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TMI Blog1983 (12) TMI 317X X X X Extracts X X X X X X X X Extracts X X X X ..... l to principal basis to wholesale buyers over whom I.T.C. had no control after sales. I.T.C. followed the self removal procedure provided in Chapter VII-A of the Central Excise Rules. The wholesale buyers in turn sold the cigarettes to secondary wholesalers of their choice, who in turn effected sales to retailers, who sold the cigarettes to consumers. I.T.C. did not derive any extra benefit from the wholesale buyers and dealers and all the sales made by I.T.C. did not have any consideration other than the price of the products. These assertions in the petition have been admitted by the Department in its affidavit in reply dated 29th March, 1976. (b) Between 1st September, 1970 and 6th October, 1972, I.T.C. declared the assessable value under Section 4 of the Central Excises and Salt Act, 1944 in the price lists according to the prices charged by the wholesalers to the secondary wholesalers. I.T.C. accordingly paid excise duty to the Department. (c) On 1st December, 1972 the Supreme Court delivered its judgment in A.K. Roy v. Voltas Ltd. - 1973 Supreme Court 225 = 1977 (1) E.L.T. (J 177) (referred to hereafter as 'the Voltas case') holding that the correct basis of assessment of e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of ₹ 10,16,417.83 (for the period 17th March, 1972/6th October, 1972) and ₹ 1,83,685.67 (for the period 15th February, 1972/16th March, 1972). These amounts have been refunded by the Department to I.T.C. (h) However in respect of the amounts aggregating to ₹ 23,26,028.46 set out in sub-para (F) above I.T.Cs requests for refund made to the Department from 11th December, 1974 found no response. On 15th September, 1975 the Assistant Collector addressed a letter to I.T.C. that the Department desired to have the Appellate Collectors orders reviewed by Government of India. (i) By their attorneys letter dated 26th September, 1975, I.T.C. gave the requisite notice to the Department and on 30th September, 1975 filed a writ petition in this court for setting aside the Appellate Collectors orders dated 25th November, 1974 and for refund of the excess duty aggregating to ₹ 23,26,028.46. That writ petition was dismissed by the learned Single Judge by his judgment and order dated 6th April, 1977 on the preliminary contention urged by the respondents that I.T.C's proper remedy was by way of a suit, so that it could be established by evidence at what point of time I.T.C. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... table Products Pvt. Ltd. v. Union of India - 1981 (8) E.L.T. 468, observing that 'recovery of every rupee must be an authorised recovery', it was held by a Division Bench of this court that where departmental action amounts to recovery of tax without authority of law, it cannot be said that remedy by way of a suit is as expeditious, efficacious and adequate as a writ. This was reiterated by another division Bench of this Court in Wipro Products Ltd. v. Union of India - 1981 (8) E.L.T. 531. Regarding Rule 11, in I.T.C. Ltd. v. Union of India - 1981 (8) E.L.T. 690, it was held by the Karnataka High Court that persons cannot be denied the remedy under Article 226 where revenue has been collected without authority of law. In Madras Aluminium Co. Ltd. v. The Union of India - 1981 (8) E.L.T. 478 (Mad.) = (1980) Cencus 50, it was held by the Division Bench of the Madras High Court that claims for refund of duty cannot be rejected merely on the ground of the time-bar under Rule 11 and that such claims were liable to be refunded by the Department within 3 years from the date of the discovery of the mistake. In I.T.C. Ltd. v. Superintendent of Central Excise - 1983 (12) E.L.T. 281, it was he ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... has collected taxes without authority of law, (d) remedy by way of a writ is available if the writ is filed within 3 years from the discovery of the mistake, and (e) time is to be computed not from 14th August, 1970 when the Bombay High Court delivered its judgment in Voltas case, but when the Supreme Court did so on 1st December, 1972. In the light of this plethora of authorities (of which these are but a few), with which I am in respectful agreement, Mr. Sethna's contentions to the contrary must become insignificant. 8. In the present case, all the ratios of these authoritative decisions have been met by I.T.C. in ample measure, inasmuch as I.T.C. made the refund applications dated 23rd February, 1973 and 26th February, 1973 within one year from 1st December, 1972 when Voltas case was decided by the Supreme Court. Furthermore, I.T.C. thereafter pursued the departmental remedies prescribed under the Act and filed the writ petition on 30th September, 1975 within 3 years from the impugned orders dated 25th November, 1974 passed by the Appellate Collector. To go a step further, even assuming time started to run from the date of the Bombay High Court judgment on 14th August, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce to the respondents for the simple reason that in that case the payments made by the millers were against certain permits of which they took advantage and had made payments not under any mistake but with full knowledge of the facts. 