TMI Blog1987 (4) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... cessary. The petitioner company carries on the business of fabrication and erection of steel structures. In the course of its business, the company has to fabricate pipes and penstocks from steel and plates and sheets, which are excise duty payable items. 2. In the year 1981-82 the duty payable under Tariff Item No. 68, which is a residuary item with the heading "All other goods not elsewhere specified" was 8% ad valorem. The petitioner submitted a classification list in advance for payment of excise duty under Rule 173B of the Central Excise Rules, 1944. The classification list submitted by the petitioner of the year 1981-82 showed pipes and penstocks as chargeable with excise duty under Tariff Item No. 68. The classification list was ap ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 6. The petitioner, thereafter, moved an application for refund of duty on the ground that it was entitled to exemption from payment of excise duty on the penstocks and pipes. The following was the application moved by the petitioners. "The refund claims is submitted on the following grounds: Penstocks pipes are classified under Tariff Item 26AA vide Board's order No. 78/81, dated 4-8-1981 ECR/1981/2332/Now under Tariff Item 25 with effect from 1-4-1983, but the Central Excise Department had approved the classification list for the year 1981, under Tariff Item 68, and supplementary classification lists were submitted for years 1982, 1983 and 1984 accordingly, showing the penstock and pipes under Tariff Item 68. As desired by the Depart ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ut of steel on which excise duty had already been paid, exemption would be available to the assessee, is not disputed. 9. The argument of the respondents was that under Section 11B, refund of any duty of excise could be made on an application being made before the Assistant Collector of Central Excise before the expiry of six months from the relevant date. The expression "relevant date" has been defined in Explanation (B) to Section 11B. The clauses relevant for our purposes are (e) and (f), which are quoted below :- "(e) in a case where duty of excise if paid provisionally under this Act of the rules made thereunder, the date of adjustment of duty after the final assessment thereof, (f) in any other case, the date of payment of duty. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... elief in respect of the year 1981-82 is admissible to the petitioner not only because the claim for its refund had not been made within six months, but independently of it the High Court would not be justified under Article 226 of the Constitution to assist a party which prefers a belated writ petition and offers no justification or explanation for the delay. 12. So far as the years 1982-83 and 1983-84 are concerned, the classification list of these two years were pending for approval before the Assistant Collector, Central Excise and till they had not been approved, final liability could not be said to have been adjudicated upon or decided, was urged by the Counsel for the Union of India since penstocks and pipes were already classified ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... into the question whether classification list needed approval of the proper officer under Rule 173B of the Central Excise Rules. The position with regard to it may be assumed to be correct. It was during the course of discussion with the Assistant Collector that the fact of the classification list being wrong under Tariff Item 68 came to the notice of the petitioner. The petitioner at that time learnt that penstocks and pipes should have been classified for these years under Tariff Items 26AA and Item 25. The Assistant Collector on submission of a fresh classification list approved the same by holding : "Those penstock pipes are fabricated out of duty paid steel plates and sheets. Since these are production of iron/steel it was rightly cl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... if we were to hold that the claim for refund having been preferred after six months was liable to be rejected, we would consider the present as a fit case for exercise of the powers vested under Article 226 of the Constitution. If duty has been paid under a mistake, as occurred in the instant case, the claim for repayment of refund is entitled to succeed. As to when should Court exercise the power under Article 226 of the Constitution would depend on the facts and circumstances of each case and as it was neither easy nor desirable to lay down the cases exhaustively for universal application, we cannot lay down the same. As it appears to us that the refusal to grant refund to the petitioner would be harsh, inequitable and unjust on the grou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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