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TMI Blog1992 (2) TMI 96X X X X Extracts X X X X X X X X Extracts X X X X ..... oods manufactured by it are not liable to excise duty at all because the process of cutting and straightening of the parts of iron and steel is not covered by the definition of manufacture contained in Section 2(f) of the Central Excises & Salt Act, 1944. 2. It is the case of the petitioner that CEGAT decided in the case of Collector of Central Excise v. Dodsal Private Limited, Baroda reported in 1987 (38) E.L.T. 352 that the aforesaid process did not amount to manufacture. Thereupon the petitioner filed application for refund of excise duty to the tune of Rs. 18,78,434.39 for the period commencing from January 1987 to June 1987 and also claimed an amount of Rs. 40,18,031.33 ps. for the period commencing from July 1987 to February 1988. Th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s that this court should exercise its power under Article 226 of the Constitution of India and direct the respondents to refund the excise duty erroneously paid under mistake of law. 4. In this petition, the petitioner has also contended that the provisions of Section 11B of the Act be held to be unconstitutional as it provides shorter period of limitation. This very question has come up for consideration before a Division Bench of this court in the case of Wigman Electrical Engineering (Pvt.) Ltd. v. Union of India reported in 1991 (2) G.L.H. 269. We are in agreement with the reasons given and conclusion arrived at in the aforesaid judgment. For the reasons stated therein, the challenge to the constitutional validity of Section 11B of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... l mistake; (2) that the amount was paid by the plaintiff under coercion, compulsion or pressure from the defendant; and (3) that if restitution is not granted to the plaintiff the plaintiff would suffer legal injury or prejudice. The aforesaid view is taken by this court in the case of Dhrangadhra Municipality v. Dhrangadhra Chemical Works [29 (1) G.L.R. page 388 = 1988 (35) E.L.T. 88 (Guj.)], and in the case of Union of India v. M/s. Wood Polymers Ltd. - 30 (2) G.L.R. page 1323. In Special Civil Application No. 3082 of 1981, after referring to the aforesaid decisions, this court observed as follows :- "If one reads the observations made by the Division Bench of this court in the case of Dhrangadhra Municipality (supra) instead of plain ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to a decision of the Supreme Court in the case of U.P.S.E. Board v. City Board, Mussoorie, AIR 1985 SC 883. In that case, the question arose as regards the legality and validity of the 7½ per cent additional charge on the tariff fixed. The learned counsel appearing for the City Board was not able to state before the Supreme Court that it had not recouped itself by collecting the charges from the consumers. In this view of the matter, the Supreme Court has observed as follows :- "In this situation we have to presume that the City Board had not suffered any loss by the levy of 7½% by way of additional charges. We are of the view that in cases of this nature where there is little or no possibility of refunding the excess amount collecte ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ince the petitioner has not established its claim, the question of exercising the discretion of the court does not arise at all. 8. Recently in the case of Orissa Cement Ltd. v. State of Orissa reported in AIR 1991 SC page 1676, the Supreme Court has observed as follows : "One of the commonest issues that arose in the context of the situation we are concerned with is where a person affected by an illegal exaction files an application for refund under the provisions of the relevant statute or files a suit to recover the taxes as paid under a mistake of law. In such case, the Court can grant relief only to the extent permissible under the relevant rules of limitation. Even if he files an application for refund or a suit for recovery of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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