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TMI Blog1986 (7) TMI 101X X X X Extracts X X X X X X X X Extracts X X X X ..... ence, number of other processes or operations are carried out to suit the convenience of the customers. The manufacture of extruded tube was liable for excise duty under Sub-item 27(e) of the First Schedule to the Central Excises and Salt Act, 1944. Sub-item 27(e) reads as under : "27. Aluminium - (e) Extruded shapes and sections including extruded pipes and tubes." Till April 1, 1970 duty on extruded aluminium tubes was imposed on tariff value as determined by the Superintendent of Central Excise and subsequent to that date excise duty was charged on the value of such extruded tubes. After April 1, 1970, the Superintendent of Central Excise used to include in the assessable value of aluminium extruded tubes the costs and charges of p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... On May 31, 1982 the petitioners were directed by the authorities to file the refund claim in Form Appendix I and the petitioners complied with the demand. But the refund applications were not considered and decided. The petitioners thereupon filed the present petition on July 22, 1982 under Article 226 of the Constitution of India seeking refund of Rs. 18,30,509/- along with interest on the ground that the excess duty was levied and recovered from the petitioners without authority of law. 3. Shri Hidayatullah, learned Counsel appearing on behalf of the petitioners, submitted that in view of the dictum laid down by this Court in the case of Metal Box Company the recovery of excess duty by the Excise authorities was clearly without authorit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Supreme Court reported in 1978 E.L.T. (J 154) (D. Cawasji Co. Ors. v. State of Mysore and another). D. Cawasji Co. had filed writ petition before the High Court of Mysore under Article 226 of the Constitution of India for a declaration that the Mysore Elementary Education Act, 1941 and the amendments to it providing for levy and collection of Education cess were beyond the competence of the Legislature and for refund of cess paid during 1951-52 to 1965-66. The High Court had rejected the petition on the ground of delay. The Supreme Court observed in paragraph 8 of the Judgment that as the 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, that is ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which would often be the case, if the suit or application could be brought at any time within three years of a court declaring the law under which it was paid to be invalid, be it a hundred years after the date of payment. Nor is there any provision under which the court could deny refund of tax even if the person who paid it has 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. In the U.S.A., it is generally held that in the absence of a statute to the contrary, taxes volutarily paid under a mistake of law with full knowledge of facts cannot be recovered back while taxes paid under a mistake of fact may ordinarily be recovered back (see Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1 E.L.T. 468 (Maharashtra Vegetable Products Pvt. Ltd. Anr. v. Union of India and others. In the case before the Division Bench a refund application was made on September 1, 1976 claiming refund of excise duty collected in excess on account of packing costs, freight, marketing and distribution expenses of Vanaspati for the period from April 15, 1970 to November 30, 1974. Before the Division Bench a contention was raised that the claim beyond the period of three years was barred by limitation, but the Division Bench turned it down holding that any recovery which is unauthorised will be recovery without authority of law and the petitioners would be entitled to claim refund of excess amount for the period beyond three years from the date of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the petition that it has been repeatedly held that the claim for refund is not governed by the rules of limitation, if recovery is illegal and without jurisdiction. The Division Bench granted the refund for the entire period as demanded by the tax payer. There is one more decision of this Court reported in 1983 E.L.T. 2238 (Golden Tobacco Co. Ltd. v. Union of India Anr.), where Mr. Justice Madon, as he then was, granted refund for the period commencing from March 1, 1965 and ending with August 31, 1972 on the petition filed on August 11, 1975. The learned Judge rejected the contention about the claim being barred by limitation by referring to the decisions of Division Bench referred to herein above. 6. In view of the dictum laid down ..... X X X X Extracts X X X X X X X X Extracts X X X X
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