' AJMAL MIAN, J.--This is an appeal with the leave of the Court against the order dated 10-8-1992 passed by a Division Bench of the High Court of Sindh in Constitution Petition No,D-1440 of 1992, filed by the appellant pertaining to the orders of the official respondents declining to ref the Rs,4,61,145 paid by the appellant as duties and taxes in respect of imported salinomycin though the same was exempted from the payment of customs duty and sales tax under section 19 of the Customs Act, 1969, hereinafter referred to as the Act, and section 7 of the Sales Tax Act, 1951, dismissing the same in limine.
2. Leave to appeal was granted to consider, as to whether refusal on the part of the official respondents to refund the above sum has deprived the appellant to have, hold and enjoy its property, being violative of Articles 2A, 4, 18, 24 and 25 of the Constitution of the Islamic Republic of Pakistan, 1973, hereinafter referred to as the Constitution.
3. The brief facts are that the appellant manufactures medicines of which the maximum prices are fixed by the government of Pakistan. In the manufacturing process they inter alia use salinomycin which is one of the main ingredients of the medicines which, according to the appellant, is exempted from the payment of customs duty and sales tax under S.R.O. 349(1)/85 dated 15-4-1985 issued under section 19 of the Act and subsection (1) of section 7 of the Sales Tax Act, 1951, amended by S.R.O. 1148(1)/89, dated 27-11-1989.
4. It seems that the appellant filed bill of Entry No,1533 on 27-11-1989 for clearance of salinomycin, on which respondent No,3 assessed the aforesaid sum of Rs,4,61,145 as duties and taxes, which the appellant paid and got the goods cleared. It appears that after the expiry of nearly 1-1/2 years they filed an application on 20-4-1991 for refund of the above amount before respondent No,3, who rejected the same on the ground that the aforementioned application was not filed within six months as provided in section 33 of the Act. The appellant's appeal and revision were also dismissed by orders dated 6-11-1991 and 28-3-1992 by respondent No,2 and respondent No,1 respectively. After that the appellant filed aforesaid Constitution Petition in the .High Court of Sindh, which was dismissed in limine by a Division Bench by observing that the ground taken by the appellant that they were under the impression that it would file the claim after they had consumed the imported goods was not sustainable and that the appellant did not come within the term "good faith". Thereupon they filed a petition for leave to appeal which was granted to consider the above question.
5. The above appeal had come up for hearing before this Court on 20-10-1997. However, it was adjourned on the joint request of the learned counsel for the parties to second week of November, 1997. The appeal had come up for hearing before us on 13-11-1997 when Mr. S.M. Abbas, learned Advocate-on-Record appearing for the respondents, requested that the hearing be adjourned as the respondents were unable to engage a counsel. Since the appeal was adjounred on the joint request of the learned counsel for the parties on 20-10-1997 nearly four weeks back, we declined the above request and asked Mr. S.M. Abbas, learned Advocate-on-Record to assist the Court on behalf of the respondents.
6. In support of the above appeal Mr. Makhdoom Ali Khan, learned Advocate Supreme Court for the appellant, has urged as follows:--
(i) That in view of Article 77 of the Constitution no tax could have been levied without the authority of the Parliament and any tax recovered illegally is refundable.
(ii) That where goods are exempt from tax under a notification and in spite of that customs duty and taxes are recovered, for claiming refund limitation of six months provided in section 33 of the Act is not applicable.
(iii) That a duty which is paid not on demand but without knowledge of the exemption notification, must be refunded.
(iv) That where duty is paid under a mistake, section 72 of the Contract Act, 1872, would apply for claiming refund of such amount through a suit and under Article 96 of the Schedule to the Limitation Act a period of three years is provided and that section 33 of the Act would have no application.
(v) That the state should not defeat a claim of a citizen in respect of an amount illegally recovered on the plea of limitation.
' On the other hand, Mr. S.M. Abbas, learned Advocate-on-Record for the respondents, has submitted that the plea that appellants were not aware of the above notification of exemption is belied by para. (F) of the grounds of memo. Of appeal, wherein they have alleged that they in good faith genuinely believed that they could apply for refund after they could satisfy the authorities that they had consumed the raw material for the manufacturing of medicines. He has further contended that the appellant had paid the duty on 27-11-1989 and refund of the same was, claimed on 20-4-1991, admittedly, beyond the period of six months provided under section 33 of the Act and, hence, the respondents were justified in declining the aforesaid request and that the High Court also acted within its jurisdiction by dismissing the aforementioned Constitution Petition.
He has further urged that though the appellant have alleged that they had applied for extension of time under section 224 of the Act but neither a copy of any alleged application filed by them has been produced nor any order passed thereon declining the above request. According to him this is an afterthought plea of the appellant.
7. There seems to be no factual controversy on the question that salinomycin was exempted from the payment of customs duty and sales tax. In this view of the matter, it seems to be an admitted position that the appellant had paid the aforesaid amount to the respondents which they were not liable to pay under the law. The basic question which requires consideration is, as to whether the appellants were entitled to refund of the above sum in spite of the fact that they applied for its refund after expiry of six months' period mentioned in section 33 of the Act. They were late in approaching for the refund of the said amount for nearly one year.
8. Before proceeding with the matter any further, we may refer to subsections (1), (2) and (3) of section 32, section 33 and section 224 of the Act, which read as under:-- ' Subsections (1), (2) and (3) of section 32: "32, Untrue statement, error, etc.--If any person, in connection with any matter of customs,--
(a) makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other document whatsoever, or
(b) makes any statement in answer to any question put to him by an officer of customs which he is required by or under this Act to answer, knowing or having reason to believe that such document or statement is false in any material particular, he shall be guilty of an offence under this section.
(2) Where, by reason of any such document or statement as aforesaid or by reason of some collusion, any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within three years of the relevant date, requiring him to show cause why he should not pay the amount specified in the notice.
(3) Where, by reason of any inadvertence, error or misconstruction, any duty or charge has not been levied or has been short-levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within six months of the relevant date requiring him to show cause why he should not pay the amount specified in the notice."
' Section 33 of the Act: "33. Refund to be claimed within six months.--(1) No refund of any customs-duties or charges claimed to have been paid or over-paid through inadvertence, error or misconstruction shall be allowed, unless such claim is made within six months of the date of payment.
(2) In the case of provisional payments made under section 81, the said period of six months shall be reckoned from the date of the adjustment of duty after its final assessment."
