JUDGMENT
Sukhdev Singh Kang, J.
1. At issue in this writ petition under Articles 226 and 227 of the Constitution of India is the legality and validity of orders dated May 10, 1985 (Annexure ‘IX’) passed by the Assistant Collector, Customs & Central Excise, Ludhiana (respondent No. 4) declining to refund the Excise Duty paid by M/s Oswal Oil & Soap Industries, Rajendra Place, New Delhi (petitioner No. 1) and the appellate order dated 29th April, 1986 (Annexure ‘X’) passed by the Collector (Appeals), Customs & Central Excise, New Delhi (respondent No. 2). The true scope and ambit of Section 11B of the Central Excises and Salt Act, (hereinafter referred to as ‘the Act’) also falls for determination.
2. A brief factual backdrop will help delineate the contours of the prist inely forensic controversy:
M/s Oswal Oil & Soap Industries (petitioner No. 1) is a unit of M/s Oswal Agro Mills Ltd. The petitioner is engaged in the trade and business activities of manufacture of soap and oils. Petitioner No. 1 had filed a classification list under Rule 173-B of the Central Excise Rules, 1944 (‘the Rules’ for short) effective from 20th September, 1980 seeking the classification of hydrogenated rice bran oil (H.R.B.O.) manufactured by it under Central Excise Tariff Item No. 12 incorporated in the First Schedule to the Act. If H.R.B.O. had been classified under tariff item No. 12, it would have borne an excise duty at the rate of Rs. 100/- per tonne, but if it was classified under tariff item No. 68,the rate of excise duty leviable on the H.R.B.O. at the relevant time would have been 8% to 10% ad valorem. The Assistant Collector, Central Excise, Ludhiana, vide his order dated August 3, 1981, held that since vegetable non-essential oil is subjected to hydrogenation process and results into emergence of a New product, the same should, therefore, fall under tariff item No. 68.
3. Aggrieved by this order of the Assistant Collector, petitioner No. 1 preferred an appeal under Section 35B(2) of the Act. The Collector of Customs and Central Excise (Appeal), New Delhi (respondent No. 2) allowed the appeal. He based himself on a decision of the Central Excise and Gold Control Appellate Tribunal, New Delhi (C.E.G.A.T.), which is the apex adjudicatory Tribunal under the Act. He held that H.R.B.O. fell under tariff item No. 12 and not tariff item No. 68. He set aside the order of the Assistant Collector and gave a direction that the H.R.B.O. manufactured by petitioner No. 1 be classified under tariff item No. 12. This order was passed on September 30, 1984 (copy whereof is annexed with the petition as Annexure ‘VIII’). Petitioner No.1 made a number of representations to the Department for refund of the excise duty to the tune of Rs. 1,31,04,811.89 which had been illegally levied on and recovered from petitioner No. 1 by the unjustifiable classification of HRBO under tariff item No. 68. Several reminders were also sent to the Assistant Collector as well as the Collector for passing the appropriate orders of refund of the aforesaid amount of excise duty. Formal claim for refund was submitted by the petitioner on 29th November, 1984. The Assistant Collector demanded certain documents and classification. The petitioner complied with the demand. The Assistant Collector issued a show cause notice dated 10th February, 1985 to petitioner No. 1 stating that its ground of refund had been examined along with the evidence on the record and he tentatively held that the refund claim was not admissible because of the reasons mentioned in the show cause notice. Petitioner No. 1 submitted reply to the notice on 10th March, 1985. It may be mentioned here that the petitioner had been paying the excise duty in accordance with the classification made by the Assistant Collector under protest. It was mentioned in the show cause notice that the petitioner had vide its letter dated 29th March, 1984, withdrawn their protest to the payment of duty. The petitioner in their reply explained that whatever may be the reason for the withdrawal of protest, the same will not operate so as to reimpose a period of limitation. The Assistant Collector vide his order dated 10th May, 1985, rejected the claim of the petitioner for refund on wholly untenable illegal and extraneous grounds.
4. The Collector, Central Excise, Chandigarh (respondent No. 3) filed an appeal before the CEGAT against the order dated September 30, 1984 of the Collector of Central Excise (Appeals). He also made an application for the stay of the operation of the order of the Collector. It was ordered by the CEGAT that the appeal of the Department should be heard after the decision of the same point by a larger Bench. The application for stay was, however, declined by the CEGAT on April 11, 1985, because the decision of the Collector regarding classification of HRBO was in accordance with the earlier decision of the CEGAT.
5. Aggrieved by the order of the Assistant Collector declining to refund the excise duty paid by petitioner No. 1 under the classification determined by the Assistant Collector, the petitioner filed the present writ petition.
6. Messrs Hindustan Lever Ltd., Bombay filed an application for being impleaded as a respondent to the writ petition. This application was declined by me on 4th April, 1986. Civil Appeal No. 2168 of 1986 filed by M/s Hindustan Lever Ltd. was, however, allowed by the final Court on 30th April, 1986 and it was directed that M/s Hindustan Lever Ltd. be impleaded as respondent to the writ petition. They have been impleaded as respondent No. 5. Their Lordships of the Supreme Court also permitted the writ petitioners to file an amended writ petition and also allowed the respondents to file counter affidavits.
7. The petitioner also filed an appeal before the Collector (Appeals), New Delhi against the order of the Assistant Collector declining the application for refund. This appeal was dismissed on 29th April, 1986. The petitioner has impugned this order also in the amended writ petition. During the pendency of the writ petition, the CEGAT has also decided the appeal filed by the Revenue against the order of classification of HRBO under tariff item No. 12 and the same was dismissed by a two member Bench of the CEGAT on 13th June, 1986 following an earlier 5-member Bench decision of the Tribunal reported in (1986) 24 E.L.T. 290 and upheld the view that HRBO continues to fall under tariff item No. 12 and not tariff item No. 68.
