WYETH LABORATORIES LTD Vs. UNION OF INDIA

JUDGEMENT

(1.) THE first petitioner is a company incorporated under the provisions of the Companies Act, 1956, and the second petitioner is a share-holder of the first petitioner-company. The first petitioner-company manufactures Wysolone Tablets falling under Tariff Item 14-E as patent and proprietary medicine. During the period 13th November, 1975 to 20th November, 1979, the excise Authorities loaded the price-list filed by the petitioners by 5% in terms of the Tariff advice No. 8 of 1968. At the relevant time the first respondent itself had fixed the retail price of the said medicine at Rs. 91. 89 under Drugs (Price Control) Order, 1970. The Superintendent of central Excise approved the retail price as above as the assessable value. Under the terms of the excise Notification 147 of 1970 dated 25th July, 1970 the petitioners opted to have their assessable value determined at 25% below the retail price. Since the Government approved retail price of Rs. 91. 89 was loaded by 5%, the department, while approving the fresh price-list in november, 1975, declared the assessable value to be Rs. 96. 48. However, again the rate of duty was increased from 24th March, 1976 from 7 1/2% to 12 1/2% ad valorem. Hence the price list was again freshly approved with a loading of 5% of the retail price which became Rs. 99. 91 as against the Government approved retail price of Rs. 95. 15.

(2.) IN the meanwhile, however, another manufacturer namely, Geoffery Manners Limited filed writ Petition No. 1067 of 1974 raising identical issue. The said writ petition was decided in favour of the company on 14th August, 1979 by one of us - Pendse J. There is no controversy at the bar that the appeal filed by the revenue against the decision of Pendse J. in the case of geoffery Manners Limited has been dismissed. The decision in Geoffery Manners Limited was rendered on 14th August, 1979. On 27th November, 1979, the present petitioner-company applied for refund of Rs. 1,30,819. 88 referable for the period 29th July, 1975 to 30th November, 1979. The Assistant Collector by his order dated 8th January, 1980 rejected the claim of the petitioner-company on the ground that the Revenue has not accepted the judgment of the High court in Geoffery Manners Ltd. and that the revenue was contemplating filing of an appeal on the merits of the case of Geoffery Manners Limited. The Assistant Collector, therefore observed that the judgment of the Bombay High Court in the case of M/s. Geoffery Manners Limited cannot be made a basis for grant of the claim of refund in the petitioners' case. On this ground alone the Asst. Collector rejected the application for refund.

(3.) IN appeal, the Collector of Central Excise took the view that the appeal filed by the Revenue against the High Court judgment in Geoffery Manners Limited was summarily dismissed and hence the petitioner-company was entitled to refund of the excess duty paid if the claim was otherwise in order. However, relying upon the provisions of rule 11 of the Central Excise Rules 1944, the Collector took the view that the refund could be granted only for a period of six months and hence partly allowed the appeal to the extent of the refund claimed for the period of six months namely 1st June, 1979 to 20th November, 1979 amounting to Rs. 17,875. 40. The rest of the claim to the tune of Rs. 1,12,944. 48 was, however, rejected on the ground of limitation alone. It is this order of the Collector passed on 4th August, 1983 which has been challenged in the present writ petition.