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TMI Blog1988 (7) TMI 64X X X X Extracts X X X X X X X X Extracts X X X X ..... emises of the Petitioners factory, although according to the Petitioners the said F.R.P. bodies fell under Item 68, they paid excise duty thereon at the full rate of duty payable under that entry and did not avail of the exemption under the aforesaid Notification because they were under the bona fide belief that the notification applied only to goods which were used up in their factory. 2. However, by a judgment dated December 10, 1985 in Writ Petition No. 382 of 1981 (Indian Hume Pipe Co. Ltd. Anr. v. Union of India and Others) a learned Single Judge of this Court held that the exemption under the Notification would apply to all goods manufactured in a factory when they are intended to be used in the factory in which they are manufactured and that there was nothing in the Notification to indicate that the use must be such as could not be repeated or that it must be such as results in the loss of further utility of the article. According to the Petitioners they learnt of the judgment in July, 1986 when it was reported in 1986 (9) Excise Customs Cases 14. The Petitioners therefore discovered that they had paid excise duty on the said bodies by mistake during the period 1st March ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Union of India Ors. .(AIR 1976 S.C. 1152), the facts were that the State Government had reduced the prices of levy sugar and the sugar mill owners challenged the validity of the said order by filing writ petitions before the Allahabad High Court. The High Court had admitted the petitions and granted stay of the operation of the order, on the mills giving bank guarantees for the excess prices that they would recover because of the stay order. As expected, the mills sold the levy sugar at free market rates because of the stay order. The High Court subsequently upheld the State Government's order controlling the prices and directed its Registrar to encash the bank guarantees and pay the amount to the State Government. The State Government was also directed to keep the amount in a separate account and the mill owners were ordered to furnish to the State Government a list of all such persons to whom they had sold the sugar together with the quantum of sugar sold to and the amount of the excess price charged to, them. The State Government was further directed to refund to the persons concerned the excess amounts from whom they were realised by the mills. Against this order, the mills ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pellants before the Supreme Court were traders engaged in the purchase and sale of agricultural produce. They had challenged Section 23A of the Punjab Agricultural Produce Market Act which had directed that those dealers who had already passed on the burden of the excess fee (which was earlier held invalid) would not be entitled to recover the same. White upholding the validity of Section 23A, the Court observed that all that the said Section 23A did was to prevent unjust enrichment by those dealers who had already passed on the burden of the excess fee to the next purchasers and so had reimbursed themselves. While observing so, the Court referred its earlier decisions in Orient Paper Mills Ltd. v. Stat of Orissa (AIR 1961 S.C. 1438) and R.S. Joshi v. Ajit Mills (AIR 1977 S.C. 2279). The Court also pointed out that observations to the contrary made in the case Ashoka Marketing Company (AIR 1971 S.C. 946) were expressly dissented from in AIR 1977 S.C. 2279. In U.P. State Electricity Board, Luck now v. City Board, Missouri Others (AIR 1985 S.C. 883) the issue related to the validity of the levy of 7-1/2% as an additional charge made by the Electricity Board under the impugned no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the persons on whom lay the ultimate burden to pay the amount would be entitled to get a refund of the same. The amount deposited towards the Fund was to be utilised for the development of sugarcane. If it is not possible to identify the persons on whom had tee burden been placed for payment towards the Fund, the amount of the Fund can be utilised by the Government for the purpose for which the Fund was created, namely, development of sugarcane. There is no question of refunding the amount to the respondents who had not eventually paid the amount towards the Fund. Doing so would virtually amount to allow, the respondents unjust enrichment.". The Court then set aside the decision of the High Court of Madhya Pradesh which had directed the refund of the amount to the Traders. 6. In addition to the above Supreme Court decisions, we have a decision of the Division Bench of this Court in M/s. Ogle Glass Works v. Union of India - 1979 E.L.T. (J 468) where the learned Judges by two separate but concurring judgments considered the question as to whether the Petitioners in that case who had already collected from their customers the excess excise duty were entitled to recover the same f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y borne its brunt. It will be a travesty of the judicial process if it is allowed to be abused for patently illegal and unjust recoveries by those who have not paid the amounts. The judicial process cannot lend its assistance for collection of illegal booty. 8. Several High Courts in the country have also taken the same view. To mention a few of the said decisions, they are as follow: (1) 1972 (30) S.T.C. 120 (Andhra Pradesh) Gurram Sreetamulu Gavalpati Anjaneyely Co. Ors, v. The State of Andhra Pradesh Ors. (2) 1979 E.L.T. (J 84) (Calcutta) Electric Lamp (India) Pvt. Ltd. v. Collector of Central Excise Calcutta and Orissa Ors.; (3) 1978 E.L.T. (J 229) (Calcutta) Hinduatan Pilkington Glass Works Ltd. v. Superintendent, Central Excise, Asansole Ors.; (4) 1980 (6) E.L.T. 735 (Delhi) Hyderabad Asbestos Cement Products Ltd Anr. v. Union of India Ors; (5) 1981 (8) E.L.T. 478 (Madras) Madras Aluminium Co. Ltd. Anr. v. Union of India; (6) 1983 E.L.T. 1763 (Gujarat) Union of India v. New India Industries Ltd., Baroda; (7) 1983 (13) E.L.T. 920 (Allahabad) Jaswant Sugar Mills v. Union of India Ors.; (8) 1984 (18) E.LT..732 (Andhra Pradesh) Godavari Plywoods Ltd. v. 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