SHRI VALLABH GLASS_ WORKS LTD. & OTHERS v. UNION OF INDIA & OTHERS

The Judgment of the Court was delivered by

VENKATARAMIAH, J. This appeal by spee.ial leave· is filed against the judgment and order dated November' 22/23, 1978 of the G High Court of Gujarat in Special Civil Application No. 577 of 1978 filed under Article 226 of the Constitution.- •. Appellant No. I° is a company which is ei1gaged in the business of manufacturing diffrent type& of glass viz. figured glass wired glass, coloured figured glass, rolled glass and coolex wired . glass at Vallabh Vidyanagar in the State of Gujarat j-om the year H

1963. Appellant No.2 is the Managing Director of appellant No. L The Central Excise Dep:rrtmen t had levied .and collected excise duty

v. (Venkataramiah, J.) 183 ' VALLABH GLASS WORKS UNION • ' on the said goods on the basis that they belonged·to the.cataegory of . A . sheet glass and wer.e therefore subject to payment of excise duty '

under Item 23A (I) of the First Schedule to the Central Excises i«td 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 ~pto the date of the applicatioti on the ground that the item of glass in question were distinct .com· B mercial goo'ds 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 desc'ibed in common parlance as 'sheet . glass' mentioned in Item 23A and that since they did not fall under . any of the Items l to 67 in the First Schedule to the Act' they could . only be subjected to levy of excise duty under the residuary provi· c sion Item 68 in that Schedule after it was inserted in it. • ...,,, Item 23A of the First Schedule to the Act at all material times read as.~

D "23A. Glass and glassware-

(1) Sheet.glass and plate . Thirty per cent ad valorem '

glass "'

(2) Laboratory glassware Ten per cent ad valorem E

(3) Glass shells, glass Fifteen per c~nt ad valorem globes and chimneys ,. for lamps and hinterns

. (4) Other glassware inclu- Thirty per cent ad valo· F ding tableware rem."

The relevant part of tariff.Item 68 which was introducedjfrom I March .1. J975 read as:

a"68.All other goods not · elsewhere spceified, One per cent ad valorem G

manufactured jn a· factory but excluding ...! (a)· alcohol, all sorts, includin& a!cYcholic H liquors for ·human consumption.

• A I 84 . SUPREME COURT REPORTS (19$4) 3 S.C.ll. , ' J (b) opium, Indian hemp · and other narcotic • drugs and narcotics; and

. (c) dutiable goods as B defined in sections 2(c) of the Medici- nal and Toilet Preparations (Ex- 1 cise Duties) Act, c 1955."

After holding an enquiry and hearing th'\: appellants, the Assitimt Collector of Central Excise, Anand rejected the claim for refund by his order dated September 20, 1976 because he was of the view that the Items of goods in respect of which dispute had been D . raised fell within the purview of tariff Item 23A (1). Against the said order of the Assistant Collector the appellants' filed a writ petition in Special Civil Application No. 1365 of 1976. on the file of the Hi~h Court on September 28, 1976, The said petition was admitted but. when it was taken up for final hearing it l'l'1S contended on · behalf of the :bepartment that since . the. appellants· had also filed E ~n appeal against the very same order before the Collector of Centra 1 Excise they could not pursue the remedy under Article' 226 of the Constitution as it stood then. In view of the above contention the writ petition was withdrawn without prejudice to the remedy by way of appeal. The appeal was thereafter disposed of by th·e Collec- p tor on July 27, 1977 affirming the .order of the Assistant. Collector. A revision petition filed by the appellants against the .order of the Collector was dismissed by the Government of India by its order dated February 2, 1978. The said order in revision was challenged before the High Court by the appellants under Article 226 cif the Constitution. The High Court by its judgment under appeal 'reversed the decision of the departmantal authorities which had;been affirmed G by the Central Government and held that the items of glass ma•- factured by the appellants namely, figured glass, wired glass, coloured figured glass, rolled glass and coolex wired glass did not fall within the scope of tariff Item 23A(l) of the First Sr:hedule to the Act as it stood at the material time but' they came within H ·_tariff Item 68 and were liable to bear duty ttcr:ordingly. 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,

VALLABH GLASS WORKS v. UNION (Venkataramiah, J:) 185

1976 on which date they raised the dispute. Accoi:dingly 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 aud not under tariff Item 23A(l) thereof. The Department was further directed to review the r~levant assessments 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 appel- lants 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 regards the reje~tion by the' High Court pf their prayer for refund of excess duty paid by them c prior to February 20, 1976.

