M ABDUL HASSAN Vs. STATE OF ORISSA

JUDGEMENT

(1.) THE petitioners in these writ petitions are dealers in excisable commodities inter alia foreign liquor. The point which arises in these writ petitions is whether a writ of mandamus can be issued for refund of countervailing duty illegally -- by mistake -- collected by a notification under Section 27 of the Bihar and Orissa excise Act (Act 2 of 1915 hereinafter referred to as the Act) dated March 31, 1961.

(2.) THESE cases arise out of the decision of the Supreme Court in Kalyani Stores v. Stale of Orissa, AIR 1966 SC 1686 decided on September 21, 1965 where their lordships of the Supreme Court, on an interpretation of the relevant provisions of the Bihar and Orissa Excise Act, declared that the said notification enhancing the duty on foreign liquor by Rs. 30-00 per L. P. gallon was unenforceable. These writ petitions were filed in the month of August 1967 for refund of the countervailing duty illegally collected from the petitioners obviously under a mistake.

(3.) THE first question is: Is the petitioners' claim for refund barred by limitation? article 96 of the Limitation Act, 1908 corresponding to Section 17 of the present limitation Act prescribes as period of limitation of three years for relief on the ground of mistake when the mistake became known to the plaintiff. On the question as to when the petitioners came to know of the mistake in the present case, it is stated that they came to know of the mistake when the decision of the supreme Court in AIR 1966 SC 1686 was pronounced by the Supreme Court on september 21, 1965. The present petitions were filed on various dales in the month of August 1967, that is within three years from the date of knowledge and therefore they are clearly within time as prescribed under the Limitation Act. This view is supported bv the decision in K. S. Venkatara-man and Co. . (P.) Ltd. v. State of Madras, (1966) 17 STC 418. at pp. 441-442: (AIR 1966 SC 1089 at p. 1101 ).