0.06 Do. 582 On December 13	 1958 the appellants obtained permission from the Local Central Excise authorities to mix the above lots of tobacco. The percentage of different varieties of tobacco when mixed would have been as under: Rava 68.97 % Stems Kandi 14.86 % Biri Patti 13.07 % Stalk Kandi 3.00% On December 23	 1958 when the process of mixing was still going on the Superintendent of Central Excise	 Preventive Headquarters	 Baroda and his party raided the duty paid premises of the appellants. There he seized the entire mixture tobacco weighing Mds. 2004.3 srs. i.e. 1	64	834.50 lbs. of tobacco. According to that Superintendent when experiments were conducted he found in the above mixture percentage of different varieties as under: Rava 44 % Biri Patti 51.50 % Stems Kandi 3 .74 % From this he concluded that 'considerable quantity of non duty paid Biri Patti tobacco had been utilised in the manufacture of the mixture. Hence notice was issued to the appellants on January 6	 1959 to show cause why action should not be taken against them under rule 40 of the Central Excise Rules 1944 inasmuch as they brought into duty paid premises 60	770 lbs. of Biri Patti tobacco without payment of duty. It was also alleged in that notice that the appellants had removed certain quantity of Rava tobacco from L 2 premises. The appellants submitted their reply on March 13	 1959. At the hearing before the Collector as the appellants challenged the correctness of the experiments conducted by the Superintendent	 Central Excise	 the Collector himself in the presence of the appellants conducted a fresh experiment. On the basis of that experiment he came to the conclusion that the results obtained by the experiment conducted by the Superintendent	 Central Excise are by and large correct. By his order dated April 13	 1959	 the Collector	 Central Excise held the appellants guilty of contravening rule 40 and consequently levied on them a penalty of Rs. 2	000 as well as the duty payable under law. He also ordered the confiscation of the seized tobacco weighing 1	64	834.50 lbs. But he gave an option to the appellants of redeeming the same on payment. of a fine of Rs. 1 lac. The appellants paid the amount of fine. under protest and got the goods released. Thereafter they moved the High Court of Bombay under article 226 of the Constitution for quashing the order of the Collector but that application was withdrawn as the appellants first 583 wanted to exhaust their remedy under the Central Excise Act. The appellants unsuccessfully went up in appeal and thereafter in revision under the Central Excise and Salt Act	 1944 against the order of the Collector. After the 3rd respondent dismissed their revision petition they filed in the High Court of Punjab at Delhi Civil Writ No. 557 D of 1961 challenging the legality of the order made by the Collector of Central Excise on April 13	 1959. That petition was dismissed by a Division Bench of that Court on January 13	 1964. This appeal is brought against that decision. in this Court the finding of the Collector of Central Excise that the appellants were guilty of mixing the duty paid tobacco with non duty paid tobacco and thereby they contravened rule 40 was not challenged. Nor was there any dispute about the quantity of non duty paid tobacco used in the mixture. The main contention of Mr. M.P. Vaish	 learned Counsel for the appellants was that under rule 40	 the Collector could not have confiscated the tobacco mixture as it consisted of both duty paid tobacco as well as tobacco on which duty had not been paid. His alternative contention was that under any circumstance the Collector could not have confiscated anything more than 60	770 ' lbs. of the mixture which can be said to represent Biri Patti tobacco on which duty had not been paid. In support of his first contention he heavily relied on the decision of K.T. Desai	 J. in Messrs. Valitmahomed Gulamhusain Sonavala & Co. vs C.T. A. Pillai (1). The seized tobacco mixture weighed 1	64	834.50 lbs. That included 60	770 lbs. of Biri Patti tobacco on which duty had not been paid. But on the remaining quantity duty had been paid. The tobacco seized was found in the godown licenced to store duty paid tobacco. Hence the appellants were clearly guilty of contravening rule 40 of the Central Excise Rules which reads: "Except as provided in the proviso to sub rule (1) of rule 32 and in rule 171 no wholesale purchaser of unmanufactured tobacco for the purpose of trade or manufacture and no wholesale purchaser of other unmanufactured products from a curer shall receive into any part of his premises or into his custody or possession	 any unmanufactured tobacco or other unmanufactured products	 other than tobacco or other unmanufactured products imported from a foreign country otherwise than under a valid permit granted by an officer showing that the proper duty has been paid; and every such wholesale purchaser who receives or has in his custody or possession any such goods	 in contravention of this rule shall	 in respect of every such offence	 be liable to pay the duty leviable on such (1) (1960) 42 B.L.R.	 p. 634. 