JUDGMENT S.C. Mathur, J.
1. These petitions involve interpretation of certain notifications issued by the Central Government in exercise of the powers conferred under Rule 8(1) of the Central Excise Rules, 1944 framed Under Section 37 of the Central Excises and Salt Act, 1944 (Act No. 1 of 1944).
The petitions raise the following questions :-
1. Whether this Court should refuse relief to the petitioner on the ground of laches ;
2. Whether the appellate and revisional orders passed against the petitioner are legally correct;
3. Whether the basis of the order dated 12-10-1971 (Annexure No. 8 to writ petition No. 828 of 1975) is correct;
4. If the above orders are legally correct should this Court grant relief to the petitioner if it finds that duty was realised at incorrect rate and the realisation was illegal ; and
5. Whether unbleached paper which in common parlance is called 'Badami' paper is coloured paper so as to fall within the purview of the excepting clause of notifications numbered 209/67 and 210/67 dated 8-9-1967 and notifications numbered 22/68 and 23/68 dated 1-3-1968.
2. The above questions have arisen in the circumstances hereinafter indicated. Parties in both the petitions are common with the only difference that in writ petition No. 825 of 1975 the Collector of Central Excise, Allahabad, who has not been impleaded in writ petition No. 828 of 1975, has also been impleaded as opposite party No. 4.
3. The facts of writ petition No. 825 of 1975 are thus: petitioner is a limited company registered under the Companies Act of 1956. It carries on the business of manufacturing paper. Between 8-9-1967 and 20-12-1967 it cleared Badami paper after payment of excise duty relating to coloured paper; in this manner the petitioner paid Rs. 64,421.15 as stamp duty; according to the petitioner it was liable to pay the excise duty at concessional rate prescribed under Notification, No- 208/67 dated 8-9-1967; if excise duty was calculated at concessional rate the amount of duty came to Rs. 45,094.70; thus, the Excise Department realised from the petitioner Rs. 19,326.40 in excess of the duty actually payable, on 19-2-1968 the petitioner wrote to the Resident Inspector, Central Excise, claiming refund of the excess amount of excise duty; on 12-6-1968 the petitioner wrote a similar letter to the Assistant Collector; on 19-6-1968 the Assistant Collector wrote to the petitioner accepting his contention. On the strength of the letter of the Assistant Collector the petitioner submitted a claim for refund to the Resident Inspector on 27-9-1968; the refund claim of the petitioner was returned to him by the Resident Inspector on 3-10-1968 for removing certain defects pointed out by him; on 14-10-1968 the petitioner re-submitted his claim papers after removing the defects; on 8-1-1968 (1969) the Resident Inspector again returned the claim papers requiring the petitioner to remove the defects pointed out by the Assistant Collector; the petitioner explained the position through his letter dated 22-1-1969; on 3-10-1969 the Assistant Collector informed the petitioner that its claim for refund was under scrutiny, on 28-7-1970 (Annexure 11) the Assistant Collector wrote to the petitioner informing him that the Accountant General, U.P. had opined that unbleached paper on account of its wearing a natural colour in contrast to commonly known printing and writing paper (viz. bleached variety) would be classifiable as coloured variety for the purposes of Notifications Nos. 209/67 and 210/67 dated 8-9-1967; the petitioner was informed that in view of the opinion expressed by the Accountant General its claim for refund could not be entertained; Support for the view expressed by the Accountant General was sought from notifications numbered 22/68 and 23/68 dated 1-3-1968 in spite of the Assistant Collector's letter dated 28-7-1970 the petitioner again wrote a letter to the Assistant Collector on 22-8-1970 pressing for refund of the excess amount of excise duty. Similar letter was sent by him on 21-9-1970 also; through his letter dated 23-12-1970 the Assistant Collector informed the petitioner that in view of the notifications quoted in his letter dated 28-7-1970 the petitioner's claim for refund was not admissible; on 26-4-1971 the petitioner wrote to the Collector Central Excise, requesting him to look into his claim for refund; on 13-9-1971; the petitioner sent a reminder to the Collector giving grounds in justification of his claim for refund; in this reminder the petitioner's letter dated 26-4-1971 was described as an appeal. Through his reply (Annexure 17) the Collector informed the petitioner that his appeal was being forwarded to the Appellate Collector, Central Excise, New Delhi who was the authority competent to