11. This takes care of the first 3 submissions of Mr. Sethna, 12. Coming to Mr. Sethna's fourth submission, it is not open to him to urge non-maintainability on the ground that (I quote him) I.T.C. 'chose to avail itself of departmental remedy'. Mr. Sethna elaborated that I.T.C. should have contemporaneously filed a writ petition with the refund applications and should have kept the writ petition pending instead of waiting to file it until after the departmental proceedings were over. He also urged that I.T.C. selected a wrong remedy in approaching the Department for refund. These contentions are bizarre. They presuppose that a citizen must necessarily expect no justice from Government and must necessarily take for granted that Government will decide against him. I decline to subscribe to such cynicism, advanced in apparent seriousness, albeit by Counsel appearing on behalf of Government itself. What learned Counsel also seems to have mom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... asis that the I.T.C.s appeals had been allowed as stated in the forefront of the Appellate Collectors orders dated 25th November, 1974, I.T.C. requested for refund of ₹ 23,26,028.46 and sent reminders to the Department. On 12th March, 1975 the Assistant Collector wrote to I.T.C. that their claim was referred to the Collector and ultimately after I.T.C.'s reminders dated 23rd March, 1975 and 4th August, 1975 and the Superintendent's letter dated 24th August, 1975 asking I.T.C. for further information, the Department expressed its desire to so by way of review to Government of India. In law, it was not open to I.T.C. to straightway file a writ application for refund before exhausting the departmental remedies prescribed by the Act. Yet Mr. Sethna says in all apparent seriousness that because I.T.C. invoked departmental remedy, they could not have filed the writ petitions. So be it. 14. Mr. Sethna relied on the decision of the learned Single Judge of the Calcutta High Court in Inchek Tyre Ltd. v. Assistant Collector of Customs - 1979 (4) E.L.T. 236, where it was held that if an amount is unlawfully collected the petitioners right to refund is governed by the statute itself ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sethna holds it out to be and Mr. Desai denies it is. 15. This finally brings me to the grievance of unjust enrichment made by Mr. Sethna as a ground for refusing restitution. Mr. Sethna urged that I.T.C. had recovered from their distributors the excess duty paid by I.T.C. to the Department hence it would be inequitable to grant to I.T.C. the relief of restitution. Reliance was placed by Mr. Sethna on a statement headed 'List showing how the Central Excise Duty was charged from the petitioners' (viz. I.T.C,) annexed as Ex. 1 to an affidavit-in-reply dated 22nd November, 1976 filed by the Assistant Collector. As an illustration, I reproduce hereunder the first item of Ex. 1 :- "List showing how the Central Excise duty was charged from the petitioners. Brand of Cigarettes & packing Maximum list price for Mille Less Discount (1) (2) (3) India 20HL Kings FT 215.00 1.00 * * Approved prices effective from 29-5-71 Maximum wholesale nett selling price Less/CED/SED/AED Maximum valuation for CED Assessment Price charged by ITC Ltd. to Distributor on 25-7-1971 Price charged by Distributor to wholesaler on 4-11-1981 (4) (5) (6) (7) (8) 214.00 150.686391 63.31 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chapter VII-A of the Rules. In para 4 of the Department's affidavit-in-reply dated 29th March, 1976, these averments are admitted to be substantially correct. Para 4 of the petition goes on to say that during the relevant period I.T.C. mistakenly and bona fide believed that for the purpose of Section 4(a) of the Act, the prices changed by the wholesale dealers to the secondary wholesalers formed the correct basis of assessment whereas according to the true legal position discovered later by reason of the Supreme Court decision in Voltas case, the correct basis of assessment under Section 4(a) was the price charged by I.T.C. to their wholesale dealers. In para 5 of the Department's affidavit-in-reply dated 29th March, 1976 what is denied is the element of mistake averred in para 4 of the petition. It is important to note that both before and after the self removal procedure introduced under Chapter VII-A of the Rules, the price lists were submitted by I.T.C. and were approved by the Department on the basis of the price charged and realised by the secondary wholesalers from the retailers, which after discount was the price charged and realised by I.T.Cs. wholesale buyers from the sec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iling an affidavit in rejoinder. 