1. By this petition filed under Article 226 of the Constitution of India, the petitioners are challenging the legality of the order communicated to petitioner No. 2 by letter dated July 4, 1983, copy of which is annexed as Exhibit ''A'' to the petition, intimating that the claim for refund made on July 4, 1983 is time-barred and has been filed beyond a period of six months, and therefore, the refund claim from the year 1977 cannot be considered.
2. It is not necessary to set out the facts in detail save and except mentioning that petitioners 1 and 2 are sister concerns or related concerns as understood u/s 4 of the Excise Act. Petitioner No. 1 are manufacturers of cotton textiles and used to transfer it to petitioner No. 2 for the purpose of processing. Petitioner No. 2 used to sell the goods to the distributors. The petitioners filed price lists from time to time on the basis that the petitioners are related persons. After the Supreme Court delivered the judgment reported in 1983 ELT 1896, Union of India v. Bombay Tyres International Ltd. On October 7, 1983 the petitioners realised that excise duty was recovered by the Department illegally and thereupon filed the refund application which was turned down on the ground of delay.
3. Shri Bharucha, learned counsel appearing on behalf of the petitioners, submitted that the action of the Assistant Collector of Central Excise, Bombay Division IV is wholly incorrect in view of my decision reported in
4. Shri Rege urged that the decision recorded in Shalimar Textile''s case is not a good law as the decision of Division Bench in Miscellaneous Petition No. 326 of 1972 delivered on June 25, 1982 was not cited. Shri Rege submitted that the Division Bench had held that the refund could be made only in respect of recovery for a period of three years prior to the filing of the petition. The submission of Shri Rege is that in view of the Division Bench decision, Shalimar Textile''s case is not correctly decided. It is impossible to accede to the submission of the learned counsel. In Shalimar Textile''s case I have relied upon the decision of the Supreme Court reported in 1978 ELT (J154), D. Cawasji & Co. v. State of Mysore and also on the Division Bench decision of this Court in 1981 ELT 468, Maharashtra Vegetable Products Pvt. Ltd. & Anr. v. Union of India & Ors. and 1981 ELT 531, Wipro Products Ltd. and Anr. v. Union of India & Anr. In these circumstances, even though the Department did not think it wise to cite the decision on which Shri Rege now wants to place reliance, it would not make any change in the ratio laid down in Shalimar Textile''s case.
5. Shri Rege also urged that grant of refund to the petitioners would amount to unjust enrichment. This contention is raised again and again in several matters probably with a view file appeals after appeals, and even though several Division Benches of this Court have turned down the said plea. In fact the Division Bench decision on which Shri Rege relied has also turned down the identical plea. Shri Rege made a desperate attempt to rely upon the decision of the Supreme Court reported in
6. Accordingly, petition succeeds and the order passed by the Asstt. Collector of Central Excise, Bombay Division IV and communicated to the petitioners by letter dated July 4, 1983, copy of which is annexed as Exhibit ''A'' to petition, is set aside and the proceedings are remitted back to the Assistant Collector for ascertaining the amount of refund and passing appropriate order and to refund the amount within a period of three months from today. In the circumstances of the case there will be no order as to costs.
