Ludhiana Bottling Company vs Union of India (UOI) and Others

Adarsh Kumar Goel, J.—Order dated 4.3.2010, dismissing the writ petition for non-prosecution and order dated 9.7.2010, dismissing the application for restoration, are recalled and the writ petition is restored to its original number. Heard on merits.

This petition seeks quashing of orders dated 25.8.1981, Annexure P-3, 7.11.1983, Annexure P-6, 9.3.1988, Annexure P-8, and 30.6.1988, Annexure P-10, whereby the claim of the Petitioner for refund under the provisions of the Central Excise Act, 1944 was disallowed.

The Petitioner applied for refund of duty claimed to have been paid under a mistake of law for the period from 17.3.1972 to 16.6.1977. The application was dismissed on merits as well as on the ground of limitation. The Collector allowed refund for the period of one year prior to filing of the application i.e. from 26.7.1976 to 25.7.1977, which was upheld by the Tribunal. It was held as under:

In this connection, it should be remembered that the claim for refund in the present instance was made to the Departmental authority. The said authority derived its right to grant of refund in terms of Rule 11 of the Central Excise Rules. Therefore, if the said authority is to exercise its power in granting such refund it would be governed by the period mentioned therein. If on the other hand it is to be held that the claim was not governed by Rule 11, the authority would have no power to grant the refund since grant of refund is provided for under Rule 11 only as it then stood. In the cases relied on by Shri Bhangoo relief had been granted, outside the provisions of the Rule 11, by the High Court in exercise of its prerogative and discretionary power under Article 226 of the Constitution of India. The question of the powers of the Departmental authorities was contrasted with the powers of the High Court or Supreme Court (exercised under Article 226 or Article 32) were discussed in the decision of this Tribunal in the case of Milk Food Ltd. (1987) 10 CCR 810.

We have heard learned Counsel for the Petitioner.

The above view is in consonance with the view taken by a Bench of 9 Judges of the Hon''ble Supreme Court in Mafatlal Industries Ltd. and Others Vs. Union of India (UOI) and Others, to the effect that refund application has to comply with statutory limitation except where the refund is as a consequence of declaration of a provision as unconstitutional. In the present case, refund application being beyond limitation, no fault can be found with the impugned order.

We, thus, do not find any merit in this petition.

Dismissed.