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Duncan Agro Industries Ltd. Vs. Central Board of Excise and Customs - Court Judgment

LegalCrystal Citation
SubjectExcise
CourtKolkata High Court
Decided On
Case NumberC.R. No. 11869 (W) of 1975
Judge
Reported in1985(22)ELT770(Cal)
ActsCentral Excise Act, 1944 - Sections 4, 11B and 35A; ;Central Excise Rules, 1944 - Rules 2, 10, 11 and 173J; ;Constitution of India - Article 226
AppellantDuncan Agro Industries Ltd.
RespondentCentral Board of Excise and Customs
Appellant AdvocateR.N. Bajoria and ;S.K. Bagaria, Advs.
Respondent AdvocateA.K. Dey and ;S.M. Sanyal, Advs.
DispositionApplication allowed
Cases ReferredA.K. Roy v. Voltas Ltd.
Excerpt:
- a.k. sen gupta, j.1. national tobacco company of india limited moved this application under article 226 of the constitution of india challenging the legality and validity of a notice dated 14th april, 1975, issued by the central board of excise and customs (hereinafter referred to as the board) under section 35a of the central excises and salt act, 1944 (hereinafter referred to as the said act). during the pendency of the present proceeding, the said national tobacco company of india limited was amalgamated with duncan agro industries limited (hereinafter referred to as the petitioner) whose name has been substituted in place and stead of national tobacco company of india limited.2. the petitioner has its factory situated 'at agarpara in the district of 24 parganas (west bengal) and at.....
Judgment:

A.K. Sen Gupta, J.

1. National Tobacco Company of India Limited moved this application under Article 226 of the Constitution of India challenging the legality and validity of a notice dated 14th April, 1975, issued by the Central Board of Excise and Customs (hereinafter referred to as the Board) under Section 35A of the Central Excises and Salt Act, 1944 (hereinafter referred to as the said Act). During the pendency of the present proceeding, the said National Tobacco Company of India Limited was amalgamated with Duncan Agro Industries Limited (hereinafter referred to as the petitioner) whose name has been substituted in place and stead of National Tobacco Company of India Limited.

2. The petitioner has its factory situated 'at Agarpara in the District of 24 Parganas (West Bengal) and at Biccavollu in the District of Godavari (Andhra Pradesh). At the material time (20th January, 1972, to 19th January, 1973), the petitioner used to carry on business, inter alia, of manufacture of cigarettes and/or smoking mixtures. Central excise duty under said Act on the manufacture of cigarettes/smoking mixtures was leviable ad valorem.

3. It is the case of the petitioner that at all material times, the petitioner used to sell its own brand of cigarettes/smoking mixtures in wholesale quantities to the various stockists and/or distributors throughout the country. The prices charged from all such stockists and/or distributors were uniform throughout the country. It is alleged that the petitioner used to sell its products to the stockists and/or distributors on principal to principal basis and on the basis of the agreements entered into at arms's length and in its usual course of business. The stockists/distributors, after purchasing the goods from the petitioner, used to sell the same to their dealers who in their turn used to sell to the retailers. The petitioner never used to receive the price charged by the stockists/distributors from their buyers. The difference between the price at which the petitioner used to sell to its stockists/distributors and the price at which the stockists/distributors used to sell to their buyers represented the profit of the stockists/distributors which, according to the petitioner, was neither received nor receivable by the petitioner.

4. Sometime in 1958, National Tobacco Company of India Limited moved an application under Article 226 of the Constitution challenging the decision of the excise authorities that all assessments of cigarettes should be made on the basis of the wholesale cash selling price at which the stockists or agents are selling the same to an independent buyer in an open market. The said writ application was decided by D.N. Sinha, J. (as his Lordship then was) and the said decision is reported in : AIR1961Cal477 National Tabacco Company of India Limited v. Collector of Central Excise. In that case, Section 4 of the said Act (as it stood prior to its amendment) was construed. It was held that the price at which the petitioner sells to its stockists cannot be the wholesale cash price mentioned in Section 4. The sale by the Company to a few stockists either at the factory or in Calcutta which was stated to be the nearest wholesale market, by virtue of an agreement containing restrictive covenants, cannot by itself satisfy the provisions of Section 4.

