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TMI Blog1986 (2) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... itional Secretary, Government of India, Ministry of Finance, respectively, and further by issuing a writ of mandamus, the respondents be directed to refund the amount of Rs. 1,03,676.40 p. together with interest at the rate of 18 per cent from the date of collection till payment. 2. In short, the petitioners' case is that petitioner No. 1 Advani-Oeriikon Ltd. is a company registered under the Companies Act and carries on business of manufacturing welding electrodes and the petitioner No. 2 is the Director and shareholder of petitioner No. 1. Welding electrodes are excisable product and an item under-Tariff Item No. 50 to the First Schedule of the Central Excises and Salt Act, 1944 (hereinafter referred to as the "Act"). During the period f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd 16-4-1981 on the ground, inter alia, that within the prescribed period of limitation, as contemplated under Rule 11 of the said Rules, the application for refund was not made and therefore, the same, being barred by limitation, the petitioners are not entitled to get any refund. However, dismissing the application on the ground of limitation, the taxing authorities have definitely reached the conclusion that due to common mistake of law committed by both the sides, the amount in question was deposited by the petitioners. 5. It is against the rejection of the application for refund that the present petition has been filed. 6. The petitioners' main contention is that if both the sides have committed common mistake of law in depositing an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . But, in the instant case, the petitioners, instead of availing of the remedy provided under the general law, against the order of respondent No. 1, have filed this writ petition. 10. Under Article 113 of the Limitation Act, 1963 which is admittedly applicable to the facts of this case, a suit for recovery of such excess duty/tax paid, has to be filed within three years from the date of payment. The amount was paid during the period from 17-6-1971 to 31-3-1972 and the application for refund was filed on 19-6-1974. Therefore, the amount of tax so paid by the petitioners from 19-6-1971 to 3-3-1972, the application for its refund being within limitation in accordance with the provisions of Article 113 of the Limitation Act, 1963, excluding t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder appeal and revision, immediately thereafter, the petitioners by invoking the provisions of Articles 226 and 227 of the Constitution of India, have filed this petition and therefore, in our opinion, the relief as claimed by them for refund of the amount for which even the respondents have admitted that under mistake of law they have accepted the amount, cannot be denied. 12. In Shri Vallabh Glass Works Ltd. and Another v. Union of India and Others -1984 (16) E.L.T. 171 (S.C.) = AIR 1984 SC 871 it has been held that for excess duty paid, relief under Article 226 of the Constitution of India could be granted where initially the application for refund was made within three years. In the instant case also as stated aforesaid, the applicati ..... X X X X Extracts X X X X X X X X Extracts X X X X
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