ATA-UR-RAHMAN, J.-- The grievance of the petitioner is that initially in August, 1989 the goods were specified under wrong head i.e. PCT-4811.9000 whereas it should have been under PCT- 4811.4000.
According to learned counsel the respondents did not agree with the petitioner's specification and the petitioner had to make payment of the dues as demanded by the respondents. The petitioner subsequently made representation to the CBR on 22.8.1989 which was accepted in June, 1991 and the subject consignment was declared to be falling under PCT-4811.0000. Thereafter, the Ministry of Finance and Economic Affairs through Dr. Saeed, Second Secretary, replied the letter of Collector of Customs Appraisement vide letter dated 27.6.1992 which reeds as under:- "C. No. 1(28) Tar. 1/88 Islamabad June 27, 1992 To, Collector of Customs (Appraisement)
Customs House, Karachi.
Sub: CLASSIFICATION OF PRINTED TOFFEE WRAPPING PAPER.
The undersigned is directed to refer to Custom House letter No. 82/459/91-111 Refund, dated 15th April, 1992 on the above-noted subject.
Board ruling issued vide letter No. 1(28) Tar. 1/88 vol. 11, 22.8.1989 was withdrawn while issuing classification dated 19th June, 1991. The classification ruling had become effective from 22.8.1989 when the earlier ruling was issued. Any excess payment made during the intervening period needs to be refunded if otherwise in order.
Sd/- (Dr. Muhammad Saeed)
Second Secretary"
After this the petitioner moved application for refund of the excess amount paid by the petitioner under wrong specification, but the same was rejected by order dated 17.2.1994 by the respondent No. 4. The appeal, and revision find before respondent No. 3 and CBR also came to be rejected vide orders 5.12.1994 and 30.3.1995 respectively. Hence this petition.
2. The main objection raised by Mr. Raja M. Iqbal, the learned counsel for the respondent is that under Section 33 a period of six months is provided for refund of the amount paid in excess to the respondents by a party. Section< 33 is reproduced below for convenience sake.
"33. Refund to be claimed within four 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 31, the said period of six months shall be reckoned from the date of the adjustment of duty after its final assessment."
Mr. Zahid F. Ibrahim, learned counsel for the petitioner submitted that although the respondents 3 and 4 under Section 223 were bound to comply with the orders passed by CBR communicated to the Collector of Customs vide Annexure 'C' dated June 27, 1992 and there was no need for the petitioner to move application yet they moved application after coming to now about the communication of the above order of the CBR and therefore they cannot be said to have been barred by limitation.
3. We have considered the submission of the learned counsel for the parties, In our view Section 33 will not come into play as none of its ingredients are attracted in the instant case. However, we find that the letter dated 27th June, 1992 is very clear in terms; specific directions were given to the respondent/ 2 and 3 for refund of the amount as observed above which they were bound to comply, therefore, there was no need for the petitioner to move any application. Section 223 also supports the case of the petitioner that subordinate functionaries of Customs have to follow the orders of the CBR, which has not been done in the instant case.
4. In the circumstances, mentioned above, we allow this petition with direction that the petitioner shall approach the respondent No. 4 alongwith all relevant documents for verification and scrutiny so that the amount of refund payable to the petitioner may be determined within a period of three months from the date the petitioner approaches the respondent No. 4.
MUHAMMAD MUJIBULLAH SIDDIQUL J. - I agree with the reasoning and conclusion. However, since important questions of law having far-reaching effect are involved in this petition, therefore, I would like to give detailed reasons in support of conclusion.
5. The petitioner has assailed the rejection of his refund application, by the respondent No-. 4 and the dismissal of appeal and revision by the respondents Nos. 2 and 3 respectively. The petitioner has sought direction for assessm ent of 13 consignments imported by the petitioner, under PCT heading No. 4811.4000, instead of 4811.9000 and further direction to respondent No. 4 to refund the excess amount of duties recovered from the petitioner due to appraisal made under erroneous classification of the wrapping paper.
6. The facts giving rise to this petition are that, the petitioner is importer of paraffin waxed printed paper for wrapping of toffees and confectionery (hereinafter referred to as the "wrapping paper").
The respondent No. 2 (C.B.R.) ruled vide its letter dated 2nd of August, 1989, that for the purposes of payment of custom duties the wrapping paper is classified under PCT heading No. 4811.9000.
