9911796707
TMI Blog1985 (9) TMI 200X X X X Extracts X X X X X X X X Extracts X X X X ..... eriod 1962-1972. (2) Order dated 18-7-76 rejecting the appellants refund claim for Rs. 4,475.98 for the period 1970-1971. (3) Order dated 17-1-76 directing the appellants to pay back the amount of Rs. 2,45,930.08 refunded to the appellants erroneously earlier, for the period January, 1973 to December, 1973. When the matter came up for hearing before this Bench, we noticed- that the appellants had filed a common revision application before the Central Government and thereafter one supplementary appeal before this Tribunal. The appellants explained that in respect of the Assistant Collector s order dated 17-1-1976, they had already obtained the necessary relief from the Kerala High Court. Thus, there were only two appeals pending bef ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was not plywood and was not an excisable item was accepted by the department. The Central Government issued an amending notification No. 204/73-Central Excises, dated 8-12-1973 whereby it deleted Compreg from the list of concessional-rated products under Item 16-B. A Trade Notice was also issued soon after clarifying that Compreg was not an excisable product. Thereafter, during January-March, 1974, the appellants filed the subject refund claims for refund of the duty paid by them on Compreg during the period from 1962 to December, 1973. The Asstt. Collector rejected the refund claims on the grounds that- (1) the amounts collected erroneously in respect of Compreg were not duty because this commodity had never been excisable and so ne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tor and the Central Government, the appellants filed a Writ O.P. No. 4947 of 1976, followed by Writ Appeal No. 331 of 1978, in the Kerala High Court against the order dated 18-5-1976 of the Asstt. Collector. Their writ appeal was finally decided by the Division Bench of the High Court on 28-5-1979 holding that an alternative remedy by way of appeal was available to the appellants and, therefore, the writ petition must abate under Article 226(3) of the Constitution. 5. During the hearing before us, it was the common ground of both parties that Compreg was not an excisable product during the material period (1962-1972) and hence no duty was payable thereon. The appellants argued at length that they had been coerced by the department to pay ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ision Bench) in Writ Petition Nos. 1730 and 1731/ 1967-M/s. Gowri Shankar Silk Weaving Factory and another v. Union of India and others-in which it was held that if refund was not covered by Rule 11, the only remedy available to the assessee was to file a civil suit and that the departmental authorities were competent to grant only those refunds which were covered by rule 11 or some other provision of the Act or the rules. Reliance was also placed by the department on Rule 2 (v) which read : Duty means the duty payable under section 3 of the Act. The learned representative of the department laid stress on the word payable in this definition and said that any amount paid as duty but which was not payable under the Act could not b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration. Since the merits of the appellants refund claims as well as the limitation aspect are no longer contested by the department, the only point for us to decide is whether the departmental authorities should be asked to refund the monies to the appellants or the appellants should be asked to file civil suits. The monies were paid as far back as 1962-1972. The appellants not only fought their battles with their local departmental authorities as well as the Central Board of Excise and Customs at Delhi, they also went in writ proceedings in the Kerala High Court. On the High Court pointing out to them that the remedy of appeal under Section 35 of the Act was available to them against the Assistant Collector s order, they reverted to pur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ence outside the purview of Rule 11. In the present case before us, it is apparent that the department collected the duty on Compreg from the appellants, despite the appellants protest, because of the erroneous interpretation placed on entry 16-B of the Tariff by the department. It was clearly a case of collection due to error or misconstruction. In the circumstances, we find that the Mysore High Court judgment does not stand in the way of Asstt. Collector dealing with the appellants refund claims. 8. Before we conclude, there is one more aspect of the matter which is required to be dealt with. The refund claims of the appellants now before us relate to the period from 1962-1972. On the appellants own showing, their protest letter aga ..... X X X X Extracts X X X X X X X X Extracts X X X X
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