(1) The petitioner M/s. Delhi Bottling Company Pvt. Ltd. is engaged in the manufacture of non-alcoholic aerated waters of various types such as Thumps Lip, Limca, Gold Spot, Rim Zim, Bisleri Soda, etc. The above said Products are subject to excise duty under the relevant provisions of the Central Excise and Salt Act, 1944. The appropriate entry (item I-D) prior to 17th March 1972 was as follows :
'Aerated waters whether or not flavoured or sweetened and whether or not containing vegetable or fruit juice or Rate of duty 10 per cent fruit. ad valorem With effect from 17th March 1972 the rate of duty was raised from 10% ad valorem to 20% ad valorem. The same day the Union of India issued a notification exempting all types of aerated waters extert those in the manufacture of which 'be ended flavouring concentrates' in any form were used, from the excise duty in excess of 10% ad valorem as it orginally stood. The effect of the notification was that from 17th March 1972 aerated waters in the manufacture of which blended flavouring concentrates in any form were used were liable for excise duty at 20 per cent ad valorem while other aerated waters contmned to be liable for excise duty at 10 per cent ad valorem.
(2) The petitioner company for the years 1972 to 1976 paid excise duty 20 per cent ad valorem. The petitioner company sometime in 11978 filled an application claiming refund of Rs. 17,85,260.25 for the period from 19th May 1976 to 9th May 1977 on the ground that essences used in the manufacture of Rim Zim and Limca were not blended flavouring concentrates and thereforee, the duty chargeable was 10% ad valorem and the excess amount of duty charged be refunded. The Assistant Collector rejected the claim for refund holding that the, report of the Chemical Examiner showed that the blended flavouring concentrates has been used in the manufacture of Limca and Rim Zim. Against the said order the company filed an appeal. The Appellate Collector, Central Excise, New Delhi, by an order dated 13th November 1981 remanded the case to the Assistant Collector for de novo adjudication. The judgment of the appellate Collector shows that two questions were raised : (i) whether essences and blended flavouring concentrates were same or different products; and (ii) if they are different which one of the two had been utilised. The appellate Collector after discussing the Chemical Examiner's report and other relevant material produced before him in para 11 observed as follows :
'THEREFORE,the appellants are correct in pointing out that from this, ipso-facto, a conclusion cannot be drawn that the products contained 'blended flavouring concentrates' and it is not clear as to how Assistant Collector has derived his conclusions. At the same time, this much is clear from the report that 'blending' is involved in both the cases, is, however, not clear whether this blending involved only essences. It is also clear that both the products have peculiar flavours of their own But it is not clear as to the presence of which substances exactly they owe this flavour and as to whether the substances to which they owe this flavour are on the form of concentrates. In other words, from the Chemical Examiner's report taken as a whole it is not clear whether blended flavouring concentrates were present in the products in question or not The matter is till pending and there has been no final adjudication.
(3) Sometime in the year 1979 the petitioner company filed five applications claiming refund for the excess amounts paid for the period from 17th March 1972 to 18th May 1976. The said claims for refund were made on the same ground is, in the application for refund for the year 1976-77. The said claims were made under rule 11 of the Central Excise and Salt Act, 1944. The Assistant Collector on 12th February 1980 rejected the claims on the ground that the claims had not been made within a period of six months as required under rule 11 of the Central Excise and Salt Act.
(4) The petitioner company filed the present writ petition in January 1980 for a declaration that the recovery of the excise duty for the period 17th March 1972 to 19th May 1977 is illegal and further asked for a mandamus or any other appropriate writ, order or direction directing the respondents to refund the excess excise duty collected without the authority of law.
(5) This petition, to my mind, must fail on the short ground that there has been no determination by any competent authority that the substance used during the concerned periods was 'synthetic essences' and not 'biended flavouring concentrates'. Mr. Verma, learned counsel for the petitioner placed great reliance on the judgment of the Bombay High Court given in the case M/s. Duke & Sons Pvt. Ltd. vs. D.T. Kundonani, Superintendent, Central Excise and another (1), decided by Mr. Justice D. M. Rege on 8111th October 1976. I have carefully gone through the said authority and, in my view, it has no application to the case in hand. In the said case it was an admitted fact that only essence was used by the company therein in the manufacture of their aerated waters. The contention of the respondent was that essences and blended flavouring concentrates arc not two different and distinct items but are synonymous with each other. Mr. Justice Rege after dealing with the contentions at length came to the conclusion that the 'essences' and 'concentrates' are two different and distinct items. In M/s. Chennai Bottling Co., Madras 1981 E.L.T. 315 (2) also it was, held :
'The synthetic essences are not synonymous with blended flavouring concentrates.'