18. This brings me to the final aspect of this judgment. Assuming there was unjust enrichment by I.T.C. even so the Department cannot resist restitution. In D. Cawasji & Co. v. State of Mysore - AIR 1975 Supreme Court 813 = 1978 (2) E.L.T. (J 154), after discussing the question of limitation which is not germane on the point in hand, it was observed by the Supreme Court at page 815 of the Report as under : "...Nor is there any provision under which the Court could deny refund of tax even if the person who paid it collected it from his customers and has no subsisting liability or intention to refund it to them, or, for any reason, it is impracticable to do so." (The underlining is mine) This ratio of the Supreme Court in Cawasji's case was followed by not less than 4 Division Benches of this High Court. In Maharashtra Vegetables - 1981 (8) E.L.T. 468, after observing that a defence of unjust enrichment could not have been available to Government in a civil suit and would not have been relevant at all for deciding the Unions liability to refund the excess amount recovered, it was held that duty illegally collected was refundable even though it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... egally called upon by the Department to pay additional duty, say by reason of a later judicial pronouncement, cannot refuse to do so by pleading unjust impoverishment on the ground that he has not or will not be able to recover it from his distributors/ customers, it would hardly be proper to deny him restitution on the ground of unjust enrichment. In any event, in such a case it would always be open to the party from whom the excess duty was recovered by the manufacturer, in his turn to recover it from the manufacturer. 20. Mr. Sethna relied on the decision of a Division Bench of this Court in Ogale Glass Works v. Union of India - (1915) 3 Cencus 115 = 1979 (4) E.L.T. (J 468), where at page 131 of the Report it was observed by Mukhi J. under :- "....In the petition before us, I am unable to persuade myself that justice lies on the side of the petitioners and that this Court will be doing justice in ordering the respondents to refund the amount of ₹ 12 lakhs to the petitioners when, to begin with, that money never came from the petitioner's pocket." The decision in Ogale Glass as also the observations of Mukhi, J. have been referred to and discussed in the later Divis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e ground of unjust enrichment as, with respect, correctly observed by the Division Bench of this Court in Maharashtra Vegetables (Supra). The implied suggestion that in the present case also, Government should be directed to open a bank account and start a trust for the benefit of the cigarette consumers, ignores the utter impracticability of an exercise negated by the Supreme Court in Cawasji's case itself. 22. With deep respect to the Delhi, Allahabad and Gujarat High Courts, I follow the decisions of the Division Beaches of the Bombay High Court in Maharashtra Vegetables, Chemical and Fibres, Wipro and Leukoplast, which in my humble opinion correctly interpret the ratio of the Supreme Court in Cawasji's case. 23. The controversy regarding refund must to my mind become academic in view of a statement made by Mr. Sethna across the Bar, which I noted in his own words and thereafter read it over to him. That statement is as under : "Simply because it would amount to unjust enrichment, the claim for refund cannot be disregarded." If it cannot be disregarded, as indeed it cannot be, then refund the amount and get it over and done with. But then, it is not on this stateme ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oners made four applications for refund of the excess excise duty paid on their previous sales on the prices charged by their first wholesalers to the second wholesalers. These applications were as follows :- (1) Application dated 5th February, 1973 for ₹ 10,16,417.83 for excess duty paid on goods removed during the period from 19th March, 1972 to 6th October, 1972. (2) Application dated 14th February, 1973 for ₹ 1,83,685.67 for excess duty paid on goods removed during the period from 15th February, 1972 to 16th March, 1972. (3) Application dated 23rd February, 1973 for ₹ 13,20,083.47 for excess duty paid on goods removed during the period from 29th May, 1971 to 14th February, 1972, and (4) Application dated 26th February, 1973 for ₹ 10,05,944.99 for excess duty paid on goods removed during the period from 1st September, 1970 to 28th May, 1971. 28. By his notice dated 6th September, 1973, the Assistant Collector of Central Excise called upon the petitioners to show cause why all the said application should not be rejected. By their written submission dated 23rd October, 1973 the petitioners showed cause and the Assistant Collector after hearing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istake some time in January, 1973 after the Supreme Court's decision in the Voltas case and Section 17(2) of the Limitation Act, 1953 was applicable to the present case inasmuch as the Central Excise Act and the Rules made thereunder were a special law within the meaning of Section 29(2) of the Limitation Act. Hence the two applications dated 23rd and 26th February, 1973 having been filed within one year after coming to know of the mistake in January, 1973, they were in time and the petitioners were entitled to the refund of the amounts claimed in the said applications; (b) in the case where the recovery of excess amount was without authority of law and was made under a mistake of law and the mistake was discovered after one year which is the period mentioned in the said Rule 11 read with Rule 173-J of the Central Excise Rules; and (c) that since the 3rd respondent had not in his orders even referred to or dealt with the petitioners' contention based on