Andhra HC (Pre-Telangana)
Andhra Pradesh Paper Mills Ltd., ... vs Union Of India And Others on 29 November, 1999
Equivalent citations: 2000(3)ALD644, 2000(1)ALT344, 2000(69)ECC604, 2000(120)ELT297(AP)
Author: P. Venkatarama Reddi
Bench: P. Venkatarama Reddi
ORDER P. Venkatarama Reddi, J.
1. The petitioner seeks refund of Central Excise duty of Rs.36,93,564/- said to have been paid in excess for the period 9-11-1982 to 7-11-1985 in respect of poster paper manufactured by the petitioner. By a letter dated 18-6-1986 addressed to the third respondent, the petitioner sought for refund under Section 11-B of the Central Excise and Salt Act on the ground of mistaken payment. Such refund claim related to the period 9-5-1985 to 7-11-1985. The amount specified therein is Rs.5,82,844/-. This was preceded by 3 letter dated 8-11-1985 addressed to the third respondent in which the petitioner stated that they will be submitting the refund claim for the excess duty paid by mistake on poster paper under Section 11-B of the Central Excise and Salt Act. It was also stated therein that they 'will be paying' on poster paper under protest as per the approved classification list till the revised list filed by them was approved and that it may be treated as protest under Rule 233-B of the Central Excise Rules.
2. The application for refund submitted on 18-6-1986 resulted in an adjudication order by which the refund was rejected. The appeal filed by the assessee was also rejected. At the risk of repetition, it may be stated that the refund claim related to the period 9-5-1985 to 7-11-1985 only. The petitioner, without filing further appeal to the Tribunal, has filed this writ petition under Article 226 seeking refund not only for the period specified in the refund claim application but also for the anterior period.
3. The claim of the petitioner, in effect, is based on the general law and the limitation provided for under the law of Limitation for claiming refund of money paid under mistake. The Supreme Court has now laid down in clear terms that the refund application under the Central Excise Act can only be made within the four corners of the Act and the general law governing refund of money paid under mistake of law and the Limitation Act will not govern the claims for refunds under the Act (Mafatlal Industries v. Union of India, 1997 (5) SCC 536). Therefore, the question of making any claim for refund under Article 226 de hors the provisions of the Central Excise Act does not arise.
4. The next question is about the tenability of the claim for refund purportedly made under Section 11-B of the Act for the period 9-5-1985 to 7-11-1985. The application filed on 18-6-1986 was clearly beyond the period of six months, which is the limitation prescribed by the first proviso to Section 11-B. the learned Counsel, however, falls back on the letter dated 8-11-1985 in order to buttress his argument that the claim was within the period of limitation. But, that letter cannot be construed as a claim for refund. As rightly pointed out by the adjudicatory and Appellate Authorities, in the said letter, the petitioner merely expressed his intention to submit the refund claim. Seven months later only, such refund claim was submitted in the prescribed proforma. No details such as the period for which refund is claimed and the amount refundable have been specified in the letter dated 8-11-1985. Therefore, as rightly held by respondents 3 and 4, it cannot be construed to be a claim for refund within the meaning of Section 11-B. It is pointed out by the learned Counsel for the petitioner that the letter dated 8-11-1985 makes it clear that the duty will be paid under protest and that letter may be treated as intimation under Rule 233-B. But, such intimation, in the very nature of things, can only apply to future clearances and it does not cover the period 9-5-1985 to 7-11-1985. In fact, during that period, the question of paying duty under protest does not arise as, according to the petitioner, the mistake was realised only subsequently. Therefore, the second proviso to Section 11-B does not come to the rescue of the petitioner.
5. Above all, there is no specific averment nor material placed before us that the disputed duty was not passed on to the buyers. The presumption is that, as a prudent businessman, the petitioner would have, in all probability, collected the duty and there is no plausible explanation for not collecting the duty. In this situation the relief under Article 226 cannot be granted as otherwise it would amount to facilitating unjust enrichment.
6. The writ petition is, therefore, dismissed, No costs.