TMI Blog1991 (12) TMI 283X X X X Extracts X X X X X X X X Extracts X X X X ..... was taken by the petitioner to the levy of Excise Duty. 3. On 9th April, 1977 a Notification was issued whereby Excise Duty was specifically leviable on Skimmed Milk Powder. The case of the petitioner is that one of its employees on 28th January, 1980 informed the petitioner that prior to 9th April, 1977 no Excise Duty on Skimmed Milk Powder was payable. Thereupon a notice of demand was sent by the petitioner on 21st March, 1980, followed by the filing of the present writ petition. 4. During the pendency of the writ petition the petitioner amended the same and an affidavit in reply was also filed by the Union of India. It was, inter alia, alleged that the petitioner had realised from its customers the Excise Duty which had been paid b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ntrary to the provisions of Article 265 of the Constitution. The State also, it was submitted, could not unjustly enrich itself. It is possibly precisely for this reason that there has been an amendment in the law with the enactment of Central Excise and Customs Laws (Amendment) Act, 1991, whereby Chapter II-A has been inserted in the Central Excise Act. Sections 12-A to 12-D deal with a situation regarding the refund of Excise Duty. Section 12- A requires the price of the goods to indicate the amount of duty which is paid thereon. According to Section 12-B there is a presumption, which is rebuttable that the incidence of duty has been passed on to the buyer. The amount of refund which becomes due is to be credited to a Consumer Welfare Fun ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... igh Court in Roplas (India) Ltd. and Another v. Union of India and Another, 1988 (38) Excise Law Times 27 came to the conclusion that if Excise Duty had been paid under the mistake of law but the Duty had been recovered from the consumers, then the High Court would be reluctant to exercise its extra-ordinary jurisdiction under Article 226 of the Constitution in favour of the assessee which had made payment of the Excise Duty. 10. Mr. Mohan has strongly relied upon the decision of the Full Bench of the Bombay High Court in New India Industries Ltd. v. Union of India, 1990 (46) ELT 23 -also dealing with the question of unjust enrichment. Though the Full Bench did notice the aforesaid two decisions of the Supreme Court in Nawabganj S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 28/83, P.N. Monga Bottlers (P) Ltd. v. Union of India etc ., refund was sought by the petitioner of the Excise Duty which it had paid at higher than the prescribed rate. Dismissing this writ petition it was observed as follows: it will be noticed that for the relevant years, the petitioners had already collected lacs and lacs of rupees from the consumers. They are at no loss whatsoever. They cannot now apply for refund. Under Article 226 of the Constitution of India, we are not inclined to entertain this petition at this later stage. The petition is accordingly dismissed. 13. Following the aforesaid two decisions of this Court it must follow that it will be inequitable for us to allow the petitioner to get any refund of the Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... party as expeditiously as possible. It is true that there is no period of limitation prescribed for approaching the Court under Article 226 and it is precisely for this reason that the petitioner must show that it has been acting diligently in pursuing this remedy. Merely because period of limitation is not prescribed does not mean that a petition under Article 226 can be filed a number of years after the cause of action had arisen. It was sought to be contended by Mr. Mohan that it is only when a Notification of 9th April, 1977 was issued making Skimmed Milk Powder expressly taxable that the petitioner got the cause of action because the mistake was discovered by the petitioner. We are unable to agree with this. The cause of action arose ..... X X X X Extracts X X X X X X X X Extracts X X X X
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