Government of India vs Prabhakar Match Industries

Sathiadev, J.—Defendants in O.P. ............ of 1977 on the file of the Sub-court, Dharmapuri, are the appellants. The plaintiff/respondent

filed a suit to recover Rs. 13,830.60. It was claimed in the plaint that the plaintiff firm was manufacturing matches and for the period from 22-7-

1967 to 31-12-1974, it paid excise duty at the rate of Rs. 3.75 per gross of matches of 50 boxes. Third defendant issued a demand notice dated

4-6-1975 claiming that the Supreme Court of India by judgment dated 4-11-1974 has held that the duty leviable was Rs. 4.30 per gross of

matches of 50 boxes and hence called upon plaintiff to pay the differential duty of Rs. 33,152.62. Later on, it was asked to pay one-third of the

amount viz. Rs. 11,839/20 and it was paid under protest on 17-9-1975, because the entire demand was barred by limitation under Central

Excises and Salt Act. There was no short-levy or non-payment of duty under Rules 9, 10 and 10-A of the Central Excise Rules, hereinafter

referred to as ''the Rules''. Rule 10-A had been struck down by this Court. Rule 10 governs the case of non-payment or short-levy. Under the law,

the authorities have no power to collect any duty beyond the period of three months prior to the date of demand notice, and this has been finally

decided in W.P. No. 4145 of 1975 and which applies to the facts and circumstances of this case. Hence, the suit had been filed to recover the

illegally collected amount with interest at 12 per cent from date of payment.

Third defendant stated that plaintiff was allowed concessional rate of duty at the rate of Rs. 3.75 per gross from 22-7-1967 to 31-12-1974, as

per Notification No. 162 of 1967, dated 21-7-1967. This Notification was amended by Notification No. 205 of 1967, dated 4-9-1967, which

introduced certain conditions for grant of concessional rate of Rs. 3.75 per gross. Plaintiff did not comply with the conditions, and hence was

bound to pay Rs. 4.30 per gross. As a result of the decision of the High Court of Madras striking down clauses (b) and (ia) of the proviso to

Notification No. 162 of 1967 amended by Notification No. 205 of 1967, plaintiff was allowed a concessional rate of assessment as per the

declaration filed every year and without prejudice to the rights of Department. Department had filed an appeal before Supreme Court against the

said judgment and it was allowed. Hence, plaintiff sought to have paid Rs. 4.30, but the amount could not be collected from time to time, because

of the pendency of the matter in the Supreme Court. Therefore he was called upon to pay the differential duty of Rs. 33,152.62, but .............

match manufacturers pleaded inability to pay huge amounts, Government of India took a lenient view and ordered that if one-third of the amount

which had become due was paid by 30-9-1975, then two-thirds of the amount would not be recovered. Taking advantage of this concession,

plaintiff paid the amount without any protest. Hence, there is no question of any time limit being applied, and it is not barred by limitation. There is

no question of any short-levy. Rule 10 does not govern the levy and collection in this case. The decision in W.P. No. 4145 of 1975 (S. Mahaboob

Bani Beevi and Others v. The Inspector, Central Excise M.O.R. II., Kovilpatti) is not applicable to this case. It is equally incorrect to state that

Rule 11 does not apply to plaintiff''s case. The plaintiff having failed to make the necessary applications before the proper officer, within the period

prescribed for refund of amount under Rule 11, the present suit is not maintainable.

The Trial Court held that the plaintiff has to succeed in view of the decision in W.P. No. 4145 of 1975 and, therefore, decreed the suit for Rs.

7,839.20 with interest at 6 per cent per annum from 25-8-1976 to date of realisation with proportionate costs. On the learned Judge in A.S. No.

264 of 1978 upholding the decree; this Letters Patent Appeal had been preferred.

Mr. T. Somasundaram, learned Counsel for defendants, at the outset would point out that Rule 10-A having been struck down by this Court

and as the said decision is now pending in the Supreme Court; unless it be made out by plaintiff that Rule 10 would apply; it is only the period of

limitation as prescribed under Indian Limitation Act, 1963, that would apply to the facts and circumstances of this case. He further submits that it

was only after the Supreme Court upheld that concerned Notifications. In Notifications No. 162 and 205 of 1967 by judgment dated 4-11-1974,

the Department could make a demand for payment of Rs. 4.30 per gross, because until then, it had to claim only at the rate of Rs. 3.75 per gross

and which had prejudiced the rights of the Department. Thereafter, even though Department was entitled to collect the entire amount due, by

Trade Notice (CE) 104/75, dated 27-6-1975. Union of India thought that to alleviate the difficulties of match manufacturers, who would be liable

to pay huge amounts, had extended a concession that if one-third of the amount is paid by 30-8-1975, then two-thirds of the dues outstanding

would not be recovered. Availing of the concession so extended and without any protest, plaintiff having made the payment, it cannot now take a

different stand, as it had been coerced to make the payment by threats in the demand notice.

