JUDGMENT
Shyamal Kumar Sen, J.
1. The facts leading to this writ petition inter alia are that the petitioner at the material time exported 18 consignments of tea falling under Tariff Item No. 3(1) of the First Schedule to the Central Excises and Salt Act, 1944 after due payment of Central Excise duty. The petitioner claimed that out of the said 18 consignments the petitioner is entitled to claim rebate in respect of 10 consignments for Rs. 2,19,205.42p. in terms of the notification dated 17th October, 1981. The particulars of the said 10 consignments have been set out in paragraph 5 of the petition,
2. Rule 12 of the Central Excise Rules, 1944 provides, inter alia, that the Central Government may from time to time, by notification in the official gazette grant rebate of duty paid on excisable goods, if exported outside India, to such extent, and subject to such safeguards, conditions and limitations as regards the class of goods, destination, mode of transport and other allied matters as may be specified therein.
3. Under the aforesaid Rule 12 Notification No. 171/81-C.E., dated 17-10-1981 was issued by the Central Government granting rebate, of duty of excise paid on unblended tea falling under Tariff Item 3 of the First Schedule to the Central Excises and Salt Act, 1944. The tea in the aforesaid consignments of the petitioner company fall under Tariff Item No. 3 and are entitled under the said notification to the rebate of the duty of excise paid. The said notification granted rebate of Central Excise duty in respect of unblended tea provided certain conditions laid down in the proviso to the said notification were fulfilled. There is no dispute that the goods under the aforesaid 10 consignments fulfilled all the conditions laid down in the said proviso and that the petitioner is entitled to the grant of rebate.
4. Immediately after the shipment of the aforesaid consignments, within a period of one month the petitioner company claimed rebate by a letter dated 14-11-1981. The said letter was despatched under certificate of posting. Under the aforesaid notification the documents mentioned in the appendix to the said notification were required to be submitted along with the claim for rebate. As it took a little time for the petitioner company to obtain the shipping bills and bills of lading from the Customs Department the petitioner company could not send the said documents along with the letter dated 14-11-1981. On or about 6-8-1982 the petitioner company presented a formal application in Form ‘B’ along with bills of lading and shipping bills only certified by the Customs authorities.
5. Thereafter by 10 separate show cause notices, all dated 30-10-1982, the petitioner company was asked to show cause as to why its claim for rebate should not be rejected on the allegation that they were submitted after the expiry of the prescribed period under Section 11B of the Central Excises and Salt Act, 1944. The petitioner company duly replied to the said show cause notices stating, inter alia, that its claim could not be treated as time barred inasmuch as by a letter dated 14-11-1981 which was within a month from the shipment of the aforesaid 10 consignments 5t had already claimed rebate of duty. At the hearing the petitioner company duly produced before the adjudicating authority the proof of such despatch under certificate of posting but the petitioner company’s claims were rejected by a purported order dated 8-3-1984 which is annexure ‘B’ of the writ petition. The only ground for such rejection was that the same was filed beyond the period of limitation mentioned in Section 11B of the said Act. Against the said order dated 8-3-1984 the petitioner preferred an appeal before the Collector (Appeals) Central Excise, Calcutta. By an order dated 20-10-1984 which is” included in Annexure ‘B’ to the writ petition the order dated 8-3-1984 was confirmed and the petitioner company’s appeal was dismissed. The aforesaid two orders were handed over by the petitioner company to Mr. Sukesh Chandra Datta Chowdhury, Advocate instructing him to take necessary action but unfortunately the said orders were mis-placed in the office of the said Advocate. Immediately after they were found out the petitioner No. 2 handed over the same to Mr. Tapan Nag Chowdhury, Advocate of this Court for preparation of a writ petition and the writ petition in the instant case was filed on 19th December, 1986 and Rule was issued thereupon.
6. The respondents’ case as it appears from the Affidavit-in-opposition is that:
(a) The petitioner company was required to present its formal claim in Form ‘B’ along with all supporting documents within the period of limitation prescribed in Section 11B of the said Act which they failed to do. The letter dated 14-11-1981 was not received by the department and the claim was lodged only on 6-8-1982.
(b) The petitioner company should have agitated its grievance before the alternative forum provided under the statute. (c) There has been delay in riling the writ petition and the same should not be entertained.
