ORDER
Ajoy Nath Raj, J.
1. Both these Writ applications [(CO. 6151 (W) of 1990 and CO. 7043 (W) of 1990] are disposed of by the same order, as they raise identical issues.
2. These Writs contain two sets of prayers. The first set of prayers is for quashing of three orders passed respectively by the Assistant Collector, the Collector and the Tribunal refusing refund of moneys to the Writ Petitioner. The second set of prayers is for refund of the money itself which is claimed by way of a separate substantive relief in the writ applications. The sums claimed are Rs. 1,13,005.36 and Rs. 7,285.65.
3. These sums were paid by the Writ Petitioners for periods prior to April 1981. The Writ Petitioner, at that material time, was, as is the indisputable position, a small scale manufacturer, satisfying all the reqirements for total exemption from payment of excise duty even in respect of the goods manufactured by it, which were in their nature, excisable.
4. The existence of the exemption Notification (No. 89/79, dated 1-3-1979,105/80, dated 19-6-1980) is not in dispute and it is not in dispute either that the value of the plant and machinery of the Writ Petitioner was under the ceiling limit of Rupees Ten Lakhs and that the turnover of the Writ Petitioner was below Rupees Fifteen Lakhs and Rupees Thirty Lakhs respectively, which were the two successive ceilings put in the exemption Notification for two successive periods.
5. The reason why the Writ Petitioner started payment of any money at all is peculiar. It was not that there was any formal order or threat of punishment forcing the Writ Petitioner to make the payment. The payment was started merely upon receipt of a letter dated 29-9-1977 issued by the Superintendent. Central Excise, whereby the petitioner was permitted to open an account for provisional deposit. Though the letter does not say so, it implies between its lines a clear suggestion for starting deposits, for, the petitioner had not until then been recognised by the ‘bureau’ to be within the exemption Notification. Such recognition came only in March, 1983.
6. The petitioner meekly followed the advice and started making payments.
7. Today, when the legal battle has been thrashed out, it might be easy to say that the Writ Petitioner was never under an obligation to make any payment of duty and that the advice of the Superintendent might have been ignored with impunity. A businessman, however, does not run his business on such principles. He tries to keep on the right side of the law, and on the right side of the officers, and avoid all unnecessary trouble. Thus it was, that moneys continued to be deposited by the Writ Petitioner.
8. Learned Counsel for the petitioner relied upon many cases, one of which was the case of Khardah Company Limited v. Union of India, . It is a Division Bench Judgment of this Court, where the judgment was delivered by Anil K. Sen, J., as his Lordship then was. In the middle of the judgment at paragraph 16 his Lordship said as follows :-
“Therefore, when the petitioner paid the balance demanded of them and went on paying the excise duty on the subsequent clearances, they really paid under compulsion as otherwise the goods would not have been cleared. Such being the position, we are unable to accept the contention of Mr. Banerjee that the claim of refund as made in the present case really comes within Rule 11 of the Rules and consequently we are unable to support any of the impugned orders all of which are based on the said view.”
The aforesaid observations show that payments might be made by businessmen, although in strict law they are not actually under any compulsion to make such payment. They have to carry on the business and they have to clear the goods. To run on in the business world, they make the payment.
9. So far as the first set of prayers concerning setting aside of the departmental orders is concerned, which were passed between the years 1985 and 1990, I am of the opinion that these Authorities had no jurisdiction, beyond the statutorily prescribed time to make a refund order as to any duty paid; if the Writ Petitioner paid no duty at all, but sums of money merely purporting to be duty, where no duty is leviable, then also these Departmental Authorities would not have any jurisdiction to order return of the same. Because they have jurisdiction only to order a refund of duty. These Authorities were, therefore, compelled to treat the petitioner’s payments as payments of duty and to see if, according to the law, they which are to administer, such duty was refundable to the writ petitioner.
10. Both the Assistant Collector and the Collector came to conclusions about the Writ Petitioner passing on the duty to the purchasers. They made observations about the unjust enrichment of the Writ Petitioner, if refund is allowed, even after such passing on of the burden to the general public.
11. The Tribunal, however, did not proceed upon the question of unjust enrichment and decided that that was not one of the issues to determine the question of refund to the Writ Petitioner in the case before it. The Tribunal, however, spoke with one voice with both the lower Adjudicating Authorities, in so far as the question of limitation of the claim for refund of duty was concerned. The limitation is of six months, arising from Section 11B of the amended 1944 Act, which is the maximum period allowable between the application for refund and the relevant date, which, for the petitioner here is the date of payment of duty. The petitioner protested on and from 13-4-1981, and money paid thereafter has been refunded, as the protest removes the bar of limitation.
12. For the period prior to 13th April, 1981, it was held by the Authorities that the duty had not been paid under protest, nor was the duty paid under any provisional assessment, so the period of limitation could not be got over.
