TMI Blog1984 (4) TMI 59X X X X Extracts X X X X X X X X Extracts X X X X ..... Schedule to the Act, which prior to 7-3-1972, was as follows : Rate of duty "1-D. Aerated waters whether or not flavoured or sweetened and whether or not containing vegetable or fruit juice or fruitpulp. Ten per cent ad valorem With effect from 17-3-1972, the rate of excise duty under Item 1-D of the First Schedule was raised from 10% ad valorem to 20% ad valorem. However on the same day, i.e. on 17-3-1972, the respondent no. 1 issued a notification in exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944 (for short 'the Rules') exempting the aerated waters failing under Item No. 1-D of the First Schedule to the Act from so much of the duty as is in excess of 10% ad valorem. The effect of the above notification dated 17-3-1972 is that the aerated waters in the manufacture of which blended flavouring concentrates in any form are used are alone liable for the excise duly at the rate of 20% ad valorem while the other aerated waters continued to be liable for the excise duty at the rate of 10% ad valorem only. 3. In spite of the aforesaid notification of the Central Government dated 17-3-197 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Division No. 1, Nagpur, dated 7-1-1981. The petitioner had also made a claim for refund of excise duty amounting to Rs. 5,28,084.05 in respect of Fanta Orange for a period from 8-9-1976 to 16-6-1977, simultaneously under the same letter dated 2-9-1977, addressed to the Assistant Collector, Central Excise, Nagpur. In respect of the above claim for refund about the Fanta Orange, the Assistant Collector, Central Excise, Division-I, Nagpur, by his order dated 23-5-1980, held that the claim amounting to Rs. 4,54,850.31 covering the period from 25-2-1977 to 16-6-1977, is within limitation as provided under rule 11. He, therefore, allowed the same. He, however, rejected the claim of the petitioner for the refund of the amount of Rs. 73,233.74 for a period from 8-9-1976 to 24-2-1977 in respect of Fanta Orange on the ground that it is barred by limitation prescribed under rule 11 of the Rules. The aforesaid order dated 23-5-1980 passed by the Assistant Collector, Central Excise, Nagpur, rejecting the claim of refund of an amount of Rs. 73,233.74 for a period from 8-9-1976 to 24-2-1977 in respect of Fanta Orange on the ground of limitation is the subject-matter of the Writ Petition No. 2155 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... und of any duty shall be entertained. Explanation. - For the purpose of this rule, 'refund' includes rebate referred to in rules 12 and 12-A." The new rule 11 was also deleted with effect from 17-11-1980 by Notification No. 177/80-CE, dated 12-11-1980, because the provisions relating to refund of duty were thereafter governed by Section 11-B of the Act itself which was inserted in the Act by Section 21 of the Customs, Central Excises and Salt and Central Boards of Revenue (Amendment) Act, 1978 (No. 25 of 1978) which was brought into force with effect from 17-11-1980 vide Notification No. 182/80-C.E., dated 16-10-1980. It is not necessary to reproduce Section 11-B of the Act as it is not relevant for the purposes of these petitions. 7. According to the petitioner, it is the old rule 11 and not the new rule 11 which would have been applicable, if at all, to the claim for refund in these petitions. According to it, the respondent no. 2 has considered the claims of the petitioner for refund under new rule 11 referred to above. The first contention raised on behalf of the petitioner is that when a duty recovered or voluntarily paid by mistake in excess of what is prescribed under ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... entral Excise, Division-I, Nagpur, who, after examining the samples of the products of the petitioner, has given an opinion that the blended flavouring concentrates have not been used in the manufacture of the products of the petitioner. 9. As regards the question of the applicability of the old rule 11 the contention on behalf of the petitioner is that the claims for refund are for a period prior to 6-8-1977 i.e. when the old rule 11 was in force. The submission is that the law which was in existence on the date the payment was made will apply in case of refund and not the law which was in force on the date the application for refund was made because admittedly, it was the new rule 11 which was in force on the dates on which the applications for refund were made by the petitioner in both these petitions. In support of the contention that the new rule 11 will apply, it is the submission on behalf of the respondents that the new rule 11 is partly substantive and partly procedural, meaning thereby that in so far as a right to refund, according to the respondents, is created under the said rule, it is substantive and in so far as a procedure for recovery is prescribed, it is procedu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... para 29) - The Central Bank. of India and others v. Their Workman and also AIR 1973 S.C. 1227- The Workmen of M/s. Firestone Tyre and Rubber Co. of India P. Ltd. v. The Management and others.]