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TMI Blog1994 (3) TMI 93X X X X Extracts X X X X X X X X Extracts X X X X ..... h were in their nature, excisable. 4. The existence of the exemption Notification (No. 89/79, dated 1-3-1979, 105/80, dated 19-6-1980) is not in dispute and it is not in dispute either that the value of the plant and machinery of the Writ Petitioner was under the ceiling limit of Rupees Ten Lakhs and that the turnover of the Writ Petitioner was below Rupees Fifteen Lakhs and Rupees Thirty Lakhs respectively, which were the two successive ceilings put in the exemption Notification for two successive periods. 5. The reason why the Writ Petitioner started payment of any money at all is peculiar. It was not that there was any formal order or threat of punishment forcing the Writ Petitioner to make the payment. The payment was started merely upon receipt of a letter dated 29-9-1977 issued by the Superintendent. Central Excise, whereby the petitioner was permitted to open an account for provisional deposit. Though the letter does not say so, it implies between its lines a clear suggestion for starting deposits, for, the petitioner had not until then been recognised by the `bureau' to be within the exemption Notification. Such recognition came only in March, 1983. 6. The petitioner ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ents as payments of duty and to see if, according to the law, they which are to administer, such duty was refundable to the writ petitioner. 10. Both the Assistant Collector and the Collector came to conclusions about the Writ Petitioner passing on the duty to the purchasers. They made observations about the unjust enrichment of the Writ Petitioner, if refund is allowed, even after such passing on of the burden to the general public. 11. The Tribunal, however, did not proceed upon the question of unjust enrichment and decided that that was not one of the issues to determine the question of refund to the Writ Petitioner in the case before it. The Tribunal, however, spoke with one voice with both the lower Adjudicating Authorities, in so far as the question of limitation of the claim for refund of duty was concerned. The limitation is of six months, arising from Section 11B of the amended 1944 Act, which is the maximum period allowable between the application for refund and the relevant date, which, for the petitioner here is the date of payment of duty. The petitioner protested on and from 13-4-1981, and money paid thereafter has been refunded, as the protest removes the bar of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on 11B. In regard to the query whether the Writ Petitioner's payments can be said to be payments of duty at all, Mr. Ghosh submitted that the Writ Petitioner has all along treated such payments to be duty. It is because of such a stand taken by the Writ Petitioner that it approached the Department, knowing fully well that the Department cannot grant refund of anything other than duty. 18. Mr. Ghosh relied upon a Single Judge's decision in the case of Inchek Tyres Limited v. Assistant Collector of Customs Ors., reported in 1979 (4) E.L.T. page 236. In paragraphs 8 and 9 of the said judgment, it was said follows :- "The contention of the petitioner is that the petitioner has got the right to refund inasmuch as the duties were unlawfully collected. This is a case of an imposition without the authority of law. The petitioner has its fundamental right to the refund of this money and therefore the question of limitation does not and cannot arise. In that view of the matter it is submitted that the petitioner has got such right irrespective of any provision for refund in this statute. In my opinion, this application is misconceived. If an authority has illegally collected an amoun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner must, even in the Writ Court, be estopped from putting forward any other plea for recovery and must continue to claim such refund as refund of duty, and refund of duty alone. 21. See to what absurd results such an inflexible rule would lead, if even the Writ Court, which is the Court of last resort, were to feel itself bound by such a mechanized procedure. 22. Suppose a crore of rupees is paid by a person without having any liability to pay duty. Suppose he claims refund before the first Authority. Suppose he files a writ a week thereafter claiming over again the money on the ground, that return is to be made by the respondents on the principles of reasonable, fair and equal action. Is the Writ Court to deny relief because the petitioner has once called the payment a payment of duty? The answer is, surely not. 23. In the instant case the petitioner has exhausted the departmental remedy, although it is proved to be no remedy at all for the Writ Petitioner. It is the clear position that no money could have been paid by the petitioner as duty, nor accepted by the respondent as excise duty at any material time. That the petitioner is wholly exempt, is put beyond doubt by two ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in these facts any laches or negligence on the part of the Writ Petitioner, is not possible. To deny the petitioner relief, would be to deny it relief, because it has not had the most perfect legal advice from the beginning. No Court, functioning as Writ Court, denies citizens relief for such a technical reason as that. Although the petitioner has not joined its share-holders and Directors, who are citizens of India as petitioners in the Writ, yet it is those citizens who are affected by the disposal of the Writ and I cannot overlook their presence beyond the veil of the corporate Writ Petitioner. 30. The last question is about grant of interest upon the sums which, in my opinion, should be ordered for return. The respondents were free to make a return in their administration of the Central Government, if they so chose as soon as the 21-3-1983 communications were made. I am aware that this is asking for a little too much, considering the present day circumstances, but to mould the reliefs, I have to look beyond the practice of parties, and must consider what should have been done in accordance with law. It was not necessary for the Union of India to await the refund orders from t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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