8. The respondents have resisted the writ petition on various grounds. Shri S.S. Dhaliwal, Assistant Collector, Central Excise & Customs, Ludhiana, has filed a return on behalf of respondents 1 to 4. M/s Hindustan Lever Ltd., Bombay (respondent No. 5) has filed its return through Shri M.S. Gupta, Senior Legal Manager. It has been pleaded, inter-alia, that the claim for refund was time-barred. Section 11B prescribed a period of limitation of six months for refund of excise duty from the date of payment. The petitioner claimed refund of excise duty for the period ranging from October 1980 to July, 1984. Though the petitioner No. 1 had been primarily paying duty under protest, yet wide letter dated 29th March, 1984, they had withdrawn their contention of payment of duty under protest and further informed the Department that the withdrawal was valid for all past clearances of HRBO from their premises. It was also pleaded that the petitioner recovered the excise duty paid by them from subsequent consumers who had taken set-off from the Department as per the provisions of Notification No. 201/79-CE, dated 4th June, 1979. The refund of excise duty to the petitioner shall result in unjust enrichment at the cost of the Revenue and the customers to whom the HRBO had been sold. It was also pleaded that the petitioner had filed an appeal against the order of the Assistant Collector and the petitioner could not pursue the two remedies simultaneously. On merits, it was contended that the Collector (Appeals) had not ordered the refund of excise duty, because the decision regarding the classification of HRBO under tariff item No. 12 instead of tariff item No. 68 pronounced by the CEGAT was not final as the Revenue had filed appeals against this decision in the Supreme Court of India and the appeals were pending consideration. It was explained that the petitioner had sold the HRBO to its customers and the Department had allowed them proforma credit of the excise duty paid on the raw material while determining the duty payable on the finished product, namely, soap prepared out. of HRBO. Respondent No. 5 has also reiterated the stand taken by the other respondents. They have further explained that the petitioner had cleared HRBO after paying duty under tariff item No. 68 and supplied it to respondent No. 5, a manufacturer of soaps. Under the scheme prescribed by Notification No. 201/79-CE, dated 4th June, 1979, the duty paid on HRBO was effectively refunded by allowing credit to respondent No. 5. On receiving such credit, respondent No. 5 refunded the duty to the petitioner. The net duty payment by the petitioner on account of clearance of the HRBO was, therefore, nil. It was further pleaded that since the petitioner had obtained the refund of duty paid, it categorically and unconditionally withdrew its protest by submitting a letter dated 29th March, 1984, wherein they had stated that since the duty paid on HRBO was being reimbursed to the petitioner by its purchasers against set off obtained by them, the petitioner withdrew its contention of the payment of duty under protest. It was further contended that the petitioner and respondent No. 5 had entered into a contract that in the unlikely event of the above refund being granted to the petitioner, the petitioner shall have to pay the said refund to respondent No. 5, who, in return, will have to pay it back to the Government. The petitioner was not entitled to any refund. Since the petitioner has already received back the duty paid by them through the purchasers, they are not entitled to a second refund.
9. Before adverting to the pleas raised by the learned counsel for the parties, it will be appropriate to read the relevant statutory provisions of the threshold. Section 11B of the reads thus:-
“11B. Claim for refund of duty.
(1) Any person claiming refund of any duty of excise may make an application for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the relevant date.
Provided that the limitation of six months shall not apply where any duty has been paid under protest.
(2) If on receipt of any such application, the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty of excise paid by the applicant should be refunded to him, he may make an order accordingly.
(3) Where as a result of any order passed, in appeal or revision under this Act refund of any duty of excise becomes due to any persons the Assistant Collector of Central Excise may refund the amount to such person without his having to make any claim in that behalf.
(4) Save as otherwise provided by or under this Act, no claim for refund of any duty of excise shall be entertained.
(5) Notwithstanding anything contained in any other law, the provisions of this section shall apply to a claim for refund of any amount collected as duty of excise made on the ground that the goods in respect of which such amount was collected were not excisable or were entitled to exemption from duty and no court shall have any jurisdiction in respect of such claim.
Explanation. – For the purposes of this section, –
(A) ‘refund’ includes rebate of duty on excisable goods exported out of India or on excisable materials used in the manufacture of goods which are exported out of India;
(B) ‘relevant date’ means, –
(a) to (e) xxx xxx (f) in any other case, the date of payment of duty.”
Previously, there was Rule 11 in the Rules which made provision refund of excise duty. It read as under:
“11. Claim for refund of duty. – Any person claiming refund of any duty paid by him may make an application, for refund of such duty to the Assistant Collector of Central Excise before the expiry of six months from the date of payment of duty:
Provided that the limitation of six months shall not apply where any duty has been paid under protest.
Explanation. – xxx xxx xxxx
(2) If on receipt of any such application the Assistant Collector of Central Excise is satisfied that the whole or any part of the duty paid by applicant should be refunded to him, he may make an order accordingly.
(3) Where, as a result of any order, passed in appeal or revision under the Act, refund of any duty becomes due to any person, the proper officer may refund the amount to such person without his having to make any claim in that behalf.
(4) Save as otherwise provided by or under these Rules, no claim for refund of any duty shall be entertained.
Explanation. – For the purposes of this rule, ‘refund’ includes rebate referred to in Rules 12 and 12-A.”
10. It is a cardinal principle of interpretation of statutes that where the terms of a statute are clear and plain and do not admit of any ambiguity, it is the duty of the courts to construe the plain terms of the statute and give them their legal effect. In this respect, the court has got to turn to the very terms of the statute itself divorced from all considerations as to what was the state of previous law. (See The Sales Tax Officer, Banaras and Ors. v. Kanhaiya Lal Mukand Lal Saraf, A.l.R. 1959 S.C. 135). To the extent Section 11B of the Act deals with the refund of duty of excise, it is exhaustive upon the same. It is, therefore, manifest that in order to ascertain the true meaning and intent of Section 11B, we have to turn to the very terms of the statute itself divorced from all considerations as to the state of previous law. To do otherwise would be to make law and not to interpret it. This formulation of law was handed down by the Constitution Bench in Kanhaiya Lal Mukand Lal Saraf’s case (supra) in the context of Section 72 of the Indian Contract Act while disposing of a claim for refund of Sales-tax, levy of which had been held ultra vires.
