M.L. Pendse, J.
1. By this petition filed under Article 226 of the Constitution of India, the petitioners are seeking a writ of mandamus against the respondents claiming refund of a sum of Rs. 3,72,863.04 with interest thereon from the date of the petition till payment.
2. A few facts which have given rise to this litigation are as follows:-The petitioners are a Company registered under the Companies Act and carry on business as manufacturers of power cables and A.C.S.R. Conductors at Rajpura, Punjab. The petitioners, during the year 1962 to 1965 imported E.C. Grade Electrolytic Aluminium Rods other than extruded, through the Port of Bombay. The petitioners filed Bills of Entry for consumption and the Customs authorities levied and charged additional duty known as countervailing duty in respect of the goods imported by the petitioners. The total amount of countervailing duty in respect of the goods camp, to Rs. 3,72,863.04.
3. The petitioners claimed that the High Court of Gujarat by its decision dated March 17/18, 1972 given in the case of Prem Conductors (P) Ltd. v. Assistant Collector of Customs has held that in respect of Electrolytic Aluminium Rods other than extruded, no excise duty was payable under the Central Excise Tariff and countervailing duty could not be recovered. The petitioners claimed that for the first time they came to learn from the decision of the Gujarat High Court that in respect of the goods imported by the petitioners, no countervailing duty was payable and the payment made by them under bona fide belief was under a mistake of law. The petitioners claimed that for the first time by the Finance Act, 1969, excise duty was levied on the goods of the nature imported by the petitioners between the years 1962 till 1965 and so obviously the recovery of the countervailing duty by the respondents was illegal and invalid.
4. The petitioners claimed that on April 6, 1972, they requested the respondents to grant refund of the countervailing duty paid under mistake of law but the petitioners were advised to file formal applications. The petitioners filed 13 applications on October 11,1974 but by an order dated November 28,1974, the Assistant Collector of Customs, Refund Department, Bombay, rejected 7 applications holding that the applications for refund were clearly time-barred under Section 27(1) of the Customs Act, 1962. The petitioners have, thereafter, preferred this petition on December 18, 1974 claiming refund of countervailing duty.
5. On behalf of the respondents, Vasant Sitaram Raje, Assistant Collector of Customs, has filed a return sworn on January 11, 1979. The respondents contend that the decision of the Gujarat High Court was not correct and the respondents have carried Civil Appeals No. 112 to 114 of 1973 to the Supreme Court and the appeals are still pending before the Supreme Court. The respondents also claimed that the claim made by the petitioners by the petition under Article 226 of the Constitution of India should not be entertained as it involves disputed questions of facts. The respondents claimed that the allegations of the petitioners that they became aware of the mistake of law only on March 17, 1972 when the Gujarat High Court delivered the judgment is not correct. The respondents pointed out that on October 15, 1967, a public notice bearing No. 170/37 was published whereby it was announced that the Central Board of Excise and Customs has decided that E.C. Grade Aluminium Wire Rods other than extruded are not covered by any of the items in the Central Excise Tariff and accordingly they are not liable to countervailing duty. The respondents claimed that the petitioners were aware of this public notice and, in any event, with reasonable diligence they could have ascertained the correct position in the year 1967. The respondents further claimed that the present petition filed more than 3 years after the public notice should not be entertained and the petitioners should be asked to institute a suit in the Civil Court to establish their claim.
6. In view of these rival contentions, the question which falls for determination is whether this petition under Article 226 of the Constitution of India should be entertained and a writ of mandamus be issued when the petitioners are claiming refund in the year 1974 for the duty paid between the years 1962 and 1965.
7. Mr Joshi, the learned Counsel appearing in support of the petition, contended that the petitioners were not, at all, aware of the public notice which appears to have been published at Madras and the petitioners became aware of payment under mistake of law only after the Gujarat High Court delivered the judgment on March 17, 1972. Mr Joshi submits that the present petition is filed within a period of three years from the date of the decision of the Gujarat High Court.
8. Mr. Dalai, the learned Counsel appearing on behalf of the respondents, on the other hand contended that the public notice was issued on October 15, 1967 and the procedure adopted by the respondents is to put the public notice on the notice board at various Customs Houses in the country and it is futile to suggest that public notice was published only at Madras. Mr. Dalai also submitted that the countervailing duty was levied for the first time by Finance Act, 1969 and even assuming that the petitioners were not aware of the public notice, then in 1969 they should have realised that the payments made by them between the years 1962 and 1965 were under mistake of law. Mr. Dalai also contended that under Section 17 of the Limitation Act, 1963, the period of limitation would commence to run for the suit or the application where the relief is claimed from the consequences of a mistake from the date of knowledge of the mistake but if such knowledge could have been gathered with reasonable diligence, then the period of limitation cannot be postponed till the date when a party claims that it got the knowledge. From the contentions made by the learned Counsel, it is clear mat the question as to whether the petitioners had the knowledge of public notice or whether the petitioners could have, with reasonable diligence, acquired the knowledge, are debated questions of facts and raise triable issues. Mr. Dalai is right in his submission that under these circumstances, it would not be proper to entertain this petition but the proper course would be to ask the petitioners to file a suit in a Civil Court. In my judgment, the submission is sound.
