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TMI Blog1986 (11) TMI 55X X X X Extracts X X X X X X X X Extracts X X X X ..... al customs duty was paid, landed in India, and was charged customs duty. This notification reads as under :- "In exercise of the powers conferred by sub-rule (1) of rule 8 of the Central Excise Rules, 1944, the Central Government hereby exempts pipes and tubes of copper, falling under sub-item (9) of item No. 26A of the First Schedule of the Central Excises and Salt . Act, 1944 (1 of 1944), from so much of the duty of excise leviable thereon under the said Act at the rate specified in the said First Schedule as is in excess of the amount calculated at the rate of nine per cent ad valorem. This notification shall be in force upto and inclusive of the 30th day of September, 1985. (Notification No. 199/84-C.E., dated 17.9.1984)" By virtue of this notification, instead of duty being paid, as was paid at the rate of 28%, the duty ought to have been levied and calculated at the rate of 9% only. This means that excess additional customs duty was levied. The excess was to the extent of 19%. The claim of the petitioner in the petition is that taking into account the total amount paid as customs duty, a sum of Rs. 1,70,201.50P has become refundable to the petitioner on account of excis ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the instant petition, in which various relief's were sought; one was for the calling for the record of the respondent relating to the refund applications, and for quashing of the action thereon; and the other relief which was claimed, was a writ of or in the nature of mandamus or other appropriate writ, orders or direction be issued, commanding the respondents to act according to law and to forthwith refund to the petitioner company the amount of Rs. 1,70,201.50 in respect of the period 21-9-1984 to 8-12-1984. 9. The other prayer in clause (c) only related to directions to the respondents to act in accordance with the law and to consider the dispose of the refund claims without reference to the provisions of Section 27 of the Customs Act read with Section 3(6) of the Customs Tariff Act, 1975. 10. I need not pronounce upon prayer (c) in the instant case. As noted above, the matter has already been disposed of by the order dated 27th March, 1986, passed by the Assistant Collector of Customs (Refund), respondent No. 2. 11. Mr. S.P. Sharma, who appears for the Union of India, refers to and relies upon the judgment of the Supreme Court in M/s. Madras Rubber Factory Ltd. v. Union ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to pay under law, and they claim a refund of that amount which they were not liable to pay under law. For this proposition the law has been settled by a bench of six judges of the Supreme Court in the case State of Madhya Pradesh and another v. Bhailal Bhai others, A.I.R. 1964 Supreme Court 1006. The appeals in that case had been filed by the state of Madhya Pradesh under Article 226 of the Constitution of India. In that case the dealers of tobacco were assessed that sales-tax on their sales of tobacco, in accordance with the notification issued by the State Government in exercise of powers under Section 5 of the State. Sales-tax Act, and large amounts were collected by the Madhya Pradesh Government and later by the Madhya Pradesh Government. The petitioners had contended that the taxing provisions under which the tax was assessed and collected from them were un-constitutional, as it infringed Article 301 of the Constitution of India and did not come within the special provisions of Article 304(a). The Supreme Court agreed with the High Court that similar goods manufactured and produced in the State of Madhya Bharat have not been subjected to the tax which tobacco leaves manufact ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ked for refund of tax paid and when that was refused he applied to the High Court under Article 226 of the Constitution for a writ of certiorari for quashing the assessment orders and a writ of mandamus requiring the appellants to refund the amount illegally collected. The order made in this case by the High Court for refund was affirmed by this Court in appeal. In this case also the power of the High Court to order such refund was not challenged either before the High Court or before this Court. We see no reason to think that the High Courts have not got this power. If a right has been infringed - whether a fundamental right or a statutory right and the aggrieved party comes to the court for enforcement of the right it will not be giving complete relief if the court merely declares the existence of such right or the fact that existing right has been infringed. Where there has been only a threat to infringe the right, an order commanding the Government or other statutory authority not to take the action contemplated would be sufficient. It has been held by this Court that where there has been a threat and the right has not been actually infringed any application under Article 226 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e the excise duty had been paid under protest. Payment under protest is of relevance under Section 27(1) of the Customs Act. In the instant case, the payment that was made was a payment made under mistake. The Division Bench of this Court held that the products of the petitioners qualified for exemption from duty under entry 19. This Court also discussed the question "unjust enrichment" which was raised by the Government in that case. It does not need to be dealt with by me in the instant case as the Division Bench has rejected the plea of the Union of India on the basis of judgments discussed therein. In the Barmalt (India) Pvt. Ltd. v. Union of India's case (supra) the matter was remanded back to the Collector, Central Excise. I do not see any purpose in remanding the case. In view of the law laid down by the Supreme Court in the case State of Madhya Pradesh v. Bhailal Bhai Ors. (supra), power exists to order payment of the amount collected without the authority of law. To this effect there is also a judgment of a Division Bench of this Court in the case I.T.C. Limited v. Superintendent of Central Excise Others, 1983 E.L.T. 281 (Delhi), wherein in dealing with the matter of ..... X X X X Extracts X X X X X X X X Extracts X X X X
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