11. Section 11B is couched in clear and plain language which does not admit of any ambiguity. It provides for refund of excise duty. Under Sub-Section (1), a person claiming refund of duty of excise may make an application to the Assistant Collector of Central Excise within six months of the relevant date. In the context of the instant case, relevant date will be the date of payment of the excise duty. However, in view of the proviso to this Sub-Section, the limitation of six months for filing the application for refund of duty shall not apply where the excise duty has been paid under protest. Sub-section (2) provides that on receipt of any such application, if the Assistant Collector is satisfied that the whole or any part of the excise duty paid by the applicant should be refunded to him, he may make an order accordingly. So, it is clear from the language of Sub-section (2), ibid, that only a person who has paid the excise duty can apply for its refund. Any other person, who has not actually paid the excise duty, has no lucus standi to apply for its refund. Sub-section (3) takes care of an altogether different situation. It deals with cases where adjudication with regard to excise duty takes place at the hands of the appellate or revisional authorities and as a consequence thereof, it is held that the excise duty as a whole or in part was not leviable. In such cases, the Assistant Collector may refund the amount of such duty and in proper cases, even without any formal claim made in this behalf. Sub-section (4) lays down that no claim for refund of excise duty shall be entertained save and except as provided by or under the provisions of the Act. The jurisdiction of the courts to entertain claims for refund of excise duty is barred by the provisions of Sub-section (5). It is clear from a perusal and analysis of the provisions of Section 11B that the Assistant Collector or the appellate or revisional authorities cannot take into account any other circumstances or factors while determining the claim for refund of excise duty. The clear language employed in Section 11B Rulesout the plea of unjust enrichment as a defence by the Revenue to the claim for refund of excise duty, which has been paid under a mistake of law or which has been levied and collected without any authority of law. Such a plea rather militates against the clear intention of the Parliament articulated through Section 11B. When the appellate or the revisional authority has held that whole or part of the excise duty was not leviable, the Assistant Collector, in exercise of his powers under Sub-Section (3), has no option but to refund the excise duty in accordance with the decision of the appellate or the revisional authority. He cannot do so on the specious plea that though the applicant had paid the excise duty, yet he had passed the same on to his customers or consumers and if excise duty is ordered to be refunded, it shall lead to unjust enrichment of the applicant. The language of Sub-section (3) or even Sub-section (1) does not admit of any such interpretation. Equitable considerations cannot be brought in to deny a claim for refund when the Parliament has clearly ordained that when as a result of any order passed in appeal or revision, refund of any duty of excise becomes due to any person, the Assistant Collector may refund the amount to such person.
12. There are many statutes which impose and levy taxes, fees and duties. In some of them, there is no provision for claiming refund of tax, fee or duty even if the same be held to be not leviable/payable by a citizen. Suits or applications used to be filed under Section 72 of the Contract Act for refund of taxes, fees, or duties which had been illegally collected or paid under a mistake of law. Some High Courts had taken the view that a tax paid even by a mistake of law could not be recovered under Section 72 of the Contract Act. However, the Privy Council in Shiba Prasad Singh v. Srish Chandra Nandi, A.l.R. 1949 Privy Council 297, set the whole controversy at rest by holding that it was established that the payment even though it be of a tax had been made by a party under a mistake of law, the party is entitled to recover the same and the party receiving the same is bound to repay or return it subject, however, to questions of estoppel, waiver, limitation or the like. The Constitution Bench of the Supreme Court in Kanhaiya Lal Mukand Lal Saraf’s case (supra) approved this view of the Privy Council that even a tax paid under a mistake of law can be recovered under Section 72 of the Contract Act. Their Lordships observed:
“To hold that tax paid by mistake of law cannot be recovered under Section 72 will not be to interpret law but to make a law by adding some such words as ‘otherwise than by way of taxes’ after the word ‘paid’.”
The exception regarding plea of estoppel carved out by the Privy Council in Shiba Prasad Singh’s case (supra) was sought to be raised before the Constitution Bench in Kanhaiya Lal Mukand Lal Saraf’s case (supra). In that case, the respondent-firm was a dealer in bullion gold and silver ornaments and forward contracts in silver bullion had been assessed on its forward transactions in silver bullion. It had deposited the amount of Sales Tax assessed. The Sales Tax on forward contracts was held to be ultra vires. The respondent-firm asked for refund of the amount of Sales-tax paid on the forward contracts. Appellant No.2, the Commissioner of Sales Tax, Uttar Pradesh, however, refused to refund the same. The respondent thereafter filed a writ petition in the Allahabad High Court under Article 226 of the Constitution and asked for a writ of certiorari for quashing the afore-mentioned assessment orders and a writ of mandamus requiring the appellants to refund the aforesaid amounts. The learned Single Judge allowed the writ petition and quashed the assessment orders and also issued the writ of mandamus directing the appellants to refund the amount paid by the respondent-firm. On appeal by the appellants, the Division Bench of the High Court came to the conclusion that Section 72 of the Contract Act applied to the case and the State Government must refund the moneys unlawfully,, received by it from the respondent on account of Sales-tax. The High Court dismissed the appeal with costs. The appellants then applied for a certificate, which certificate was granted. It was pleaded before their Lorships of the Supreme Court that the principle of estoppel which had been invoked by the Privy Council in Shiba Prasad Singh’s case (supra) was applicable to the facts of their case. This plea was not accepted. Their Lordships observed:
“Re: (ii): Whether the principle of estoppel applies or there are circumstances attendant upon the transaction which disentitle the respondent to recover back the monies, depends upon the facts and circumstances of each case. No question of estoppel can ever arise where both the parties, as in the present case, are labouring under the mistake of law and one party is not more to blame than the other. Estoppel arises only when the plaintiff by his acts or conduct makes a representation to the defendant of certain state of facts which is acted upon by the defendant to his detriment; it is only then that the plaintiff is estopped from setting up a different state of facts. Even if this position can be availed of where the representation is in regard to a position in law, on such occasion arises when the mistake of law is common to both the parties. The other circumstances would be such as would entitle a court of equity to refuse the relief claimed by the plaintiff because on the facts and circumstances of the case it would be inequitable for the court to award the relief to the plaintiff. These are however, equitable considerations and could scarecely be imported when there is clear and unambiguous provision of law which entitles the plaintiff to the reliel claimed by him.
(Emphasis supplied).
Such equitable considerations were imported by the Nagpur High Court in Nagorao v. G.G.-in-Council, A.I.R. 1951 Nag. 372 at p. 374 where Kaushalendra Rao J. observed:
‘The circumstances in a particular case, disentitle the plaintiff to recover what was paid under mistake.’
‘If the reason for the rule that a person paying money under mistake is entitled to recover it is that it is against conscience for the receiver to retain it, then when the receiver has no longer the money with him or cannot be considered as still having it as in a case when he has spent it on his own purposes – which is not the case here – different considerations must necessarily arise.’
We do not agree with these observations of the Nagpur High Court. No such equitable considerations can be imported when the terms of Section 72 of the Indian Contract Act are clear and unambiguous. We may, in this context, refer to the observations of their Lordships of the Privy Council in (supra) at p. 125. In dealing with the argument which was urged there in regard to the minor’s contracts which were declared void, viz., that one who seeks equity must do equity and that the minor against whom the contract was declared void must refund the advantage which he had got out of the same, their Lordships observed that this argument did not require further notice except by referring to a recent decision of the Court of Appeal in Thurstan v. Nottingham Permanent Benefit Building Society, (1902) 1 Ch 1 since affirmed by the House of Lords and they quoted with approval the following passage from the judgment of Romer L.J. at p. 13 of the earlier report:-
‘The short answer is that a Court of equity cannot say that it is equitable to compel a person to pay moneys in respect of a transaction which is against that person the Legislature has declared to be void.’
