Bombay High Court
Neptune Wires P. Ltd. vs Union Of India on 22 April, 1988
Equivalent citations: 1988(36)ELT388(BOM)
JUDGMENT
1. This is a petition under Article 226 of the Constitution of India challenging the order dated 4th September, 1980 passed by the Assistant Collector of Central Excise, Bombay Division 'P', on an application made by the petitioner company for refund of excise duty which, according to it, was wrongly paid by it. The petitioner is a private limited company engaged in the manufacture of copper rods, flats, bus bars, rectangular rods, all having thickness about 10 mm, hereinafter they are referred to as "the said goods". On 1st of March 1975, a new item, being Tariff Item No. 68 was introduced for the purpose of central excise. Immediately thereafter, the Superintendent of Central Excise wrote a letter to the petitioner company that it should classify its product under Tariff Item No. 68 which suggestion, however, was not accepted by the petitioner.
2. On 20th of January 1976, rejecting the petitioner's contention that the said goods were classifiable under Item No. 26A, the Assistant Collector passed an order directing that the said goods were excisable under Tariff Item No. 68. This order was not appealed against. The petitioner paid duty as per the averments in the petitioner under protest, as directed by the Assistant Collector. It has been mentioned to me by Mr. Bhandare, appearing in support of the petition, that the petitioner, in fact, asked for an appealable order and the Assistant Collector obliged the petitioner by passing an order on 7th of April 1976. Against this order the petitioner did not prefer an appeal.
3. Subsequently, in the month of May 1978, the petitioner filed a fresh classification list, showing therein that the said goods were falling under Tariff Item No. 26A and were therefore, exempted under Notification No. 119/66 dated 16th of July 1966. This classification was pending for approval, when by an order dated 24th of November 1978 passed in Revision No. 1295 of 1978 filed by another party, Government of India held that the goods which were involved in the revision application and which were the same produced by the petitioner, were covered by Tariff Item No. 26A(i) of the Central Excise Tariff and not under Tariff Item No. 68. This view was naturally accepted by the authorities in Bombay and the Assistant Collector of Central Excise, Bombay Division, by his order dated 23rd of April 1979 followed the view taken by the Government of India.
4. Thereafter, the petitioner filed an application under Rule 11 of the Central Excise Rules for the refund of the excise duty paid by the petitioner company on the goods manufactured by it under Tariff Item No. 68. The refund was claimed for the period from 1976 onwards. It was the contention of the petitioner company in its refund application that in the light of the decision of the Central Government, which decision has now been accepted by the authorities in Bombay, the petitioner was entitled to refund of the amount paid by it because the goods covered by Tariff Item No. 26A were exempted by the notification referred to above. This application was admittedly not made within the period of limitation prescribed by Rule 11 of the Central Excise Rules. Hence, it was rejected by the Assistant Collector of Central Excise by his order dated 4th of September 1980 which is the subject-matter of challenge in this petition.
5. Mr. Bhandare contends that the view taken by the Assistant Collector is wrong because when the petitioner has paid the excise duty as required by the authorities concerned under protest, the petitioner was entitled to get refund of the same when the view taken by the department has been found to be untenable by the higher authority. The question that has to be decided in this petition under Article 226 of the Constitution is whether the duty paid by the petitioner and collected by the excise authorities was in accordance with law or not. It is only when the duty is collected without the authority of law that the jurisdiction of this Court under Article 226 of the Constitution can be invoked. The said jurisdiction can also be invoked if the duty has been paid and collected by mistake of law, which mistake naturally must be common to both the parties.
6. In The instant case, it is clear, on the admitted facts, that the petitioner paid the excise duty under protest. The petitioner invited an appealable order, which was passed, and yet the petitioner did not care to prefer an appeal. Therefore, it cannot be said that the duty has not been collected in accordance with law. It is also clear that the duty has not been paid by the petitioner and collected by the respondents under a mistake of law. The petitioner understood that the said goods did not fall under Tariff Item No. 26A, but fell under Item No. 68. If this is so, it cannot be said that the petitioner paid duty under a mistake that the goods fell under Tariff Item No. 68. It is true that the respondents did not accept the petitioner's contention. It was, therefore, open, indeed it was obligatory on the part of the petitioner, to challenge the view taken by the department in an appeal, which the petitioner did not do. It is, therefore, clear to me that the petitioner has not made out a case for the invocation of the jurisdiction of this Court under Article 226 of the Constitution of India.
7. That the petitioner's application for refund was beyond the period of limitation prescribed by law is not naturally disputed before me. Hence that application was rightly rejected.
8. In the result, the petition fails. Rule is discharged but with no order as to costs.