According to petitioner, this classification was erroneous and the correct classification was under PCT heading 4811.4000. The petitioner and other importers made representation to the respondent No. 2 for correction of classification, of the wrapping paper. The respondent No. 2 accepted the representation and vide Classification Rulling No. 5/91, dated 19th June, 1991 held as follows:- "In view of the classification opinion received from the Classification Directorate of CCCN, the matter has been examined afresh and it is ruled that surface printed paper and paperboard, coated, impregnated or covered with wax, paraffin wax, stearin, oil or glycerol (a) in strips or rolls of a width exceeding 15 cm, or (b) in rectangular (including square) sheets with one side exceeding 36 c.m. And the other side exceeding 15 c.m. In the unfolded state, having incidental printing thereon shall be classified under heading No. 4811.4000. In case the width is 15 c.m. Or less than that or if, in rectangular sheets having dimension of 36 c.m. x 15 c.m. Or less, it shall be classified under heading No. 4823.9090. Board's ruling issued vide letter No. 1 (28)-Tar-1/88-vol- 11, dated the 22nd August, 1 989 is hereby withdrawn."
However, during the period between 14.3.1989 and 27.4.1991, the petitioner imported 13 consignments of the wrapping paper, which were assessed by the custom authorities under PCT heading 4811.9000 and the duties were recovered on the basis of such erroneous assessments. The petitioner made, a representation to the respondent No. 2 contending that because of erroneous classification excess duties were collected on 13 consignments, therefore, the Classification Ruling No. 5/91, dated 19th June, 1991 be given retrospective effect and the excess amount of duty recovered by the department may be directed to be refunded as the excess duty was paid due to erroneous classification by respondent No. 2 and not due to fault of any other party. This representation was also accepted and the ruling was given retrospective effect vide letter dated 27.6.1992 which reads as under:- "C. No. 1(28)Tar.1/88 Islamabad June 27, 1 992 To, Collector of Customs (Appraisement) Custom House, Karachi.
Sub: CLASSIFICATION OF PRINTED TOFFEE WRAPPING PAPER.
The undersigned is directed to refer to Custom House letter No. 82/459/91-111 Refund, dated 15th April, 1992 on the above-noted subject.
Board ruling issued vide letter No. 1(28) Tar. 1/88 vol. 11, 22.8.1989 was withdrawn while issuing classification dated 19th June, 1991, The classification ruling had become effective from 22.8.1989 when the earlier ruling was issued. Any excess payment made during the intervening period needs to be refunded if otherwise in order.
Sd /- (Dr. Muhammad Saeed)
Second Secretary"
On the basis of above classification the petitioner find claim for refund on 6.8.1992 before respondent No. 4. The respondent No. 4 rejected the claim for the reason that refund application was barred by time as it was submitted beyond the period prescribed in Section 33 of the Customs Act, 1969. The appeal and the revision were also dismissed for the similar reason. The contentions that, the view taken by respondents Nos. 4 and 3 would amount to negation of CBR ruling giving retrospective effect to the correction of classification and that Section 33 of the Customs Act, 1969 is not an authority in itself for refunds and it merely prescribes a time limit for consideration and claims of refund on account of an error, inadvertence or mis-construction and the actual right to refund is derived not under any specific provisions of the Customs Act but under the general principle of common law that the Government cannot retain any amount erroneously collect to which it had no entitlement, were not considered.
7. Being still dis-satisfied the petitioner has invoked Constitutional jurisdiction of this Court, It is averred in the petition that the admitted position is that excess amount of duty was recovered from the petitioner on account of erroneous classification by the C.B.R, and the error was rectified entitling the petitioner to the refund of excess amount recovered from it. It isfurther contended that the excess duty was not paid due to inadvertence, error or mis-construction on the part of petitioner and therefore, the provision contained in Section 33 of the Customs Act, is not applicable therefore, the respondents 2 to 4 have fell in serious error, in exercise of their jurisdiction, which is liable to be rectified by this Court, It is further submitted that the petitioner has been discriminated as other improper similarly placed, have been refunded the excess duty.
8. Para wise comments have been find on behalf of respondents wherein all the facts stated in the Memo, of Petition have been accepted and the sole plea taken on behalf of the respondents is that, the refund application was submitted beyond the period prescribed in Section 33 of the Customs Act, 1969 and therefore, the claim was rightly rejected.