There is no dispute that the petitioner company is entitled to rebate on Central Excise Duty on merits. The only dispute which has been raised is that the application should have been presented in Form B within the period of limitation mentioned in Section 11B of the said Act. The aforesaid notification provides for grant of rebate to an exporter of unblended tea on condition that certain conditions have been fulfilled. There is no dispute that the said conditions have been duly fulfilled by the petitioner company. Any amount of Central Excise duty collected in excess without the authority of law is violative of Article 265 of the Constitution of India. It has been submitted on behalf of the petitioner that the Government cannot take the plea of period of limitation prescribed under Section 11B of the said Act and sit tight over money collected from the petitioner company without the authority of law. The condition for getting the rebate under the said notification have been provided in the notification itself. The mode of presentation and the time Schedule is only the procedural part of the said notification the petitioner has fulfilled all the conditions to entitle itself to claim rebate. The alleged lapse of the fulfilment of the procedural lapses can never be a bar in getting the rebate. It has been submitted that Rule 12 of the Central Excise Rules, 1981 clearly lays down that a notification issued under the said rule is to provide safeguards for conditions and limitation as regards the ‘class of goods’, ‘destination’ ‘mode of transport’ and other allied matters by prescribing the time limit for presentation of application for rebate in the said notification. The said notification has travelled beyond the scope of Rule 12 of the Rules because the period of limitation cannot by any stretch of imagination be stated to be of allied matter of ‘class of goods’, ‘destination’ and ‘mode of transport’. It has also been submitted that in cases where the Central Excise duty has been collected without the authority of law, Section 11B has no manner of application and cannot come into play. In the case of Commissioner of Sales Tax, U.P. v. Auriya Chamber of Commerce, Allahabad , it has been held by the Supreme Court that the State has no right to retain tax collected without authority of law and the amount so collected is refundable without any period of limitation. In the case of Calcutta Paper Mills Manufacturing Company v. Customs, Excise and Gold (Control) Appellate Tribunal and Ors. it has been held that the duty collected without the authority of law has to be refunded and cannot be rejected on the ground of limitation. In the case of Corrugating and Paper Processing Company Pvt. Ltd. v. Collector of Central Excise this court directed the matter to be remanded back to the authorities for reconsideration on merit specifically indicating therein that the question of limitation could not stand in the way of such consideration. It has been contended on behalf of the petitioners that even if it is assumed that this is a case where Section 11B applies, in that event also it cannot be disputed that a claim for rebate was duly lodged by a letter of the petitioner company dated 14th November, 1981 which was despatched under certificate of posting. In support of the said contention a photostat copy of the letter dated 14th November, 1981 along with the proof of despatch under certificate of posting were duly produced before the Assistant Collector of Central Excise in course of the hearing. It appears from the order dated 8th March, 1984 which is also annexure to the writ petition, the only plea taken by the Assistant Collector in the said order is that on verification of records it was found that the said letter was not received by his office. Such alleged verification if at all done has been done unilaterally and behind the back of the petitioner. It has, however, been admitted in the said order that the proof of certificate of posting of the letter dated 14th November, 1981 was produced before the Assistant Collector. The order dated 8th March, 1984, however, does not refer to the same at all. It has also been contended on behalf of the writ petitioner that the Collector (Appeals) has confirmed the order of the Assistant Collector mechanically and without any application of mind. The Collector (Appeals) has failed to appreciate that an authentic proof of the postal department has not at all been dealt with by the Assistant Collector. It has also been contended on behalf of the writ petitioner that since the Central Excise duty has been collected without the authority of law violating the Articles 14, 265, 300A and 19(1)(g) of the Constitution of India the petitioner is entitled to come up before this court in writ petition and the alternative remedy will not be a bar. In support of his contention the learned Advocate for the petitioner relied upon a judgment and decision in the case of Hriday Narain v. I. T. O. . In the aforesaid decision the Supreme Court held that “Because revision application under Section 33A could have been moved, but was not moved that would not justify the High Court in dismissing as not maintainable the condition which was entertained and heard by it on merits. Tribunal has always expressed the view that it is a creature of the statute and cannot go beyond the period of limitation prescribed under the statute. Since this is a case where the department has raised such a plea it would have been a mere formality go before the Tribunal.”