' Section 224 of the Act: "224. Extension of time limit. --The Federal government, the Board or the appropriate officer of customs, may, upon being approached by an aggrieved party if satisfied that the delay was beyond the control of the applicant and that by granting such extension there is a possibility of some loss or hardship to the applicant being mitigated or prevented, extend the time limit laid down in any section."
A perusal of above subsection (1) of section 32 of the Act indicates that if any person, in connection with any matter of customs, makes or signs or causes to be made or signed, or delivers or causes to be delivered to an officer of customs any declaration, notice, certificate or other documents whatsoever, or makes any statement in answer to any question put to him by an officer of customs which he is required by or under the Act to answer, knowing or having reason to believe that such document or statement is false in any material particular, he shall be guilty of an offence under the above section.
' It may further be noticed that subsection (2) lays down that where, by reason of any such document or statement i,e, a document or statement referred to in subsection (1) or by reason of some collusion, any duty or charge has not been levied or has been short-levied or has been erroneously mfunded, the person liable to pay any amount on that account shall be served with anotice within three years of the relevant date (relevant date has been defined in subsection (5) of section 32 of the Act), requiring him to show cause why he should not pay the amount specified in the notice.
' It may also be pointed out that subsection (3) deals with the cases where, by reason of any inadvertence, error or misconstruction, any duty or charge has not been levied or has been short- levied or has been erroneously refunded, the person liable to pay any amount on that account shall be served with a notice within six months of the relevant date requiring him to show .Cause why he should not pay the amount specified in the notice.
' It may be highlighted that above subsection (2) provides a period of three years where non- recovery or short-levy or the refund is on account of untrue statement made orally or through a document by the person concerned. Whereas under subsection (3), where the non-levy or short- levy or the refund of the amount has been made on account of any inadvertence; error or misconstruction, the period of six months has been provided for the government to serve a show- cause notice.
' It may be noticed that subsection (1) of section 33 of the Act is couched in the negative language by providing that no refund of any customs-duties or charges claimed to have been paid or over- paid through inadvertence, error or misconstruction shall be allowed, unless such claim is made within six months of the date of payment. Whereas subsection (2) thereof lays down that in the case of provisional payments made under section 81, the said period of six months I shall be reckoned from the date of adjustment of duty after its final assessment.
' It may be noted that section 224 of the Act provides that the Federal government, the Board or the appropriate officer of customs, may, upon being approached by an aggrieved party if satisfied that the delay was beyond the control of the applicant and that by granting such extension there is a possibility of some loss or hardship to the applicant being mitigated or prevented, extend the time limit laid down in any section.
9. It may not be out of context to observe that where there is no element of unfair act on the part of the person involved and by reason of any inadvertence, error or misconstruction, any duty or charge has not been levied or short-levied or has been erroneously refunded, a period of six months has been provided for the government to serve a notice for the demand on the person concerned. Similarly, under section 33 of the Act, a person who has paid or over-paid customs- duties or charges through inadvertence, error or misconstruction, is entitled to claim the refund of the same within six months from the date of payment. In other words, the government and a citizen are placed at par as to the period of limitation. It may further be pointed out that under section 224 of the Act, extension can be granted if an aggrieved party can satisfy that the delay was beyond his control and not for any other reason.
10. Having dealt with the factual background of the case and the relevant provisions of the Act, we may now refer to the case-law relied upon by Mr. Makhdoom Ali Khan, learned counsel for the appellant.
(i) The Sales Tax Officer, Banaras and others, Appellants v. Kanhaiya Lal Makund Lal Saraf, Respondent, Agra Bullion Exchange and others, Intervenors AIR 1959 SC 135;in which the facts were that the respondent was a firm registered under the Indian Partnership Act dealing in Bullion gold and Silver ornaments and forward contracts in Silver bullion at Banaras. In the assessment years 1948-49, 1949-50 and 1950-51, the Sales Tax Officer, Banaras, the appellant before the Supreme Court, assessed the respondent to U.P. Sales Tax on its forward transactions in Silver Bullion. The respondent had deposited the sums of Rs,150-12-0, Rs,470-0-0 and Rs,741-0-0 for the aforesaid three years, which amounts were appropriated towards the sales tax liability of the respondent firm under the respective years. The levy of sales tax on forward transactions was held ultra vires by the High Court of Allahabad by its judgment dated 27-2-1952. The respondent by its letter dated 8-7- 1952 asked for refund of the amount of sales tax paid as aforesaid. The appellant No,2 i,e, the Commissioner of Sales Tax, U.P., Lucknow, however, by his letter dated 19-7-1952 refused to refund the same. After that the respondent filed a Civil Miscellaneous Writ Petition in the High Court of Allahabad under Article 226 of the Indian Constitution and asked for a writ of certiorari for quashing the aforementioned three assessm ent orders and a writ of mandamus requiring the appellants to refund the above sums aggregating to Rs,1365-12-0. It may be stated that the aforesaid judgment of the Allahabad High Court declaring levy of sales tax on forward transactions as ultra vires was affirmed by the Indian Supreme Court in the case of Sales Tax Officer v. Budhparkash Ji AIR 1954 SC
459. The respondent's aforesaid writ petition was allowed by the Allahabad High Court and the Revenue was directed to refund the amount paid by the respondent. Against the above judgment, the Revenue Officer filed an appeal before the Indian Supreme Court. The Indian Supreme Court while maintaining the judgment of the Allahabad High Court observed as under as to the applicability of section 72 of the Contract Act:-- "24. We are of opinion that this interpretation put by their lordships of the Privy Council on section 72 is correct. There is no warrant for ascribing any limited meaning to the word 'mistake' as has been used therein and it is wide enough to cover not only a mistake of fact but also a mistake of law.
There is no conflict between the provisions of section 72 on the one hand and sections 21 and 22 of the Indian Contract Act on the other and the true principle enunciated is that if one party under a mistake, whether of fact or law, pays to another party money which is not due by contract or otherwise that money must be repaid. The mistake lies in thinking that the money paid was due when in fact it was not due and that mistake, if established entitles the party paying the money to recover it back from the party receiving the same."
' It was observed by the Indian Supreme Court in the above report that merely because the State had not retained the monies paid as sales tax by the assessee but had spent them away in the ordinary course of business of the State would not make any difference to the position and under the plain terms of section 72 of the Contract Act, the assessee would be entitled to recover the monies paid under a mistake of law. It was further observed that the question of estoppel did not arise.
