JUDGMENT
D.K. Seth, J.
1. In this appeal Mr. L.K. Gupta, learned Advocate appearing for the appellants, has confined his argument only on three questions. The first question is with regard to the liability of the Department to pay interest on the amount deposited by the writ petitioners/respondents in terms of an order passed by this Court in an earlier writ petition. The copy of the order has not been produced. However, from paragraph 31, page 7 of the Paper Book, it appears that this amount was directed to be deposited as Entry Tax for release of the goods together with the indemnity bond, penalty and the same were directed to abide by the result of the writ petition. This writ petition was ultimately transferred to the Tribunal after its constitution. The Tribunal in its order dated 11th January, 1996 directed the refund of the amount realized. It did not specify anything about the payment of interest. The matter went up to the Supreme Court. The Supreme Court affirmed the order of the Tribunal and no expression was used for payment of interest. Therefore, according to Mr. Gupta, no interest is payable by the Department with the refund.
2. The second ground that has been taken is with regard to the refund of the amount to the constituted attorney of the petitioners/respondents. The third point relates to the refund upon production of the original receipt or on furnishing of indemnity bond as contemplated in Rule 25 of the Entry Taxes Rules read with Section 19 of the Entry Taxes Act.
3. Mr. Sarkar, learned Advocate appearing for the respondents, on the other hand, points out that the amount was retained on account of Entry Tax. But ultimately it was held that no Entry Tax was leviable. Therefore, it simply was an extortion and retention of money without any justification. Therefore, the retention of this amount will attract the principles of the Interest Act and, therefore, the Department is liable to pay interest from the date this amount was deposited till the date of refund. There is nothing in law to prevent the constituted attorney from receiving the refund. Mr. Sarkar points out that the amount was deposited with the Department with whom there must be an account. Therefore, it cannot insist upon the production of the original receipt. At the same time, it cannot also require compliance of Rule 25 of the Entry Tax Rules since this deposit was not a deposit within the meaning of the Entry Tax Rules of the Act, as the case may be.
4. Mr. Sarkar had also relied on Order 41 Rule 33 with regard to the claim of interest from the date of deposit, at least from the date when the application for refund was made, namely, from 1989. He contended that this Court can pass appropriate order by reason of Order 41 Rule 33 though the petitioner may not have preferred any cross-objection and though the learned single Judge did not allow interest for the period prior to the decision by the Apex Court.
5. Having heard the learned Advocates for the parties, it appears that this amount was deposited in terms of the order passed by this Court in an earlier writ petition. From paragraph 3 at page 7 of the Paper Book, it appears that it was directed bo be paid as Entry Tax on the value of the goods for the purpose of release thereof along with the indemnity bond and such deposit would abide by the result of the petition. While deciding the petition, the learned Tribunal directed refund of the amount without any direction with regard to interest (page 33 of the Paper Book). The Supreme Court also did not observe anything with regard to the payment of interest. It had simply affirmed the order of the learned Tribunal (page 168 of the Paper Book). In these circumstances, it appears that the learned single Judge was justified in granting interest only from the date of the order passed by the Apex Court and not before. Inasmuch as the deposit was to abide by the result of the petition pursuant to an order passed in the earlier proceeding, governing the main writ petition. If any further interest is allowed on the said amount, it would tantamount to modification of the said order. This order was not the subject matter before the Writ Court nor before us. Therefore, we are not inclined to interfere with the order so far as the refusal regarding the grant of interest prior to the decision of the Apex Court is concerned.
6. Admittedly, under Order 41 Rule 33 of the Code of Civil Procedure (CPC), this Court can deal with the matter as it might deem fit but it cannot travel beyond the scope of the writ proceedings. It cannot modify an order passed in another traveling beyond the scope of the present proceedings. Therefore, we are unable to agree with Mr. Sarkar with regard to the payment of interest for the period prior to the decision of the Apex Court.
7. Order 41 Rule 33 CPC is applicable only within the scope of the appeal and the order appealed against. In applying Order 41 Rule 33, the Court cannot interfere with an order passed in a different proceeding since reached finality, which otherwise cannot be re-opened. In this case, the, writ petition out of which this appeal arises was filed in order to obtain the relief founded on the basis of an order passed in an earlier proceeding since merged in the order of the Apex Court. When interest was not granted either by the learned Tribunal of by the Apex Court expressly in its order, the same cannot be read into the same in view of the principle of constructive res judicata. A relief not considered or omitted shall be deemed to have been refused in a case where such question was open to be raised and could have been raised by the parties. The operation of Rule 33 Order 41 is confined within the scope and ambit of the suit and the appeal and not beyond. Therefore, even taking aid of Order 41 Rule 33, this Court cannot grant the relief of interest from a date prior to the date of the decision in the earlier proceedings given by the Apex Court.
