9911796707
TMI Blog1990 (12) TMI 88X X X X Extracts X X X X X X X X Extracts X X X X ..... came liable to duty at Rs. 100/- per metric ton on and from 9-4-1979. It transpires that on 8-4-1979 the petitioner had a closing stock of 628.187 metric ton of steel ingots. Though the said quantity of steel ingots did not attract duty because Notification No. 156/79 came into effect from 9-4-1979, it is stated that as required by the Superintendent of Excise, the petitioner paid a total sum of Rs. 65,868.11 as duty for the stock remaining on 8-4-1979. The petitioner, thereupon, made a claim for refund of the said amount. By an order dated 10-8-1981, the first respondent rejected the claim as the same was barred by limitation under Rule 11 read with Section 11B of the Central Excises and Salt Act, 1944. The petitioner preferred an appeal t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pany can seek remedy before the Assistant Collector of Central Excise on the basis of the said order of the High Court, Karnataka. 3. Learned Counsel for the petitioner, however, argues that the claim for refund under the Act is, no doubt, barred by limitation. But the fact remains that the collection of duty is totally illegal. This is all the more so because the Government have subsequently issued a clarification that the stock of steel ingots manufactured prior to 9-4-1979 are eligible for full exemption. It is contended that at least from the date of the Government's classification in October, 1980, it must be deemed that the collection of duty is illegal and, therefore, within a period of three years from October, 1980, the illegal c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tax and in such a suit it was open to the State to raise all possible defences to the claim, defences which cannot in most cases, be appropriately raised and considered in the exercise of writ jurisdiction. It appears that Sec. 23 of the Act deals with refund. In the facts of this case, the case did not come within Sec. 23 of the Act. But in the instant appeal, it is clear as the High Court found in our opinion rightly that the claim for refund was a consequential relief." 4. Learned Counsel for the respondents relies on the Division Bench judgment of this Court in Madras Aluminium Co. Ltd. and Another v. Union of India [1981 (8) E.L.T. 478 (Mad.)]. The following passage is very relevant for the purpose of this case : "It is true, this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from a party. But where a claim is based on the principles of Section 23 or Section 72 of the Contract Act, certain other factual questions also arise for consideration. For instance, in this case, it has been contended by the respondents that the petitioner-company has passed on the duty to the consumers and it will not be justified in asking for refund which will amount to unjust enrichment. This is an aspect on which I strongly feel that the claim for refund has to be rejected in a proceeding under Article 226 of the Constitution of India. 5. Accordingly, the writ petition fails and it is dismissed. It is, however, open to the petitioner-company to put forth its claim before the Assistant Collector on the basis of the judgment of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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