9911796707
TMI Blog2013 (10) TMI 405X X X X Extracts X X X X X X X X Extracts X X X X ..... the Supreme Court and was decided on 21st December, 1989 - The civil appeal pending before the Supreme Court related to a different issue; and related to classification of the goods manufactured by the petitioner under Tariff Item No.29A - Pendency of the litigation before the Supreme Court had not barred or prohibited the petitioner from making claim for refund of duty already paid. The petitioner is a company which has been involved in several litigations and is not an illiterate litigant, who lacked resources and thereby was unable to invoke writ jurisdiction earlier - They had made specific applications after making payment of the duty and had also filed appeals - when the appeals were rejected, the petitioner simply waited and slept - They did not approach the Court within a reasonable time - The writ petition was filed in 1990, after a lapse of six years from the date of rejection of the claims by the appellate authority - The claims relate to an earlier period between 1979 to 1983 - there is weeding out of files/records in Government departments - It is almost impossible to fully examine, ascertain and verify old claims - The respondents in the counter affidavit have sta ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Bank for Reconstruction and Development (IBRD)/International Development Association (IDA). These supplies were made at international prices under international competitive bidding for World Bank projects. 3. The petitioner claims that they became entitled to refunds/cash assistance in terms of the policy of the respondents incorporated in letter No.F.1/2/69-EAC dated 7th January, 1970 concerning cash assistance in lieu of excise duty payable on supplies made under IBRD/IDA projects in India. 4. The petitioner in the writ petition and rejoinder affidavit has not stated the dates as to when the said supplies under IBRD and IDA projects in India were made. However, it is stated that the petitioner had received cash assistance and replenishment as per the letter dated 7th January, 1970. Replenishment was in respect of imports as per Volume II of the Hand Book. Cash assistance was at the rate prescribed in various instructions issued by the Government. The dates on which import replenishment and cash assistance was paid is not indicated or stated in the writ petition or rejoinder affidavit. The petitioner, however, claims that they did not receive drawback on customs and central e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of excise duty against supplies made to IDA/IBRD Project by way of supplementary cash assistance. File No: A-31/JM 80/EP/IDA/CLA. Dear Sir, With reference to the above, the refund of excise duty was pending with your office due to the fact that the equipment supplied by us to the various projects were cleared against bank guarantees. We had filed a case against Central Excise Department at Faridabad on the rate of duty and we finally lost the case in the Supreme Court. We have now paid the excise duty in cash through PLA to the Central Excise authorities at Faridabad and enclosed, we are sending you a certificate to this effect. The above certificates pertains to Gate pass Nos. 302 dated 12.1179, 304 dated 13.11.79 and 295 dated 3.11.79. Since, we have now paid the excise duty in cash we shall be grateful if you please have the same refunded to us at the earliest. Thanking you, Very truly yours For Frick India Limited Rajan Iyer Commercial Officer. 7. A perusal of the aforesaid letter elucidates that the petitioner acknowledged that they had paid the excise duty and had simultaneously mentioned that they had finally lost the case before the Supreme Court . T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etween us and the Central Excise Department over the levy of excise duty on complete refrigeration equipment. We had taken up the matter in the High Court and then in the Supreme Court and finally lost the case and hence in lieu of the Bank Guarantee we had paid excise duty in cash. This matter was explained to you vide our letter dated 24th September, 1983 alongwith certificate from the Central Excise Department stating that we have now paid excise duty in cash in lieu of bank guarantee which was delivered to your office vide your receipt No.247454 dated 29.9.1984. Further to that letter we were asked for various clarifications which we have replied to you in time. Your contention that we have not given you any documentary evidence in support of our claim is wrong since we have sent to you the certificate from the Excise Department. 10. These appeals were rejected by the appellate authority on different dates within calendar year 1984 itself. 11. It is, therefore, apparent that the petitioner after the initial rejection had preferred appeals. The petitioner did not wait till decision of the Supreme Court to prefer appeals. The petitioner thereafter has waited from 1984 till 2 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acket formula can be applied. Delay and laches may not be a ground to dismiss and throw out an illiterate litigant or a person belonging to marginalized section who is dependent upon a third person to defend his fundamental rights. Royal Orchid Hotels Limited (supra) was a case under the Land Acquisition Act. In the said decision reference was made to the observations of the Supreme Court in Dehri Rohtas Light Railway Company Limited v. District Board, Bhojpur, (1992) 2 SCC 598. In the said case the appellant before the Supreme Court had offered an explanation for not raising the question of legality. The authority had proceeded under a mistake of law as to the nature of claim. It was observed that nature of claim, breach of fundamental rights, remedy claimed and how and why delay arose are relevant factors. 14. In Shankara Cooperative Housing Society Ltd. Vs. M. Prabhakar and Others, (2011) 5 SCC 607 question of long delay and whether a writ petition should be dismissed on that account was raised and the following principles have been elucidated:- (1) There is no inviolable rule of law that whenever there is a delay, the Court must necessarily refuse to entertain the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