limitation, his orders showed non-application of mind; (3) that the recovery of the excess amount was in non-compliance with the provisions of Section 4 of the Excise Act and was therefore without the authority of law and in viol ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ances, on the ratio of the aforequoted-observations in the decision of the Supreme Court in Bhailal Bhai's case it would be proper to leave the petitioners to seek their remedy for the refund of excise duty on the cause of action under Section 72 of the Contract Act, by the ordinary mode of action in Civil Court rather than exercising the Court's discretion under Article 226 of the Constitution" and dismissed the petition. The learned Judge did not deal with, as stated by him, the main contention of the petitioners viz. that the recovery of excess duty was without jurisdiction and without the authority of law and therefore outside the purview of Rule 11 of the Excise Rules. I may also mention that the learned Judge also did not consider the other important question as to whether he should at all exercise his extraordinary jurisdiction under Article 226 of the Constitution in view of the fact that the petitioners had already recovered the excess excise duty from their wholesalers or the distributors as stated by the respondents in their affidavit, which statement was not controverted by the petitioners. 32. I am dismissing this appeal on both grounds viz. that the petitioners ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... competitive market conditions each year, the petitioners had borne the excess excise duty in such proportion as was required and necessary from a commercial and practical point of view. This again means that they had not borne the excess excise duty every year but had passed it on to others in some years. The petitioners have not chosen to state specifically as to what part of the excess excise duty was borne by them, and in which year, and whether the amounts sought to be recovered in this petition had any relation to those years. Since they were invoking the extraordinary discretionary jurisdiction of this Court under Article 226 of the Constitution, it was necessary for them to make a clean breast of all facts and state in clear and precise terms the excess excise duty, if any, that they had borne and not passed on to their purchasers. Without such clear and unequivocal statement on their part they certainly cannot claim the present equitable relief. What strikes one most is the deliberate attempt on the part of the petitioners to use vague and ambiguous language in this behalf. 34. As against these averments in the petition, the affidavit-in-reply dated 29th March, 1976 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d prices effective from 29th May, 1971 which were admittedly the prices prevailing during the period in respect of which the petitioners claim the present relief. In spite of these categorical assertions by respondent No. 5 that the petitioners had recovered from the distributors the entire excise duty in respect of all the sales for which they were making claim in the petition and further that the excess excise duty had been fully recovered from the consumers and the amount claimed did not in fact or in law belong to the petitioners, the petitioners did not choose to file any affidavit or document to controvert or challenge the said statements. This material therefore more than establishes that the amount of the excess excise duty claimed in the petition has been recovered by the petitioners from their distributors or purchasers in its entirety. Even assuming that the petitioner had not recovered the same wholly and giving the benefit of a liberal interpretation to the petitioners' averments in the petition, they have at least recovered it partly. What part of the excess excise duty has been recovered by them, whether 1% or 99% is however not clear. It was for the petitioners to m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the judicial discretion of another Court. Each Court has to exercise its own discretion on the facts of the case before it. Secondly, even on the exercise of discretion in such cases, we have weighty precedents in support of the view I am taking. There appears to be a lot of confusion on this point which is further confounded by Counsel relying upon different decisions and on different passages from the same decisions to suit their requirements. It has therefore become necessary to discuss in detail the relevant decisions on the point to ascertain the law on the subject. The Supreme Court decision from which mainly the petitioners in such cases draw support to their case is reported in AIR 1975 S.C. 813 = 1978 (8) E.L.T. (J 154) (S.C.) (M/s. D. Cawasji & Co., etc. v. State of Mysore and another). This was a case where the petitioners had claimed refund of the Educational Cess paid during 1951-52 to 1965-66 on shop rentals and tree tax in respect of toddy and duty of excise in respect of arrak and special liquor by invoking the writ jurisdiction of the Mysore High Court under Article 226 of the Constitution, on the ground that the Mysore Elementary Education Act, 1941, and the a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... luminium Industries Ltd., reported in (1965) 16 