JUDGMENT : Uday Sinha. J.- This is an application under Articles 226 and 227 of the Constitution for quashing the ORDER :of Assistant Collector of Central Excise Laheriasarai (Annexure 1) rejecting the claim of the petitioners for refund of Excise duty paid by them during the period. 19.6.1980 to 31.3.1981. Petitioner No. 1 is a firm owned by Nand Lal Prasad and petitioner No. 2 is its Manager. The factory commenced production of straw board in 1974. It holds a licence granted to it by the Central Excise Department. The rate of Excise duty payable by the petitioners was initially 40% of the value of the goods cleared. The rate of duty was modified in 1976 by Notification No. 70/76 dated 16.3.1976 (Annexure-2). By this notification the Central Government exempted Straw Board and Mill Board falling under sub item (2) of item No. 17 of the First Schedule to Central Excise and Salt Act on the first 500 Metric tonnes cleared by any manufacturer for home consumption during any financial year. On the subsequent 500 Metric tonnes 25% Ad valarem duty was payable. The petitioners fall in the category of item No.17, Sub-item (2) of the First Schedule to the Act. One of the provisions in this notification was that for determining the rate of duty applicable for the financial year beginning with first day of April, 1975 and ending on the 31st day of March, 1976, the quantity of the goods already cleared prior to the 16th day of March, 1976 was also to be taken into account. In 1980 came another notification (Annexure 3). This notification superseded the 1976 notification. By this notification the Central Government granted certain exemption to goods of the descriptions specified in column 3 of the table attached the do, namely, paper and paper Board, of all sorts and specified articles there of. It is not ill controversy that this notification governs the petitioners as well. This exemption was granted to goods cleared for home consumption on or after the first day of April in any fin.1ncial year. First clearance of the good upto -an aggregate value not exceeding rupees seven and a half lacs was completely exempt from Excise duty. On clearance immediately followed the first clearance of the value exceeding seven lacs, 75%, of the duty leviable on it would be exempted. The exemption granted carried two riders. First clearance of the good upto -an aggregate value not exceeding rupees seven and a half lacs was completely exempt from Excise duty. On clearance immediately followed the first clearance of the value exceeding seven lacs, 75%, of the duty leviable on it would be exempted. The exemption granted carried two riders. The first was that the exemption would not be available where the aggregate value of clearance of all excisable goods for home consumption, from one or more factories, during he preceding financial year exceeded rupees twenty lacs, The exemption would not be available, if the aggregate value of clearance of the specified goods for home commotion, from one or more factories, during the preceding financial year had exceeded rupees fifteen lacs. To cut matter short the petitioners paid Excise duty in terms of the 1976 notification and not in terms of the notification of 1980. 2. It is also not in controversy that the petitioners were entitled to a lower rate of duty in terms of the 1980 notification. On 26.9.1981 the petitioners filed a fresh Classification List claiming that they were liable to pay Excise duty at a lower rate in terms, of 1980 notification. The Classification List was approved on 19.1.1982. Thereafter the, petitioners prayed for refund of the excess amount paid by mistake. Prayer was made for refund of Excise duty paid during the periods (i) 19.6.1980 to 31.3.1981; (ii) 1.4.1981 to 25.9.1981; and (iii) 26.9.1981 to 22.1.1982. The amounts paid during the three periods were respectively Rs. 30,281.03, Rs. 21,558.07 and Rs. 26,962.42. The Assistant collector by ORDER :dated 30.1.1982 allowed the claim of the petitioners for refund of the duty paid during 1.4.1981 to 25.9.1981 and 26.9.1981 to 22.1.1982, but rejected the prayer for refund of the duty of Rs. 30,281.03 paid between 19.6.1980 to 31.3.1981. The Assistant Collector conceded that the petitioners had a right to refund of that duty but rejected the claim on the ground that the petitioners had applied too late and their Claim was barred by limitation. It would be useful to quote the observation of, the Assistant Collector in this regard which reads as follows : "In terms of the cases relating to Premraj and Ganpat Raj Co. Pvt. Ltd. v. Union of India and others 1977 ELT (J 166) (Madras High Court) Claim No.1 for Rs. It would be useful to quote the observation of, the Assistant Collector in this regard which reads as follows : "In terms of the cases relating to Premraj and Ganpat Raj Co. Pvt. Ltd. v. Union of India and others 1977 ELT (J 166) (Madras High Court) Claim No.1 for Rs. 20,281.03 p. for the period from 19.6.1980 to 31.3.81 is clearly time barred, as from the last date of financial year i.e. 31.3.81 six months have already passed on 31.9.81. Accordingly, the claim is rejected in terms of section 11-B of Central Excise Act, 1944. The applicant could however choose to take recourse to civil recovery'" From the above it will be seen that the petitioners claim for refund was rejected on the ground that it had not been claimed within six months of the close of the financial Year. 3. Section 11-B of the Central Excises and Salt Act, 1944 provides that any "person claiming refund of any du8ty of excise may make an application' for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date. 'Relevant date' is defined in Explanation (8) to the same section which reads as follow: “'(B) 'relevant date' means- (a) in the case of goods exported out of India where a refund of excise duty paid is available in respect of the goods themselves or, as the case may be the excisable materials used in the manufacture of such goods,- (i) if the goods are exported by sea or air the date On which the ship or the aircraft in which such goods are loaded leaves India, (ii) if the goods are exported by land, the date on which such goods pass the frontier, or (iii) if the goods are exported by post, the date of despatch of goods by the post office concerned to a place outside India.; (b) in the case of goods returned for being remade, refined, reconditioned, or subjected to any other similar process, in any factory, the date of entry into the factory for the purposes aforesaid. (c) in the case of goods to which banderols are required to be affixed if removed for home consumption but not so required when exported outside India, if required, to a factory after having been removed from such factory for export out of India, the date of entry into the factory; (d) in a case where a manufacturer is required to pay a sum, for a certain period, on the basis of the rate fixed by the Central Government by notification in the Official Gazette in full discharge of his liability for the duty leviable on his production of certain goods, if after the manufacturer has made the payment on the basis of such rate for any period but before the expiry of that period such rate is reduced, the date of such reduction; (e) In a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof; (f) in any other case, the date of payment of duty." ;,: Sub-clauses (a) to (e) are not relevant for the present purposes. The present case must fall in the residuary category of sub-clause (r). In terms of section 11 B(1) (f) it appears that claim for refund must be filed within' six months of the date of payment of duty. The period of claim in the instant case is 19.6.1980 to 31.3.1981. The petitioners have not disclosed when the payment was made. But the Assistant Collector has extended to the limit when he observed in the ORDER :(Annexure 1) that the application for refund should have been filed at least within six months of 31.3.1981. On a perusal of section 11-B the petitioners appear to have no case worth agitating. 4. Mr. K.N. Jain, learned counsel for the petitioners contended that although it cannot be denied that claim for refund must be lodged within six months of the payment of duty in terms of section 11 B, clause (f) Explanation (8) but the date of final assessment In terms of Rule 173-I must be held to be the date of payment and not the actual date when the duty is actually paid. He submitted that assessment of duty on goods cleared is done firstly when the goods are cleared, but that is followed by another assessment at the end of the financial year which is known as final assessment. That final assessment will in the very nature of things take place after the completion of the financial year and, therefore the date of final assessment must be deemed to be the date of payment although, in fact duty had been paid much earlier, i.e, at the time when the goods had been cleared. 5. The submission ignores a fundamental difference in the pattern of assessment under the Income-tax Act and that under the Excise Act. Whereas under the Income-tax Act assessment takes place after the expiry of the relevant accounting year, under the Excise law assessment as well as payment of duty takes place before the clearance of goods. The assessment of duty under the Excise Act, therefore, cannot cross the bounds of the end of the financial year in which the goods have been cleared by the producer. 6. The above submission would have had substance, if the claim for refund had been made within six months of the end of the financial year, i.e. by the 30th March. 