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TMI Blog1967 (3) TMI 116X X X X Extracts X X X X X X X X Extracts X X X X ..... 966-67. When the plaintiff came to know of the aforesaid exemption on the 8th January, 1958, it applied for refund of ₹ 15,296, the sum of money which had been paid by the plaintiff to the defendant as Excise Duty by mistake, to the Assistant Collector, Central Excise, Patna. The plaintiff's application for refund of the aforesaid amount was rejected by the Assistant Collector. Central Excise, Patna, and its appeal to the Central Excise Collector, Patna, and the revision application before the Joint Secretary. Ministry of Finance, having also failed, the plaintiff was compelled to institute the suit for recovery of ₹ 18,296, as aforesaid, after due service of notice under Section 80 of the Code of Civil Procedure. 3. The suit was resisted by the defendant on the grounds, inter alia, that the allegation of the plaintiff that it did not know of the notification exempting first 125 tons of soap was wrong, that the plaintiff was a very big concern and produces many commodities chargeable to the Central Excise Duty and maintains a regular office and that the plaintiff had full knowledge of the exemption and was fully aware of the same when it paid the Excise Duty, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th January, 1968, the date on which the mistake became known to the plaintiff, was not barred by limitation and should have been therefore, decreed in full. Mr. K. P. Verma, who appeared for the defendant, on the other hand, contended that the findings of the trial Court, both on the question of the plaintiff's knowledge of the exemption as also on the question of limitation, were correct and should not be interfered with. 6. The question arises for determination: (1) Is the plaintiff's case true that it came to know about the exemption of first 125 tons of soap granted under the notification, dated the 1st March, 1966, on or about the 8th January, 1968, as alleged by it?, and (2) whether the suit was governed by Section 40(2) of the Central Excises and Salt Act. 1944, or else by Article 96 of the Indian Limitation Act, 1908. 7. The case of the plaintiff, as indicated above, is that the duty sought to be recovered was paid under a mistake and that the said mistake was discovered for the first time in January, 1968. P.W. 1, who has been working in the vegetable and soap department of the plaintiff since 1945 and was the go-down-in-charge and who has claimed to be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the 23rd February, 1956. The order of exemption for the year 1956-57 (Ext. D) itself was published in the Gazette of India, dated the 1st of March, 1956. Accordingly, the entry in the A.R. forms (Exts. A to A/4), all of February, 1956, of the words free from duty is no indication whatsoever about the plaintiff's knowledge of an exemption which admittedly came into existence later. I, therefore, hold that the plaintiff's case that it came to know about the exemption in or about January, 1958, and, in any case, not before November, 1957, is true and must be accepted. 8. On the second question, the trial Court without practically any discussion has expressed the opinion that the suit was covered under Section 40(2) of the Central Excises and Salt Act, 1944, and that it, having been filed beyond the period of limitation prescribed therein, was not barred by limitation. In regard to Article 96 of the Limitation Act, it has held that the plaintiff having knowledge of the exemption in February, 1966, the payment of duty was not under a mistake at all and, as such. Article 96 was inapplicable; and, even if it were assumed that Article 96 was applicable, the suit having bean ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . The application for refund (Ext. 1/c), dated the 21st March, 1958, was in fact and in substance an application for an equitable relief at the hands of the authority to whom the aforesaid sum of ₹ 15,296 had been paid under a mistake. In the aforesaid context, neither the order of the Assistant Collector rejecting the claim of plaintiff as time-barred (vide Ext. 1(i), dated 23rd July, 1958), nor, the order of the Collector. Central Excise dated the 10th January, 1959 (Ext. 6) declining, to interfere, with the order passed by the Assistant Collector, Central Excise, or, the order of the Joint Secretary, Ministry of Finance, Government of India, dated the 27th October, 1959 (Ext. 6/a), finally rejecting the plaintiff's prayer for refund, were orders passed under the Act. Indeed, if the original order passed by the Assistant Collector of Central Excise, Patna, dated the 23rd July, 1958 (Ext. 1/1), was not an order passed under the Act, no appeal, as provided for under Section 36 or revision at provided for under Section 36 of the Act were permissible, and, any order, therefore, passed either by the Collector, Central Excise, or by the Joint Secretary, Government of India, c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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