9911796707
TMI Blog2014 (6) TMI 307X X X X Extracts X X X X X X X X Extracts X X X X ..... s that the plaintiff Company was involved in the manufacture of blended yarn and started manufacturing the same in September, 1966 and on demand being made by the Deputy Superintendent, Central Excise under Central Excise Tariff Items No.18 & 18A, the plaintiff started paying the excise duty w.e.f. 14.9.1966. The rate of excise duty kept on challenging from time to time. The Company continued payment of the duty till 15.3.1972 when in fact, no duty was payable on the blended yarn under tariff Items No.18 & 18A and the defendants were not entitled to recover the same. It was claimed that during the said period 14.9.1966 to 15.3.1972, the plaintiff paid excise duty to the tune of Rs. 10,55,607.17P. on account of mistake of law and the said mi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oticed here-in-before. It is submitted by learned counsel for the appellants that the trial court was not justified in decreeing the suit. Besides the fact that the civil court had no jurisdiction to deal with the issue of refund, which is required to be dealt with under Rule 11 of the Central Excise Rules, 1944, the suit was ex-facie barred by limitation and therefore, the judgment and decree passed by the trial court deserves to be set-aside. Reliance was placed a Constitution Bench judgment of the Hon'ble Supreme Court in Mafatlal Industries Ltd. v. Union of India [1997] 5 SCC 536. Opposing the submissions, learned counsel for the respondent submitted that the trial court has thoroughly considered the issue of maintainability of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it within three years of such alleged discovery of mistake of law. A person, whether a manufacturer or importer, must fight his own battle and must succeed or fail in such proceedings. Once the assessment or levy has become final in his case, he cannot seek to reopen it nor can he claim refund without reopening such assessment/order on the ground of a decision in another person's case. Any proposition to the contrary not only results in substantial prejudice to pubic interest but is offensive to several well-established principles of law. It also leads to grave public mischief. Section 72 of the Contract Act, or for that matter Section 17(1)(c) of the Limitation Act, 1963, has no application to such a claim for refund." The Hon'ble ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion or suit, they shall not be entitled to the benefit of this direction." From the above, it is apparent that the Hon'ble Court has laid down that the suit cannot be instituted for refund of claim based on discovery of mistake of law and Section 72 of the Contract Act, 1932 and provisions of Section 17(1)(c) of the Limitation Act has no application in such a claim for refund. Further while dealing with the pending litigations, the Hon'ble Court provided for time to make such application seeking refund, however, it further ruled that if proceedings have already been taken for refund and the parties have failed, they would not be entitled to the benefit of the said direction. In view of the law laid down by the Constitution Bench ..... X X X X Extracts X X X X X X X X Extracts X X X X
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