1981. Even by this process of reasoning the date of payment cannot be shifted beyond the end of financial year. If the petitioners had lodged their claim within six months of the end of the financial year, this submission would have had substance. But it is not in controversy that the application for refund was filed some time in 1anuary, 1982. 7. Learned counsel for the petitioners then submitted that in terms of Rule 175-I the proper officer is required to assess the duty due on the goods removed and complete the assessment memorandum on the return. From this provision it was submitted that a claim for refund can be made within six months of the date of assessment of duty on goods removed and completion of the assessment memorandum. Let us see how far this submission holds good. 7. (a) Chapter VII-A of the Central Excise Rules lays down the procedure for removal of excisable goods on determination of duty by producers/manufacturers. In ORDER :to appreciate the stand of the respective parties, it is essential to appreciate the process of assessment of Excise duty and payment thereof. Let us see how far this submission holds good. 7. (a) Chapter VII-A of the Central Excise Rules lays down the procedure for removal of excisable goods on determination of duty by producers/manufacturers. In ORDER :to appreciate the stand of the respective parties, it is essential to appreciate the process of assessment of Excise duty and payment thereof. Rule 173-B enjoins an assessee to file with the proper officer for the latter's approval List in such Form as the Collector may direct. This is classification List in Form-C. 'Proper Officer' in terms of Rule 2 (xi) (faint) the officer in whose jurisdiction the premises of the producer of any excisable goods are situated. In classification List the assessee has to state (a) full description of the excisable goods produced or manufactured, (b) the item number of the First Schedule of the Act under which the goods fell, (c) the rate of duty leviable on each goods and (d) such other particulars as the Collector may direct. On receipt of the List the proper officer is required to approve it with or without modification as may be necessary. A copy of the approved List will be returned to the assessee. In terms thereof the assessee is required to determine himself the duty payable 1n the goods intended to be removed in accordance with such List. Sub-rule (3) provides for provisional assessment of good, in terms of rule 9-B. In cases where the assessee disputes the rate of duty approved by the proper officer, the payment of duty may be made under protest at the rate approved by the proper officer. Once the List is approved the assessee is required to go on paying the excise duty in terms thereof at the title of removal of the goods. Sub-rule (4) provides for alteration of the List. If there is a change in the rate or rates of the goods mentioned in the approved List by reason of any amendment the assessee is required to file a fresh List or amended List for the approval of such proper officer. The process of approval will again be gone through. Thus in terms of Rule 173-B the adjudicative part of the duty to be paid is complete when the Classification List has been approved. The process of approval will again be gone through. Thus in terms of Rule 173-B the adjudicative part of the duty to be paid is complete when the Classification List has been approved. It is not final only in such cases where title List approved by Proper Officer is disputed by the assesseee and payment is made under protest. Situations where duty is paid provisionally under protest is covered by section 11-B read with Explanation (B) (e) which reads as follows : "(B) 'relevant dates' means: (e) in a case where duty of excise is paid provisionally under this Act or the rules made thereunder, the date of adjustment of duty after the final assessment thereof." Thus it is patent that final assessment is relevant only for such cases where duty has been paid provisionally under protest. During the period with which we are concerned duty had not been provisionally paid under protest. During subsequent ('periods it had been so done. The assistant Collector, therefore, allowed refund of the duty paid during subsequent periods, but during the period in question the payment was not made under protest. Not having been so done by the assessee, the assessment must be deemed to be complete when the List was approved and the payment of the duty must be held to have been effected when the goods had been cleared in terms of Rule 173-F. The said Rule is as under : " Rule 173-F. Assessee to determine the duty on the goods and to remove them on payment thererof. – Where the assessee has complied with the provisions of Rules 173- B, 173-D and where applicable, 173-C (or 173- Cases Referred :) he shall himself determine his liability for the duty due on the excisable goods intended to be removed and shall not, except as otherwise expressly provided in those rules remove such goods unless