It has also been submitted on behalf of the petitioner that the point of maintainability of a writ petition on the alleged ground of delay can be taken only at the point of admission of the writ petition. Once a rule has been issued and the petition has been admitted, as in the instant case, it has been submitted that such a point is of no avail to the respondent.
7. It has been submitted on behalf of the respondents on the other hand that the petitioner No. 1 exported amongst others 10 consignments of unblended tea falling under erstwhile classification Item 3(1) of the First Schedule to the Central Excises and Salt Act, 1944 as mentioned in paragraph 5 of the petition and submitted claim for rebate. The said claims were lodged in terms of Government of India, Ministry of Finance, Department of Revenue Notification No. 171/81-Central Excise, dated New Delhi, 17th October, 1981 being Annexure ‘A’ to the affidavit-in-opposition. On examination of the said claims it is found that all the claims were lodged beyond the statutory period of six months from the date of exportation as laid down in Section 11B of the Central Excises and Salt Act, 1944 read with the said Notification No. 171/81-C.E., dated New Delhi, 17th October, 1981.
8. Under Rule 12 of the Central Excise Rules, 1944, rebate of Excise duty paid on the goods is admissible subject to the limitations and/or conditions as prescribed under the Notifications issued in terms of the said Rule. The Notification bearing No. 171/81, dated 17-10-1981 has been issued under the said Rule.
9. Para 4 of the Appendix annexed to the said notification reads as under :-
“The Exporter shall present an application in form ‘B’ to the Collector of Central Excise before the expiry of the period specified in Section 11B of the Central Excises and Salt Act, 1944 (1 of 1944) together with the Bill of Lading or Shipping Bill duly certified by the Customs authorities to the effect that the goods have in fact been exported viz. the date of sailing of the ship i.e. 7/8-11-1989″.
The said Section 11B of the Central Excises and Salt Act is also set out herein below :-
(1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months [from the relevant date:]
Provided that the limitation of six months shall not apply where any duty has been paid under protest.
... ... ... "Explanation. - For the purposes of this section, - (A) "refund" includes rebate of duty of excise on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;" It has been contended on behalf of the respondent that assuming though not admitting that the said letter dated 14th November, 1981 had in fact been sent to the respondents and the same was received by them even in such circumstances it could not be said that the petitioners had lodged their claim in terms of the said notification as required under the law. The said letter dated 14th November, 1981 does not mention any amount of rebate claimed nor was it sent together with the Bill of Lading or Shipping Bill duly certified by the Customs Authorities to the effect that the goods had in fact been exported.
10. It has been submitted on behalf of the respondents that in terms of the said notification the exporters like the petitioner are required to submit the Bill of Lading or Shipping Bill duly certified by Customs along with claim in Form B which admittedly the petitioner had failed to do in terms of the said notification within the stipulated period of six months. The said letter dated 14th November, 1981 alleged to have been despatched by the petitioner under Certificate of posting had not been received by the office of the respondent No. 1. It has been further submitted though all the claimants including that of the petitioner company submitted their claim papers into Export Refund Branch through messengers under official receipts but insofar as the said letter dated 14th November, 1981 is concerned the petitioner company deviated from its normal practice and allegedly chose to send the purported letter under Certificate of posting though the distance between the petitioner company’s office and that of the Export Refund Branch is only about one kilometre. It has been contended that it might be a fact that the petitioner company obtained a certificate regarding posting of the said letter which shows that the letter was received by the postal authorities but the same did not reach the claim sanctioning authority. It has also been submitted that from a copy of the said letter dated 14-11-1981 which is marked as Annexure ‘B’ to the writ petition it appears that the same is not a claim as required under and in terms of para 4 of the Appendix annexed to the said notification dated 17-10-1981 and that it further appears from the claim forms dated 6-8-1982 that there is no mention therein or any whisper about the petitioner company’s purported previous letter dated 14-11-1981 and as such the same according to the respondent is a fabricated document which has come into existence as a result of an after-thought of the petitioner. It has been argued that the said letter dated 14-11-1981 cannot be treated as a rebate claim inasmuch as the said letter assuming though not admitting had been sent and received by the respondent authority, is not in accordance with the said notification as it was not sent along with the Bill of Lading or Shipping Bill duly certified by the Customs Authority to the effect that the goods have in fact been exported inadvertance or erroneously the petitioner could not comply with the conditions laid down in the Notification No. 171/81, dated 17-10-1981.