9. Heard Mr. Zahid F. Ibrahim, learned counsel for the petitioner and Mr. Raja Muhammad Iqbal, learned counsel for the respondents.
10. Mr. Zahid F. Ibrahim, has reiterated the contentions raised in the memo, of appeal and reproduced above, In addition to the said contentions he has submitted that the C.B.R, vide its letter dated 27.6.1992, clearly intimated to custom authorities that the earlier ruling of C.B.R, dated 22.8.1989 was withdrawn while issuing classification dated 19th June, 1991 and that the classification ruling had become effective from 22.8.1989 and had further directed, in very clear terms that any excess payment made during the intervening period needs to be refunded if otherwise in order.
The learned counsel for the petitioner has vehemently argued that after above direction of C.B.R, the custom officials were obliged to refund the excess payment by virtue of the provisions contained in Section 223 of the Customs Act. He has submitted that after the direction of C.B.R, dated 27.6.1992 the controversy ought to have been laid to rest and the refusal of refund by recourse to the technicalities is un-warranted and without jurisdiction, more particularly, when the provisions contained in Section 33 of the Customs Act, are not attracted at all.
11. On the other hand, Mr. Raja Muhammad Iqbal, learned counsel for the respondents has supported the view taken by the respondents Nos. 2 to 4 that the refund application was barred by time, by virtue of the provisions contained in Section 33 of the Customs Act.
12. We have carefully considered the contentions raised by the learned Advocates for the parties.
There is no factual controversy as entire facts alleged in the memo, of petition have been accepted in the comments and counter-affidavit find on behalf of respondents. The issue under consideration shall be clinched by examining the scope and effect of Sections 223 and 33 of the Customs Act, which read as follows:- "223. Officers of Customs to follow Board's order, etc. -- All officers of customs and other persons employed in the execution of this Act shall observe and follow the orders, instructions and directions of the Board: Provided that no such orders, instructions or directions shall be given so as to interfere with the direction of the appropriate officers of customs in the exercise of their art/as/'-judicial function."
"33. Refund to be claimed within four 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 31, the said period of six months shall be reckoned from the date of the adjustment of duty after its final assessment."
13. A perusal of the above sections shows that under Section 223, all officers of customs and other persons employed in the execution of the Customs Act, shall observe and follow the orders, instructions and directions of the Board. We are therefore, persuaded to agree with the contention of Mr. Zahid F. Ibrahim, learned counsel for the petitioner that the C.B.R, had realised that excess payment was made due to erroneous classification ruling given by it, which was subsequently rectified and therefore all such persons who were made to pay excess amount shall be repaid such excess amount and the directions in this behalf were purely administrative in nature which were required to be followed by respondent No. 4. The petitioner had applied for refund and had thereby requested for mere compliance of the C.B.R, direction, therefore, the respondent No. 4 ought to have refunded the amount in compliance of the binding direction of C.B.R, and was not justified in taking cudgel with the petitioner on the basis of technicalities.
14. Coming to1 the provisions contained in Section 33, we find, sufficient force in the contention of Mr. Zahid F. Ibrahim that the provisions contained in Section 33 are confined to the refund of any custom-duties or charges claimed to have been paid or over-paid through inadvertence, error or misconstruction. The language of Section 33 is very clear and does not admit of any ambiguity. The golden principle of the interpretation of statute is that the plain language of law is to be applied and nothing is to be added to deducted from the clear language of law. The principle is applicable with greater force to the fiscal legislation. On a plain reading of Section 33, we are of the considered view that, it pertains to the refund of any custom-duties or charges paid or over-paid on account of any act of inadvertence, error or misconstruction on the part of an assessee. It is not applicable to the refund on account of an arbitrary or unwarranted assessment made by the custom authorities or on account of wrong classification by the custom authorities including C.B.R, as has been done in this case, It is not applicable to such refund also which becomes due on account of any order in revision, appeal or a Constitution petition.