he has paid the duty so determined.” It should be appreciated form scheme of things that payment of excise duty is done by self assessment process after the Classification List had been approved. Every time that the goods are cleared, the assessee had to determine his liability himself to pay the duty so determined by himself-before removing the goods. Thus the conjoint effect of rules 173-B and 173-F is that the adjundicative part of the duty is complete when the List is approved. Every time that the goods are cleared, the assessee had to determine his liability himself to pay the duty so determined by himself-before removing the goods. Thus the conjoint effect of rules 173-B and 173-F is that the adjundicative part of the duty is complete when the List is approved. The computation is complete when the goods are about to be cleared and the payment of duty is complete just before the removal of the goods. No adjudication remains to be done after this process has been gone through. The assessment of excisable goods is thus complete even before the payment of duty has been effected. The date for payment, therefore, in the instant case, does not get postponed to some subsequent date. The submission urged on behalf of the petitioners, therefore, cannot be of any avail. 7 (b) To get over the difficulty created be Rules 173-B and 173-F. learned counsel for the petitioners submitted that the process of assessment is complete under the Excise Act only when the assessment by proper officer is completed 'in terms of Rule 173- I. Rule 173-I reads as fellows :- "Rule 173-I: Assessment by proper officer. (1) The proper officer shall on the basis of the information contained in the return filed by the assessee under sub-rule (3) of rule 173-G and after such further inquiry as he may consider necessary, assess the duty due On the goods removed and complete the assessment memorandum on the returns. A copy on the return so completed shall be sent to the assessee (2) The duty determined and paid by the assessee under rule 173-F shall be adjusted against the duty assessed by the proper officer under sub-rule (1) and where the duty so assessed is more than the duty determined and paid by the assessee, the assessee shall pay the decadency by making a debit in the account current within ten day' of receipt of copy of the return from proper officer and where such duty is less, the assessee shall take credit in the account-current for the excess on receipt of the assessment ORDER :in the copy of the return duty counter signed by a Superintendent of Central Excise. The above rule refers to rule 173-G. The The full import of rule 173-I cannot be gauged until the content of rule 173-G has been appreciated. The above rule refers to rule 173-G. The The full import of rule 173-I cannot be gauged until the content of rule 173-G has been appreciated. This rule prescribes the procedure to be followed by the assessee in the matter, of excise duty. Rule 173-G (1) enjons upon every assessee to keep an account-current with the Collector Separately for each excisable goods falling under different Aterns under First Schedule to the Act and the assessee must periodically make credit in such current-account by cash payment into the treasury, so as to keep the balance, in such current account sufficient to cover the duty due on the goods intended to be removed at any time; and every assessee shall pay the duty determined by him for each consignment by debiting such account current before removal of the goods. Sub-rule (2) requires the assessee to forthwith remove the goods on which duty has been determined and paid. Every such removal must take place under a gate-pass. Such gate pass shall also show the rare and the amount of duty paid on the goods and the time of actual removal of the goods from the factory. Sub-rule (3) prescribes that seven days after the close of each month every assessee must fife with the proper officer in-quintuplicate a monthly return in the proper Form. This monthly return will show the quantity of excisable goods manufactured or, received under bond during the month, the quantity used, within the factory for the manufacture of another commodity the quantity removed on payment of duty from the place or premises the duty paid on such quantity, particulars of gate-passes or like documents under which such quantity was removed, the quantity removed without payment of duty for export or otherwise and such other particulars as may be prescribed by the Collector. Sub-rule (4) enjoins every assessee to maintain such accounts, as the Collector may from time to time require. Sub-rule (5) requires the assessee to furnish to the proper Officer a List in duplicate of all accounts maintained and returns prepared by him in regard to production, manufacture, storage, delivery or disposal of the goods, including the raw materials. Sub-rule (4) enjoins every assessee to maintain such accounts, as the Collector may from time to time require. Sub-rule (5) requires the assessee to furnish to the proper Officer a List in duplicate of all accounts maintained and returns prepared by him in regard to production, manufacture, storage, delivery or disposal of the goods, including the raw materials. Sub-rule (6) enjoins the assessee to produce on demand to the Central Excise Officers, or the audit parties deputed by the Collector or the Controller and Auditor General of India the accounts and returns and the oost audit reports under section 233 B of the Companies Act, 1956. That in short is the skeletal provision in regard to the procedure to be followed by the assessee. The procedure thus comes to this that after a factory has gode into production or if there has been any change in the items or the duty, the assessee is required to file a Classification List for approval of the proper Officer. This Classification List contains the Item under which the goods fall and the rate at which duty is to be paid. After this has been approved, the assessee must determine the duty payable on the goods himself. The goods cal1 be removed only after the assessee has paid the duty so determined by himself in terms of rule 173-F. Then comes the stage of rule 173-G. In terms of this the assessee has to lodge various Items with the Collector showing the nature and quantity of goods the duty paid etc. This rule requires monthly filing of documents with the Collector by the assessee After this process has been gone through month after month, at the end of the financial year comes the stage postulated by rule 173-I. On the basis of the return filed by the assessee under sub-rule (3) of Rule 173-G and after such further inquiry as the proper Officer may consider necessary, he will assess the duty due on the goods removed and complete the assessment memorandum on the return. In terms of this rule thus the assessee bas to bring up-to-date figures returned by the assessee during the whole year. This is a sort of check at the end of the year whether all duties had been paid or not. At the end of the year it may be found that the assessee bas, in fact, paid excess amount. In terms of this rule thus the assessee bas to bring up-to-date figures returned by the assessee during the whole year. This is a sort of check at the end of the year whether all duties had been paid or not. At the end of the year it may be found that the assessee bas, in fact, paid excess amount. If the duty paid is more than what is determined, the assessee will take credit in the current account and if the duty paid is less than that determined under rule 173-I, the assessee shall pay the deficit in the account-current within ten days on receipt of copy of the return from proper officer. Rule 173-I thus does not contemplate any adjudicatory process. It is only a calculatory part. The adjudication is complete the moment the Classification List bas been approved. Thereafter, payment will be made regularly month after month, The assessment contemplated by rule 173-I is really a rounding up of the duty paid or liable to be paid. This is just a clerical part. I cannot lose sight of the fact that where at the end of one year duty has been paid in terms of the assessment done by the proper Officer in terms of rule 173- I(1), the date of payment may be extended to the date the payment is made after, final assessment in terms of rule 173-I. The date of payment of the duty, however, will not be shifted to the end of the year in cases where the duty has been appropriately paid month after month, so that at the end of the year it is found that the duty has been correctly paid or bas been overpaid. In those situations, the date of payment of the duty must be held to be the date on which the same was actually paid. In the terms of the pattern of the Excise Rules, no cash payment is done, but only sum is debited from the account current maintained by the assessee at the treasury. In that situation, the date of debit must be the date of payment. I have some difficulty in holding that the date of assessment in terms of rule 173-I must be held to be the date of payment. Assessment and payment are two well known concepts under the excise law. In that situation, the date of debit must be the date of payment. I have some difficulty in holding that the date of assessment in terms of rule 173-I must be held to be the date of payment. Assessment and payment are two well known concepts under the excise law. The framers of the law must be given the credit for appreciating the import of two words when the parliament' prescribed six months as the maximum time for claiming refund from the date of payment. There is no rationale for substituting the date of payment with date of final assessment. In the scheme of things every assessee