decide the appeal; by order dated 29-1-1973 (Annexure 18) the Appellate Collector dismissed the appeal as time-barred; thereafter on 1-5-1973 the petitioner preferred revision under Section 36 to the Central Government. This revision was dismissed by the Central Government by order dated 30-5-1974 (Annexure 20) observing that the Appellate Collector was right in holding that the appeal was barred by time. The petitioner then preferred the present writ petition in this Court on 21-3-1975, that is, after about more than nine months of the passing of the revisional order by the Central Government. From the facts hereinbefore narrated it would be seen that the petitioner's claim for refund was not examined on merits either by the appellate authority or by the revisionary authority. Occasion for examination of the case on merits did not arise before the appellate authority because it took the view that the appeal, having been preferred beyond the period of three months prescribed under Section 35 of the Act, was liable to be dismissed as time-barred. The Central Government confined itself to the legality of the order passed by the appellate authority.
4. The subject-matter of writ petition No. 8l8 of 1975 is the same, namely, "badami" paper. The period of clearjince is however different, The "Badami" paper in this case was cleared during the period 1-3-1968 to 18-9-1968. The excess amount of excise duty in this case came to Rs. 98,234.05. The claim for refund was lodged on 15-10-1970 by the petitioner with the Assistant Collector. The claim papers were returned to the petitioner on 5-12-1970 for lodging the same on the prescribed proforma. The petitioner complied with the requirement on 12-12-1970. The claim was rejected by the Assistant Collector by his order dated 12-10-1971 (Annexure 8) on the ground that the same had not been preferred within the period of three months prescribed under S.R.P. instructions. In other words, the basis for rejection was that it was barred by limitation. Against this order the petitioner preferred appeal before the Appellate Collector on 9-3-1972 which was rejected by order dated 29-5-1972 (Annexure 10). The appeal was rejected by the Appellate Collector on the ground that the same was preferred beyond the period of limitation which was three months. In view of the fact that the appeal was beyond limitation the Appellate Collector did not examine the petitioner's claim for refund on merits. Thereafter the petitioner was approached the Central Government on 27-6-1972 which rejected his revision on 20-5-1974 (Annexure 12). The only basis for rejection of the revision was that the appellate order did not suffer from any illegality. The petitioner thereafter preferred writ petition in this Court on 21-3-1975, that is, after more than nine months of the passing of the order by the Central Government.
5. It was urged on behalf of the petitioner by its learned Counsel that excise duty in case of 'Badami' paper in question was payable under Notification No. 208/67 dated 8-9-1967 and the said paper could not be treated as "coloured variety" referred to in notifications numbered 209/67 and 218/67 dated 8-9-1967 and concessional rate of duty could not be denied on that basis. It was further pleaded that opposite parties had no legal right to retain the money illegally realised from the petitioners. It was also argued that the petitioner had not preferred any appeal under Section 35 of the Act and the petitioner's representation was wrongly treated as an appeal. On this basis it was urged that since the petitioner did not prefer any appeal the period of limitation prescribed under Section 35 did not operate against it.
6. In writ petition No. 828 of 1975, the petitioner relied upon Notification No. 23 of 1968 dated 1-3-1968 and urged that excise duty was payable on the concessional rate prescribed in this notification.
7. On behalf of the opposite parties it was denied that excise duty was incorrectly charged from the petitioner. It was urged that "Badami" paper bore a colour and, therefore, it had to be treated as a coloured variety and, therefore, concessional excise duty prescribed in respect of other paper could not be applied in respect of "Badami" paper. It was also pleaded that the document which the petitioner now asserts as a representation was actually an appeal and was rightly treated as such. It was also asserted that the petitioner himself had treated the said document as an appeal and, therefore, the petitioner is not entitled to urge that the period of limitation prescribed under Section 35 did not start running against it. The opposite parties also urged that the petitioner was guilty of laches in approaching this Court and was, therefore, not entitled to relief.
