Constitution of India 1950, Article 226 Indian Contract Act 1872, Section 72 Limitation Act 1963, Section 17(1)(c) & Article 113.

Central Excise & Salt Act 1944, First Schedule, Item 23A(1) and Item 68.

Excise duty-Claim for refund of excess duty paid-Jurisdiction of the High Court to order refund in a petition under Article 226.

Appellant No. 1 was a company engaged in the business of manufacturing different types of glass, viz., figured glass, wired glass, coloured figured glass, rolled glass and coolex wired glass. The Central Excise Department had levied and collected excise duty on the said goods on the basis that they belonged to the category of 'sheet glass' and were therefore subject to payment of excise duty under Item 23A(1) of the First Schedule to the Central Excise and Salt Act, 1944. 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 could not be described 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 of the Act they could only be subjected, to levy of excise duty under the residuary provision, Item 68. The Assistant

Collector of Central Excise rejected the claim for refund and the appellants there-upon filed a Writ petition in the High Court on September 28, 1976, but the same was withdrawn as a Departmental Appeal filed by the appellants was pending with the Collector. The said Departmental Appeal was however later dismissed and this order was confirmed in the appellants' revision petition to the Government.

The appellants thereupon filed a Writ. Petition in the High Court and assailed the order. The High Court reversed the decision of the departmental authorities and held that the items of glass manufactured by the appellants did not fall within the scope of tariff Item 23A(1) of the First Schedule but that they,tame within tariff Item 68 thereof, liable to duty accordingly, and directed refund of excess duty paid after February 20, 1976, on which date the dispute was raised. The claim, for refund of excess duty paid during the period prior to February 20, 1976 was, however, rejected.

In the appeal to this Court on the question (1) whether the appellants are entitled to claim refund of excess excise duty paid prior to Februaгу 20,1976 and whether they are entitled to claim refund of such duty paid between October 1, 1963 and February 20, 1976 or during any shorter period, and (2) whether the appellants are entitled to claim such refund in respect of all the goods.

Allowing the appeal in part.