- (1.) BY the court:
(2.) MAN Industrial Corporation Ltd. (hereinafter referred to as 'the petitioner Company') is engaged in manufacture of bars, rods, sections, squares, for goings, etc. and for that purpose it uses steel ingots produced with the aid of electric are furnace. The petitioner Company was required to pay excise duty amounting to Rs. 3,60,787.13 P. on the products manufactured by it. The case of the petitioner is that the said products were exempt from the said duty and the petitioner Company was not liable for the same. The Allahabad High court in Bansal Steelsons Co. Private Ltd. v. Union of 573 India and Others (1974 A.LJ. 350 = Cen-Cus June 1974, Page 1) has held that no difference could be made between ingots received from the large steel plants and ingots received from Mini Steel Plants and the exemption from excise duty granted under notification dated 30/11/1963 read with notification dated 1/03/1969 and 20/04/1969 was applicable in respect of products manufactured from ingots received from both types of plants. On the basis of the Said decision, the petitioner Company applied for refund of the duty which has been recovered from it. The Assistant Collector, central Excise Division, Jaipur by his order (Ex. 7) dated 25/11/1976 disallowed the said claim for refund in respect of the period 4/12/1972 to 12/06/1973 on the ground that it was barred by limitation under Rule 11 read with Rule 173J of the central Excise Rules, 1944 (hereinafter referred to as 'the Rules'). Refund in respect of the period subsequent to 12/06/1973 was allowed by the Assistant Collector. On appeal the said order of the Assistant Collector was reversed by the Appellant Collector, central Excise and Customs, New Delhi, by his order (Ex. 9) dated 5/05/1977 .and the Assistant Collector was directed to consider the refund claim of the petitioner Company under the general Limitation Law. The said order of the Appellant Collector was, however, set aside by the central government in exercise of its review power, by order dated 28/10/1978 (Annexure 12) whereby the order of the Assistant Collector dated 25/11/1976 was restored. Hence, this writ petition. Shri S. C. Agarwal, the learned counsel for the petitioner company has invited my attention to the decision of division bench of this court in M/s. Shiv Sleet Works v. Union of India (1980 W.L.N. 287). The present case is fully covered by the aforesaid 'decision wherein it has been held that an act done by the excise authorities cannot be said to be an act done under the Act and Rule 11 read with Rule 174(J) of the central Excise Rules would not be applicable and the S. 113 of the Limitation Act, 1963, which is the residuary article would be applicable. Under Article 113 of the Limitation Act the period of limitation is 3 years from the date when the mistake is discovered.
(3.) IN the present case I find that the Allahabad High court had decided the case of Bansal Steelsons Co. Private Lid. v. Union of INdia & Others (Cen-Cus June 1974, Page 1) on 18/01/1974. The mistake can, therefore, be said to have been discovered on 18/01/1974. The petitioner Company submitted the application for refund of the excise duty on 5/06/1974 i.e. within the prescribed period of limitation of three year under S. 113 of the Limitation Act. The petitioner Company, is, therefore, entitled to succeed. In this context reference may be made to the present decision of the Supreme court in India Cements Ltd. v. Collector of central Excise [1989 (2) S.C.C. 676 = 1989 (25) ECR 477 SC] wherein the Supreme court has observed that the authorities ought to have extended the benefit of view taken by the central government in the case of Birla India Cement Works and other similar cases. Similarly it can be said that the respondent should have extended the benefit of the decisions of this court in the matter of limitation for refund to all similar cases including the case of the petitioner Company.;