(ii) Aluminium Corporation of India Ltd., Appellant v. Union of India and others, Respondents AIR 1975 SC 2279: ' In the above case the facts were that the appellant company manufactured aluminium plates, sheets circles, strips and foils which were the end products of its composite factory, but, as intermediate products, it also manufactured ingots, bars, slabs, billets, pellets and the like which got consumed mostly in the process of manufacturing of plates, sheets and other end products and rarely by way of sale of slabs as such. The raw material i,e, aluminium was extracted by the company from bauxite from which ingots, slabs and the like were made which, in turn, were rolled into sheets, circles etc., for sale. It was an admitted positon that in the above manufacturing process about 50 per cent. Of the ingots, slabs and billets used for further manufacture of plates, sheets, circles, slabs etc., became scrap and were melted to be put back alongwith raw scrap for the purpose of recycling. To avoid complication experienced in the enforcement of the two-tier system of levy of duty at different rates prevailing from 1960, a notification was issued under Rule 8(1) of the Central Excise Rules, 1944, imposing a single point levy at the ultimate stage of the manufacture. The appellant company claimed refund of over-levied excise duty. They were unsuccessful before the Revenue and the High Court. The Indian Supreme Court while allowing the appeal of the company (the judgment of which was authored by V.R. Krishna Iyer, J.) observed as follows:-- "13. To return what has been taken wrongly is as much a duty and grace of government as to levy relentlessly and fully what is due. Default in either, not altogether unfamiliar, brings down the confidence of the community in the Administration. That a party should have been put to two expensive and elongated litigations to recover a relatively small sum is regrettable."
(iii) The Madras Port Trust, Appellant v.- Hymanshu International by its Proprietor v. Venkatadri
(dead) by L.Rs,, Respondents AIR 1979 SC 1144: ' in which the Madras Port Trust brought an appeal before the Indian Supreme Court against the judgment of the High Court whereby a decree for Rs,4,838.87 was granted to the respondent in respect of the refund claimed by them on account of the amount paid by them as wharfage, demurrage and transit charges. The only question on which leave was granted by the Indian Supreme Court was, whether the claim of the respondent for refund of the amount of wharfage, demurrage and transit charges was barred by section 110 of the Madras Port Trust Act (II of 1905).
The Indian Supreme Court while recalling the leave granting order observed as under:-- "2. We do not think that this is a fit case where we should proceed to determine whether the claim of the respondent was barred by section 110 of the Madras Port Trust Act (II of 1905). The plea of limitation based on this section is one which the Court always looks upon with disfavour and it is unfortunate that a public authority like the Port Trust should, in all morality and justice, take up such a plea to defeat a just claim of the citizen. It is high time that governments and public authorities adopt the practice of not relying upon technical pleas for the purpose of defeating legitimate claims of citizens and do what is fair and just to the citizens. Of course, if a government or a public authority takes up a technical plea the Court has to decide it and if the plea is well-founded, it has to be upheld by the Court, but what we feel is that such a plea should not ordinarily be taken up by a government or a public authority, unless of course the claim is not well-founded and by reason of delay in filing it, the evidence for the purpose of resisting such a claim has become unavailable.
Here, it is obvious that the claim of the respondent was a just claim supported as it was by the recommendation of the Assistant Collector of Customs and hence in the exercise of our discretion under Article 136 of the Constitution, we do not see any reason why we should proceed to hear this appeal and adjudicate upon the plea of the appellant based on section 110 of the Madras Port Trust Act (II of 1905)."
(iv) Messrs Shiv Shanker Dal Mills etc. v. State of Haryana and others AIR 1980 SC 1037: ' In the above case the facts were that the appellants who were petitioners before the High Court in Constitution Petitions had paid market fee at the increased rate of 3 per cent. (raised from the original 2 per cent.). The Indian Supreme Court in the case of Kewal Krishna v. State of Punjab AIR 1980 SC 1008) decided on 4-5-1979 held that cess of 1% over the original rate of 2% was ultra vires.
After that the appellants filed Constitution petitions in the High Court claiming refund of the excess amount paid by them but failed to get any redress. Thereupon they filed an appeal with the leave of the Indian Supreme Court which was allowed. Again the above judgment was authored by Krishna Iyer, J., who made the following weighty observations:-- "Where public bodies, under colour of public laws, recover people's moneys, later discovered to be erroneous levies the dharma of the situation of no equivocation. There is no law of limitation, especially for public bodies, on the virtue of returning what was wrongly recovered to whom it belongs. Nor is it palatable to our jurisprudence to turn down the prayer for high prerogative writs, on the negative plea of "alternative remedy", since the root principle of law married to justice, is ubi jus ibi remedium." . ....... ......
'In our jurisdiction, social justice is a pervasive presence; and so, save in special situations it is fair to be guided by the strategy of equity by asking those who claim the service of the judicial process to embrace the basic rule of distributive justice, while moulding the relief, by consenting to restore little sums, taken in little transactions, from little persons, to whom they belong' ."
(v) The Commissioner of Sales Tax, U.P. v. Messrs Auriaya Chamber of Commerce, Allahabad 1986
(8) ECR 1 (S.C): in which the facts were that the respondent paid sales tax on 'forward contracts' (not being completed sales) during the assessment period 1949 under the belief that the tax was due and payable. In May, 1954 the Indian Supreme Court in another case declared that such taxation was ultra vires as the scope of the words "Taxes on the sale of goods" did not extend to 'agreements to sell'. Thereupon, the assessee filed a revision petition in 1955 for the refund of the tax deposited by mistake which was rejected as time-barred. Again on 24-5-1959 the assessee filed an application for the refund of the tax. This claim was also held by the authorities to be hit by limitation. Finally the assessee succeeded in obtaining relief from the Additional Judge (Revisions) who held that when the assessm ent was made and taxes were paid there was no limitation as section 29 having come into operation with effect from 1-4-1959. The matter was brought before the Indian Supreme Court by the Revenue which maintained the above order of the Additional Judge (Revisions) and made inter alia the following observations:-- "13. Though not in this context but in a different context, the question whether tax collected by the State without authority of law can be directed to be refunded without any period of limitation was considered in a writ application by the Calcutta High Court in Suresh Chandra Bose v. The State of West Bengal (38 STC 99). This decision of the Single Judge of the Calcutta High Court was approved by the Division Bench of that High Court in State of West Bengal and others v. Suresh Chandra Bose 45 STC 118. The Court under Article 226 directed refund in that case. The Court emphasised that when moneys are paid to the State which the State has no legal right to receive, it is ordinarily the duty of the State subject to any special provisions of any particular statute or special facts and circumstances of the case, to refund the tax of the amount paid."
