1989 (7) TMI 118 - HC - Central Excise

Issues Involved:
1. Maintainability of the suit in Civil Court.
2. Vested right to choose a forum for redressal.
3. Retrospective application of Section 11-B of the Central Excises and Salt Act, 1944.
4. Period of limitation for filing a refund claim under Section 11-B.

Detailed Analysis:

1. Maintainability of the Suit in Civil Court:
The primary issue was whether the Civil Court had jurisdiction to entertain a suit for refund of excise duty paid under a mistake of law. The court held that under Section 9 of the Code of Civil Procedure, all suits of civil nature are maintainable except those whose cognizance is expressly or impliedly excluded. Section 11-B of the Central Excises and Salt Act, 1944, inserted by the Amendment Act of 1978, specifically barred the jurisdiction of Civil Courts for claims related to the refund of excise duty. The court concluded that the jurisdiction of the Civil Court was ousted by this specific legislation, rendering the suit not maintainable.

2. Vested Right to Choose a Forum for Redressal:
The plaintiff argued that the right to choose a forum for redressal could not be taken away retrospectively by the legislature. The court rejected this argument, stating that the vested right is the right to get a refund, not the right to choose the forum. The court emphasized that a litigant must approach the forum available at the time of enforcing the right, and the forum for enforcing the remedy cannot be considered a vested right. The court cited the Supreme Court's decision in New India Insurance Co. Ltd. v. Smt. Shanti Misra, which held that the jurisdiction of the Civil Court is ousted once a special tribunal is constituted.

3. Retrospective Application of Section 11-B:
The plaintiff contended that Section 11-B should not apply retrospectively to claims for refunds made before its enactment. The court dismissed this contention, clarifying that Section 11-B, effective from 17-11-1980, provided a specific machinery for the relief of refunds and ousted the civil remedy under common law. The court held that the forum for enforcing the remedy is procedural and can be changed retrospectively unless expressly stated otherwise.

4. Period of Limitation for Filing a Refund Claim:
The plaintiff argued that the six-month limitation period under Section 11-B would unfairly bar their claim since there was no provision for condonation of delay or extension from the date the mistake was discovered. The court noted that Section 5 of the Limitation Act might apply to such cases, allowing for condonation of delay. Additionally, Section 17 of the Limitation Act, which deals with the effect of fraud or mistake, could also be applicable. The court found no merit in the plaintiff's argument regarding the limitation period.

Conclusion:
The court concluded that the jurisdiction of the Civil Court was ousted by the specific provisions of Section 11-B of the Central Excises and Salt Act, 1944. The suit was not maintainable in the Civil Court. The court allowed the appeal, set aside the judgment and decree of the trial court, and awarded costs to the appellants. The decision on the maintainability of the suit was deemed sufficient for its dismissal, and other controversies were not examined, especially since the plaintiff's appeal was pending before the Tribunal.

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