TMI Blog1991 (10) TMI 52X X X X Extracts X X X X X X X X Extracts X X X X ..... 944 (hereinafter referred to as "the Act" for the sake of brevity) and consequent refund of the amount of excise duty collected without the authority of law. 3. According to the petitioner, flush door is neither a combination nor a finished article of plywood or board falling under Item 16B of the Central Excise Tariff and, therefore, they were not liable to pay excise duty at the rate specified in that item. The correctness of the levy of excise duty on flush doors was challenged in Writ Petition No. 938 of 1977, (M/s. Wood Craft Products Ltd. v. The Superintendent, Customs and Central Excise, Dibrugarh and Others) before the Delhi High Court. By judgment dated 17-3-1980 reported in 1980 (6) E.L.T. 684 it was held that the product flush ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rred under Section 11B of the Act. For claiming the rejected amount of refund, the petition is filed. 7. On behalf of the respondents a vehment attempt was made to support the order and in particular it was emphasised that the petitioner voluntarily classified the flush doors as covered under Tariff item 16B and, therefore, it is not now open for them to contend that they paid the excise duty under mistake of fact and/or law. 8. It may be relevant to observe here that Section 11B was brought into force on 17-11-1980. Prior to that the refund of excise duty was governed by Rule 11 of the Central Excise Rules, 1944. Therefore, Section 11B of the Act would normally apply to refund claims arising after 17-11-1980. In any event Rule 11 and S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Rule 11 is concerned, it is manifest that it cannot stand in the way of the petitioner. That Rule is designed to deal with cases of payment or adjustment made through inadvertence, error or misconstruction. When tax is paid where it is not payable under the law, it is regarded as payment made under a 'mistake' as that word is understood in the Contract Act. See, for instance, The Sales Tax Officer, Banaras v. Kanhya Lal Mukund Lal Saraf, AIR 1959 SC 133 and State of Madhya Pradesh v. Bhailal Bhai, AIR 1964 SC 1006. The notion of 'mistake' is materially different from that of inadvertence, error or misconstruction. Error is not synonymous with mistake in Rule 11, it obviously means some clerical or arithmetical error. The word 'misconstructi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urt in Wipro Products Ltd. and Another v. Union of India and Another [1981 (8) E.L.T. 531] while discussing the scope and ambit of Rule 11. It was held that if the levy of Central Excise was totally without jurisdiction and outside the provisions of Section 4 of the Central Excise Act, the bar of limitation prescribed under Rule 11 of the Central Excise Rules was not applicable. 14. There is yet another decision of this Court which endorses the aforesaid view and also lays down that when a mistake of law is common to both the parties, the question of estoppel does not arise. Such a decision is given in Golden Tobacco Co. Ltd. v. Union of India and Another [1983 (14) E.L.T. 2238]. 15. From the aforesaid discussions no doubt is left, but ..... X X X X Extracts X X X X X X X X Extracts X X X X
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