A.N.Verma, J. - (1.) By means of this petition the petitioner has prayed for a writ of mandamus directing the respondents to refund the excise duty said to have been paid by them under a mistake of law in respect of what has been described as scantlings.
(2.) Shortly stated, the relevant facts are that the petitioner carries on the business of designing and erecting cooling towers as per requirements of its customers. In erecting these cooling towers the petitioner obtains logs of timber, which are converted by them into scantlings. Treating this as an item of excisable commodity, the petitioner paid excise duty thereon during the period 1-3-1975 to 17-11-1980. The petitioner, however, discovered through a judgment of the Supreme Court dated 9-5-1980 in the case of Deputy Commissioner of Sales Tax v. Pio Food Packers reported in 1980 (6) E.L.T. 343 (S.C.) and the principle underlying that decision that scantlings were not liable to excise duty. The petitioner accordingly applied to the respondents by means of the application filed in February, 1981, for the refund of the excise duty paid by it during the aforesaid period on scantlings. The respondents, however, did not accept the claim of the petitioner and held that scantlings were liable to excise duty. The applications for refund were accordingly dismissed. The applications were also dismissed on the ground that the same were barred by limitation applying the limitation prescribed under Section 11-B of the Central Excise Act.
(3.) Aggrieved by the order of the Assistant Collector the petitioner filed an appeal which was also dismissed. A further appeal filed by the petitioner before the Customs, Excise and Gold Control Appellate Tribunal was disposed of by the Tribunal by the judgment dated 1-6-1988. The Tribunal upheld the claim of the petitioner and held that excise duty was not payable on scantling. While remanding the case the Tribunal asked the Assistant Collector to examine the question whether payment of excise duty was made under protest with a view to ascertain whether the petitioners' claim was not barred by limitation prescribed under Section 11-B of the Central Excises and Salt Act, 1944.;