Judgment:
ORDER
Lentin, J.
1. The appellant seek condonation of a delay of 28 days in filling the appeal.
2. The proper cases we have in past condoned such delays. However we do not think this is a proper case where we should think do so.
3. The affidavit-in-support of motion is one of those mass produced affidavits containing blanks which are routinely filled in ink as the occasion arises. What is worse, in the present affidavit one blank has not even been filed in. Preparing stereotyped affidavits and filling blanks is a practice we have in the past repeatedly deprecated, but alas, in vain.
4. Even we merits, this affidavit conceals more than it reveals. One department passing on the blame to another department is no ground for the condonation.
5. Mr. Rele however seeks to explain away the delay on the ground of 'inter department steps'. However Mr. Rele, with his habitual fairness is not in a position to enlighten us about the blithe and delightfully vague reason advanced by him across the Bar, despite the presence of a high ranking and responsible officer instructing him in Court. We can only conclude that if what Mr. Rele says is correct, perhaps the department is working on Parkinson's principle. Even that would be no ground for the condonation of delay.
6. In this case, even if the delay was condoned, no useful purpose would be served. In order to satisfy ourselves that no injustice would be done the appellants by our refusing to condone this delay, we also examined the appeal on merits which we had ordered to be placed before us for admission along with the motion today. And we heard the arguments of Mr. Rele and Mr. Hidayatulla on the merits of the appeal itself. There are none.
7. The respondents are the partnership firm falling within the Small Scale industry. They manufacture hearing aids. By a notification dated 1st March 1975 as amended by notification dated 28th August, 1976, the Central Government totally exempted from duty certain article specified in the Schedule. One of the them was 'Artificial limbs and rehabilitation aids for the handicapped'.
8. The following year, in 1977 the respondents commenced manufacturing hearing aids, and in ignorance of the exemption notification, paid excise duty thereon. When they came to know of their mistake in 1980, they applied for and were granted a refund of duty for the period 1-2-1980/31-7-1980 by the Department.
9. Thereafter on 21st April, 1981 the respondents applied for refund of duty paid for the period 2-8-1977/30-1-1980. This application was rejected on 24th November, 1981 as being time barred. This rejection was challenged by the respondents in a writ petition in this court. That writ petition was allowed by the learned single judge by a reasoned judgment. Hence the present appeal of which the appellants desire admission, subject to the condonation of delay which is the subject-matter of the appellants' notice of motion.
10. On the merits of the appeal, the appellants learned Counsel Mr. Rele suggests that it was for the respondents to establish that the hearing aids manufactured by them fall within 'rehabilitation aids for the handicapped' as provided in the Schedule to the exemption notification. With deep respect to learned counsel this piquant suggestion does not cater to the fact that deafness is indeed a physical handicap (though perhaps these days a blessing in disguise) and even Mr. Rele was unable, and rightly so, to explain how an aid intended for improved hearing cannot be said to be but a rehabilitation aid for the handicapped.
11. Mr. Rele now changes tracks. He says the refund application should have been made within 6 months from the date of the knowledge of the exemption notification. This contention has been correctly repulsed by the learned single judge in para 7 of his judgment. We add a rider.
12. It is now well established by several decisions of this court and the Supreme Court that where duty has been collected without authority of law, it must be refunded. In the present case, indisputably duty was collected unjustly, without authority of law and worse still, in the teeth of the exemption notification. The writ petition was filed within 3 years from the date of the discovery by the respondents of their mistake in paying such duty. The learned single judge was correct in ordering its refund.
13. Mr. Rele queries : Why did the respondents pay the duty Answer : Because they were not aware of the exemption notification. It is reasonable to assume that no same person would go out of his way and voluntarily pay duty if he was aware that he need not. Mr. Rele's query must give rise to another query : Pray, why did the department collect duty without authority of law and in the teeth of the exemption notification. Surely department was aware of the exemption notification, and if not, was expected to be. The collection of this duty was manifestly illegal and without authority of law and must be refunded in a matter such as this.
14. Mr. Rele now takes refuge under the bogey of unjust enrichment on the ground that the burden has already been passed on to the consumer. None of this can be of assistance to the appellants. If this had been a case in reverse, and had the respondents been called upon to pay additional duty, could they have recovered it from their consumers after the sales were made Even Mr. Rele had to answer in the negative. Hence the dice must lie where they fall.
15. Thus even on merits there is nothing to commend this appeal. Hence no injustice will be caused if the delay in filing the appeal is not condoned.
16. In the circumstances, the appellants' motion for condonation is dismissed with costs.