LexSHRI VALLABH GLASS WORKS LTD. & OTHERS versus UNION OF INDIA & OTHERS
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I . • 180 A SHRI VALLABH GLASS_ WORKS LTD. & OTHERS • . , v • • • UNION OF INDIA & OTHERS B March 14, 1984 [B.S. VBNKATARAMIAH AND.R.B. MISRA J1.) r, Constitution of India 1950, Article 2261ndian Contract Act 1872, Sectio~ 7.}: C Limitation Act 19o3, Section J7(J)(c) & Article 113_. D E G H ~ntral E~cise & Salt Act 1944, FirSt Schedule, Item 23A(I) and Item 68. Excise duty-Claim for refund of excess duty paid-Jurisdiction of the High Court to order refund in a petition under Article 226. y Appellant No. 1 was a compaQ.y engaged in the business of manufacturing different types of glass, viz., figured glass, wired glass, coloured figuft:d glass, · rolled glas;·and coolex wired glass. 1he Central Excise Department had levied · and collected excise duty on the said go'Ods on the basis that they .,belonged to the category of 'sheet glass' and were therefore subject· to pa:Ytnent of excise duty under Item 23A(I) of the First Schedule to the Central Excise and Salt - Act, -)944. On February 20, 1976, tjle appellauts. applied for the refund of excess duty paid by them from.October I, !%3 upto the date of the application . On the ground that the items of glass in cjuestion could not be described as 'sheet glass' mentioned in Item 23A and that since they did not faJl undei any ()f the Items I to 67 in the First Schedule of the Act they could only be ~ubjected to levy of e:xcise dutY uDder the resid.uary provision, Iten:i 68. The Assi~tant Collector of dntral Excise rejected the claim_ for r~fund and the appellants there-upon filed a Wrii petition in the High Court on September 28, 1976, but "the same was withdrawn as a Departmental Appeal filed by the appellants was pending with the Collector. The said Departmental Appeal was however later dismissed and this order was confirmed in the appeUants' revision petition to the -Government. The appellants thereupon filed a Writ Petition in the High Court and assailed ihe order. The High cOurt rever~ed the decision of the departinental authorities and held that the items of glass manufactured by the appeUants did not fall within IDe scope of tariff Item 23A(I) of the First Schedule but that they, "ame within tariff Item 68 thereof, liable to duty accordingly, and directed refund of excess duty paid after February 20, 1976, on which date the dispute · was raised. The claim. for fefund of excess duty paid durin8 th~ period prior to · February 20, 1976 was, however, rejeCted. In the appeal to this Court on the question : (I) whether the appellauts ~re ~e~titled to Claim ·refund of excess excise duty paid prior to Febrwary201 ' • • V ALLABH GLASS WORKS v. UNION 181 1976 and whether they are entitled to claim refund of such duty paid between October l; 1%3 and February 20, 1976 or during any shorter period, and (2) whether the appellants are· entitled to claim such refund ii;i respect of all the good~ Allowing the appeal in part . • HELD : 1, (i) The excess amount paid by the appellants would have become refundable b~ virtue of.section 72 of t'he Indian Contract Act if the appellants had filed a suit within the period. of limitation. Section 17(1)(c) df the Limitation Act, 1963 provides that where in the case of any suit or appli~ cation for-which a per\od of limitation is prescri)Jed under that Act~ the suit or application is for relief fro.m the consequences of a mistake, the period Of / limitation shalt not begin to run until the plaintiff or appliCant had discovered it.or could ha¥e with reasonable diligence discovered it. [186F-G] (ii) Under Article 113 of \]:le Limitation Act, 1963 a &uit for recovery of excess duty had to be filed within three years from the date of payment to the Department. [187B] (iii) The J-Iigh Courts have p6wer, for the purpose of enforcement of fundamental Tights and statutory rights-to make consequential Orders. for 'repay- ment of money realised by .Government without the authority of law under Arti- cle 226 of the Constitution. This. is an alternative remedy provided by the Cons- titution in additiOn to, but not in ·supersession Of the ordinary remfdy by way cir suit in the absence of any provision which would bar such a suit expressly or by necessary 'Implication. While there are different periods of limitation prescribed·for the institution of different kinds .Qf suits by the Limitation Act, 1-963, there is no such period prescribed by law in respect of petitions filed ·lJnder
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