9911796707
TMI Blog1990 (9) TMI 74X X X X Extracts X X X X X X X X Extracts X X X X ..... to the passing of this order are not in dispute. 2. Petitioner No. 1 is a joint stock company governed by the provisions of the Companies Act, 1956 and runs a factory at village Kolshet in Thane District. The petitioners manufacture synthetic resins, viz. (i) Finish K : V: S: Lig new; (ii) Finish- P; (iii) Finish- L. CRN; (iv) Finish L.C.R.; (v) Finish- P I; (vi) Finish- E N I Pasta; and (vii) Finish- V.K.S. The petitioners were paying excise duty on the manufacture of these products under Tariff Item No. 15A(1) of the First Schedule to the old Excise Act. The department issued trade notice dated April 22, 1977 and trade notice dated January 18, 1978 clarifying that the products manufactured by the petitioners are classifiable under resi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in this petition. 4. Mr. Parikh, learned counsel appearing on behalf of the petitioners, submitted that though the Asstt. Collector who is a creation of statute i.e. the Central Excises and Salt Act is bound by the provisions of Rule 11, the limitation prescribed therein cannot restrict the powers of this Court in exercise of Article 226 of the Constitution in directing the department to grant refund for the entire period. The submission is correct and deserves acceptance. By catena of decisions of this Court and the Supreme Court it has now been finally concluded that it is not permissible for the department to decline refund on the ground of limitation and the defence of limitation is not available for the department as an answer to a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judgment, the refund cannot be declined on the ground of laches. 5. Accordingly, petition succeeds and the order of the Asstt. Collector declining refund on the ground of limitation under Rule 11 is set aside and the proceedings are remitted back to the Asstt. Collector for passing appropriate order of refund. It is made clear that the order of the Assistant Collector awarding refund for certain duration is not disturbed. The Asstt. Collector shall ascertain the amount of refund payable and pass appropriate order and pay the refund on or before December 31, 1990. In case the order is not passed and the amount is not paid, then the department shall pay the amount of refund along with interest at the rate of 15 per cent per annum payable ..... X X X X Extracts X X X X X X X X Extracts X X X X
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