9. Mr. Dalai, in this connection, invited my attention to certain decisions of the Supreme Court. The first decision relied upon is in the case of State of Madhya Pradesh and another v. Bhailal Bhai and Ors. reported in : [1964]6SCR261 . The learned Counsel strongly relied on the contents of paragraphs 17 and 21 of the judgment. The Supreme Court observed in paragraph 17 as under
At the same time we cannot lose sight of the fact that the special remedy provided in Article 226 is not intended to supersede completely the modes of obtaining relief by an action in a civil court or to deny defences legitimately open in such actions It has been made clear more than once that the power to give relief under Article 226 is a discretionary power. This is specially true in the case of power to issue writs in the nature of mandamus. Among the several matters which the High Courts rightly take into consideration in the exercise of that discretion is the delay made by the aggrieved party in seeking this special remedy and what excuse there is for it. Another is the nature of controversy of facts and law that may have to be decided as regards the availability of consequential relief. Thus, where, as in these cases, a person comes to the Court for relief under Article 226 on the allegation that he has been assessed to tax under a void legislation and having paid it under a mistake is entitled to get it back, the court, if it finds that the assessment was void, being made under a void provision of law, and the payment was made by mistake, is still not bound to exercise its discretion directing repayment. Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances. It is not easy nor is it desirable to lay down any rule for universal application. It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the Court should ordinarily refuse to issue writ of mandamus for such payment. In both these kinds of cases it will be sound use of discretion to leave the party to seek his remedy by the ordinary mode of action in a civil court and to refuse to exercise in his favour the extraordinary remedy under Article 226 of the Constitution.
The Supreme Court while considering the claims of several claimants found that in certain appeals the claims were made after about three years and eight months from the date of the High Court judgment holding the tax provisions to be void. The Supreme Court considered whether such claims could have been granted in a writ petition filed under Article 226 of the Constitution and observed in paragraph 21 as follows:
It appears to us however that the maximum period fixed by the legislature as the time within which the relief by a suit in a civil court must be brought may ordinarily be taken to be a reasonable standard by which delay in seeking remedy under Article 226 can be measured. This Court may consider the delay unreasonable even if it is less than the period of limitation prescribed for a civil action for the remedy but where the delay is more than this period, it will almost always be proper for the Court to hold that it is unreasonable. The period of limitation prescribed for recovery of money paid by mistake under the Limitation Act is three years from the date when the mistake is known. If the mistake was known in these cases on or shortly after January 17, 1956 the delay in making these applications should be' considered unreasonable. If, on the other hand, as Mr. Andley seems to argue, that the mistake discovered much later this would be a controversial fact which cannot conveniently be decided in writ proceedings. In either view of the matter we are of opinion that the orders for refund made by the High Court in these seven cases cannot be sustained.
This decision undoubtedly lays down that where the claim is made after three years in a writ petition, then the Court should not entertain such a claim. This decision of the Supreme Court was subsequently followed by the Supreme Court in the case of m/s. D. Cawasji and Co. etc., etc. v. State of Mysore and another reported in : 1978(2)ELT154(SC) . The Supreme Court in this decision not only approved the dictum laid down in the earlier judgment but observed that it would be inexpedient and unjust for the State if the claims of refunds are permitted to be filed after a period of several years from the date of the payment. The next decision relied upon by Mr. Dalai is in the case of Dhanyalakshmi Rice Mills etc. v. The Commissioner of Civil Supplies and another reported in : [1976]3SCR387 . The Supreme Court observed that the petitions solely for the writ of mandamus directing the State to refund the moneys have been rightly refused by the High Court on the grounds of delay, insufficiency of particulars and pleadings, and voluntary payments. The Supreme Court further observed that the additional reasons are that various questions of fact arise as to whether there was really mistake or it was a case of voluntary payment pursuant to contractual rights and obligations. The further observations in paragraph 30 of the judgment are required to be quoted:
The plea of mistake is a bare averment in the writ petition. The payments did not disclose the circumstances under which the alleged mistake occurred and the circumstances in which the legal position became known to the appellants. The respondents contradicted the plea of mistake. A triable issue arose as to whether there was a mistake in paying the amounts and when exactly the mistake occurred and under what circumstances.
From these decisions, it is obvious that the petitions for a writ of mandamus for refund of duty paid under mistake of law could not be entertained after a period of three years from the date of knowledge of such mistake. It is also equally clear that the question as to when the petitioners had knowledge of the mistake is a triable issue in view of the return filed by the respondents and such triable issues cannot be and should not be determined in exercise of writ jurisdiction.
10. Mr. Joshi, the learned Counsel appearing in support of the petition, contended that the stand taken by the respondents on the ground of limitation is unjust and I should not permit them to raise this contention. Mr. Joshi relied upon certain observations of the Supreme Court in the case of the Madras Port Trust v. Hymanshu International by its Proprietor V. Venkatadri (dead) by L. Rs. reported in : 1979(4)ELT396(SC) to the effect that the Government or a public authority should not defeat the just claim of the citizen by raising a technical plea. It is undoubtedly true that the public authority should not be encouraged to raise such pleas but it cannot be ignored that if the plea is well-founded, it must be upheld by the Court. The Supreme Court has also approved this proposition. Mr. Dalai also relied upon certain observations to the same effect in the decision of this Court reported in 1979 E L T (J275) (Sudarshan Chemicals Limited v. Union of India and Ors.) and especially the contents of paragraph 12. In my judgment, these observations, though weighty, would not enable me to entertain the present petition under Article 226 of the Constitution of India and grant relief to the petitioners.
11. Before concluding, it must be made clear that Mr. Dalai wanted to advance contention that the decision of the Gujarat High Court is not correct and levy of countervailing duty was just. I have not considered the merit of that plea as in my judgment, the petitioners are not entitled to relief in these proceedings and the proper remedy was to file suit in the regular Civil Court.
12. In this view of the matter, the petition must fail and the rule is discharged but in the circumstances of the case, there will be no order as to costs.