13. Indeed, with these findings it is difficult to pick a quarrel. Protest was only on and from April 1981, and there was no question of provisional assessment, because the goods of the petitioner were not liable to payment of any duty at all, so long as the manufacturing activity of the Writ Petitioner was carried on with machinery within the ceiling limit and the turnover was below the ceiling limit. It was not a tariff item dispute, or a chapter dispute.
14. The first set of prayers in the writ petition, therefore, cannot be acceded to by me, because the Authorities did not exceed their jurisdiction and did not commit any error apparent on the face of the orders.
15. I am left with the second set of prayers, which calls for refund of the moneys with interest, as the other substantive relief claimed in the Writ.
16. Indeed, if the money paid is not duty, then the refund of the same cannot be governed by the provision of limitation in Section 11B of six months, which is applicable to refund of duty paid. Nor would the amendment thereto in 1991 be a serious obstacle against the recovery of the money by the Writ Petitioner. One amendment which has now been incorporated in Section 11B(2) Proviso (d) bars the obtaining of refund by the manufacturer if the incidence of excise duty has been passed on to purchasers, or to any other person, by the manufacturer. Such bar is designed to prevent unjust enrichment, and money recovered by the Union is to he put into the Consumers Welfare Fund [See Sections 2(ee), 12(c)].
17. Mr. Jatin Ghosh, appearing for the respondents, cited to me the case of Union of India v. ITC Limited, , alternatively . He said that the Supreme Court has, inter alia, pronounced at paragraph 15 of the said judgment that the 1991 Amendment is of retrospective effect [See Section 11B(3)] and the refund cannot be had even if the favourable orders had been obtained by the manufacturer prior to the coming into effect of the said Amendment, if he is disentitled by having passed on the duty or in some other manner, as per the new terms of Section 11B. In regard to the query whether the Writ Petitioner’s payments can be said to be payments of duty at all, Mr. Ghosh submitted that the Writ Petitioner has all along treated such payments to be duty. It is because of such a stand taken by the Writ Petitioner that it approached the Department, knowing fully well that the Department cannot grant refund of anything other than duty.
18. Mr. Ghosh relied upon a Single Judge’s decision in the case of Inchek Tyres Limited v. Assistant Collector of Customs & Ors., . In paragraphs 8 and 9 of the said judgment, it was said follows :-
“The contention of the petitioner is that the petitioner has got the right to refund inasmuch as the duties were unlawfully collected. This is a case of an imposition without the authority of law. The petitioner has its fundamental right to the refund of this money and therefore the question of limitation does not and cannot arise. In that view of the matter it is submitted that the petitioner has got such right irrespective of any provision for refund in this statute.
In my opinion, this application is misconceived. If an authority has illegally collected an amount the aggrieved person is entitled to the refund of the same. This Court cannot issue a writ in connection thereto.”
Mr. Ghosh next relied upon another case of Inchek Tyres Limited v. Assistant Collector of Customs for Refund Section, Calcutta & Ors., this time a Division Bench judgment of this Court, . Chittatosh Mukherjee, J. (as his Lordship then was), speaking for the Division Bench, said as follows in the middle of paragraph 7 of the said judgment:
“Undoubtedly, the bar of limitation of six months laid down by Section 27 of the Customs Act would not apply in case the High Court in its discretion makes an order for refund under Article 226 of the Constitution. But in exercising its power under Article 226 of the Constitution the court is always guided by well settled principles of law. When a party has chosen to avail of the ordinary remedy provided in the Customs Act for obtaining refund of duty paid by him but the said 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 the duty.”
19. There is no doubt that I have to prefer the Division Bench view to the Single Judge’s judgment. In the manner I venture to read the said observations of the Division Bench. I find there nothing contrary to my opinion, that the jurisdiction to order refund of the moneys held by public respondents, which were obtained without any initial authority of law to receive the same, and which are continued to be held without any subsequent authority of law to withhold the same, is not taken away by reason of the presence of particular provisions of refund, or not to refund, mentioned in different Acts like the Customs Act or the Central Excise Act. Also, as I read the said judgment, such refund might or might not be ordered by the Writ Court depending upon the particular facts and circumstances of each case.
20. I do not read in the said Division Bench judgment or in any of the other cases cited by Mr. Ghosh any such inflexible rule of law as compels the Writ Court, even in moulding its remedy according to the Constitution of India, compulsorily to follow the one path, that if the Writ Petitioner has once approached the Department, to obtain refund of money under the heading “Refund of Duty”, then the petitioner must, even in the Writ Court, be estopped from putting forward any other plea for recovery and must continue to claim such refund as refund of duty, and refund of duty alone.
21. See to what absurd results such an inflexible rule would lead, if even the Writ Court, which is the Court of last resort, were to feel itself bound by such a mechanized procedure.