That ratio was applied by their Lordships to the facts of the case before them and the contention was negatived. Merely because the State of U.P. had not retained the monies paid by the respondent but had spent them away in the ordinary course of the business of the State would not make any difference to the position and under the plain terms of Section 72 of the Indian Contract Act the respondent would be entitled to recover back the monies paid by it to the State of U.P. under mistake of law.”
13. It is thus clear from the above observations that while deciding the claim for refund of taxes paid under mistake of law, equitable considerations could hardly be imported when there was a clear and unambiguous provision of law which entitled the plaintiff to the relief claimed by him. Surely the plea of unjust enrichment is a plea of equity. In view of the clear verdict of the final Court, such a plea could not be imported into the clear and unambiguous language of Section 72 of the Contract Act or Section 11B of the Act. Their Lordships did not approve the decision of the Nagpur High Court in Nagorae v. G.G.-in-Council, A.I.R. 1951 Nag 372, which had imported equitable considerations while declining to refund the money paid to the State under mistake of law. Their Lordships held that they did not agree with those observations of the Nagpur High Court and held that no such equitable considerations can be imported when the terms of Section 72 of the Indian Contract Act are clear and unambiguous. Their Lordships approvingly referred to a decision of the Privy Council wherein the argument that a minor should be made to refund the advantage which he had got out of the contract which was declared to the void, had not been accepted and it had been held that a Court of equity cannot say that it was equitable to compel a person to pay moneys in respect of a transaction which is against that person the Legislature had declared to be void. Their Lordships of the Supreme Court held that on the plain language of Section 72 of the Contract Act, the respondent will be entitled to recover back the moneys paid by it to the State of Uttar Pradesh under mistake of law.
14. The apex Court in State of Madhya Pradesh v. Bhailal Bhai, A.I.R. 1964 S.C. 1006, held that the payment of Sales Tax was one made under a mistake within the meaning of Section 72 of the Contract Act and the Government to whom the payment was made by mistake was bound to repay it and the High Court had the power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law.
15. In another case, Patel India v. Union of India, A.I.R. 1973 S.C. 1300, the Supreme Court directed the refund of duty which was illegally levied by the Customs authorities under the Sea Customs Act.
16. A Bench of seven Judges of the Supreme Court in State of Kerala v. Aluminium Industries Limited, (1965) 16 S.T.C. 689, held:
“…Where tax is levied by mistake of law it is ordinarily the duty of the State subject to any provision in the law relating to sales tax (and no such provision has been brought to our notice) to refund the tax. If refund is not made, remedy through court is open subject to the same restrictions and also the period of limitation (See Article 6 of the Limitation Act, 1908), namely, three years from the date when the mistake becomes known to the person who has made the payment by mistake (See State of Madhya Pradesh v. Bhailal Bhai, A.I.R. 1964 S.C. 1006). In this view of the matter it was the duty of the State to investigate the facts when the mistake was brought to its notice and to make a refund if mistake was proved and the claim was made within the period of limitation.”
17. In D. Cawasji and Co. and Ors. v. State of Mysore and Anr., 1978 E.L.T. (J 154), their Lordships of the Supreme Court held:
“A tax is intended for immediate expenditure for the common good and it would be unjust to require its repayment after it has been in the whole or in part expended, which would often be the case, if the suit for application could be brought at any time within three years of a court declaring the law under which it was paid to be invalid, be it a hundred years after the date of payment. Nor is there any provision under which the court could deny refund of tax even if the person who paid it has collected it from his customers and has not subsisting liability or intention to refund it to them, or, for any reason, it is impracticable to do so. ”
(Emphasis mine)
18. The Supreme Court in Atic Industries v. Assistant Collector, Central Excise, 1978 E.L.T. (J 199), while setting aside the assessment of excise duty made by the excise authorities on the dye-stuffs manufactured by the appellants directed the respondents to refund to the appellants forthwith the amount collected in excess of the correct duty of excise leviable in accordance with the principles laid down in the judgment delivered therein.
19. Recently the final Court had an occasion to consider the question of refund of tax collected without authority of law in Commissioner of Sales Tax, U.P. v. Auriaya Chamber of Commerce, Allahabad, 1986 (25) E.L.T. 867 (S.C.). It was observed:
“Article 265 of the Constitution enjoins that no tax shall be levied or collected except by authority of law. Tax in this case, indubitably has been collected and levied without the authority of law. It is, therefore, refundable to the assesses because from the beginning the realisation was illegal and right of refund was embedded in the fact of payment.”
From the aforesaid decisions of the final Court it becomes evident that when a tax, duty or fee is paid by mistake or is levied or charged without authority of law, the authorities are bound in law to refund the same.
20. Various High Courts have also taken the same view and a brief reference to a few of such cases may suffice.
21. In Annapurna Match Industries, Cuddapah v. Union of India and Anr., A.I.R. 1971 A.P. 69, their Lordships of the Andhra Pradesh had declared the imposition and collection of excise duty on matches manufactured by the petitioner to be without jurisdiction and not authorised by law. Their Lordships al|o observed that the respondent cannot be allowed to appropriate the duty so collected and the petitioner was entitled to an order for the refund of the duty collected from him under a void provision by the respondents.
22. The Bombay High Court has consistently taken aforesaid view. The first case referred to by the learned counsel for the petitioners is Union of India v. Mansingka Industries Pvt. Ltd., 1979 E.L.T. 158 (B6m.) In that case, the plaintiff-Company had filed a suit that the Union of India had illegally recovered from it certain moneys purported to be excise duties under the Act. The suit was decreed. Ultimately, the high Court held that the plaintiff was entitled to recover the duty illegally collected.
23. In Associated Bearing Company Limited v. Union of India and Anr., 1980 E.L.T. 415 (Bombay) it was held that claim for refund of duty could be entertained within three years from the date when the mistake of law was discovered and that there was no provision in the Central Excise Law under which a manufacturer could be denied the refund of duty illegally collected from him even though he had recovered it from the customers and had no intention to refund it to them and that the claim of refund of duty illegally collected by the Department could be entertained even in a proceeding under Article 226 of the Constitution of India. In this case, reliance has been placed by the Division Bench of the Bombay High Court on the decision of the final Court in D. Cawasji and Company’s case (supra).