8. From the above pleadings it would be seen that there is no dispute between the parties that if "Badami" paper is not treated as "coloured variety" the petitioner would be liable to pay excise duty only at the concessional rate and on that basis his assertion that it has paid excess amount would be correct. The quantum of excess amount alleged by the petitioner was also not disputed, if it was found that "Badami" paper did not belong to the "coloured variety".
9. Where the plea of laches is raised that should be decided first. The revisional order in writ petition No. 828 of 1975 was passed on 30-6-1974 on 1-6-1974 a copy of the order was endorsed to the petitioner. The copy of the revisional order received by the petitioner is Annexure 20 to the writ petition. It bears the seal of petitioner's office. The date on this seal is shown as 6-6-1974. This indicates that copy of the revisional order dated 30-5-1974 had been received by the petitioner by 6-6-1974. Thus, the petition which was filed in this Court on 21-3-1975 was filed after about more than nine months. Similarly, the revisional order in writ petition No. 828 of 1975 was passed on 20-5-1974. A copy of this order is Annexure 12 on record. This copy also bears the seal of the petitioner's office and the date 28-5-1974; thus, by 28-5-1974 the copy of the order dated 20-5-1974 had been received by the petitioner. Still writ petition in this Court was filed after about more than nine months of the communication of the revisional order. This Court treats a petition filed beyond ninty days of the communication of the order as a delayed one. When the petition was delayed, some explanation therefor was expected from the petitioner. No such explanation has been offered in either of the two writ petitions. The petitioner appears to be a habitual defaulter inasmuch as in writ petition No. 828 of 1975 even the application for refund was not moved within the period of three months prescribed under Rule 11. In this case the last date of the realisation of excise duty was 18-9-1968 while the petitioner preferred his claim for refund only on 15-10-1970. Under Rule 9 the excise duty is paid before the goods are removed. Under Rule 11 the claim for refund has to be lodged within three months from the date of payment or adjustment of the excise duty. Thus, the cause of action for preferring the claim under Rule 11 accrued to the petitioner on each of the dates on which he paid the duty and removed the goods. In writ petition No. 828 of 1975 the last date on which the goods were removed is 18-9-1968. Thus, the application for refund which under Rule 11 was required to be filed within three months, was actually filed by the petitioner after almost two years. The petitioner is obviously guilty of laches and the said laches not having been explained they cannot be overlooked or condoned.
10. Coming to the second question the petitioner's case is that he never preferred any appeal under Section 35 and what he had preferred was merely a representation and, therefore, the period of limitation prescribed under Section 35 never started running against it and consequently the appellate authority erred in rejecting the appeal as time-barred and the revisional authority committed manifest error in confirming such an erroneous order. If this contention of the petitioner is accepted, then the petitioner's writ petition instead of being delayed by nine months would be delayed by more than six years and there would be absolutely no justification for condoning the delay for such a long period. On facts, however, the contention of the petitioner is not sustainable. It is true that in Annexure 15 (Writ petition No. 825 of 1975) the word 'appeal' has not been used but this word has been used in the reminder dated 13-9-71 (Annexure 16). Thereafter in his reply to the petitioner the Collector treated Annexure No. 15 as an appeal and informed the petitioner that the same had been forwarded to the appellate authority. On receipt of this reply to the Collector the petitioner did not protest that Annexure 15 was not his memorandum of appeal and therefore, there was no question of forwarding the same to the appellate authority. It was only after the rejection of Annexure 15 by the Appellate Collector as time-barred that the petitioner started saying that Annexure 15 was not memorandum of appeal.
