JUMAX FOAM PRIVATE LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) Petitioner is engaged in manufacturing of Flexible Polyurethane Foam and articles thereof, falling under certain headings of the Central Excise Tariff, at its factory in Ghaziabad. In the manufacturing of polyurethane foam and in the process of conversion of foam into different articles, such as sheets etc., some waste and scrap of foam is generated incidently. The said waste/ scrap is classified in a different heading of the Central Excise Tariff. For the period 1/04/1990 to 31/03/1993. The respondent recovered excise duty from the petitioner on the basis of the notifications issued from time to time under the provisions of the Central Excise and Salt Act (in short referred to as "the Act"). According to the petitioner, it was not liable to the payment of the excise duty recovered by the respondents and an application/ claim was, therefore, filed before the excise authorities for refund of the excise duty alleged to have been paid in excess by the petitioner. This claim/ application of the petitioner was rejected by the Assistant Collector of Central Excise by order dated 30.12.1993 on the ground that the claim was hit by limitation and also that the same would amount to unjust enrichment and cannot, therefore, be allowed. This was an appeallable order, however, without filing an appeal against the aforesaid order, the petitioner had challenged the same by filing the present writ petition. In the writ petition, the petitioner besides seeking a direction to quash the said order has also sought a direction to declare that the claim for refund made by the petitioner on 8.11.1993/ 24.12.1993 for the period 1.4.1990 to 31.3.1993, was not barred by the law of limitation.

(2.) On notice being issued, the respondents have filed counter affidavit. Besides taking other objections, one of the objections taken by the respondents is that an alternative remedy of filing appeal was available to the petitioner and without availing that remedy, the writ petition was not maintainable. It is also submitted that the writ is otherwise not maintainable as the question as to whether or not the application/ claim was barred by limitation was a question of fact which cannot be gone into by this Court in the exercise of its jurisdiction under Article 226 of the Constitution of India.

(3.) During the course of arguments, learned counsel for the respondent has submitted that the matter is no longer res-integra in as much as the Supreme Court has now in cases reported as Mafatlal Industries Ltd. Versus Union of India (1997) 5 SCC 536 and Assistant Collector of Customs and Others Versus Anam Electrical Manufacturing Co. and others (1997) 5 SCC 744 held that no writ petition can be filed to claim the refund of the excise duty alleged to have been paid in excess. In Mafatlal Industries Ltd. Versus Union of India (supra) the Supreme Court was considering the question as to whether a writ petition can be maintained to claim refund which arises under the Act. The Supreme Court was of the view that even if the tax is collected by the authorities under the Act by misinterpreting or misapplying any of the rules, regulations or notifications or by an erroneous determination of the relevant facts i.e., an erroneous finding of fact, the same may be called an illegal levy, however, even for refund of the aforesaid amount, a claim has necessarily to be preferred under and in accordance with the provisions of the respective enactments before the authorities specified thereunder and within the period of limitation prescribed therein. It was held that no suit was maintainable in that behalf and while the jurisdiction of the High Courts under Article 226 could not be circumscribed by the provisions of the said enactments, they would certainly have due regard to the provisions of the said Act and would exercise their jurisdiction consistent with the provisions of the Act. It was held that the writ petition would be considered and disposed of in the light of and in accordance with the provisions of Section 11B for the reason that the power under Article 226 has to be exercised to effectuate the rule of law and not for abrogating it.