5. The price lists filed by the petitioner for the relevant period used to contain, amongst others, details of wholesale price charged by the petitioner from its stockists/distributors as also the price charged by the said stockists/ distributors from their dealers. The excise authorities used to determine the assessable value on the basis of the price charged by the petitioner's stockists/ distributors from their dealers and used to levy duties accordingly. Such assessment was made having regard to the principle laid down by this Court in the aforesaid decision.

6. Thereafter, the Supreme Court in the case of A.K. Roy v. Voltas Limited reported in : 1973ECR60(SC) construed the provisions of Section 4 of the said Act (as it stood before its amendment). The Supreme Court overruled the decision of the Calcutta High Court in the case of National Tobacco Company of India Limited- : AIR1961Cal477 and held that if a manufacturer were to enter into an agreement with dealers for wholesale sales of the articles manufactured on certain terms and conditions, it would not follow from that alone that the price for those sales would not be the wholesale cash price for the purpose of Section 4(a) of the Act if the agreements were made at arm's length and in he usual course of business.

7. It is the case of the petitioner that after the said decision was rendered by the Supreme Court, the petitioner lear!nt and discovered that the assessable value of the goods manufactured by it could not be determined on the basis of the prices at which its stockists and/or distributors sold the goods to their buyers and that such assessable value could only be determined on the basis of wholesale prices at which goods were sold by the petitioner to its stockists and/or distributors.

8. The petitioner, thereafter, filed several refund applications before the Central excise authorities for the period from 20th January, 1972 to 19th January, 1973, claiming refund of the excess excise duty realised from the petitioner by reason of determining the assessable value on the basis of the prices charged by the stockists/distributors from their dealers and not on the basis of the prices charged by the petitioner from its stockists/distributors. In the said refund applications an aggregate sum of Rs. 17,75,564.40 was claimed as and by way of refund. The said refund applications were allowed by the Assistant Collector of Central Excise. By his letter dated 22nd April, 1974, the Assistant Collector intimated the petitioner regarding the sanction of the said refund.

9. By a notice dated 14th April, 1975, the Central Board of Excise and Customs required the petitioner to show cause why the order granting the said refund should not be set aside. It was, inter alia, alleged in the said notice that after examination of the facts of the case, the Board was tentatively of the view that the order of the Assistant Collector of Central Excise granting refund was not correct, legal and proper and the Board has decided to review the said order with a view to satisfying itself as to the correctness, legality and propriety of the said order granting refund.

10. The petitioner has challenged the said show cause notice dated 14th April, 1975, in this proceeding. Mr. R.N. Bajoria, learned Advocate for the petitioner, has submitted that the said notice dated 14th April, 1975, issued by the Board ex facie bad in law and wholly without jurisdiction. It is his submission that the facts disclosed in the notice did not warrant review of the order passed by the Assistant Collector allowing the refund. He contends that the decision of the Calcutta High Court in the case of National Tabacco Company- : AIR1961Cal477 was overruled by the Supreme Court in the case of A.K. Roy v. Voltas Limited- : 1973ECR60(SC) and the petitioner became entitled to claim the refund of the excess amount paid by and/or realised from it. It is also his contention that the Assistant Collector who granted the refund had examined all the materials placed before him and he was duly satisfied with regard to the claim made by the petitioner and it cannot be said that the order granting refund is in any way illegal or improper. He has assailed the grounds on which the Board sought to revise the order granting refund. It is further contended that the purported grounds are no grounds at all and the Board has no jurisdiction to issue such a notice. Relying on the decision of the Supreme Court in the case of Atic Industries Limited v. H.H. Dave reported in : 1978(2)ELT444(SC) and the recent decision of the Supreme Court in the case of Union of India v. Bombay Tyre International Limited reported in 1983 E.L.T. 1896, Mr. Bajoria contends that the Supreme Court has reaffirmed the principles laid down in the case of A.K, Roy v. Voltas Ltd.- : 1973ECR60(SC) that the value of an excisable article for the purpose of excise levy should be taken at the price at which excisable article is sold by the assessee to a buyer at arm's length in the course of wholesale trade at the time and place of removal.

