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TMI Blog1980 (2) TMI 97X X X X Extracts X X X X X X X X Extracts X X X X ..... ther unbleached paper which in common parlance is called `Badami' paper is coloured paper so as to fall within the purview of the excepting clause of notifications numbered 209/67 and 210/67 dated 8-9-1967 and notifications numbered 22/68 and 23/68 dated 1-3-1968. 2. The above questions have arisen in the circumstances hereinafter indicated. Parties in both the petitions are common with the only difference that in writ petition No. 825 of 1975 the Collector of Central Excise, Allahabad, who has not been impleaded in writ petition No. 828 of 1975, has also been impleaded as opposite party No. 4. 3. The facts of writ petition No. 825 of 1975 are thus : petitioner is a limited company registered under the Companies Act of 1956. It carries on the business of manufacturing paper. Between 8-9-1967 and 20-12-1967 it cleared Badami paper after payment of excise duty relating to coloured paper; in this manner the petitioner paid Rs. 64,421.15 as stamp duty; according to the petitioner it was liable to pay the excise duty at concessional rate prescribed under Notification No. 208/67, dated 8-9-1967; if excise duty was calculated at concessional rate the amount of duty came to Rs. 45,094.7 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the Collector giving grounds in justification of his claim for refund; in this reminder the petitioner's letter dated 26-4-1971 was described as an appeal. Through his reply (Annexure 17) the Collector informed the petitioner that his appeal was being forwarded to the Appellate Collector, Central Excise, New Delhi who was the authority competent to decide the appeal; by order dated 29-1-1973 (Annexure 18) the Appellate Collector dismissed the appeal as time-barred; thereafter on 1-5-1973 the petitioner preferred revision under Section 36 to the Central Government. This revision was dismissed by the Central Government by order dated 30-5-1974 (Annexure 20) observing that the Appellate Collector was right in holding that the appeal was barred by time. The petitioner then preferred the present writ petition in this Court on 21-3-1975, that is, after about more than nine months of the passing of the revisional order by the Central Government. From the facts hereinbefore narrated it would be seen that the petitioner's claim for refund was not examined on merits either by the appellate authority or by the revisionary authority. Occasion for examination of the case on merits did not ar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... basis. It was further pleaded that opposite parties had no legal right to retain the money illegally realised from the petitioners. It was also argued that the petitioner had not preferred any appeal under Section 35 of the Act and the petitioner's representation was wrongly treated as an appeal. On this basis it was urged that since the petitioner did not prefer any appeal the period of limitation prescribed under Section 35 did not operate against it. 6. In writ petition No. 828 of 1975, the petitioner relied upon Notification No. 23 of 1968, dated 1-3-1968 and urged that excise duty was payable on the concessional rate prescribed in this notification. 7. On behalf of the opposite parties it was denied that excise duty was incorrectly charged from the petitioner. It was urged that "Badami" paper bore a colour and, therefore, it had to be treated as a coloured variety and, therefore, concessional excise duty prescribed in respect of other paper could not be applied in respect of "Badami" paper. It was also pleaded that the document which the petitioner now asserts as a representation was actually an appeal and was rightly treated as such. It was also asserted that the petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... -9-1968 while the petitioner preferred his claim for refund only on 15-10-1970. Under Rule 9 the excise duty is paid before the goods are removed. Under Rule 11 the claim for refund has to be lodged within three months from the date of payment or adjustment of the excise duty. Thus, the cause of action for preferring the claim under Rule 11 accrued to the petitioner on each of the dates on which he paid the duty and removed the goods. In writ petition No. 828 of 1975 the last date on which the goods were removed is 18-9-1968. Thus, the application for refund which under Rule 11 was required to be filed within three months, was actually filed by the petitioner after almost two years. The petitioner is obviously guilty of laches and the said laches not having been explained they cannot be overlooked or condoned. 10. Coming to the second question the petitioner's case is that he never preferred any appeal under Section 35 and what he had preferred was merely a representation and, therefore, the period of limitation prescribed under Section 35 never started running against it and consequently the appellate authority erred in rejecting the appeal as time-barred and the revisional autho ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on or order appealed against: Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order. (2) Every order passed in appeal under this section shall, subject to the power of the revision conferred by Section 36 be final. 12. Under the above provision the period of limitation prescribed for preferring appeal is three months. The period of three months is to be computed from the date of decision or order appealed against. In writ petition No. 825 the petitioner's claim for refund was rejected by order dated 28-7-1970. The petitioner thereafter preferred Annexure 15 to the Collector on 26-4-1971. This was much after the period of three months prescribed under Section 35. In writ petition No. 828 of 1975 the Assistant Collector rejected the petitioner's claim for refund on 12-10-1971. The order was received by the petitioner on 26-10-1971 and he preferred appeal before the Appellate Collector on 29-5-1972. This appeal was also beyond the period of three months prescribed under Section 35. The Appellate Collector, therefore, was legally correct in holdi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... application for refund can be maintained under Rule 11. If the application for refund is illegally rejected there is provision for appeal under Section 35. Thereafter revision is provided for to the Central Government under Section 36. The petitioner did not avail of the remedies provided under the Act and the rules in the manner provided thereunder. If the amount of duty had been illegally realised the petitioner could under the ordinary law, file suit for recovery of the illegally realised amount only within three years from the date of the accrual of the cause of action. In view of fact that under Rule 9 excise duty is realised before the goods are removed, cause of action accrued on each day the goods were removed. In writ petition No. 825 of 1975 the last date of removal of goods is 20-12-1967 and in writ petition No. 828 of 1975' the last date is 18-9-1968. The period of three years computed from these last dates expired some time in September 1971. The writ petitions in this Court were filed only in the year 1975. Thus, if the petitioner instead of approaching this Court under Article 226 had approached the regular Civil Court his suit would have been thrown oat on the plea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... all not be allowed to be changed during that year. Notification No. 209/67, dated 8-9-1967- "In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby makes the following further amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 163/65-Central Excise, dated the 1st October, 1965, namely :- In the said notification, in column 2 of the Table, for the words and figures "of a substance not exceeding 75 grammes per square metre" against Item (b) of Serial No. 1, the following shall be substituted, namely :- 'other than coloured varieties thereof, of a substance not exceeding 75 grammes per square metre. Notification No. 210/67, dated 8-9-1967. "In exercise of the powers conferred by sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby makes the following further amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 24/65-Central Excise, dated the 28th February, 1965, namely :- In the said notification, in the Table for the existing entry in column 3 against Ser ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have the effect of replacing the words 'coloured varieties' by the words 'including all unbleached and tinted varieties there of but not including other coloured varieties. The consequence of this replacement is that it is made clear that the term 'coloured varietie's is not applicable to unbleached paper although it bears tint or colour. These notifications will be applicable to the excise duty which is the subject-matter of writ petition No. 828 of 1975 as the duty in this case was paid between the period 1-3-1968 to 18-9-1968, that is after the enforcement of these notifications. It is clear that the concessional rate would be applicable to 'Badami' paper if the same can be said not to fall in the category of 'coloured varieties'. If the said paper can be said to fall within the mischief of the term "other coloured varieties" concession in rate of duty will not be applicable. This brings us to the question when a paper becomes a coloured paper. Involved in this is the question how paper is manufactured. The process has been described in Encyclopaedia Britanica 1968, Vol. 17 at pages 281 to 284. It is observed in this book thus : "All natural fibrous materials and unbleached pulp ..... X X X X Extracts X X X X X X X X Extracts X X X X
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