22. Suppose a crore of rupees is paid by a person without having any liability to pay duty. Suppose he claims refund before the first Authority. Suppose he files a writ a week thereafter claiming over again the money on the ground, that return is to be made by the respondents on the principles of reasonable, fair and equal action. Is the Writ Court to deny relief because the petitioner has once called the payment a payment of duty? The answer is, surely not.
23. In the instant case the petitioner has exhausted the departmental remedy, although it is proved to be no remedy at all for the Writ Petitioner. It is the clear position that no money could have been paid by the petitioner as duty, nor accepted by the respondent as excise duty at any material time. That the petitioner is wholly exempt, is put beyond doubt by two communications made by the Assistant Collector of Central Excise dated 21-3-1983.
24. Under these circumstances, the respondents never had nor have any jurisdiction to treat the payment made by the writ petitioner as payment of duty. Even if the petitioner has called such payment to be payment of excise duty or proceeds on the basis that such payment is duty payment, it is impermissible and it is an error which the petitioner itself could not support even if it wanted to, (say, for tax deduction purposes).
25. I should, if there is no other obstacle in the way, grant the Writ Petitioner relief of refund of these sums.
26. The only other obstacle, which requires some observation, is that of passage of time. If a suit had been filed within three years, say, in 1981, the moneys could be had by way of return, by way of a decree in the suit, because the same had been paid and accepted under a common mistake.
27. Had the petitioner moved the Writ Court in the first instance without going before the Department at all, the question of delay would not have arisen. Normally, a Writ is to be treated as barred after three years. If the petitioner has waited for so long without approaching the Writ Court, what does justice call for to be done in the instant case? I find here a Writ Petitioner who is not vociferous about its legal rights; it has quietly made payments in the first place and has thereafter meekly approached the Department for relief, which the Writ Petitioner has been refused in accordance with the law to be applied by the Department.
28. No person approaches the wrong forum, unless he is wrongly advised. If such a wrong forum is approached bona fide and litigation is pressed there, the Limitation Act permits relief to be granted in cases like ordinary suits. The Writ Court need not look for an authority like the Limitation Act to condone the delay, for it has sufficient direct Constitutional powers vested in itself to grant such condonation upon judicial principles and judicial discretion, both soundly exercised.
29. I find the Writ Petitioner to have proceeded wrongly before the Department and to have consumed a lot of time there in pursuing its infruc-tuous remedy. No mala fides of its is, however, apparent. It is only when the petitioner failed in the Tribunal in 1990 that it immediately approached the Writ Court in that year itself. To find in these facts any laches or negligence on the part of the Writ Petitioner, is not possible. To deny the petitioner relief, would be to deny it relief, because it has not had the most perfect legal advice from the beginning. No Court, functioning as Writ Court, denies citizens relief for such a technical reason as that. Although the petitioner has not joined its share-holders and Directors, who are citizens of India as petitioners in the Writ, yet it is those citizens who are affected by the disposal of the Writ and I cannot overlook their presence beyond the veil of the corporate Writ Petitioner.
30. The last question is about grant of interest upon the sums which, in my opinion, should be ordered for return. The respondents were free to make a return in their administration of the Central Government, if they so chose as soon as the 21-3-1983 communications were made. I am aware that this is asking for a little too much, considering the present day circumstances, but to mould the reliefs, I have to look beyond the practice of parties, and must consider what should have been done in accordance with law. It was not necessary for the Union of India to await the refund orders from the Department, in case they were of the opinion that the moneys paid by the petitioner were paid and accepted without any just, reasonable or legal cause.
31. The respondents have also had the benefit of the money for all these years. If it were a case of a duty refund, the question of unjust enrichment might have arisen, but even in such circumstances, the Legislature has thought it fit to take away from the general funds of the Union any moneys collected without authority therefor and place it in a separate fund. Accordingly, if I decide to take away from the respondents the benefit of the two sums mentioned above there is no reason why I should not take away from them also the benefit of having enjoyed and used those two sums for all the past years.
32. There shall accordingly be Rules absolute in terms of prayer (c) of both the writ petitions (CO. 6151 (W) of 1990 and CO. 7043 (W) of 1990) and the said refunds shall be made by the respondents to the Writ Petitioner with interest on the said principal sums at the rate of six per cent per annum from 13th April 1981 until payment. Payment of principal and interest shall be cleared at the latest within sixteen weeks from date hereof. Parties and all others concerned will act first upon a xerox copy of this order and thereafter upon Rules absolute to be drawn up in Mandamus form.
33. Let appropriate writs be drawn up accordingly.
34. Stay of operation of this order is prayed for, but the same is refused.
35. Let xerox copy of this order be given to the learned Advocates for the parties on usual terms.