584 goods	 and to a penalty which may extend to two thousand rupees	 and the goods shall also be liable to confiscation." .lm0 In view of this rule the legality of the order made by the Collector in so far as he levied duty as well as penalty cannot be challenged and was not challenged before us. But so far as the confiscation is concerned ' it was urged that under the rule in question only tobacco on which duty had not been paid could alone have been confiscated. In the instant case even according 	to the finding of the Collector only on 66	770 lbs. of Biri Patti tobacco the duty had not been paid; but on the remaining tobacco seized duty had been paid	 it was not possible to separate the duty paid tobacco from the non duty paid tobacco; hence it was impermissible for the Collector to confiscate the said tobacco under Rule 40 as that rule permitted the confiscation of only non duty paid tobacco. In Sonavala 's case(1) referred to earlier Desai	 J. had held that the right to confiscate smuggled goods under section 167(8) of the does not carry with it the right to confiscate unsmuggled goods. The words "such goods ' appearing in section 167(8) of the Act cannot be interpreted .to mean similar goods. It is not open to the Customs authorities to confiscate similar goods even though they may be of the same quality	 bulk and value. The words 'such goods ' mean the very goods which have been smuggled. If the smuggled goods lose their identity	 it would not be open to the Customs officers to confiscate any part of those goodS. Where	 therefore	 gold that has been smuggled has in the melting process got so mixed up with gold that is unsmuggled that it is impossible to separate the smuggled gold from the unsmuggled one	 the right to confiscate smuggled gold ceases when the two get inextricably mixed up. The broad proposition laid down by Desai	 J. undoubtedly supports the contention advanced on behalf of the appellants. We shall presently show that this statement of the law is not correct but it is necessary to mention at this juncture that in the Sonavala 's case(1) an innocent third party had purchased the smuggled gold for proper value and mixed the same with unsmuggled gold	 which circumstance had an important bearing on the decision of the case. In Institutes of Justinian at page 104 dealing with the topic commixtio it is observed: "If the things mixed	 still remaining the property of their former owners	 were easy to separate again	 as for instance	 cattle united in one herd	 when one owner brought his claim by vindicatio 'his property was restored to him without difficulty but if there was difficulty in separating the materials from each other	 as in dividing the grains of wheat in a heap	 the obvious (1960) 42 B.L.R.p. 585 mode would be to distribute the whole heap in shares proportionate to the quantity of wheat belonging to the respective owners. But it might happen that the wheat mixed together was not all of the same quality	 and therefore the owner of the better kind of wheat would lose by having a share determined in amount only by the quantity of his wheat; and the judge therefore was permitted to exercise his judgment how great an addition ought to be made to his share to compensate for the superior quality of the wheat originally belonging to him. " In Williams on Personal Property (18th Edn.) at p. 50	 it is observed: "The acquisition of ownership by accession or confusion of substances also presupposes a previous title. Thus the young of a domestic animal belong to the owner of the mother. If any substances	 for instance tallow	 belonging to. various owners be mixed by consent or accidentally	 the mass appears to belong to the owners of its parts in common. And if the confusion be made wilfully by one without the other 's leave	 the mass belongs to the latter	 whose ownership is thus unlawfully