9911796707
TMI Blog1983 (11) TMI 73X X X X Extracts X X X X X X X X Extracts X X X X ..... insertion of tariff item 18-E by notification dated 16/17th March, 1972, no excise duty was payable on blended yarn. Based on this discovery made on 9-11-1976 after the payment of the aforesaid amount of Rs. 10,66,555.52 for the period between December 10, 1968 and January 29, 1972, this petition under article 226 of the Constitution, has been filed on 23-6-1980 for a direction to the respondents to refund this amount to the petitioner. The petitioner had also filed a revision under Section 36 of the Central Excises and Salt Act, 1944 against this levy on 6-11-1979, which was dismissed by the Central Government on 26-5-1980, and the order being communicated to the petitioner after filing of this petition, the further relief of quashing the Central Government's order dated 26-5-1980 has also been claimed by amendment of the petition. 2. Shortly stated, the petitioner's case is that the payment of the aforesaid amount of Rs.10,66,555.52 having been made by the petitioner as excise duty under a mistake of law, the respondents are bound to refund the same. The petition has been opposed by the respondents on several grounds. In reply, it has been contended that there has been inordin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g separately for excise duty on blended or Mixed yarn with effect from 17-3-1972, a doubt appears to have arisen in the mind of persons who had paid excise duty earlier, like the petitioner, on blended yarn in accordance with tariff Item 18 or tariff item 18-A. Challenge by one of them in Gujarat High Court led to the decision in The Ahmedabad Manufacturing and Calico Pvt. Ltd. v. Union of India and Others, special Civil Application No. 1058 of 1972, decided on 15-1-1976, which was also reported in the March, 1976 part of the Central Excise and Customs Journal. Therein, it was held that tariff item 18 or 18-A did not cover blended yarn and, therefore, excise duty could be levied on It only with effect from 17-3-1972. On introduction of tariff item 18-E to cover that commodity. On the petitioner's own case. The payment made by it under mistake of law of the aforesaid amount known to it only on 9-11-1976, when one of the officers of the company was told about the Gujarat decision given earlier, at the time when the officer met the petitioner's advocate at Delhi for consultation in respect of a connected matter. The period after 9-11 -1976, when the petitioner admits deriving knowledg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tation, should not be taken by the Government as repeatedly observed by the Supreme Court and the High Courts. He also argued that notwithstanding the Gujarat decision, as a result of which the petitioner discovered payment of excise duty under a mistake of law, when that decision was known to it on 9-11 -1976, the petitioner was entitled to wait till any decision of the Supreme Court or of this Court was given on the point. Admittedly, no decision on the point of the Supreme Court or this Court has been given so far and, therefore, if the learned Counsel for the petitioner be right, then no occasion has arisen even now for the petitioner to apply for refund. It is sufficient to say that this last argument is contrary to the petitioner's own case of discovery of payment under a mistake of law by it on 9-11-1976. This last argument is based on a passing observation made in a decision of this Court in Caltex India Ltd. v. Assistant Commissioner, Sates Tax, AIR 1971 MP 162, to which reference will be made later. We shall now refer to the decisions on which reliance has been placed by both sides. 6. it is settled, as has been reiterated recently in Sudama Devi v. Commissioner, AIR 19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xed by the legislature as the time within which relief by a suft in a civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. The position was ultimately summarised by their Lordship as under :- "It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil Court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known." This decision was approved by a Bench of 7 Judges in State of Kerala v. Aluminium Industries Ltd., (1985) 16 STC 689, (S.C.) and has been consistently followed thereafter. It was expressly held that the question w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich the mistake, becomes known to the party. If any writ petition is filed beyond three years after that date, it will almost always be proper for the Court to consider that it is unreasonable to entertain that petition, though, even in cases where it is filed within three years, the Court has a discretion having regard to the facts and circumstances of each case, not to entertain the application." 9. Learned Counsel for the petitioner himself placed greatest reliance on D. Cawasji's case (supra). The summary of the decision quoted above indicates that the Supreme Court reiterated once again what had been said in the earlier decisions, after referring to those earlier decisions, and it was once again held that a writ petition filed beyond three years of the date on which the mistake is discovered, will almost always be considered to be unduly delayed, even though a petition filed within three years may, in certain circumstances, be also treated as delayed. This case does not in any manner assist the petitioner. 10. Reference may now be made to the decision of this Court in Caltex (India) Ltd. v. Asstt. Commissioner Sales Tax, AIR. 1971 MP 162, which was relied on by the learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o account for the delay in filing this petition from 9-11 -1976 when the petitioner claims to have known for the first time that payment of the aforesaid excise duty was made by it under a mistake of law. A period of nearly five years had already elapsed by then from the expiry of the period for which refund was claimed and there is no reason why the petitioner should have delayed filing the petition thereafter. Not only this, the delay after 9-11-1976 itself is more than three years and the petition was filed only on 23-6-1980. We have no doubt that a civil suit filed for refund of the excise duty on discovery of the mistake of law on 9-11-1976 would have been clearly time barred on the date of this petition. There are no circumstances, much less any extraordinary circumstances to overcome this difficulty and to account for the delay In filing the petition in order to enable us to depart from the ordinary and normal rule to be applied in such cases, as indicated by the Supreme Court time and again in the decisions cited earlier. We are, therefore, of the opinion that the petition should be dismissed on this ground alone, without going into the further question of unjust enrichment ..... X X X X Extracts X X X X X X X X Extracts X X X X
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