TMI Blog1983 (4) TMI 54X X X X Extracts X X X X X X X X Extracts X X X X ..... itioner's case is that by reason of an Exemption Notification No. 55/75 the above-mentioned article was not excisable. It is not in dispute that under this Exemption Notification all drugs, medicines, pharmaceuticals and drugs intermediates were entitled to exemption. However, it appears that the petitioner in ignorance of this Exemption Notification started to pay and continued to pay the Excise Duty for a long period right from 1975. The petitioner alleges that on 11-3-1980 a clarification was made by the Central Board of Excise and Customs showing that the article in question was entitled to have an exemption. It is in this way that the petitioner learnt that no Excise Duty was payable on the said article. The petitioner on 14th November, 1981, filed a Classification List under the Rules showing that though the said article was falling under Item No. 68, still it was exempted under Notification No. 55/75. The respondent No. 2 approved the said classification. According to the petitioner, this would show that right from 1975 the petitioner was not liable to pay any Excise Duty on the article in question and that the said Excise Duty was paid earlier on account of a mistake of law ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tition, the petitioner does not want that the Excise authorities should exercise their powers under Section 11B. What is claimed is that the petitioner is entitled to have back the amount paid under a mistake of law though the claim of refund under Section 11B may not be permissible before the Excise authorities on account of a bar of limitation. In view of this peculiar position, we do not think that the respondents can successfully urge that the petition should be dismissed simply because certain appeals contemplated by the Act have not been filed. 5. As far as the point of unjust enrichment is concerned, this Court has taken a view in a number of matters that the refund cannot be refused simply because the petitioner must have passed on the liability to the customers. We may refer to the two decisions of this Court reported in Maharashtra Vegetable Products Pvt. Ltd. and Another v. Union of India and Others (1981 E.L.T. 468) and Wipro Products Ltd. and Another v. Union of India and Another (1981 E.L.T. 531). In paragraph 11 of the case of Maharashtra Vegetable Products Pvt. Ltd., the Division Bench of this Court has held as follows :- "The contentions that a direction issued ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rules made thereunder the period of six months shall be computed from the date of adjustment of duty after the final assessment thereof. (2) If on receipt of any such application, the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant should be refunded to him, he may make and order accordingly. (3) Where as a result of any order passed in appeal or revision under this Act refund of any duty of excise becomes due to any person, the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf. (4) Save as otherwise provided by or under this Act, no claim for refund of any duty of excise shall be entertained. (5) Notwithstanding anything contained in any other law, the provisions of this section shall also apply to a claim for refund of any amount collected as duty of excise made on the ground that the goods in respect of which such amount was collected were not excisable or were entitled to exemption from duty and no court shall have any jurisdiction in respect of such claim. Explanation. - For the purposes of this section, "refund" inclu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pecific provision that the provisions of Section 11B would apply to a claim for refund of the Excise Duty on any of the two grounds, namely that the goods were not excisable or that the goods were entitled to exemption from Excise Duty. It was therefore urged on behalf of the respondents that in view of this sub-section (5), the only remedy that is available to the petitioner is to make an application under sub-section (5) for the claiming of refund on the ground that the goods in question were entitled to an exemption under the Exemption Notification No. 55/75. As against this, it was urged by Mr. Hidayatulla that the provisions of sub-section (5) would not come in the way of the petitioner when the petitioner has approached this Court for exercise of the writ jurisdiction under Article 226 of the Constitution. It is true that sub-section (5) contemplates that no Court shall have jurisdiction to entertain a claim for refund of the Excise Duty. What is argued, however, is that though a suit, if filed by the petitioner, would be barred under sub-section (5), still the petitioner would be entitled to have an appropriate remedy by way of refund if he approaches the Court under Article ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. v. Municipal Committee, Dhamangaon reported in AIR 1966 S.C. 249. Certain tax levied by the Municipality under the Municipal Act was challenged as not legally recoverable. It appears that the Municipal Act contained adequate provisions which would enable a party to obtain a redress. In that background, there was a controversy as to whether a party can approach the High Court under writ jurisdiction. The Supreme Court has held as follows in paragraph 30 :- Para 30. - Moreover, we must bear in mind the provisions of Article 265 of the Constitution which preclude the levy or collection of a tax except by authority of law, which means only a valid law. There was no corresponding provision in the various Acts for the governance of India which preceded the Constitution. Under Article 226 of the Constitution has provided a remedy to a citizen to obtain redress in respect of a tax levied or collected under an invalid law. This remedy will not be affected by any provision like Section 67 of the Indian Income-Tax Act or like Section 84(3) of the Municipalities Act." Mr. Hidayatulla also relied upon two more decisions of the Supreme Court, namely in In re : The Kerala Education Bill, 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Supreme Court under Articles 136 of the Constitution directly from the order passed by the Central Government. In such matters it is necessary to bear in mind that the jurisdiction of the Appellate authority would be limited to the jurisdiction of the authority which has passed the original order. The question as to whether a refund is permissible even if a claim is made beyond the period of limitation, could not have been decided by the Central Government in favour of the petitioner in view of the fact that there was a specific provision under the Act that the claim must be made within time. When the matter went to the Supreme Court, the Supreme Court considered this period of limitation as it was exercising a jurisdiction not under Article 32 of the Constitution. The fact that the concerned authority would ordinarily exercise the jurisdiction that was invested in the original authority can very well be seen from the decision of the Supreme Court in the case of Raja Bahadur Kamakhya Narain Singh v. The Commissioner of Income-Tax, Bihar and Orissa reported in AIR 1971 S.C. 794. It would not therefore be correct for Mr. Neurenkar to urge that whenever a provision for refund has pre ..... X X X X Extracts X X X X X X X X Extracts X X X X
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