11. On the other hand, Mr. Surathi Mohan Sanyal, learned Advocate appearing for the respondents, has submitted that the impugned notice cannot be said to be without jurisdiction. Whether the principles laid down in the several decisions of the Supreme Court as relied on by the counsel for the petitioner would be applicable to the facts of the case have to be determined by the Board. It is absolutely necessary to, investigate the facts. It is the contention of Mr. Sanyal that the Assistant Collector did not have any jurisdiction to grant the refund and accordingly the Board was within its competence to review the order granting the refund. He has also submitted that this Court cannot find out the facts which are necessary for the purpose of determining the question with regard to the entitlement of the assessee to get the refund. He submits that the matter should go back to the Board for deciding the question on the basis of the principles laid down by the Supreme Court in the said decisions. He has also submitted that on the facts and in the circumstances of this case, the Board has the power to initiate the proceedings under Section 35A of the said Act and its jurisdiction to issue such a notice cannot be questioned. It is contended that if there is an error it would be an error within its jurisdiction. The question which calls for determination is whether the impugned notice issued by the Central Board of Excise and Customs under Section 35A of the Act is without jurisdiction or not.

12. It is no doubt true that it is for the revenue authoritities to investigate and ascertain the facts applicable to a particular situation and to come to a decision to grant or withdraw the relief as the case may be. Such decision may be erroneous. Merely because the decision is erroneous, it does not necessarily follow that the revenue authorities did not have jurisdiction to decide the question. In such a case, the High Court normally does not interfere with the decision of the revenue authorities, which can be challenged by an aggrieved person before the appropriate revisional or appellate authority under the provisions of the relevant enactment. But, where the question pertains to a jurisdictional fact, the revenue authorities cannot assume jurisdiction by deciding a jurisdictional fact erroneously and thereafter proceed to impose duty or withdraw the relief claimed. In such a case, the jurisdiction depends on a correct decision on the jurisdictional facts. The High Court can examine whether the revenue authorities have decided the jurisdictional fact correctly or not before proceeding to issue the notice or in making the order affecting the rights of a person adversely.

13. But where there is no question of any further investigation of facts and on the undisputed facts, the notice or the order of the revenue authorities appears to be illegal, the High Court can interfere in such a case under Article 226 of the Constitution. In this case the Board with a view to revise the order passed by the Assistant Collector issued the impugned notice giving the grounds therefor. The jurisdiction of the Board to issue this notice depends on whether the grounds are sustainable or not. If the grounds fail, so also the notice. The grounds ex facie are untenable. Where there is a conflict in judicial decisions concerning the interpretation of the provisions of the Central Excises and Salt Act, the excise authorities may, in a proper case, adopt one interpretation or the other so long as the controversy is not finally settled by the Supreme Court. But where a section of the Act has been construed by the Supreme Court and the Supreme Court has laid down the law in no uncertain terms, even then if a statutory authority issues a notice containing the grounds on a misreading and misinterpretation of the law laid down by the Supreme Court, it cannot be said that it is a mere misapplication of the section and the revenue authorities have the right to decide either way. It goes to the root. The impugned notice is based on an erroneous interpretation of statutory provision and on a clear disregard of the principles laid down by the Supreme Court in the case of A.K. Roy v. Voltas Ltd.- : 1973ECR60(SC) as well. It is a case where the revenue authorities are proceeding without jurisdiction or upon an erroneous decision on jurisdictional fact. Thus, there is an error of law apparent on the face of the impugned notice itself and as such it is without jurisdiction. I am, therefore, unable to accept the contention of Mr. Sanyal that in this case there is merely an error within the jurisdiction of the Board.

14. I am also unable to accept (the contention of Mr. Sanyal, that in this case further facts are required to be investigated to find out whether the principles laid down by the Supreme Court in the cases relied on by the learned Advocate for the petitioner would be applicable or not. This Court in the case of National Tobacco Company of India Limited- : AIR1961Cal477 has held thus :

'The sale by the company to a few stockists, either at the factory, or in Calcutta which is stated to be the nearest wholesale market, by virtue of an agreement containing restrictive covenants, cannot by itself satisfy the provisions of Section 4.'

'What will constitute a 'wholesale unit' will have to be determined with reference to the practice of the trade at the place where the goods are sold. A 'wholesale market' is where goods in question, or goods of a like kind and quality, are sold or are capable of being sold to an independent buyer, meaning thereby, any one who intends to effect such a purchase or sale, upon payment of the proper price, without restriction.

If there is no wholesale market at the site of the factory, or any other premises or manufacture or production for delivery at the place of manufacture or production, then the nearest wholesale market to such a place, where such a market exists.'

15. At page 481 the Court observed :

'In so far as it rejects the price at which the petitioner-company sells to its stockists, the stand is justified....'