11. It has been submitted on behalf of the respondent that in making claims for refund before the departmental authority the assessee is bound within the four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered to. The authorities functioning under the Act are bound by the provisions of the Act. In support of his aforesaid contention the learned advocate relied upon the decision in the case of Collector of Central Excise, Chandigarh v. Doaba Co-operative Sugar Mills .
12. It has further been contended that the authorities acting under the Act were justified in disallowing the claim for refund as they were bound by the period of limitation provided therefor under the Act. In this connection the case of Miles India Ltd. v. Assistant Collector of Customs reported in 1987 (30) E.L.T. 641 (SC) was cited on behalf of the respondents.
13. It has further been urged on behalf of the respondent when a party has chosen to avail of the ordinary remedy in the Act for obtaining refund of duty paid by him but the same claim is rejected on the ground of limitation, the Court by invoking its power under Article 226 of the Constitution may choose not to lift the said bar of limitation and order refund of duty. The obligation to pay duty and obligation on the part of revenue to refund duty wrongly recovered both arise under the statute. When by his own conduct a party has already lost its right to obtain refund under a particular law, the High Court may not release the party of the said statutory bar and grant refund in exercise of its writ jurisdiction, the Court may decline to make an order for payment of money for which there may be other appropriate and adequate remedies and by the party’s own laches, the remedy has become time barred. The decision in the case of Incheck Tyres Ltd. v. Assistant Collector of Customs for Refund Section, Calcutta and Ors. has been relied upon by the learned advocate for the respondent. It has been suggested that in the instant case admittedly the petitioner had an adequate remedy by way of preferring an appeal before the Tribunal which because of the party’s own laches became time-barred.
14. It has further been submitted on behalf of the respondents that if an amount was unlawfully collected, petitioners right to refund is governed by the statute itself which provides the condition and the petitioner is bound to fulfil these conditions before claiming refund. It is not open to the petitioner to contend that he has a right of refund hide-pendent of the statute when he has already pursued the remedy of appeal as laid down in the statute.
15. It has also been argued that as the claim has been filed beyond the prescribed period of six months laid down under Section 11B of the Central Excises and Salt Act, 1944, the claim is time barred. Period of three years as laid down in the Limitation Act, 1963, is not applicable.
16. It has been submitted that the concessional rate of duty (in the instant case rebate of duty) can be availed of only by those who satisfy the conditions which have been laid down under the notification. In this connection the learned advocate for the respondent relied upon a judgment and decision in the case of Union of India and Anr. v. P.M. Works . The Ld. Advocate for the respondents submitted that the petitioners failed to satisfy the conditions which are laid down in the Notification No. 171/81-C.E., dated 17-10-1981.
17. The Ld. Advocate for the respondent also submitted that where a power is given to do a certain thing in the certain way, the thing must be done in that way or not at all and other methods of performance are necessarily forbidden. The learned advocate relied upon a decision in the case of Ramchandra Keshab Adak v. Govind Joti Chavre . In the instant case it has been submitted that the petitioners by the said notification were empowered to present an application in form “B” to the Collector of Central Excise before the expiry of the period specified in Section 11B of the said Act, together with the Bills of Lading or Shipping Bill duly certified by the Customs Authority to the effect that the goods have in fact been exported which the petitioners have failed to perform and the other methods of their performance are necessarily forbidden.
18. The Ld. Advocate for the respondent also contended that there is no doubt about the presumption that a letter posted would reach the addressee. But such presumption is very weak in case where the letter is not registered. AIR 1955 Notes of Un-reported Cases 1988 (Allahabad) – Lal Mohan Banerji v. Municipal Board. In the instant case, it has been submitted that the letter dated 14-11-1981 was sent by the petitioner under certificate of posting which did not reach the claim sanctioning authority.
