TMI Blog1985 (3) TMI 63X X X X Extracts X X X X X X X X Extracts X X X X ..... f 1944) (Act) at the rates stipulated against that entry from time to time. From 1962 to 3-5-1974, the petitioner paid excise duty on'flush doors'roughly aggregating to a sum of Rs. 2,99,881.98 or so without demur. 3. On 4-5-1974, the petitioner for the first time, urged before the Assistant Collector of Central Excise, Bangalore (Collector), the assessing authority under the Act, that 'flush doors' were not dutiable to excise duty either under Tariff Item 16-B or any other entry of the Act and therefore, the same cannot be collected (Annexure-D). But notwithstanding the same, the petitioner continued to pay duty on 'flush doors' under protest. After some intermediate correspondence and affording an opportunity of hearing to the petitioner, the Collector on 31-10-1974, (Annexure-A), rejected the said claim and reiterated that 'Flush doors' were dutiable to excise duty under Tariff Item 16-B of the Act as earlier levied. 4. Against the said order of the Collector, the petitioner filed an appeal in Appeal No. 986/75 (HNR) before the Appellate Collector of Central Excise. Madras (Appellate Collector) who by his order dated 5-6-1975 (Annexure-B) dismissed the same. 5. Against the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... legally and justly refundable without considering the unjust plea of hmitation urged by the respondents as ruled by the Supreme Court in Patel India v. Union of India [A.I.R. 1973 S.C. 1300-1983 E.L.T. 1495 (S.C.)] and The Madras Port Trust v. Hymamshu International [A.I.R. 1979 S.C. 1144 = 1979 E.L.T. (J 396) (S.C.)]. 10. Sri K. Shivashankar Bhat, learned Senior Standing Counsel for Central Government appearing for the respondents, refuting the contention of Sri Sundaraswamy, contends that the petitioner who had passed on the burden to the consumers, was not entitled for refund even if there was an illegal levy as ruled by a Division Bench of the High Court of Gujarat in Union of India v. Ahmedabad Manufacturing [1984 (17) E.L.T. 246]. In the very nature of things, it is necessary to examine this latter contention of Sri Bhat first and then with all other questions if that becomes necessary. 11. Excise duty under the Act, is levied and collected on the manufactured article from the manufacturer who is tree to pass on the same to the consumer and invariably passes on to the consumer can hardly be doubted. But the question is whether a court can hold that as a matter of law a m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e. 15. On the principles that should be borne in allowing refunds by this court in exercise of its prerogative powers under Art. 226 of the Constitution [a Bhailal Bhai's case, a Constitution Bench of the Supreme Court, has expressed thus: "At the same time we cannot lose sight of the fact that the special remedy provided in Art. 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions. It has been made clear more than once that the power to give relief under Art. 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the Court for relief under Art. 226 on the allegation that he has been assessed to tax under a void legis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s normally entitled for refund of the same on what I have held earlier. But that claim is resisted by the respondents as barred by time. The plea of limitation is a legitimate legal pica and no court can even say the respondents or defendants cannot and should not urge such a plea that is legitimately available to them. After all, courts are not concerned with the morality of claims or defences urged to defeat or deny the claims placed before courts. As pointed out by the Supreme Court in Bhailal Bhai's case reiterated in Vallabh Glass Work's case a High Court even in exercise of its extraordinary jurisdiction also, though there is no period of limitation for entertaining a writ petition under Art. 226 of the Constitution cannot ignore the plea of limitation at all. The ratio in Patel India case, does not touch on the plea of limitation, with which as we are now concerned on this part of the claim. The homily expressed by a smaller bench of the Supreme Court in Madras Port Trust case, cannot be read as barring the respondents from urging a legitimate legal plea available to them. When the same is seriously urged by the respondents, this court cannot ignore the same, and grant relie ..... X X X X Extracts X X X X X X X X Extracts X X X X
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