STC 689 (S.C.) which had followed the decision in Bhailal Bhai's case. The Court also then considered the provisions of Section 17(1)(c) of the Limitation Act, 1963 in this context and observed in paragraphs 8 to 12 as follows :- "8. Therefore, where a suit will lie to recover moneys paid under a mistake of law, a writ petition for refund of tax within the period of limitation prescribed i.e. within 3 years of the knowledge of the mistake, would also lie. For filing a writ petition to recover the money paid under a mistake of law, this Court has said that the starting point of limitation is from the date on which the judgment declaring as void the particular law under which the tax was paid was rendered, as that would normally be the date on which the mistake becomes known to the party. If any writ petition is filed beyond three years after that date, it will almost always be proper for the Court to consider that it is unreasonable to entertain that petition, though, even in cases where it is filed within three years, the Court has a discretion, having regard to the facts and circumstances of each case, not to entertain the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y or levy from their purchasers or customers. In the first instance, it must be remembered that the Supreme Court has made the said observations in the context of the question of limitation which was convassed before it. Secondly, the Court in the case had confirmed the decision of the High Court on the ground that the appellants had not claimed the refund of the amount paid during the years in question, in the earlier writ petitions. The Supreme Court in terms held that in the circumstances of the case, the Court would not be justified in interfering with the discretion exercised by the High Court in dismissing the writ petitions which were filed only for the purpose of obtaining the refund, and in directing them to resort to the remedy of suits. Thirdly, the Supreme Court had by the very same decision disposed of the second batch of appeals. In these appeals the High Court had dismissed the writ petitions on the grounds that they were filed more than 3 years after the payments were made. The facts in that case were that the Act viz. the Mysore Health Cess Act, 1951, as well as the re-enacted Mysore Health Cess Act, 1962 under which the health cess was collected by the Government, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... exercise its extraordinary writ jurisdiction under Article 226 of the Constitution on the ground of unjust enrichment was never raised before the Court in that case and the Court had not answered the same. The observations made in paragraphs 8 to 12, though appear to be general in terms, when read out of context, have therefore to be understood in a proper perspective, it is well settled that the observations in a judgment of a Court have to be read in the context of the questions which fell for consideration before the Court and are not to be read as a statute. What is however more important to note is that in the same year the Supreme Court decided the case of Nawabganj Sugar Mills Co. Ltd. and Others v. The Union of India and Others, reported in AIR 1976 S.C. 1152 where a problem of a little different nature arose and where the state of Uttar Pradesh had reduced the prices of levy sugar by an order issued under Section 3(2)(c) of the Essential Commodities Act, 1955. The sugar Mill-Owners impeached the validity of the said order by petition filed before the Allahabad High Court. The High Court admitted the petitions and granted stay of the operation of the said order on the Mil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ryana Act 22 of 1977. It appears that earlier, some dealers had challenged the said levy as unconstitutional, and the Supreme Court relying on a decision in Kewal Krishna Puri and Another v. State of Punjab and others decided on 4th May, 1979 and reported in the same Volume at page 1008, had ruled that the excess of 1 per cent over the original rate of 2 per cent was ultra vires. While deciding the case of Kewal Krishna Puri (supra), the Court had not ordered the Market Commodities to refund the illegal excess probably because they could not straightway be quantified. The petitioner-dealers therefore, after the decision, applied to the Supreme Court by a set of Writ Petitions for a direction to the Market Committees to refund the excess amount to them. While deciding these petitions, the Court observed in paragraphs 2 and 6 as follows :- "2. Another point. In our jurisdiction, social justice is a pervasive presence; and so, save in special situations it is fair to be guided by the strategy of equity by asking those who claim the service of the judicial process to embrace the basic rule of distributive justice, while moulding the relief, by consenting to restore little sums, taken ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Government. Both the learned Judges referred to the decision of the Supreme Court in the case of Cawasji & Co. v. State of Mysore, AIR 1975 S.C. 813 (supra) as well as Bhailal Bhai's case reported in AIR 1964 S.C. 1006 (supra) and the two earlier decisions of this Court reported in 1961 B.L.R. 318 (State of Bombay v. Morarji) and AIR 1968 Bom. 198 (Paygonda v. Jingonda) and