BAIDYANATH AYURVED BHAWAN PVT LTD Vs. STATE OF BIHAR

JUDGEMENT

(1.) By this writ application, the petitioner wants the High Court to direct the respondent No. 1, State of Bihar, and respondent No. 1, Commissioner of Excise, Government of Bihar, to pay to the petitioner a sum of Rs. 91,723.80 P. The question raised in this case relates to the maintainability and/or propriety of issuing such a writ.

(2.) The petitioner has been carrying on business of manufacturing medicinal preparation according to the "Ayurvedic system of medicine and it has been manufacturing one of the items known as Mrit Sanjivani Sura by the process of fermentation and distillation in accordance with the Ayurvedic system of medicine as prescribed in ancient and authoritative books on the subject. The article was subject to payment of excise duty under the Bihar and Orissa Excise Act, 1915. In 1955, the Parliament passed Medicinal and Toilet Preparations (Excise Duties) Act which came into effect on the 1st April, 1957. The rate of duty payable under this Central Act was considerably lower than that payable under the Bihar Excise Act, and the petitioner asserted that the duty on Mrit Sanjivani Sura was not thereafter payable under the Excise Act. Both the Central Government and the State Government insisted that the item was not a medicinal preparation attracting the Medicinal and Toilet Preparations (Excise Duties) Act and the duty was leviable under the State Excise Act The petitioner filed an application under Article 32 of the Constitution of India before the Supreme Court, which was registered as W.P. No. 352 of 1961 and was allowed along with other similar applications by a common judgment dated 7th Sept., 1962. The judgment has been reported at page 622 of AIR 1963 SC. The State of Bihar had, in the meantime, collected the duty in accordance with the higher rate under the Bihar Excise Act, and the petitioner was asking for a refund of the excess amount so collected. The Supreme Court, however, did not grant any relief for refund and left the petitioner to take up the question with the State Government. The operative portion of the judgment is in the following words:-- (at p. 629)

(3.) The application has been resisted on behalf of the respondents 1 and 3, mainly on the grounds that, in substance, the relief prayed for was for passing a money decree which can be done only in a regular suit in a civil court of ordinary Jurisdiction and a writ petition is not maintainable, and the claim is barred by the rule of limitation. In a counter affidavit filed by the respondents, an attempt has been made to make out a case on merits also against the claim of refund but in the course of argument, Mr. Md. Khaleel, learned Government Pleader, appearing for the respondents 1 and 3 did not advance any argument. He strenuously contended that a pure money claim cannot be granted by the High Court under its extraordinary jurisdiction under Arts. 226 and 227 of the Constitution of India specially when the application is filed so belatedly that a suit for that purpose would on the date of the filing of the writ application, have been barred by limitation.