1. Application, under Section 114 of the Civil Procedure Code for review of the Judgment of the High Court, dated 31-8-1989 and made in W. A. No. 947/85 preferred to this court under clause 15 of the Letters Patent Act against the order of the Hon'ble Mr. Justice Nainar Sundaram, dated 3-8-1985 and made in the exercise of the Special Original Jurisdiction of the High Court in W. P. No. 10250 of 1985 presented to this court under Article 226 of the Constitution of India to issue a writ of Certiorarified Mandamus, calling for the records of the respondent in C. No. V/14F/18/3/84, dated 31-7-1985 and quash the same and direct the respondent herein to refund the sum of Rs. 57,401.78 with interest at the rate of 18% per annum.
This Application coming on for hearing on this day upon perusing the petition to Review and the order of this court, dated 31-8-1989 and made in W. A. No. 947/85 and upon hearing the arguments of Mr. K. V. Subramanian, Advocate for the petitioner and of Mr. K. Jayachandran, Additional Central Govt. Standing Counsel on behalf of the respondent, the Court made the following order.
This review petition is filed seeking review of the judgment dated 31-8-1989 passed in Writ Appeal 947 of 1985. That Writ Appeal was preferred against the order dated 3rd October, 1985 passed in Writ Petition 10250 of 1985.
2. In the Writ Petition, the petitioner sought for quashing the order, dated 31-7-1985 passed by the Assistant Collector of Central Excise, Madras V Division in C. No. V/14B/18/3/84 rejecting the application filed by the petitioner company for refund of the duty and additional sales tax paid. The Assistant Collector of Central Excise examined the case on merits and rejected the same on the ground that demand was made beyond the period prescribed under law. In the writ petition, apart from seeking to quash the aforesaid order of the Assistant Collector, the petitioner also sought for issue of a writ in the nature of mandamus to the respondent-Union of India to refund a sum of Rs. 57,401.78 with interest at the rate of 18% per annum.
3. Learned single Judge pointed out that the order was appealable and therefore declined to exercise the jurisdiction under Article 226 of the Constitution. Instead of preferring an appeal, the petitioner filed the writ appeal, which was also dismissed on the same ground.
4. In the review petition, it is tried to contend that inspite of the fact that the Assistant Collector has rejected the petition for refund and that there is a right of appeal provided against that, this Court in exercise of jurisdiction under Article 226 of the Constitution can issue a writ in the nature of mandamus to refund the duty and also the additional sales tax.
5. It is necessary to find out that apart from the right of appeal, the amount has to be determined as to how much the petitioner is entitled to by way of refund. All these questions can be decided in the appeal. It is not possible to appreciate the anxiety of the appellant to continue the proceeding under Article 226, even though it was specifically pointed out to him by the very Assistant Collector in the very opening portion of his order by way of specific note that the order was appealable. Therefore, we do not see any ground to review the judgment. The review petition is accordingly rejected.