held that the petitioners would not be entitled to the refund of the moneys recovered from them during the period from 1962 to 18th December, 1972 on the ground that justice did not lie on the side of the petitioners since the moneys never came from the petitioners' pocket. It was also further observed that although it was true that the authorities might not have a legal right to retain the money, justice did not require that the money should be transferred from the respondents who had no right to it to the petitioners who also had no right to it. As against this decision, we have the two later decisions of the two other Division Bench of this Court on the basis of which Shri Sethna made the said concession. The first is reported in 1981 (8) E.L.T. 468 (Maharashtra Vegetable products Pvt. Ltd. and another v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssrs Ogale Glass Works Ltd. (supra) viz. that the Court can decline to exercise its equitable jurisdiction in favour of a petitioner on the ground of unjust enrichment. Further as pointed out earlier, the Supreme Court has in terms laid down in Messrs Shiv Shanker Dal Mill's case (supra) that the fact that the money has not come from the pocket of the petitioners but has been recovered by them from others, is a valid consideration to decline to exercise writ jurisdiction in favour of the petitioners. This therefore is the state of law on the subject as far as the Supreme Court and this Court is concerned. As far as the other High Courts are concerned, a Division Bench of the Madras High Court in Messrs Madras Aluminium Company Ltd. and another v. The Union of India and two others, reported in 1981 (8) E.L.T. 478 = 1980 Cencus 50D, after examining the decisions of the various Courts including those of the Supreme Court had held that the excess collection should be directed to be retained by the State as a deposit for the benefit of the actual consumers who had ultimately paid the same. The Court also observed that in an attempt to prevent the State from enriching itself, the Court ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t was while deciding the appeal filed by the Union of India against the said decree that the Court had held as aforesaid and given the relevant direction. I am therefore more than satisfied that the Court can refuse to exercise its extraordinary equitable and discretionary jurisdiction under Article 226 of the Constitution on the ground that the exercise of jurisdiction in favour of the petitioner would result in the petitioner laying his hands on money which does not belong to him and the decisions of this Court in Maharashtra Vegetable Products Pvt. Ltd., Wipro Products Ltd. and Leukoplast (India) Ltd.'s cases do not come in my way in dismissing the present appeal on the short ground that any relief granted to the petitioners would result in unjust enrichment of the petitioners. 34. Apart from the fact that the petitioners are not entitled to invoke the equitable jurisdiction of this Court under Article 226 of the Constitution, I am of the' view that even in law, they may be disentitled to prefer the present claim. The only provision of law under which the petitioners can made the said claim is Section 72 of the Contract Act which reads as follows :- "72. A person to whom ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt in Maharashtra Vegetable Products Pvt. Ltd.'s case (supra). In the first case the Supreme Court has observed that there is nothing in law to prevent the parties who have already recovered the amount from their purchasers, from recovering it from the authorities. In the later case this Court has observed that if a suit were to be filed, the petitioners in that case would have succeeded. It is possible from these observations to hold that the Courts have taken a view of Section 72 which is in conflict with the view I am taking here. It is for this reason that I do not propose to dismiss the appeal also on the ground that the petitioners are not entitled to the claim even in law. However, the view of the section which I have taken and which was not canvassed before the Supreme Court and this Court requires consideration. 35. I am however not inclined to give any direction to the Government to keep the said amount separately for the benefit of the consumers. In the first instance it will be impossible to locate such consumers or for such consumers to prove their claim. Secondly, the amount which now remains in the tills of the Government will be available for the benefit of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... present applications were admittedly made on 23rd and 26th February, 1973 which were therefore both beyond the period of one year. Although an argument was advanced before the learned Single Judge that even to the applications under Rule 11, the provisions of the Limitation Act were applicable such argument was not advanced before us and therefore it is not necessary to consider the same. However, if a decision was necessary on the point, I would record a finding that since Section 29(2) of the Limitation Act cannot apply to applications under Rule 11 of the Central Excise Rules, the applications being not made to a Court, the applications cannot get the benefit of Section 17(1)(c) of the Limitation Act