invaded." Dealing with the same topic it is observed in Halsbury 's Laws of England 3rd Edn. (Vol. 29) at p. 378. "Ownership of goods may be acquired by confusion or intermixture	 if the goods	 when mixed	 are indistinguishable. If the goods are mixed by agreement or consent the proprietors have an interest in common in proportion to their respective shares; if mixed by accident or the act of a third party	 or which neither owner is responsible	 the proprietors become owners in common of the mixed property in proportion to the amounts contributed. Where	 however	 one man wilfully mixes his goods with those of another without the approbation or knowledge of the other	 the whole be longs to the latter. " The law on this topic was stated by Bovill	 C.J. as early as 1868 ' in Spence and Anr. vs The Union Marine Insurance Co. Ltd.(1) thus: "In our own law there are not many authorities to be found upon this subject but	 as far as they go	 they are in favour of the view	 that	 when goods of diffe (1) Law Reports (Common Pleas) 3	 1867 68. 586 rent owners become by accident so mixed together as to be undistinguishable	 the owners of the goods so mixed become tenants in common of the whole	 in the proportions which they have severally contributed to it. The passage cited from the judgment of Blackburn	 J.	 in the case of the tallow which was melted and flowed into the sewers	 is to that effect: Buckley vs Gross. And a similar view was adopted by Lord Abinger in the case of the mixture of oil by leakage on board ship in Jones vs Moore. ' "It has been long settled in our law	 that where goods are mixed so as to become undistinguishable	 by the wrongful act or default of one owner	 he cannot recover	 and will not be entitled to his proportion	 or any part of the property	 from the other owner	 but no authority has been cited to shew that any such principle has ever been applied	 nor indeed could it be applied	 to the case of an accidental mixing of the goods of the two owners; and there is no authority nor sound reason for saying that the goods of several persons be the property of their several owners	 and become bona vacantia. " The same principle was again reiterated by the House of Lords in Smurthwaite and Ors. vs Hannay and Ors.(1) The rules enunciated above are of assistance in finding out a solution to the problem before us though they do not govern the same. In the instant case there is no doubt that the appellants were guilty of an unlawful act in mixing duty paid tobacco with the non duty paid tobacco but the fact remains that they were the owners of both those lots at the time they mixed them and hence the legal principles set out earlier do not cover such a case. It must also be remembered that in dealing with a provision relating to forfeiture we are dealing with a penal provision. It would not be proper for us to extent the scope of that provision by reading into it words which are not there and thereby widen the scope of the provision relating to confiscation. Rule 40 permits the Central Excise authorities to confiscate only those goods on which duty has not been paid. It does not permit them either specifically or by necessary implication to confiscate other goods. Therefore it was not permissible for the Collector to confiscate the entire tobacco mixture. At the same time no person can be permitted to benefit by his wrongful act. No rule of law should be so interpreted as to permit or encourage its circumvention. If by the wrongful act of a party he renders it impossible for the authorities to confiscate under rule 40 the non (1) [1894] A.C.p. 587 duty paid goods it is in our opinion open to those authorities to confiscate from out of the goods seized	 goods of the value reasonably representing the value of the non duty paid goods mixed in the goods seized. Applying that rule to the facts of this it follows that the Collector	 Central Excise could have confiscated out of the tobacco seized	. much of it as can be held to reasonably represent the value of the tobacco on which the duty had not been paid. As noticed earlier the tobacco confiscated had been returned to the appellants after realising from them a sum of Rs 1 lac as fine. The Counsel for the parties agreed at the hearing that the ' value of the Biri Patti tobacco used in the mixture for which no duty had been paid could be fixed at Rs. 35	000. In view of this agreement it is not necessary for us to remit the case back to the Collector of Central Excise for assessing the value of the tobacco on which duty had not been paid. In view of our earlier findings the fine to be levied on the appellants in lieu of the confiscation that could have been ordered has to be fixed at Rs. 35	000. From this it follows that the Collector has to refund to the appellants a sum of Rs. 65	000 which he has collected from them in excess of the aforementioned Rs. 35	000. The appeal is allowed to that extent. In the circumstances of the case we direct the parties to bear their own costs both in this Court as well as before the High Court. R.K.P.S. Appeal allowed in part.