24. The Bombay High Court again in Maharashtra Vegetable Products Pvt. Ltd. and Anr. v. Union of India and Ors., 1981 E.L.T. 468 (Bombay), held that the excise authorities had no jurisdiction to take into account any post-manufacturing expenses for the purpose of charge-ability of excise duty; that if the excise duty was wrongly collected on post-manufacturing expenses, it clearly amounted to exercising of powers without jurisdiction and outside the provisions of the Central Excise Act and that the amount of duty illegally collected was refundable even though it was recovered from the consumers by the manufacturers and might result in unjust enrichment. The Union of India filed a Special Leave Petition in the Supreme Court against this decision of the Bombay High Court. The application was dismissed and the leave was declined by their Lordships of the Supreme Court on 3rd April, 1981.
25. Similar view was taken by a learned Single Judge of the Bombay High Court in Paper Products Ltd. v. Union of India, 1981 E.L.T. 538 (Bombay).
26. Justice Varadarajan (when his Lordship was a Judge of the Madras High Court) held in Madras Fertilisers Ltd. v. Assistant Collector of Central Excise, Madras and Ors., 1981 E.L.T. 194 (Madras) that the Government was not entitled to retain the excess duty recovered or collected as there was a legal obligation on its part to return the same and as there was a corresponding legal right in the assessee to recover the same.
27. A Division Bench of the Rajasthan High Court in Pem Cables Pvt. Ltd. v. Assistant Collector (Principal Appraiser) Customs, Bombay and Ors., 1981 E.L.T. 440 (Raj.) held that the High Court could issue a direction for the enforcement of fundamental rights to give constitutional relief by way of refund of money paid under a mistake of law and realised by the Government without the authority of law.
28. A Division Bench of the Madras High Court in Assistant Collector of Customs, Madras and Ors. v. Prem Raj and Ganpat Raj and Co. (P) Ltd., 1978 E.L.T. 630, directed the refund of excise duty to the assessee on the grount that the recovery of duty was without the authority of law.
29. In Vazir Sultan Tobacco Co. Ltd. v. Union of India and Ors., 1981 E.L.T. 140 (Delhi), a learned single Judge of the Delhi High Court took the view that any duty realised in excess of what was permissible under the Central Excise Act, would be realisation outside the provisions of the Act and the court was fully competent to allow the refund of excess amount of duty under Article 226 of the Constitution even though the claim of refund had been held to be barred by time by the departmental authorities.
30. In Hyderabad Asbestos Cement Products Ltd. v. State of Andhra Pradesh, 24 S.T.C. 48? it was observed:
“If, apprehending that it may have to pay sales tax on the freight, the Company collected sales tax on the freight, the true nature of the contract between the Company and the purchasers cannot on that account be altered. The Company may be liable to refund the amount of excess sales tax to its purchasers. But that is a matter between the company and the purchasers and the State cannot seek to levy tax on railway freight if it is not made a part of the price.”
31. All these decisions were considered by a Division Bench of the Andhra Pradesh High Court in Kesoram Cements, Basantnagar v. Union of India and Ors., 1982 E.L.T. 214 (A.P.). Their Lordships observed:
“To sum up, the excise authorities have no jurisdiction to levy excise duty in conformity with and as empowered by the provisions of the Central Excise Act and the Rules made thereunder. Any duty collected otherwise is without authority of law and is liable to be refunded to the assessee. The Union of India has no right to retain the duty so illegally levied and collected. In a proceeding instituted under Article 226 of the Constitution of India questioning the levy of such illegal excise duty, the assessee is entitled to the consequential relief of refund of the duty so illegally collected when the illegal levy is quashed in the said and same proceeding, unless a plea of limitation is available to the Union of India in case the claim were to be enforced by way of a suit. The assessee’s claim for refund of excise duty illegally levied and paid by him under protest stands on a still higher footing. (The discretionary jurisdiction of the High Court under Art 226 of the Constitution cannot, however,be exercised merely for the purposes of obtaining refund of the duty declared to have been collected illegally in an earlier or a different proceeding). Even if the assessee passed on to his consumers, the duty illegally recovered from him, it is a matter between him and his consumers and the High Court cannot deny refund of the illegally levied and collected duty, to the assessee even if it results in unjust enrichment of the assessee.”
32. A similar view was taken by the Calcutta High Court in Calcutta Paper Mills Manufacturing Co. v. Customs, Excise and Gold (Control) Appellate Tribunal and Ors., 1986 (25) E.L.T. 939 (Tribunal), wherein it was observed:
“The ground of unjust enrichment as a defence against the claim of restitution has been rejected by the various High Courts and the Supreme Court on the ground that the duty which is collected without authority of law was refundable even though it was recovered from the consumers or manufacturers and the granting relief of refund may result in his unjust enrichment. The theory of unjust enrichment cannot be invoked in a case of claim for a refund of excise duty recovered from the manufacturer without the authority of law.”
33. A Division Bench of the Delhi High Court in Bermalt (India) Private Limited, Gurgaon v. Government of India and Ors., 1986 (23) E.L.T. 411 (Del.), directed the refund of excise duty paid under protest.
34. The Bombay High Court in Radipur (India) Ltd. v. Union of India and Ors., 1987 (27) E.L.T. 222 (Bom.) held that the refund of excise duty paid under mistake of law cannot be rejected on the ground of unjust enrichment.
35. It may be noticed that all these cases relate to the period prior to the enactment of Section 11B of the Act. The application for Refund in most of the cases had been made under Section 72 of the Contract Act. Even then, as noticed earlier, it was held in Kanhaiya Lal Mukund Lal Saraf’s case (supra) that the equitable considerations could scarcely be imported when there was clear and unambiguous provision of law which entitled the assessee to the relief claimed by him. In Cawasji’s case (supra) it was laid down that there was no provision under which the Court could deny refund of tax even if the person who paid it had collected the same from his customers and he had no subsisting liability or intention to refund it to them or for any reason it was impracticable to do so. Even if a manufacturer has passed on the burden of the excise duty to the customers/consumers and he had no subsisting liability or intention to refund it to them, the excise authorities could not refuse to refund the excise duty paid by him under mistake of law or collected by the officers of the Department without any authority of law. The Bombay High Court in* Maharashtra Vegetable Products Ltd.’s case (supra) had held that the excise authorities had no jurisdiction to take into account the post-manufacturing expenses for the purpose of chargeability of excise duty, that if the excise duty was wrongly collected on the post-manufacturing expenses, it clearly amounted to exercising of powers without jurisdiction and outside the provisions of the Central Excise Act and that the amount of duty illegally collected was refundable even though it was recovered from the consumers by the manufacturers and might result in unjust enrichment. This view was affirmed by the final Court when the Special Leave Petition filed against this judgment was dismissed on 3rd April, 1981. The other decisions noticed above have also taken the view that excise duty charged without the authority of law is liable to be refunded to the person from whom it had been recovered even though he had passed on the duty to his coustomers or consumers.
