ADVANI OERLIKON LIMITED Vs. UNION OF INDIA

JUDGEMENT

(1.) BY this petition under Articles 226 and 227 of the Constitution of India, the petitioners seek a writ of certiorari for quashing the orders contained in Annexures "d", "f" and "h" dated 5-6-1975, 24-12-1975 and 15-4-1981, passed by respondent No. 2 Assistant Collector, Central Excise, Raipur, Appellate Collector, Central Excise, New Delhi and Joint Secretary and Additional Secretary, Government of India, Ministry of Finance, respectively, and further by issuing a writ of mandamus, the respondents be directed to refund the amount of Rs. 1,03,676. 40 p. together with interest at the rate of 18 per cent from the date of collection till payment.

(2.) IN short, the petitioners' case is that petitioner No. 1 Advani-Oerlikon Ltd. is a company registered under the Companies Act and carries on business of manufacturing welding electrodes and the petitioner No. 2 is the Director and shareholder of petitioner No. 1. Welding electrodes are excisable product and an item under Tariff Item No. 50 to the First Schedule of the Central Excises and Salt Act, 1944 (hereinafter referred to as the "act" ). During the period from June 17th, 1971 to 31st March, 1972, the petitioners cleared the goods on payment of duty at the price approved as per their own declaration and assessments were made accordingly. As such, though the petitioners gave discount to their customers at the rate of 10 per cent to 12 per Cent, but the same could not be deducted while furnishing the return (Price list ). So also the department could not detect their mistake in not deducting the trade discount offered by the petitioner-company and as such in common mistake of law Committed by both the petitioners and the respondents, the huge amount of Rs. 1,03,676. 40 p. was deposited in excess, pertaining to the period from 17-6-1971 to 31 -3-1972.

(3.) THE petitioners after realising their mistake made an application along with a letter dated 19-6-1974 before the respondent No. 2 for refund of the amount which was deposited by them under common mistake of law committed by both the sides. Under repeated Rule 11 of Central Excises and Salt Rules, 1944, framed under Section 37 of the Act, the period of limitation prescribed for refund of amount, was one year. Now, under Section 11 -B of the Act, the period prescribed for refund is six months from the date of payment of duty.