R.M.Sahai, J. - (1.) Refund of excise duty paid on aerated water under mistake of law after expiry of six months from the date of payment is the issue raised in this petition.
(2.) Dispute is about payment made between 18th March, 1973 and 17th June, 1977. Aerated water became exigible to duty with effect from 1st April, 1970 by introduction of Item I-D in the Schedule of Central Excises and Salt Act, 1944. It read as under : "ID -Aerated Waters, whether or not fla-voured Ten per centor sweetened whether or not containing ad valorem. vegetable or fruit juice of fruit pulp."
(3.) It was enhanced to 20% with effect from 17th March, 1972 on aerated water, in the manufacture of which blended flavouring concentrates in any form was used'. In 1976 the entry I-D was amended and the amended entry reads as under : "Aerated Waters, whether or not flavoured or sweetened and whether or not containing vegetable or fruit juice or fruit pulp (1) Aerated waters, in the manufactures of which blended flavouring concentrates in anv form are used (a) For each unit container Twenty-five paise. containing 200 millilitres orless (b) For each unit container Twenty-five paise plus ten paise containing more than 200 for every hundred millilitres milli-litres or fraction three in excess of 200 millilitres. (c) All others Fifty-five per cent ad valorem. (2) All others Twenty per cent ad valorem." But by a notification issued by Central Government on 16th March, 1983 in exercise of power conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944 exemption was granted to aerated waters falling under sub-item (2) of Item No. I-D of the First Schedule from so much of the duty of excise leviable thereon as was in excess of ten per cent ad valorem. Therefore, aerated water in the manufacture of which blended flavouring concentrates was not used was exigible to duty at 1096 ad vaiorem, only, from 17th March, 1972 onwards.;