36. The respondents have relied upon a large number of decisions in which contrary view has been taken. A few of them which succinctly bring out the opposite viewpoint may be noticed:
37. In Madras Aluminium Co. Ltd. and Anr. v. Union of India, 1981 E.L.T. 478 (Mad.), their Lordships of the Madras High Court observed:
“There is one other impediment in the way of the petitioners claiming refund of excise duty in this case. The petitioners, after paying the excise duty as per the classification made by the excise authorities, have passed on the same to the actual consumers and in fact, the actual consumers have borne the entire liability towards excise duty. The petitioners admit that they are not able to trace at this stage as to who are the ultimate consumers in respect of the goods which have suffered excise duty, in respect of which refund is now sought for by them. Though excise duty is levied at the production or manufacture of goods for home consumption, in substance it is a tax on consumption, and, therefore, if at all it is the consumer who can claim the refund of the excise duty paid in respect of the article purchased and consumed by him. and not the petitioners who produced the articles and who have recouped themselves to the extent of the excise duty paid to the State.”
38. Similar view was taken by a Division Bench of the Andhra Pradesh High Court in G.S.G.A. & Co. v. State of Andhra Pradesh, 30 S.T.C. 120.
39. There is, however, no reference to any of the decisions of the Supreme Court recognising the right of the assessee to claim refund of duties or taxes illegally levied.
40. The Delhi High Court in Hyderabad Asbestos Cement Products Ltd. and Anr. v. Union of India and Ors., 1980 E.L.T. 735 (Del.) took the view that the benefit of amount of the refund of illegally levied and collected excise duty should in all fairness normally belong to the consumers and the petitioners cannot be allowed to unjustly enrich themselves by obtaining refund of excise duty.
41. Similar view was taken in Ogale Glass Works Ltd. v. Union of India and Ors., 1979 E.L.T. (J 468); Electric Lamp (India) Pvt. Ltd. v. Collector of Central Excise, Calcutta and Orissa and Ors., 1978 E.L.T. (J. 84); Union Carbide Co. Ltd. v. Assistant Collector of Central Excise and Ors., 1978 E.L.T. (J 180); Hindustan Pilkington Glass Works Limited v. Superintendent Central Excise, Asansole and Ors., 1978 E.L.T. (J 229); Birla Jute Manufacturing Company v. Union of India, and Ors., 1980 E.L.T. 59 3 (M.P.); Madras Aluminium Co. Ltd. and Anr. v. Union of India, 1981 E.L.T. 478 (Mad.); Jaswant Sugar Mills Ltd. v. Union of India and Ors., 1983 E.L.T. 920 (All.); Union of India v. New India Industries Ltd., Baroda, 1983 E.L.T. 1763 (Guj.); Union of India and Ors. v. Ahmedabad Manufacturing and Calico Printing Co. Ltd. and Ors., 1984 (17) E.L.T. 246 (Guj.); and N.V. Ramaiah v. State of Andhra Pradesh and Ors., AIR 1986 A.P. 361.
42. Learned counsel for the respondents, however, contended that the law laid down in Cawasji’s case (supra) is no more good law in view of the decision of the Supreme Court in Messrs. Shiv Shanker Dal Mills v. State of Haryana and Ors., A.I.R. 1980 S.C. 1037; The Sales Tax Officer, Banaras v. Kanhaiya Lal Mukund Lal Saraf, A.I.R. 1959 S.C. 135; Amar Nath Om Parkash v. State of Punjab, A.I.R. 1985 S.C. 218; State of Madhya Pradesh v. Vyankatlal and Anr., A.I.R. 1985 S.C. 901. They drew my pointed attention to para 14 of the report in Vyankatlal’s case (supra) and contended that though the other decisions of the Supreme Court afore-mentioned were based on specific provisions of the Acts applicable to those cases, the ratio of Vyankatlal’s case could be applied to all cases because the amount of duty paid by the claimants and sought to be refunded had not been paid by the claimants from their own coffers and thus there was no question of refunding the amount to the respondents who had not eventually paid the amount towards the Fund, for doing so would virtually amount to allow the respondents unjust enrichment. A similar plea had been raised before a Division Bench of the Bombay High Court in Radipur (India) Ltd. v. Union of India and Ors., 1987 (27) E.L.T. 222 (Bom.), wherein their Lordships observed:
“14. In our view there is no force in the submission of Mr. Nadkarni that the law laid down by the Supreme Court in Cawasji’s case is not binding on us. Whether it was not necessary for the Supreme Court to deal with that question is entirely irrelevant. The Supreme Court has indeed dealt with it and has laid down the law on the subject. Thus, since even the obiter of the Supreme Court is binding on all Courts subordinate to it, we think it pertinent and necessary to advert to that ruling of the Supreme Court. Their Lordships after having dealt with other aspects of the case, observed in paragraphs 8 and 9 that a suit will lie to recover moneys paid under a mistake of law and a writ petition for refund of tax within the period of limitation prescribed, i.e. within 3 years of the knowledge of the mistake, would also lie; that for filing a writ petition for recovery of the money payable under a mistake of law, the starting point of limitation is from the date on which the judgment declaring as void the particular law under which the tax was paid was rendered, as that would normally be the date on which the mistake becomes known to the party; that if any writ petition is filed beyond three years after that date, it will almost always be proper for the Court to consider that it is unreasonable to entertain that petition though even in cases where it is filed within three years, the Court has a discretion, having regard to the facts and circumstances of each case, not to entertain the application; that the result of this view would be to enable a person to recover the amount paid as tax even after several years of the date of payment, which if some other party would successfully challenge the validity of the law under which the payment was made and if only a suit or writ petition is filed for refund by the person within three years from the date of declaration of the invalidity of the law; and that might both be expedient and unjust so far as the State is concerned. Then, in paragraph 10, their Lordships proceeded as under:-
‘A tax is intended for immediate expenditure for the common good and it would be unjust to require its repayment after it has been in whole or in part expended which would often be the case, if the suit or application could be brought at any time within three years of a court declaring the law under which it was paid to be invalid, be it a hundred years after the date of payment. Nor is there any provision under which the court could deny refund to tax even if the person who paid it has collected it from his customers and has no subsisting liability or intention to refund it _to them, or, for any reason, it is impracticable to do so.’
