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TMI Blog2019 (7) TMI 158X X X X Extracts X X X X X X X X Extracts X X X X ..... denied for the reason that there is no legal provision to refund R D Cess paid by the petitioners. No amount can be withheld by the respondents without authority of law under the said pretext. Any money collected, retained without authority of law requires to be refunded to which a citizen is entitled. Hence, the petitioners are entitled to the said Cess amount deposited subsequent to repeal of the Act without any interest by the respondent Nos.2 to 4. The respondent Nos.2 to 4 shall refund the R D Cess paid by the petitioners respectively in an expedite manner in any event not later than four weeks from the date of receipt of the certified copy of the order - petition allowed - decided in favor of petitioner. - WRIT PETITION No.5468/2018 C/w. WRIT PETITION No.5469/2018 (T – RES) - - - Dated:- 20-6-2019 - MRS. S. SUJATHA J PETITIONER (BY SRI RAGHURAMAN.V, ADV.) RESPONDENTS (BY SRI RAKESH KUMAR SINGH, ADV. FOR R-1; SRI C. SHASHIKANTHA, ASG. FOR R-2 TO R-4.) O R D E R These petitions involving similar and akin issues, have been clubbed together and are taken up for disposal by this common order. 2. The petitione ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g to refund claim of R D Cess, the action of the respondent No.1 in rejecting the claim is unjustifiable and violative of Article 14, 19, 265 and 300A of the Constitution of India. Learned counsel in support of his contentions, placed reliance on the following judgments; 1. Hind Agro Industries Limited V/s. Commissioner of Customs 2008 [221] E.L.T. 336 [DEL.]. 2. HMM Ltd., V/s. Administrator, Bangalore City Corporation 1997 [91] E.L.T. 27 [S.C.]. 3. Joshi Technologies International V/s. Union of India 2016 [339] E.L.T. 21 [GUJ,]. 8. Learned counsel appearing for the respondent No.1 supporting the impugned letter/order contended that, it is an undisputed fact that the petitioners have wrongly made the payment towards R D Cess though the same has been abolished with effect from 01.04.2017. In view of the repeal of the Act, respondent No.1 has no power to process the refund with effect from 01.04.2017. The Cess amount wrongly paid by the petitioners has now become the part of the public account of India whose disbursement is not in the hands of the respondent No.1 in terms of Article 266 of the Constitution. In such a situation, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inistry of Finance i.e., respondent No.4 to refund R D Cess paid by the petitioner. 10. Learned ASG appearing for the respondent Nos.2 to 4 reiterated the submissions made in the counter affidavits, above mentioned. 11. Heard the learned counsel for the respective parties and perused the material on record. 12. The sole point that arises for consideration of this Court is: Whether the respondents can retain the R D Cess which has been collected without authority under the provisions of Research and Development Cess Act, 1986 as the said Act itself has been repealed w.e.f., 1st April 2017 and hence the rejection of refund claim of R D Cess is violative of statutory provisions as also Article 265/300A of the Constitution? 13. The Hon'ble Apex Court in the case of HMM Limited supra, has observed thus: 12. . Realisation of tax or money without the authority of law is bad under Article 265 of the Constitution. Octroi cannot be levied or collected in respect of goods which are not used or consumed or sold within the municipal limits. So these amounts become collection without the authority of law. The respondent is a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from the petitioner is not backed by any authority of law, in view of the provisions of Article 265 of the Constitution, the respondents have no authority to retain the same. The decision of the Supreme Court in the case of Paros Electronics (P) Ltd. v. Union of India (supra) would have no applicability to the facts of the present case, inasmuch as, in that case the refund was not granted as the levy had become final being contested at all departmental levels. In the present case, the education cesses have been paid by the petitioner by way of self assessment and no assessment order has been passed thereon. 15. In the case of Hind Agro Industries limited supra , the Hon'ble High Court of Delhi has observed thus: 16. There can be no manner of doubt that the custom authorities in the instant case were bound to refund the cess erroneously paid by the Appellants for the period from 15th January, 2001 till 19th February, 2002 under a mistake of law. They had paid the cess when in fact no such cess was payable. There is no question of processing a claim of refund of such amount in terms of the Customs Act at all because the payment made mistakenly was not un ..... X X X X Extracts X X X X X X X X Extracts X X X X
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