Patna High Court
Shree Baidyanath Ayurved Bhawan (Pvt.) ... vs Union Of India (Uoi) on 24 July, 1998
Equivalent citations: 1999(106)ELT293(PAT)
JUDGMENT
1. This is a 1988 petition. By this petition, the petitioner claims refund of the excess amount which it has deposited under the provisions of the Central Excises and Salt Act, 1944 (hereinafter to be referred to as' the Act').
2. It is alleged that under the mistaken notion of law the petitioner has deposited the amount in dispute and the same is refundable to the assessee in view of the provisions of Section 11B of the Act. It is also submitted that the petitioner has made an application before the appropriate authority for the refund of the amount on 27-8-1982.
3. It is contended that the excess amount has been deposited in between the period 1-3-1975 and 28-2-1978. However, the petitioner acquired knowledge that under the mistaken notion of law it has deposited the amount in excess and the same is liable to be refunded to it only after the judgment passed by the Appellate Collector, Central Excise and Customs, New Delhi, dated 3-10-1981 in M/s Hamdard (Wakf) Laboratories, Meerut Road, Ghaziabad, U.P., which is reported in 1981 ECR 596 and in another case of Dabur (Dr. S.K. Burman) Pvt. Ltd. dated 31-10-1981 whereby the excess amount realised from the assessee was directed to be refunded to them. Therefore, on the same basis, the excess amount deposited by the petitioner in between the period, referred to above, should be directed to be refunded to it.
4. The authority, however, by its order dated 21-11-1983 allowed the claim of the petitioner. But the Tribunal by the impugned order dated 15-4-1988 set aside the order dated 21-11-1983 and held that the petitioner is not entitled to any refund. Hence, this petition has been filed.
5. Learned Counsel appearing for the petitioner, relying upon the decision in the case of Mafatlal Industries Ltd. and Ors. v. Union of India and Ors. - (1997) 5 SCC 536 submitted that the petitioner, in such situation, has two remedies to claim refund - either it may resort to the remedy provided under Section 72 of the Contract Act by filing a Suit against the Department or it may resort to the extraordinary jurisdiction of this Court under Article 226 of the Constitution of India by filing a writ and challenging the excess payment. It is also submitted that since for refund, under the Act, specific provision or Section 11B of the Act has been enacted and the same has not been complied with by the Department in refunding the excess amount paid by the petitioner, therefore, the Writ Court, in exercise of its jurisdiction under Article 226 of the Constitution, may issue a writ of mandamus commanding the department to refund the excess amount paid by the petitioner.
6. A bare perusal of Section 11B of the Act, it envisages that excess payment made is liable to be refunded provided if the refund application is made within a period of six months. Thus, if the application is made within the stipulated period, the department is obliged to pass necessary orders for refund.
7. In Mafatlal case (supra) while dealing with the issue of refund, their Lordships have held that the provisions of Section 17(1)(C) of the Limitation Act will also be made applicable. This provision manifests that from the date of knowledge the application can be made and the limitation prescribed under the provisions of Section 11B of the Act, referred to above, will begin from the date of knowledge.
8. The petitioner claims that it acquired knowledge from the above referred two judgments dated 3-10-1981 and 31-10-1981 respectively. Thus it can safely be inferred that above two dates are the date of knowledge and the period of limitation will be computed for the purpose of filing the application for refund from these two dates.
9. The petitioner has stated that it has filed the application for refund on 27-8-1982 whereas the six months' period, it counted from 31-10-1981, comes to an end on 30-4-1982 and the application for refund has been made on 27-8-1982, which is barred by 119 days.
10. Thus, the application for refund having not been made within the stipulated period of six months from the date of knowledge i.e. from 31-10-1981, on "conjoint" reading, of the provisions of Section 11B of the Act and Section 17(1)(c) of the Limitation Act will be of no avail to the petitioner as even from the date of knowledge the petitioner has not preferred the application for refund within a period of six months.
11. Thus, the submission made by the learned Counsel that six months' period is not only liable to be taken into account from the date of deposit but from the date of knowledge has no two opinion and, as stated above, even if this concession is granted and period of limitation is computed from the date of knowledge even then, as observed above, the application for refund is hopelessly barred by 119 days.
12. Learned Counsel further submitted that the excess amount paid or recovered by the authority is without authority of law and thus they have no jurisdiction to retain the amount of excess payment which is without sanction of law. This submission indeed has got substance but our difficulty is proviso to Section 11B of the Act as six months' period is made applicable for filing the refund application. Even in Mafatlal case (supra) the period of limitation has been dealt with and it is observed that the application for refund if made within the limitation period, the same is liable to be considered for refund of payment. Since in the instant case the application for refund has not been filed within the period of limitation, the Tribunal has rightly dismissed the petition.
13. Thus, from the foregoing discussion, this petition fails and it is, accordingly, dismissed.