As already stated there is no finding of any competent authority in the case in hand that the substance used was 'essence' and not 'blended flavouring concentrates'. The Bombay authority, thereforee, can be of no assistance to the petitioner.
(6) The counsel further placed reliance on the report of Dr. A. Srinivasan. The said report was made by Dr. A. Srinivasan at the request of M/s. Parle Beverages Private Limited. Dr. Srinivasan in his report expressed the view that the aerated soft drinks made by the company do not contain blended flavouring concentrates. This report may be a good piece of evidence for determining whether or not blended flavouring concentrates are used in the preparation of the aerated soft drinks by the petitioner company but surely this report cannot be made the basis for the decision of this writ petition. The relevant periods in question are 1972 to 1976. The petitioner company was to prove before the authority competent to take a decision that during the relevant periods in the manufacture of soft drinks the petitioner company had used 'essences' and not blended flavouring concentrates. I am unable to understand how in this writ petition the court can enter into an inquiry and hold that the material used by the petitioner company in the relevant periods was 'essences' and not 'concentrates'.
(7) It is not disputed that the excise duty paid by the petitioner company was ultimately passed on to the consumers of the drinks. The petitioner has suffered no injury or loss. There seems to be no reason why the petitioner company should be allowed to recover the excise duty (assuming that it was wrongly paid) and thereby unjustly enrich itself. Moreso, when the claim has been made after a great delay. A Division Bench of this court in similar circumstances dismissed in liming a writ petition filed by P. N. Monga Bottling v. Union of India, Civil Writ No. 2028 of 1983 decided on 33rd August 1984. Also see : (1) Union of India v. Ahmedabed . and others, . Hyderabad Asbestos Cement Products Ltd. and another v. Union of India and others. and Madras Aluminium Co. Ltd. and another v Union of India,
(8) Goods were classified under item I-D(i) of the Central Excise Tariff by the petitioner itself. I am unable to sec how the petitioner can contend that the respondent had wrongly or illegally charged excise duty. The petitioner could probably have contended that the excess duty was paid under a bona fide belief that essence and concentrates were synonymous and not different products and that it was only after the Bombay High Court judgment that it realised that essenee and constrates were distinct products. See : Shri Vallabh Glass Works Ltd. and another v. Union of India and others, But. then. to succeed in this submission the petitioner had to allege and establish that during the relevant periods the material used was essence and not concentrates. This the petitioner had to establish before the authorities competent to deal with the matter under the Central Excise Act. In the absence of a lindens' to the above effect, in my opinion, the petitioner is not entitled to the reliefs asked for.
(9) The petitioner had claimed refund under rule 11 of the Central Excise Rules 1944 (omitted with effect from 17-11-1980) vide notification No. 177/80-C.E., dated 12-11-1980 substituted by section 11-B with effect from 17-11-1980). The relevant part of old rule 11 reads as follows :
'Clam for refund of duly. (1) Any person claiming refund of any duty paid by him may make an application for refund of such duty to the Assistant Collector of Central Excise before the expire of six months from the date of payment of duty : Provided that the limitation of six months shall not apply where any duty has been paid under protest. Explanationn. Where any duty is paid provisionally under these rules on the basis of the value or the rate of duty, the period of six months shall be computed from the date on which the duty is adjusted after final determination of the value or the rate of duty, as the case may be.'
The petitioner claimed the refund, as earlier stated, sometime in 1979. The claim for refund was clearly barred by time.
(10) There is yet another legal obstacle in the way of the petitioner. The claim made by the petitioner company for the refund was rejected by the Assistant Collector on 12th February 1980. The remedy of appeal was available to the petitioner but it did not exhaust the statutory remedy available to it and rushed to this court. On the facts of this case I see no sufficient ground to invoke the extraordinary jurisdiction of this court.
(11) For the reasons stated I find no merit in the petition and dismiss it with costs. Counsel fee is fixed at Rs. 2000.