TaxTMI 
TaxTMI 
1984 (3) TMI 64
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....hedule to the Central Excises and Salt Act, 1944 (hereinafter referred to as `the Act'). On February 20, 1976, the appellants applied for the refund of excess duty paid by them from October 1, 1963 upto the date of the application on the ground that the items of glass in question were distinct commercial goods known in the market as figured glass, wired glass, coloured figured glass, rolled glass, coolex figured glass and coolex wired glass and could not be described in common parlance as `sheet glass' mentioned in Item 23A and that since they did not fall under any of the Items 1 to 67 in the First Schedule to the Act they could only be subjected to levy of excise duty under the residuary provision Item 68 in that Schedule after it was inserted in it. 3. Item 23A of the First Schedule to the Act at all material times read as:- Glass and glassware - "23A. (1) Sheet glass and plate glass Thirty per cent ad valorem (2) Laboratory glassware Ten per cent ad valorem (3) Glass shells, glass globes and chimneys for lamps and lanterns Fifteen per cent ad valorem (4) Other glassware including tableware Thirty per ....
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....ly. The High Court was, however, of the view that the appellants were only entitled to refund of excess duty paid by them after February 20, 1976 on which date they raised the dispute. Accordingly the High Court issued a writ quashing the decision of the Department in so far as the classification of the goods was concerned and declaring that they were subject to payment of duty under Tariff Item 68 of the First Schedule to the Act and not under Tariff Item 23A(1) thereof. The Department was further directed to review the relevant assessment accordingly for the period subsequent to February 20, 1976 and to refund any excess duty that might after such review be found to be refundable to the appellants. The claim of the appellants for refund of excess duty paid during the period prior to February 20, 1976 was, however, rejected. The appellants have filed this appeal by special leave only as regard the rejection by the High Court of their prayer for refund of excess duty paid by them prior to February 20, 1976. 6. The Department has not filed any appeal against the judgment of the High Court. Hence the decision that the goods were taxable under Tariff Item 68 and not under Tariff Item....
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....t extent should, therefore, fail. 9. In regard to the relief of refund of excess duty paid in respect of the other goods, the case stands on an entirely different footing. This is a case where the Department had assessed the duty payable by the appellants under a wrong provision. The appellants were obliged to pay the duty so assessed. They did not, no doubt, question the assessments by taking a specific stand as they had done earlier in the case of wired glass. The appellants, however, questioned the validity of the levy only on February 20, 1976 on the ground that Tariff Item 23A(1) of the First Schedule to the Act under which the duty had been levied was not applicable to the goods. While the Department refused to accept that said plea, the High Court has upheld it. In view of the decision of the High Court, the fact that the appellants had paid duty in excess of what they were bound in law to pay should be now taken as having been established. It is not disputed that if the appellants had filed a suit within the period of limitation the excess amount would have become refundable by virtue of Section 72 of the Indian Contract Act. Section 17(1)(c) of the Limitation Act, 1963 pr....
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.... granted to a petitioner under Article 226 of the Constitution where the cause of action had arisen in the remote past is a matter of sound judicial discretion governed by the doctrine of laches. Where a petitioner who could have availed of the alternative remedy by way of suit approaches the High Court under Article 226 of the Constitution, it is appropriate ordinarily to construe that any unexplained delay in the filing of the writ petition after the expiry of the period of limitation prescribed for filing a suit as unreasonable. This rule, however, cannot be a rigid formula. There may be cases where even a delay of a shorter period may be considered to be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may also be cases where there may be circumstances which may persuade the court to grant relief even though the petition period may have been filed beyond the period of limitation prescribed for a suit. Each case has to judged on its own facts and circumstances touching the conduct of the parties, the change in situation, the prejudice which is likely to be caused to the opposite party or to the general public etc. In the instant case, the ap....