must and does know the rate of duty to be paid On specific items. The rates which must include exemption is known to every producer. Whenever, therefore, there is a change in the rates or in the items, the assessee is required to file Classification List for approval of the proper Officer. The duty will be paid in accordance with the approved Classification List. The assessee, after that List has been approved, knows the rate which the duty on the goods to be cleared are to be paid. In accordance therewith he makes payment at the time of every clearance. I see no justification for giving the' date air payment an artificial meaning so as to postpone the adjudicatory process to the end of the year. 8. Applying the above principles let us see how the facts come out. The notification granting the exemption was issued On 19.6.1980. The petitioners were required to file Classification List immediately, in terms of the notification (Annexure-3) and in terms of the exemption. The petitioners did not do so till January 1982. We do not know the nature of the ORDER :passed at the close of 1982-83 financial year in terms of rule 173-I. Assuming that such an ORDER :was passed, the date of payment can be stretched at the maximum to 31st March, 81. The application for refund should therefore, have been filed by 30th September, 1981. No such application was filed. In that view of the matter, the application for refund Was clearly barred in terms of section 118 (1). 9. Learned counsel for the petitioners contended that he was not aware of the issuance of annexure-3 by which exemption had been granted. The application for refund should therefore, have been filed by 30th September, 1981. No such application was filed. In that view of the matter, the application for refund Was clearly barred in terms of section 118 (1). 9. Learned counsel for the petitioners contended that he was not aware of the issuance of annexure-3 by which exemption had been granted. I have some difficulty in accepting the assertion of the petitioners that they did not know about a favour shown to them. The notification is statutory. The petitioners cannot plead ignorance. From the legal aspect thus the petitioners will be deemed to have knowledge of the notification. From the factual angle I have difficulty in accepting that the petitioners did not know about the promulgation of the notification. Thus until the Classification List had been filed, the petitioners would not be entitled to the benefit of the exemption. The Assistant Collector has stated in his ORDER :(Annexure-1) dated 30.1.1982 as follows: After a careful consideration of the revised classification effective from 26.9.81 submitted by them to avail exemption under notification no. 80/80 dated 19.6.80 read with notification No. 50/81 dated 1.3.81 was approved on 19.1.82." The above observation of the Assistant Collector gives the impression that the Classifications List in terms of rule 173-B was filed on 23.9.1981. This was approved on 19.1.1982. Payment made from 26.9.81 were under protest. The Assistant Collector, therefore, ORDER :ed refund of excess duty realised from 26.9.1981. The application for refund was not filed within six months of the date of payment. The payment bad been made much before six months of the date of application. The Assistant Collector was, therefore, fully justified in refusing to ORDER :refund of duty amounting to Rs. 30,282.03 realised as Excise duty from the petitioners between 19.6.1980 to 31.3.1981. The learned Assistant Collector was fully justified in observing that the bar of limitation runs from the last date of the financial year within the meaning of section 118 of the Central Excise and Salt Act, 1944. Assuming that the petitioners case is one where annual turnover was the criteria for exemption, the limitation applying for refund would start running from 31.3.1981. No application for refund having been filed within six months thereof the application was certainly barred by time. 10. Before closing this chapter it is essential to take note of some decisions cited at the Bar. No application for refund having been filed within six months thereof the application was certainly barred by time. 10. Before closing this chapter it is essential to take note of some decisions cited at the Bar. Learned counsel for the petitioners placed reliance upon 1983 E. L. T. 281 : I. T. G. v. Superintendent of Central Excise and others. On the basis of that decision of the Delhi High Court, it was contended that if the payment of duty has been made under mistake the Revenue was liable to refund it. I regret the Delhi case was decided upon its own facts which do not have much relevance to the case before us. That was a case where the manufacturer was selling its products to wholesale buyers and for dealers who in their turn were selling them to secondary wholesalers. The