11. In writ petition No. 828 of 1975 the petitioner himself used the word "appeal" in Annexure 9. It was addressed also to the Appellate Collector. In the memorandum of revision (Annexure 11) it was asserted that Annexure 9 was not memorandum of appeal and was wrongly treated as such. In the memorandum of revision it was further asserted that the appeal was within time and it was wrongly held to be barred by limitation. From the facts hereinbefore stated it is obvious that the petitioner invoked the appellate jurisdiction of the Appellate Collector under Section 35 of the Act Section 35 of the Act prescribes as follows :
"Section 35. Appeals.-Any person deeming himself aggrieved by any decision or order passed by a Central Excise Officer under ths Act or the rules made thereunder may, within three months from the date of such decision or order, appeal therefrom to the Central Board of Revenue, or, in such cases as the Central Government directs, to any Central Excise Officer not inferior in rank to an Assistant Collector of Central Excise and empowered in that behalf by Central Government. Such authority or officer may thereupon make such further inquiry and pass such order as he thinks fit, confirming, altering, or annulling the decision or order appealed against :
Provided that no such order in appeal shall have the effect of subjecting any person to any greater confiscation or penalty than has been adjudged against him in the original decision or order.
(2) Every order passed in appeal under this section shall, subject to the power of the revision conferred by Section 36 be final.
12. Under the above provision the period of limitation prescribed for preferring appeal is three months. The period of three months is to be computed from the date of decision or order appealed against. In writ petition No. 825 the petitioner's claim for refund was rejected by order dated 28-7-70. The petitioner thereafter preferred Annexure 15 to the Collector on 26-4-1971. This was much after the period of three months prescribed under Section 35. In writ petition No. 828 of 1975 the Assistant Collector rejected the petitioner's claim for refund on 12-10-1971. The order was received by the petitioner on 26-10-1971 and he preferred appeal before the Appellate Collector on 29-5-1972. This appeal was also beyond the period of three months prescribed under Section 35. The Appellate Collector, therefore, was legally correct in holding the petitioner's appeals in both the cases as barred by limitation. The revisional authority merely endorsed the view taken by the Appellate Collector. Since the order of the Appellate Collector is not legally incorrect the order of the revisional authority, namely, the Central Government also cannot be said to suffer from any legal error. As such, it has to be held that the appellate and the revisional orders passed in the two writ petitions were legally correct.
13. The third question arises only in writ petition No. 828 of 1975 inasmuch as in this case the original claim for refund was also not preferred within the time prescribed by law. Rule 11 provides as follows :-
"11. No refund of duties or charges erroneously paid, unless claimed within three months.-No duties or charges which have been paid or have adjusted in an account-current maintained with the Collector under Rule 9 and of which repayment wholly or in part is claimed in consequence of the same having been paid through inadvertence, error or misconstruction, shall be refunded unless the claimant makes an application for such refund under his signature and lodges it with the proper officer within three months from the date of such payment or adjustment, as the case may be."
14. The above rule provides that an application for refund has to be made within three months from the date of payment or adjustment. The last date of payment of excise duty in writ petition No. 828 of 1975 is 18-9-1968. The period of three months computed from 18-9-1968 expired on or about 18-12-1968. The claim for refund was, however, preferred only on 15-10-1970. The claim was, therefore, beyond time more than l1/2 years. The Assistant Collector was, therefore, right in observing in his order dated 12-10-1971 that the claim of the petitioner was beyond time and had to be rejected on that ground. The order dated 12-10-1971 is in accordance with the provisions of Rule 11 and does not suffer from any legal error.
