TMI Blog1980 (10) TMI 66X X X X Extracts X X X X X X X X Extracts X X X X ..... duty was paid on the basis that the wholesale price, which was relevant for the purpose of calculating the excise duty payable under section 4 of the Central Excises and Salt Act, 1944, was the price which was being charged by the dealers of the petitioner. In fact excise duty was leviable only with reference to the wholesale market price which was charged by the petitioner from the main dealers. This was so held by the Supreme Court in the case of A.K. Roy and Another v. Voltas Ltd., 1977 E.L.T. (J 177) = AIR 1973 S.C. 225. 4. The Supreme Court delivered the judgment in the Voltas case on 1st December, 1972. The same was reported in the law reports sometimes in January, 1973. On 30th March, 1973 the petitioner filed an application for r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se at all. According to the petitioner, duty of excise would be that duty which was legally payable. In this connection it is further contended that in any event even if it be assumed that no relief could be granted by the Excise Authorities, this Court would, in any case, be competent to grant the necessary relief in exercise of its powers under Article 226 of the Constitution. 9. According to Article 265 of the Constitution the respondents are entitled to levy and collect tax/duty only by authority of law. Any payment which has been received by the respondents in excess of what was legally due to them, cannot thus be regarded as having been collected in accordance with law. It may be that the excise authorities, because of Rules 11 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... been paid or have been adjusted in an account-current maintained - with the Collector under rule 9, and of which repayment wholly or in part is claimed in consequence of the same having been paid through inadvertence, error or misconstruction, shall be refunded unless the claimant makes an application for such refund under his signature and lodges it with the proper officer within three months from the date of such payment or adjustment, as the case may be. 173-J. Time limit for recovery of short levy or refund of excess levy - The provisions of rules 10 and 11 shall apply to the assessee as if for the expression `three months' the expression `one year' were substituted in those rules." 11. Duty of excise is that which is levied in acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ication under Rule 11 at all. That rule applies to refund of duty or charges which are paid under mistake. The application of the petitioner should have been regarded as a sought representation, not covered by rules 11 or 173-J, and the respondents ought to have applied the law laid down in Voltas case and passed an administrative order directing the refund of the excise duty realised by them in excess of what was permissible under the Act. 13. For the aforesaid reasons, the writ petition is allowed. A writ of certiorari is issued quashing the orders dated 30th August, 1974, 12th March, 1975 and 22nd May, 1976. The respondents are directed to give refund to the petitioner by calculating the excise duty payable in accordance with the princ ..... X X X X Extracts X X X X X X X X Extracts X X X X
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