9911796707
TMI Blog1985 (4) TMI 76X X X X Extracts X X X X X X X X Extracts X X X X ..... 13th April, 1967 to 28th February, 1969 the plaintiff-company purchased aluminum rods from the defendant-company and paid the aforesaid amount to the defendant-company on account of excise duty under the bona fide belief and mistake of law whereas in fact and in law no excise duty was payable. The refund was claimed from the defendant-company and reliance was placed on a decision of the Gujarat High Court. It was also pleaded that the plaintiff-company requested the defendant-company to refund the amount of excise duty but the said company refused to refund the amount on the plea that the defendant-company had taken up the matter with the Central Excise Authorities. They rejected the claim for refund. That is how the suit was filed against ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appearing on behalf of the plaintiff-company, he stated that if the defendant-company is able to prove that they have actually paid the amount to Central Government, then, of course, no relief would be claimed against them. But in case ultimately, it is found that the defendant-company has not paid anything to the Central Government towards the excise duty and if ultimately the Court holds that the excise duty is not payable, then it will be only the defendant-company which would be liable to refund the amount to the plaintiff-company and not the Central Government. 5. After considering the rival contentions of the parties, I am of the view that the suit deserves to proceed because of the following two reasons. The first would be the poin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the agreement and while doing so, it cannot be spelt out that the arbitration clause included the decision of dispute whether on the articles supplied by the defendant-company to the plaintiff company, the excise duty was payable or not. What is agreed is that if the excise duty is payable, then it would be charged at the rate specified by the Government at the relevant time. Hence, the crucial dispute, whether the excise duty was payable or not, would be between the plaintiff-company and defendants 2 and 3, i.e. the Union of India and the Collector of Central Excise, with whom the defendant-company has nothing to do. For the determination of this dispute, the defendant-company would be merely pro forma. As already stated above, even unde ..... X X X X Extracts X X X X X X X X Extracts X X X X
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