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TMI Blog1988 (7) TMI 68X X X X Extracts X X X X X X X X Extracts X X X X ..... e Assistant Collector of Central Excise, Calcutta XIV Division, Calcutta and the impugned order in Appeal dated 23-2-1985 passed by the respondent No. 1, Collector of Central Excise (Appeals), Calcutta and for consequential order to refund the sum of Rs. 2.40 lakhs collected from the petitioners in excess of the central excise duty during the year 1981-82 and/or a direction upon the respondents to consider the petitioners' representation dated 7-4-1984 for refund of the amount paid in excess in the light of exemption notification No. 105/80-CE, dated 19-6-1980 as amended and for other reliefs as fully stated in the writ petition. 2. The writ petition and the rule thereon are contested by filing affidavit in opposition. The petitioners hav ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... peal was not in form and/or against the purported letter dated 16-6-1984 no appeal lies. The appeal was rejected as a nullity. 5. Being aggrieved by and/or dissatisfied with the said order/decision dated 16-6-1984 and the impugned order in appeal dated 23-2-1985, the petitioners have come up to this Court and obtained the present Rule. 6. Mr. Das, learned counsel has mainly submitted that it is, however, admitted by the contesting respondents in their affidavit in opposition that where there is very fair admission that the petitioners are covered by the Notification No. 105/80-CE, dated 19-6-1980, while the petitioners are covered by the said notification, they should not suffer due to their inadvertence and/or mistake committed by them ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... delay in filing the same, the evidence for the purpose of resisting such a claim has become unavailable. 8. Mr. Das, learned counsel has also drawn the attention of this Court to the decision reported in AIR 1980 SC 1037 (Messrs Shibsankar Dal Mills v. State of Haryana and Ors.) wherein it was observed that where public bodies, under colour of public laws, recover people's money, later discovered to be erroneously levied, the dharma of the situation demands of no equivocation. There is no law of limitation, specially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor it is palatable to our jurisprudence to turn down the prayer for prerogative writs on the negative pleas of alternative remedy. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... om the relevant date) provided that the limitation of six months shall not apply wherein duty has been paid under protest. 12. It also appears that if no receipt of such an application the Assistant Collector of Central Excise is satisfied that the whole or any part of the excise paid by the applicant should be refunded to him he may make an order accordingly. Where as a result of any order passed in the Court below or under this Hon'ble Court, revision of any excess becomes due to any person the Assistant Collector of Central Excise may refund the amount to such person(s) without his having to make any claim in that behalf. According to Mr. Banerjee, unless the petitioners are able to make out a case within the scope of Section 11B of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um has avoided the responsibility to come to a proper conclusion and to adjudicate the matter in its proper perspective also. This Court with all anxieties scrutinised the cases as canvassed by both the sides and it finds that upon clear conception of the case, the petitioners are covered by the notification to be entitled to the exemption and can certainly ask for the refund. The authorities should have assessed the matter by giving an opportunity of hearing to the petitioners and by passing a reasoned order in accordance with law. 14. For the aforesaid reasons, the impugned order dated 16-6-1984 and the order in appeal dated 23-2-1985 are set aside. The respondents-authorities are directed to consider the representation of the petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X
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