SHARMA, J. - (1.) THE defendants are appellants. Money Suit No. 111 of 1983 was filed by the plaintiff -respondents for realisation of a sum of Rs. 56,526.03 paise together with interest, pendentelite and further, on account of excess excise duty paid on 46 motor vehicle's gate passes.
(2.) PLAINTIFF -respondent is a Public limited Company with its workshop and place of business at Jamshedpur and is engaged in manufacturinu of various kinds of motor vehicles. It pays excise duty on sale of motor vehicles. Price lists are approved by the Excise Authority. In June, 1980, there were two such approved price lists (i) M.B. 2 of 1980 -81 dated 1.6.1980 for sale of motor vehicles to dealers and subdealers and (ii) M. V: 5 of 1980 -81 dated 1.6.1980 for sale for motor vehicle directly to the parties, under the category of pending release order. Approved price list no. 5 of 1980 -81 was lower than approved price list no. M.V. 2 of 1980 -81. Due to inadvertence or mistake in calculation or otherwise by oversight while issuing 46 gate passes and making payment of excise duty in respect of those motor vehicles, which were covered by the approved price list no. 5 of 1980 -81, were assessed on the basis of price list no. M.V. 2 of 1980 -81, which was comparatively higher and said higher price was taken for payment of excise duty, whereas lower price should have been taken for assessment of excise duty. As soon as said mistake was detected, while submitting its monthly return in Form RT 12 for the month of June, 1980, on 9.7.1980, a request was made for refund of a sum of Rs. 56,526.03 paise paid in excess towards excise duty. Details of aforesaid sum was attached with the said return. The plaintiff's further case was that the defendants accepted that aforesaid excess amount of excise duty on 45 gate passes was paid in excess and asked the plaintiff to submit refund claim directly to the Assistant Collector of Central Excise, Jamshedpur. Accordingly, refund claim was filed, but was wrongly rejected on 9.7.1981. Statutory appeals under Section 35 of the Central Excise and Salt Act, 1944 (hereinafter to be referred to as 'the Act') was also rejected as time barred. Instead of filing statutory revision under the Act, the present suit was filed on ground that orders of the Assistant Collector and the Appellate authority were based on mis -conception of facts and law and were passed without giving any reasonable opportunity to the plaintiff.
(3.) THE defendants contested the suit by filing written statement. According to the defendants, on the plaintiff's failure to file statutory revision under Section 36 of the Act, orders passed by the Assistant Collector as well as the Appellate authority' became final and were binding on all concerned. Plaintiff did not exhaust statutory remedies. The suit was also barred by the principle of res -judicata as the fact in issue was already finally adjudicated upon and decided by the statutory appellate court.;