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TMI Blog1989 (7) TMI 118X X X X Extracts X X X X X X X X Extracts X X X X ..... first instance because in the event of our decision being in favour of the appellants, the valuable time of the Court to examine other questions would be saved. Accordingly, learned Counsel were allowed to argue the jurisdictional question in the first instance. 4. In order to appreciate this leagal question, it would be necessary to state the relevant facts in brief. 5. The plaintiff manufactures varieties of paper including poster paper. Under Item No. 17 of the First Schedule to the Central Excises and Salt Act, 1944 (shortly stated 'the Act'), the plaintiff claims that it was not liable to pay excise duty from 16-3-1976 till 27-10-1980. But it is claimed that under a mistaken impression of law, it went on paying the excise duty on the quantity of poster paper manufactured by them. However, when the mistake was realised, it applied for refund of the amounts paid as such to the Assistant Collector who rejected the applications. The plaintiff having also failed before the first appellate authority, i.e., Collector (Appeals), Central Excise, filed a Second Appeal before the Tribunal. But, in the meantime, they also hurriedly filed the Title Suit in question. Admittedly, the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by the Central Government later on. Before the aforesaid provision came into force, another amendment was made by Section 49 of Act 44 of 1980 and the expression 'relevant date' in clause (a) was substituted in place of 'date of payment' with an Explanation. Section 11-B was enforced w.e.f. 17-11-1980. Prior to the insertion of Section 11-B, the matter of refund was governed by Rule 11 of the Central Excise Rules, 1944. On the coming into force of Section 11-B with effect from 17-11-1980, Rule 11 was omitted from the Rules. Under the new scheme, against any decision or order, appeal has been provided under Section 35 and provision for revision has also been made. A right of second appeal to the Tribunal has also been provided by the 1980 Amendment. On a perusal of Section 11-B, it is clear that all matters relating to refund are now vested in the statutory authorities alone. Let us now examine the main question, i.e., the competency of the Civil Court to entertain a suit for refund, in the light of the above statutory provisions. The general principle that rights entrusted to special Tribunals cannot be adjudicated by the Civil Court is now well-settled by authoritative de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e, a right under the common law accrued to the plaintiff to get back the same when the mistake was discovered. For that purpose, within three years of the discovery of the mistake, the plaintiff can enforce his right in a Civil Court. Such a right having accrued from the date the payment was made, it could have been enforced by a suit, and Section 11-B, which is not retrospective, cannot defeat the vested right. 8. I have said earlier that this argument is only ingenious and ought to be rejected inasmuch as the vested right is the right of recovery, and the forum for enforcing the remedy cannot be said to be a vested right. A person going to avail his remedy must approach the forum available at the time of enforcing the right. He cannot be permitted to approach the forum which was available on the date of accrual of the cause of action. Undisputedly, on the date when the suit in question was filed, the provisions of Section 11-B (5) were in force. A definite machinery for the relief of refund was provided by the amending provision and the civil remedy under the common law was ousted. I may usefully refer to the decision of the Supreme Court in the case of New India Insurance Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o the Court of the District Judge. Since a litigant can have no vested right to pursue his remedy in a particular forum, in this case for lodgment of his appeal and change of forum is merely a change of procedural law, it would operate retrospectively unless a different intention is expressed or can be inferred by necessary intendment." 10. Dr. Ghose advanced another reasoning in support of his submission, namely, that the period of limitation provided in Section 11-B is only six months from the date of payment and the right of the plaintiff is taken away since there is no scope for condonation of delay or extension of the period of limitation from the date the mistake was discovered. Dr. Ghose could not cite any direct authority in support of his stand, but referred to a decision of the Supreme Court in the case of Collector of Central Excise, Kanpur v. Krishna Carbon Paper Co. [1988 (37) E.L.T. 478]. No doubt, there is an observation in this case that refund can be obtained by filing a suit. But the question involved in the present case is regarding the maintainability of the suit on account of the specific bar under Section 11-B. This question was neither raised nor considered ..... X X X X Extracts X X X X X X X X Extracts X X X X
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