16. We might in this case bear in mind certain observations, though we are conscious that the same was rendered in a different context, of this Court in Hindustan Sugar Mills etc. v. State of Rajasthan and others (1970) 1 SCR 276 at 297--ECR C 557--SC) where directing payment of certain sales tax collected from the assessee, this Court observed that though there was no legal liability on the Central government but as we are living in a democratic society governed by the rule of law and every government which claims to be inspired by ethical and moral values must do what is fair and just to the citizen, regardless of legal technicalities, this Court hoped and trusted that the Central government would not seek to defeat the legitimate claim of the assessee for reimbursement of sales tax in that case on the amount of freight by adopting a legalistic attitude but would do what fairness and justice demanded.
23. Section 72 of the Indian Contract Act, 1872 recognised that a person to whom money has been paid, or anything delivered, by mistake or under coercion, must repay or return it. In this case it is not disputed that mistake of law is also a mistake covered by the provisions of section 72 of the Indian Contract Act. If the Law declared by this Court in Budh Prakash Jai Prakash's case (supra) is correct, as it must be, then the payment of tax by the dealer, the respondent herein, was under a mistake of law and realisation by the revenue authorities was also under a mistake. Therefore such sum should be refunded. This is recognised in the provisions of the Act as we have noted before.
The principle of section 72 of the Indian Contract Act has been recognised."
' The various High Courts in India took the views in line of the above Indian Supreme Court cases while dealing with the question of refund of taxes and other charges paid by a citizen. In this regard reference may be made to the following reports:--
(i) The Svadeshi Mills Company Limited v. Union of India and others 1982 ECR 165D (Born.): ' in which a learned Single Judge of the Bombay High Court held that a duty cannot be levied twice on the same goods and limitation is not applicable when duties are paid under a mistake of law and collected without the authority of law.
(ii) Maharashtra Vegetable Products Pvt. Ltd. And another v. The Union of India and others 1982 ECR 929D (Born.): ' In the above case a Division Bench of the Bombay High Court held that post-manufacturing expenses could not be included in assessable value. It further held that Rule 11 of the Central Excises and Salt Rules, 1944, as to the limitation for claiming refund within a period of one year was not applicable to a claim for refund of unauthorised levy, nor alternate remedy by way of a suit is a bar to a Constitution Petition under Article 226 of the Indian Constitution. The Constitution Petition of the assessee was allowed.
(iii) Western Rolling Mills Pvt. Ltd. And another v. Union of India and others 1983 ECR 509D (Born.): ' In the above case the facts were that the petitioners who were the manufacturers of re-rolled iron and steel products were unaware of the notifications dated 30-11-1963 and 14-8-1965 which exempted their products from excise duty, paid a sum of Rs,1,92,944.01 for the period from 23-3-1971 to 26-3-1973. They applied for refund without any success inter alia on the plea that the claim was hit by Rule 11. Then they filed a Constitution Petition which was allowed by a learned Single Judge of the High Court. He commented as under as to Rule 11 relating to limitation:-- "7. Learned counsel appearing for the petitioners drew my attention to the judgment of this Court in golden Tobacco Company Limited v. The Union of India and another 1982 ECR 584D. The petitioners in that case were assessed to excise duty upon the basis that the manufacturing costs, the manufacturers' profits, the wholesale dealers' selling costs and the selling profits represented the real value of the goods for the purposes of assessment of excise duty. It was not disputed that in view of the position settled by various judgments, the petitioners had been assessed to excise duty on a wrong basis. What was contended was that the respondents were not bound to refund to the petitioners any amount collected by them contrary to law for any period which was beyond the period of limitation provided by Rule 11. It was held that the jurisdiction of the Central Excise Authorities was to recover duty according to law and, therefore, if any duty was recovered on post manufacturing cost or profits, it was not permissible in law. Such levy clearly amounted to exercising excess of jurisdiction or acting without jurisdiction and could not be held merely to be an error of jurisdiction . And it therefore, could not be construed as resulting from any error or misconstruction as contemplated by Rule 11. A similar view is taken in the Swadeshi Mills Company Limited v. Union of India and others 1982 ECR 165D, in which Madon, J. Commented as referred to by me earlier.
(iv) Autometers Ltd. And another v. Union of India and others (1987) 29 ELT 3 (Delhi); ' in which a learned Single Judge of the Delhi High Court allowed a Constitution petition of the petitioner company for the refund of the excess amount of customs duty levied and collected i,e, amounting to Rs,1,70,201.50. It was held that if the customs duty was realised in excess than what was permissible, its realisation was outside the statutory authority, therefore, the provision of section 27(1) of the Customs Act, 1982, in regard to time limit of six months was not attracted.
(v) Messrs Dayapara Tea Co. Ltd. v. Assistant Collector of Central Excise and others 1988 (16) ECR 458 (Cal.); ' In the above case the facts were that by a notification dated 1-7-1973, first 50 tonnes of household laundry soap were exempted from the whole of Excise duty in any financial year provided the total production in the preceding financial year had not exceeded 500 tonnes. The petitioners paid the Excise duty without availing this concession. On coming to know about the above concession they preferred a refund claim on 7-12-1974 for duty paid under mistake for the period from 13-11-1972 to 11-1-1973, which was rejected by the department on the ground that it was time-barred under Rule 11 of the Central Excise Rules. The matter was brought before the Calcutta High Court, where S.R.
Roy, J. While allowing the petition observed as under:- "17. So, here is not a case where any duty was illegally or erroneously demanded and realised by the excise authorities. It is a case of payment of excise duty without knowledge that under an exemption Notification a part of the goods was exempted from payment of excise duty.
18. It now seems to be well-settled that when tax is paid where it's not payable under the law, it is regarded as a payment under a mistake.
' In Black's Law Dictionary (Fifth Edition) at page 903, 'mistake' has been defined as 'some unintentional act, omission or error arising from ignorance... ... ..."
' And here also it is a case of error arising out of ignorance about the existence of the exemption Notification.
