TMI Blog1987 (8) TMI 89X X X X Extracts X X X X X X X X Extracts X X X X ..... m No. 68 but relating to artificial limbs and rehabilitation aids for the handicapped. The petitioners' case is that they were not aware of this notification. They started their factory in 1977 and classified their goods under Item 68 and paid the duty without realising that they were not liable to pay the said duty by virtue of the said exemption notification. 3. However, sometime in the month of April 1980, the petitioners came to know that they were exempt from the levy of excise duty by virtue of the said notification and, therefore, they filed a fresh classification list dated 23rd May 1980, wherein they claimed the benefit of the exemption under the said notification in respect of the said goods. This classification list was approve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the claim was time barred in view of the provisions of Section 11B of the Act. It is against this order, the petitioners have filed the present petition. The petition was filed on 12th February 1982. 4. The petitioners relied on several judgments recently given by our High Court as also various other High Courts and the Supreme Court in support of their contention. The contention is that the collection of excise duty was without the authority of law and, therefore, in such cases there can be no question of any limitation and that, therefore, the respondents were bound to grant their application for refund. I must mention here that as the facts Stand before me and having regard to the record of the matter, it is clear that "the petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ery of the mistake, but still the Court will have to consider as to whether, with due diligence, the petitioners could have discovered the mistake earlier. He submitted that in that event if the petitioners were not vigilant in discovering the mistake, this Court cannot entertain such a petition. 7. In the present case, according to the petitioners, they discovered the mistake sometime in April 1980. The petition has been filed on 12th February 1982. Therefore, prima facie they have come to the Court within the period of three years from the date of discovery of the mistake. The notification herein is of the year 1976. But the petitioners started manufacturing all these goods sometime in May 1977. If that is so, they could not have discov ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the Contract Act, as they (the plaintiffs) failed to plead and prove that the payments in question were made either under a mistake of law or under coercion, and that is how the plaintiffs were not entitled to claim relief of refund of the amount paid by them. However, on the question relating to the doctrine of unjust enrichment, Ravani J. had made very many observations, with most of which I would readily agree. But as far as this Court is concerned, having regard to the several decisions of the Division Benches including the judgment in I.T.C. Ltd. v. M.K. Chipkar and others, reported in 1985 (22) Excise Law Times Page 334, the legal position as concluded here, appears to be that the theory of unjust enrichment cannot be invoked in cas ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... out a covert conspiracy, though no tangible evidence be possible, between the manufacturers and the revenue, all at the cost of the ultimate but helpless consumer. What is the solution? If the Government is really sincere in its belief, it is for the Government to amend the law. Though it is not my function to suggest and formulate the law, but with a view to put an end to this unseemly controversy, I would say that the law should be amended to deny any claim for refund of any excise duty or tax, if in the opinion of an officer of not less than the rank of an Assistant Collector, the same has been passed on to any buyer or consumer. In other words, a manufacturer should be entitled to claim such a refund, if he has not passed on the burden ..... X X X X Extracts X X X X X X X X Extracts X X X X
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