S.C. Deb, J.
1. This rule, under article 226 of the Constitution, was directed against Order No. 473 of 1973 passed by respondent No. 1 rejecting the revision application filed by the petitioner under the Central Excises and Salt Act, 1944.
2. Licence No. 6 was granted to the petitioner under Rule 192 of the Central Excise Rules. Under the said licence the petitioner was entitled to purchase from the manufacturers Benzol, Toluene, Naptha, etc. without paying any duty on those goods for being used by the petitioner in the manufacture of Thinners. The said licence expired on December 31, 1968. It was a renewable licence and the petitioner applied for its renewal on November 9, 1968. Certificate No. C.T. 2, which was issued to the petitioner under Rule 156 by the Excise authorities, was withdrawn from the petitioner by the Excise authorities on January 10, 1969.
3. The case of the petitioner is that the petitioner had to purchase certain quantities of those goods from Indian Iron and Steel Ltd. and Hindustan Steel Ltd. and had to pay them Excise duty along with the price of those goods because the petitioner's said licence was not then renewed and its said certificate was withdrawn by the Excise authorities. Thereafter, the said licence was renewed for the year 1969 and accordingly the petitioner filed an application before the Assistant Collector of Central Excise for refund of duty. The said application was rejected on the ground that the duty was paid not by the petitioner but by those two companies to the Excise authorities. An appeal filed by the petitioner was also dismissed. Thereafter, the petitioner filed a revision application before the Central Government which was rejected by the aforesaid impugned order. Hence, this Rule was issued at the instance of the petitioner.
4. The submissions of Mr. P.K. Roy, the learned counsel for the petitioner, are as follows : Though the petitioner did not pay any duty direcily to the Excise authorities, this application is maintainable in view of the decision of the Supreme Court in the case of Jasbhai Motibhai Desai v. Roshan Kumar Haji Bashir Ahmed reported in : 3SCR58 ; since the licence was subsequently renewed and it covered the whole year, the petitioner was entitled to a refund of the duty; Excise duty is an indirect tax and it is realised from the ultimate consumer, and therefore, the petitioner having paid the duty indirectly is entitled to the refund; in any event, the duty should be refunded to the petitioner by the Excise authorities inasmuch as those two companies have recently written letters to the Excise authorities to the effect that they have no objection if the duty is refunded to the petitioner ; and if it is held that the duty cannot be refunded to the petitioner, an order should be made directing the Excise authorities to refund the duty to those two companies by following the decision of a Division Bench of this Court in an appeal from a decree in the case of Tiloke Chand Chppra v. Ramdhandas Beharilal, reported in (1962) 66 Cal WN 441.
5. The submissions of Mr. A.K. Banerjee, the learned counsel for the Revenue, on the other hand, are as follows : Since the duty was not realised from the petitioner, it cannot be refunded to the petitioner under the Act, if any application for refund of duty is now made by those two companies, it will be time-barred and accordingly the Excise authorities should not be directed to pay any amount to them ; and no excess duty was realised by the Revenue inasmuch as the actual duty leviable on these goods was paid by those two companies and as such it was apportionable between the petitioner and those two com' panies, and accordingly this application must fail.
6. It is an admitted fact that petitioner was the buyer and those two companies were the sellers of those goods. It is also an admitted fact that the duty on those goods was paid to the Excise authorities not by the petitioner but by those two companies. An application for refund of duty can only be made by the person who has paid it to Excise authorities and such application must also be made within a year from the date of such payment under Rule 11 as amended by Rule 173-J of the Central Excise Rules. No such application was made by those two companies and therefore if any application is now made by them it will be time-barred. It is also to be noted here that question of limitation was not involved in Tiloke Chand's case, (supra), and therefore, the contention of Mr. Roy that the Excise authorities should be directed to refund the duty to those two companies must fail.
7. It is true that the excise duty is an indirect tax but as between the petitioner and those two companies the Excise duty formed part of the price of those goods and those two companies were liable to pay excise duty on those goods to the Excise authorities at the point of removal of those goods from their respective factories. They have also paid actual duty liable on those goods to the Excise authorities.
8. Further, the petitioner has not paid any duty to the Excise authorities, and therefore, the subsequent renewal of the said licence cannot confer any right on the petitioner to claim refund of the duty from the Excise authorities who are also not the debtors of the petitioner nor of those two companies for these two companies have not paid any excess duty on those goods.
9. Hence, it is unnecessary to express any opinion on the remaining contentions made on behalf of the respective parties, for the application is bound to fail on the merits for the reasons already stated. In the premises, the Rub is discharged. There will be no order as to costs.