9911796707
TMI Blog1989 (3) TMI 137X X X X Extracts X X X X X X X X Extracts X X X X ..... der was challenged before the Appellate Collector, Central Excise, Calcutta. The Appellate Authority considered the case carefully and in those four cases the appellate authority observed that the claim for refund was barred by limitation as rule 11 read with rule 173J of the Central Excise Rules, 1944 do not provide anything for condonation of delay. Being aggrieved the petitioner moved in revision and the Additional Secretary to the Government of India found that the applicant did not care to lodge a refund claim for a period of four years and there is no reason why they should seek relaxation of time limit for their carelessness to get the refund of duty, more so, when the burden of duty charge must have been passed on to the consumer. U ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lar cases as the present ones were considered and having heard the learned Advocates for both the sides in those cases, the said writ petitions were allowed and the Rules were made absolute. Various decisions were cited from the Bar that the High Court in exercise of the power under writ jurisdiction has the power for the purpose of enforcement of fundamental rights and statutory powers to give consequential reliefs by ordering repayment of money realised without any authority of law. The special remedy under Article 226 of the Constitution is not intended to supersede completely the other normal remedies or to deny the defences legitimately open in such action. It was further found that the controversy could have been avoided had the Legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t or otherwise, such money must be repaid and the mistake lies in thinking that the money paid was due when in fact it was not due and that mistake, if established, entitles the party paying the money to recover it back from the party receiving the same. Much emphasis has been laid to the said reported decision and it is submitted on behalf of the petitioner that there is no bar in allowing the writ petitions accordingly in the present case. By the impugned orders herein, the authorities concerned have not considered the cases of the petitioner in their proper perspective and simply on the ground of limitation those have been refused. 3. Mr. Roychowdhury, learned Advocate for the contesting respondents has drawn Court's attention that apa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e same volume, there is another decision at page 901 (State of M.P. v. Vyankatlal) wherein it was found that the recovery by the sugar factory of the 'sugar fund', the difference between the supply price and the ex-factory price paid by it under the relevant Notification is not permissible when the burden of paying the amount was transferred by the sugar factory to the purchasers and the factory had not to pay the amount from its own coffers. Allowing such a refund would amount to unjust enrichment of the sugar factory. Only the persons on whom lay the ultimate burden to pay the amount would be entitled to get a refund of the same and if it is not possible to identify the persons on whom had the burden been placed for payment towards the fu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it will be a travesty of the judicial process if it is allowed to be abused for patently illegal and unjust recoveries by those who have not paid the amounts, as in the instant case. It was fairly conceded on behalf of the writ petitioners in the said case that they have recovered from their customers the whole of the excise duties involved in all the three claims and hence it was held in the said decision that it was not therefore necessary to go into the question of limitation but proceed on the basis that the payment of excise duty was made under a mistake of law and that all claims are within time, and since the petitioners have already recovered the whole of the duty from their customers, they are not entitled to refund even under Sec ..... X X X X Extracts X X X X X X X X Extracts X X X X
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