AJIT KUMAR SEN GUPTA, J. - (1.) IN this application under Article 226 of the Constitution of India the petitioner has asked for a direction on the respondents for refund of duties stated to have been collected illegally from the petitioner. The petitioner carries on business of processing, inter -alia, of Teleprinter paper rolls and tapes at No. 48 Canal East Road, Calcutta. The said goods are processed from duty paid printing and writing paper by cutting, slitting and inter -leaving with duty paid carbon paper for I.B.M. machine, adding Machine etc. The said printing and writing paper falls under Item No. 17 (1) of the First Schedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as the said Act). According to the petitioner, the processing of the said goods by cutting, slitting and inter -leaving with carbon paper is not manufacture. The petitioner obtained a Central Excise Licence and used to pay duty on the said goods processed by it under Item No. 17 (1) of the First Schedule to the said Act. As the said goods were processed from duty paid printing and writing paper at the initial stage, the petitioner allegedly mentioned the words 'under protest' on the gate passes. The said protest, according to the petitioner, was discontinued as the petitioner was informed by the Departmental Officers that the said goods were liable to duty.
(2.) BY a trade notice bearing No. 93/Paper -4/1977 dated May 28,1977 issued by the Deputy Collector of Central Excise, Calcutta, it was clarified that teleprinter paper rolls and tapes after being cut to sizes and/or inter -leaved with carbon paper would not attract any further excise duty, if they are made from printing and writing papers which have already borne duty under Item No. 17 (1) of the First Schedule to the said Act. The case of the petitioner is that from the said trade notice the petitioner came to learn that collection of duty on the said goods was without authority of law. On December 15, 1977 the petitioner filed two claims for refund of duty paid for Rs. 1,56,774.24 and Rs. 30,288.57 for the period February 25,1976 to May 28, 1977 and April 13, 1973 to February 24, 1976 respectively. Upon receipt of the said refund applications the Assistant Collector of Central Excise the respondent No.3 asked the petitioner to produce documentary evidence showing the payment of duty 'under protest'. By a letter dated 28th February 1983 the petitioner informed the said respondent that the said goods were processed from duty paid printing and writing papers. It was also stated therein that at the initial stage the words 'under protest' were mentioned in the gate passes, but the petitioner discontinued to write the word 'under protest' on the representation of the Central Excise Officers that the goods were liable to duty. According to the petitioner, it all along paid the duty on mistaken belief that the goods were liable to duty. It was for the first time that the petitioner came to know from the said trade notice dated 28th May 1977 that the said goods were not liable to any duty. Two several notices were issued on 12th July 1979 and 3rd August 1979 asking the petitioner to show cause why the applications for refund should not be rejected as time barred under Rule 11 or Rule 11 read with Rule 173 (J) of the Central Excise Rules as the case may be. The petitioner duly replied to the show cause notices on 10th August 1979. During the pendency of the said refund applications Section 11B of the Central Excise and Salt Act came into force. On 13th May 1983 the Assistant Collector passed the order rejecting the claims of the petitioner for refund on the ground that the claims were barred in terms of Section 11B of the said Act. The petitioner thereupon filed appeal before the Collector of Central Excise. By the order dated 16th August 1983 the Collector (Appeals) allowed the appeal of the petitioner and set aside the order of Assistant Collector with a direction to grant refund to the petitioner. The Collector of Central Excise filed appeals before the Appellate Tribunal. On 24th July 1984 the Tribunal allowed the appeal of the Department on the ground that the Tribunal acts as quasi judicial authority under the Statute while considering the refund claim and cannot pass any order beyond jurisdiction conferred upon them by the relevant statute.
(3.) THIS application has been moved on 21st September 1984 challenging the said order of the Tribunal and asking for refund of the duty paid.;