15. The fourth question that requires consideration is whether this Court should grant relief to the petitioner if it finds that excise duty has been realised at an incorrect rate and the realisation is, therefore, illegal. The Central Excises and Salt Act, 1944 and the rules framed thereunder create hierarchy of authorities for granting relief to the aggrieved person. If excise duty has been wrongly realised application for refund can be maintained under Rule 11. If the application for refund is illegally rejected there is provision for appeal under Section 35. Thereafter revision is provided for to the Central Government under Section 36. The petitioner did not avail of the remedies provided under the Act and the rules in the manner provided thereunder. If the amount of duty had been illegally realised the petitioner could under the ordinary law, file suit for recovery of the illegally realised amount only within three years from the date of the accrual of the cause of action. In view of fact that under Rule 9 excise duty is realised before the goods are removed, cause of action accrued on each day the goods were removed. In writ petition No. 825 of 1975 the last date of removal of goods is 20-12-1967 and in writ petition No. 828 of 1975 the last date is 18-9-1968. The period of three years computed from these last dates expired some time in September 1971. The writ petitions in this Court were filed only in the year 1975. Thus, if the petitioner instead of approaching this Court under Article 226 had approached the regular Civil Court his suit would have been thrown out on the plea of limitation. In our opinion it would not be a fair exercise of discretion to grant relief under Article 226 when the relief even under the ordinary law has become barred by limitation.
16. In view of the above findings it was not necessary to record finding on the last question. However, the learned counsel for the petitioner prayed that a finding may be recorded on this question also so that if their Lordships of the Supreme Court, in the event of appeal being preferred, took a different view, the matter may not be delayed by an order of remand. In deference to the learned counsel for the petitioner we proceed to record our finding on this question also.
17. Section 3 provides for the levy and collection of excise duty. It lays down that excise duty shall be levied and collected in such manner as may be prescribed. The manner of levy and collection of the excise duty has been prescribed under the rules. The goods on which excise duty may be levied and the rates of such duty have been specified in the First Schedule to the Act. Rule 8 reserves power to the Central Government to exempt by notification any excisable goods from whole or part of the duty leviable on such goods. Rule 9 provides for payment of excise duty before the removal of goods. Rule 11 provides for refund of the duty. In exercise of the power conferred under Rule 8 the Central Government issued three notifications on 8-9-1967. All these three notifications relate to paper of one variety or the other. These notifications are as follows :-
"Notification No. 208/67-C.E. The effective rates of excise duty on paper, all sorts excluding strawboard, millboard, newsprint, cigarette tissue paper, tissue other than cigarette tissue paper, glassine paper, and grease-proof paper, are reduced by 75% in respect of the first 1,000 metric tonnes cleared by any manufacturer during any financial year, subject to the following conditions, namely :-
(a) the factory producing such paper is not equipped with a plaint attached thereto for making bamboo pulp ; and
(b) the manufacturer does not avail of any of the concessions prescribed under columns 4, 5(a) or 5(c) of the Table under Notification No. 163/65-C.E., dated the 1st October, 1965. The manufacturer should be asked immediately to obtain in writing for availing the existing concessions or the new concession. Such option once made will be final and shall not be allowed to be changed during that year.
Notification No. 209/67, dated 8-9-1967-
"In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby makes the following further amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 163/65-Central Excise, dated the 1st October, 1965, namely :-
In the said notification, in column 2 of the Table, for the words and figures "of a substance not exceeding 75 grammes per square metre" against Item (b) of Serial No. 1, the following shall be substituted, namely : -
'other than coloured varieties thereof, of a substance not exceeding 75 grammes per square metre. Notification No. 210/67, dated 8-9 1967.
"In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby makes the following further amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 24/65-Central Excise, dated the 28th February, 1965, namely :-
In the said notification, in the Table for the existing entry in column 3 against Serial No. 7, the following shall be substituted, namely :-
"Printing and writing paper (other than coloured varieties thereof) not actually used in publication of a daily newspaper referred to in Serial No. 6, of a substance not exceeding 75 grammes per square metre.
Since the excise duty which is the subject-matter of writ petition No. 825 of 1975 was realised from the petitioner between 8-9-1967 and 20-12-1967 the same will be governed by the above notifications. In view of the exception made in notifications numbered 209/67 and 210/67 with regard to 'coloured varieties' the concessional rate of excise duty will not be applicable if 'Badami' paper in question can be said to belong to the 'coloured variety'.
