9911796707
TMI Blog1990 (8) TMI 149X X X X Extracts X X X X X X X X Extracts X X X X ..... t sizes a basic raw material called high density polyethylene (plastic) by a process called "injection moulding". After the moulding process, the resultant shells are assembled in the factory's assembly section along with aluminium frames, hinges, locks, channels etc. Between March 1, 1975 and April 20, 1979 the petitioners paid excise duty on the manufacture of the articles under Tariff Item 68 of the First Schedule to the Central Excises Salt Act, 1944. Tariff Item 68 is a residuary item and excise duty was paid under Tariff Item 68 on an advise and directions given by the officers of the Collector of Central Excise. Tariff Item No, 68 was inserted in the First Schedule with effect from March 1, 1975 and thereupon the duty was recover ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mencing from March 1, 3975 and ending with April 20, 1979. The Assistant Collector of Central Excise on September 12, 1979 issued show cause notice to the petitioners to explain why the refund claim should not be held to be barred by Rule 11 of Central Excise Rules. Rule 11, inter alia, provides that any person claiming refund of any duty shall make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty. The petitioners filed their reply and thereafter the Assistant Collector of Central Excise passed the impugned order dated October 13, 1980 holding that the petitioners are entitled to the refund of duty wrongly paid for the period commencing from ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itled to grant refund for the earlier period, there is no bar to this Court directing payment of refund while exercising jurisdiction under Article 226 of the Constitution of India. The submission is correct. It is now well settled by catena of decisions of this Court that when a duty is wrongly paid, then the bar of limitation prescribed under Rule 11 of Central Excise Rules is not available in a proceeding filed under Article 226 of the Constitution of India seeking refund of duty. In view of several decisions recorded by this Court, the petitioners are entitled to an order of refund of duty wrongly paid between the period commencing from March 1, 1975 till November 28, 1978. Mr. Desai, learned counsel appearing on behalf of the Departm ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... deration. 5. Mr. Desai also submitted that the petitioners should not be granted relief in the present proceedings because the petitioners are guilty of laches in approaching the Court. The learned counsel urged that the refund claimed is from March 1, 1975 onwards and the refund application was filed on May 25, 1979 before the Assistant Collector even though the petitioners were fully conscious that in accordance with Rule 11 of Central Excise Rules the Assistant Collector is not authorised to grant refund for a period of six months prior to the date of presentation of the refund application. Mr. Desai submitted that the petitioners ought to have filed petition under Article 226 of the Constitution, in respect of refund due from March 1, ..... X X X X Extracts X X X X X X X X Extracts X X X X
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