JUDGMENT
P.C. Misra, J.
1. The petitioner, a Government Company registered under the provisions of the Indian Companies Act, 1956 has filed this writ application challenging the orders passed by the Central Excise Authorities rejecting its application for refund of excise duty on the ground that the application was barred by limitation.
2. It is alleged in the writ application that by notification No.93/67 dated 26.5.1967 the Central Government exempted the foot-wear falling under item No. 36 of the First Schedule to the Central Excise and Salt Act, 1944 produced in any factory including the precincts thereof wherein not more than 49 workers are working or were working on any day of the preceding twelve months or the total equivalent of power used in the process of manufacturing foot-wears does not exceed two horse power from the whole of the duty of excise leviable thereon. It has been alleged that the factory paid and the Excise Authorities collected excise duty under an erroneous impression that excise duty is payable by the petitioner-factory. The petitioner when realized that the excise duty for the period from 1.5.1968 to 31.3.1971 has been paid by mistake, made an application to the Collector, Central Excise on 22.12.1971 claiming refund of the amount so paid. The same prayer was reiterated on 5.7.1972 before the Superintendent, Central Excise styling the same as an application under Rule 11 read with Rule 173J of the Central Excise Rules, 1944. The Assistant Collector, who was the authority for considering the said application, held that the excise duty for the period from 1.5.1968 to 31.3.1971 was erroneously paid. He rejected the claim for refund of excise duty on the ground of limitation by his order dated 8.3.1973 (Vide Annexure-3). Before the Assistant Collector it was urged on behalf of the petitioner that limitation shall begin to run from the date on which the mistake could be discovered, after exercising reasonable diligence as provided under Section 17 of the Limitation Act, 1963. The Assistant Collector, however, did not accept the aforesaid submission and held that Rule 11 read with Rule 173J of the Central Excise Rules provides limitation for claiming refund of excise duty erroneously paid and, therefore, the provisions contained in the general law would not apply. The petitioner thereafter filed an appeal before the Appellate Collector of Central Excise (Appeal case No.89/00 of 1976). Before the appellate authority the refund application was confined to the period from 1.5.1969 to 31.3.1971 amounting to Rs. 68,618.37. The appellate authority held that the Act prohibits refund of excise duty unless the claim is lodged within the time limit specified in the Rules and none of the provisions of the Limitation Act would apply for extending the period of limitation. The appellate authority, however, directed the Collector to treat the letter dated 22.12.1971 submitted by the petitioner as an application for refund and further directed the Asst. Collector to decide the claim de novo on that basis. The petitioner preferred a revision before the Government of India challenging the appellate order of the Collector, Central Excise and the revisional authority in a cryptic order (vide Anncxure-5) also held that the application for refund is barred by limitation as none of the provisions of the Limitation Act, 1963 would apply to save the application being barred by limitation.
3. The petitioner in this writ application has prayed for quashing Annexures-3 to 5, mainly on the ground that the Limitation Act, 1963 by virtue of the provisions contained in the said Act itself would apply to the application made for refund of excise duty in spite of the specific period provided in the Central Excise Rules for the purposes.
4. There is no dispute that the Central Excise Rules provide a special limitation for making an application for refund of excise duty paid by mistake. It has also been held by the Assistant Collector, Central Excises in his order in Annexures-3 that the petitioner-factory fulfilled all the conditions entitling it to the exemption of duty provided in the Government notification (Annexures-2) and consequently the amount of duty paid erroneously during May, 1969 to March 1971 is refundable to the assessee. He, however, held that Rule 11 of the Central Excise Rule, 1944 provides a period of 3 months to be reckoned from the date of payment of excise duty for making the application for refund and the same having not been made within the prescribed period, the application would not be maintainable. As already stated, he did not accept the contention of the petitioner that limitation would begin to run from the date when the mistake was discovered after exercise of due diligence by applying the provisions of Section 17 of the Indian Limitation Act on the ground that Limitation Act, 1963 would have no application whatsoever for computation of the period of limitation for the reason that a specific period of limitation has been provided by the Central Excise Rules. The appellate authority and the revisional authority came to the same conclusion on the question of limitation as the point was specifically urged before them.
5. From the discussions made in the impugned orders of the aforesaid authorities. We find that the provision contained in Section 29 of the Limitation Act, 1963 has been completely lost sight of. In Sub-section (2), Section 29 of the Limitation Act, 1963 it has been provided that:
Where any special or local law prescribes for any suit, appeal or application a period of limitation different from the period prescribed by the Schedule, the provisions of Section 3 shall apply as if such period were the period prescribed by the schedule and for the purpose of determining any period of limitation prescribed for any suit, appeal or application by any special or local law, the provisions contained in Sections 4 to 24 (inclusive) shall apply only insofar as, and to the extent to which, they are not expressly excluded by such special or local law.
It means that where a special or local law prescribes a period of limitation different from the period prescribed by the Limitation Act, it is the provision in the special or local law that will prevail and not the provisions of the Limitation Act except to the extent specified in the Section, namely;
(i) that Section 3 shall apply as if the period prescribed by the special or local law were the period prescribed by the Schedule to the Act; and
(ii) that Sections 4 to 24 of the Limitation Act shall apply only insofar as and to the extent to which they are not expressly excluded by such special or local law.
Under the corresponding provisions of the Old Limitation Act of 1908 except Sections 3,4, 9 to 18, and 22 other sections did not apply to the period of limitation prescribed by special or local law, and even these Sections specified above applied only to the extent to which they were not excluded by such special or local law. The period of limitation prescribed in the Central Excise Rule providing limitation for filing refund application being different from the period prescribed under the Limitation Act, 1963, by virtue of the provisions Under Section 29(2) of the Act, it shall be deemed as if the period prescribed by the said Rules is the period prescribed by the Schedule to the Act and Sections 4 to 24 of the Limitation Act shall also apply as there is no provision in the Central Excise Rules expressly excluding their application. It, therefore, follows that provisions contained in Section 17 of the Limitation Act would be applicable for determining as to from which date the limitation will begin to run.
6. Learned Counsel appearing for the petitioner has also urged that there was sufficient cause for explaining the delay in making the application and the Central Excise Authorities could condone the delay, if any, by applying the provision of Section 5 of the Limitation Act. From the discussions made above, it also follows that Section 5 of the Limitation Act can be availed of for the purpose of condonation of delay as there is no prohibitition in the Central Excise Act or the Rules for its application. The petitioner, however, has not made specific application in that behalf for consideration by the authorities. His explanation was that the authorities in question are of the view that none of the provisions of the Limitation Act, 1963 would apply. He did not venture to file an application Under Section 5 of the Indian Limitation Act. He further prays for an opportunity to be given to him to file such an application for consideration by the authorities.
7. From the analysis of the law made above, the conclusion is irresistible that the Central Excise authorities have failed to exercise jurisdiction in considering the question of limitation by holding that the provision contained in Section 17 of the Limitation Act, 1963 has no application whatsoever. We have already indicated that all the provisions contained in Sections 4 to 24 of the Limitation Act shall apply to such an application and, therefore, the application for refund deserves to be considered afresh. As a result, we quash Annexures-3 to 5 and remit the matter to the Assistant Collector of Central Excise for disposing of the refund application afresh in accordance with law. We also permit the petitioner to file an application Under Section. 5 of the Limitation Act praying for condonation of delay, if any, which shall be considered on its own merits by the said authority.
8. The writ application is accordingly allowed. There would be no order as to costs.
S.C. Mohapatra, J.
9. I agree.