TMI Blog1984 (3) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... ur months from today. The appeal is however, dismissed in so far it relates to the claim for refund of excess duty paid in respect of wired glass during that period. Appeal allowed in part. - 3338 of 1979 - - - Dated:- 14-3-1984 - E.S. Venkataramiah and R.B. Misra, JJ. [Judgment per : Venkataramiah, J.]. This appeal by special leave is filed against the judgment and order dated November 22/23, 1978 of the High Court of Gujarat in Special Civil Application No. 577 of 1978 filed under Article 226 of the Constitution. 2. Appellant No. 1 is a company which is engaged in the business of manufacturing different types of glass viz. figured glass, wired glass, coloured figured glass, rolled glass and coolex wired glass and Vallabh Vidyanagar in the State of Gujarat from the year 1963. Appellant No. 2 is the Managing Director of appellant No. 1. The Central Excise Department had levied and collected excise duty on the said goods on the basis that they belonged to the category of sheet glass and were therefore subject to payment of excise duty under Item 23A(1) of the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as `the Act'). On Februa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the items of goods in respect of which dispute had been raised fell within the purview of tariff Item 23A(1). Against the said order of the Assistant Collector the appellants filed a writ petition in Special Civil Application No. 1365 of 1976 on the file of the High Court on September 28, 1976. The said petition was admitted but when it was taken up for final hearing it was contended on behalf of the Department that since the appellants had also filed an appeal against the very same order before the Collector of Central Excise they could not pursue the remedy under Article 226 of the Constitution as it stood then. In view of the above contention the writ petition was withdrawn without prejudice to the remedy by way of appeal. The appeal was thereafter disposed of by the Collector on July 27, 1977 affirming the order of the Assistant Collector. A revision petition filed by the appellants against the order of the Collector was dismissed by the Government of India by its order dated February 2, 1978. The said order in revision was challenged before the High Court by the appellants under Article 226 of the Constitution. The High Court by its judgment under appeal reversed the decisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ore facts which are relevant to this issue have to be stated here. As mentioned earlier, the goods in respect of which dispute had been raised by the appellants in their application dated February 20, 1976 were figured glass, wired glass, coloured figured glass, rolled glass, and coolex wired glass. But it is seen that in respect of wired glass, a dispute had arisen between the Department and the appellants earlier and in that case while the Department claimed that wired glass was subject to payment of duty under Tariff Item 23A(4) the appellants pleaded that wired glass was liable to duty under Tariff Item 23A(1). The Government of India ultimately by its order dated August 24, 1971 (in Order No. 261 of 1971 of the Government of India on Central Excise Revision Application) accepted the case of the appellants that wired glass was subject to duty under Tariff Item 23A(1) and the appellants had paid duty on that basis till February 20, 1976. These facts distinguish the case in respect of writed glass from the case in respect of the other goods. While the said earlier order may not be a legal bar to the contention raised by the appellants on February 20, 1976 that wired glass was not ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ppellants in excess of the proper duty payable by them, the appellants could have discovered with due diligence that the duty claimed from them was excessive. Under Article 113 of the Limitation Act, 1963 which is applicable to this case, a suit for recovery of such excess duty had to be filed within three years from the date of payment to the Department. But the appellants instead of filing a suit, first filed a writ petition in Special Civil Application No. 1365 of 1976 on September 28, 1976 and that petition had to be withdrawn in view of clause (3) of Article 226 of the Constitution as it stood then because the alternative remedy by way of an appeal was available. The appellants could, therefore, file the writ petition out of which the appeal arises only after the disposal of the revision petition by the Government of India as mentioned earlier. It is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights, to make consequential orders for repayment of money realised by Government without the authority of law under Article 226 of the Constitution. This is an alternative remedy provided by the Constitution in additi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o be refunded under Article 226 of the Constitution. But the High Court declined to do so on grounds of estoppel and acquiescence. While we do agree that the appellants should not be granted any relief in respect of payment made between October 1, 1963 and September 27, 1973 which would fall beyond three years from the date of the first writ petition filed in this case we do not find it proper and just to negative the claim of the appellants in respect of excess payments made after September 28, 1973. In the instant case the appellants had made excess payments on being assessed by the department and such payments cannot be treated as voluntary payments precluding them from recovering them. [See Sales Tax Officer, Banaras Ors. v. Kanhaiya Lal Mukundlal Saraf - (1959) S.C.R. 1350]. We do not also find that the conduct of the appellants is of such a nature as would disentitle them to claim refund of excess payments made in respect of goods other than wired glass. 10. We, therefore, modify the judgment and order passed by the High Court by quashing the assessments of excise duty made in respect of the goods in question other than wired glass viz. figured glass, coloured figured gl ..... X X X X Extracts X X X X X X X X Extracts X X X X
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