16. The said decision was overruled by the Supreme Court in A.K. Roy v. Voltas Limited reported in : 1973ECR60(SC) . There the Supreme Court observed at page 228 as follows :

'We do not think that for a wholesale market to exist, it is necessary that there should be a market in the physical sense of the term where articles of a like kind or quality are or could be sold or that the articles should be sold to so called independent buyers.'

'A wholesale market does not always mean that there should be actual place where articles are sold and bought on a wholesale basis. These words can also mean the potentiality of the articles being sold on a wholesale basis. So, even if there was no market in the physical sense of the term at or near the place of manufacture where the articles of a like kind and quality are or could be sold, that would not in any way affect the existence of market in the proper sense of the term provided the articles themselves could be sold wholesale to traders, even though the articles are sold to them on the basis of agreements which confer certain commercial advantages upon them.'

17. At page 230, the Supreme Court observed thus :

'We do not think that these decisions in so far as they held that the price of sales to wholesale dealers would not represent the 'wholesale cash price' for the purpose of Section 4(a) of the Act merely because the manufacturer has entered into agreements with them stipulating for commercial advantages, are correct. If a manufacturer were to enter into agreements with dealers for wholesale sales of the articles manufactured on certain terms and conditions, it would not follow from that alone that the price for those sales would not be the 'wholesale cash price' for the purpose of Section 4(a) of the Act if the agreements were made at arm's length and in the usual course of business.'

18. The effect of the said decision of the Supreme Court is that the assessable value could only be determined on the basis of the wholesale price at which the goods were sold by the petitioner to its stockists and/or distributors and not on the basis of the prices at which its stockists/distributors sold the goods to their buyers. In the refund applications the petitioner claimed the refund of the excess duty paid on the following grounds :

'Hitherto for purposes of calculating the assessable value, the price charged by our stockists to their dealers was being used. But in terms of the Supreme Court judgment on 1st December, 1972, in A.K. Roy and Anr. v. Voltas Ltd.- : 1973ECR60(SC) the assessable value should be calculated on the basis of price charged for delivery of goods at the place of production, which in our case is the price to our stockists.'

19. It is not in dispute that price lists filed by the petitioner for the relevant period used to contain the details of the wholesale price charged by the petitioner from its stockists/distributors as also the price charged by the said stockists/distributors from their dealers. It is also not in dispute that having regard to principles laid down by the Calcutta High Court in the case of National Tobacco Company of India Limited- : AIR1961Cal477 , the excise authorities used to determine the assessable value on the basis of the prices charged by the petitioner's stockists/distributors from their dealers and used to levy the duties accordingly. There was no allegation that the transactions were not at arm's length or were not in the usual course of the petitioner's business. The specimen copies of the price lists have been annexed to the writ petition which show the discount allowed to the agents/distributors was about 1% to 2%. The refund was calculated on the basis of the difference in excise duty levied on the assessable value determined on the prices charged by the petitioner's stockists/distributors from their dealers and the excise duty leviable on the assessable value determined on the prices charged by the petitioner to its stockists/distributors. Having regard to the aforesaid facts, the Assistant Collector of Central Excise, Calcutta I Division, duly sanctioned the refund.

20. The facts are undisputed. It is also admitted that the principles of law laid down by the Supreme Court in the case of A.K. Roy, : 1973ECR60(SC) are applicable to the facts of this case. No materials have been placed before me contradicting any of the facts which formed the basis of the claim of the petitioner to the refund. This then was the position when the impugned notice was issued by the Board. If that be the position, the Board acted without jurisdiction in issuing the impugned notice seeking to revise the order of refund. The principles laid down by the Supreme Court in the case of A.K. Roy- : 1973ECR60(SC) have been reiterated in the subsequent decisions of the Supreme Court in the case of Atic Industries Limited- : 1978(2)ELT444(SC) , the Supreme Court held at page 968 of the Reports as follows :

'There can, therefore, be no doubt that where a manufacturer sells the goods manufactured by him in wholesale to dealer at arm's length and in the usual course of business, the wholesale cash price charged by him to the wholesale dealer less trade discount would represent the value of the goods for the purpose of assessment of excise. That would be the wholesale cash price for which the goods are sold at the factory gate within the meaning of Section 4(a). The price received by the wholesale dealer who purchases the goods from the manufacturer and in his turn sells the same in wholesale to other dealers would be irrelevant to the determination of the value and the goods would not be chargeable to excise on that basis.'