The Departn1ent 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 23A(l) of the First D Schedule to the Act has become final. Item 23A(l) is also stated to have been since amended suitably so as to bring the items of glass in dispute within its scope.

The question which arise for consideration in this appeal are therefore (1) whether the appellants are entitled to·claim refund of E )- • excess excise duty which bad been paid by them prior of February 20, 1979 and if so, whether they are entitled to claim refund of .snch duty paid betweeji <;>ctober 1, 1963 and February 20,1976 or during any shorter period and (2) whether the appellants are entitied to claim such refund in respect of all the goods in question. F . Since it is convenient to dispose of the second qu<stion at this . stage,· we shall. take it .up first: A few more fr cts which are relevant to this issue have to be stated here. As mentioned earlier the goods in respect of which dispute had been raised by the appellants in their applitation dated February 20, 1976 were figured glass, wired glass, cqloured figured glass, roiled glass and coolex G 'wired glass. But it is seen that in respect of wired glass, a dispute ha.d arisen between the Department and the appellants earlier· and in that case while the Department claimed that wired glass was > . j subject to payment of duty under tariff Item 23A(4) the appellants pleaded that wired glass was liable to duty under tariff Item 23A(l). H The Gove111ment · of India ultimately by its order' dated August ·24, 1971 lin Order No. 26J of 1971 of the Government of India oil

SUPREME COUlt t REPORts (19s4i 3 s.c.ll.. Central Excise Revsion Application) accepted the case of the appellants that wired glass was subject to duty under tariff· Item 23A (I) and the appellants paid duty on that basis till Febuary 20, 1976. These facts distinguish the case in respect of wired glass. from the ·case in respect of the other gooqs. While the said earlier order may not be. a legal bar tq tpe contention raised by the appellants on B February 20, 1976 that wired glass was not taxable under tariff Item 23A(l) but under tariff Item 6S after that date, i't is certainly 'll circumstan.ce which disentitles the appellants to claim• refund of excess duty paid by them in a petition under Article 226 of the Constitution on a ground contrary to their earlier stand. The claim for refund of ~xcess duty paid on wired glass during the period prior.to February 20, 1976 i~ liable to be· rejected. The appeal of . the appellants to that extent should, therefore,. fail.

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. D This is a ca.se where t.he Department had ass.essed 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, qlies· tion the assessments by taking a specific stand as t\ley had done earlier in the case of wired glass. The appellants, however, question· ed the validity ofthe 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 Departm~nt refused to accept the said plea, the High Court has · upheld h. In view of the decision of the High Covrt, the fact that the appellant 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 file,d 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(1JtcJ of the Limitation Act, !9'63 provides that where in the case of any suit · or application for which a period of limitation. is prescribed under that Act, the suit or application is for relieff.rom the consequence of a mistake, the period of limitation shall.not begin to run until the plaintiff or applioont had discovered it or could have with reason· able diligence discovered it. In the instant case the date on which -~ the mistake was discovered by the appellants or the date on .which the appellants could with reasonab~e diligence have discovered it is .H not clear from the record before us. No efforts also was made in the course of the arguments urged on behalf of the appellants to establish it. We have, therefore, tci assume that on the date

