9911796707
TMI Blog1989 (3) TMI 133X X X X Extracts X X X X X X X X Extracts X X X X ..... 9th of February, 1980 and 29th February, 1980 being within the period of six months from the date of the filing of the application and rejecting their claim for refund for the period 1st April, 1979 to 18th of February, 1980 on the ground that the same was barred by the period of limitation contemplated under Rule 11 of the Central Excise Rules as that claim was filed beyond the period of six months. The Petitioners also challenged the order dated the 7th of October, 1983 passed by the Collector of Central Excise (Appeals) Bombay whereby the order of the Assistant Collector dated the 30th of March, 1981 was confirmed. The Petition makes a claim of refund of a sum of Rs. 1,10,995.97 P on the ground that the same was paid under mistake of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e filed the present Petition. 3. In view of the decisions in the case of Miles India Ltd., Baroda v. Appellate Collector of Customs, Bombay, 1983 (13) E.L.T. 1026 (C.E.G.A.T.), and Miles India Ltd. v. The Assistant Collector of Customs, 1987(30) E.L.T. 641 = 1985 ECR 289 (S.C.), it will have to be held that the Assistant Collector and the Collector (Appeals) being creatures of statute, were bound by the period of limitation provided in Rule 11 of the Central Excise Rules. Their impugned decisions, therefore, cannot be successfully assailed. 4. Shri Shah, the learned Counsel appearing on behalf of the Petitioners, by placing reliance on the case of T.T. Pylunny Royal Smiths, Kunnakulam v. Union of India and Others, decided by the Kerala Hi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for the exemption in that case can only be determined at the end of the financial year. Hence, if the application for refund is made within a period of six months from the end of the financial year, the same would be well within the period of limitation. The exemption notifications in the instant case are, however, distinct. They give exemption in the case of first clearance of goods upto the aggregate value of Rs. 15,00,000/-. If the duty was paid at the time of clearance in respect of goods within the limit of Rs. 15,00,000/-, the period of limitation would begin from the date of the payment of the duty. This part of the contention of Shri Shah is, therefore, liable to be negatived. 6. However, merely because the Assistant Collector or t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a mistake and, therefore, they are liable to refund the same under provisions of Section 72 of the Indian Contract Act. Section 17(c) of the Limitation Act provides that where, in the case of any suit or application for which a period of limitation is prescribed by this Act, the suit or application is for relief from the consequences of a mistake, the period of limitation shall not begin to run until the applicant has discovered the mistake or could, with reasonable diligence, have discovered it. In the present case, the mistake was discovered when the Petitioners came to know of the aforesaid Notification only after the 19th of June, 1980 when a further Notification was issued enhancing the exemption limit contained in the second notifica ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Petitioners have passed on the burden of the levy upon their customers. Hence it would not be open to the Respondents to raise the plea of unjust enrichment. 10. In my view, having regard to the fact that the Petitioners had paid the duty on account of their ignorance of the exemption notifications, it would be reasonable to infer that they have passed on the burden of the levy upon their customers. Having regard to the fact that the issue regarding the entitlement of refund, in view of the objection in regard to unjust enrichment, has been referred to the Full Bench in Writ Petition No. 1336 of 1987, I hold that the relief prayed for in prayer clause (b) of the present Petition would abide by the result of the said petition by the Full Be ..... X X X X Extracts X X X X X X X X Extracts X X X X
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