The appellants were tobacco merchants in Baroda in Gujarat State and were holding Central Excise licence in Forms L 2 and L 5 for the purpose of storing	 selling and processing duty paid and non duty paid tobacco. On December 23	 1958 while the process of mixing some tobacco was going on in a godown where duty paid tobacco was. kept	 the Superintendent of Central Excise.	 Preventive Headquarters	 Baroda and his party raided the premises of the appellants and seized a mixture of tobacco weighing 1	64	834.50 lbs. tobacco This mixture included 60	770 lbs. of tobacco on which duty had not been paid. After the 'appellants were issued a show cause notice why action should not be taken against them under rule 40 of the Central Excise Rules	 1944	 and after they had filed their reply	 the Collector	 Central Excise	 by his order dated April 13	 1959 held the appellants guilty of contravening rule 40 levied on them a penalty of Rs. 2	000 as well as the duty payable under the law	 and also ordered the confiscation of the entire quantity of the tobacco seized. As he gave the appellants the option of redeeming the same on payment of a fine of Rs. 1 lakh	 they paid the fine under protest and secured release of the tobacco. The appellant 's appeal as well as revision against the Collector 's order under the provisions of the Central Excise and Salt Act	 1944	 were both dismissed. The appellants then filed a writ petition under article 226 of the Constitution challenging the legality of the Collector 's order but this was dismissed by the High Court. In appeal to this Court the only challenge was to the Collector 's order of confiscation. It was contended	 relying on the decision in Messrs. Valimahomed Gulamhusain Sonavala & Co. vs C.T.A. Pillai	 (1960) 42	 B.L.R.	 p. 634	 that the Collector could not have confiscated the tobacco mixture as it consisted of both duty paid tobacco as well as tobacco on which duty had not been paid	 the alternative contention was that the Collector could not in any extent have. confiscated more than 60	770 lbs. of mixture which could be said to represent tobacco on which duty had not been paid. HELD: Rule 40 permits the Central Excise. authorities to confiscate only those goods on which duty had not been paid. It does not permit them either specifically or by necessary implication to confiscate other goods. Therefore it was not permissible for the Collector to confiscate the entire tobacco mixture. At the same time no person can be permitted to benefit by his wrongful act. No rule of law should be so interpreted as to permit or encourage its circumvention. If by the wrongful act of a party he renders it impossible for the authorities to confiscate under 581 rule 40 the non duty paid goods	 it is open to those authorities to confiscate from out of the goods seized	 goods of the 'value reasonably representing the value of the non duty paid goods mixed in the goods seized. Applying that rule to the facts of the present case it follows that although the appellants were guilty under Rule 40 of an unlawful act in mixing duty paid tobacco with non duty paid tobacco	 the Collector could have confiscated out of the tobacco seized so much of it as can be held to reasonably represent the value of the tobacco on which the duty had not been paid. [586 G 581 B] As the parties were agreed that the value of the tobacco used in the mixture for which no duty had been paid could be fixed at Rs. 35	000	. the fine to be levied on the appellant in lieu of the confiscation that could have been ordered had to. be fixed at Rs. 35	000. The Collector therefore had to refund to the appellant a sum of Rs. 65	000. Institutes of Justinian	 p. 104; Williams on Personal Property (18th edition) p. 50; Spence and Ant. vs The Union Marine Insurance Co. Ltd.	 Law Reports (Common Pleas) 3	 1867 68 and Smurthwaite and Ors. vs Hannay and Ors. 	 [1894] A.C.p. 494; referred to.