19. In the case of Collector of Central Excise, Chandigarh v. Doaba Co-operative Sugar Mills the facts involved inter alia were that a sum of Rs. 5,60,679.40 was sanctioned to the respondent on the basis of Notification No. 108/78 as an incentive for excess production. On 18th May, 1979 the same was credited to the personal ledger account of the dealer. On 5th November, 1981 Superintendent, Central Excise issued a show cause notice asking the respondent to show cause as to why the sum of Rs. 66,306.62 granted in excess under the aforesaid notification be not recovered from it. On 30th July, 1982 the Assistant Collector held that there was no excess sanction because of wilful incorrect statement of suppression of facts of the respondent. In the premises he held that the notice was barred by lapse of time according to the statute and accordingly dropped the demand. On 6th October, 1982 the Collector of Central Excise, Chandigarh while exercising his power under Section 35A(2) of the Act as it stood at the material time issued a show cause notice against the order of the Assistant Collector. The case was adjudicated thereafter by the Collector who found that the statutory time limit under Section 11A of the Act would come into play only where the demand is on account of Central Excise duty short levied or not levied or refunded erroneously. Aggrieved by the said order the respondent preferred an appeal before the Tribunal. The Tribunal allowed the appeal. The propriety of the said decision of the Tribunal was challenged before the Supreme Court. Under such circumstances the Supreme Court held that when the duty has been levied without the authority of law or without reference to any statutory authority or the specific provision of the Act and the Rules framed thereunder, the decision will be guided by the general law and the date of limitation would be the starting point when the mistake or the error comes to light. But in making claims for refund before the departmental authority, an assessee is bound within the four corners of the statute and the period of limitation prescribed in the Central Excise Act and the Rules framed thereunder must be adhered for the authorities functioning under the Act are bound by the provisions of the Act. If the proceedings are taken under the Act by the department the provision of limitation, prescribed in the Act will prevail. It may, however, be open to the department to initiate proceedings in the civil court for recovery of the amount due to the department.
20. In my opinion the said decision cited on behalf of the respondent cannot be of any assistance to the respondent.
21. In the case of Godawari Plywoods Ltd. v. Union of India and Ors. it has been held by Division Bench of the Andhra Pradesh High Court that refund claimed is time barred if filed beyond six months as laid down in Section 11 of the Central Excise Act and period of three years as laid down in the Limitation Act, 1963 is inapplicable. This was really a claim for refund inasmuch as the authorities collected tax in excess of the prescribed limit. The claim in this case was also rejected on the ground that under Section 11B the same has become time barred. Authorities are not bound to grant relief under Section 11B if the claims is made after six months from the date of payment. Admittedly the claim was made beyond six months. In the instant case the claim was really made within six months but necessary documents in support of the claim were not incorporated with the claim and the same were produced subsequently. Moreover it appears in the instant case that the authority had no jurisdiction to recover the amount and should have granted the rebate at the initial stage. Under such circumstances the Government cannot, in my opinion, withhold money if it is wrongly collected from the petitioner. The subsequent decision of the Supreme Court are also contrary to the view taken by the Division Bench of the Andhra Pradesh High Court. Under such circumstances the principles decided in the aforesaid decision in the case of Godawari Plywood Ltd. v. Union of India and Ors. (supra) is no longer applicable.
22. In the case of Madras Port Trust v. Hymanshu International reported in 1979 (4) E.L.T. (J 396) the claim of the respondents for refund of the amount in wharfage, demurrage and transit charges paid to the appellant was barred by Section 110 of the Madras Port Trust Act. The Supreme Court found that the plea of limitation based on the said section is one which the court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust, should in all morality and justice take up such a plea to defeat a just claim of the citizen. It is high time that government and public authorities adopt the practice of not relying upon the technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizen. Of course if a Government or a public authority takes up a technical plea, the court has to decide it and if the plea is well founded, it has to be upheld by the court but it was felt that such a plea would not ordinarily be taken by a Government or a public authority unless of course the claim is not well founded and by reason of delay in filing the same, the evidence for the purpose of resisting such a claim has become unassailable.
23. In the case of Shiv Shankar Dal Mills v. State of Haryana the Supreme Court observed as follows:
“Where public bodies, under colour of public laws, recover people’s money, later discovered to be erroneous levies, the Dharma of the situation admits of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to each jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of ‘alternative remedy’ since the root principle of law married to justice, is ubi jus ibi remediutn.”
