TaxTMI 
TaxTMI 
1986 (1) TMI 108
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..... They issued demand notice for the period from 1st December, 1965 to 18th October, 1968. The plaintiff, therefore, filed a special civil application in this court, being Special Civil Application No. 509 of 1969 against the Union of India and excise authorities challenging the decision of the local officers to levy and collect duty on such yarn. The special civil application was allowed by this court on 22nd June, 1971 and the two demand notices served upon the plaintiff were quashed and the Union of India and excise authorities were restrained from levying and collecting duty on the said metallic yarn on the ground that they did not fall within tariff item No. 18. One Special Civil Application No. 780 of 1970 was also filed by one M/s. Vac Met Corporation of Surat raising the same contention with regard to such levy and this court allowed that special civil application also. It may be mentioned that the said special civil application was decided earlier and relying upon the decision given in special civil application, the special civil application of the present plaintiff was allowed. During the pendency of the special civil application before this court, the plaintiff paid duty ....
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....ff has filed First Appeal No. 746 of 1975 challenging the finding of the trial court that the suit for the remaining amount was barred by limitation. The Union of India, on the other hand, has filed First Appeal No. 846 of 1975 challenging that part of the decree by which the trial court granted refund, contending that the suit for refund was not maintainable. 6. The learned Advocate Mr. K.H. Kaji appeared for the original plaintiff, while the learned Additional Standing Counsel Mr. S.D. Shah appeared for the original defendant in both these appeals. 7. The question which was seriously agitated before us was about limitation. The question of limitation has been dealt with by the learned trial Judge at length. Various authorities were cited before him. The learned trial Judge, relying upon the decision of the Supreme Court reported in A. Venkata Subbarao v. State of Andhra Pradesh, AIR 1965 SC 1773, decided the question of limitation against the plaintiff. The learned Advocate Mr. S.D. Shah who appeared for the original defendant in these appeals also relied upon this decision of the Supreme Court in support of his contention that the suit for refund of the amount paid more th....
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....iff has a cause of action for instituting the suit at the very moment of the receipt." 9. Relying upon the above observations of the Supreme Court Mr. Kaji urged that as the special civil application was decided by the High Court in the year 1971 after the payments were made, the cause of action arose to the plaintiff only then and not when the amounts were paid. He urged that in view of these facts, article 24 of the Limitation Act, 1963 will not apply to the present suit. In the present case, it is an admitted position that the payments which are held to be barred by limitation by the trial court were made during the pendency of the special civil application before this court. The very contention of the plaintiff about the levy in question was the subject matter of the special civil application and till the levy was held to be illegal by the High Court, the plaintiff could not have claimed refund. Even if the plaintiff has filed a suit for refund, the defence of the Union of India would have been that the matter was sub judice, and therefore, the civil court cannot decide that question. In other words, the Union of India would have contended that the suit was premature. In fac....
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....Limitation Act of 1908 which corresponds to article 113 of the Limitation Act, 1963. It is a residuary article which provides a period of three years and the period of limitation starts from the time the right to sue accrues. In the present case, we can say that the right to claim refund accrued to the plaintiff when this court held in the special civil application in the year 1971 that the levy was illegal, and therefore, the suit of the plaintiff for the whole of the amount paid during the pendency of the said special civil application was within limitation. In our view, no part of the claim of the plaintiff is barred by limitation. In view of this, the plaintiff cannot be non-suited for a part of the amount claimed in the suit on the ground that it was barred by limitation. 10. So far as the other contentions of the Union of India are concerned, we do not find any substance therein. The contentions of the Union of India that the suit was not maintainable and that the civil court had no jurisdiction deserve to be stated for being rejected. When the plaintiff had to pay the amount under protest, the plaintiff had no other remedy than to file the present suit for refund after th....
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....not be claimed on this amount from 20.8.1971. Interest can be claimed only from the date of payment and not from 20-8-1971. Rs. 2,73,964 were paid prior to 20-8-1971 and, therefore, the plaintiff is entitled to interest at 9% per annum on that amount from 1-9-1971 to 31-10-1973, which comes to Rs. 53,422.90 p. 14. Different amounts were paid during different months as detailed below and hence interest is payable on those amounts from those dates up to 31-10-1975. The details of those payments and the respective amount of interest worked out thereon are as follows : Period Principal amount Interest amount From 1-10-1971 on 7148.96 1340 From 1-11-1971 on 5903.72 1062 From 1-12-1971 on 6291.78 1062 From 1-1-1972 on 1992.77 330 From 1-2-1972 on 3916.40 615 From 1-3-1972 on 7727.79 1160 From 1-4-1972 on 8661.00 1234 41642.42 6827 The plaintiff, therefore, entitled to Rs. 6,827 as interest on Rs. 41,642.42 p. as detailed above. The total amount of interest which the plaintiff is entitled upto the date of the suit, therefore, comes to Rs. 60,249.98 p. The plaintiff is, therefore, entitled to a de....