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Judgment
S.P. Bharucha, C.J.—The learned Single Judge dismissed the appellants'' writ petition by the judgment and order under appeal.
The appellants manufacture copper rods, flats, bus bars and rectangular rods, all having the thickness of about 10 mm. After the introduction of Tariff Item No. 68 in the Central Excise Tariff on 1st March 1975, the Central Excise authorities asked the appellants to classify their goods under Item 68. This was not done and the goods were classified by the petitioners under Item 26A. On 20th January 1976, the Assistant Collector of Central Excise passed an order rejecting the appellants'' contention that the goods were classifiable under Item 26A and directing that they be classified under Item 68. The order was not appealed against but the appellants paid the duty, according to the averments in the petition, under protest in pursuance thereof.
By an order dated 24th November 1978 passed in Revision No. 1295 of 1978 filed before the Government of India by another party concerning identical goods, the Government of India held that the goods were covered by Item No. 26A and not Item No. 68.
The appellants then filed an application for refund of the excise duty paid on the goods under Item No. 68 for the period commencing in the year 1976. The application was based upon the decision of the Government of India aforementioned. The application was rejected as being out of time having regard to the provisions of Rule 11 of the Central Excise Rules. The order of the Assistant Collector of Central Excise dated 4th September 1980 in this behalf was impugned in the writ petition.
The learned Judge, in the judgment and order under appeal, rioted that the Assistant Collector of Central Excise had been asked for an appealable order by she petitioners and he had, accordingly, passed an appealable order on 7th April 1976. Nevertheless, no appeal had been filed by the appellants against that order. The learned Judge, therefore, took the view that the appellants had not made out a case for the invocation of this Court''s jurisdiction under Article 226.
We asked Mr. Bhandare, learned Counsel for the appellants, what he had to say in regard to this view of the learned Single Judge. Mr. Bhandare''s answer was that the limitation provided by Rule 11 did not apply and, therefore, discretion ought to have been invoked in favour of the appellants. We arc unable to sec the relevance of this answer.
The Assistant Collector''s order was appealable. In fact, according to the appellants themselves, they had asked for an appealable order. Even so, no appeal was preferred. The order of the Assistant Collector, therefore, remains unchallenged on the record, h does not appear to us that in these circumstances this Court should have invoked the discretion ''under Article 226 to override the said decision and grant to the appellants the refund sought from 1976 onwards.
We are, therefore, of the view that the learned Single Judge was right in rejecting the petition impugning the order of dismissal of the appellants'' refund application on the ground that the discretion under Article 226 ought not to be invoked in favour of the appellants.
The appeal is accordingly dismissed. No order as to costs.