19. Rule 11 as such, as it stood prior to 6-8-1977, was very much attracted to the petitioner's claim for refund. And it is not disputed that such claim was filed beyond the period of one year from the date of payment.
20. In Shri Vallabh glass Works Ltd. v. Union of India AIR 1984 SC 971 one of the questions that came up for consideration before the Supreme Court was whether the High Courts have power to order repayment of money realised by the government without the authority of law under Article 226 of the Constitution, and the Court observed that the remedy under Article 226 is an alternative remedy provided by the Constitution in addition but not in supersession of the ordinary remedy by way of suit in the absence of any provision which would bar such a suit either expressly or by necessary implication."
(vi) J.L. Morrisson So. & Jones v. The Union of India and others (India) Ltd. And another Bombay 1988 (190 ECR 214 (Born.); ' in which a learned Single Judge of the Bombay High Court while allowing a Constitution petition for the refund of the amount of excise duty paid by the petitioner erroneously observed that the limitation provided by section 27(1) of the Act was not applicable for the refund of the amount paid under an error of law or error of fact. It was further held that the order of refusal of the Collector was without jurisdiction and, therefore, no question of limitation was involved.
(vii) Corrugating and Paper Processing Company (P) Ltd. And another v. Collector of Central Excise (Appeals) and others 1989 (20) ECR 495 (Cal.); ' In the above case a learned Single Judge of the Calcutta High Court while allowing a Constitution petition filed by the petitioner for the refund of the central excise duty paid by them though they were entitled to exemption held that the limitation of six months under section 27(1) of the Customs Act was not applicable. It was reiterated that section 72 of the Contract Act recognised that a person to whom money had been paid or delivered by mistake or under coercion must be paid or returned.
(viii)Atul Products Ltd. v. Union of India and another 1989 (22) ECR 532 (Born.); ' in which a learned Single Judge of the Bombay High Court held that levy of duty on exempted goods is an act of without jurisdiction and that no limitation is applicable under section 27 of the Customs Act for the claim of refund of certain amount.
(ix) Mathrubhumi Printing and Publishing Co. Ltd., Calicut v. Assistant Collector of Central Excise, Ernakulam, Cochin and others 1991 (33) ECR 815 (Ker.); ' In the above case a learned Single Judge of the Kerala High Court while allowing a Constitution petition for the refund of excise duty charged on the amount of trade discount during the period from 1-3-1975 to 14-3-1976 held that the duty collected without authority of law was illegal and, hence, its return was not covered by limitation under CE Rule 173.
(x) Doctor Beck & Company (India) v. Union of India and another Limited, Bombay 1991 (32) ECR 532 (Born.); ' in which a Division Bench of the Bombay High Court while allowing a Constitution petition of the petitioner for the refund of duty paid under a mistake held that the duty collected under a mistake of law must be refunded and no limitation as provided in Rule 11 was applicable to such a claim.
(xi) Union of India and others v. Chemical Process Equipments Pvt. Ltd. And another 1993 (46) ECR 297 (Bom.); ' In the above case the facts were that the respondents manufactured, articles of plastic which they classified under CETI 68, and paid duty accordingly from 1-3-1975 to 31-12-1978. In March, 1978 they realised that the duty was paid under TI 68 by mistake of law instead of under TI 15A(2). The Assistant Collector approved the above new classification with effect from 30-12-1978. However, when the respondents filed refund claim for a period from 3-9-1977 to 27-2-1978, the same was rejected as lime-barred under the provisions of rule 11 of the Central Excise Rules, 1944. A learned Single Judge of the Bombay High Court in exercise of writ jurisdiction held that limitation under rule 11 was not applicable and the recovery of duty under TI 68 was illegal and ordered the refund of the same. Thereupon, the Revenue filed Intra Court Appeal, which was dismissed by a Division Bench of the same High Court through the above judgment. It was held that by a catena of decisions delivered by the Bombay High Court, it had been held that the limitation prescribed under Rule 11 was not applicable to the department in proceedings before the authorities under the Central Excises Act and that such defence was not available when the claim was made before the High Court by the assessee in writ jurisdiction. The learned Judges of the Division Bench disallowed the learned counsel for the Revenue to urge the doctrine of "unjust enrichment".
(xii) Arochem Industries v. Union of Indian 1994 (51) ECR 10 (Born.); ' in which a Division Bench of the Bombay High Court reiterated the above principle that Rule 11 of the Central Excise Rules had no application when an assessee filed proceedings under Article 226 of the Indian Constitution for the refund of amount of duty paid by him under a mistake of law. The doctrine of "Unjust enrichment" advanced by the learned counsel for the Revenue was rejected.
11. Having dealt with the case-law of Indian jurisdiction, we may refer to the English case-law and a passage from Corpus Juris Secundum, Vol. 84, page 1268.
(i) Tower Hamlets London Borough Council v. Chetnik Developments Ltd. 1988 (1) All ELR 961: ' In the above case the respondent was a development company. They succeeded in getting refund of overpaid rates by them. The matter was brought before the House of Lords by the London Borough Council. It was urged before the House of Lords by the counsel for the Borough Council that section 9(1) of the general Rate Act, 1967, a rating authority has discretion to refund overpaid rates or to refuse to do so. The above contention was repelled. Lord Bridge of Harwich, who delivered the leading opinion while rejecting the appeal of the Revenue, made the following observations:-- "So it emerges from these authorities that the retention of moneys known to have been paid under a mistake at law, although it is a course permitted to an ordinary litigant, is not regarded by the Courts as a 'high-minded thing' to do, but rather as a 'shabby thing' or a dirty trick' and hence is a course which the Court will not allow one of its own officers, such as a trustee in bankruptcy, to take. If the Blackpool and Fleetwood Tramroad Co. Case was rightly decided, the same principle applies to prevent a rating authority enforcing a liability for current rates without giving credit for a past overpayment of rates made under a mistake of law. Yet this seems to produce an anomaly in effectively permitting a rate-payer to recover a mistakenly overpaid rate by way of set-off against a subsequent rate liability, when the ordinary rule of law precludes any direct right of recovery."
