S.C.Mathur, J. - (1.) These petitions involve interpretation of certain notifications issued by the Central Government in exercise of the powers conferred under Rule 8(1) of the Central Excise Rules, 1944 framed Under Section 37 of the Central Excises and Salt Act, 1944 (Act No. 1 of 1944). The petitions raise the following questions : 1. Whether this Court should refuse relief to the petitioner on the ground of laches ; 2. Whether the appellate and revisional orders passed against the petitioner are legally correct; 3. Whether the basis of the order dated 12-10-1971 (Annexure No. 8 to writ petition No. 828 of 1975) is correct; 4. If the above orders are legally correct should this Court grant relief to the petitioner if it finds that duty was realised at incorrect rate and the realisation was illegal ; and 5. Whether unbleached paper which in common parlance is called 'Badami' paper is coloured paper so as to fall within the purview of the excepting clause of notifications numbered 209/67 and 210/67 dated 8-9-1967 and notifications numbered 22/68 and 23/68 dated 1-3-1968.
(2.) The above questions have arisen in the circumstances hereinafter indicated. Parties in both the petitions are common with the only difference that in writ petition No. 825 of 1975 the Collector of Central Excise, Allahabad, who has not been impleaded in writ petition No. 828 of 1975, has also been impleaded as opposite party No. 4.
(3.) The facts of writ petition No. 825 of 1975 are thus: petitioner is a limited company registered under the Companies Act of 1956. It carries on the business of manufacturing paper. Between 8-9-1967 and 20-12-1967 it cleared Badami paper after payment of excise duty relating to coloured paper; in this manner the petitioner paid Rs. 64,421.15 as stamp duty; according to the petitioner it was liable to pay the excise duty at concessional rate prescribed under Notification, No- 208/67 dated 8-9-1967; if excise duty was calculated at concessional rate the amount of duty came to Rs. 45,094.70; thus, the Excise Department realised from the petitioner Rs. 19,326.40 in excess of the duty actually payable, on 19-2-1968 the petitioner wrote to the Resident Inspector, Central Excise, claiming refund of the excess amount of excise duty; on 12-6-1968 the petitioner wrote a similar letter to the Assistant Collector; on 19-6-1968 the Assistant Collector wrote to the petitioner accepting his contention. On the strength of the letter of the Assistant Collector the petitioner submitted a claim for refund to the Resident Inspector on 27-9-1968; the refund claim of the petitioner was returned to him by the Resident Inspector on 3-10-1968 for removing certain defects pointed out by him; on 14-10-1968 the petitioner re-submitted his claim papers after removing the defects; on 8-1-1968 (1969) the Resident Inspector again returned the claim papers requiring the petitioner to remove the defects pointed out by the Assistant Collector; the petitioner explained the position through his letter dated 22-1-1969; on 3-10-1969 the Assistant Collector informed the petitioner that its claim for refund was under scrutiny, on 28-7-1970 (Annexure 11) the Assistant Collector wrote to the petitioner informing him that the Accountant General, U.P. had opined that unbleached paper on account of its wearing a natural colour in contrast to commonly known printing and writing paper (viz. bleached variety) would be classifiable as coloured variety for the purposes of Notifications Nos. 209/67 and 210/67 dated 8-9-1967; the petitioner was informed that in view of the opinion expressed by the Accountant General its claim for refund could not be entertained; Support for the view expressed by the Accountant General was sought from notifications numbered 22/68 and 23/68 dated 1-3-1968 in spite of the Assistant Collector's letter dated 28-7-1970 the petitioner again wrote a letter to the Assistant Collector on 22-8-1970 pressing for refund of the excess amount of excise duty. Similar letter was sent by him on 21-9-1970 also; through his letter dated 23-12-1970 the Assistant Collector informed the petitioner that in view of the notifications quoted in his letter dated 28-7-1970 the petitioner's claim for refund was not admissible; on 26-4-1971 the petitioner wrote to the Collector Central Excise, requesting him to look into his claim for refund; on 13-9-1971; the petitioner sent a reminder to the Collector giving grounds in justification of his claim for refund; in this reminder the petitioner's letter dated 26-4-1971 was described as an appeal. Through his reply (Annexure 17) the Collector informed the petitioner that his appeal was being forwarded to the Appellate Collector, Central Excise, New Delhi who was the authority competent to decide the appeal; by order dated 29-1-1973 (Annexure 18) the Appellate Collector dismissed the appeal as time-barred; thereafter on 1-5-1973 the petitioner preferred revision under Section 36 to the Central Government. This revision was dismissed by the Central Government by order dated 30-5-1974 (Annexure 20) observing that the Appellate Collector was right in holding that the appeal was barred by time. The petitioner then preferred the present writ petition in this Court on 21-3-1975, that is, after about more than nine months of the passing of the revisional order by the Central Government. From the facts hereinbefore narrated it would be seen that the petitioner's claim for refund was not examined on merits either by the appellate authority or by the revisionary authority. Occasion for examination of the case on merits did not arise before the appellate authority because it took the view that the appeal, having been preferred beyond the period of three months prescribed under Section 35 of the Act, was liable to be dismissed as time-barred. The Central Government confined itself to the legality of the order passed by the appellate authority.;