21. In the case of Bombay Tyre International Limited 1983 E.L.T. 1896 at 1914, the Supreme Court held thus :

'Accordingly, we hold that pursuant to the old Section 4(a) the value of an excisable article for the purpose of the excise levy should be taken to be the price at which the excisable article is sold by the assessee to a buyer at arm's length in the course of wholesale trade at the time and place of removal.'

22. It is thus evident that the wholesale cash price charged by the manufacturer to its wholesale dealers is the only relevant factor for determining the assessable value for imposition of excise duty. The price received by the wholesale dealers from their customers is wholly irrelevant and cannot be the basis of determination of assessable value for the purpose of excise levy.

23. The conclusion is, therefore, inescapable that the assessable value of the goods manufactured by the petitioner was not properly determined and the Assistant Collector has, applying the principles laid down by the Supreme Court, determined the assessable value correctly and allowed the refund.

24. It now falls for consideration whether the grounds mentioned in the impugned notice seeking to revise the order passed by the Assistant Collector granting refund are sustainable at all. It has been alleged in the impugned notice that during the relevant period, the duty was paid by the petitioner against the value declared by it which had been duly approved by the proper officer of the Central excise and there was no material difference insofar as the facts relating to valuation was concerned to warrant revision of the assessable value. This allegation is based on a misconception of facts. The refund claims were made by the petitioner not on the ground that there was anything materially different in the factual position but on the ground that in view of the principles laid down by the Supreme Court in the case of A.K. Roy v. Voltas Ltd.- : 1973ECR60(SC) , the assessable value of the products manufactured by the petitioner could only be determined on the basis of the prices charged by the petitioner to its stockists/ distributors. It has not been alleged in the impugned notice that the principles laid down by the Supreme Court are not applicable to the facts of this case. The basis of the determination of the assessable value was only changed without there being any change in facts which were already there on records. This ground, therefore, fails.

25. The next allegation in the impugned notice is that the said order of refund was without jurisdiction as the successor Assistant Collector was not competent to reopen and revise the assessable value, which stood settled and finalised already by his predecessor-in-office and grant refund based on a decision which he was not competent to take. Mr. Sanyal has supported the said ground and submitted that the successor Assistant Collector had no jurisdiction to entertain the application for refund of the petitioner. It is his contention that once the assessable value has been determined by the Assistant Collector it cannot be revised on any ground by his successor. It can only be done by his superior officer. I am unable to accept the contention of Mr. Sanyal. Under rule 11 of the Central Excise Rules, 1944 (as it stood at the material time), read with Rule 173 J the proper officer was empowered to refund the duty paid through inadvertence, error, misconstruction, if the application for this purpose was made within one year from the date of payment of the duty. Under Rule 2(xi) of the said Rules the proper officer means the officer in whose jurisdiction the factory of the petitioner was situate. Thus the Assistant Collector having jurisdiction over the factory of the petitioner was fully empowered to pass the order of refund. Rule 11 of the said Rules as it stood after amendment made on 6th August, 1977 also provides for making of the refund application to the Assistant Collector of Central Excise. Similar provisions for making the refund application to the Assistant Collector of Central Excise are also contained in Section 11B of the said Act as it presently stands. Having regard to the provisions of the relevant rules it was the Assistant Collector of Central Excise, who was competent to entertain the application for refund and to take appropriate decision thereon. If the contention of Mr. Sanyal is accepted that no successor officer has any jurisdiction to revise the assessment to grant refund, in that event where there is a short levy or non-levy of duty, the demand for the same cannot also be raised by the successor officer revising the assessment under Rule 10 of the said Rules. Rule 10 as it stood prior to its amendment on 6th August, 1977, empowered the Assistant Collector of Central Excise to determine, inter alia, whether duties or charges have been short-levied through inadvertence, error, collusion or misconstruction on the part of an officer. Under the amended Rule 10 it is the Assistant Collector who has been empowered to recover the duties not levied or not paid or short-levied or not paid in full or erroneously refunded. If the successor officer cannot grant the refund, then the successor officer cannot also invoke the provisions for recovery of duty short-levied or not-levied. Such construction would reduce the provisions of Rule 10 and Rule 11 of the said Rules to futility. This ground, therefore, must fail.

