9911796707
TMI Blog1988 (4) TMI 70X X X X Extracts X X X X X X X X Extracts X X X X ..... R.C. 36/84 pursuant to a reference made by Excise, Custom and Gold Control Tribunal under S. 35G of the Central Excises and Salt Act, 1944. The writ petition was filed by the petitioner in order to meet an objection raised during the course of appeal before the Tribunal and also in the arguments before this Court in R.C. No. 36/84 that without invoking the jurisdiction under Art. 226 of the Constitution of India, it is not open to the petitioner to claim refund for any period except under Rule 11 of the Central Excise Rules. The Tribunal held that the application of the period of limitation under general law can arise only in a writ proceeding in the High Court and it cannot be considered in the course of statutory remedies availed by the p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nnot be applied by this court except in a writ proceeding, the present writ petition was filed. The petitioner submitted that the delay in the filing of the writ petition may be condoned having regard to the facts and circumstances of the case. 3. We are satisfied that this is a case warranting our sympathetic consideration. The petitioner had been pursuing its efforts to secure the refund from 1971 onwards. It cannot, therefore, be said that there are laches on the part of the petitioner. If the petitioner mistakenly thought that without invoking the jurisdiction under Article 226 of the Constitution, it could still canvass for the refund of the amount in the course of the appeals filed under statutes, it cannot be held that the petition ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... advanced, we are unable to entertain this plea for one reason. The plea of unjust enrichment was not taken by the authorities below, namely, the Asst. Collector, the Appellate Collector or the Appellate Tribunal, as the case may be. The only ground upon which the claim for refund was rejected was that it was outside the period of limitation. We cannot overlook the fact that the Department itself granted refund for the period 1-3-1978 to 31-8-1978 and the grant of refund for this period would constitute self-contradiction of the claim that it was a case of unjust enrichment. If that is so, the claim for refund for the period 1-3-1978 to 31-8-1978 also should have been rejected but that was not the case. In any event, no foundation is laid fo ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
