K.N.SETH, J. - (1.) THESE appeals arise out of two suits instituted by the Elgin Mills Company Ltd, against the Union of India, in suit No. 87 of 1967 a decree for recovery of Rs. 34,840.60 said to have been paid in excess by the plaintiff on account of Excise duty on cloth was prayed for. In suit No. 37 of 1967 a decree for recovery of Rs. 41,112.65 on account of Excise duty paid during the period 3.1.1963 to 10.9.1963 was claimed. In the former suit it was alleged that by Notification No. 111/62, dated 13th June, 1962 the Government of India enforced certain rates of Excise duty on gray cloth and processed cloth. This notification was enforced with effect from 24th April, 1962. A clarification of the said notification was given by the Government of India, Department of Revenue by letters No. P4/16162CXVH, dated 11th July, 1962 addressed to all Collectors, Central Excise, that the rate of Excise duty on bleached process cloth was higher than that for gray cloth of the corresponding Quality by 5 n.p per square metre. According to the plaintiff excessive duty amounting to Rs. 34,840.60 was paid during the period 24th April, 1962 to 2nd January, 1963 treating the accrued cloth as bleaching cloth. A claim for refund was made to the Collector, Central Excise, Kanpur, on 6th February, 1963. The Assistant Collector, Central Excise, Kanpur, rejected the claims by his order dated 29th June, 1964. Thereafter the plaintiff preferred a revision petition before the Central Government on 23rd February, 1968. The Central Government on 3rd May, 1966 rejected the revision petition. It was pleaded that the plaintiff paid the entire sum of Rs. 34,840.60 under mistake in ignorance of the clarification letters or the Revenue Authorities who charged excess excise duty illegally from the plaintiff in respect of clearance of secured cloth during the period 24th April, 1962 to 2nd January 1963. A notice under section 80 of Civil Procedure Code dated 3rd June, 1966 was served on the defendant on 8th June, demanding refund of the aforesaid amount but to no avail and hence the suit.
(2.) IN suit No. 33 of 1967 it was claimed that a sum of Rs. 41,112.65 had been illegally realised by the defendant out of the credit balance in the Account Current of the plaintiff with the defendant Revenue Authorities in respect of accrued cloth cleared during the period 3rd January, 1963 to 10th September, 1963 treating the cloth as bleached cloth which attracted the higher rate of duty. The suits were contested primarily on the ground that the Excise duty had been correctly levied as the cloth in question was bleached and not accrued as alleged by the plaintiff. It was contended that the plaintiff company itself had described the fabrics cleared as medium bleached cloth. It was further asserted that the Chemical Examiner, on the basis of his tests, had advised that the fabrics in question were bleached. It was further pleaded that the suits were barred by time.
(3.) IN suit No. 87 of 1967 the written statement was got amended by incorporating the plea that the orders of the Central Excise Authorities and the Central Government were final and binding on the plaintiff, that the suit for refund of the Excise duty was not maintainable and further that the suit was barred by the provisions of section 40 of the Central Excises and Salt Act, 1944 (hereinafter referred to as the Act). Other pleas raised in defence are not relevant for the decision of these appeals.;