secondary wholesalers were selling the products to retailers who were re-selling them to consumers. The sale by the manufacturer to wholesale buyers or dealers was in large bulk on principal to principal basis. The parties did not have any interest in each other's business. During the relevant period the manufacturer followed the Self Removal Procedure and upon interpretation of section 4 they were assessing On the basis of prices charged by the wholesale dealers to the secondary wholesalers. On that basis itself the assessment was being made. After some years the Supreme Court in A.I.R. 1973 Supreme Court 225-1977 E.L.T. (J .177) : R. K. Roy and another v. Voltas Ltd. decided the matter in tams of which the assessee had to value the goods on the basis of prices charged by the manufacturer to the wholesale buyer of dealer on principal to principal basis, judging by the test of the law laid down by the Supreme Court, the assessee filed claim for refund of excess Excise duty paid. The assessee contended that it was under bonafide mistake that duty had to be paid On a particular rate. In those circumstances, that Delhi High Court held that the excess duty paid was de hors the provisions of the Statute. It was patent in that case that the realisation of duty was without the authority of law. The situation is different in the instant case. In those circumstances, that Delhi High Court held that the excess duty paid was de hors the provisions of the Statute. It was patent in that case that the realisation of duty was without the authority of law. The situation is different in the instant case. The law in regard to refund of Excise duty was succinctly laid down by the Supreme Court in Patel India (Private) Ltd. v. Union of India and others. A.I.R. 1973 Supreme Court 1300. It was laid down that where an assessment has been made and duty collected under Sea Customs Act without authority of law. the limitation provided in the Act will not apply and the aggrieved party would be entitled to claim refund without reference to the time limit. 'The Supreme Court, however, observed that such provision would apply only to cases where duties have been paid through inadvertence, error or misconstruction, and that only in those instances, the refund application could be made beyond the time prescribed from the date of the payment. In the instant case, there can be no question of realising duty without authority of law. The petitioners were liable to pay the duty under a particular item. Only question is at what rate the duty would be paid. For that purpose the petitioners had to file Classification List. They did not do so. This is not a case of misconstruction of the Statute or of any error on the part of the assessee. The Delhi case, therefore, cannot be of much avil to the petitioners. 11. Learned counsel for the petitioners also placed reliance upon 1981 ECR (Excise & Customs Reporter) 480 : The Madras Rubber Factory, Madras v. The Assistant Collector of Central Excise, Madras I Division Madras and another. That case also proceeded on the footing that the duty had been paid under the mistake of law. In that case duty bad been paid by the petitioner on• the value of the tin container which was not liable to be taken into account. There was, therefore, a question of misconstruction of law which situation is different in the instant case. 12. The next case cited at the Bar on behalf of the petitioners was the decision of the Calcutta High Court in 1981 ECR 1979 (Calcutta) : Khardah Co. Ltd v. Union of India and others. That was a case of payment of duty under compulsion. 12. The next case cited at the Bar on behalf of the petitioners was the decision of the Calcutta High Court in 1981 ECR 1979 (Calcutta) : Khardah Co. Ltd v. Union of India and others. That was a case of payment of duty under compulsion. The Calcutta decision proceeded upon its own facts and can be no authority for the case before us In my view none of the decisions cited on behalf of the petitioners can be of any help to them. 13. The application for issuance of writ must, therefore, fail. The Assistant Collector Ins observed that the applicant could get the excess duty paid recovered through a civil suit. The petitioners are not thus without a remedy. The petitioners having slept at the crucial time cannot claim a writ by way of expeditious process. If they are so advised, they may file a suit for recovery of the duty paid So far as the question of limitation arises, that will be a matter for the Civil Court to consider whether the filing and pending of the present writ application was sufficient cause for failure to file a suit within the period prescribed by law. 14. For the reasons, stated above. I see no merit in this application. It is dismissed accordingly, but in the circumstances of the case, there will be no ORDER :as to costs. Nazir Ahmad, J. – I agree.