26. The next ground taken in the impugned notice is that no new facts have been brought by the petitioner to justify the revision of the assessable value as earlier determined. This ground again has no legs to stand. It is the case of the petitioner that after the judgment was rendered by the Supreme Court in the case of A.K. Roy- : 1973ECR60(SC) , in January, 1973, the petitioner for the first time realised that the assessable value of the goods manufactured by the petitioner was determined by the excise authority erroneously. The new fact is that in view of the principles laid down by the Supreme Court in the case of A.K. Roy- : 1973ECR60(SC) , the basis of the determination of the assessable value was changed and as such the assessments made so long by the excise authorities were erroneous. This is the reason why the petitioner claimed for refund. The claim of refund was made only in respect of excess duty realised by the excise authorities determining the assessable value on the prices at which the petitioner's stockists/distributors sold to their dealers.

27. Another ground in the impugned notice is that the Assistant Collector did not enquire whether or not the transactions on which the petitioner claimed assessment and consequential refund were really at arm's length. This ground has no substance. In the price lists filed by the petitioner details of the prices charged by it to its stockists/distributors as also the prices charged by the stockists/distributors to their dealers were given. The discount allowed by the petitioner to its stockists/distributors was only 1% to 2%. This is evident from the copies of the price lists annexed to the petition. It is not in dispute that the said price lists were approved by the excise authorities who accepted the price at which the goods were sold by the petitioner to its stockists/distributors for determining the assessable value. The excise authorities did not determine the assessable value of the goods on the prices charged by the petitioner from its stockists/distributors solely on the ground that there was no market in the physical sense of the term in existence in respect of the said transactions. At no point of time any dispute was raised that the transactions by and between the petitioner and its stockists/distributors were not at arm's length or were not in the usual course of the petitioner's business. On the other hand, on the basis of the price lists approved by the excise authorities, duties were levied. The aforesaid conduct of the excise authorities can only be construed as their acceptance of the fact that the transactions by and between the petitioner and its stockists/distributors were at arm's length and in the usual course of business. The excise authorities are, therefore, estopped from contending to the contrary. In any event, in the affidavit-in-opposition filed by the respondents, no facts, evidence or materials have been indicated to show that the transactions by and between the petitioner and its stockists/distributors were not at arm's length or were not in the usual course of business. The claim of refund is based on the price lists already approved by the excise authorities which contained both the prices-one charged by the petitioner to its stockists/distributors and the other charged by the stockists/ distributors to their dealers. Having regard to the fact of this case, it must be held that there was no scope for any further enquiry being held by the Assistant Collector before granting the refund.

28. The other allegation in the impugned notice is that the assessment has been finalised on the basis of the petitioner's own representation in the price lists and monthly returns and that the petitioner adduced no reasons for change of the assessable value nor the Assistant Collector had given any reason as to how he decided that the assessable value earlier approved was not correct and the assessable value claimed by the petitioner for the purpose of refund was the correct assessable value. This ground, in my opinion, is wholly untenable. As indicated earlier, the reason for claiming the refund was that the basis of the determination of the assessable value was changed in view of the principles enunciated by the Supreme Court in the case of A.K. Roy~ : 1973ECR60(SC) . The refund claim was only in respect of the excess duty realised by the excise authorities by determining the assessable value on the prices at which the petitioner's stockists/distributors sold to their dealers and not on the prices at which the petitioner sold goods to its stockists/distributors. All the facts and figures relating to the said prices were contained in the price lists approved by the excise authorities. In the refund applications, the petitioner specifically mentioned the ground on which the refund was being claimed by it. The Assistant Collector who granted the refund, examined all the relevant facts and after being satisfied he allowed the refund claims. The fact that the Assistant Collector applied his mind to the claims made by the petitioner for refund would be evident from his order rejecting the claim for refund for an earlier period on the ground of limitation although the facts were identical. The Assistant Collector has stated in his said order that he had gone through the case records carefully and as the claim was barred by limitation, it was rejected under the provisions of Rule 11. It is, therefore, manifest that the Assistant Collector did advert to the facts before he sanctioned the refund. The impugned notice on the other hand betrays complete non-application of mind.

29. In the premises, none of the grounds of the impugned notice can be sustained and it must be held that the impugned notice issued by the Board is without jurisdiction.

30. In the result, the application succeeds. The rule is made absolute. The notice dated 14th April, 1975, issued by the Board is quashed. Let appropriate writ be issued. There will, however, be no order as to costs.


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