(ii) Woolwich Building Society v. Inland Revenue Commissioners (No,2) 1992 (3) All ELR 737; ' in which the matter was brought by the Revenue before the House of Lords against the judgment of Court of appeal which allowed the refund of the payment in response to an unlawful demand for tax by the assessee. Reliance was placed before the House of Lords on subsection (1) and subsection (2) of section 33 of the Taxes Management Act, 1970, which provided as under:-- "(1) If any person who has paid tax charged under an assessment alleges that the assessment was excessive by reason of some error or mistake in a return, he may by notice in writing at any time not later than six years after the end of the year of assessment (or, if the assessment is to corporation tax, the end of the accounting period) in which the assessment was made, make a claim to the Board for relief.
(2) On receiving the claim the Board shall inquire into the matter and shall, subject to the provisions of this section, give by way of repayment such relief in respect of the error or mistake as is reasonable and just: Provided that no relief shall be given under this section in respect of an error or mistake as to the basis on which the liability of the claimant ought to have been computed where the return was in fact made on the basis or in accordance with the practice generally prevailing at the time when the return was made."
' Lord Keith of Kinkel, who rendered the leading opinion of the majority view, while dismissing the appeal of the Revenue observed as follows:-- "I would therefore hold that money paid by a citizen to a public authority in the form of taxes or other levies paid pursuant to an ultra vires demand by the authority is prima facie recoverable by the citizen as of right. As at present advised, I incline to the opinion that this principle should extend to embrace cases in which the tax or other levy has been wrongly exacted by the public authority not because the demand was ultra vires but for other reasons, for example because the authority has misconstrued a relevant statute or regulation. It is not, however, necessary to decide the point in the present case, and in any event cases of this kind are generally the subject of statutory regimes which legislate for the circumstances in which money so paid either must or may be repaid. Nor do I think it necessary to consider for the purposes of the present case to what extent the common law may provide the public authority with a defence to a claim for the repayment of money so paid; though for the reasons I have already given, I do not consider that the principle of recovery should be inapplicable simply because the citizen has paid the money under a mistake of law. It will be a matter for consideration whether the fact that the plaintiff has passed on the tax or levy so that the burden has fallen on another should provide a defence to his claim. Although this is contemplated by the Court of Justice of the European Communities in the San giorgio case, it is evident from Air Canada v. British Columbia that the point is not without its difficulties; and the availability of such a defence may depend on the nature of the tax or other levy. No doubt matters of this kind will in any event be the subject of consideration during the current consultations with the Law Commission.
' For these reasons, I would dismiss the appeal with costs." (iii) Corpus Juris Secundum, Vol. 84, page 1268: "Since an assessm ent of taxes on property which is exempt by law is illegal and not merely erroneous, as discussed supra 402, if the taxes have been paid, a refund may properly be claimed under statutes in substance authorizing a refund of taxes illegally paid, and the fact that such payment was voluntary does not preclude relief. So, a refund of taxes paid on exempt property may be had under a statute authorising refund of taxes paid on property."
12. We may now dilate upon the case-law of Pakistani jurisdiction.
(i) Messrs Shahtaj Sugar Mills Ltd. v. Collector of Customs and 2 others 1989 ALD 376(2)
' The above report contains only the headnote without the judgment. We had sent for the original record of Constitution Petition No,D-2040 of 1979 from the High Court of Sindh which shows that the petitioner had imported ten pieces of Side Roll and Top Roll Shafts against Import Licence dated 6- 11-1978, which was issued in their favour for parts and accessories of machinery and mill work. The Customs Authorities assessed the customs duty at 40% ad valorem and 10% sales tax. The petitioner after making payment and obtaining release of the consignment protested to the Customs Authorities against the levy of sales tax on the ground that the goods imported by them were exempted from payment of sales tax vide S.R.O.697(1)/88, dated 4-8-1977. The Customs Authorities did not agree with their contention. The petitioner filed a Constitution petition in the High Court of Sindh challenging the recovery of 10% sales tax on the above consignment. The aforesaid Constitution petition was allowed by a bench of two Judges comprising Saiduzzaman Siddiqui, J.
(as he then was) and Abdul Rasool Agha, J. In the following terms:- "4. In so far the contention of the respondent No,3 that the import licence was issued to the petitioners through inadvertence and therefore, it was rightly cancelled cannot be accepted as prior to the cancellation of the said licence neither the petitioner was heard nor any show-cause notice was issued to it. We accordingly accept this petition and declare the action of respondents Nos.1 and 2 in recovering the sales tax on the imported consignment as without lawful authority and of no legal effect. The respondents Nos.1 and 2 are accordingly directed to refund the amount of sales tax recovered by them from the petitioners. There will be no order as to cost in the circumstances of the case."
(ii) Quetta Textile Mills Limited v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and 2 others 1990 ALD 582; ' in which the Customs Department demanded the payment of customs duty and sales tax on the consignment which was released on the assumption that the same was exempted from customs duty and sales tax under S.R.0.500(1)/84. The Constitution petition was allowed by a Division Bench of the High Court of Sindh on the ground that the refund was not claimed within six months' period as provided in subsection (3) of section 32 of the Act. The above matter was brought before this Court in the form of an appeal with the leave. The same was allowed by judgment dated 25-2-1992 in C.A. No,860-K of 1990. It was held that in fact subsection (2) of section 32 was applicable which provided a period of three years and the case was remanded to the Collector of Customs to ascertain, whether the exemption was available or not by ascertaining whether the imported item was locally manufactured or not at the relevant time.
(iii) ghulam Abbas v. Member (Judicial), Central Board of Revenue and others (1994 CLC 1612); ' In the above case the importer of the consignment filed a Constitution petition claiming refund of sales tax recovered from them on the imported goods which were exempted. The same was allowed by a Division Bench comprising Saleem Akhtar, J. (as he then was) and Salahuddin Mirza, J.
The judgment was authored by Saleem Akhtar, J., who after quoting section 33 of the Act held that the limitation provided therein was not applicable for the refund of such a claim. The relevant observations read as follows:--- "This section provides for refund of customs duty or charges, which are paid or over-paid due to inadvertence, error or misconstruction. The customs duty and charges referred to section 33 should be chargeable and payable by the importer or exporter, and where such duties and charges are charged due to inadvertence, error or misconstruction, the claim for refund should be made within six months, but where the amount recovered by the customs authorities is not customs duty or charge, as its imposition and levy has not been sanctioned under law, the claim for refund of such amount would not be governed by section 33. Petitioner's claim is in respect of the entire amount which was neither a customs duty, nor sales tax, but the Customs Authorities recovered it in the name of sales tax without any sanction or authority. Where such a recovery has been made without any lawful authority and without jurisdiction, the authority recovering it must refund it because such recovery is not backed by any legal sanction. How could any person be allowed to retain and appropriate the amount illegally realised under the garb of a legal authority which never existed?