. It is, therefore, necessary to be seen whether the provisions of new rule 11 can be held to be retrospective so as to affect the existing or the vested right which has accrued to the petition prior to the said rule. 12. In our view, the new rule 11 is clearly prospective in its operation in the sense that it will apply to the cases in which the right to claim refund has arisen after it came into force. This view is supported by the language of the new rule 11 itself. The said rule provides a limitation for making an application which is six months from the date of payment of duty. If the said rule was intended to apply to claims of refund prior to its coming into force, in many cases the claims would be barred by limitation because the limitation of six months is to be computed from the date of payment of duty. It is useful to notice at this stage that whatever may be the interpretation of the new rule 11, on the question whether it enacts complete code in itself on the matters relating t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such decisions of our High Court are reported in Associated Bearing Company Limited v. Union of India and another [1980 E.L.T. 415 (Bombay)], Ceat Tyres of India Limited v. Union of India and others [1980 E.L.T. 563 (Bombay)], Wipro Products Ltd. and another v. Union of India and another [1981 E.L.T. 531 (Bombay)]. 15. It was thus open to the petitioner to enforce its claim of the refund of excise duty paid through mistake by recourse either to a civil suit or by filing a writ petition under Article 226 of the Constitution. The petitioner has chosen to enforce the claim by preferring a writ petition in this Court after his applications with the Department for granting refund have failed on the ground that the claim is barred by limitation under the new rule 11 of the rules. If the old rule 11 does not enact a self-contained code, the petitioner cannot be precluded from moving this Court under Article 226 of the Constitution in regard to a claim which is held to be barred by time by the Department. 16. As regards the invoking of the jurisdiction of the High Court under Article 226 of the Constitution of India, it is well-settled that it is a discretionary relief and that the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f decision of this Court referred to above i.e. 11-10-1976 is and should alone be the date of the discovery of mistake and not the dated 13-7-1977 on which the petitioner received information on receipt of the letter dated 11-7-1977 from the Coca Cola Export Corporation and further that the said mistake could be discovered earlier with due diligence on the part of the petitioner. We do not think that in the facts and circumstances of the instant case the aforesaid submissions on behalf of the respondents are justified. 18. As regards the first submission on behalf of the respondents that the date of decision of this Court referred to above i.e. 11-10-1976 is and should alone be the date of discovery of the mistake, the petitioner has sought to support the same by relying upon a decision of the Rajasthan High Court in the case reported in Shiv Steel Works and another v. Union of India (1982 E.L.T. 373 para 13 of the report). A perusal of para 13 of the aforesaid decision would show that the said decision does not lay down as a hard and fast rule that in every case the date of knowledge of mistake would be the date of judgment of the Court. In fact the Rajasthan High Court in para ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ner should have in fact learnt about it even much earlier to the decision of this Court cited supra rendered on 11-10-1976. At any rate, the further submission is that the petitioner must be presumed to know the mistake when the aforesaid unreported judgment of this Court was rendered on 11-10-1976. There is no merit in both of these submissions. 21. It is clear from the facts on record in the instant writ petitions that the formula of composition of the products of the petitioner is the guarded secret of the Coca Cola Export Corporation and the said formula was, therefore, not known to the petitioner. There was, therefore, no reason for the petitioner to entertain any doubt on the question whether any blended flavouring concentrates are used in the manufacture of its products. The petitioner has, therefore, no reason to make any enquiry in regard to the said matter and particularly in regard to the question of law involved in the same viz. whether the excise duty paid by it upon its products is in excess of the duty prescribed under the Act. The petitioner, therefore, could not have any occasion to look into the judgments of the Courts on this question much less the unreported o ..... X X X X Extracts X X X X X X X X Extracts X X X X
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