(emphasis supplied).
And lastly, in paragraph 12, it was observed that the task of writing legislation to protect the interest of nation is committed to Parliament and the legislatures of the States and that reference has been made to this aspect only to alert their attention to the present state of law. In other words, the Supreme Court has made it clear that if tax is paid under a mistake of law or is collected without the authority of law, the same has in all cases to be refunded to the party who paid it, irrespective of the time when the tax was paid. The only limitation that their Lordships had laid down is that the writ petition or the suit for the purpose of refund should be filed within three years from the discovery of knowledge of the mistake of law. The law as above laid down by the Supreme Court in Cawasji’s case has been consistently followed by this Court. It is not necessary for us to make a detailed reference to all such decisions of this High Court, for it suffices to advert to the judgment in Chipkar’s case reported in 1985 (2 3) E.L.T. 334, passed on the difference of opinion between Lentin and Satwant, 33. After reviewing in detail and minutely the relevant decisions of the Supreme Court and of this Court on the subject, Shah, 3. observed in paragraph 39 that the question as to whether unjust enrichment is a valid defence to the restitution in respect of the excess duty collected by the department without the authority of law has been squarely answered by the Supreme Court in Cawasji’s case, specially when the Supreme Court observed that there is no provision under which the court could deny refund of tax even if the person who paid it has collected it from his customers and has no subsisting liability or intention to refund it to them, or, for any reason, it is impracticable to do so. This view was later on followed also by 3ahagirdar, 3. in Parle Products Limited (supra).
15. It may appear that a different view was taken in Vyankatlal’s case as the Supreme Court has observed that the principles laid down in Orient Paper Mills, Shiv Shankar Dal Mills, Kanhaiya Lal Mukund Lal Saraf and in Amar Nath Om Parkash, were also applicable to the particular case before their Lordships, inasmuch as the respondents in that case had not paid the amount from their coffers. That was a case where respondents were the owners of 3eora Sugar Mills situated in the earlier State of Madhya Bharat. After the merger, the Madhya Bharat Essential Supplies (Temporary Powers) Act, 1948 came into force. By a Notification dated 5th September, 1949, the Madhya Bharat Government, in exercise of the powers vested under the said Act, included ‘sugar’ in the list of the articles as an essential commodity and by another notification also dated 5th September, 1949, delegated its powers to issue orders under the said Act in favour of the Director, Civil Supplies, Madhya Bharat. In the exercise of the powers conferred on him under the Madhya Bharat Sugar Control Order, 1949, the Director of Civil Supplies issued a notification dated i.4th January, 1950 fixing ex-factory price for different sugar factories. Under the said notification, all sugar factories in Madhya Bharat were to supply and despatch sugar of Grade E-27 at the rate of Rs. 32.40 per maund F.O.R. destination. The supply price was a little higher Than the ex-factory price and the difference between the supply price and the ex-factory price was to be credited to Madhya Bharat Government Sugar Fund. The Jeora Sugar Mills did not deposit the said amount, but, ultimatley, after several demands, deposited, under protest, an amount of Rs. 50,000/- in the account of the Madhya Bharat Government Sugar Fund. Thereafter, a suit was filed by the said Jeora Sugar Mills for a relief of refund of the said amount. It was on these facts that the Supreme Court made the observations in paragraph 14 of Vyankatlal’s case to ihe effect that there was no question of refunding the amount to the respondents who had not paid the amount towards the Fund as doing so would virtually amount to allow them unjust enrichment. This, according to Mr. Nadkarni, lays down the law on the subject, and as such, when the amount collected does not come from the coffers or from the pockets of the person who has made the payment, the theory of unjust enrichment comes into operation and no refund can be granted.
16. Mr. Hidayatullah, however, sought to distinguish the said decision of the Supreme Court. He urged that, unlike- in _Cawasji_|s_ case, the Supreme Court was dealing in Vyankatlal’y case with a question of price fixation and not with a matter of taxation. Therefore Cawasji’s case is a direct judgment on the point, whereas the judgment in Vyankatlal’s case touches the subject only in an indirect manner. A direct judgment is preferable to and prevails over an indirect judgment. Hence, the law laid down in Cawasji’s case is to be followed. That apart, in Vyankatlal’s case, Article 265 of the Constitution, though urged by the petitioners in that case, did not constitute the basis for the Supreme Court’s decision. Then in the various judgments referred to by Their Lordships of the Supreme Court in Vyankatlal’s case, the Court has not been dealing with taxation but with matters related to fixation of prices, market fees and licence fees, i.e. with subjects that would not be covered by Article 265 of the Constitution, with exception however of the cases of Orient Paper Mills Ltd, and Kanhaiya Lal Mukund Lal Saraf. But in those two latter cases there was an express provision of law stating that the Sales Tax illegally collected should be returned to the customers. besides, in Vyankatlal’s case, the Supreme Court was dealing with the judgment passed in a suit, and not with a writ potition. The principles applicable in a suit and a writ petition are different, the learned counsel contended, and the principles applicable in a writ petition as regards the question of unjust enrichment are laid down in Cawasji’s case. Finally, the observations made in Vyankatlal’s case are on the facts of that case and therefore, do not lay the law on the subject.
17. We already stated that in Cawasji’s case, the Supreme Court has in clear and unambiguous terms laid down that if a Tax is paid under a mistake of law or is collected without the authority of law, this amount of the Tax paid has to be refunded even if the person who paid it has collected it from his customers and has no subsisting liablility or intention to refund it to them or, for any reason, it is impracticable to do so. Cawasji’s case was one in respect of taxation, more particularly, relating to refund of Tax, unlike Vyankatlal’s case. In the latter case, in fact the question was as regards the fixation of price and the observations made were strictly on the tacts of that particular case, where the difference of price collected was meant for the Government Sugar Fund. It was in this context that the Supreme Court observed that in the particular facts of that case where the said difference of price has been paid by the consumers and not by the Jeora Sugar Mills and where the said difference was to be credited to the Sugar Fund, the principles laid down in the cases referred to by Their Lordships were applicable. No general proposition of law was laid down and thus, in our view, the direct judgment in Cawasji’s case was not disapproved. We may also point out that if other was the intention of the Supreme Court while deciding the Vyankatlal’s case, a specific reference would have been made by their Lordships to the Cawasji’s case. Thus, in our opinion, Vyankatlal’s case does not help the case of the respondents, as it does not replace the law laid down in Cawasji’s case. We are supported in this by Jaha-girdar, J. in Parle Products Limited case. in this view of the matter, the second respondent could not have refused the refund claimed by the petitioners on the ground that it would give cause to unjust enrichment.”