24. In the case of Sales Tax Commissioner, U.P. v. Auriaya Chamber of Commerce it was held by the Supreme Court at 1563 of the said report as follows:
“Where indubitably there is in the dealer legal title to get the money refunded and where the dealer is not guilty of any laches and where there is no specific prohibition against refund, one should not get entangled in the cobweb of procedures but do substantial justice. The above requirements in this case, in our opinion, have been satisfied and, therefore, we affirm the direction of the Additional Judge (Revision), sales tax for refund of the amount of the dealer and affirm the High Court’s judgment on this basis.”
25. In this connection the case of Hindustan Sugar Mills v. State of Rajasthan and Ors. may be considered. In the aforesaid decision the Supreme Court directed payment of certain sales tax collected from the assessee and observed as follows:
“It is true and we are aware that there is no legal liability on the Central Government to do so, but it must be remembered that we are living in a democratic society governed by the rule of law and every Government which claims to be inspired by ethical and moral values must do what is fair and just to the citizen regardless of legal technicalities. We hope and trust that the Central Government will not seek to defeat the legitimate claim of the assessee for reimbursement of sales tax on the amount of freight by adopting a legalistic attitude but will do what fairness and justice demand. After all the motto of every civilized State must be : “Let right be done”.
26. In Jagadambika Pratap Narayan Singh v. Central Board of Direct Tax the Supreme Court had such problem from the point of view of Income Tax Act. The Supreme Court took into account the question of limitation in granting a relief in (sic) background of Article 226 of the Constitution of India and observed that any legal system, especially one evolving in a developing country, might permit Judges to play a creative role innovate to ensure justice without doing violence to the norms set down by legislation. But to invoke judicial activism to set at nought legislative judgment is subversive of the constitutional harmony and commity of instrumentalities.
27. There is no dispute that the petitioner is entitled to rebate on merit of the case. However, only on the question of limitation his claim for refund was disallowed although it is also an admitted position that the petitioner sent his claim for rebate under certificate of posting within the period of limitation as prescribed under the provisions of the statute and produced receipts issued by the postal authority.
28. In the case of Jitendra Nath Das v. Bijaylal Das reported in AIR 1976 Calcutta 477 it has been held by a learned Single Judge of this court following an earlier decision of this court in the case of Sukumar Guha v. Naresh Chandra Ghosh that Section 106 T.P. Act does not contemplate notice must be sent by registered post or that notice sent by post under certificate of posting would be illegal. Section 27 of the General Clauses Act does not provide that notice has to be sent under registered post alone. It has also been held in the aforesaid decision that presumption under Section 27 of the General Clauses Act does not apply to a case of a letter sent under certificate of posting, the presumption under Section 114 of the “Evidence Act however, would apply in such a situation. The court will, however, be at liberty to see such presumption has been rebutted in view of the evidence on record and the facts and circumstances of the case.
29. In the case of Sukumar Guha v. Naresh Chandra Ghosh defence taken by a tenant in an ejectment second appeal to the effect that notice of ejectment was not served. Notice under registered post was found to be not duly served by the court below inasmuch as it was not properly addressed. With regard to the other notice sent under certificate of posting and also by affixing a copy of the notice on the door of the suit premises both the courts below held that the said notice was effectively served. It was urged on behalf of the appellant/tenant in the Second Appeal that Section 27 of the General Clauses Act raises a presumption only for posting by registered post and non-presumption can be raised even under Section 114 of the Evidence Act in case of ordinary post or certificate of posting. This court, however, rejected such contention of the appellant/tenant and held that though presumption under Section 27 General Clauses Act can only arise when the notice is sent by registered post, there may arise a presumption under Section 114 Evidence Act when notice is sent by ordinary post or under certificate of posting. It was also held by the aforesaid decision if the letter containing notice sent by post has not been returned to the sender, then it is a case where presumption operates. Whether such presumption has been rebutted depends on the acceptability of the evidence denying tender or delivery offered by the defendant. Mere denial will not lead invariably to rebuttal of presumption properly raised. The aforesaid finding of the learned Single Judge is based on the decision of a Division Bench of this court in the case of Sushi Kumar Chakraborty v. Ganesh Chandra Ghosh . The same principle had also been followed in another Division Bench decision of this court in the case of Chaya Devi v. Lahori Ram Prashar reported in 67 CWN 819. Accordingly in the aforesaid decision the court arrived at the conclusion “that the finding of the courts below that notice sent by post under certificate of posting has been effective under Section 106 of the T.P. Act and Section 13(6) of the West Bengal Premises Tenancy Act, 1956 is a proper and correct finding though it is based on a presumption that could be and had been properly raised and there is no scope for remand on that point to court below.”