It is established principle of the interpretation of statute that, in order to ascertain the true intent of legislature and the purpose and purport of a legislation the entire statute is to be considered in totality. Any particular provision in a statute is not to be considered in isolation. Adhering to this principle, when we examine the Custom Act, 1969 we find that the legislature has enacted two provisions which deal with the inadvertence, error or misconstruction. One provision is contained in Section 33 and the other one is contained in Section 32{3) of the Customs Act. For the purpose of comparison, both these sections are reproduced below:- Section 32 (3).- Where, by reason of any inadvertence, error or mis-construction, 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.
Section 33. Refund to be claimed within four 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 31, the said period of six months shall be reckoned from the date of the adjustment of duty after its final assessment.
A comparison of the above provisions shows that they deal with situation where there is no element of unfair act on the part of assessee or the custom officials. The provision contained in Section 33 deals with the refund of any custom-duties or charges which have been paid or over- paid through inadvertence, error or misconstruction by the assessee himself and not on account of any order, instructions or directions of the custom authorities whether mistaken or otherwise. Since the act is initiated on account of an inadvertence, error or misconstruction on the part of an assessee therefore, on one hand the assessee has been given an opportunity to rectify and recoup the loss caused to him on account of his own act and on the other hand, a very important principle of taxation i.e. Principle of finality, has been kept in view and therefore a period of limitation has been provided in order to finalise the transaction and to avoid any adverse financial implication.
Likewise if there is any non-levy or short-levy of tax or any erroneous refund by reason of any inadvertence, error or misconstruction on the part of tax officials and not on account of any mis- declaration or collusion, the custom department has been empowered to initiate proceedings for making the loss good to the public exchequer. For this purpose Section 32(3) has been enacted.
Previously the period of limitation provided in Section 33 was four months which was enhanced to six months by Ordinance 12 of 1982 and the same period of six months was provided in sub-section
(3) of Section 32 as well, which has been now enhanced to three years by Finance Ordinance, 2000.
Thus an assessee and the Government are placed at par, so far any payment or over payment of tax on account of inadvertence, error or misconstruction on the part of assessee and non-levy or short- levy of tax for the same reason on the part of tax official is concerned. So far, non-charging of any duty or levy of tax or short-levy or erroneous refund on account of any mis-statement, mis- declaration or mis-representation of an assessee is concerned, it is dealt with under Section 32(1) and (2) of the Customs Act. As regards the refund of an excess amount on account of an act on the part of tax officials including C.B.R., the legislature has neither made any specific provision in this regard nor has provided a period of limitation in this behalf. The reason is obvious, i.e. It is not possible to specify a period of limitation for refund on account any erroneous, mistaken, incorrect, illegal or arbitrary orders of the tax officials with reference to the date of excess payment as no specific period can be visualised when a refund shall become due after an error is rectified by the assessing authorities or C.B.R, or in quasi/'-judicial appellate proceedings under the Customs Act or by the superior Courts in exercise of appellate or Constitutional jurisdiction. The legislature has therefore, left issue, in its own wisdom, to be dealt with in accordance with the general and common principles of law and justice.
15. A similar question came for consideration before the Lahore High Court in the case of Kohinoor Industries Ltd. v. Government of Pakistan (PTCL 1994 CL 280), with reference to Rule 11 of the Central Excise Rules, 1944, which reads as follows:-- "11. No refund of charges erroneously levied or paid, unless claimed within one year. No duty which has been paid, Or has been adjusted in an account-current maintained with the Collector under Rule 9, and of which repayment wholly or in part is claimed in consequence of the same having been paid through inadvertence, error or misconstruction, shall be refunded and no abatement in duty shall be allowed, unless a written claim is lodged with the proper officer within one year from the date of such payment or adjustment as the case may be."
