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TMI Blog2024 (11) TMI 469X X X X Extracts X X X X X X X X Extracts X X X X ..... [ 1996 (12) TMI 50 - SUPREME COURT ] has held that a person is entitled to receive the amount once the Court holds a person entitled to it and as a corollary the Department would not be entitled to keep the same with them. Therefore, even if an application is not moved, the department would be obliged to refund the amount to concerned person from whom the excess amount has been received unlawfully after the provision has been declared ultra vires. This Court holds that the amount kept by the respondents as excess amount of Rs. 3,66,649/- was unjustified and the Department ought to have refunded it back. The application for refund moved by the petitioner has wrongly been treated as an application under Section 11B of the Act and should have ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation was rejected being time barred in terms of Section 11B of the Act vide order dated 10.07.2007. Thereafter, appeal against the order dated 10.07.2007 was allowed on 01.11.2007. The Department preferred further appeal against the said order and the same came to be decided on 21.12.2009 by the Customs Excise and Service Tax Appellate Tribunal (for short, 'the CESTAT') in favour of the department holding the application to be time barred. 3. Keeping in view the observations made by the Rajasthan High Court, the petitioner preferred the present writ petitioner wherein the petitioner has urged that in terms of the observations made by the Supreme Court in 'Mafatlal Industries Ltd. Vs. Union of India', 1997 (89) ELT 247 (SC), the writ petit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proaches the High Court or Supreme Court challenging the constitutional validity of a provision but fails, he cannot take advantage of the declaration of unconstitutionality obtained by another person on another ground; this is for the reason that so far as he is concerned, the decision has become final and cannot be re-opened on the basis of a decision on another person's case; this is the ratio of the opinion of Hidayatullah, CJ.in Tilokchand Motichand and we respectfully agree with it. Such a claim is maintainable both by virtue of the declaration contained in Article 265 of the Constitution of India and also by virtue of Section 72 of the Contract Act. In such cases, period of limitation would naturally be calculated taking into accou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fund. A corresponding obligation upon the State to refund it can also be said to flow from it. This can be called the right to refund arising under and by virtue of the Constitutional provisions, viz., Article 265. But, it does not follow from this that refund follows automatically. Article 265 cannot be read in isolation. It must be read in the light of the concepts of economic and social justice envisaged in the Preamble and the guiding principles of State Policy adumbrated in Articles 38 and 39 - an aspect dealt with at some length at a later stage. The very concept of economic justice means and demands that unless the claimant (for refund) establishes that he has not passed on the burden of the duty /tax to others, he has no just claim ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 265 or as a statutory right/ equitable right affirmed by Section 72 of the Contract Act, the result is the same - there is no automatic or unconditional right to refund" 8. Considering the said observations of Mafatlal's case (supra) and also reading the same in congruity with paragraph No. 99 (ii) of Mafatlal's case (supra), we find that the present case cannot be said to fall in terms of paragraph No. 99 (ii) of Mafatlal's case (supra), as the petitioner has not challenged the Constitutional validity before any Court. Therefore, the submission of learned counsel for the revenue relying upon the aforesaid paragraph has no basis, therefore his contention is hereby rejected. 9. Learned counsel for the petitioner further points that once a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the amount kept by the respondents as excess amount of Rs. 3,66,649/- was unjustified and the Department ought to have refunded it back. The application for refund moved by the petitioner has wrongly been treated as an application under Section 11B of the Act and should have been treated as a simple application for refund in terms of the provisions having been declared ultra vires, if the amount therefore has to be returned to the petitioner. 12. Keeping in view that the Supreme Court recognizes an obligation of the State to refund in Mafatlal's case (supra), the present writ petition is allowed and we hereby direct the respondents to now refund the amount alongwith interest @ 6% per annum from the date the same was deposited erroneously. ..... X X X X Extracts X X X X X X X X Extracts X X X X
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