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TMI Blog1990 (2) TMI 62X X X X Extracts X X X X X X X X Extracts X X X X ..... excise duty on textile goods manufactured by it-assessing the value of the manufactured goods also taking into account the freight and transit insurance charges paid by the assessee on those goods. The Supreme Court, in the case of Union of India v. Bombay Tyre International Limited - AIR 1984 SC 420 = 1983 (12] - E.L.T. 869 (S.C) and 1983 (14) - E.L.T. 1896, decided on 9-5-1983, held that the freight and transit insurance charges do not form part of the assessable value of the goods manufactured under Section 4 of the Central Excises and Salt Act, 1944 ('the Act' for short). The order of the Supreme Court was pronounced on 9-5-1983, but the reasons in support of the order were pronounced on 7-10-1983. Thereafter the assessee-respondent, realising that it had paid excise duty in excess of what it was required to pay in law, made two applications before the Assistant Collector of Central Excise, Bangalore. In one of the applications, the assessee claimed refund of the excess amount paid which fall within the period of six months from the date on which the duty was paid. In the second application, the assessee claimed refund for the rest of the period commencing from 1-9-1975 to 30-9 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court in the case of Collector of Central Excise v. M/s Doaba Co-operative Sugar Mills Ltd (AIR 1988 SC 2052). But it is made clear in that judgment that it is open to the parties to approach the Civil Court or avail of any remedy like a writ petition to obtain refund of tax paid under a mistake. 4. In the present case, it is the contention of the petitioner that it discovered the mimistake of having paid the tax which it was not liable to pay, only when the Supreme Court pronounced its judgment and thereafter when it went through the detailed judgment which was rendered on 7-10-1983, the petitioner preferred his claim on 9-4-1984. This writ petition was filed before this court on 21-11-1984 which is well within the period of three years prescribed under the Limitation Act which is the period prescribed for filing a suit for recovery of any money paid under a mistake. In the circumstances, it is necessary to quash the order passed by the second respondent as per Annexure-F and direct the authorities to dispose of .the application without reference to the period of limitation prescribed under Section 11B of the Central Excises and Salt Act, 1944, within a period of three m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion fixed under Section 11-B of the Act. This position in law is also clear from the decision of the Supreme Court in the case of Burmah Construction Company v. State of Orissa - AIR 1962 SC 1320 in which the Supreme Court was considering the question of refund under Section 14 of the Orissa General Sales Tax Act. The Supreme Court held that a claim for refund could be made before the Collector only in conformity with the provisions of Section 14 thereof and therefore a person cannot, while claiming refund under that Section, ignore the restrictions regarding the time fixed in that Section and therefore there could be no direction to the Collector to make any refund, which he is not authorised to make under Section 14 of the Act. Similar was the view taken by the Supreme Court in the case of D.R. Mills - AIR 1976 SC 2243, on which the Assistant Collector relies. The same view is rejected by the Supreme Court in the case of Collector v. Doaba Co-op. Sugar Mills Lid - AIR 1988 SC 2052 7. For the aforesaid reasons, we answer the first question arising for consideration as follows: "The Assistant Collector of Central Excise has no authority or duty to consider a claim for refund o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o refer to the observations of the Supreme Court in the case of H.M.M. Limited v. Bangalore City Corporation - AIR 1990 SC 47. The relevant portion of the judgment reads: "...Realisation of tax or money without the authority of law is bad under Article 265 of the Constitution. Octroi cannot be levied or collected in respect of goods which are not used or consumed or sold within the municipal limits. So these amounts become collection without the authority of law. The respondent is a statutory authority in the present case. It has no right to retain the amount, so far and so much. These are refundable within the period of limitation. There is no question of limitation. There is no dispute as to the amount. There is no scope of any possible dispute on the plea of undue enrichment of the petitioners. We are therefore of the opinion that the Division Bench was in error in the view it took. Where there is no question of undue enrichment, in aspect of money collected or retained, refund to which a citizen is entitled, must be made in a situation like this." Therefore, the respondent was entitled to make an application before the Central Government seeking refund of excess of excise d ..... X X X X Extracts X X X X X X X X Extracts X X X X
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