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TMI Blog1985 (8) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... period commencing from June 1, 1970 to March 31, 1971, has been rejected; (ii) that it may be declared that the realisation of the excise duty of Rs. 50,900.78, from the petitioner for the period June 1, 1970 to March 31, 1971, on A.A.C. and A.C.S.R. conductors manufactured by the petitioner was illegal and that rule 11 read with rule 173J of the Central Excise Rules, 1944 (for short "the Rules" herein) was not applicable to the petitioner's case for refund; (iii) that the amount of Rs. 50,900.78 realised from the petitioner for the period from June 1, 1970 to March 31, 1971, irrespective of the provisions of rule 11 read with rule 173J of the Rules, may be ordered to be refunded with interest at the rate of 1% p.m. 2. It is not nece ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ssistant Collector, Customs and Central Excise, Jodhpur (non-petitioner no. 3) by his order no. 20661 dated August 8, 1973, rejected the claim for the refund of the central excise duty amounting to Rs. 58,861.10 on merits as well as on the ground of limitation, holding that the petitioner's claim to concessional assessment at the rate of 4% had been rejected by him by his order no. 20652 dated August 8, 1972. The Appellate Collector, Customs and Central Excise, New Delhi (non-petitioner no. 2), by his order (Annexure 5) dated October 29, 1975, dismissed the appeal on the ground that the petitioner's appeal in the matter of concessional assessment (revised classification list) had been rejected by his order dated October 3, 1973. He also hel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the non-petitioners, contended that the application for refund, having been made beyond the period of limitation, it was rightly not entertained. A somewhat similar question arose in D. Cawasji and Co. v. State of Mysore 1978 ELT (J 154). K.K. Mathew, J. speaking for the court, observed as under :- "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 three 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 unde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as no subsisting liability or intention to refund it to them, or, for any reason, it is impracticable to do so." 6. The learned single Judge in R. J, Engineering's case - 1985 (22) E.L.T. 782 (Raj), noticed D. Cawasji's case 1978 E.L.T. (J 154), and excerpted paras 9, 10, 11 and 12 of the report. We have already reproduced paras 8, 9 and 10. 7. In an earlier Division Bench judgment in Prem Cables (P) Ltd. v. The Assistant Collector (Principal Appraiser), Customs, Bombay and Another 1981 E.L.T. 440 (Raj) = 1978 WLN 481 to which I was a party, questions in regard to delay and refund of the duty recovered illegally, came up for consideration. It was held by the Division Bench that the writ petition cannot be dismissed solely on the ground ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... istant Collector passed the order on August 8, 1972. The appeal against that order was decided on October 25, 1975. Against this order, the Central Government decided the revision on April 1, 1978, and held that the petitioner was liable to pay excise duty at the rate of 4% and not 5%. The writ petition, as stated above, was filed on January 9, 1979. The petitioner has been pursuing his remedy and ultimately by order passed in revision, it was decided that it is liable to pay 4%. In these circumstances, non-petitioner no. 1 was not right when it passed the order Annexure dated April 6, 1978 holding that the refund claim for September, 1971 is allowed and the rest rejected on the ground of limitation under rule 11 read with rule 173J of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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