Mr. Krishnan, learned Counsel for plaintiff, in his strenuous submissions would plead that, the claim made by the Department in the demand

notice in Ex. A-1 dated 4-6-1975 to pay a sum of Rs. 33,152.62, and alongside threatening that in the event of non-payment as demanded,

clearance of goods would not be allowed, was an illegal demand by virtue of Section 72 of the Contract Act. Once a public authority makes a

demand, threatening to take coercive proceedings, such a demand is illegal and any compliance with such a demand notice could not be treated as

acquiescence. The High Court had struck down Rule 10-A in W.P. No. 4145 of 1975, which is yet to be set aside by the Supreme Court. Hence,

the demand based on the trade notice was also illegal and inoperative, and therefore the payments made under such circumstances would not

confer any right on defendants, who cannot over recover takes without authority of law. Hence, he pleads that, under such circumstances, the suit

for refund was maintainable.

Rule 10 reads as follows :

Recovery of duties or charges short-levied, or erroneously refunded -

When duties or charges have been short-levied through inadvertance, error, collusion or mis-construction on the part of an officer, or through mis-

statements as to the quantity, description or value of such goods on the part of the owner, or when any such duty or charge, after having been

levied, has been owing to any such cause, erroneously refunded, the person chargeable with the duty or charge, so short-levied, or to whom such

refund has been erroneously made, shall pay the deficiency or pay the amount paid to him in excess, as the case may be, on written demand by the

proper officer being made within three months from the date on which the duty or charge was paid or adjusted in the owners account-current, if

any, or from the date of making the refund.

Rule 10-A having been struck down in Aggarwal Bros. Vs. Union of India (UOI) and Others, and even though the matter is now pending before

the Supreme Court as on jute, this matter was to be approached as the basis that the said rule is not in force. It is the claim of the plaintiff that the

facts and circumstances of the case fall squarely within Rule 10. It is persistently pleaded that the period of limitation as found therein is applicable

to the facts and circumstances of this case and, therefore, after a period of three months from the date of demand, the defendants had no authority

to claim any amount based on the decision of the Supreme Court, which was rendered on 4-11-1974. The payment made under Ex. A-2 pursuant

to the trade notice Ex. B-1 could never be treated as a voluntary payment, when the amount had been collected under threat of refusal to clear the

goods. It is further pleaded that as per Section 72 of the Contract Act, it is implied that the demand made was vitiated by coercion.

This Court struck down certain clauses in Notification Nos. 162 and 205 of 1967. But for it, the plaintiff would have been always demanded to

pay duty at the rate of Rs. 4.30 per gross. He did not satisfy the conditions for grant of concessional rate of Rs. 3.75/- and, therefore, in law, he

was liable to pay only Rs. 4.30/- per gross. The demand could not be made by defendants because the appeal filed by it against the said judgment

was pending in the Supreme Court, and it allowed it only on 4-11-1974. Therefore, for this period from 22-7-1967 to 31-12-1974, a sum of Rs.

33,152.62 became payable. It was on representations made by the trade, Union of India resolved to collect only one-third of the amount which

had become due, and hence issued Ex. B-1 trade notice extending concession which was available only till 30-8-1975. Responding to this

concession, plaintiff had paid one-third of the amount. Ex. A-2 produced by plaintiff shows that it had paid the amount of Rs. 11,839.20 on 17-6-

1975 under protest. It was a payment made based on the trade notice under Ex. B-1 dated 27-6-1975. There was absolutely no threat in Ex. B-

Only a period had been fixed within which the concession could be availed of. In paragraph 3, it is stated that, if one-third of the amount is not

paid by the said time, it would entail forfeiture of this concession and the entire outstanding dues would be recovered from the Unit concerned.

Therefore, the word ''forfeiture'' used, in a sense inappropriately, was with reference to the concession that was extended, and not any other threat

or coercion. No doubt, the plaintiff had paid the amount under protest but still whether defendants are precluded from collecting the amount which

had become lawfully recoverable is the only other aspect to be considered. The decision in W.P. No. 4145 of 1975 has no relevance, because it

enactment with the striking down of Rule 10A. No doubt, the matter is now pending in the Supreme Court, but until then, the contents therein

cannot be looked into, for the purpose of this case at this point of time. Hence, the plaintiff''s contention is that, only Rule 10 governs the case, and

when the duty had been short-levied, the demand made under Ex. A-1 dated 4-6-1975 is hopelessly barred by limitation. But for the threat under

Ex. A-1 and trade notice issued under Ex. B-1, plaintiff would not have paid the amount. Authorities refused to deliver the goods unless the

amount is paid and that was why in Ex. A-2, the remittance was made with the caption, ""under protest"".