30. In the case of Gobinda Chandra v. Dwarkanath reported in 19 CWN 489 : 1915 Calcutta 313 it was observed by the Division Bench of this Court at page 319 as follows :
“Proof of the fact that a letter correctly addressed has been posted and has not been received back through Dead Letter Office may justify the presumption that it had been delivered in due course of mail to the addressee, but proof of the fact that a letter has been duly posted and has been returned by the postal authorities does not justify the presumption that it has been so returned because it has been refused by the addressee; or it may well be that it had been returned because the addressee had not been found; much less is there a presumption that the cover has been tendered to the addressee on a particular date. We may further point out that the presumption mentioned in Section 114 is not a presumption of law but a presumption of fact, and whereas in this case that the defendant pledges his oath that the cover was never tendered to him we cannot treat the presumption of irregularity of official business as conclusive against him.”
31. In the matter of Port Cargo Ex Steamship “Belgia” reported in AIR 1918 P.C. 338 it has been held “as a general rule the court will assume, unless the contrary is proved, that letters which are proved to have been mailed do arrive in ordinary course of post, and it is on those who dispute that inference to show the contrary.”
32. The order dated 8th March, 1984 passed by the Assistant Collector of Excise, Export Refund, Calcutta provides “on scrutiny it is found that the letter dated 14-11-1981 lodging the refund claims under certificate of posting as stated by the party is not acceptable as on verification of office records it is found that in fact the claims were first submitted only on 6-8-1982 and hence time-barred, as letter dated 14-11-1981 has not been received in this office.” The said order on the face of it does not correctly apprise the real situation since there is a presumption of due service when it is shown that the letter is posted which has not been rebutted by proper evidence. Mere denial by saying that it had not been received in the office does not appear to be sufficient to rebut such presumption. The appellate authority also has not taken a correct decision since the appellate authority has also failed to appreciate the correct position in law. With regard to the service of the said letter dated 14th November, 1981 the appellate authority inter alia held as follows :-
“The rebate claim of the appellants have been rejected by the Assistant Collector on the ground that the claim was lodged after the time prescribed for lodging rebate claim namely six months. The contention of the appellants is that they sent the first claim for the rebate under their letter dated 14-11-1981, through post and obtained a certificate from the post office. It could be true that they obtained a certificate regarding posting of the letter. That only shows that the letter was received by the Postal Authorities. The Asstt. Collector in his order stated that the letter was not received in his office. Since the Assistant Collector is the Authority to grant the rebate, the most important thing is that he should receive the letter claiming the rebate in his office. Even if the postal authorities received the letter, that does not help the appellant. The decision of the Asstt. Collector is, therefore, correct. The appeal is rejected.”
33. Settled law on the question of service of a letter by post has already discussed is that if it is shown that the letter has been duly posted by certificate of posting or by ordinary post there would be a presumption of regularity that the said letter has reached the addressee unless the said presumption had been duly rebutted by due evidence to the contrary. No such evidence has been adduced to show that the said letter has not reached the concerned authority except that it does not appear from records which is not a sufficient denial of such fact. It is well-known that in the office of the Government there is Receiving Section and no person has come forward with evidence to show that such a letter was not received. It may be that the said letter has not been presented in accordance with the Excise Rules as provided in para 4 of the Appendix annexed to the said Notification No. 171/81 which reads as follows :
“The exporter shall present an application in Form ‘B’ to the Collector of Central Excise before the expiry of the period specified in Section 11B of the Central Excises & Salt Act, 1944 (1 of 1944) together with the bill of Lading or Shipping Bill duly certified by the Customs Authorities to the effect that the goods have in fact been exported.”