8. The principle of grant of interest as submitted by Mr. Sarkar is an established principle of law. The decision cited by Mr. Sarkar in Province of West Bengal v. Basant Properties Ltd., a settled proposition of law. If money is unduly withheld or retained, interest is payable. But we have to see whether this principle could apply in the facts and circumstances of this case. As we have held that this would amount to modification of the earlier order since reached its finality, therefore, this principle cannot be attracted in the present case. Mr. Sarkar had also relied on the decision in Elephanta Oil and Vanaspati Industries Ltd. v. Union of India, 1994(73) ELT 43 (Delhi); Shree Baidyanath Ayurued Bhawan Pvt. Ltd. v. State of Bihar, and State of West Bengal and Ors.v. Anil Krishna Paul, 1994 STC 515 in order to support his contention for grant of interest. In fact, there is no quarrel with the proposition advanced by Mr. Sarkar. But every proposition has to be applied on the facts and circumstances of the case. In the present case, as we have already observed, we cannot travel beyond the scope of the writ petition and encroach upon an order which had already reached finality and attempt to modify the same. Rule 53 of the Rules framed by this High Court in relation to Article 226 of the Constitution of India makes the principle of CPC applicable to writ proceedings as far as practicable. Applying the principle of Order 20 Rule 3 CPC, the order passed in the earlier proceedings cannot be re-opened or modified except under Section 152 CPC or in review. There is no application for review nor for amendment under Section 152 CPC. Unless the order passed in the earlier proceedings since reached finality is modified or reviewed or re-opened, no interest could be admitted under the said order as it stands today after being affirmed by the Apex Court. Therefore, the principle of Order 41 Rule 33 CPC cannot be invoked in a different proceeding wherein the said order is neither the subject matter nor is under challenge.
9. Now it is to be seen whether interest would be payable from the date as directed by the learned single Judge in its order dated 22nd March, 2002. The interest was directed to be paid from the date of the decision of the Apex Court, namely, 8th May, 2000 at the rate of 12% till the date of actual refund at the simple rate. Mr. Gupta had contended that the respondents had already taken step for refund and issued notice. From Annexure “R”, he points out the status of the respective notices. It appears that majority of the notices were returned with the mark “not known” and some returned with the remark “not found” but only few of the notices have been received and some of them had appeared. But these persons also did not appear any further. These notices appear to have been issued sometimes in October 2000 or February 2001. Now the respondents are claiming, by virtue of a power of attorney, the refund through their constituted attorney. But it does not appear that any such step was taken earlier. Be that as it may, the respondents may not be liable to pay interest in case it is established that the petitioners themselves are responsible for not obtaining the refund. In these circumstances, we will consider the question of interest after we record our decision in respect of other points and the finding as to what extent the respondents themselves were liable for non-refund of the amount.
10. The ground that the constituted attorney is not entitled to obtain the refund does not seem to be of any relevance. If a person wants the amount to be refunded and engage some one as constituted attorney to obtain the refund, in that event, the Department cannot object to the same. In that event, it can ask for a valid discharge upon payment of the amount to the constituted attorney. For that it may ask for indemnity bond from each petitioner individually or jointly to the extent that any payment made to the constituted attorney executed individually or jointly indemnifying the department that the refund made to the constituted attorney would be a valid discharge to the Department.
11. So far as the compliance of Rule 25 is concerned even if the amount is not deposited as entry tax, still the amount has been deposited through the challan prescribed by the Entry Tax Rules and the order for the deposit also refers to payment of entry tax. The Department is a Department of entry tax, which cannot act de hors the Rule. Therefore, Rule 25 is very much applicable. In order to obtain the refund, the petitioner or the constituted attorney has to comply with the provision of Rule 25. Rule 25 requires production of the original receipt. In case the original receipt is not available, in that event, it can get refund after furnishing indemnity bond. This can be done. Therefore, the constituted attorney should produce the respective original receipt if available or furnish indemnity bond obtained from each individual petitioner either executed individually or jointly, as the case may be, indemnifying the department that there would be no further claim for refund of the said amount and if any such claim is made, the same would be met by the constituted attorney or the petitioners as the case may be.
12. It appears that there are some laches on the part of the Department, which is insisting upon payment to the petitioners and was not agreeable to pay to the constituted attorney. At the same time, the individual petitioner seems not to be diligent as it appears from Annexure “R”. Despite issuing notice, no one had turned up and the power of attorney was executed in September, 2001. Therefore, in our view, the question has to be balanced in between. We, therefore, modify the order passed by the learned single Judge to the extent that the interest be reduced from 12% to 6% per annum simple from 8th May, 2000 till the date of payment. Such refund can be made to the constituted attorney upon compliance of necessary formalities as observed above. If the formalities are complied with, in that event, the refund should be made within a period of four weeks from date of such compliance. In default, after expiry of such four weeks after compliance, the Department shall pay interest at the rate of 12% per annum for the entire period from 8th May, 2000 till the date of payment. If any amount is deposited with the Registrar, Original Side, in that event, such amount may be allowed to be withdrawn by the writ petitioners themselves or through their advocate-on-record or the constituted attorney, as the case may be. Unless such amount is invested in any bank or other interest earning investment, the amount shall be refunded as deposited with the Registrar and if the amount is invested, in such event, the amount would be refunded with the interest accrued on the said amount subject to the deduction of charges by the Registrar.
13. With this observation, the appeal is disposed of. The Order of the learned single Judge appealed against stands modified only to that extent.
Urgent xerox certified copy of this judgment be made available to the parties, if applied for.
R.N. Sinha, J.
I agree.