V.GOPALA GOWDA, CJ & B.N.MAHAPATRA, J. W.P.(C ) NO.10116 OF 2011 (Decided on 16.7.2011) M/S. BHARAT MOTORS ………Petitioner. .Vrs. COMMISSIONER OF COMMERCIAL TAXES, CTC. & ORS. …….. ..Opp.Parties. ORISSA SALES TAX ACT, 1947 (ACT NO.14 OF 1947 ) – S.5-A. For Petitioner - Mr. Jagabandhu Sahoo For Opp.Parties - R.P.Kar (Standing Counsel) Heard Mr. Jagabandhu Sahoo, learned counsel for the petitioner & Mr. R.P.Kar, learned Standing Counsel for Commercial Tax. The petitioner has come up before this Court challenging the inaction on the part of the opposite parties in granting refund of surcharge realized from the petitioner for the assessment year 1999-2000 in contravention of the ratio of the judgment dated 5.1.2007 passed in W.P.(C) Nos. 233, 3870, 4618 & O.J.C. No.4303 of 2002, 1145 of 2003, 9766 & 2584 of 2005 M/s. Bajaj Auto Ltd. And another etc. v. State of Orissa and others, reported in 2007 (1) OLR 415 (Orissa), the clarification of the Deputy Secretary to the Government of Orissa, Finance Department vide letter dated 20.11.2001 (Annexure-2) though this Court quashed the clarification of the Government of Orissa vide letter (supra) holding the same misconceived and has no legal sanctity. It is urged on behalf of the petitioner that the above judgment enures to the benefit of the petitioner. He has also placed reliance on the Division Bench judgment of this Court in P. Rama Rao and sons v. State of Orissa, (1990) 77 STC 303, in support of the case of the petitioner wherein, at paragraph-10, after referring to the earlier decisions of the apex Court, namely, (1958) 9 STC 747; AIR 1959 SC 135 (Sales Tax Officer v. Kanhaiya Lal) and (1961) 12 STC 357; AIR 1961 SC 1438 (Orient Paper Mills v. State of Orissa) in connection with section 72 of the Indian Contract Act, 1872 this Court has held that there is no law of limitation especially for public bodies for refund of surcharge duty what was wrongly recovered to whom it belongs. 2. Mr. Kar, learned Standing Counsel for the Commercial Taxes submitted that the principle enunciated in above referred case by this Court placing reliance upon the decisions (supra) in connection with section 72 of the Indian Contract Act, 1872 inter lia, is not a good law, in view of the Constitution Bench decision of the Apex Court in the case of Mafatlal Industries Ltd. V. Union of India and others, (1998) 111 STC 467 (SC), wherein the nine Judge Bench of the apex Court after interpretation of the constitutional provisions, namely, Articles 38, 39, 336 and 265 of the Constitution of India, provisions of section 11-B, 11-D, 12-A, 12-C and 12-D of the Central Excises and Salt Act, 1944 and rule 23-B of the Central Excises and Salt Rules, 1944, at paragraph- 70, after referring to the decisions of this Court cited in their judgment in the case of P. Rama Rao (supra) has clearly answered the point no.2 which came up for consideration before the constitutional Bench. The relevant portion of the said paragraph-70 is quoted hereunder : “XX XX Where a duty has been collected under a particular order which has become final, the refund of that duty cannot be claimed unless the order (whether it is an order of assessment, adjudication or any other order under which the duty is paid) is set aside according to law. So long as the order stands, the duty cannot be recovered back nor can any claim for its refund be entertained. But what is happening now is that the duty which has been paid under a proceeding which has become final long ago-may be an year back, ten years back or even twenty or more years back-is sought to be recovered on the ground of alleged discovery of mistake of law on the basis of a decision of a High Court or the Supreme Court. It is necessary to point put in this behalf that for filing an appeal or for adopting a remedy provided by the Act, the limitation generally prescribed is about three months ( a little more or less does not matter). But according to the present practice, writs and suits are being filed after lapse of a long number of years and the rule of limitation applicable in that behalf is said to be three years from the date of discovery of mistake of law ! XX XX” 3. In view of the above said legal principle laid down by the Constitution Bench of the apex Court, we are of the opinion that placing reliance on the judgment of the Division Bench of this Court in the case of P. Rama Rao (supra) by the learned counsel for the petitioner, wherein the clarification of the Deputy Secretary to the Government of Orissa, Finance Department vide letter dated 20.11.2001 (Annexure-2) was quashed as the same was without authority of law and consequently extra demand made on the petitioners therein was also quashed. 4. In the instant cases, having referred to the undisputed fact that assessment orders were passed in the years 2001 to 2003 and the duty has been paid by the petitioner. The assessment orders passed against the petitioner six years and four years prior to the judgment of this Court in the Case of P. Rama Rao (supra), which orders are not challenged either before the Appellate Authority of this Court and, therefore, the assessment orders have attained the finality. The claim is made beyond three years from the date of assessment orders. Hence the reference made to section 72 of the India Contract Act is applicable in favour of the Revenue and not in favour of the petitioner since the constitutional Bench decision (supra) is against the petitioner. Therefore, the petitioner is not entitled for refund as claimed. Therefore, the writ petitioner fails and is dismissed accordingly. Writ petition dismissed. 2