' We, therefore, declare that the impugned order passed by the respondents is without lawful authority and direct them to refund Rs,24,521 to the petitioner."
(iv) Kohinoor Industries Ltd., Faisalabad v. Government of Pakistan through Secretary, Ministry of Finance, Islamabad and others 1994 CLC 994; ' in which Khalil-ur-Rehman Khan, J. (as he then was) while sitting as S.B. At Lahore High Court held that the term "misconstruction" appearing after the words "inadvertence or error" in Rule 11 of the Central Excise Rules connotes an erroneous building up or compiling and calculating in the arithmetical sense, and that the aforesaid Rule is not applicable to a case where the duty was charged and recovered under a mistake of law. The relevant observations read as under:-- "The term 'misconstruction' appearing after the words 'inadvertence or error' in rule 11 connotes an erroneous building up, or compiling and calculating in the arithmetical sense. Rule 11 obviously is not applicable. It is not a case of error, misconstruction or inadvertence. The duty was charged and recovered under mistake of law during all this period and as such it is recoverable under section 72 of the Contract Act but provision of Article 96 of the Limitation Act applies to the claim of refund. In the instant case the petitioner company made the refund application on 15th February, 1977 seeking refund of the excess amount for the period from May, 1968 to June, 1978. The respondent department as per the learned Deputy Attorney-general is ready to refund the excess duty received for the period of one year prior to the date of application for refund as according to the respondent the duty paid for the period May, 1968 to February, 1976 has become barred by time.
The claim for refund of the duty which falls within three years, from the date of demand as that date can be taken to be the date of discovery of mistake is, however, refundable. It is, therefore, declared that the excise duty on clearance of man-made fabrics in the relevant period was levied and recovered without lawful authority and that the claim for refund of excess duty is enforceable in law for the period of three years only prior to the date of demand that is 15th February, 1977. The respondents shall refund to the petitioner all the amount of excess duty recovered for the said period of three years within eight weeks. The writ petition is accordingly allowed leaving the parties to bear their own costs."
13. From the above case-law and the treatise, the following principles are deducible:--
(i) That if one party under a mistake, whether of fact or law, pays some F money to another party (which includes a government department), which is not due by law or contract or otherwise, that must be repaid in view of section 72 of the Contract Act, 1872.
(ii) That the Customs duties and charges referred to in section 33 of the Act should be chargeable and payable by an importer or exporter and that due to inadvertence, error or misconstruction, more amount was paid or recovered than what was due and payable, the claim for the refund of such an excess amount should be made within six months as envisaged in above section 33, but where the duty or tax charged and recovered was not payable at all, above section 33 has no application.
(iii) That if the customs duty or any other levy was realised and its realization was outside the statutory authority, the provisions of section 27(1) of the Indian Customs Act, 1982, providing limitation of six months was not attracted.
(iv) That when any excise duty is recovered which was not leviable, limitation of one year provided in Rule 11 of the Central Excises and Salt Rules, 1944 is not applicable nor an alternate remedy by way of a suit will be a bar to a Constitutional petition.
(v) That payment of excise duty or any other tax without knowledge that the same is exempted under a notification is refundable on the same footing as if there was no lawful imposition.
(vi) To return what has been taken wrongly is as much a duty and grace of government to levy relentlessly and fully what is due as remarked by V.R. Krishna Iyer, J.
(vii) That where some money is received by the government not lawfully due, the plea of limitation by its departments is one which the Court always looks upon with disfavour as it is violative of the principles of morality and justice.
(viii) That when moneys are paid to the State which the State has no legal right to receive, it is ordinarily the duty of the State, subject to special provisions of any particular statute or special facts and circumstances of the case, to refund the amount so received and in case of failure, a superior Court in exercise of its Constitutional jurisdiction can direct the refund of the saine if no disputed questions of facts are involved.
(ix) That there may not be legal liability on the part of a government functionary to refund any amount received by it as a tax or other levy by virtue of certain special provisions under the special law but keeping in view that we are living in a democratic society governed by the rule of law and every government, which claims to have ethical and moral values, must do what is fair and just to the citizens regardless of legal technicalities.
(x) That as per Indo-Pak laws the fact that the amount of tax of which refund is claimed was voluntarily paid, does not preclude the right to claim refund, if it was not lawfully payable.
(xi) That the money paid by a citizen to a public authority in the form of taxes or other levies paid pursuant to an ultra vires demand by the authority is prima facie recoverable by a citizen as of right. Lord Bridge of Harwich of the House of Lords in the case of Tower Hamlets Borough Council (supra) remarked "that the retention of moneys known to have been paid under a mistake at law, although it is a course permitted to an ordinary litigant is not regarded by the Courts as a 'high- minded thing' to do but rather as a 'shabby thing' or a 'dirty trick'.
14. The above resume of the case-law of Indian, English and Pakistani jurisdictions indicates that the latest judicial trend is to deprecate and to discourage withholding of a citizen's money by a public functionary on the plea of limitation or on any other technical plea if it was not legally payable by him. It is also evident that claims for the refund of the amount paid as a tax or other levy on account of mistake as to want of constitutional/legal backing or because of exemption are at par. It is also apparent that such payments are held to be not covered by Rule 11 of the Central Excises Rules, 1944, or section 27(1) of the Indian Customs Act, 1951, or section 33 of the Act etc. The refunds of such amounts are allowed by the superior Courts inter alia in Inida on the basis of section 72 of the Contract Act which provides that "a person to whom money has been paid or anything delivered by mistake or under coercion must repay or return it". Such refunds can be claimed either by filing a suit for the recovery of the amount for which the period of limitation applicable would be three years under Article 96 of the First Schedule to the Limitation Act (which provides period of three years from the date mistake becomes known to the plaintiff) or the same can be recovered through a Constitutional petition if no disputed fact is involved. The Indian Supreme Court and the various Indian High Courts referred to in the cited case-law hereinabove had ordered the refund of the amounts involved in exercise of their Constitutional jurisdiction under Article 226 of the Indian Constitution. In Pakistan, Sindh and Lahore High Courts have also allowed the refund of such amounts under Article 199 of the Constitution in exercise of their constitutional jurisdiction in the cases of ghulam Abbas v. Member (Judicial), Central Board of Revenue (supra) and Kohinoor Industries Ltd., Faisalabad v. Ministry of Finance (supra), respectively.