On 1-3-1968 fresh notifications were issued under Rule 8(1). These are as follows:-
"In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby makes the following further amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 24/65-Central Excise, dated the 28th February, 1965, namely :-
In the said notification, in the Table, for the existing entry in column (3) against Serial No. 7 the following entry shall be substituted, namely :-
"Printing and writing paper (including all unbleached and tinted varieties thereof but not including other coloured varieties) not actually used in publication of a daily newspaper referred to in Serial No. 6 of a substance not exceeding 75 grammes per square metre."
[M.F. (D.R. and I.) Notification No. 22/68-C.E., dated 1-3-1968] "In exercise of the powers conferred by Sub-rule (1) of Rule 8 of the Central Excise Rules, 1944, the Central Government hereby makes the following further amendment in the notification of the Government of India in the Ministry of Finance (Department of Revenue) No. 163/65-Central Excise, dated the 1st October, 1965, namely :-
In the said notification, in column 2 of the Table for the words and figures "other than coloured varieties thereof, of a substance not exceeding 75 grammes per square metre" against Item (b) of Serial No. 1, the following shall be substituted, namely :-
"Including all unbleached and tinted varieties thereof but not including other coloured varieties and of a substance not exceeding 75 grammes per square metre."
18. The above notifications have the effect of replacing the words 'coloured varieties' by the words 'including all unbleached and tinted varieties thereof but not including other coloured varieties'. The consequence of this replacement is that it is made clear that the term 'coloured varieties' is not applicable to unbleached paper although it bears tint or colour. These notifications will be applicable to the excise duty which is the subject-matter of writ petition No. 828 of 1975 as the duty in this case was paid between the period 1-3-1968 to 18-9-1968, that is after the enforcement of these notifications. It is clear that the concessional rate would be applicable to 'Badami' paper if the same can be said not to fall in the category of 'coloured varieties'. If the said paper can be said to fall within the mischief of the term "other coloured varieties" concession in rate of duty will not be applicable. This brings us to the question when a paper becomes a coloured paper. Involved in this is the question how paper is manufactured. The process has been described in Encyclopaedia Britan-nica 1968, Vol. 17 at pages 281 to 284. It is observed in this book thus : "All natural fibrous materials and unbleached pulp contain impurities that impart colour and make them unsuitable for the manufacture of white papers. In bleaching these fibres, the two basic objectives are : (1) removal of the colouring materials by converting them to soluble compound ; and (2) changing the residual coloured matter to a colourless form that possesses stability to light and heat." Then at page 284 it is observed that pigments and dyes are added to give colour. From this it is obvious that coloured variety of paper is that paper which has undergone the process of bleaching and pigmentation while "unbleached aid tinted variety" is that paper which has not undergone bleaching and bears its natural colour viz. "Badami" (brownish). This position applies also to the Notifications Nos. 209/67 and 210/67. The term "coloured varieties" in notifications numbered 209/67 and 210/67 also refers to paper which has undergone bleaching and pigmentation. "Badami" paper which has not undergone the process of bleaching and pigmentation and bears only its natural colour cannot be considered "coloured variety". The notifications dated 1-3-1968 appear to have been issued by way of abundant caution for removing ambiguity and making the position explicit. The view of the Accountant General, on the basis of which refund was refused, that these notifications showed that the meaning of the earlier notifications dated 8-9-1967 was different is not correct. As such the petitioner was liable to pay excise duty only at the concessional rate and not on the basis that "Badami" paper was coloured paper. It is, therefore, obvious that the petitioner has been overcharged in respect of the excise duty. In spite of this finding the petitioner cannot be granted any relief in view of the findings recorded on the other questions.
19. In view of the above, the writ petitions are dismissed but there shall be no order as to costs. Stay order, if any, shall stand discharged.
20. The learned counsel for the petitioner had made an oral prayer for granting certificate of fitness under Article 133 of the Constitution. In our opinion, the case doss not involve substantial question of law of general importance which needs to be decided by their Lordships of the Supreme Court. The certificate prayed for is, therefore, refused.