43. I am in respectful agreement with the above observations. They are a complete answer to the contention raised by the petitioners. The other decisions referred to by the petitioners and extracted above are not applicable to the facts of the present case. In none of those cases refund had been claimed under the provisions of Section 11B of the Act. In fact, these cases pertained to the period before the enactment of Section 11B. These cases dealt with the claims for refund made under Section 72 of the Contract Act. According to the ratio of the Gujarat High Court’s decision in Union of India and Ors. v. Ahmedabad Manufacturing and Calico Printing Co. Ltd. and Ors., 1984 (17) E.L.T. 246 (Guj.), Section 72 is one of the group of Sections falling under Chapter V of the Contract Act, which deals with certain relations resembling those created by the contracts. This Section is not founded on contract but embodies equitable principles of restitution. According to this decision, the juristic basis of the obligation under Section 72 is not founded upon any contract or tort but a third category of law, namely, quasi-contract or restitution. So, all the decisions have proceeded on the ground that Section 72 embodies equitable principles of restitution. According to these equitable principles, any plaintiff seeking refund of tax or duty has to satisfy the court that he has not taken any advantage under the transaction. However, as noticed earlier, no such principles of equity are enshrined or embodied in Section 11B of the Act. The language of that section is very clear and militates against any concept of unjust enrichment or equitable considerations.
44. It was argued by Shri Shanti Bhushan, learned counsel for respondent No. 5, that the petitioners had entered into a contract with respondent No. 5 and had received the excise duty from them; that by Notification No. 201/79 CE dated 4.6.1979, the Central Government carved out an exemption scheme whereunder duty paid on goods (classified under Tarrif Item 68 and used in the manufacture of finsihed excisable goods) was refunded by allow proforma credit to the manufacturers of finished excisable goods and, thus, the duty paid by the petitioner on H.R.B.O. was effectively refunded by allowing credit to respondent No. 5. On receiving such credit, respondent No. 5 refunded the amount of duty to the petitioners and the net duty payment of the petitioner on account of clearance of the said H.R.B.O. was, therefore, nil. This contention cannot prevail. First, it is just facet of the plea of theory of unjust enrichment wherein the view taken is that if the manufacturer after paying the excise duty passed the same on to his customers or consumers, then he cannot seek a refund thereof because that will amount to unjust enrichment of the claimant, the claimant having already received the excise duty paid by him from his customers or consumers. Secondly, the present is a Us between the petitioners and the Revenue. It remains so even after the impleading of respondent No. 5 as a respondent. The petitioners have not claimed any relief against respondent No. 5 and in this writ petition, respondent No. 5 cannot seek any relief against the petitioners. Whatever private contract exists between the petitioners and respondent No. 5, that can be enforced through the courts of the land by way of a civil suit. The writ petition is not the forum to determine the rights of the parties under a contract.
45. Shri Shanti Bhushan also argued that on petitioners’ representation, respondent No. 5 had changed its position to its detriment by refunding the excise duty to the petitioners. The petitioners are now estopped from seeking refund of excise duty, because if the excise duty is refunded to the petitioners, respondent No. 5 shall have to pay back this duty to the Revenue and then sue the petitioner for recovery of these moneys. The answer to this argument is provided by the decision of the apex Court in Kanhaiya Lal Mukund Lal Saraf’s case (supra). Their Lordships of the Supreme Court have held that the principles of estoppel were not applicable in such cases. Moreover, the petitioner was claiming the relief against the Revenue and the Revenue had not changed its position to its detriment on any representation made by the petitioner.
46. There is another aspect of the matter, which negates the application of the principle of unjust enrichment. The theory has its basis in the concept that money is recovered by the manufacturer from numerous unknown citizens. They are not in a position to claim back the excise duty passed to them through the finished goods. In the present case, as has been alleged by respondent No. 5, the parties who eventually paid the excise duty are known and they have in fact staked their claim to the duty unjustifiably recovered from the petitioner. They are at liberty to file actions against the petitioner to recover any moneys which they think is due to them from the petitioner.
47. Before parting with the judgment it may be mentioned that Shri H.S. Brar, learned counsel for the Revenue, raised two preliminary objections: (a) the claim for refund was barred by time, and (b) the petitioner had filed an appeal before the Tribunal and the same was pending and, thus, the petitioner could not simultaneously pursue two remedies. Shri Shanti Bhushan, learned counsel for respondent No. 5, also reiterated these objections.
48. There is no merit in either of the two objections. The petitioner had paid the excise duty under protest. So, under Sub-section (1) of Section 11B of the Act, limitation of six months is applicable only when the excise duty is not paid under protest. Even otherwise, Sub-section (1) relates to those cases where a party has paid the excise duty under a mistake of law or in any other proceedings, the levy of duty is held to be invalid. Sub-section (1) does not relate to those cases where the adjudication has taken place. Those proceedings are covered by Sub-section (3) which provides that when the excise duty is remitted or reduced in appeal or revision, then the Assistant Collector will refund the same. No limitation is prescribed undor Sub-section (3). So, on both counts the claim for refund cannot be termed to be barred by time. The fact that the petitioner had withdrawn the protest on 29th March, 1984 has no bearing on the question of limitation. When the duty was paid, a protest was lodged by the petitioner. That fulfils the requirement of Sub-section (1). When the objection regarding pendency of an appeal before the Tribunal was raised by Shri Brar, learned counsel for the Revenue, learned counsel for the petitioners, stated at the Bar that an application shall be made for withdrawal of the appeal immediately. During the hearing of the arguments on the adjourned date, learned counsel for the petitioner informed me that an application had been made for withdrawal of the appeal. Therefore, this objection also does not survive.
49. For the foregoing reasons, 1 hold that in view of the clear and plain language of Section 11B of the Act, there is no scope for importing the doctrine of unjust enrichment to deny refund of excise duty paid by the petitioner under a mistake of law. The order dated May 10, 1985 (Annexure ‘IX’) passed by the Assistant Collector and the appellate order dated April 29, 1986 (Annexure ‘X’) passed by the Collector (Appeals) are unsustainable in law and are quashed. The Revenue authorities are directed to refund the excise duty to the tune of Rs. 1,31,04,811.89 to the petitioner latest by 20th June, 1987. The Revenue should bear the cost of this petition, which are assessed at Rs. 1,000/-. Copy of this judgment be delivered to Shri H.S. Brar, learned counsel for the Revenue.