TMI Blog1981 (4) TMI 263X X X X Extracts X X X X X X X X Extracts X X X X ..... reme Court gave a judgment on 6th October, 1975, holding that V.P. Latex was not a synthetic resin. According to the plaintiff, the effect of the Supreme Court s decision is that a refund of the duties wrongfully paid during the years 1963 to 1968 is to be made by the Union of India because an excessive duty has been charged. The sum due is claimed to be ₹ 15,54,214.80 as particularised in Annexure A which has been filed alongwith the plaint. 2. While stating the cause of action, the plaintiff urges that the mistake was discovered on 6th October, 1975, when the Supreme Court delivered its judgment. (It may be mentioned that the judgment is reported as A.I.R. 1977, S.C. 597, under the heading; Dunlop India Ltd.: Madras Rubber Factory Ltd. v. Union of India and others, the decision being in two connected appeals). It is also urged that the period of limitation started on 6th October, 1975, when the Supreme Court pronounced its judgment. As far as the question of jurisdiction is concerned, it is urged that the mistake of law was discovered in New Delhi and the liability to repay the money has also arisen in New Delhi, and hence, this Court has jurisdiction. 3. A writ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ther words, the mistake on which the plaintiff relies was discovered at Delhi. 6. I am not at all of the view that the Judgment in Ladulal Jain s case is at all applicable to the circumstances of the present case. That case specifically dealt with the Union of India in its capacity when, carrying on a business. The Court observed that the expression voluntarily resides or the phrase `personally works for gain is inappropriate in the case of Government, still the Government can be said to be carrying on business. In that sense, when maintaining the Railways, the Government was not in a different position from a private contractor. In the present case, the point involved is the collection of customs duty, so the Government was not acting as a business man and, hence, the only case in which this Court would have jurisdiction is if it could be said that the cause of action arose in Delhi. On this aspect, it is urged that the part of the cause of action in the present suit is the discovery of the mistake and the same took place at Delhi. 7. Reliance has been placed before me on the judgment of N.N. Goswamy J. delivered in Suit No. 1081 of 1978 on the question of territorial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n which it was held that an erroneous decision of the Customs authorities cannot be said to be without jurisdiction merely because it may be shown to be wrong. It was observed : Normally an action of an administrative authority interfering with the right to property may be challenged by resort to a civil court. Yet in the case of a right which depends upon a statute, the jurisdiction of the civil court to grant relief may by express provision or by clear implication of the statute be excluded. Where a statutere-enacts a right or a liability existing at common law, and the statute provides a special form of remedy, exclusion of the jurisdiction of the civil court to grant relief in the absence of an express provision, will not be readily inferred. Where, however a statute creates a new right or liability and it provides a complete machinery for obtaining redress against erroneous exercise of authority, jurisdiction of the civil court to grant relief is barred. Liability to pay a duty of customs is not a common law liability; it arises by virtue of the Sea Customs Act, in respect of any grievance arising in consequence of enforcement of that liability machinery has been provided ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tated further in the same judgment as follows : Therefore, where a suit will lie to recover moneys paid under a mistake of law, a writ petition for refund of tax within the period of limitation prescribed, i.e., within 3 years of the knowledge of the mistake, would also lie. For filing a writ petition to recover the money paid under a mistake of law, this Court has said that the starting point of limitation is from the date on which the judgment declaring as void the particular law under which the tax was paid was rendered, as that would normally be the date on which the mistake becomes known to the party. If any Writ petition is filed beyond three years after that date, it will almost always be proper for the court to consider that it is unreasonable to entertain that petition, though, even in cases where it is filed within three years, the court has a discretion, having regard to the facts and circumstances of each case, not to entertain the application. We are aware that the result of this view would be to enable a person to recover the amount paid as tax even after several years of the date of payment, if some other party would successfully challenge the validity of the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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