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TMI Blog2012 (6) TMI 816X X X X Extracts X X X X X X X X Extracts X X X X ..... shed in the North Eastern Region. This was followed by notification dated 8-7-1999 granting exemption to the industrial units from payment of Central Excise Duty. The exemption was effective from 8-7-1999 to 27-1-2001. The said duty, after payment, was liable to be refunded to the new industrial units. During the period from April to June, 2000, the excise duty was refunded to the appellants in terms of the said exemption. The exemption, so granted, was retrospectively withdrawn under Section 154 of the Finance Act, 2003. If the amount of excise duty had already been refunded, the same was liable to be recovered. It was further provided that excise duty had not been already refunded to the unit, no further refund would be made. 3. The appellant in WA 19/2011 filed WP(C) 4398/2003 challenging Section 154 of the Finance Act, 2003. In that writ petition, interim protection was granted vide order dated 13-6-2003 restraining the respondents from recovering the refund of excise duty in terms of Section 154 of the Finance Act, 2003. The said writ petition was transferred to the Apex Court and was dismissed vide order dated 19-9-2005, reported in (2005) 7 SCC 725 = 2005 (188) E.L.T. 129 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it would have been but for exemption. Same is position qua the plea of stay. An unsuccessful litigant cannot be allowed to enjoy the fruits of interim order. 8. Before we advert to the principle of restitution, it would be appropriate to reproduce the statutory provision in question, i.e., Section 154 of the Finance Act, 2003 :- 154. Amendment of notifications issued under Section 5A of the Central Excise Act . - (1) The notifications of the Government of India in the Ministry of Finance (Department of Revenue) Nos. G.S.R. 508(E), dated 8-7-1999 and G.S.R. 509(E), dated 8-7-1999, issued under sub-section (1) of Section 5A of the Central Excise Act read with sub-section (3) of Section 3 of the Additional Duties of Excise (Goods of Special Importance) Act, 1957 (58 of 1957) and sub-section (3) of Section 3 of the Additional Duties of Excise (Textiles and Textile Articles) Act, 1978 (40 of 1978), by the Central Government shall stand amended and shall be deemed to have been amended in the manner as specified against each of them in column (3) of the Ninth Schedule, on and from the corresponding date specified in column (4) of that Schedule retrospectively, and accordingly, no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... een so punishable if the notifications referred to in sub-section (1) had not been amended retrospectively by that sub-section. (emphasis added) 9. Considering the validity of the above provision, the Hon ble Supreme Court held that withdrawal of exemption from the date of the notification itself was within the competence of the Parliament and the same not liable to be quashed on the ground of being unreasonable. In para 50, it was observed :- 50. Furthermore having upheld the constitutional validity of Section 154 it would be a pyrrhic victory for the Union of India if they could not in fact recover the tax. It is not a fit case where the legislation has merely withdrawn the exemptions. The consequences of the withdrawal have been statutorily provided for including the recovery of the excise duties refunded or not paid. The effective period of such imposition is about eight months. The State has been deprived of revenue without any corresponding benefit. It may be that the retrospective operation may operate harshly in some cases, but that would not by itself invalidate the demand. (See Epari Chinna Krishna Moorthy v. State of Orissa, (1964) 7 SCR 185 : AIR 1964 SC 158 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d : 26. In our opinion, the principle of restitution takes care of this submission. The word restitution in its etymological sense means restoring to a party on the modification, variation or reversal of a decree or order, what has been lost to him in execution of decree or order of the Court or in direct consequence of a decree or order (see Zafar Khan v. Board of Revenue, U.P., 1984 Supp SCC 505 : AIR 1985 SC 39). In law, the term restitution is used in three senses : (i) return or restoration of some specific thing to its rightful owner or status; (ii) compensation for benefits derived from a wrong done to another; and (iii) compensation or reparation for the loss caused to another. (See Black s Law Dictionary, 7th Edn., p. 1315). The Law of Contracts by John D. Calamari Joseph M. Perillo has been quoted by Black to say that restitution is an ambiguous term, sometimes referring to the disgorging of something which has been taken and at times referring to compensation for injury done : Often, the result under either meaning of the term would be the same. Unjust impoverishment as well as unjust enrichment is a ground for restitution. If the defendant is guilty of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n so as to do complete justice between the parties. In Jai Berham v. Kedar Nath Marwari, (1922) 49 IA 351 : AIR 1922 PC 269, Their Lordships of the Privy Council said : (AIR p. 271) It is the duty of the Court under Section 144 of the Civil Procedure Code to place the parties in the position which they would have occupied, but for such decree or such part thereof as has been varied or reversed . Nor indeed does this duty or jurisdiction arise merely under the said section. It is inherent in the general jurisdiction of the Court to act rightly and fairly according to the circumstances towards all parties involved. Cairns, L.C. said in Rodger v. Comptoir D Escompte de Paris, (1871) 3 PC 465 : (ER p. 125) [O]ne of the first and highest duties of all Courts is to take care that the act of the Court does no injury to any of the suitors, and when the expression, the act of the Court is used, it does not mean merely the act of the primary Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the lowest Court which entertains jurisdiction over the matter up to the highest Court which finally disposes of the case. This is also on the pri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y orders favourable to them by making out a prima facie case when the issues are yet to be heard and determined on merits and if the concept of restitution is excluded from application to interim orders, then the litigant would stand to gain by swallowing the benefits yielding out of the interim order even though the battle has been lost at the end. This cannot be countenanced. We are, therefore, of the opinion that the successful party finally held entitled to a relief assessable in terms of money at the end of the litigation, is entitled to be compensated by award of interest at a suitable reasonable rate for the period for which the interim order of the Court withholding the release of money had remained in operation. 29. Once the doctrine of restitution is attracted, the interest is often a normal relief given in restitution. Such interest is not controlled by the provisions of the Interest Act of 1839 or 1978. 30. So far as the appeal filed by the State of Madhya Pradesh seeking substitution of rate of interest by 24% per annum in place of 12% per annum as awarded by the High Court is concerned, we are not inclined to grant that relief in exercise of our discretionary ju ..... X X X X Extracts X X X X X X X X Extracts X X X X
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