However, we may clarify that the object of providing limitation inter alia, in sections 32 and 33 of the Act is to finalise the transactions within the period specified therein so that there may not be any adverse financial implication after the expiry of the period mentioned therein, for which provisions for contingency are made in a yearly budget. Though we have held that the instant case is not covered by section 33 of the Act by approving the view taken by a Division Bench of the High Court of Sindh in the above case of ghulam Abbas v. Member (Judicial), Central Board of Revenue referred to hereinabove, but it may not be understood that we are laying down that a party is free to claim refund of a tax or any other levy paid under a mistake of fact or law at his sweet will at any time even after the expiry of 20 years. If a suit is to be filed for the refund, it should be within the statutory period provided under the relevant Article of the First Schedule to the Limitation Act, or if the refund of the same is to be claimed by invoking in aid the Constitutional jurisdiction of a High Court, the petitioner should approach the Court promptly. The petition should not suffer from laches which may defeat the claim. We cannot approve the view that a party can claim the refund of an amount paid to a government functionary under a mistake without any constraint of limitation as it would adversely affect the good governance in financial matters.
15. In the instant case the imported item Salinomycin was exempted from the payment of customs duty and sales tax under section 19 of the Act and section 7 of the Sales Tax Act, 1951. In para. (f) of the grounds of the above memo, of appeal, it has been averred by the appellant that they, in good faith, genuinely believed that they could apply for refund after they could satisfy the authorities that they had consumed the raw material for the manufacture of medicines as pointed out hereinabove in para 6. Be that as it may, the fact remains that they would not have been liable to pay the impugned amount by virtue of the aforesaid exemption, if they had fulfilled the conditions contained in the S.R.O. Inter alia referred to hereinabove. They would not have paid the amount involved if they would not have been under a mistake either as to the factum of exemption or as to the time of claiming refund of the same, thus, the above amount was paid under a mistake as contemplated in section 72 of the Contract Act.
16. We may observe that the customs duty and the sales tax in issue were competently levied but under aforesaid S.R.O. 349(1)/85, dated 15-4-1985 exemption was granted from the payment of customs duty and sales tax in exercise of the power conferred by section 19 of the Act and section 7 of the Sales Tax Act, 1951, respectively, in respect of the items mentioned in Part A to the above notification, namely, raw materials used exclusively in the manufacture of drugs on the conditions contained therein. The relevant portion of the above S.R.O. Reads as under:-- "S.R.O. 349(I)/85.--In exercise of the powers conferred by section 19 of the Customs Act, 1969 (IV of 1969), and subsection (1) of section 7 of the Sales Tax Act, 1951 (III of 1951), and is supersession of its Notification No,S.R.O. 117(1)/84, dated the 12th January, 1984, the Federal government is pleased to exempt the goods specified in the Annex to this notification imported by a manufacturer, approved by the Director-general, Health, government of Pakistan, under the Drugs Act, 1976 (XXXI of 1976), for manufacturer of pharmaceutical products registered as drugs under the Drugs Act, 1976 (XXXI of 1976), from the Customs duty specified in the First Schedule to the Customs Act, 1969 (IV of 1969), and the sales tax leviable thereon, subject to the following conditions, namely:--
(i) The importer, makes at the time of clearance from Customs a declaration on the Bill of Entry that the goods will not be used for any purpose other than the manufacturer of pharmaceutical products registered as drugs under the Drugs Act, 1976 (XXXI of 1976); and
(ii) The importer-cum-manufacturer shall maintain record of the goods imported and the pharmaceutical products manufacture therefrom and shall produce the same wherever so required by the appropriate officer of Customs or the Director-general, Health, or an officer authorised by him in that behalf: ' Provided that the exemption granted by this notification shall not apply to the import of raw materials and packing materials for the purpose of manufacture by way of repacking of drugs: ' Provided further that the availability of the aforementioned facility will be restricted to drug manufacturers for such raw materials which have been registered and approved by the Director- general, Health, in accordance with the provisions of the Drugs Act, 1976 (XXXI of 1976)."
A perusal of the above S.R.O. Indicates that the appellants were required to declare on the bill of entry that the goods would not be used for any purpose other than manufacture of--
(i) pharmaceutical products registered as drugs under the Drugs Act, 1976;
(ii) that the importer/manufacturer was required to maintain record of the goods imported and the pharmaceutical products manufactured therefrom;
(iii) that the above exemption was not applicable to importer of raw materials and packing materials for the purpose of manufacture by way of repacking of drugs; and
(iv) that the above concession was applicable to drugs manufacturers for such raw materials which have been duly registered and approved by the Director-general, Health, in accordance with the provisions of the Drugs Act, 1976.
' The aforementioned S.R.O. Was modified by S.R.O. No,1148(1)/89 gazetted on 27-11-1989 whereby certain items of raw material from the exemption list were deleted. However, in both the aforestated S.R.Os. The item in question namely, Salinomycin is included.
18. We may point out that none of the official respondents has adverted to the question, as to whether the appellant had fulfilled the conditions of the above quoted S.R.O. In order to avail of the aforesaid exemption. All the respondents proceeded on the question of limitation.
19. In view of the case-law referred to hereinabove we are inclined to hold that the appellant's claim could not have been declined on the ground of limitation provided in section 33 of the Act for the reason already elaborated, inter alia, in para.13(ii). In this view of the matter, in our view, it will be appropriate that the case is remanded to respondent No,2 i,e, the Collector of Customs with the direction to examine, as to whether the appellant had fulfilled the conditions contained in the aforementioned S.R.O. If they had fulfilled the same, the denial of refund of the amount involved, would be violative of Article 24(1) of the Constitution which lays down that "no person shall be deprived of his property save in accordance with law". The appeal is, therefore, allowed; the impugned orders are set aside, and the case is remanded to respondent No,2 in the above terms. If respondent No,2 records a finding on the above question in the affirmative, the above amount involved shall be refunded to the appellant. Since the matter is under litigation for quite some time, respondent No,2 shall dispose of the matter within six months of the receipt of a copy of this judgment.
' The above appeal stands disposed of in the above terms, with no order as to costs.
…and 76 more citing cases