The reason for not complying with the condition prescribed under the said rule has been explained by the letter of the petitioner addressed to the Additional Collector of Central Excise, Export Refund Branch being the reply to the show cause notice dated 30-10-1982. In the said letter it has been specifically mentioned that the petitioner had already lodged his rebate claim by letter dated 14-11-1981 together with claim for 17 other exports when the procedure under said Notification No. 171/81-C.E., dated 17-10-1981 was introduced. It was very busy season for tea business. Therefore, it was apprehended that the petitioner would not be able to line up the matter promptly and submit the rebate claim in prescribed form within time limit after obtaining copy of the Shipping Bill from the Customs Office and in order to save the claim from being hit by tune bar lodged the rebate claim by letter dated 14-11-1981 in which it was also mentioned that the claim in proper form would follow soon. Along with the said letter dated 27-1-1983 being reply to the said show cause notice dated 30-10-1982 photostat copies of the letter dated 16-11-1981 as also copies of the postal authorities being certificate of posting were also enclosed and sent. The contention of the respondent is that the claims were first submitted on 6th August, 1982 which is beyond time by another three months. As I have already noted that the claim for rebate was sent under certificate of posting by 14th November, 1981 which is well within time and the same has since been subsequently regularised by letter of 6th October, 1984. It is not fit and proper on the part of respondent authorities to reject the claim for rebate only on the ground of limitation. As already noted in the case of Madras Port Trust v. Hymanshu International (supra), the Supreme Court expressed its dissatisfaction where the Port Trust Authorities took the plea of limitation under Section 110 of the Madras Port Trust Act in a case of similar nature. In this connection the finding of the Supreme Court in the case of Sales Tax Commissioner, U.P. v. Auriaya Chamber of Commerce (supra) may also be taken note of. Indubatedly in instant case the petitioner is not guilty of any laches since he has sent the claim for rebate by letter dated 14th November, 1981 well within time and mentioned therein that the formal claim will follow. It is also not in dispute that the petitioner is entitled to refund on merit. Under such circumstances the respondent authorities should not have entangled themselves in the cobweb of procedures to defeat a just claim of the petitioner. As observed by the Supreme Court in the case of Hindustan Sugar Mills v. State of Rajasthan (supra) it is expected that the Central Government will not seek to defeat the legitimate claim of a citizen for refund of the duty paid in terms of the statute by adopting the legalistic attitude but will do what fairness and justice demand.
34. The question of delay in moving the writ application has been duly explained by the petitioners. It is the case of the petitioners that after the order dated 25th October, 1984 was received by the petitioner company on or about 30th October, 1984 the same was forwarded to Mr. Sukesh Ranjan Dutta Chowdhury, Advocate instructing him to take necessary action. The said order, however, was misplaced in the office of the said Advocate and in spite of best efforts could not be found. It was only on 30th November, 1986 the said Advocate found out the said order at his office. It has also been mentioned in the petition that a clerk named Chanchal Kumar Rana who was under the employment of the said Advocate at the material time and on whom the said Advocate had to rely for the professional service had misplaced the said order. The said clerk left the employment of Mr. Dutta Chowdhury, Advocate on or about 15th November, 1986 when another clerk joined in his place and in course of rearrangement of the briefs and papers by the new clerk Ratan Kumar Bhattacharya the said order was found out. The said Ratan Kumar Bhattacharya also affirmed an affidavit on 18th December, 1986 whereby the said facts were placed on record. After the said order was found out on 1st December, 1986 the said Mr. Dutta Chowdhury handed over the said order to the petitioner No. 2. On 2nd December, 1986 all the papers were handed over to Mr. Tapan Nag Chowdhury, Advocate on record of the petitioners for preparation of the instant application and the same was completed on 18th December, 1986 and on 19th December, 1986 this application was moved and rule was issued by this court. Under such circumstances it appears that delay in moving the writ application has been sufficiently explained. Accordingly the petitioner should succeed in this writ petition. The rule issued herein should be made absolute. A writ in the nature of mandamus will be issued directing the respondent to act according to law and to rescind and/or withdraw and/or cancel the order dated 8th March, 1984 passed by the respondent No. 1 as also the order dated 25th October, 1984 by the respondent No. 2 and further commanding the respondents to forthwith refund and pay to the petitioner company a sum of Rs. 2,19,245.42 P. There will be no order as to costs.
35. Such payment to be made within 6 weeks from the date of communication of operative portion of the order.