. \iAI;LABH GLASS WORKS v. UNION (Venkataramiah, J.) 181

each payment of excise duty made by the appellants in excess .of the A proper dut:y payable by them, ·the appellants could have discovered with due diligence that the duty claimed from them was excessive. Under Article 113 of the Limitation .:\,ct, 19p3. which is applicable · to this case, a suit for recovery of such excess duty had to be filed within three years from the date of payment to the Department. But the appellants instead of filing a s\lit, first filed •a writ petition in B Special Civil Application No. 1365 of 1976 on September 28; 1976 and that petition had to. be withdrawn in view of clause (3) of . Article 226 of the Constitution as it stood then. because the alter- . native remedy by way of an appeal was available. The appellants couid, therefore, file the writ petition out of which the appeal arises • only after the disposal of the revision petition by the Government c of India as mentioned earlier. It is not disputed that the High Courts have power, for the purpose of enforcement of fundamental rights and statutory rights~ to ·make consequential orders for repayment of money realised by the Government without ·the authority of law under Article 226 of the Constitution. This is an alteniative r.emedy D provided by •.he Constitution in addition to but not in supersession of the otdinary remedy by way of suit in ·the absence of any provision which would bar such a suit. either expressly or by necessary implica- tion. While there are different periods of limitation P.rescribed for the institution of different kinds of suits by the Limitation Act, 1963, there is no such period .Prescribed by law in respect of petitions .filed ·E un<Jer Article 226 of the Constitution. Wl'!.ether relief should be 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, di.scretion governed by the dpctrine of !aches. Where a petitioner who could have availed pf the alternative remedy by way of suit approaches the High Court under Article 226 of the F Constitution, it is appropriate ordinarily to construe that any nnexplained delay in the filing of the writ petition after the expiry- of the period of limitatipn 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 considerd to G'· be sufficient to refuse relief in a petition under Article 226 of the Constitution. There may· also be cases where there may be circums- tances which may persuade the court to grant reliet even though the petition may have been filed beyond- the period of limitation prescribed for a suit. Each case has to judged on its own facts and ? circumstance tou~hing the conduct ·or the parties, the change in H situation, (he prejudice which is likely to be caused to the opposite party or to the general public etc. In the instant case, the appellants

• • 188 SuPRBME COURT REPORTS tl984] 3 s.c.i; had iit facf approached .the High f:ourt on September 28, 1976 itself by filing Special Civil Application No. 1365 of 1976 for direc- ting repayment of the excess duty paid by them. But no relief could· be granted in that petition in view of the provisions of Article 226 of . the Constitution as.it stood then and the petition had to be with- drawn. Hence qren granting that on the date of making each ·, B payment 6f excise duty in excess of the proper duty payable under law, the appellants should be deeihed to have discovered the mistake, all such excess payments made on and after September 28, 1973 whi~h. · would fall within the period of three years prior to the date on which Special Civil Application No. 1365 of 1.976 was*filed should c have been ordered to be refunded under Article· 226 of the°Constiiu· tion. But the High Court declined to do so on grounds of estoppel and acquiesence. While we do agree that the appellants should not be granted any relief in respect of payment made between October 1, 1963 and Septemb~r 27, 1973 which would fall beyond three years from the date of the first writ petition filed in this case we do r' D not find it proper and just to negative the claim of the appellants in respeccof excess paymen!S 1llade after September 28, 1973. In the instant case the appellants had ma"de excess payments on being assessed by the· Department and such payments cannoJ be treated as voluntary payments precluding them from recovering them. (See Sales Tax. Officer, Banaras & Ors. v. Kanhaiya Lal Muku~dlal . E Saraf). 1 We do not also find that the conduct of t!fe appellants is of such a nature as ·w~uld disentitle them to claim refund of excess payments made in respect of goods other than wfred glass.

We, therefore, modify the judgment and order passed by the High Court by quashing -tit~ assessments of excise duty made in respect of the goods in question other than wired glass viz. figured glitss, coloured figured glass, rolled glass and coolex wired glass for •the period between September 28, 1973 and February 20, 1976 also and directing the assessing anthority to make a fresh assessment in accordance with law in the light of the decision of the High Court. The respond.ents are further directed to refund after such fresh determination any excess duty that· may .be found to have been paid by the appellants. The fresh assessments shall be completed

-< . (!) (1959] S. C. R. 1350. • H

VALLABH GLASS WORKS v. UNION (Venkataramiah, J.) 189

within four monhts fro II\ today. The appeal is, however, dismissed in so far it relates ro the claim for refund of excess duty paid in respect of wired glass during that period.

The appeal is accordingly allowed in part. No costs .

• • . ' N.V.K. Appeal_partly allowed.