In the cited case, refund of central excise duty for the period from May, 1968 to January, 1977 was claimed through applications submitted in May, 1977 and afterwards. The refund applications remained un-disposed of and therefore, the petitioner instituted the writ petition, seeking declaration that the excise duty charged was in excess of the duty chargeable and further declaration that it was without lawful authority. A direction was sought for refund of the excess amount of duty. The Lahore High Court held that the duty was not legally chargeable. A question arose, whether the claim of refund was barred by time as the period prescribed in Rule 11 of the Central Excise Rules, 1944, has expired, It was contended by the Deputy Attorney General that, the petitioner can claim refund for one year only in accordance with the provisions contained in Rule 11 of the Central Excise Rules, 1944. On the other hand, it was submitted on behalf of the petitioner, that the central excise duty was paid under compulsion and therefore, it was not on account of any inadvertence, error or mis-construction, therefore, Rule 11 of the Central Excise Rules, 1944, was not attracted. The Lahore High Court after examining the contentions raised at the bar and the rulings cited before the Court held that, "Rule 11 of the Central Excise Rules does not apply to a case where the amount of tax is paid under a mistake of law or fact or under compulsion; that the claim of refund of any amount realized without any authority of law, if is not barred by any specific statutory provision enforceable in law; that the order rejecting claim of refund was a quasi/-judicial order and its validity can be challenged in writ jurisdiction and that where the Authorities retained the money illegally realized, the petitioner can in a writ petition ask for refund of the money so collected by way of duty or otherwise without any authority of law when there is no triable issue and that the claim of refund of the amount or duty or tax received without authority of law can be made within three years computable from the date on which the mistake was recovered".
16. A perusal of the cited judgment further shows that it was held, that it was not a case of error, misconstruction or inadvertence. The duty was charged and-recovered under mistake of law and as such it was recoverable under Section 72 of the Contract Act, but provision of Article 96 of the Limitation Act, shall apply to the claim of refund, It was therefore, declared that the claim of refund of excess duty was enforceable in law for the period of three years only prior to the date of demand, In the facts and circumstances of the cited cases, Article 96 of the Limitation Act, was held to be applicable which deals with the relief on the ground of mistake and provides that the time shall begin to run when the mistake becomes known to the plaintiff, In the present case, there is no mistake on the part of the petitioner and therefore, we are, of the opinion that, Article 181 of the Limitation Act, shall apply which provides a period of limitation for three years in respect of an application for which no period of limitation is provided in the Limitation Act, and the period of limitation shall begin to run from the time when the right to apply accrues, In the present case, right to apply accrued to the petitioner when the C.B.R, rectified its mistake and gave retrospective effect to its Classification Ruling No. 5 of 1991, vide instructions contained in the letter dated 27.6.1992. Thus the refund application is within the period of limitation.
17. The scope and applicability of Section 33, Customs Act, came for consideration before a Division Bench of this Court in the case of Ghulam Abbas v. Member (Judicial) C.B.R. (PTCL 1998 CL 350). In the cited case, sales tax was charged on import of betel- nuts as a result of inadvertence on the part of custom officials. The importers, subsequently, came to know about the illegal charge and claimed the refund. The refund was refused for the reason that, it was lodged after expiry of six months. The question arose, if the importer was entitled to refund after expiry of six months in respect of sales tax recovered without lawful authority. Mr. Justice, Saleem Akhtar, in his judgment dated 9th March, 1989, held that the imposition and levy was not sanctioned under the law, and therefore, claim for refund of such amount would not be governed by Section 33. It was further held that, the levy which was not sanctioned in law and Was without jurisdiction should be refunded because, it was not backed * by any legal sanction, It was further held that no person can be allowed to retain and appropriate the amount illegally realised under the garb of a legal authority which never existed.
18. The question of limitation with reference to the provisions contained in Section 33 of the Customs Act, came for consideration before the Hon'ble Supreme Court, in the case of M/s. Pfizer Laboratories v. Federation of Pakistan (PTCL 1998 CL 354). His Lordship Mr. Justice, Amal Mian examined the issue in great detail and after resume of the entire case-law in Pakistan and India deduced the following principles:- "13. From the 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 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 mis-construction, 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, 1951, 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 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 Lyer, 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 disfavor as it is violative bf 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 same 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 oral values, must do what is fair and just to the citizens regardless of legal technicalities.
(x) That as per Into-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, England 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 Excise 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 India 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 excise 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 find 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."
Respectfully following the principles laid down by the Hon'ble Supreme Court, it is held that the respondents Nos. 2 to 4 were not justified in refusing the refund. The impugned orders passed by them are not warranted in law and are hereby set aside. The respondent No. 4, is directed to refund the excess duties recovered from the petitioner on account of erroneous classification which have been rectified by C.B.R, itself with retrospective effect. The petitioner shall approach the respondent No. 1, alongwith all relevant documents for verification and scrutiny. The respondent No. 4, shall conclude the entire exercise and shall refund the excess amount after determination thereof, within a period of three months from the date, on which the petitioner approaches the respondent No. 4.
The petition is allowed as above.