Rule 10 would apply only if it be shown that duty had been short-levied through inadvertance, error, collusion or mis-construction on the part of

the Officer. In the instant case, the demand could not be made from time to time, because of the pendency of the appeal in the Supreme Court

against the judgment of this Court striking down certain clauses in the two notifications referred to above. Hence, the short-levy was not due to

inadvertance or error or collusion on the part of an officer. There is no question of any officer of the Department mis-construing the provision of the

Act or the notification, etc. Only in such of these instances which are visualised in Rule 10, the period of limitation provided therein would apply.

Rule 10-A having been struck down, the only other provision availed is for the Department to rely upon the Indian Limitation Act. The demand

having been made demand within the time provided thereunder; the claim that defendants had no authority to collect the amount after issue of trade

notice, has to necessarily fail.

To claim that the defendants have practised coercion by extending threat, as pleaded in paragraph 6 of the plaint, learned Counsel relied on

some decisions. The learned Judge held that any payment made in pursuance of Ex. A-1 cannot be said to be a voluntary payment. In Sri Raja

Venkatadri Apparao Bahadur Zamindar Garu Vs. Timmaraju Venkata Kutumbarao, , it was held that, if a payment was made into Court by

plaintiff, when he applied for an order to set aside the sale of his property in execution of a decree against someone else, though not made under

protest, it must be considered to be a payment made under coercion, within the meaning of Section 72 of the Contract Act. It was pointed out in

Kanhaya Lal v. National Bank of India Ltd. ILR 40 Cal. 598 by the Privy Council that the word ''coercion'' used in Section 72 is used in the

general and ordinary sense of the word, and that its meaning is not controlled by the definition in Section 15 of the Contract Act. A Division Bench

in AIR 1940 215 (Nagpur) hold that, merely because tax is paid without protest, it cannot be treated as a voluntary payment, and whether it was

voluntary or not is a question of fact and a number of circumstances have to be taken into account. When a municipal tax is paid, the normal

resumption would on that the assessee is paying because he knows 100 per cent of the consequences that follows if he does not pay, and in such a

case, if the tax had been illegally recovered, then the money recoverable u/s 72 as payment made in coercion. N.B. Sanjana, Assistant Collector of

Central Excise, Bombay and Others Vs. The Elphinstone Spinning and Weaving Mills Company Ltd., dealt with the scope of Rules 9, 10 and 10-

A of Central Excise Rules and it was held that, if demands are made long after the expiry of the period of three months under Rule 10; then such

demands are not valid. It was pointed out then this rule will have to be understood and interpreted in the context in which it appears. It was further

held in the said decision as follows :

Though the words used are ''short-levied'' and ''paid'', in order to attract Rule 10 it is not necessary that some amount of duty should have been

assessed and that the said amount should also have been actually paid. It will apply even to cases where there has been a nil assessment, in which

case, the entire duty later on assessed must be considered to be the duty originally short-levied.

On behalf of defendants, reliance is placed on Union of India v. Sarojini 1976 Tax LR 410 wherein the Division Bench held that any payment

made whether voluntary or otherwise under a mistake, either of law or of fact, can be recovered, once the mistake is established, and that merely

because notice of demand issued under the Income Tax Department in the prescribed form contains a warning that the legal process would be put

into force for realisation in the event of non-payment, it does not make the payments made in pursuance of such a notice, outside the category of

voluntary payments. The payments so made cannot be said to be made under coercion and as such they cannot be recovered.

None of the decisions relied upon by plaintiff could be of any avail, because under the facts and circumstances of the case, Rule 10 would have

no applicability for the reasons stated above. As for Section 72 of the Contract Act, in the light of the decision of the decision of the Division

Bench relied upon by the defendants, there was no element of coercion in the instant case. Rather, the payment made was not consequent to any

threat, but consequent to the trade notice Ex. B-1, which did not contain any threat of coercive action that will be taken. Therefore, when the

demand made was only in respect of one-third of the duty which had become payable, and the amount having become lawfully recoverable

consequent to the decision of the Supreme Court dated 4-11-1974; plaintiff had no right to seek for refund as prayed for. Hence, this appeal is

allowed with costs throughout.