9911796707
TMI Blog1985 (4) TMI 78X X X X Extracts X X X X X X X X Extracts X X X X ..... e 16th January, 1980 on the basis of the said judgment. On the 4th February, 1980 they wrote a letter to the Excise Authorities that henceforth they would pay the excise duty on the post manufacturing items under protest. On the 26th March, 1980 the Petitioners submitted a fresh price list on the basis of audited accounts for the year ending 31st December, 1979 and also made on the same day a refund application for Rs. 15,01,043/- for the period from July, 1977 to December, 1979. On the 5th May, 1980, the Assistant Collector of Excise passed his order rejecting the revised price list, and on the 25th July, 1980 he also rejected the claim of refund. The Petitioners preferred an appeal against both the orders, and on the 10th September, 1980 the Collector of Excise (Appeals) rejected the appeal on merits. It is to challenge the said Appellate Order that the present petition was filed on the 8th October, 1980. 2. In the meanwhile the Supreme Court delivered the aforesaid orders and judgments in appeal against the decision of this Court in the case of the Bombay Tyres International Private Limited. In view of the said orders and decisions of the Supreme Court, the learned Single Judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aim was not filed within six months which is the period of limitation for claiming refund under Section 11B of the Central Excise Act. 4. Taking first the claim for deduction on account of "Surprise Incentives", the case of the Petitioners is that by their circular dated the 23rd May, 1983 they had offered to their customers/dealers a discount under a Special Incentive Scheme called. The Miranda Package of Surprise Incentives". This was in addition to the other discounts they had allowed to the dealers. The basic features of the said "Surprise Incentives" scheme were as follows :- If the dealers' purchases in June were 15% above the target, they were entitled to a 1% target incentive on their total purchases from 1st January to 30th June, 1983. Even if the dealers' monthly target were not fulfilled, if they fulfilled the said target upto June, 1983 over a period of six months together and also exceeded the total target of 15%, they were to get the said incentive of 1% on the total purchases for the six months ending June, 1983. By this circular the Petitioners also promised that there would be some incentives in the coming months but the quantum of such incentives was not ann ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n was that although by his letter dated the 7th March 1984 the Assistant Collector had called upon the Petitioners to substantiate their claim that they had paid to their dealers such incentive bonus monthwise and goodswise, the Petitioners had not produced any documentary evidence to support their claim and hence there was no material to prove the Petitioners' claim that they had in fact paid such discount to their customers. It was also contended that the reason given by the Assistant Collector in his order that the discount was not known at or prior to the time of the removal of the goods is clear on the facts of the case. In this connection, it is pointed out that from 1st January 1983 almost to the end of May 1983 the dealers were not even aware that there was any such "Surprise Incentive" scheme in the offing. Therefore, the claim for deduction from 1st January to 31st May 1983 is not maintainable at all. As regards the period from July to October 1983 the quantum of incentive which was to be made available to the dealers was admittedly not declared, and therefore, not known. As regards months of June, November and December 1983, although both the factum of the incentive and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... period only by the circular dated the 1st November, 1983. The customers were therefore obviously unaware of any such incentive at the time they cleared their individual consignments during the said three months. The only period for which it can be said that the customers were made known of the said incentive scheme was the period of three months viz. June, November and December, 1983. All that however can be said with regard to the said three months is that the Petitioner's customers were aware that there was some such incentive scheme operative during the period. But even with regard to these three months it can hardly be said that they knew at the time they cleared the individual consignments during the said three months, the quantum of discount that they would be entitled to. In fact at the time they cleared the specific consignments, during the said three months they could not even be sure that they would get any discount at all. This was because according to the scheme itself their entitlement to the discount was dependent on their fulfilling certain target within a specific period. Both the availability of the incentive as well as its quantum were contingent upon the customer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ould be within time. The Respondents have no doubt disputed even the new quantum claimed by the Petitioners. It is not however necessary for me to go into the dispute with regard to the quantum. This is because I am of the view that the Petitioners in this case are not entitled to the refund of any amount even if this Court has power to grant the claim since the Petitioners have admittedly recovered the said amount of excise duty from their customers. To grant the Petitioners' claim in such circumstances will amount to permitting them to enrich themselves unjustly and to misappropriate the monies which properly belong to their customers and to the ultimate consumers. In an equitable and discretionary writ jurisdiction such as of Article 226, the Courts should not countenance such claims. This is now well settled by three decisions of the Supreme Court reported in (i) A.I.R. 1980 at page 1037, Shiv Shankar Dal Mills v. State of Haryana, (ii) A.I.R. 1985 S.C. at page 218, AmarNath Om Prakash v. State of Punjab and (iii) 1985 (1) S.C.ALE at page 196. I have also dealt with this aspect of the matter in a dissenting judgment which is reported at 1985 (19) E.L.T. 373 - I.T.C. Ltd. v. M.K ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
