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TMI Blog1987 (12) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... just enrichment. Rule 15 of Chapter XVII of the Bombay High Court Appellate Side Rules, 1960 provides that in case of difference of opinion between the Judges composing the Division Court, the point of difference shall be decided in accordance with the procedure laid down in Section 98 of the Code of Civil Procedure, 1908. 2. Only few facts are required to be set out to appreciate the claim made by the petitioners in the petition filed under Article 226 of the Constitution of India on March 2, 1979. The petitioners are a Company incorporated under the Provisions of the Companies Act, 1956 and manufacture ball and roller bearings and textile machinery components. The ball and roller bearings, all sorts are classifiable under the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... not legal and valid and those proceedings ultimately ended by an order passed by the Central Government on October 12, 1978 holding that the petitioners are liable to pay the duty. The petitioners sought the following prayers in the petition : (a) The order dated October 12, 1978 be set aside; (b) The Tariff advises No. 28/78 and the Trade Notice No. 114/78 be set aside, and (c) Demand Notice dated March 26, 1979 be set aside. The petitioners then as a part of prayer sought the relief of refund in he following terms : "The respondents be compelled to refund to the petitioners the sum of Rs. 35,45,749.21 for the period 1-8-1972 to 30-9-1975 as per the Refund Applications filed by the petitioners and further compelling them to forb ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... trine of unjust enrichment has no application and it is well-settled by the decisions of the various Division Benches of this Court that the Revenue is liable to refund the duty recovered without any authority of law and cannot retain the same by taking shield behind the doctrine of unjust enrichment. At the conclusion of the judgment delivered by Mr. Justice Shah, Mr. Justice KolsePatil announced that he is differing and would deliver judgment on a later date after perusing the copy of the judgment of Mr. Justice Shah. At that stage, the counsel on behalf of the petitioners submitted that the petitioners would not press their demand for refund in the petition, but will pursue their refund application with the Department as the claims of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ier is binding and, therefore, the subsequent decisions could be ignored. 6. It is not disputed before me that the petitioners are entitled to refund in view of the statutory provisions of Section 11B and Rule 11 of the Central Excise Rules and it is no longer the claim of the Revenue that the components manufactured by the petitioners are liable to levy of duty under Tariff Item No. 49. On behalf of the Department, Mr. Sethna contended that the view taken by Mr. Justice Kolse-Patil is in accordance with the decision of the Supreme Court in the case of State of M.P. v. Vyankatlal reported in A.I.R. 1985 Supreme Court 901. Mr. Sethna did not dispute that several other decisions of the Division Bench of this Court had consistently taken the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the view taken by the Division Bench. It is not necessary to consider the question of the binding nature of the decision of the Division Bench in view of the decision of the Supreme Court reported in 70 Bombay Law Reporter 73 (Tribhovandas Purshottamdas Thakkar v. Ratilal Motilal Patel) and the decision of the Division Bench of this Court in the case of Panjumal Massomal Advani v. Harpal Singh Abnashi Singh reported in 76 Bombay Law Reporter 729. Both these decisions were considered in the case of Dipsi Chemicals (Supra) and the principles applicable in respect of binding nature of the decisions were set out. It is not necessary to refer to them in this judgment. In my judgment, the view taken by Mr. Justice Kolse-Patil is entirely incorre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion to withdraw prayer (b), it is desirable that the relief in terms of prayer (b) is also granted in addition to relief in terms of prayers (a)(i) and (a)(iii) and accordingly I would pass the final order. 8. Mr. Sethna then submitted that even if the order of refund is granted, the petitioners should be directed to furnish Bank Guarantee to ensure that in case the Department approaches the Supreme Court and succeeds, then the petitioners would refund the amount. In my judgment, it is impossible to accede to the submission. It is no longer in dispute that the duty was recovered without any authority of law and it would be most inequitable to direct the petitioners to furnish Bank guarantee merely because the Revenue may consider to appr ..... X X X X Extracts X X X X X X X X Extracts X X X X
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