and the period of limitation would not start from the date the mistake was discovered or could have been discovered with reasonable diligence. The learned Single Judge has by discussing the relevant authorities on the point, recorded a similar finding and with respect I am in agreement with the same. It is therefore not necessary to discuss the point in details here. If this is so then the respondents were justified in rejecting the applications on the ground that they were made bey ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arred by the law of limitation, even if the petitioners were to file a suit for such refund, since more than three years had elapsed by that time. However, in order to save the limitation, the petitioners firstly relied upon the provisions of Section 17(1)(c) of the Limitation Act, 1963 which provides that where the suit or application is for relief from the consequences of a mistake, the period of limitation shall not being to run until the plaintiff or applicant has discovered the mistake or could, with reasonable diligence, have discovered it. In order to take advantage of the said provisions of Section l7(1)(c), it is contended on behalf of the petitioners that not until the Supreme Court decided the Voltas case (AIR 1973 S.C. 225) (supra) on 1st December, 1972 that the petitioners had come to know of their mistake. According to me this contention of the petitioners is based both on suppressio veri and suggestion falsi. In fact, in advancing the said contention, the petitioners are guilty of making false statements to their own knowledge. This will be evident from the following circumstances : In the first instance, it is an admitted fact that the very Voltas case (supra) which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ober, 1974 clearly mentions that on 18th February, 1972, the deponent had come across a report of the decision of this court in Queens Chemists case in the Times of India of the same date. In that report, the earlier decision of this Court in the Voltas case was mentioned and it was indicated there that the price charged by the manufacturer must be taken to be the wholesale cash price. Thereafter, he contacted his Solicitor Mr. S.K. Banerjee at Calcutta and also handed over to him immediately a copy of the said press report during his visit to Bombay. The said Solicitor requested him i.e. Mr. Krishnamurthy to obtain a copy of the judgment in the Voltas case and forward the same to him at Calcutta for his consideration. Thereafter Mr. Krishnamurthy contacted M/s. Crawford Bailey & Co. and asked them to obtain a copy of the judgment in the Voltas case and they promised to do so. According to Mr. Krishnamurthy, they also informed him that the Excise Authorities had filed an appeal against the said judgment in the Supreme Court. In the beginning of March 1972, M/s. Crawford Bailey & Co. furnished Mr. Krishnamurthy with a copy of the judgment of this court in the Voltas case and Mr. Kri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion in the Voltas case. Even if however it is held that the petitioners became aware of their mistake on the 22nd September, 1972, the petition filed on 30th September, 1975 for refund of the claim was clearly time-barred. 40. Having realised their difficulty the petitioners raised three alternate contentions in this behalf. Their first contention was that the knowledge of the mistake of law should be attributed to them only from the date the Supreme Court gave its decision on the 1st December, 1972. For this proposition, Shri Desai relied upon a dicision of a Single Judge of this Court reported in 1983 E.L.T. 2238 (Bom.) = 1982 ECR 584D (Golden Tobacco Company Limited v. The Union of India and another). A careful scrutiny of the judgment shows that there was no reference to the High Court decision and no argument was advanced there date of the High Court decision. It is therefore difficult to understand the relevance of the said decision of the present point. It is well settled that it is the first date on which the petitioners learnt or should be deemed to have learnt or could have learnt if they had been diligent that they had made the payment in question under mistake, w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Hymanshu International) and another reported in AIR 1980 S.C. 1037 (supra) and which has already been referred to in another context. In my opinion, the reliance placed on both these decisions for the proposition which they are trying to advance is singularly misplaced. In the first of the decisions, Bhagwati, J. has observed as follows :- "It is high time that Governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a Government or a public authority takes up a technical plea, the Court has to decide it and if the plea is well founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a Government or a public authority, unless of course the claim is not well founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable." (Emphasis supplied) In the second case Justice Krishna Iyer on the same subject has observed as follows :- "Where public bodies, under colour of public laws, recover people's money later discove ..... X X X X Extracts X X X X X X X X Extracts X X X X
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