2008(3) ALL MR 772
IN THE HIGH COURT OF JUDICATURE AT BOMBAY(NAGPUR BENCH)
B.P. DHARMADHIKARI, J.
Union Of India Vs. M/S. Vidarbha Co-Op. Marketing Soc. Ltd.
Second Appeal No.358 of 1992
12th March, 2008
Petitioner Counsel: Shri. P. H. GULHANE
Limitation Act (1963), Arts.113, 100 - Suit for recovery of amount of excise duty - Limitation - Prayer to alter or set aside orders passed by revisional authority by an Officer of Government in his official capacity - Held, the suit ought to have been filed within one year - Suit as filed by the respondent, held, was time barred in view of Art.100 of Limitation Act. (Paras 6, 7)
2. Second Appeal has been admitted on 7.8.1992 with question "whether Article 113 of the Limitation Act applied or the case was covered by Article 100, which is specific provision which prescribes one year's limitation?".
3. Shri. Gulhane, Advocate points out that Special Civil Suit No.51 of 1977 was filed by present respondent on 4.5.1977 for recovery of amount of Rs.32,352.78 ps. with cost and interest contending that the excise duty for the period from 5.6.1969 to 16.6.1969 was wrongly recovered from them and its refund was also wrongfully rejected finally in revision on 7.8.1974. He contends that a specific defence was raised before the Courts below that the refund was sought by ignoring or by setting aside the orders passed by departmental authorities and therefore the limitation to file suit was one year. He invites attention to consideration of this aspect by trial Court as also by appellate Court. According to him, both the Courts have not correctly appreciated the controversy.
4. The perusal of the issues framed by the trial Court show that the trial Court found that present respondent proved that refund of excise duty was available on actual consumption and not on total receipt and the plaintiff also proved that present defendant levied excise duty twice on same articles i.e. first against the purchaser and on second occasion against the user. In this background, it found that the defendant i.e. present appellant wrongly and illegally rejected the claim of plaintiff for refund of excise duty of Rs.32,352.78 ps. In para 22, while considering the issue No.5 about limitation, trial Court has only found that cause of action arose when refund was rejected on 7.7.1974 and hence the suit as filed on 4.5.1977 was within limitation. It has not considered whether Article 100 would govern the controversy or not.
5. The learned lower appellate Court has considered superficially the issue of limitation and then whether respondent-plaintiff was entitled to claim refund of excise duty paid. In its judgment, the lower appellate Court has mentioned that Government Pleader before it made three submissions and first was about Article 113 of Limitation Act and the appellate Court has stated that the contention was Article 113 came into play as suit was filed beyond one year after the decision of Secretary on 7.8.1974. The second contention of learned Government Pleader was concerning locus of plaintiff to file suit and last contention was about non-compliance with procedure prescribed by Rule 56-A of Central Excise Rules, 1956. In para 9, lower appellate Court has considered the contention in relation to limitation and found that Article 113 provided limitation of three years and there was no controversy about applicability of said article. It then proceeded to consider the point of time from which limitation began to run and found it to run from the date of rejection of plaintiff's claim by final authority. It found that as per Notification No.24-69, exemption from Central Excise Duty for finished fertilizers can be claimed and his claim in that respect was rejected in relation to Urea. It, therefore, held that right to file suit accrued to respondent - plaintiff when his claim was rejected by final authority again. Therefore, the provisions of Article 100 are not looked into by lower appellate Court.
6. The very conduct of respondent in approaching the authorities for refund, fact that he was claiming refund on the basis of some Government Notification and the above referred observation of the lower appellate Court show that he was granted refund partly and not in relation to Urea. Thus, his entitlement to claim refund depended upon the orders passed by the authorities. The final order in this respect was passed on 7.8.1974 when his claim for refund was rejected. Article 113 of Limitation Act reads as under :
|Description of application||Period of limitation||Time from which period begins to run|
|113. Any suit for which no period of limitation is provided elsewhere in this Schedule.||Three years ||When the right to sue accries. |
|Thus, said article provides limitation of three years for any suit for which no period of limitation is provided elsewhere. As against this, Article 100 of Limitation Act, reads as under :|
|Description of suit||Period of limitation||Time from which period begins to run|
|100. To alter or set aside any decision or order of a Civil Court in any proceeding other than a suit or any act or order of an officer of Government in his official capacity.||One year ||The date of the final decision or order by the Court or the date of the act or order of the officer as the case may be.|
Thus, Article 100 of the Limitation Act, specifically provides a period of limitation of one year when a suit has been filed to alter or set aside any decision or any act or order of an officer of a government in his official capacity. The said period of one year begins to run from the date of such final decision or order. It is obvious that in present case, challenge was to the order passed by the revisional authority on 7.8.1974 and prayer was to order refund by ignoring or by setting aside the orders passed by the revisional authority. In other words, the prayer was to alter or set aside said adjudication by an officer of government in his official capacity. The suit, therefore, ought to have been filed within one year.
7. In these circumstances, the substantial question of law therefore, needs to be answered in favour of the appellant by holding that suit as filed by the respondent was time barred in view of Article 100 of the Limitation Act, 1963. Second Appeal is accordingly allowed. However, in the circumstances of the case, there shall be no order as to costs.