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TMI Blog1990 (7) TMI 123X X X X Extracts X X X X X X X X Extracts X X X X ..... osed that the defendant had actually paid the excise duty on a concessional rate and that the actual amount paid by them towards the supply order mentioned was Rs. 32,564.11 Ps., as disclosed from the gate pass No. 3006 dated 28-1-1979 issued by the Central Excise Department. An excess amount of Rs. 11,034.51 was illegally and imporperly levied in the bill issued by the defendant and the plaintiff was forced to pay the same at the instance of the defendant. The defendant was not entitled to get the said excess amount. Ext. A1 stipulated payment of excise duty only at actual. 3. In the written statement, the defendant admitted the supply of motor vehicles. However, it was contended that the defendant was entitled to collect all duties and taxes applicable to the transaction from plaintiff, that the excise duty payable at the relevant time on the motor vehicles supplied by the defendant was computed at the statutory rate and that the special excise duty also was recovered according to law. According to the defendant independently of the contract between the plaintiff and the defendant and by virtue of the statutory notification issued by the Government of India under the Central Ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 'at actuals' employed in Condition No. 2 in the context would mean that the in respect of the goods. The court below accepted the interpretation sought to be put on this clause by the learned counsel for the respondent. After going through the Condition in Ext. A1 carefully. I am unable to agree with this conclusion of the lower court. I am inclined to accept the argument of the learned counsel for the appellant and to hold that the plaintiff is liable to pay excise duty, central sales tax, delivery charges, insurance charges and all other duties/taxes as are applicable in respect of the goods under the statutory provisions to the extent of actual payment made by the defendant. Otherwise I do not find any reason for employing the expression "at actuals" in Condition No. 2 of the conditions. If the plaintiff is liable to pay the excise duty and other duties mentioned above at the rate applicable to the goods in the statutes then the expression "will be paid extra at actuals" would be superfluous and redundant. In my view the employment of expression 'at actuals' could only mean to the extent to which such duties are actually paid. The concessional rate enjoyed by the defendant is o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mistake' has not been used in the plaint by the plaintiff. In Paragraph 1, the plaintiff has averred that in the bill issued by the defendant excise duty at 12.50% and 5% special excise duty on basic excise duty were also added, but the actual amount paid by the defendant towards the supply order was only Rs. 32,564.11 as disclosed from the gate pass No. 3006 dated 28-1-1979 issued by the Central Excise Department, that and the excess amount of Rs. 11,034.51 was illegally and improperly levied in the bill issued by the defendant and that the plaintiff was forced to pay the same at the instance of the defendant. There is specific averment that the plaintiff was not liable to pay excess amount of Rs. 11,034.51 under the contract and it was levied illegally and improperly. There is also the averment that the plaintiff was forced to pay the amount at the instance of the defendant. Of course it is not stated that payment was made by a mistake. What is a mistake, within the meaning of Section 72 has come up for consideration in a catena of decisions. 9. In Sri Shiba Prasad Singh v. Mahra Is Srish Chandra Namdi and Another -[AIR (36) 1949 PC 297], dealing with the question, the Privy Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Contract Act, observed as follows: "The question as to whether moneys have been paid under a mistake has got to be adjudged with reference to the litigant who claims the refund and not by the yardstick of a prudent and diligent assessee. Therefore, in case the assessee could establish that there was a mistake of law committed by it at the time when the payments were made, the mere fact that it might have been possible for the assessee by the exercise of due care and diligence, to have known of the correct position in law would not disentitle it to the benefit of Section 72 of the Contract Act." No doubt in Anth Bandhu Deb v. Dominion of India (AIR 1955 Cal. 626) a different view was taken and the view expressed in that case would support the contention raised by the learned counsel for the respondent, but the Court held that it was unable to agree with the decision in view of the pronouncement of the Supreme Court in Sales Tax Officer v. Kanhaiya Lal Makund Lal Saraf (AIR 1959 SC 135). Learned counsel also brought to my notice the decision a Division Bench of the Gujarat High Court in Union of India Others v. Ahmedabad Manufacturing and Calico Printing Co. Ltd. and Others [19 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of fabric to whom the burden of excise duty paid on blended yarn has been passed on, and therefore, if anybody is entitled to restitution, it is only the buyer of the fabric and not the bills. 12. In this case the defendant has paid the excise duty and additional excise duty only at concessional rate but they collected from the plaintiff excess amount and in view of the Condition No. 2 the plaintiff is entitled to get refund of the excess payment made by him. Under the contract plaintiff is liable to pay only the excise duty paid at actuals. It would not be legal for the defendant to retain the excess amount collected on the basis that the concession is allowed by reason of their performance. I do not find any warrant to argue with the contention of the learned counsel that they are entitled to retain excise duty collected from the plaintiff in the light of the notification under which concession in the payment of excise duty was granted in favour of the defendant. Learned counsel for the respondent submitted that really the plaintiff had no case that it is under a mistake that payment was made, that the correspondence would show that they were well aware of the actual excise du ..... X X X X Extracts X X X X X X X X Extracts X X X X
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