The Court's discretion to grant relief under Article 226 of the Constitution of India, even if a claim is barred under the Limitation Act, considering the circumstances of the case.

( 1 ) THE Andhra Fertilizers Ltd. (the Company) manufacture fertilizers at their factory at Tadepalli. The company was formerly known as E. I. D. Parrys Ltd. , and had factories at Ranipet and Ennore. In this writ petition, the Company seeks refund of Rs. 3,59,113. 68 paid by them as excise duty in March, 1969. It was in 1969 the Central Excise and Salt Act, 1944 (the Act) was amended and in the Schedule to the Act Item 14 HH was added. When the Company was demanded duty under the Act on their stocks the company declared their stocks to be 10,738- 5047 metric tonnes of Superphosphate as "on the night" of 28/02/1969 and disputed the eligibility of any duty under the Act, in their letter on 25/03/1969 and on 26/04/1969 to the Assistant Collector of Excise and represented their stock on hand was fit for sale though the fertilizers were not filled in bags. The provisions of the Fertilizers Control Order, 1957 were referred and it was represented that Phosphoric content of fertilizers, therefore, their stocks were not filled in bags. The manufacturers particularly in the year 1969 experienced "glut" in their sales for the Government of India imported massive stocks of fertilizers in that year. Like other manufacturers the company found scarcity of space due to the recession. The fertilizers, if stocked in bags, the company urged the bags at the bottom in the warehouses "hardened" and that in turn, required cakes to be broken; bags to be restricted before they were offered to the consumer. Such a process added enormously to their cost of production and the company impelled by the expense involved and experience they had, did not to bag the fertilizers. There were similar disputes by other manufacturers raised all over the country. The Association of Fertilizer Manufacturers made representation s to the Excise authorities that the stocks of fertilizers available by the close of the day of 28/02/1969 were not liable to duty and fertilizers manufactured from 1/03/1969 alone were covered under Schedule 14 HH of the Act. In the case of the Shah Wallace Company and the factory at Ranipet, when similar disputes arose, the Government of India in their order on 22/11/1971 held"rule 9 of the Central Excise Rules, 1944 prescribed that duty of excise is to be collected at the time of removal of excisable goods from the factory". The "fertilizers" could be delivered "only" in bags"the stocks available on the mid-night of 28-2-1969/1-3-1969 not packed in gunny bags were subject to duty under Item 14 HH of the Schedule to the Central Excise Act, 1944". The Ranipet factory and the Shah Wallace Company assailed the orders of the Government of India in the High Court, Madras. Koshai, J. , on 11/03/1976 in writ petitions Nos. 1746 of 1972 and 1676 of 1973 held : the fertilisers that were available in stock on the night of 28-2-1969/1-3-1969 were not subject to excise duty for the stocks on that day were fully manufactured earlier to the imposition of the levy under the Act. The learned Judge relied on a judgment of the Bombay High Court in Civil Application No. 2070 of 1963, decided on 18/01/1965 where a similar view was taken. The dispute thus finally came to be deiced against the Excise authorities. Whether fertilizers in stock i. e. 10,738- 5040 metric tonnes stocked with the petitioner on 28/02/1969 is liable to pay excise duty is not disputed and is not at issue in the instant case and the question is not argued in the instant writ petition.

( 2 ) THE clam made in the writ petition is resisted by the Collector of Central Excise because under Rule 11 of the Central Excise Rules 1944, such a claim is barred : because the refund under the rules cannot be ordered for the laches of the company; and also because the company made their claim on 22/04/1977 either years after the payment was made, therefore, it is urged that the claim is barred under the Statute of Limitation had the company filed a suit instead of a writ petition to recove