Bombay High Court
S.S. Miranda Limited And Another vs Union Of India And Others on 1 January, 1800
JUDGMENT Bharucha, J.
1. The appellants (ori. petitioners) pressed their claim before Sawant J. only in respect of two items. Of these two items only one is pressed before us. This item relates to a claim for refund in respect of headings under which deductions were found to be permissible by the Assistant Collector of Central Excise for the period 1st July 1977 to 27th September 1979 and 1st January 1980 to 20th January 1980. While the Assistant Collector held that these deductions were permissible, he rejected the appellants' claim for refund of the excise duty paid thereon because it was not filed within 6 months, which was the period of limitation prescribed under Section 11B of the Central Excises and Salt Act. The learned judge noted that the question before him was whether the claim, though time-barred by section 11B, should be allowed in the appellants' writ petition since it was filed within 3 years of the accrual of the claim. The learned judge was of the view that the appellants were not entitled to the refund of any amount even if the court had power to grant the claim since the appellants had, admittedly, recovered the amount of excise duty from their customers. To grant the appellants' claim in such circumstance would amount to permitting them to enrich themselves unjustly and to misappropriate moneys which properly belonged to their customers and the ultimate consumers. In the equitable and discretionary writ jurisdiction under Article 226, the court should not countenance such claim. The learned judge cited authorities in support of his conclusion. These authorities included his dissenting judgment in the case of I.T.C. LTd. v. M. K. Chipker, 1985 (19) E.L.T.373.
2. The difference between Lentin J. and Sawant J. in the I. T. C. case was referred to a third judge. By his judgment [reported in 1985 (22) E.L.T. 334] Shah, J. took the view that had found favour with Lentin, J. We are bound to follow the view taken by the majority in the I. T. C. case.
3. We find that this was also done by a Division Bench of this Court sitting at Goa in the case of Rapidur (India) Ltd. v. Union of India, 1987 (27) E.L.T. 222. The learned judges based their judgment upon the majority view in the I. T. C. case and upon the Supreme Court judgment in M/s. D. Cawasji & Co. v. State of Mysore, . The learned judges found the latter judgment to be squarely applicable to the controversy and not a subsequent judgment of the Supreme Court cited by counsel on behalf of the authorities, namely, State of M.P. v. Vyankatlal, .
4. The appeal is, accordingly, allowed.
5. The respondents are directed to ascertain the amount of refund due to the appellants as aforesaid for the period 1st July 1977 to 27th September 1979 and 1st January 1980 to 20th January 1980 and to refund the same within 8 weeks from today.
6. No order as to costs.