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TMI Blog1987 (12) TMI 38X X X X Extracts X X X X X X X X Extracts X X X X ..... or not flavoured or sweetened whether or not containing vegetable or fruit juice of fruit pulp." Ten per cent ad valorem . 3. It was enhanced to 20% with effect from 17th March, 1972 on aerated water, in the manufacture of which blended flavouring concentrates in any form was used'. In 1976 the entry I-D was amended and the amended entry reads as under : "Aerated Waters, whether or not flavoured or sweetened and whether or not containing vegetable or fruit juice or fruit pulp. (1) Aerated waters, in the manufactures of which blended flavouring concentrates in any form are used - (a) For each unit container containing 200 millilitre of less Twenty-Five paise. (b) For each unit container containing more than 200 millilitre Twenty-five paise plus ten paise for every hundred millilitres or fraction three in excess of 200 millilitres. (c) All others Fifty-five per cent ad valorem . (2) All others Twenty per cent ad valorem ." But by a notification issued by Central Government on 16th March, 1983 in exercise of power conferred by sub-rule (1) of Rule 8 of the Central Exc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... concentrates. In coming to this decision reliance has been placed in the decisions referred above on volume of material which need not be reproduced here. Even the Deputy Chief Chemist in his letter (No. 70 Ex. D/80, dated 23rd August, 1980) opined that Coca-Cola was not manufactured by 'blended flavouring concentrates'. Thus it is too late in the day to claim the Coca-Cola and Fanta were manufactured with 'blended flavouring concentrates'. The levy of duty at 20%, therefore, was not warranted by law. 5. Constitutional protection granted under Article 265 against levy or collection of tax except in accordance with law extends to excise duty as well. Tax paid where it was not payable, either because of compulsion provisions in the statute or notification or even in ignorance of legal position is a payment made under mistake of law [Sales Tax Officer Banaras v. Kanhaiya Lal Mukundi Lal Saraaf (A.I.R. 1959 S.C. 135), State of Madhya Pradesh v. Bhailal Bhai (A.I.R. 1964 S.C. 1006), State of Kerala v. Aluminium Industries], Since Section 72 of Contract Act does not make any distinction between mistake of law and mistake of fact the development of law in English and American Courts wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ue to petitioner's declaration that Coca-Cola and Fanta were manufactured from blending flavouring concentrates and limitation as the application for refund was made much beyond six months from the date of payment. In our opinion the government it precluded from agitating that the beverages were manufactured from blending flavouring concentrates as the issue was not only decided in Duke and Co. but the view taken by Bombay High Court was accepted by Department and Review Committee of Government of India, the highest body under the Act to adjudicate upon such disputes. The Assistant Collector, Excise, therefore, committed manifest error of law in disregarding the order of Government of India and rejecting claim of petitioner for refund of part of excise duty paid between 1st August, 1976 to 17th June, 1977 because it was manufactured from concentrate. Even the plea that petitioner cannot be permitted to go behind the declaration made by it is not well founded. Estoppel cannot operate against constitutional prohibition. Neither the tax payer can be estopped from claiming refund of amount paid under mistake of law nor can the Tax Collector be permitted to take shelter behind estoppel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... re not excisable or were entitled to exemption from duty and no Court shall have any jurisdiction in respect of such claim." 9. A bare reading of Sub-section (1) and (5) demonstrates in no unmistaken terms that one deals with refund of 'excise duty' and other with amount, 'collected as duty of excise'. But the Legislature having itself made distinction between 'payment of duty' and 'collection of amount as excise duty' cannot be intended to have included in Clause (f) collection of amount as duty by implication. If the clause would have read, 'in any other case from the date of payment' then it could apply both the Sub-section (1) and (5). But use of word 'duty' in Clause (f) confines its applicability to Sub-section (1) only. When two words 'duty' and 'as duty' are used in the two sub-sections then in absence of any indication to the contrary the word 'duty' in Sub-clause (f) has to be understood in the sense it has been used in Sub-section (1). Therefore, it cannot apply to collection 'as duty of excise'. Further more if Clause (f) is held to apply to Sub-section (5) and the application for refund can be filed within six months only from the date of payment of duty the remedy o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... after six months even from the date of knowledge of mistaken law, the Assistant Collector did not commit any error in rejecting the application as barred by time. Submission however, was that even though remedy of petitioner might have become barred under the statute it was still entitled to a direction from this Court in its extraordinary jurisdiction, as there was no limitation for issuing direction by this Court specially when the action of opposite party was in violation of constitutional prohibition in Article 265. That there is no limitation for filing a writ petition cannot be disputed. Nor the right of payer of tax or duty to approach under Article 226 for refund is eroded because the remedy under statute is barred. In Shri Vallabh Glass Works Ltd. v. Union of India [1984 (16) E.L.T. 171 (S.C.) = (1984) 3 S.C.C. 362] it was held by the Hon'ble Court that remedy under Article 226 was in addition to the ordinary remedy provided under statute for which there is no limitation. However, the very absence of any rule or law limiting the exercise of power under Article 226 has resulted in growth of self imposed restrictions and propriety of exercise of discretion. In the very case ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... know about the judgment of Bombay High court for the first time in July, 1977 when they received a letter from Coca-Cola Export Corporation that since the beverages contained only synthetic materials and not any blended flavouring concentrates they were liable to pay at lower rate. Assuming it to be so the claim for refund covered by the application made in August and November, 1977 are being accepted. But what prevented petitioner from moving the application in respect of other payments. Why did it wait till July, 1980. Even this petitioner was presented on 10th July. That is just on the day three years was expiring if the period of three years is calculated from 11th July, 1977. There was no warrant for this waiting. The test of reasonable period laid down in Bhailal Bhai's (Supra) case is not available to petitioner. By its own conduct it has forfeited its claim. The rule of discretion that a person may approach this Court for refund within three years does not create a statutory limitation which permits a petitioner to claim that since one day still remained its claim was within limitation. The petitioner having come to know of the mistake of law in July, 1977 could not wait t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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